THE
REVISED LAWS
OF
Enacted November 21, 1901,
To take Effect January 1, 1902.
WITH THE
CONSTITUTION OF THE UNITED STATES, THE CONSTITUTION OF THE
COMMONWEALTH, AND TABLES SHOWING THE DISPOSITION
OF THE PUBLIC STATUTES AND OF STATUTES
PASSED SINCE THE ENACTMENT OF
THE PUBLIC STATUTES.
Vol. II.
Chaptees 109-227.
BOSTON:
WRIGHT & POTTER PRINTING CO., STATE PRINTERS,
18 Post Office Square.
1902.
946
POWERS, DUTIES, ETC., OF CORPORATIONS. [CHAP, 109.
TITLE XV.
Chapter 109.
Chapter 110.
Chapter 111.
Chapter 112.
Chapter 113.
Chapter 114.
Chapter 115.
Chapter 116.
Chapter 117.
Chapter 118.
Chapter 119.
Chapter 120.
Chapter 121.
Chapter 122.
Chapter 123.
Chapter 124.
Chapter 125.
Chapter 126.
OF CORPORATIONS.
-Of Certain Powers, Duties and Liabilities of Corporations.
-Of Manufacturing and other Corporations.
-Of Railroad Corporations and Railroads.
-Of Street Railway Companies.
-Of Savings Banks and Institutions for Savings.
-Of Co-operative Banks.
-Of Banks and Banking.
■Of Trust Companies.
- Of Mortgage Loan and Investment Companies.
-Of Insurance.
-Of Fraternal Beneficiary Corporations.
-Of Assessment Insurance.
•Of Gas and Electric Light Companies.
- Of Companies Engaged in the Transmission of Electricity.
-Of Proprietors of Wharves, Real Estate lying in Common,
General Fields, and Aqueduct Corporations.
-Of Agricultural and Horticultural Societies.
Of Corporations for Charitable and other Purposes.
•Of Foreign Corporations.
CHAPTEE 109.
OF CERTAIN POWERS, DUTIES AND LIABILITIES OF CORPORATIONS.
Sections 1-3. — Legislative Powers over Corporations.
Sections 4-11. — Powers of Corporations.
Sections 12-17. — Organization .
Sections 18-31. — Capital Stock and Bonds.
Sections 32-39. — Lists of Stockholders and Transfer of Shares.
Section 40. — Unclaimed Dividends.
Sections 41-51. — Attachment and Sale of Franchise.
Sections 52-57. — Dissolution of Corporations.
Provisions of
this chapter to
apply to all
corporations,
except, etc.
P. S. 105, § 1.
LEGISLATIVE POWERS OVER CORPORATIONS.
Section 1. The provisions of this chapter, unless expressly 1
limited in their application, shall apply to all corporations created 2
by or organized under the laws of this commonwealth, except so far 3
as they are inconsistent with other provisions of these statutes rela- 4
tive to particular classes of corporations, or with the provisions 5
of special laws. 6
Chap. 109.1 powers, duties, etc., of corporations. 947
1 Section 2. Corporations now existing shall continue to exercise Existing cor-
2 and enjoy their powers and privileges according to their respective continue8
3 charters and to the laws now in force, and shall continue subject to 1I29,' 53?'§| 16,
4 all the liabilities to which they are now subject, except so far as said rS 38, §§ i, 36.
5 powers, privileges and liabilities are modified or controlled by the §§4o°'§1;
6 provisions of these statutes. p.' s. 165,1-2.
1 Section 3. Every act of incorporation passed since the eleventh jecft^aitlra-'
2 day of March in the year eighteen hundred and thirty-one shall be ig3o°8irepBaL
3 subject to amendment, alteration or repeal by the general court. R. s. 38, §36;
4 All corporations which are organized under general laws shall be g.'s. 68, §41.
5 subject to such laws as may be hereafter passed affecting or altering 23 p'ick/334. ' '
6 their corporate rights or duties or dissolving them. Corporations 9 cuth] m.
7 shall, notwithstanding such repeal or dissolution, be subject to the i3^ray2239
8 provisions of sections fifty-three and fifty-four. Such laws of l5®™/'^-
9 amendment, alteration or repeal or such dissolution shall not take 5 Alien,' 230.'
10 away or impair any remedy which may exist by law consistently 13 Alien! 29.'
11 with said sections against the corporation, its members or officers, 10I Mass.' 446!
12 for a liability previously incurred. 109 Mass. 103,
118 Mass. 290, 561. 123 Mass. 32. 147 Mass. 569.
POWERS OF CORPORATIONS.
1 Section 4. Every corporation, except as otherwise expressly General
2 provided, may, in its corporate name, sue and be sued, appear, i8°o^,e65S,'§i.
3 prosecute and defend to final judgment and execution ; have a com- \m't H; § i.
4 mon seal, which it may alter at pleasure ; elect in such manner as it f^ fi8' § 6;
5 may determine all necessary officers, fix their compensation and f$ s-^, §2;
6 define their duties and obligations; and make by-laws and regula- £•' £• i°5> § 4-
~ " o 10 Mass. 91.
7 tions for its own government, the due and orderly conducting of its io Gray, 582.
8 affairs and the management of its property.
1 Section 5. Every corporation may by its by-laws, except as By -laws.
2 otherwise expressly provided, determine the manner of calling and 1829; 53! § 1!
3 conducting its meetings ; the number of members which shall con- r. s. 38, §6;
4 stitute a quorum ; the number of shares which shall entitle the q] f %Q> § 2;
5 members to one or more votes; the mode of voting by proxy; p'|7105 §5
6 the mode of selling shares for the payment of assessments ; and 8 Met. 301, 325.
7 the tenure of office of the several officers ; and may annex suitable
8 penalties to such by-laws, not exceeding twenty dollars for one
9 offence ; but no by-law shall be made by a corporation which is
10 inconsistent with law.
1 Section 6. Every corporation may convey land to which it has Conveyance of
2 a legal title. G. S. 68, § 8. P. S. 105, § 6. U Allen, 65. R. s." 44, § 6.
1 Section 7. A corporation which is organized under general change of
2 laws or created by special charter for the purpose of carrying on a 1877*67?"
3 mechanical or manufacturing business in a city or town named in p* s> 105> § 7*
4 its agreement of association or charter may extend or remove its
5 business or any part thereof to any other city or town in this com-
6 monwealth, and may purchase, hold and convey so much real and
7 personal estate in such other city or town as may be necessary for
8 the purpose of carrying on its business therein.
948
POWERS, DUTIES, ETC., OF CORPORATIONS. [CHAP. 109.
Corporate
name.
1891, 257.
149 Mass. 436.
Section 8. A corporation which is organized under the general 1
laws may assume any name which, in the judgment of the commis- 2
sioner, indicates that it is a corporation ; but it shall not assume the 3
name of another corporation established under the laws of this com- 4
mon wealth, or of a corporation, firm, association or person carrying 5
on business in this commonwealth, at the time of such organization 6
or within three years prior thereto, or assume a name so similar 7
thereto as to be liable to be mistaken for it, except with the consent 8
in writing of said existing corporation, firm or association or of 9
such person previously filed with the commissioner of corporations. 10
The supreme judicial court or the superior court shall have jurisdic- 11
tion in equity, upon the application of any person interested or 12
affected, to enjoin such corporation from doing business under a 13
name assumed in violation of the provisions of this section, although 14
its certificate of organization may have been approved and a certifi- 15
cate of incorporation may have been issued to it. 16
namegeof Section 9. Upon the application of any corporation, authorized 1
1891, 360, §§ i, by a Vote of two-thirds of the stockholders present and voting at a 2
i892,i98,2oi. meeting called for the purpose, the commissioner of corporations 3
1 895 104 ■
1898,' 474,' § 9. may, after public notice of such application, authorize such corpora- 4
1899, 164, 442, ^Qn ^Q c]iange j^s name# if it has no capital stock, the application 5
i90i, 422, § 9. may ke authorized by a two-thirds vote of the persons legally quali- 6
fied to vote in meetings of the corporation present and voting on 7
the question of the change of name. The approval of the insurance 8
commissioner shall be required for applications by corporations 9
which are subject to the provisions of chapters one hundred and 10
eighteen, one hundred and nineteen and one hundred and twenty. 11
ol^belfited Section 10. A certified copy of such authorization and a cer- 1
vm Ho01?? 3r 6' tificate of the vote of the corporation, signed and sworn to by the 2
' president, treasurer and a majority of the directors, or if it has no 3
such officers, by its presiding and financial officers and a majority 4
of its other officers having the powers of directors, shall be filed in 5
the office of the secretary of the commonwealth. The commissioner 6
shall require public notice to be given of the change so authorized ; 7
and upon receipt of proof thereof the secretary of the commonwealth 8
may grant a certificate of the name which the corporation shall bear, 9
which, subject to the provisions of section eight, shall thereafter be 10
its legal name. 11
Rights and
liabilities
under new
name.
1891, 360, § 4.
Section 11. A corporation shall have the same rights, powers 1
and privileges and be subject to the same duties, obligations and 2
liabilities under its new name as before its name was changed, and 3
may sue and be sued by its new name ; but any action brought 4
against it by its former name shall not be defeated on that account, 5
and, on motion of either party, the new name may be substituted 6
therefor. 7
ORGANIZATION.
Limit of time
for organiza-
tion.
1856, 264, § 1.
G. S. 68, § 2.
P. S. 105, § 8.
1898, 336.
Section 12. A corporation which is created by special charter 1
shall, if no time is limited therein, be organized within two years after 2
the passage of its act of incorporation. Within thirty days after 3
the final adjournment of the meeting for organization of any such 4
Chap. 109.] powers, duties, etc., of corporations. 949
5 corporation, the recording officer thereof shall make, sign, swear to
6 and file in the office of the secretary of the commonwealth a certifi-
7 cate stating the date on which the meeting for organization was held,
8 the names of the officers elected at such meeting and the amount
9 of capital stock, if any, fixed under its charter.
1 Section 13. The first meeting of such corporation, unless other- First meeting
2 wise provided in its act of incorporation, shall be called by a notice, corporations.
3 signed by the person or by a majority of the persons named in" Jl^; f| f f;
4 such act, setting forth the time, place and purposes of the meeting, r3! fHf
5 and delivered seven days at least before the meeting to each member g5| ug-
6 or published in a newspaper of the county in which the corporation p.' s.' 105, §9.
7 is established, if any; otherwise in a newspaper of an adjoining 3 Met. 282. '
8 county. The persons so named and their associate subscribers to 12 AUen, 362.
9 stock before the date of the act shall hold the franchise or privileges ioojass.9385.
10 granted until the corporation is organized. The notice of the first {^ Mass' 482!
11 meeting of an incorporated religious society may be affixed to the
12 door or to some other conspicuous part of its meeting house.
1 Section 14. The first meeting of a corporation organized under —of corpora-
2 general laws which make no provision for the calling thereof may be ized under
3 called in the manner set forth in the agreement of association, or, &enser68, §T.S*
4 if it makes no provision, by a notice signed by a majority of the p-s-105>§10-
5 associates and published as prescribed in the preceding section.
1 Section 15. If, by reason of the death or absence of the officers Meeting called
2 of a corporation, or other cause, there is no person duly authorized tiie'peace,0
3 to call or preside at a legal meeting, a justice of the peace may, upon ^j^V
4 written application of three or more of the members, issue a warrant ]|- 1 1|> 1 1-
5 to any one of them, directing him to call a meeting by giving such p- s- 10^- § "•
6 notice as had been previously required by law, and may in the same
7 warrant direct him to preside at the meeting until a clerk is duly
8 chosen and qualified if no officer is present legally authorized to
9 preside.
1 Section 16. A corporation when so assembled may elect officers Election of
2 to fill vacancies, and may act upon such other business as may by i833,e49.'
3 law be transacted at a regular meeting. p. s. 105, § 12. §; f ; ^; | jj;
1 Section 17. An executor, administrator, guardian, conservator Executors,
2 or trustee shall represent the shares of his trust at all meetings of i829,53^i2.te"
3 the corporation, and may vote as a stockholder. i838,'98,'§ !.5-
G. S. 68, § 11. P. S. 105, § 13. 9 Cush. 192. 101 Mass. 398.
CAPITAL STOCK AND BONDS.
1 Section 18. The par value of shares in the capital stock of a Par value of
shares.
1.
2 corporation, if organized for any of the purposes mentioned in sec- i860, 128, §
3 tions five, six, eleven and thirteen of chapter one hundred and ten, ifroj 224J § 7.
4 may be such amount, not less than twenty-five nor more than one J|i|' f6-
5 hundred dollars, as maybe fixed in its agreement of association, foXof' §16;
6 and if organized for any of the purposes mentioned in sections 1894, 500.
1898 503 6 2
7 seven and eight of said chapter, may be one hundred dollars or any
8 other amount fixed in its agreement of association. Such corpora-
950
POWERS, DUTIES, ETC., OF CORPORATIONS. [CHAP. 109.
tion may, at a meeting of stockholders called for the purpose, 9
change the par value of its shares if a certificate of such change 10
shall, within ten days thereafter, be made, signed and sworn to by 11
its president, treasurer and a majority of its directors, or other 12
officers having the powers of directors, and, having been approved 13
as to its form by the commissioner of corporations, be filed in the 14
office of the secretary of the commonwealth. The par value of the 15
shares of the capital stock of all other corporations, unless other- 16
wise expressly provided by law, shall be one hundred dollars, and 17
any corporation which may be organized with shares of a par value 18
other than one hundred dollars may, in like manner, change the par 19
value to that amount. 20
Shares not to
be issued for
less than par.
J851, 133, § 16.
1858, 167.
Section 19. No corporation, unless specially authorized, shall 1
issue a share for a less amount to be actually paid in thereon than 2
the par value of the shares at the date of issue. 3
1859, 104.
G. S. 68, § 9.
1871, 392, § 3.
1873, 39, § 1.
P. S. 105, § 17; 106, § 41.
157 Mass. 71.
Stock or scrip
dividends for-
bidden, when.
1868, 310, § 1.
1871, 389.
1874, 372, § 177.
P. S. 105, §18;
112, § 61.
1894, 350, § 1.
Section 20. No telegraph, telephone, gas light, electric light, 1
steam railroad, street railway, aqueduct or water company estab- 2
lished under the laws of this commonwealth shall declare any stock 3
or scrip dividend or divide the proceeds of the sale of stock or scrip 4
among its stockholders ; nor shall any such company issue any share 5
of stock to any person unless the par value Of the shares so issued 6
is first paid in cash to its treasurer ; and no railroad corporation 7
shall without authority of the general court increase its capital stock 8
beyond the maximum amount fixed by its act of incorporation or 9
fixed under the provisions of section sixty-one of chapter one hun- 10
dred and eleven. 11
Liability of
directors.
1868, 310, § 2.
P. S. 105, § 19;
112, § 61.
1894, 350, § 2.
Section 21. All certificates of stock or scrip which are issued 1
in violation of the provisions of the preceding section shall be void ; 2
and the directors of the corporation which issues them shall be 3
liable to a penalty of one thousand dollars each, to be recovered 4
by indictment in any county in which any of them reside ; but if 5
any such director proves that, before such issue, he filed his dissent 6
in writing thereto with the clerk, or was absent and at no time 7
voted therefor, he shall not be so liable. 8
Certificate of
payment of
capital stock.
1894, 380, § 1.
Section 22. Immediately after the payment of the capital of an 1
aqueduct or water company, as authorized by the commissioner of 2
corporations, a certificate, signed and sworn to by its president, 3
treasurer and a majority of its directors, stating the fact of such 4
payment, the manner in which the capital has been paid in and has 5
been invested or voted to be invested, and approved by the com- 6
missioner of corporations, shall be filed in the office of the secretary 7
of the commonwealth. 8
ca^itaPb °con Section 23. A conveyance to a corporation described in the
veyanceof preceding; section of real or personal property at a fair valuation
1894, 380, § 2. shall be a sufficient payment of the capital stock to the extent of
such value, if a description of such property and a statement of
the value at which it has been taken in payment, in such detail as
1
2
3
4
5
Chap. 109.] powers, duties, etc., of corporations. 951
6 the commissioner of corporations shall require or approve, is included
7 in the certificate mentioned in the preceding section, and a state-
8 ment that he is satisfied that such valuation is fair and reasonable
9 is indorsed by him upon such certificate.
1 Section 24. Eailroad corporations and street railway companies issue of capital
2 shall issue only such amounts of stock and bonds, coupon notes and i875, i6i.
3 other evidences of indebtedness payable at periods of more than lsk.'^'fi-
4 twelve months after the date thereof, and gas and electric light com- imfwitfi? L
5 panies, corporations established for and engaged in the business of ^f'A'Q'
6 transmitting intelligence by electricity, aqueduct and water com-
7 panies, shall issue only such amount of stock and bonds, as the
8 board of railroad commissioners in the case of railroad corporations
9 or street railway companies, the board of gas and electric light
10 commissioners in the case of gas or electric light companies, may
11 from time to time vote, or the commissioner of corporations in the
12 case of the other corporations hereinbefore specified may from time to
13 time determine, is reasonably necessary for the purpose for which
14 such issue of stock or bonds has been authorized. Said boards or
15 commissioner shall render a decision upon an application for such
16 issue within thirty days after the final hearing thereon. Such de-
17 cision shall be in writing, shall assign the reasons therefor, shall, if
18 authorizing such issue, specify the respective amounts of stock or
19 bonds, or of coupon notes or other evidences of indebtedness as
20 aforesaid, which are authorized to be issued for the respective pur-
21 poses to which the proceeds thereof are to be applied, shall, within
22 seven days after it has been rendered, be filed in the office of the
23 board or commissioner rendering it and a certificate of the vote of
24 the board or of the decision of the commissioner shall, within three
25 days after such decision has been rendered and before the stock or
26 bonds or coupon notes or other evidences of indebtedness as afore-
27 said are issued, be filed in the office of the secretary of the common-
28 wealth, and a duplicate thereof delivered to the corporation which
29 shall enter the same upon its records. A company which is within
30 the provisions of this section shall not apply the proceeds of such
31 stock or bonds or coupon notes or other evidences of indebtedness
32 as aforesaid to any purpose not specified in such certificate. The
33 provisions of this section shall not require the approval of the board
34 of railroad commissioners to the issue by any railroad corporation
35 of capital stock or bonds, or of coupon notes or other evidences of
36 indebtedness as aforesaid, duly authorized by law of this common-
37 wealth, the proceeds of which are to be expended in another state
38 or country or which are to pay for borrowed money expended in
39 another state or country.
1 Section 25. A railroad corporation or street railway company, Limit of issue
2 unless expressly authorized by its charter or by special law, shall not bonds™tc.
3 issue bonds, coupon notes or other evidences of indebtedness pay- ill?; Ilf) | i;
4 able at periods of more than twelve months after the date thereof
5 to an amount which, including the amount of all such securities
6 previously issued and outstanding, exceeds in the whole the amount
7 of its capital stock at the time actually paid in ; but this limitation
8 shall not apply to the issue of bonds for the purpose of paying and
9 refunding at maturity bonds lawfully issued prior to the second
952 POWERS, DUTIES, ETC., OF CORPORATIONS. [ClIAP. 109.
day of June in the year eighteen hundred and ninety-seven ; and 10
such corporation shall not issue the securities mentioned in this 11
section unless authorized by a vote of its stockholders at a meet- 12
ing called for the purpose. 13
ofga^compa- Section 26. If, when the board of gas and electric light com- 1
mes to be made missioners approves an issue of new stock or bonds by a gas or 2
1896, 473. electric light company, it determines that the fair structural value 3
of the plant of such company is less than its outstanding stock and 4
debt, it may prescribe such conditions and requirements as it deter- 5
mines are best adapted to make good within a reasonable time the 6
impairment of the capital stock; or, before allowing an increase, it 7
may require the capital stock to be reduced by a prescribed amount 8
not exceeding the amount of such impairment. The amount of im- 9
pairment and the conditions and requirements imposed shall be 10
stated in the annual report of the board. 11
Enforcement Section 27. The supreme iudicial court or the superior court 1
of statutes. ..,.. . r . J 1. r„
1894,450, §3; shall have mrisdiction in equitv, upon the application of the board 2
452 § 3 ■ 462 §3 . .. ,1 •/ > ■ ■ i. £ r
1896,473. ' of railroad commissioners, the board of gas and electric light com- 3
missioners, the commissioner of corporations, respectively, of the 4
attorne}^ general, of any stockholder or of any interested party, to 5
enforce the provisions of the three preceding sections and all lawful 6
orders and decisions, conditions or requirements of said boards or 7
commissioner made in pursuance thereof. 8
1894*450 8§ 2- Section 28. A director, treasurer or other officer or agent of 1
452, § 2; 462, § 2. anv corporation named in section twenty-four who knowingly votes 2
to authorize the issue of, or knowingly signs, certifies or issues, 3
stock or bonds contrary to the provisions of the four preceding sec- 4
tions, or who knowingly votes to authorize the application, or know- 5
ingly applies the proceeds, of such stock or bonds contrary to the 6
provisions of said sections, or who knowingly votes to assume or 7
incur, or knowingly assumes or incurs in the name or behalf of such 8
corporation, any debt or liability except for the legitimate purposes 9
of the corporation shall be punished by a fine of not more than one 10
thousand dollars or by imprisonment for not more than one year, 11
or by both such fine or imprisonment. 12
Notice tp Section 29. If a corporation, except a corporation described in 1
of increase of the following section, increases its capital stock and no other provi- 2
1870, 179. sion therefor is made by law, its directors shall forthwith give notice 3
§84. * 109' 392' in writing thereof to each stockholder who was such at the date of 4
wsMass'.yi3.' the vote to increase, stating the amount of the increase, the number 5
of shares or fractions of shares of the new stock which such stock- 6
holder is entitled to take, and the time, not less than thirty days 7
after the date of such vote, within which such new stock shall be 8
taken ; and, within said time, each stockholder may take at par his 9
proportion of such new shares, according to the number of his shares 10
at the date of such vote to increase. If, at the expiration of said 11
time, any shares remain untaken, the directors shall sell them by 12
public auction for the benefit of the corporation at not less than 13
the par value thereof. 14
Chap. 109.] powers, duties, etc., or corporations. 953
1 Section 30. If a corporation which owns op operates a railroad beTffereduV0
2 or street railway, a gas light, electric light, aqueduct or water com- stockholders
J .to i • 1 • t i n i • i • upon increase
3 pany, or a corporation which is established tor and is engaged in the of capital
4 business of transmitting intelligence by electricity, increases its mo, iva
5 capital stock, such new shares as are necessary to produce the i878iS9,§i;"
6 amount of increased capital stock which has been authorized shall, fgfs, 84, § l.
7 except as provided in the following section, be offered proportion- p7|' io^s1^-
8 ately to its stockholders at not less than the market value thereof ii^§58;'ii3, '
9 at the time of increase, to be determined by the board of railroad 1893, 315, §i.
1894 47*^ SI
10 commissioners in the case of a railroad corporation or street
11 railway company, by the board of gas and electric light comniis-
12 sioners in the case of a gas light or electric light company, and by
13 the commissioner of corporations in the case of an aqueduct or water
14 company or of a corporation which is established for and is engaged
15 in the business of transmitting intelligence by electricity, taking
16 into account previous sales of stock of the corporation and other
17 pertinent conditions, which determination shall be in writing and
18 with the date thereof shall be certified to and recorded in the books of
19 the corporation. The directors, upon the approval of such increase
20 as provided in section twenty-four and the determination of the
21 market value as hereinbefore provided, shall cause written notice of
22 such increase to be given to each stockholder who was such at the date
23 of the vote to increase, stating the amount of such increase, the
24 number of shares or fractions of shares to which he, according to the
25 proportionate number of his shares at the date of such vote, is en-
2(3 titled, the price at which he is entitled to take them, and fixing a time,
27 not less than fifteen days after the date of such determination, within
28 which he may subscribe for such additional stock. Each stockholder
29 may, within the time limited, subscribe for his portion of such stock,
30 which shall be paid for in cash before the issue of a certificate therefor.
1 Section 31. If the increase in the capital stock which is sub- foidatauction
2 ject to the provisions of the preceding section does not exceed four Ym^rd
3 per cent of the existing capital stock of the corporation, the directors, isn! 392, § 2.
4 without first offering the same to the stockholders, may, and if, after 305;'333.
5 the expiration of the time limited in the notice required by the pre- ms, 84, '§ 2.6'
6 ceding section, any shares remain unsubscribed for by the stock- p.'s.io6, §40;
7 holders entitled to take them, the directors shall sell them by auction "f^859' U3'
8 to the highest bidder at not less than the par value thereof to be J|^> |i|> |.2j 2
9 actually paid in cash. Such shares shall be offered for sale in the
10 city of Boston or in such other city or town as may be prescribed
11 by such commissioners; and notice of the time and place of such
12 sale shall be published at least five times during the ten days im-
13 mediately preceding the sale in each of at least three of such daily
14 newspapers as may be prescribed by such commissioners. No shares
15 shall be sold or issued under this or the preceding section for a less
16 amount to be actually paid in cash than the par value thereof.
LISTS OF STOCKHOLDERS AND TRANSFER OF SHARES.
1 Section 32. The treasurer or cashier of every corporation shall holders o°en
2 keep an accurate list of its stockholders and of the number of shares *° inspection.
3 owned by each, which shall at all times, upon written application by o. s. 68,"§io.
"PS 10^ S 21
4 a stockholder, be exhibited for his inspection. Such officer who
954
POWERS, DUTIES, ETC., OF CORPORATIONS. [CHAP. 109.
refuses so to exhibit such list shall forfeit fifty dollars for each 5
offence. 6
Record of
Barnes and
residences of
stockholders.
1859, 227.
G. S. 68, § 20.
1861, 120.
1864, 201, § 1.
P. S. 105, § 22.
Section 33. Every corporation shall record the names and 1
residences of all its stockholders, and all changes therein of which 2
it is notified, shall issue no certificate of stock to a stockholder or 3
purchaser of a share until he informs the corporation of his actual 4
residence and shall pay no dividend to a stockholder whose actual 5
residence is unknown or uncertain until he informs the corporation 6
thereof. 7 '
List of stock-
holders to be
filed with sec-
retary.
1889, 222, § 3.
[1 Op. A. G.
278.]
Records of
transfers.
1847, 107.
G. S. 68, § 12.
P. S. 105, § 23.
Section 34. Every corporation shall, within fifteen days after 1
a request in writing by a stockholder thereof, made not less than 2
thirty nor more than sixty days prior to the time fixed for the annual 3
meeting of stockholders, cause a complete list of the stockholders as 4
of the sixtieth day prior to the time so fixed, with the residence of 5
and the number of shares belonging to each stockholder, to be made 6
and filed in the office of the secretary of the commonwealth. The 7
list shall be in such form as the commissioner of corporations shall 8
require or approve, and shall be signed and sworn to by the treas- 9
urer of the corporation or by some other officer cognizant of the 10
facts specially appointed by the corporation to make the same. If 11
a corporation and its treasurer or other officer so specially appointed 12
omit or neglect to cause a list of stockholders to be so made and 13
filed, they shall each forfeit not more than one thousand dollars to 14
be recovered in the manner provided in section eighty-four of 15
chapter one hundred and ten. 16
Section 35. All records of transfers of stock in any corporation 1
which is created by the sole authority of this commonwealth shall be 2
made and kept therein. The officer of every such corporation whose 3
duty it is to record such transfers shall be a resident of this com- 4
monwealth at the time of his appointment ; and if he ceases to be 5
such resident, his office shall become vacant. 6
Transfer of
stock.
1851, 133, § 9.
1855, 68, § 3.
1881, 302.
P. S. 105, § 24.
12 Gray, 213.
129 Mass. 435.
138 Mass. 240,
244.
116 U. S. 8.
Section 36. The sale, assignment or transfer of stock in a cor- 1
poration shall not, except as provided in the following section, affect 2
the right of the corporation to pay any dividend due thereon or 3
affect the title or rights of an attaching; creditor until it has been 4
recorded upon the books of the corporation or until a new certifi- 5
cate has been issued to the person to whom it has been transferred ; 6
but no attachment of such stock as the property of the vendor 7
which is made after such sale, assignment or transfer shall defeat 8
the title or affect the rights of the vendee, if such record is made 9
or a new certificate is issued within ten days after such transfer is 10
made. 11
Same subject.
1884, 229.
138 Mass. 240,
244.
159 Mass. 64.
Section 37. The delivery of a certificate of stock of a corpora- 1
tion to a bona fide purchaser or pledgee, for value, with a written 2
transfer thereof, or with a written power of attorney to sell, assign 3
or transfer the same, signed by the person named as the shareholder 4
in such certificate, shall be a sufficient delivery to transfer the title 5
as against all persons ; but no such transfer shall affect the right of 6
the corporation to pay any dividend due upon the stock or to treat 7
Chap. 109.] powers, duties, etc., of corporations. 955
8 the holder of record as the holder in fact until it has been recorded
9 upon the books of the corporation, or until a new certificate has been
10 issued to the person to whom it has been so transferred.
1 Section 38. If, in transfers of stock as collateral security, the Transfer of
2 debt or duty which is intended to be secured thereby is substantially rfty. as secu~
3 described in the deed or instrument of transfer, and if the certificate G.3l.968,§§3i3.
4 issued to the pledgee or holder expresses on its face that it is so held fx- cUsn5'i!f5"
5 and the name of the pledgor is stated therein, the pledgor alone }•> Gray, 216.
Till 10 Allen, 505.
6 shall be liable as a stockholder. 176 Mass. 442. 127 Mass. 563.
1 Section 39. The treasurer, cashier or other officer who has the Record of
2 lawful custody of the records of transfers of shares, upon the written exhibitedto6
3 request of a creditor of the general owner of stock pledged or trans- request?3 upon
4 ferred, shall exhibit to him the record of such transfer; and in case g.3| 68 §u
5 of refusal, and of loss to the creditor by reason thereof, the corpora- ^cu'sn^iol2^"
6 tion shall be liable for the amount of the loss.
UNCLAIMED DIVIDENDS.
1 Section 40. Each corporation in this commonwealth shall, ^aime'ddiVi-
2 once in every five years, publish three times successively in a de^^^
3 newspaper in the city of Boston, and also in a newspaper, if any, 1837, 56.
4 in the county in which the corporation is established, a list of all p.' s." 105, § 27.
5 dividends which have remained unclaimed for two years or more
6 and the names of the persons to whose credit such dividends stand.
ATTACHMENT AND SALE OF FRANCHISE.
1 Section 41. If, by an order of county commissioners or by the warrants of
2 verdict of a jury, damages have been assessed for an injury to againstcor-
3 property by the doings of any corporation which is authorized to images8 f°r
4 receive toll, except a railroad corporation, and the damages remain jjp|' ^'Aq
5 unpaid for thirty days after the order or verdict, the owner thereof ^, 259, § 5.
6 may have a warrant of distress against the corporation for such p. s.' 105, § 29.
7 damages, with interest thereon and costs.
1 Section 42. The franchise of a corporation which is authorized ^.anchiseon°f
2 to receive toll, and all the rights and privileges thereof, shall be v-ionrars %e&&'
3 liable to attachment on mesne process. g. s. 68, §25. r. s'. m,'§ 11.
P. S. 105, § 30. 5 Cush. 509. 11 Allen, 71. 171 Mass. 61.
1 Section 43. If a judgment is recovered against a corporation saieof, on
2 which is authorized to receive toll, its franchise and all the rights isio^iIT^'l*5'
3 and privileges thereof, so far as relate to the receiving of toll, and R2s.44*'§§i2.
4 all other corporate property, real and personal, may be taken on p"f'io|A2fi
5 execution or warrant of distress and sold by public auction. ?„9liSh-^09^
J * 170 Mass. 203.
1 Section 44. The officer who has' such execution or warrant of Mode of sale.
2 distress shall, thirty days at least before the sale of any franchise or 18-24! 121! § 1!
3 other corporate personal property, give notice of the time and place g*. s*. es' § 27'.
4 of sale by posting a notice thereof in the city or town in which the P' s* 105' § 32'
5 corporation is established or has its principal place of business, and
6 by causing an advertisement of the sale, stating the name of the
y
956
POWERS, DUTIES, ETC., OF CORPORATIONS. [CHAP. 109.
creditor, the amount of the execution or warrant of distress, and 7
the time and place of sale, to be inserted three weeks successively 8
in a newspaper, if any, published in said city or town ; otherwise 9
in a newspaper published in the county in which such city or town 10
is situated ; the last publication to be at least four days before the 11
sale. 12
Section 45.
The officer who levies such execution or warrant 1
2
3
Adjournment.
1810, 131, § 5.
g I' 68'! 28* °^ Stress may adjourn the sale for not more than seven days, and
p. s. ioo, § 33. so from time to time until the sale is completed.
Highest bid-
der, how deter-
mined.
1810, 131, § 2.
R. S. 44, § 15.
G. S. 68, § 29.
P. S. 105, § 34.
Section 46. In the sale of such franchise, the person who satis- 1
fies the execution or warrant of distress with all legal fees and ex- 2
penses thereon and who agrees to take such franchise for the 3
shortest period of time and to receive during that time all such toll 4
as the corporation would by law be entitled to demand shall be con- 5
sidered the highest bidder. 6
Officer's return
to transfer the
right of toll,
1810, 131, § 2.
R. S. 44, § 16.
G. S. 68, § 30.
P. S. 105, § 35.
Section 47. The officer's return on the execution or warrant of 1
distress shall transfer to the purchaser all the privileges and immu- 2
nities of the corporation, so far as relate to the right of demanding 3
toll ; and the officer shall, immediately after the sale, deliver to the 4
purchaser an attested copy of the execution or warrant and the 5
return thereon, \ which shall entitle said purchaser or his assigns to 6
demand and receive to his own use all the toll which accrues within 7
the time limited by the term of his purchase, in the same manner 8
and under the same regulations as the corporation was before author- 9
ized to demand and receive the same. 10
Remedy of
purchaser for
damages.
1826, 116.
R. S. 44, § 17.
G. S. 68, § 31.
P. S. 105, § 36.
Section 48. A purchaser of the franchise of a corporation under 1
a sale upon execution or warrant of distress, or his assigns, may 2
recover in an action of tort any penalties imposed by law for an 3
injury to the franchise or for other cause which such corporation 4
would have been entitled to recover during the time limited in the 5
purchase of the franchise ; and during that time, the corporation 6
shall not be entitled to prosecute for such penalties. 7
continue68 t0 Section 49. The corporation whose franchise has been so sold 1
1810, lsi, § 2. shall in all other respects retain its powers, be bound to the perform- 2
g-. s". 68, § zi ance of its duties and be liable to the same penalties and forfeitures 3
' '" as before the sale. 4
Redemption of
franchise.
1810, 131, § 2.
R. S. 44, § 19.
G. S. 68, § 33.
P. S. 105, § 38.
Section 50. The corporation may, at any time within three 1
months after the time of sale, redeem the franchise by paying or 2
tendering to the purchaser or his assigns the amount which he paid, 3
with twelve per cent interest thereon, but without any allowance 4
for the toll which he has received ; and upon such payment or tender, 5
the franchise and all the rights and privileges thereof shall revert and 6
belong to the corporation as if no such sale had been made. 7
Xlidilng0sf pr°" Section 51. All proceedings under the provisions of the ten 1
i812.' W'o§£ preceding sections shall be in the county in which the creditor 2
g'. §'. 68', § si. resides or the corporation is established or has its principal place 3
P. S. 105, § 39.
of business.
Chap. 109.] powers, duties, etc., of corporations. 957
dissolution of corporations.
1 Section 52. If a majority in number or interest of the members Dissolution of
2 of a corporation desire to close its affairs, they may file a petition i|o^055?§§0i,S3.
3 therefor in the supreme judicial court or the superior court, setting £' f; io5,§§84o.
4 forth in substance the grounds of their application, and the court, 9 Gray' m!' 393,
5 after notice to parties interested and a hearing, may decree a disso- limits' 2$'
6 lution of the corporation. A corporation so dissolved shall be held 119 Mass. 447.
7 to be extinct in all respects as if its corporate existence had expired
8 by its own limitation.
1 Section 53. Every corporation whose charter expires by its own continuation
2 limitation or is annulled by forfeiture or otherwise, or whose corpo- to^iose^n-'""8
3 rate existence for other purposes is terminated in any other manner, m^is.
4 shall nevertheless be continued as a body corporate for three years §; |; *|> | ^
5 after the time when it would have been so dissolved, for the purpose £•£. 105, §41.
. . ■ i /» 1 i« 16 Mass. 245.
6 of prosecuting and defending suits by or against it and of enabling 22 Pick. iso.
^ ^ . ~ . ^23 Pick 345
7 it gradually to settle and close its affairs, to dispose of and con- 123 Mass. 32.
8 vey its property and to divide its capital stock, but not for the pur- 6 ass' 443'
9 pose of continuing the business for which it was established.
1 Section 54. If the charter of a corporation expires or is annulled, t^6^8,
2 or if the corporation is dissolved as provided in section fifty-two, or ]|5f-|^f|8'9"
3 if its corporate existence for other purposes is terminated in any g. s. 68, §§ '37,
4 other manner, the supreme judicial court or the superior court, upon p.'s. 105, §§ 42,
5 application of a creditor, stockholder or member, shall have jurisdic- 1884,203.
6 tion in equity to appoint one or more receivers to take charge of its 157 Mass' 8L
7 estate and effects and to collect the debts and property due and
8 belonging to it ; with power to prosecute and defend suits in its
9 name or otherwise, to appoint agents under them and to do all
10 other acts which might be done by such corporation, if in being,
11 which may be necessary for the final settlement of its unfinished
12 business. The powers of such receivers may be continued as long
13 as the court finds necessary for said purposes.
1 Section 55. The receivers shall pay all debts due from the cor — to pay debts
2 poration if the funds in their hands are sufficient therefor ; and if surplus.
3 they are not, they shall distribute them ratably among the creditors r8!.1^ 10.
4 who prove their debts in the manner directed by any decree of g.5|.568,§§39.
5 the court for that purpose. If there is a balance remaining after fGr"ay0538|44"
6 the payment of the debts, the receivers shall distribute and pay it to
7 those who are justly entitled thereto as having been stockholders
8 or members of the corporation, or their legal representatives.
1 Section 56. If a petition, signed and sworn to by a majority in surrender of
2 number or interest of the members of a corporation organized under incorporation.
3 the general laws, except a corporation created for the purpose of 1898>502-
4 business or profit having a capital stock divided into shares or which
5 is under the supervision of the insurance commissioner, has, with the
6 certificate of incorporation, been filed in the office of the secretary
7 of the commonwealth stating that such members desire to surrender
8 the certificate of incorporation and to have the corporation dissolved
9 and giving their reasons therefor, the secretary, if he considers such
10 reasons sufficient, shall require the petitioners to publish a notice
958
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
Returns to
secretary of
dissolution.
1880, 157.
P. S. 105, § 45.
in one or more newspapers in the county in which the corporation 11
is located that, for reasons which appear to him to be sufficient, the 12
certificate of incorporation of the corporation therein named is an- 13
nulled. Upon the filing by the petitioner with the secretary of a 14
copy of each newspaper in which the notice of dissolution was 15
ordered to be published, the corporation shall be dissolved, subject 16
to the provisions of the three preceding sections. . 17
Section 57. If a corporation is dissolved, the clerk of the court 1
in which the decree for dissolution is entered shall forthwith make 2
return thereof to the secretary of the commonwealth, giving the name 3
of the corporation dissolved and the date upon which such decree 4
was entered. 5
CHAPTBE 110.
of manufacturing and other corporations.
Section 1. — Commissioner of Corporations.
Sections 2, 3. — Corporations Governed by this Chapter.
Sections 4-21. — Formation of Corporations.
Sections 22-68. — Powers and Liabilities.
Sections 69, 70. — Co-operative Associations.
Section 71. — Fishing Associations .
Sections 72-75. — Swine Slaughtering Associations.
Sections 76-81. — Gas, Pneumatic, etc., Companies.
Sections 82, 83. — Confirmation of Organization or Proceedings.
Sections 84,85. — Penalties for Omissions to File Certificates, etc.
Section 86. — Fees.
Commissioner
of corpora-
tions.
1870, 224, § 61.
1879, 288, § 1.
P. S. 106, § 1.
1900, 261.
COMMISSIONER OF CORPORATIONS.
Section 1. The commissioner of corporations shall be sworn to 1
the faithful performance of his duties. He shall examine the certifi- 2
cates submitted to him under the provisions of these statutes, and 3
make suitable indorsements upon such as conform to the require- 4
ments of law. He shall keep a record of the names of corporations 5
which submit certificates to his inspection, with the date of inspec- 6
tion and of his certificates when given, and the result in brief of 7
his inspection. He shall bring instances of neglect or of omission 8
on the part of corporations to comply with the provisions of this 9
chapter to the knowledge of the attorney general, for the enforce- 10
ment of the penalties therefor. He shall receive no fees for the 11
performance of his duties. If a vacancy exists or if the commis- 12
sioner is absent from his office, the first clerk shall perform the 13
duties of the commissioner, and legal process served upon said clerk 14
shall have the same force and effect as if served upon the commis- 15
sioner. 16
Corporations
governed by
this chapter.
R. S. 38, § 1.
G. S. 60, § 1.
1870, 224, §§ 13,
64,65.
CORPORATIONS GOVERNED BY THIS CHAPTER.
Section 2. All corporations organized or chartered under or 1
subject to the provisions of this chapter, of chapter one hundred and 2
six or one hundred and seven of the Public Statutes, of the statutes 3
in amendment thereof or in addition thereto, of chapter two hundred 4
Chap. 110.] manufacturing and other corporations. 959
5 and ninety-five of the statutes of the year eighteen hundred and p7!' ^' 1 3\
6 seventy-four, of chapter two hundred and twenty-four of the statutes 107, § 1. '
7 of the year eighteen hundred and seventy, of the statutes in amend-
8 ment thereof or in addition thereto, of chapter one hundred and
9 eighty-seven or two hundred and ninety of the statutes of the year
10 eighteen hundred and sixty-six, of chapter sixty or sixty-one of the
11 General Statutes, of chapter one hundred and thirty-three of the
12 statutes of the year eighteen hundred and fifty-one, or of chapter
13 thirty-eight of the Revised Statutes, corporations established by
14 special charters subsequent to the twenty-third day of February
15 in the year eighteen hundred and thirty for the purpose of carrying
16 on any kind of manufacture, and those which in compliance with
17 law have voted to adopt the provisions of chapter fifty-three of the
18 statutes of the political year eighteen hundred and twenty-nine, of
19 chapter thirty-eight of the Revised Statutes, of chapter sixty of the
20 General Statutes, of chapter two hundred and twenty-four of the
21 statutes of the year eighteen hundred and seventy, or of chapter one
22 hundred and six of the Public Statutes, and have performed the
23 things in that behalf prescribed in the several statutes so adopted,
24 and those which shall comply with the provisions of the following
25 section and the respective officers and stockholders of all such cor-
26 porations shall be subject to the provisions of this chapter.
1 Section 3. If any manufacturing corporation chartered before corporations
2 the twenty-third day of February in the year eighteen hundred and 7w<taSb%te~
3 thirty, at a legal meeting called for the purpose, accepts the pro- i^*^*^'
4 visions of this chapter, and causes to be recorded in the registry of **• s- 38> §§ 26>
5 deeds in the county or district in which such corporation is estab- »• s. 60, §§ 28,
6 lished a certificate, signed by its president, treasurer, clerk and a isto, 224, § 65.
7 majority of its directors, stating the amount of its capital actually cj. 4'. '
8 paid in, and, if any part thereof has been divided or withdrawn, p-8-106>§*-
9 the amount so divided and withdrawn, and also the amount of its
10 debts and credits, and an estimate of the value of its real and per-
il sonal estate for the purpose of carrying on its business at the time
12 of making such certificate ; and if such officers make oath that they
13 have carefully examined the records and accounts of said corpora-
14 tion, and have faithfully estimated the value of its property and
15 funds, and that said certificate signed by them is true according to
16 their best knowledge and belief; then such corporation with its
17 members and officers shall be subject to the provisions of this
18 chapter applicable to such corporations ; and no stockholder therein
19 shall be liable for any debts of the corporation contracted after the
20 recording of such certificate, except for the causes and in the manner
21 hereinafter provided.
FORMATION OF CORPORATIONS.
Purposes, Number of Associates and Limits of Capital Stock.
1 Section 4. Any persons, to the number hereinafter provided, formations'
2 who associate themselves by an agreement in writing hereinafter jssi, 133, § 1.
. ° . ® 1852 9.
3 described with the intention of forming a corporation for any pur- g. s. ei, § 1.
1870 224 S 1
4 pose hereinafter specified, upon complying with the provisions of p. s. 106, §6.
5 section twenty, shall be and remain a corporation. 15 Gray! 211,'
12 Allen, 273, 362. 98 Mass. 98. 101 Mass. 381, 385. [1 Op. A. G. 47, 185.] 494,
960
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
Formation of
corporations
tor mechani-
cal, mining or
manufactur-
ing business.
1851, 133, §§ 1, 2.
1855, 68, § 1.
G. S. 61, § 1.
1870, 224, § 2.
1871, 110, § 1.
1875, 177, § 3.
P. S. 106, § 7.
1899, 199, § 1.
Section 5. For the purpose of carrying on any mechanical or 1
manufacturing business, except that of distilling or manufacturing 2
intoxicating liquors, three or more persons may associate them- 3
selves, with such capital, not less than five thousand dollars, as is 4
fixed in the agreement of association, and, for the purpose of carry- 5
ing on any mining business, three or more persons may associate 6
themselves, with a capital of not less than five thousand nor more 7
than one million dollars. 101 Mass. 385. 173 Mass. 254. 8
— for printing,
publishing,
etc.
1852, 9.
G. S. 61, § 1.
1862, 182.
1870, 224, § 2.
P. S. 106, § 8.
101 Mass. 385.
121 Mass. 539.
Section 6. For the purpose of printing and publishing news- 1
papers, periodicals, books or engravings, of carrying on any agri- 2
cultural, horticultural or quarrying business, or of cutting, storing 3
and selling ice, three or more persons may associate themselves, 4
with a capital of not less than five thousand nor more than five hun- 5
dred thousand dollars. 6
ativertTade;er" Section 7. For the purpose of co-operation in carrying on any 1
1866 290 §§i5 business authorized in the two preceding sections, and of co-opera- 2
18701224', §3.' tive trade, seven or more persons may associate themselves, with a 3
capital of not less than one thousand nor more than one hundred 4
thousand dollars. 5
1879, 210.
P. S. 106, § 9.
canafs?etcn!"or Section 8. For the purpose of opening outlets, canals or 1
fishpagation °f ditches for the introduction and propagation of herrings and ale- 2
1866, 187, § i. wives, three or more persons may associate themselves, with a capi- 3
p. s'. 106, § lb. tal of not less than one thousand nor more than five thousand 4
dollars. 5
— for making
gas and fur-
nishing steam
and hot water.
1855, 146, § 1.
1857, 276, § 1.
G. S. 61, § 15.
1870, 224, § 5.
1879, 202, § 1.
P. S. 106, § 11.
1885, 240, § 1.
1891, 189, § 1.
1893, 397.
Section 9. For the purpose of making, selling and distributing 1
gas for light, or for heating, cooking, chemical and mechanical pur- 2
poses, or for the purpose of generating and furnishing steam or hot 3
water for heating, cooking and mechanical power, or for the purpose 4
of generating and furnishing hydrostatic or pneumatic pressure for 5
mechanical power, in any city or town, or for any two or more of 6
said purposes, ten or more persons may associate themselves, with 7
a capital of not less than five thousand nor more than five hundred 8
thousand dollars. 9
— as common
carriers of per-
sons or prop-
erty.
1870, 224, § 6.
1873, 179.
r. S. 106, § 12.
Section 10. For the purpose of transacting the business of a 1
common carrier of persons or property, three or more persons may 2
associate themselves, with a capital of not less than five thousand 3
nor more than one million dollars, with power to contract for the 4
carriage of persons or property beyond the limits of this common- 5
wealth, but not to purchase or operate railroads, canals or ferries. 6
— for erecting,
etc., hotels and
public halls.
1872, 244.
P. S. 106, § 13.
1888, 116.
Section 11. For the purpose of erecting and maintaining a 1
hotel, public hall or building for manufacturing or mechanical pur- 2
poses, three or more persons may associate themselves, with a capital 3
of not less than five thousand nor more than five hundred thousand 4
dollars, but with no power to engage in the business of an inn- 5
keeper. 6
slaughtering Section 12. For the purpose of buying and slaughtering swine, 1
etc- and of melting and rendering and pork packing, three or more per- 2
Chap. 110.] manufacturing and other corporations. 961
3 sons may associate themselves, with a capital of not less than one 1874, 295, § 1.
4 hundred thousand nor more than five hundred thousand dollars.
1 Section 13. For the purpose of carrying on any lawful business Formation of
2 not mentioned in the eight preceding sections, except distilling or fo'rln^ott.er
3 manufacturing intoxicating liquors, buying and selling real estate, ^"except,
4 banking, insurance, and any other business the formation of corpo- ^4 165
5 rations for which is otherwise regulated by these statutes, three or f^™! |5]f-
6 more persons may associate themselves, with a capital of not less [iop.A.G.153,
7 than one thousand nor more than one million dollars.
1 Section 14. Any or all of the creditors of any corporation which takTirpabu£-t0
2 exists by authority of this commonwealth and is organized or char- ness ^a^
3 tered for any purpose designated in this chapter, which has been poration.'
4 adjudged bankrupt or insolvent or has made an assignment of its p. s. 106, § 15. "
5 property for the benefit of its creditors, or any or all persons for
6 whose benefit such corporation has assigned the whole or any part
7 of its property, and such other person or persons in either case as
8 they may select, may associate themselves for the purpose of form-
9 ing a corporation to acquire the whole or any part of the property
10 of such debtor corporation and to carry on the business previously
11 authorized to be carried on by it.
Agreement, Name and Organization.
1 Section 15. The agreement of association shall state that the contents of
2 subscribers thereto associate themselves with the intention of forming lfs^ia!,1^.
3 a corporation, the corporate name assumed, the purpose for which wef.^Vri.
4 it is formed, the city or town, which shall be in this commonwealth, p7| i^'|i'6
5 in which it is established or located, the amount of its capital stock gi Ma^s'llf "
6 and the par value and number of its shares.
1 Section 16. Any name may, subject to the provisions of section corporate
2 eight of chapter one hundred and nine, be assumed by a corporation, l^T/m, § 6.
3 If organized for the purposes mentioned in sections seven or eight, or §70/ 224, §§ 8.
4 under the provisions of chapter one hundred and fourteen or section ^If |||' § 5-
5 thirty of chapter one hundred and eighteen, or if subject to any of ™~y lit' !r-
6 the provisions of chapter one hundred and sixteen, the words nV,§3;ii9,§28.
7 "co-operative" or "fishing" or "co-operative bank" or "insur- is*?,' 214, § 30.
8 ance ", or ' ' mutual insurance " if organized upon the mutual prin- i894J 522' § 30!
9 ciple, or ' ' trust company ", respectively, shall form part of the name. lo1 Mass" 560-
1 Section 17. The first meeting shall be called by a notice signed how^iiedal'd
2 by one or more of the subscribers to such agreement, stating the ^-l'^-
3 time, place and purpose of the meeting, a copy of which notice o. s. 6i,'§ 3.'
4 shall, seven days at least before the day appointed for the meeting, mo; 224', § 9'.
5 be given to each subscriber, or left at his usual place of business or P* s' 106' § 18'
6 residence, or deposited in the post office, postpaid, and addressed to
7 him at his usual place of business or residence. Whoever gives
8 such notice shall make affidavit of his doings, which, with a copy of
9 the notice, shall be recorded in the records of the corporation.
1 Section 18. The subscribers to the agreement of association subscribers to
2 shall hold the franchise until the organization has been completed ; rtistn*butioii18o!
shares.
962
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
1870, 224, § go. and, unless it is otherwise provided in such agreement, each sub-
loi Mass. 385.' scriber who elects to take such shares at the first meeting may take
such proportion of the shares of the capital stock as the number
of subscribers to the agreement bears to the whole number of
shares, or any part of such proportion, upon paying the assessments
thereon as called for by the corporation. All shares not so taken
shall be disposed of as the corporation determines.
choice"**1011' Section 19. At such first meeting, including any necessary or
records' reasonable adjournment, an organization shall be effected by the
^51, 133, §§4, 5. choice by ballot of a temporary clerk, who shall be sworn, and by
1870,' 224, § io. the adoption of by-laws, and the election, in the manner provided
' 'in section twenty-three, of directors, treasurer, clerk and such other
officers as the by-laws may provide ; but at such first meeting no
person shall be eligible as a director who has not subscribed the
agreement of association. The temporary clerk shall make and
attest a record of the proceedings until the clerk has been chosen
and sworn, including a record of such choice and qualification.
Certificate of
organization
to be filed.
1851, 133, § 4.
1855, 68, § 2.
1857, 276, § 1.
G. S. 61, § 8.
1870, 224, §11.
P. S. 106, § 21.
151 Masa. 560.
Section 20. The president, treasurer and a majority of the
directors, shall forthwith make, sign and swear to a certificate set-
ting forth a true copy of the agreement of association with the names
of the subscribers thereto, the date of the first meeting and the suc-
cessive adjournments thereof, if any, and shall submit such certificate
and also the records of the corporation to the commissioner of cor-
porations, who shall examine the same, and who may require such
other evidence as he may judge necessary. If it appears that the
requirements of the preceding sections preliminary to the establish-
ment of the corporation have been complied with, the commissioner
shall so certify and approve the certificate by his indorsement thereon.
Such certificate shall thereupon be filed by said officers in the office
of the secretary of the commonwealth, who, upon payment of the
fee hereinafter provided, shall cause the same with the indorsement
thereon to be recorded, and shall thereupon issue a certificate in the
following form : —
3
4
5
6
7
8
9
1
2
3
4
5
G
7
8
9
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Commonwealth of Massachusetts.
Be it known that whereas [the name of the subscribers to the agreement of
association] have associated themselves with the intention of forming a corpora-
tion under the name of [the name of the corporation] , for the purpose [the pur-
pose declared in the agreement of association] , with a capital of [the amount
of capital fixed in the agreement of association] , and have complied with the
provisions of the statutes of this commonwealth in such case made and provided,
as appears from the certificate of the president, treasurer and directors of said
corporation, duly approved by the commissioner of corporations and recorded in
this office: now, therefore, I [the name of the secretary], secretary of the com-
monwealth of Massachusetts, do hereby certify that said [the names of the
subscribers to the agreement of association] , their associates and successors,
are legally organized and established as, and are hereby made, an existing cor-
poration under the name of [name of the corporation], with the powers, rights
and privileges, and subject to the limitations, duties and restrictions, which by
law appertain thereto.
Witness my official signature hereunto subscribed, and the seal of the com-
monwealth of Massachusetts hereunto affixed, this day of in the
year . [the date of execution of the certificate.]
The secretary shall sign the same and cause the seal of the com- 17
monwealth to be thereto affixed, and such certificate shall have the 18
Chap. 110.] manufacturing and other corporations. 963
19 force and effect of a special charter and shall be conclusive evi-
20 dence of the existence of such corporation. He shall also cause a
21 record of such certificate to be made, and a certified copy of such
22 record may be given in evidence with like effect as the original
23 certificate.
1 Section 21. Any corporation organized under the provisions certain corpo-
2 of chapter one hundred and thirty-three of the acts of the year ^certificate.
3 eighteen hundred and fifty-one, chapter sixty-one of the General i^s'.ic«,§§22.
4 Statutes, or chapter one hundred and eighty-seven or two hundred
5 and ninety of the acts of the year eighteen hundred and sixty-
6 six, which at a meeting of its stockholders regularly notified for
7 that purpose votes to comply with the provisions of this section,
8 may submit to the commissioner of corporations a certificate signed
9 and sworn to by its president, treasurer, clerk and a majority of
10 its directors, setting forth a copy of its articles of agreement, with
11 the names of the subscribers thereto, and a copy of the vote afore-
12 said, and produce evidence of its regular organization according to
13 law or of confirmatory action under the provisions of this chapter, of
14 sections seventy-nine and eighty of chapter one hundred and six of
15 the Public Statutes, of section sixty-six of chapter two hundred and
16 twenty-four of the acts of the year eighteen hundred and seventy,
17 of section four of chapter sixty-one of the General Statutes, or of
18 section three of chapter four hundred and seventy-eight of the
19 acts of the year eighteen hundred and fifty-five.
20 The commissioner shall thereupon examine such certificate and
2 1 evidence of organization ; and if it appears that the provisions of
22 law have been complied with, he shall so certify and approve the
23 certificate by his indorsement thereon. The secretary of the com-
24 monwealth shall, upon the same being deposited in his office, and
25 upon payment of the fee hereinafter provided, cause the same, with
26 the indorsement thereon, to be recorded, and shall issue a certificate
27 in the following form : —
Commonwealth of Massachusetts.
Be it known that whereas [the names of the original subscribers] formerly-
associated themselves with the intention of forming a corporation under the
name of [the name of the corporation] , for the purpose [the purpose declared
in the articles of agreement] , under the provisions of [the designation of the
statute under the provisions of which organization was effected] , with a capital
of [the amount of the capital stock as it stands fixed by the corporation at the
date of the certificate] , and the provisions of the statutes of this commonwealth
in such case made and provided have been complied with, as appears from the
certificate of the president, treasurer, and directors of said corporation, duly
approved by the commissioner of corporations and recorded in this office : now,
therefore, I [the name of the secretary], secretary of the commonwealth of
Massachusetts, do hereby certify that said [name of the corporation] is legally
organized and established as an existing corporation, with the powers, rights
and privileges, and subject to the limitations, duties and restrictions, which by
law appertain thereto.
Witness my official signature hereunto subscribed, and the seal of the com-
monwealth of Massachusetts hereunto affixed, this day of in the year
[the date of execution of the certificate.]
28 The secretary shall sign the same and cause the seal of the com-
29 monwealth to be thereto affixed, and such certificate shall be conclu-
30 sive evidence of the existence of such corporation at the date of
964
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
such certificate. He shall also cause a record of such certificate to 31
be made, and a certified copy of such record may be given in evi- 32
dence with like effect as the original certificate. 33
Officers.
1808, 65, § 1.
1829, 53, § 1.
R. S. 38, §§ 2, 3.
G. S. 60, §§ 3, 5.
1866, 290, § 3.
1870, 224, §§ 15,
17.
1874, 349, § 1,
cl. 1.
POWERS AND LIABILITIES.
By-Laws, Officers, etc.
Section 22. The business of every corporation which is sub- 1
ject to the provisions of this chapter shall be managed and conducted 2
by a president, a board of not less than three directors, a clerk, 3
treasurer and such other officers and agents as the corporation au- 4
thorizes for that purpose. The directors shall choose one of their 5
number as president. p. s. 106, §§ 23, 25. 147 Mass. 224. 6
— how chosen.
1808, 65, § 1.
1829, 53, § 1.
R. S. 38, §§ 3-5.
G. S. 60, § 4.
1870, 224, § 16.
P. S. 106, § 24.
8 Cush. 93.
Section 23. The directors, clerk and treasurer shall be chosen 1
annually by the stockholders by ballot, and shall hold office for one 2
year and until others are chosen and qualified in their stead. The 3
manner of choosing or appointing all other agents and officers, and 4
of filling all vacancies, shall be prescribed by the by-laws. 5
7 Gray, 1. 15 Gray, 211.
Clerk.
Treasurer.
Bond.
1808, 65, § 1.
1829, 53, § 1.
R. S. 38, § 4.
G. S. 60, § 6.
1870, 224, § 18.
Section 24. The clerk shall be sworn, shall record all votes in 1
a book to be kept for that purpose and shall perform all other 2
duties assigned to him. The treasurer shall give bond for the faith- 3
ful performance of his duty in such sum and with such sureties as 4
shall be required by the by-laws. p. s. 106, §26. 15 Gray, 211. 5
Voting by
proxy.
R. S. 38, § 7.
G. S. 60, § 7.
1870, 224, § 19.
P. S. 106, § 27.
Section 25. Absent stockholders may vote at all meetings by 1
proxy, authorized in writing, which, if the maker thereof resides in 2
the United States, shall be executed and dated within six months 3
previous to the meeting at which it is used. 4
Quorum of
stockholders.
1829, 53, § 15.
R. S. 38, § 7.
G. S. 60, § 7.
1870, 224, § 20.
P. S. 106, § 28.
Stockholder
to have certifi-
cate of stock.
1808, 65, § 3.
1829, 53, § 3.
Section 26. Every such corporation may determine by its by- 1
laws what number of stockholders shall attend, either in person or 2
by proxy, or what number of shares or amount of interest shall be 3
represented at any meeting, to constitute a quorum. If the quorum 4
is not so determined, a majority in interest of the stockholders shall 5
constitute a quorum. 6
Capital Stock.
Section 27. Each stockholder shall be entitled to a certificate 1
of his stock, signed by the treasurer of the corporation and sealed 2
R. S. 38, §10. G. S. 60, §10. 1874, 349, § 1. &
with its seal
1852, 180.
1870, ;A24, § 23.
P. S. 106, § 29.
Transfer of
shares. Lost
certificates.
1808, 65, § 4.
1829, 53, § 4.
R. S. 3S, § 12.
1846, 45.
G. S. 60, § 13.
1870, 224, § 26.
P. S. 106, § 30.
12 Gray, 213.
8 Allen, 15.
138 Mass. 240.
Section 28. Shares may be transferred by the stockholder by an 1
instrument in writing signed by him, which shall be recorded by 2
the clerk in a book to be kept for that purpose. The purchaser 3
named in such instrument so recorded shall, upon production thereof 4
to the treasurer and delivery to him of the former certificate, be en- 5
titled to a new certificate. In case of the loss of a certificate, a 6
duplicate certificate may be issued upon such reasonable terms as the 7
directors shall prescribe. 8-
Chap. 110.] manufacturing and other corporations. 965
1 Section 29. The amount of the capital stock of every corpora- capital stock
2 tion which is established by special charter and which is subject to speclalPy mes
3 the provisions of this chapter, shall, at the first meeting of the cor- howHmlted.
4 poration, unless the charter otherwise provides, be fixed and limited iHg^lff;
5 by the corporation and divided into shares, of which a record shall §' l'lo'§9'
6 be made by the clerk. p. s. 106, § 32. 6 Gray, 586. isVo, 224, § 22.
1 Section 30. The capital stock of every corporation which is -iwin-
2 subject to the provisions of this chapter, the amount whereof has reduced.01
3 been fixed and limited by such corporation according to law, shall it2!. Ifs, §1'.
4 remain so fixed, subject to increase or reduction pursuant to the g.5s'.63o%§88;'6i
5 provisions of this chapter. 1870, 224, § 21. p. s. ioe, §33. §6-
i
1 Section 31. Every corporation which is subject to the provi- reductfon^
2 sions of this chapter, unless otherwise expressly provided, at a capital stock.
3 meeting; called for the purpose, may increase or reduce the amount 10. '
4 of its capital stock and the number of shares therein, within the 20.
5 amount limited by its charter, if a chartered corporation, and by 1I55' iff; 1 1;
6 the provisions of this chapter, if organized under general laws. (ffs'.26o, §§ 11
7 The limitation of such increase for such mechanical or manufacturing: SjL6l<J 6; Q
O 18oo, 283, § 8.
8 corporations, except those created for distilling or manufacturing- 1866, 290, § 5.
r ' 1 o o 1870, 224 § 24
9 intoxicating liquors, shall be the amount determined bv the stock- i87i| no| § 2. '
10 holders at a meeting called for the purpose. The capital stock of a 1375', 177, § 3.
11 corporation which is established in this commonwealth and is subject io'6f§34.§43:
12 to taxation under the provisions of section forty-nine of chapter 1899' 199' § 2-
13 fourteen shall not be reduced except upon application to the supreme
14 judicial court. Written notice of such application shall be given to
15 the tax commissioner and to the attorney general at least ten days
16 before the hearing.
1 Section 32. A corporation which is created by special charter certain corpo-
2 for the purpose of carrying on any mechanical or manufacturing fncr°ate™nd
3 business and which has not accepted the provisions of this chapter isr^noiT^1'
4 or the corresponding provisions of earlier laws, a corporation which ^f^h
5 is created by special charter for the purpose of mining whether p- s- 106, § 35.
6 otherwise subject to the provisions of this chapter or not, and, sub-
7 ject to the provisions of section twenty-four of chapter one hun-
8 dred and nine, a corporation which is created by special charter or
9 organized under general laws for the purpose of making and selling
10 gas for light in a city or town, whether otherwise subject to the
11 provisions of this chapter or not, may increase its capital stock to an
12 amount not exceeding one million dollars, and may reduce the same,
13 subject to the provisions of this chapter.
1 Section 33. A mechanical, manufacturing or gas corporation —may hold
2 whose capital stock is increased under the provisions of the preced- isTi/iiofI 3*.y'
3 ing section may hold real property necessary for the purposes for p'l'.io6f§36.
4 which it was organized.
1
1 Section 34. If a corporation which is subject to the provisions Disposition of
2 of this chapter, except a co-operative association or a corporation isto, i79.ies'
3 mentioned in section thirty of chapter one hundred and nine, in- ^77' 230' §3.
4 creases its capital stock, its directors shall give written notice of fg^j^g' \|7'
5 such increase to each of its stockholders in the manner provided in
966
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
section twenty-nine of chapter one hundred and nine, and each stock- 6
holder may take his proportion of the new shares as is provided in 7
said section. The shares which are not so taken may be sold or 8
issued in such manner as its stockholders may by vote direct ; but 9
no shares shall be so sold or issued for a less amount than the par 10
value thereof. 11
Disposition of
new shares
of co-opera-
tive associa-
tions.
1871, 109.
1877, 230, § 3.
Section 35. If a co-operative association increases its capital 1
stock the new shares may be sold or issued in such manner as the 2
stockholders may by vote direct, but not for a less amount than the 3
par value thereof. p. s. 106, § 38. 4
Special stock.
1855, 290.
G. S. 60, § 12.
1870, 224, § 25.
P. S. 106, § 42.
15 Gray, 274.
136 Mass. 207.
139 Mass. 5.
Section 36. A corporation which is subject to the provisions 1
of this chapter may, by a vote of three-fourths of its general stock- 2
holders at a meeting duly -called for the purpose, issue special stock, 3
the total amount of which outstanding at any time shall not exceed 4
two-fifths of the actual capital paid in on the general and special 5
stock, and shall be subject to redemption at par after a fixed time 6
which shall be expressed in the certificates. Holders of special stock 7
shall be entitled to receive, and the corporation shall be bound to 8
pay thereon, a fixed half-yearly sum or dividend, which shall be ex- 9
pressed in the certificates, not exceeding four per cent, and they 10
shall not be liable for the debts of the corporation beyond their 11
stock. 12
Employees'
stock.
1886, 209, § 1.
Dividends on
employees'
stock.
1886, 209, § 2.
Transfer of
employees'
stock.
1886, 209, § 3.
Section 37. A corporation which is subject to the provisions 1
of this chapter may, by a vote of its general stockholders at a meet- 2
ing called for the purpose, issue employees' stock to be held only by 3
the employees of such corporation. The par value of the shares of 4
such employees' stock shall be ten dollars, and the purchasers thereof 5
may pay for them in monthly instalments of one dollar upon each 6
share. The total amount of such employees' stock outstanding at 7
any time shall not exceed two-fifths of the actual capital paid in on 8
the general and employees' stock. 9
Section 38. If a dividend is paid by such corporation to its 1
stockholders, the holders of employees' stock shall receive upon each 2
share which has been paid for in full in time to be entitled to a 3
dividend, an amount which shall bear such proportion to the amount 4
paid as a dividend upon each share of the general stock of such 5
corporation as the par value of the shares of such employees' stock 6
bears to the par value of the shares of such general stock. 7
Section 39. The shares of employees' stock shall not be sold 1
or transferred except to an employee of such corporation or to the 2
corporation itself. A corporation which issues employees' stock may 3
prescribe by its by-laws the number of shares which may be held 4
by any one employee and the method of transfer and redemption 5
of such stock as is held by any person after he ceases to be an 6
employee of the corporation. 7
Assessments
upon shares.
1808, 65, § 5.
1829, 53, § 5.
R. S. 38, § 13.
Section 40. Every corporation which is subject to the pro- 1
visions of this chapter may, from time to time at a legal meeting 2
called for the purpose, assess upon each share such amount of 3
L
Chap. 110.] manufacturing and other corporations. 967
4 money as it considers proper, not exceeding in the whole the par g. s. 60, § u.
- 1870 99d K 97
5 value thereof, unless the price is fixed as provided by section thirty p. s. 106, § 43.
6 of chapter one hundred and nine, and, in such case, not exceeding
7 said price. Such assessments shall be paid to the treasurer at such
8 times and by such instalments as the corporation directs.
1 Section 41 . If the stockholder neglects to pay an amount duly sale of shares
2 assessed on his shares for thirty days after the time appointed for mentl asseBS'
3 payment, the treasurer of the corporation may sell by public auction iH; 1$; f k
4 a sufficient number thereof to pay all assessments then due from <|; |; |<j' | \f
5 him with necessary and incidental charges. p. s. 106, §44. i87o, 224, § 28.
14 Maes. 285. 16 Mass. 94. 14 Pick. 483. 121 Mass. 272.
1 Section 42. The treasurer shall give notice of the time and and deed of le'
2 place appointed for such sale, and of the amount due on each share, fg^^8?1^ "
3 by advertising the same three weeks successively before the sale ^29] 53! § 5!
4 in a newspaper, if any, published in the county in which the cor- g'^s'. 60', § ie.
5 poration is established ; otherwise in a newspaper published in an p8. s! 106; f 11'.
6 adjoining county ; and a deed of the shares so sold, made by the
7 treasurer and acknowledged before a justice of the peace and re-
8 corded as provided in section twenty-eight, shall transfer said shares
9 to the purchaser, who shall be entitled to a certificate therefor.
1 Section 43. A corporation which is subject to the provisions of ^meifof*'
2 this chapter shall not commence the transaction of the business for ^2| ^ §6-
3 which it was organized or chartered until the whole amount of its n.
4 capital stock has been paid in and a certificate of that fact, and of 1857! m', § 1!
5 the manner in which the same has been paid in and, at the time of is'; ei, §8. '
6 making the certificate, been invested or voted by the corporation iIto! 224) 1 12.
7 to be invested, signed and sworn to by the president, treasurer and p^s'.ioe'lle
8 a majority of the directors, has been filed in the office of the secre- fo^MassHsi
9 tary Of the Commonwealth. 127 Mass. 564. 152 Mass. 428. 155 Mass. 184. 117 Mass. 478.
1 Section 44. The capital stock, except as provided in this and the —how paid in.
2 following section, shall be paid in in cash. The conveyance to the r2|'.?8,§ 24.
3 corporation of real or personal property at a fair valuation shall be Sto.'I^.V^.
4 a sufficient paying in of its capital stock to the extent of such ^7| ^ |?-47
5 value, if a statement, made, signed and sworn to by its president, 48-
6 treasurer and a majority of its directors, giving a description of such
7 property and the value at which it has been taken in payment, in
8 such detail as the commissioner of corporations shall require or
9 approve, and indorsed with his certificate that he is satisfied that
10 said valuation is fair and reasonable, is filed with the secretary of
11 the commonwealth. Such statement shall be included in the certifi-
12 cate of payment of capital required by the preceding section. No
13 note or obligation given by a stockholder, whether secured by pledge
14 or otherwise, shall be considered as payment of any part of the
15 capital stock.
1 Section 45. If the corporation was organized for the purpose —may be paid
2 of acquiring claims against, or property of, a bankrupt or insolvent property3 fn°
3 corporation, or property conveyed by it for the benefit of its credits i87V275^§e2S,-3.
4 ors, as provided in section fourteen, any such claims or property P-s. 106, §49.
5 may be assigned and conveyed to the corporation in payment for
968
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
Business
powers of
corporations.
1851, 133, § 7.
1855, 478, § 1.
1857, 24.
G. S. 61, § 7.
1866, 290, § 2.
1870, 224, §§ 15,
31.
P. S. 106, §§ 23,
50.
157 Mass. 37.
shares of its capital stock at a fair and reasonable valuation, to be 6
determined and approved by the commissioner as provided in the 7
preceding section ; and his decision that such valuation is fair and 8
reasonable, when made and certified as therein required, shall be 9
final. No claim shall be so assigned or conveyed after three years 10
from the date when the original corporation was adjudicated bank- 11
rupt or insolvent or made such assignment for the benefit of its 12
creditors. 13
Business of Corporation.
Section 46. A corporation which is subject to the provisions 1
of this chapter may in its corporate name purchase, hold and convey 2
real and personal property necessary for the purposes of its organ- 3
ization ; may carry on its business, or so much thereof as is con- 4
venient, beyond the limits of this commonwealth, and may there 5
purchase and hold real or personal property necessary for conduct- 6
ing its business ; but it shall not direct its operations or appropriate 7
its funds to any other purpose than that specified in its agreement 8
of association or its charter, as the case may be, except as provided 9
in section seven of chapter one hundred and nine and in the three 10
following sections. No conveyance or mortgage of its real prop- 11
erty, or lease thereof for more than one year, shall be made unless 12
authorized by a vote of the stockholders at a meeting called for the 13
purpose. 14
Change of
corporate
business.
1875, 177, § 4.
P. S. 106, § 51.
1885, 310.
Section 47. A corporation which is subject to the provisions of 1
this chapter may, by a vote of all its stockholders at a meeting duly 2
called for the purpose, alter, add to or change the business for the 3
transaction of which it was incorporated, but it shall not engage in 4
any business which is not authorized by the provisions of this 5
chapter. A certificate setting forth such alteration, addition or 6
change,. signed and sworn to by the president, treasurer and a major- 7
ity of the directors, shall be filed in the office of the secretary of the 8
commonwealth. 9
Gas companies
may furnish
steam, etc.
1879, 202, § 2.
P. 8. 106, § 52.
1885, 240, § 1.
Section 48. Any gas company which was organized or chartered 1
before the ninth day of April in the year eighteen hundred and 2
seventy-nine may engage in the business of making, selling and dis- 3
tributing gas for heating, chemical and mechanical purposes, or of 4
generating or furnishing steam or hot water for heating, cooking 5
and mechanical power in a city or town, by a vote of four-fifths of 6
the stockholders representing not less than two-thirds of the stock, 7
at a meeting duly called for that purpose, upon filing in the office of 8
the secretary of the commonwealth a certificate as provided in the 9
preceding section. 10
of^kfetcf6 Section 49. A corporation which is organized or chartered for 1
g5I eo '§37- *ne manufacture of cotton or woollen goods may, by a vote of four- 2
lro 224' 3i' fiftns of all its stockholders at a meeting called for the purpose, 3
p. s. io6, § 53. carry on the manufacture of silk, linen, flax or rubber goods. 4
hospitals! in Section 50. A manufacturing corporation may, by a vote of a 1
1889,258. majority of the stock represented at a meeting of the stockholders 2
Chap. 110.] manufacturing and other corporations. 969
3 thereof, appropriate not more than five thousand dollars or an
4 annual sum of not more than five hundred dollars for the support
5 of free beds in one or more hospitals in this commonwealth, for the
6 use of its employees.
Certificates and Returns.
1 Section 51. Every corporation chartered by this commonwealth ^of^andP"
2 or organized under the general laws for the purpose of business or fon. _^
3 profit, which has a capital stock divided into shares, except banks, R. s. 38, § 22.
4 co-operative banks, savings banks and institutions for savings, insur- i85i| 133; §§ 9,
5 ance companies, including the Massachusetts Hospital Life Insurance \m, 438.
6 Company, steam and street railway companies, safe deposit and ilp;^.83'
7 trust companies and the Collateral Loan Company, shall annually 24'-S6i60§io23'
8 file in the office of the secretary of the commonwealth, within thirty i»|. 210.
9 days after the date fixed in its by-laws for its annual meeting last istoJ 224; § 33.
10 preceding the date of such certificate, or within thirty days after the 1874! 349', § 1. '
11 final adjournment of said meeting, but not more than three months Ss?,' 225.' § 5**
12 after the date so fixed for said meeting, a certificate signed and sworn Jf^ gg|;
13 to by its president, treasurer and at least a majority of its directors,
14 stating the date of holding such meeting, the amount of capital stock
15 as it then stands fixed by the corporation, the amount then paid in,
16 the name of each shareholder and the number of shares standing in
17 his name, and the assets and liabilities of the corporation, in such
18 form, with such detail and of such date as the commissioner of cor-
19 porations shall require or approve. Such certificates shall, by the
20 act of filing, be considered as recorded and shall be preserved by the
21 secretary in book form convenient for reference.
1 Section 52. Such certificate of a corporation which has a capital ^|f0cration by"
2 stock of one hundred thousand dollars or more shall be accompanied i|^. *&•
3 by a written statement under oath by an auditor to be employed by
4 a committee of three stockholders who are not directors which shall
5 be selected at the annual meeting of the stockholders, or, if there
6 are less than three stockholders other than directors, to be employed
7 by the directors, stating that such certificate represents the true con-
8 dition of the affairs of said corporation as disclosed by its books at the
9 time of making such audit. The statement of the auditor shall be
10 filed by him with said certificate in the office of the secretary of the
11 commonwealth and shall be attached to and form a part of said cer-
12 tificate. The auditor shall be sworn to the faithful performance of
13 his duties by a justice of the peace or some other magistrate au-
14 thorized to administer oaths or affirmations ; and evidence of such
15 appointment and qualification shall be filed in the office of the com-
16 missioner of corporations.
1 Section 53. If a corporation fails for two successive years to corporations
2 file such annual certificate, the supreme judicial court, upon applica- suc^fertincate
3 tion by the commissioner, after notice and a hearing, may decree a Solved6 d18"
4 dissolution of the corporation. p. s. ioe, § 55. 1887, 225. 1896, 369. 1877> 230> § 2-
1 Section 54. A corporation which is subject to the provisions of {^j^g of0f
2 this chapter shall, upon an increase of its capital stock, within thirty ^P^L8*? gk-
3 days after the payment or collection of the last instalment thereof, g.' s'. 6i,'§ 9.'
970
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
1870, 224, § 34.
P. S. 106, § 56.
file a certificate of the amount of such
and the fact of
increase
such payment, signed and sworn to by its president, treasurer and
a majority of its directors, in the office of the secretary of the com-
monwealth.
4
5
6
7
Certificate
of reduction
of capital.
1855, 478, § 5.
G.S. 61, §9.
1870, 224, § 35.
P. S. 106, § 57.
Fishing associ-
ations to file
certificate of
authority.
1870, 224, § 36.
P. S. 106, § 58.
Section 55. A corporation which is subject to the provisions of 1
this chapter shall, within thirty days after a reduction of its capi- 2
tal stock is voted, file in the office of the secretary of the common- 3
wealth a copy of the vote authorizing such reduction, signed and 4
sworn to by its clerk. 5
Section 56. A corporation which is organized under authority 1
of this chapter for the purposes specified in section eight shall, 2
within thirty days after obtaining the Avritten authority required by 3
section seventy-one, file a copy of the same, certified by the city or 4
town clerk, as the case may be, in the office of the secretary of the 5
commonwealth. 6
Examination
and indorse-
ment of cer-
tificates.
1870, 224, § 37.
P. S. 106, § 59.
1887, 225.
1896, 369.
1898, 503, § 1.
|10p. A. G.
203, 278.]
Section 57. The certificate or copy which is required to be 1
filed by the provisions of section eighteen of chapter one hundred 2
and nine and sections forty-three, forty-seven, fifty-one, fifty-four, 3
fifty-five and fifty-six of this chapter shall, before filing, be sub- 4
mitted to the commissioner of corporations, who shall examine the 5
same ; and if it appears to him to be a sufficient compliance in form 6
with the requirements of this chapter, he shall certify his approval 7
thereof by indorsement upon the same ; but he shall indorse only 8
the date and fact of submission to his inspection upon the copies 9
of votes of corporations or the authorizations of municipal author- 10
ities required by the preceding section ; and upon the payment of 11
the fee hereinafter provided, the same may be filed in the office 12
of the secretary of the commonwealth, who shall receive and record 13
the same in books to be kept for the purpose ; and, upon such 14
filing, the corporation and its officers shall be conclusively held to 15
have complied with the requirements of this chapter in respect to 16
the filing of such certificate, except that it may be shown in 17
evidence that the statements made in such return were false, and 18
were known to be so by any officer or officers signing or making 19
oath to the same. 20
Liability of
officers for
debts and con-
tracts.
1821, 38.
1829, 53, §§ 8, 9.
R. S. 38, §§ 23-
25, 28.
G. S. 60, §§ 17-
25, 30.
1862, 218, § I.
1870, 224, § 38.
1875, 177, § 2.
1877, 230, § 1.
P. S. 106, § 60.
1898, 266.
10 Gray, 232,
600.
12 Gray, 203.
15 Gray, 216.
5 Allen, 398.
6 Allen, 579.
101 Mass. 385.
Liability of Officers and Stockholders.
Section 58. The officers of a corporation which is subject to 1
the provisions of this chapter shall be jointly and severally liable 2
for its debts and contracts in the following cases, and not other- 3
wise : — 4
The president and directors shall be so liable, — 5
First, For making or consenting to a dividend if the corporation 6
is or thereby is rendered insolvent, to the extent of such dividend. 7
Second, For debts contracted between the time of making or 8
assenting to a loan to a stockholder and the time of its repayment, 9
to the extent of such loan. 10
Third, If the debts of a corporation exceed its capital, to the 11
extent of such excess existing at the time of the commencement of 12
the suit against the corporation in which the judgment was recov- 13
Chap. 110.] manufacturing and other corporations. 971
14 ered upon which the suit in equity to enforce such liability is brought ™f Mass. 523.
_ . _ . _ _ ■ - lib Mass. 29o.
15 as hereinafter provided. 127 Mass. 563.
16 The president, directors, and treasurer shall be so liable, — 148 Mass! 226.'
17 Fourth, For signing any statement filed under the provisions of 156 Mass! 490!
18 section forty-four, if the property mentioned in such statement 173 Mass- 242-
19 is not conveyed and taken at a fair valuation ; but only the officer
20 or officers who sign the statement shall be so liable.
21 The president, directors and other officers shall be so liable, —
22 Fifth, For signing any certificate which is required by law know-
23 ing it to be false ; but only the officer or officers who have knowl-
24 edge thereof shall be liable.
25 Sixth, For debts contracted before the original capital has been
26 fully paid in and the certificate of such payment has been filed in
27 accordance with the provisions of section forty-three.
1 Section 59. The members or stockholders in any corporation Liability of
2 which is subject to the provisions of this chapter shall be jointly and oi°membe?sS
3 severally liable for its debts or contracts in the following cases, ^26,' 137, §2.
4 and not otherwise : — io2n53' §§ 6' 7'
5 First, For such as may be contracted before the original capital K|^3|^§§ 16»
6 is fully paid in ; but only those stockholders who have not paid in 1351,133,' §15;
7 full the par value of their shares, and those who have purchased such 1852,9.
8 shares with knowledge of the fact, shall be liable for such debts. G.s.*6o,'§§i2,
9 Second, For the payment of all debts existing at the time when is62,2^iif'§§216"
10 the capital is reduced, to the extent of the amounts withdrawn and H™' ™> | ^9-
11 paid to stockholders. p7liul\'6i
12 Third, If special stock is created under the provisions of section 13 pick. 484. '
. . . 21 Pick 454
13 thirty-six, the general stockholders shall be liable for all debts and 6 Met. 114. '
14 contracts until the special stock shall have been fully redeemed. scush.ik.
15 Fourth, For all money due to operatives for services rendered 10 Bray, 232!
16 within six months before demand made upon the corporation, and le Graf' 127'
17 its neglect or refusal to make payment. 6 Alien'' -"9'
18 Any such member or stockholder who pays, on a iudgment or 106 Mass. 131.
19 otherwise, more than his proportion of any such debt shall have a 127 Mass! wt,
20 claim for contribution against the other members or stockholders. 134' Mass. 590.
1 Section 60. A stockholder or officer in such corporation shall ^officers1"8
2 not be held liable for its debts or contracts unless a judgment has ^f^]^1?'
3 been recovered against it and it has neglected for thirty days after 1352! 24. '
4 demand made on execution to pay the amount due, Avith the officer's is'62,'218, §3."
5 fees, or to exhibit to him real or personal property of the corporation 1870! 224! § It'.
6 subject to be taken on execution, sufficient to satisfy the same, and fAUenfsi.62'
7 the execution has been returned unsatisfied. 127 Mass. 563. 174 Mass. 434. nt Mass' 380'
1 Section 61. The clerk or other officer who has charge of the cierttofur.
2 records of any such corporation against which judgment has been so wfthifamesof
3 recovered and execution so issued and returned unsatisfied, upon stockholders.
4 reasonable request of the judgment creditor or of his attorney, shall {gTo'l^'lli
5 furnish to him a certified list of the names of all persons who were p- s- 106> § 63-
6 officers and stockholders in such corporation at the time of the com-
7 mencement of the suit in which judgment was recovered.
1 Section 62. After the execution has been so returned, any creditor may
2 creditor may file a bill in equity, in behalf of himself and all other e^uttyVgamst
972
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
corporation
officers and
stockholders.
1808, 65, § 6.
1817, 1S3.
1826, 137, § 1.
1829, 53, § 11.
P. S. 38, §§ 29-
31; 44, §22.
1851, 315, §§ 1, 3.
1852, 24.
G. S. 60, §§ 31,
32, 34; 68, § 17.
1862, 218, § 4.
1866, 290, § 10.
1870, 224, § 42.
P. S. 106, § 64.
8 Cush. 93.
9 Cush. 192.
creditors of the corporation, against it and all persons who were 3
stockholders therein at the time of the commencement of the suit in 4
which such judgment was recovered, or against all the officers who 5
are liable for its debts and contracts, for the recovery of the money 6
due from the corporation to himself and the other creditors for 7
which the stockholders or officers may be personally liable by reason 8
of any act or omission on the part of the corporation or that of its 9
officers or any of them, setting forth the judgment and proceedings 10
thereon, and the grounds upon which it is expected to charge the 11
stockholders or officers personally. 12
11 Gray, 139.
14 Gray, 193.
3 Allen, 485.
9 Allen, 471.
101 Mass. 385.
108 Mass. 404, 523.
109 Mass. 473.
115 Mass. 286.
118 Mass. 269.
127 Mass. 563, 592.
144 Mass. 399.
173 Mass. 242.
Stockholders
to be assessed
in proportion
to stock.
1862, 218, § 5.
1870, 224, § 43.
P. S. 106, § 65.
16 Gray, 127.
127 Mass. 586.
Section 63. Such sums as may be decreed to be paid by the 1
stockholders in such suit in equity shall be assessed upon them in 2
proportion to the amounts of stock held by them respectively at the 3
time when the suit in which said judgment was recovered was begun ; 4
but no stockholder shall be liable to pay a larger sum than the 5
amount of stock held by him at that time at its par value. 6
Liability of
estates in
hands of ex-
ecutors, etc.
1826, 137, § 4.
1829, 53, § 12.
R. S. 38, § 34.
1838, 98, § 1.
G. S. 68. § IS.
1862, 218, § 6.
Section 64. The estates and funds in the hands of executors, 1
administrators, guardians, conservators or trustees shall be liable to 2
no greater extent than the testator, intestate, ward or person inter- 3
ested in the trust fund would have been, if living and competent to act 4
and hold the stock in his own name. 1870, 224, § 44. p. s. 106, § 66. 5
10 Pick. 370. 6 Met. 114. 9 Cush. 192. 101 Mass. 60.
Suit in equity,
not abated by
death of one
defendant.
1862, 218, § 7.
1870, 224, § 45.
P. S. 106, § 67.
173 Mass. 242.
Section 65. If a defendant dies during the pendency of such a 1
suit in equity, it shall not abate thereby ; but his estate in the hands 2
of his executor or administrator shall be liable to the same extent as 3
he would be if living. Such executor or administrator may vol- 4
untarily appear and become a party to the suit or may be summoned 5
by the plaintiff. 6
~i^ndl8' Section 66. Such suit in equity shall not be dismissed by the 1
i87o' 224 ! 46 plaintiff without an order of court and such notice to other credit- 2
p. s'. io6, § 68. ors as the court may find reasonable under the circumstances. 3
— not abated
by non-
joinder of
persons liable.
1862, 218, § 9.
1870, 224, § 47.
P. S. 106, § 69.
Section 67. No such suit in equity shall be abated by reason 1
of the non-joinder of persons liable as defendants unless the plain- 2
tiff, after being notified by plea or answer of the existence of such 3
persons, unreasonably neglects to make them parties. 10 Alien, 352. 4
Suits may be
defended by
stockholder.
1867, 36, §§1,2.
1870, 224, §§ 48,
49.
P. S. 106, §§ 70,
71.
15 Gray, 216.
14 Allen, 470.
Section 68. If, in a suit against a corporation which is estab- 1
lished by the laws of this commonwealth, it appears to the court 2
that one of the objects of the suit is to obtain a judgment against 3
the corporation in order to enforce an alleged liability of a person 4
who has been or is a stockholder or officer thereof, any such stock- 5
holder or officer may be permitted, on petition, to defend such suit, 6
and in such case the court may require of him or of a person in his 7
behalf, a bond with sufficient surety or sureties, conditioned to pay 8
to the plaintiff all costs which may accrue and be taxed to him after 9
the filing of said petition. 10
Chap. 110.] manufacturing and other corporations. 973
co-operative associations.
1 Section 69. A corporation which is organized for the purposes Profits of co-
2 set forth in section seven shall distribute its profits or earnings ciationsThow0"
3 among its workmen, purchasers and stockholders at such times and ig^gof^.
4 in such manner as shall be prescribed by its by-laws, and as often p7!' lot §72
5 at least as once in twelve months ; but no distribution shall be made
6 unless at least ten per cent of the net profits have been appropriated
7 for a contingent or sinking fund, until an amount has accumulated
8 equal to thirty per cent of its capital stock.
1 Section 70. No person shall hold shares in any co-operative no person to
2 association to an amount exceeding one thousand dollars at their par one thousanof11
3 value, nor shall any stockholder be entitled to more than one vote stock!80*
4 upon any subject. 1870, 224, § 52. p. s. 106, § 73. 1866> 290> § 7-
FISHING ASSOCIATIONS.
1 Section 71. A corporation which is organized for the purposes Fishing asso-
2 set forth in section eight may purchase and hold real estate necessary i87ol0224, § 54.
3 for opening outlets, canals, sluice ways or ditches for the passage p-s-106> §74-
4 of herring and alewives ; but before making any such purchase or
5 doing any acts in pursuance of its organization, it shall obtain
6 written authority from the mayor and aldermen of the city or the
7 selectmen of the town within which its works are to be located.
SWINE SLAUGHTERING ASSOCIATIONS.
1 Section 72. A corporation which is organized for the purposes slaughtering
2 set forth in section twelve may take, by purchase or otherwise, and mayCtake0?and
3 hold such parcel of land, not exceeding one hundred acres in extent p.7!'. 107', § 2*.
4 and situated in such place as the state board of health may determine 1886> 101> § 4-
5 to be suitable for said business ; and shall, within sixty days after
6 the time of taking any land otherwise than by purchase, cause to be
7 signed by its president and filed in the registry of deeds for the
8 county or district in which said land lies a description thereof as
9 certain as is required in a common conveyance of land and a state-
10 ment of the purpose for which it is taken ; but no land shall be so
11 taken without the approval in writing of the mayor and aldermen
12 of the city or of the selectmen of the town in which it lies.
1 Section 73. Such corporation shall be liable to pay all damages Liability for
2 sustained by any persons in their property by the taking of any land Triaifryjury
3 for the purposes described in section twelve. Whoever sustains p.7s'.io7',§l'.
4 damages as aforesaid, and does not agree with such corporation
5 upon the amount to be paid therefor, may, within one year after
6 the taking of said land, apply by petition to the superior court in
7 the county in which said land is situated for the assessment of
8 damages. The clerk shall thereupon issue a summons to the cor-
9 poration, returnable on the return day next following the expiration
10 of fourteen days at least after the issuing of said summons, to appear
11 and answer to the said petition. Said summons shall be served
12 fourteen d&ys at least before the return day by leaving a copy
13 with the clerk of the corporation. The amount of such damages
14 shall be assessed by a jury unless the parties in writing waive their
974:
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
right to a jury ; and the verdict of the jury, being accepted and 15
recorded by the court, or the award of the court, if a trial by jury 16
is waived, shall be final and judgment shall be rendered and execu- 17
tion issued thereon. The petitioner shall recover costs if the 18
amount of said judgment exceeds the amount tendered to him for 19
his damage before the filing of said petition ; otherwise the corpora- 20
tion shall recover its costs. 21
Buildings,
etc. ; regula-
tion by state
board.
1874, 295, § 4.
P. S. 107, § 4.
Section 74. Such corporation shall build upon such land suita- 1
ble buildings for the slaughtering of swine and for melting and 2
rendering, and all necessary stables and out-buildings. No such 3
building shall be erected until the plans thereof, with all details of 4
construction, have been submitted to and approved by said state 5
board or by a person designated by it to examine them. The cor- 6
poration shall carry on all its business in accordance with such regu- 7
lations as said state board shall, from time to time, establish and 8
furnish in writing to the clerk of the corporation ; and for each vio- 9
lation of said regulations it shall forfeit not less than twenty nor 10
more than five hundred dollars. 11
Slaughtering
business, how
conducted.
1874, 295, § 4.
P. S. 107, § 5.
Section 75. Such corporation may, subject to the provisions of 1
the three preceding sections, manufacture and sell any of the usual 2
products of said slaughtering and melting and rendering business, 3
or may lease, or permit other persons to use, its buildings or parts 4
thereof on such terms as may be agreed upon. Each member of 5
the corporation may slaughter swine on said premises, subject to 6
such regulations and tariff of prices as the corporation may, by vote 7
at any regular meeting, establish and to the regulations of said 8
state board. Whoever, being engaged in business on the premises 9
of such corporation, violates any regulation of said state board, shall 10
forfeit not less than twenty nor more than five hundred dollars. 11
Gas light com-
panies, etc.,
may open
streets, when.
1855, 146, § 2.
G. S. 61, § 16.
1870,224, § 56;
353, § 2.
1879, 202, § 1,
last cl.
P. S. 106, § 75.
1885, 240, § 1.
1896, 544, § 1.
1899, 453.
12 Allen, 75.
— liable to re-
pay damages,
etc.
1860, 121.
P. S. 106, § 76.
1896, 544, § 2.
GAS, PNEUMATIC, ETC., COMPANIES.
Section 76. Gas light companies, corporations organized for
the purpose of transporting the United States mail, merchandise and
other articles by means of pneumatic pressure or power, corpora-
tions engaged in or organized for the purpose of manufacturing,
buying, selling, distributing or dealing in artificial cold and refrig-
erating and cooling materials and corporations organized for any of
the purposes mentioned in section nine may, with the consent in
writing of the mayor and aldermen of a city or the selectmen of a
town, dig up and open the ground in any of the streets, lanes and
highways thereof, so far as is necessary to accomplish the objects of
the corporation ; but such consent shall not affect the right or
remedy to recover damages for an injury caused to persons or
property by the acts of such corporations. They shall put all such
streets, lanes and highways into as good repair as they were in
when opened ; and upon failure so to do within a reasonable time,
shall be guilty of a nuisance.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Section 77. If a person who is injured in his person or prop- 1
erty by a defect in a highway which is caused by the operations 2
of a company or corporation described in the preceding section in 3
laying down or repairing its pipes or otherwise obstructing such 4
Chap. 110.] manufacturing and other corporations. 975
5 way recovers damages therefor of the city or town wherein such
6 injury is received, such city or town shall, if such company or cor-
7 poration is liable for said damages and has reasonable notice to
8 appear and defend the original action, be entitled to recover of such
9 company or corporation the damages so recovered from it with the
10 taxable costs of both parties in such action.
1 Section 78. The mayor and aldermen of a city or the selectmen Gasiightcom.
2 of a town in which pipes or conductors of such company or cor- ?<? beregiu'
3 poration are sunk may regulate, restrict and control all acts and men! etc.select'
4 doings of such company or corporation which may in any manner Jf5| 1^16'§§^
5 affect the health, safety, convenience or property of the inhabitants p7!^? Hi-
fi of such city or town.
1 Section 79. A manufacturing or other corporation which has its other com-
2 place of business in a city or town in which a gas light corporation Eoide|aT stock.
3 proposes to manufacture gas for light may hold not more than ten ofl. H'iii
4 per cent of the capital stock of such gas corporation. p7s lots' ItI
1 Section 80. Corporations which are organized under the pro- Gasforheat-
2 visions of section nine for the purpose of making, selling and p'ofes*5'' Fur*
3 distributing gas - for heating, cooking, chemical and mechanical 1885' m
4 purposes shall have all the powers and privileges and be subject to
5 all the duties, restrictions and liabilities of gas light companies under
fi the general laws. Gas used for such purposes, except illuminating
7 gas as defined by section fourteen of chapter fifty-eight, shall not be
8 used for domestic purposes unless connected with a chimney or flue
9 having direct connection with the open air. Whoever violates the
10 provisions of this section shall be punished by a fine of not more
11 than twenty dollars for each offence.
1 Section 81. If a corporation which has a franchise in and the interest upon
2 use of the public streets of a city or town for the supply and dis- ?undant7
3 tribution of gas, water, electric light or power, or for the mainten- 1901'470-
4 ance of communication by wire or otherwise, holds for a longer
5 period than six months money which is collected in advance from
6 its customers to guarantee it against loss of charges or tolls, it shall
7 pay annually upon said guaranty fund interest at the rate of four
8 per cent per annum to the depositor thereof, which shall be applied
9 to the payment of charges and tolls by said depositors. The
10 annual return required of such corporation by section fifty-one shall
11 include a true statement of all moneys, and of the value of any
12 collateral, so held as a guaranty for the payment of charges or tolls,
13 specifying the amount so deposited by the inhabitants of each city
14 or town. If such corporation fails or neglects to make such return
15 or fails, neglects or refuses to pay such interest it shall be punished
16 by a fine of not less than one hundred nor more than five hundred
17 dollars for each offence.
CONFIRMATION OF ORGANIZATION OR PROCEEDINGS.
1 Section 82. If doubts arise as to the legality of the organization confirmation
2 of a corporation which was intended to be formed under the pro- ^0nT.8&niza"
3 visions of chapter sixty-one of the General Statutes or of any general g?s'. 67i%§4.'
4 or special statute conferring similar rights upon corporations organ- }|^ |^> | ^
976
MANUFACTURING AND OTHER CORPORATIONS. [CHAP. 110.
1874, 349, § 1,
last cl.
P. S. 106, § 79.
Confirmation
of subsequent
proceedings.
1874, 349, § 2.
P. S. 106, § 80.
ized under its provisions, its stockholders, at a special meeting 5
called for the purpose in the manner provided in section seventeen 6
or by a justice of the peace upon the written request therefor of a 7
majority of the acting directors, may by vote confirm such organiza- 8
tion and all proceedings under it, and by so doing and depositing 9
and filing a copy of such vote in the office of the secretary of the 10
commonwealth, such corporation and its subsequent acts shall be 11
held legal and valid, as if the original organization had been legal. 12
Section 83. If doubts arise as to the legality of the organiza- 1
tion of any corporation created by special charter for a purpose 2
mentioned in this chapter, which is in the exercise of its franchise, 3
or as to the regularity or sufficiency of the proceedings of any 4
such corporation, whether created by special charter or formed 5
under general laws, in consequence of failure subsequent to the 6
organization to comply with the directions or requirements of any 7
statute, the stockholders, at a special meeting called for the 8
purpose in the manner provided in the preceding section, may 9
by vote confirm such defective proceedings and all subsequent 10
proceedings of the corporation dependent thereon. The clerk 11
shall thereupon make a certificate under oath setting forth the 12
particular matters especially causing the doubt, and a copy of the 13
call of the meeting and of the vote of the stockholders, and the date 14
of holding the meeting, which he shall present to the commissioner 15
of corporations, who shall examine the same, and, if he finds that 16
the provisions of this section have been complied with, shall so cer- 17
tify by indorsement thereon. Upon filing the certificate so indorsed 18
in the office of the secretary of the commonwealth, such proceedings 19
shall be taken to be legal and valid as fully as if the requirements 20
of the statutes had been complied with. 21
PENALTIES FOR OMISSIONS TO FILE CERTIFICATES, ETC.
Penalties for
omitting to file
certificates.
1863, 246.
1866, 290, § 9.
1870, 224, § CO.
1877, 57.
P. S. 106, §§ 81,
82.
1887, 225.
1896, 369.
Penalty for
refusing to
give certified
list.
1864, 219, § 2.
1870, 224, § 60.
P. S. 106, § 83.
Section 84. A corporation which, being subject to the pro- 1
visions of this chapter, omits to cause to be filed any certificate 2
or copy which is required by sections fifty-one, fifty-four and fifty- 3
five shall forfeit two hundred dollars, to be recovered by action of 4
tort brought in the name of the commonwealth in the county of 5
Suffolk or in the county in which the corporation is established ; 6
and its president, treasurer and directors, for the time being, shall 7
in addition be jointly liable in a like amount for such omission ; 8
and all forfeitures by a corporation under the provisions of this 9
chapter may also be collected by information in equity, which may 10
be brought in the county of Suffolk and shall be brought in the 11
supreme judicial court in the name of the attorney general, at the 12
relation of the commissioner of corporations ; and upon such in- 13
formation the court may issue an injunction restraining the further 14
prosecution of the business of the corporation named therein until 15
such forfeitures, with interest and costs, are paid and until the 16
returns required by this chapter are filed. 17
Section 85. If an officer unreasonably refuses to give the cer- 1
tified list mentioned in section sixty-one or wilfully gives a false 2
list, he shall be liable to the judgment creditor for double the 3
amount of all damages occasioned by such refusal or false list. 4
Chap. 111.] railroad corporations and railroads. 977
FEES.
1 Section 86. The fees for filing and recording the certificates Fees for filing,
2 which are required by this and the preceding chapter to be filed cate'8certlfl"
3 with the secretary of the commonwealth shall be as follows : — Ss?," 225.' § S4"
4 For filing and recording the certificates required by sections 1896>369-
5 twenty and twenty-one, including the issuing of the certificate of tion.
6 organization by the secretary, one-twentieth of one per cent of the ml', 7J5*' § 2"
7 amount of the capital stock as fixed by the agreement of association ; iffj; f^; § 59-
8 but not less in any case than five nor more than two hundred dollars.
9 For filing; and recording the certificate required by section fifty- — of increase
of capital
10 four, one-twentieth of one per cent of the amount by which the 1863,231, §2.
11 capital is increased; but the amount so to be paid shall not, if i87i;356.
12 added to the amount previously paid for filing and recording cer- 1896>523>§2-
13 tificates under the provisions of sections twenty, twenty-one and
14 fifty-four, exceed two hundred dollars ; and a corporation which
15 has so paid two hundred dollars shall pay a fee of one dollar for each
16 certificate thereafter filed and recorded under the provisions of sec-
17 tion fifty-four.
18 For filing and recording; the certificates required by sections forty- —of change of
foU61H668
19 seven and forty-eight, one dollar for each certificate. 1875, m,'§ 4.
1879, 202, § 2. 1895, 169.
20 For filing and recording the certificate required by section fifty- —of condition.
21 one, five dollars.
22 For filing and recording the certificate required by section ten of n~anfe°hange of
23 chapter one hundred and nine, one dollar. 1896, 523, §1.
24 For filing and recording any other certificate required by law, one — other cer-
25 dollar. 1870, 224, § 59. 1896, 523, §1.
26 For official copies of any of the records mentioned in this chapter, copies.
27 the rates now fixed by chapter two hundred and four for copies of ' '
28 similar records furnished by the secretary of the commonwealth.
CHAPTER 111.
of railroad corporations and railroads.
- Matters of Construction.
• Corporations Subject to this Chapter.
-Rights Reserved by the Commonwealth.
- Board of Railroad Commissioners.
- General Powers and Duties of Board.
•State Directors.
-Charters.
- Organizations under the General Law.
-City and Town Subscriptions.
-Meetings, Officers.
-Capital Stock.
- Bonds and Mortgages.
•Taking Stock, etc., of Other Corporations.
Books and Returns.
•Location and Construction of Railroad.
Sections 149-160. — Abolition of Grade Crossings.
Sections
1,2.
Sections
3-5.
Sections
6,7.
Sections
8-10.
Sections
11-27.
Sections
28,29.
Sections
30-34.
Sections
35-48.
Sections
49-54.
Sections
55-58.
Sections
59-62.
Sections
63-76.
Sections
77-82.
Sections
83-87.
Sections
88-148.
978 RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Section 161. — Branche s and Extensions .
Sections 162, 163. — Opening the Railroad for Use.
Sections 164-168. — Remedy for Labor, etc., furnished for Construction.
Sections 169-248. — Equipment and Operation.
Sections 249-262. — Offences and Penalties.
Sections 263-269. — Accidents.
Section 270. — Damages by Fire.
Section 271. — Encroachment on Lands of Corporation.
Sections 272-278. — Connecting Railroads.
Sections 279, 280. — Railroads for Private Use.
Sections 281-285. — Corporations to Construct Railroads in Foreign
Countries.
MATTERS OF CONSTRUCTION.
mi?3rt, § 2. Section 1 . In this and the following chapter, unless the context 1
im'iw'*1' otherwise requires : 2
i9o!' 503' s L " Railroads and railways " means all railroads and railways except 3
tramways in mines and marine railways. 4
' ' Railroad " means a railroad or railway of the class usually oper- 5
ated by steam power. 6
" Street railway " or " railway " means a railroad or railway, in- 7
eluding poles, wires or other appliances and equipment connected 8
therewith of the class operated by motive power other than steam 9
and usually constructed in, under or above the public ways and 10
places. 11
" Eailroad corporation " and " railroad company " means the cor- 12
poration which lays out, constructs, maintains or operates a railroad 13
of the class usually operated by steam power. 14
"Location", as applied to a street railway, means the grant to 15
a street railway company of the right to construct, maintain and 16
operate a street railway in a public way or place. 17
" Original", as applied to a street railway location in a city or 18
town, means the first location granted to the company in such city 19
or town. 20
" The board " means the board of railroad commissioners. 21
" Public way " means any way laid out by public authority. 22
4?toinainatter08 Section 2 . The duties imposed by the provisions of this chapter 1
arising in Bos- Up0n the mayor and aldermen of cities or the county commissioners 2
i88i' 9iVi5' as a tribunal of original jurisdiction relative to the fixing of routes 3
p. s. 112, §2. or to the location, construction, maintenance and operation of rail- 4
roads shall, in the city of Boston, unless it is otherwise expressly 5
provided, devolve upon the board of aldermen of said city. When, 6
in cases arising in said city, a jury is required, application therefor 7
shall be made to the superior court in the manner prescribed in 8
section ninety of chapter forty-eight, and duties devolved upon the 9
county commissioners by reference or appeal from the mayor and 10
aldermen of other cities shall devolve upon the board of railroad 11
commissioners. 12
CORPORATIONS SUBJECT TO THIS CHAPTER.
8ub^ctto10this Section 3. Railroad corporations which have been heretofore 1
Riaspt39'§45 established in this commonwealth shall be subject to the provisions 2
g. s. 63^ § 1. 0f this chapter ; which, so far as inconsistent with charters granted 3
1885, 194, § 2.
Chap. 111.] kailroad corporations and railroads. 979
4 since the eleventh day of March in the year eighteen hundred and p7f iii'llj'
5 thirty-one, shall be an alteration and amendment thereof; but the n* Mass. 379.
6 provisions of this section shall not impair the validity of any special
7 power heretofore conferred by charter or other special act upon a
8 particular railroad corporation which had exercised such power
9 before the first day of February in the year eighteen hundred and
10 seventy-five, or prevent the continued exercise thereof conformably,
11 so far as may be, to the provisions of this chapter.
1 Section 4. A railroad corporation chartered by the concurrent corporations
2 legislation of this and other states shall, as regards any portion of concurrent
3 its road lying within this commonwealth, be entitled to all .the i$4,m°§'w.
4 benefits and be subject to all the liabilities of the railroad corpora- " ' s
5 tions of this commonwealth.
1 Section 5. If a railroad which has been laid out and constructed —or trustees
f • 1 i operating
2 by one corporation is lawfully maintained and operated by another roads °f other
3 corporation, the latter corporation shall be subject to the provisions 1874, 372, § 3. '
4 of this chapter respecting or arising from the maintenance and m Mass. 574.
5 operation of such railroad, as if such railroad had been laid out and 174Mass-379-
6 constructed by it. If a railroad is lawfully maintained and operated
7 by trustees, they shall in like manner be subject to the provisions of
8 law respecting or arising from the maintenance and operation of
9 such railroad which apply to the corporation for whose stockholders
10 or creditors they are trustees.
RIGHTS RESERVED BY THE COMMONWEALTH.
1 Section 6. The provisions of this chapter shall not impair the Rights of com-
2 rights of the commonwealth as asserted or reserved in previous ^s.lslf^si.
3 statutes, and the commonwealth may, at any time during the con- §72/ If,' |il.8*
4 tinuance of the charter of a railroad corporation after the expiration \^' 372> §§ 178«
5 of twenty years from the opening of its road for use, purchase of the p- 8.112, §§ 6,7.
6 corporation its road and all its franchise, property, rights and privi-
7 leges by paying therefor such amount as will reimburse to it the
8 amount of capital paid in, with a net profit thereon of ten per cent a
9 year from the time of the payment thereof by the stockholders to
10 the time of the purchase.
1 Section 7. The commonwealth may, at any time after one common.
2 year's notice in writing to a railroad corporation, take and possess tateroad?7
3 its road, franchise and other property ; and shall pay therefor such ^7o,n325, § 2.
4 compensation as may be awarded by three commissioners, who p7|' iiff|81"
5 shall be appointed by the supreme judicial court, who shall be sworn
6 to appraise the same justly and fairly and who shall estimate and de-
7 termine all damages sustained by it by such taking. A corporation
8 which is aggrieved by their determination may have its damages
9 assessed by a jury in the superior court for the county of Suffolk, in
10 the manner provided in section ninety of chapter forty-eight.
BOARD OF RAILROAD COMMISSIONERS.
1 Section 8. There shall be a board of railroad commissioners Railroad com-
2 consisting of three competent persons, one of whom shall annually, Serks^etc8'
3 before the first day of July, be appointed by the governor, with the 1864' 152' § *'
980
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
1869, 408, §§ 1,
13.
1874, 372, § 6.
1876, 185, §3;
206, § 1.
P. S. 112, §§ 9,
11.
1887, 334, § 2.
1894, 535, §§ 1, 2.
1895, 313.
153 Mass. 169.
advice and consent of the council, for a term of three years from 4
said day. The board shall have a clerk, who shall be appointed by 5
the governor, who shall keep a full and faithful record of its pro- 6
ceedings and who shall serve such notices as the commissioners may 7
require. The board may employ an assistant clerk, who shall per- 8
form such clerical and other office work as the board may require 9
and who, in the absence or during the disability of the clerk, may, 10
if so directed by the board, perform his duties. The board may 11
employ an accountant, skilled in the methods of railroad accounting, 1 2
who shall, under its direction, supervise the method by which the 13
accounts of corporations operating railroads or street railways are 14
kept. The board may from time to time if, in its opinion it is 15
necessary, appoint competent railroad and railway inspectors, not 16
exceeding one for every one thousand miles of railroad track, each 17
for a term of three years, and may for cause remove any such in- 18
spector and appoint another in his place. Appointments to fill a 19
vacancy shall be for the residue of the unexpired term. It shall 20
appoint one or more competent experts to examine the reports 21
required by section one hundred and sixty -nine. The commis- 22
sioners and clerk shall be sworn before entering upon the per- 23
formance of their duties and shall not be in the employ of or own 24
stock in a railroad corporation or street railway company, nor 25
shall they personally, or through a partner or agent, render any 26
professional service or make or perform any business contract with 27
or for a railroad or street railway corporation chartered under the 28
laws of this commonwealth, except contracts made with them as 29
common carriers, nor shall they, directly or indirectly, receive a 30
commission, bonus, discount, present or reward from any such 31
corporation. 32
Salary of com-
missioners,
clerk, etc.
1864, 152, § 8.
1869, 408, §§ 7, 8.
1873, 377, § 6.
1874, 372, § 17.
1876, 185, § 3.
1879, 287, § 1.
P. S. 112, § 10.
1885, 119, 164.
1890, 200, § 1.
1894, 535, § 7.
1895, 313.
1900, 406.
1901, 54.
Section 9. The annual salary of the chairman of the board 1
shall be five thousand dollars, that of the other commissioners four 2
thousand dollars each, of the clerk twenty-five hundred dollars, of 3
the assistant clerk not more than twelve hundred dollars and of each 4
railroad and railway inspector fifteen hundred dollars, payable by 5
the commonwealth. The commissioners shall be provided with an 6
office in the state house, or in some other suitable place in the city 7
of Boston, in which their records shall be kept. In the performance 8
of their official duties, they shall be transported over the railroads 9
and railways in this commonwealth free of charge, and may employ 10
and take with them experts or other agents whose services they 11
consider temporarily of importance. The board may expend not 12
more than three thousand dollars annually in procuring necessary 13
books, maps, statistics and stationery and in defraying expenses 14
incidental and necessary to the performance of its duties, and not 15
more than twenty-five hundred dollars annually in defraying the 16
compensation of an accountant. A statement of such expenditures 1 7
shall accompany its annual report. 18
Apportion-
ment of
salaries, etc.
1864, 152, § 7.
1869, 408, § 9.
1874, 372, § 18.
1878, 167, § 1.
P. S. 112, § 12.
1887, 334, § 4.
Section 10. The annual expenses of the board, including the 1
salaries of the commissioners, clerk, assistant clerk, the compensa- 2
tion of the accountant, the expenses incurred under the provisions 3
of section one hundred and sixty-nine, the incidental expenses of the 4
board and the salaries and expenses of the railroad and railway in- 5
Chap. 111.] railroad corporations and railroads. 98]
6 spectors shall be apportioned by the tax commissioner among the ism, 200, § 3.
7 several railroad and street railway corporations and, on or before 1895,' iiil88"
8 the first day of July in each year, he shall assess upon each of said 1897' 376, § 4-
9 corporations its share of such expenses, in proportion to its gross
10 earnings from the transportation of persons and property for the
1 1 year last preceding the year in which the assessment is made ; and
12 such assessments shall be collected in the same manner as taxes
13 upon corporations.
GENERAL POWERS AND DUTIES OF BOARD.
1 Section 11. The board shall make an annual report, which shall ^^11ioirf|)3rt-
2 be transmitted to the secretary of the commonwealth, on or before j1;
1870, 307, § 2.
3 the first Wednesday in January, and be laid before the general i874| 372; §§ 9,
14, 15.
4 court. The report shall include such statements, facts and explana- p.'s.ii2,§§i3,
5 tions as will disclose the actual working of the system of railroad 16, 26"
6 transportation in its bearing upon the business and prosperity of
7 the commonwealth, such suggestions as to its general railroad
8 policy, or any part thereof, or the condition, affairs or conduct of
9 any railroad corporation, as may seem to it appropriate, such tables
10 and abstracts of all the returns required to be made by railroad
11 corporations as it considers expedient and a report of any proceed-
12 ings taken under the provisions of section fifteen.
1 Section 12. The board shall have the general supervision of all i^a80*
2 railroads and railways, and shall examine the same; and the com- ^'f^-ii2'5-
3 missioners shall keep themselves informed as to the condition of p.s'. 112, §11.
4 railroads and railways and the manner in which they are operated ess.]
5 with reference to the security and accommodation of the public, and
6 as to the compliance of the several corporations with their charters
7 and the laws of this commonwealth.
1 Section 13. The provisions of the following seven sections shall ^.ffi*^
2 apply to all railroads and railways, and to the corporations, trustees ff^Vsf"^8'
3 or others who own or operate them. p. s. 112, §u. 187*1 372I § 7.
1 Section 14. If, in the judgment of the board, any such cor- Board to
2 poration has violated a law, or neglects in any respect to comply lnceof°iaws."
3 with the terms of the act by which it was created or with the provi- \^ $?; 1 f;
4 sions of any law of this commonwealth, it shall give notice thereof in pJs'.iiI'.Im,
5 writing to such corporation ; and thereafter, if such violation or
6 neglect continues, shall forthwith present the facts to the attorney
7 general for his action.
1 Section 15. If the board is of opinion that repairs are nee- Nou«ofne£
2 essary upon any railroad, or that an addition to its rolling stock, etcfr:
3 or an addition to or change of its stations or station houses, or a if^sralfl;
4 change in its rates of fares for transporting freight or passengers or p- s- 112> § 16-
5 in the mode of operating its road and conducting its business, is
6 reasonable and expedient in order to promote the security, con-
7 venience and accommodation of the public, it shall in writing inform
8 the corporation of the improvements and changes which it recom-
9 mends should be made.
982
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Examination
of condition of
road.
1869, 408, § 4.
1874, 372, § 10.
P. S. 112, § 17.
Section 16. Upon the application of the mayor and aldermen 1
of a city or the selectmen of a town within which a part of any 2
railroad is located, alleging grounds of complaint, the board shall 3
examine the condition and operation of such railroad ; and if, upon 4
the petition in writing of twenty or more legal voters in such city 5
or town to the mayor and aldermen or selectmen to make such 6
application, they refuse so to do, they shall indorse upon the 7
petition the reason of such refusal and return it to the petition- 8
ers, who may, within ten days thereafter, present it to the board 9
and it may thereupon make such examination as if called upon by 10
the mayor and aldermen or the selectmen, first giving to the 11
petitioners and to the corporation reasonable notice in writing of 12
the time and place of making such examination. If, upon such 13
examination, it appears to the board that the complaint is well 14
founded, it shall so adjudge, and shall in writing inform the cor- 15
poration which operates such railroad of its adjudication. 16
of accents!1 Section 17. The board shall investigate the causes of any ac- 1
lira' 988«V4' cident on a railroad or street railway which results in loss of life ; 2
1874^ 372, § ii. and of other accidents which, in its judgment, require investigation. 3
employees8 by Section 18. An employee may make complaint in writing to 1
^94,535, §6. the board of a defect in the ways, works, machinery or appliances 2
of a railroad or street railway, and the name of the complainant 3
shall not be divulged. 4
Information
to board by
railroads.
1869, 408, § 6.
1874, 372, § 12.
P. S. 112, § 19.
Section 19. Every railroad corporation shall at all times, upon 1
request, furnish to the board any information which may be required 2
by it relative to the condition, management and operation of the 3
road, and copies of all leases, contracts and agreements for trans- 4
portation with express companies or otherwise to which such cor- 5
poration is a party, and also with the rates for transporting freight 6
and passengers upon its road and other roads with which its busi- 7
ness is connected. 8
Effect of ad-
vice of board.
1869, 408, § 12.
1874, 372, § 13.
P. S. 112, § 20.
Section 20. No request or advice of the board shall in any 1
manner impair the legal duties and obligations of a railroad corpo- 2
ration or its legal liability for the consequences of its acts or of the 3
neglect or mismanagement of any of its agents or servants. 4
Annual exam-
ination of
books and
accounts.
1876, 185, § 2.
P. S. 112, § 21.
Section 21. The board shall from time to time in each year 1
examine the books and accounts of every corporation which operates 2
a railroad or street railway and require them to be kept in a uniform 3
manner and upon the system prescribed by the board. Statements 4
of the doings and financial condition of the several corporations 5
shall be prepared and published at such times as the board shall 6
consider expedient. 7
Other exam-
inations of
books and
financial con-
dition.
1876, 185, § 4.
P. S. 112, § 22.
Section 22. Upon the application in writing of a director, or of 1
any person or persons who own one-fiftieth part of the paid-in capital 2
stock of a corporation which operates a railroad or street railway, or 3
who own the bonds or other evidences of indebtedness of such cor- 4
Chap. 111.] railroad corporations and railroads. 983
5 poration equal in amount to one-fiftieth part of its paid-in capital
6 stock, the board shall examine the books and the financial condition
7 of said corporation, and shall cause the result of such examination
8 to be published in one or more daily newspapers in the city of
9 Boston.
1 Section 23. The board shall at all times have access to the list Board to have
2 of stockholders of every corporation which operates a railroad or of stock-
3 street railway, and may at any time cause the whole or a part im,ei£i § 5.
4 thereof to be copied for its information or for the information of fiop"!'.!*!3'
5 stockholders in such corporation. ^78-J
1 Section 24. A corporation which refuses to submit its books to Penalty upon
2 the examination of the board or unreasonably neglects to keep its for^eiusS|8to
3 accounts in the method prescribed by the board shall forfeit not etc.bmit b0 '
4 more than five thousand dollars for every such refusal or neglect. ^7| ^| |^
1 Section 25. In all cases investigated and inquiries made by the commissioners
2 board and in all proceedings before it, any member thereof may witnesses™011
3 summon witnesses in behalf of the commonwealth and may ad- p7s'.1rji!,f 25.
4 minister oaths and take testimony. The fees of such witnesses for 1901> 286-
5 attendance and travel shall be the same as for witnesses before the
6 superior court, and shall be paid by the commonwealth upon the
7 certificate of the board filed with the auditor.
1 Section 26. The board shall prescribe the form for the annual Board topre-
2 returns to be made by railroad corporations, may, from time to °|7oe|^n|§3 4
3 time, make changes and additions in such form and shall give to the 1874; 372! § 15'. '
4 corporations one vear's notice of any changes or additions which re- p.'s. 112, §26.
5 quire an alteration in the method or form of keeping their accounts.
6 It may change the form of such returns to conform to the form of
7 returns required by the interstate commerce commission if it gives
8 to the corporations one month's notice of such change ; and shall
9 annually, on or before the fifteenth day of June, furnish blank
10 forms of such returns. If a return is defective or appears to be
11 erroneous, the board shall notify the corporation to amend it within
12 fifteen days. The original of each return or amended return, sub-
13 scribed and sworn to by the directors, treasurer and chief account-
14 ing officer of the corporation, shall be preserved in the office of the
15 board.
1 Section 27. In any case in which the consent or approval of &|v0i|lonby
2 the board which may be required by law for any crossing at grade [™*»}£§ *■
3 is given, the board may, after notice to the parties interested and a
4 hearing, impose conditions, limitations, restrictions and regulations
5 relative to such crossing, its construction and use, and may from
6 time to time change and modify them.
STATE DIRECTORS.
1 Section 28. State directors of railroad corporations shall #S£gSKS*
2 annually, on or before the second Wednesday of January, make a °«- m
3 report to the general court, suggesting any measures which may p. s. 112,127.
984
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
be necessary to secure to the public the greatest convenience and
economy in freight and travel.
Ineligibility as
state directors,
Section 29. A member of the general court shall not, during the
p7| ip !§283' term for which he is elected, be eligible to the office of state director
in a railroad corporation ; and a person who is in the employ of a
railroad corporation, or who owns stock therein, shall not be eligible
to the office of state director in such corporation.
4
5
1
2
3
4
5
Petition for
charter to be
accompanied
by report of
engineer, map,
etc.
1833, 176.
R. S. 39, § 46.
1848, 327, § 1.
1849, 131, § 2.
G. S. 63, § 13.
P. S. 112, § 29.
CHARTERS.
Section 30. No petition to the general court for a charter for a 1
railroad corporation shall be acted upon unless it is accompanied 2
with a map of the proposed route on an appropriate scale and with 3
a profile thereof on a vertical scale of ten to one as compared with 4
the horizontal scale ; nor unless it is accompanied and supported 5
by the report of a skilful engineer, founded on actual examination 6
of the route, and by other proper evidence showing the character 7
of the soil, the manner in which it is proposed to construct the road, 8
the general profile of the surface of the country through which it is 9
proposed to be made, the feasibility of the route and an estimate 10
of the probable expense of construction. 11
biapiacldint0 Section 31. Plans and profiles which may be presented to a com- 1
^ateHbrary. mittee of the general court in the hearing of a petition for such a 2
g. s. 63,'§ 14. charter shall be placed by it in the state library. p. s. 112, § 30. 3
Petition not to
be acted upon
until notice,
etc.
1833, 176.
R. S. 39, § 47.
G. S. 63, § 15.
P. S. 112, § 31.
Road to be
within limits
specified.
P. S. 39, § 48.
G. S. 63, § 16.
P. S. 112, § 32.
Section 32. No such petition shall be acted upon until notice 1
thereof has been published according to law, designating the intended 2
route with such certainty as to give reasonable notice to all persons 3
interested therein that their rights may be affected by the granting 4
of the petition and that they may have an opportunity to appear 5
and object thereto ; but the provisions of this section and of section 6
thirty shall not prevent the general court from requiring further 7
surveys, plans and estimates. 8
Section 33. Every charter shall confine the road within the 1
limits indicated by the notice required in the preceding section, shall 2
specify the several cities and towns through which the road may 3
pass and shall otherwise designate the route on which the road is 4
authorized to be made with as much certainty as the nature of the 5
case will admit. 6
Chartered
roads to be
located, etc.,
under this
chapter.
1S74, 372, § 33.
P. S. 112, § 33.
1882, 265, § 3.
Section 34. The routes of railroads which are established by 1
special charter, including branches and extensions, shall be fixed 2
according to the provisions of sections forty-two and forty-three 3
except so far as they may have been fixed by special statute ; and 4
such railroads, branches and extensions shall be located and con- 5
structed according to the provisions of this chapter regulating the 6
location and construction of railroads by corporations established 7
under general laws, except that section forty shall not apply if 8
authority to so locate and construct has been granted by special act 9
of the general court. 10
Chap. 111.] railroad corporations and railroads. 985
organizations under the general law.
Agreement of Association, Corporate Name, etc.
1 Section 35. Twenty-five or more persons, a majority of whom Formation of
2 are inhabitants of this commonwealth, may associate themselves by corporations.
3 an agreement in writing with the intention of forming a railroad Jiff; S^Vm.
4 corporation ; and upon complying with the provisions of section $$£& ||^
5 forty-six shall, with their associates and successors, be and remain a
6 corporation with the powers and privileges and subject to the duties,
7 liabilities and restrictions set forth in this chapter and in any general
8 laws applicable thereto.
1 Section 36. The agreement of association shall set forth the Agreement of
2 name of the corporation ; the termini of the railroad proposed to be 1I72 °53^§°2.'
3 built; its length as near as may be ; the name of each county, city §827o.'298' 37"'
4 and town through or into which its route extends ; its gauge, which p7f n| §35
5 shall be either four feet eight and one-half inches, or three feet ; the
6 amount of its capital stock, which shall not be less than ten thousand
7 dollars for each mile, if the gauge is four feet eight and one-half
8 inches, and not less than live thousand dollars for each mile if the
9 gauge is three feet ; and the names of at least nine persons to act as
10 a board of directors until others are chosen by the corporation.
11 Each associate shall subscribe to the agreement his name, residence,
12 post office address and the number of shares of stock which he
13 agrees to take ; but no subscriber shall be bound to pay more than
14 ten per cent of the amount of his subscription unless a corporation
15 is duly established.
1 Section 37. The corporate name assumed shall be one not in corporate
2 use bv anv other corporation in this commonwealth and shall contain 1872, 53, §§' 3, 4.
3 the words "railroad company" at the end thereof. The associates p.' s. 112, § 36.
4 may from time to time, at a meeting called for the purpose, reduce
5 the amount of the capital stock, but not below the limit prescribed
6 in the preceding section ; and they may, in like manner, change the
7 gauge of their road to the other gauge allowed by said section.
8 The directors shall be subscribers to the agreement of association
9 and a majority of them shall be inhabitants of this commonwealth.
10 They shall appoint a clerk and a treasurer, who shall hold their re-
11 spective offices until a clerk and treasurer of the corporation are
12 chosen. The directors may fill any vacancy in their board or in
13 the office of clerk or treasurer before the establishment of the cor-
14 poration.
1 Section 38. The directors shall cause a copy of the agreement ^j^™^.
2 of association to be published in one or more newspapers in each mentor asw-
3 county in which the road is proposed to be located at least once in J«J»£l*
4 each of three successive weeks, and shall also cause a copy of said p.s'.Vi2,§37.
5 agreement to be posted in each city or town in which the road is
6 proposed to be located at least three weeks before proceeding to fix
7 its route. The certificate of the clerk under oath of the posting and
8 publication shall be evidence thereof.
986
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Map of route,
report of
engineer and
estimates.
1872, 53, § 6;
180, § 3.
1874, 372, § 23.
P. S. 112, § 38.
124 Mass. 375.
Fixing of the Route.
Section 39. The directors shall prepare a map of the proposed 1
route on an appropriate scale, with a profile thereof on a vertical 2
scale of ten to one as compared with the horizontal scale, and shall 3
procure the report of a skilful engineer, based on actual examination 4
and survey, showing the kind and amount of excavation, filling, 5
bridging and masonry required, the proposed grades, the number 6
of highways and of other railroads, if any, and of navigable streams 7
and tide waters, if any, to be crossed, and the manner proposed for 8
crossing the same, the general profile of the surface of the country 9
through which the road will pass, the feasibility of the route, the 10
manner of constructing the road and a detailed estimate of the cost 11
of construction. 12
Certificate
of public
exigency.
1882, 265, § 1.
Section 40. After compliance with the provisions of sections 1
thirty-five to thirty-eight, inclusive, and within thirty days after the 2
first publication of notice of the agreement of association therein 3
required, the directors therein named shall apply to the board for a 4
certificate that public convenience and necessity require the con- 5
struction of a railroad as proposed in such agreement. If the board 6
refuses to issue such certificate, no further proceedings shall be had, 7
but the application may be renewed after one year from the date 8
of such refusal. 9
Submission of
map, etc., to
mayor and
aldermen, etc.
1873, 121, § 2.
1874, 372, § 24.
P. S. 112, § 39.
Section 41. The directors shall submit said map and report 1
to the mayor and aldermen of every city and to the selectmen of 2
every town named in the agreement of association, who shall there- 3
upon appoint a time and place for a hearing, of which notice shall 4
be given by publication in one or more newspapers published in the 5
county for two successive weeks, the last publication to be at least 6
two days prior to the hearing, and by posting copies of the notice 7
in two or more public places in the city or town at least two weeks 8
before such hearing. 9
Route may be
agreed upon.
1872, 53, §7;
180, § 3.
1874, 372, § 25.
P. S. 112, § 40.
124 Mass. 376.
— fixed by
board, when.
1872, 53, § 8;
180, § 3.
1874, 372, § 26.
P. S. 112, § 41.
124 Mass. 376.
Section 42 . If the mayor and aldermen of a city or the select- 1
men of a town named in the agreement of association, after such 2
notice, exhibition of the map and the hearing, agree with the direct- 3
ors as to the proposed route or as to any route of their railroad in 4
said city or town, they shall in such agreement fix the route and 5
sign and give to the directors a certificate setting it forth. 6
Section 43. If they fail so to agree, the directors may petition 1
the board to fix the route in said city or town ; and the board, after 2
due notice to said mayor and aldermen or selectmen, shall hear the 3
parties and fix the route in such city or town and make a certifi- 4
cate setting forth the route as fixed by it, which shall be certified 5
by its clerk to the directors. The costs of the petition shall be 6
paid by the directors. All variations from the route first proposed 7
shall be made upon the map. 8
Spurs and
branches.
1873, 121, § 3.
1874, 372, § 27.
P. S. 112, § 42.
124 Mass. 376.
Section 44. The route fixed under the provisions of the pre- 1
ceding two sections may include such spurs, branches and connecting 2
and terminal tracks in any city or town as may be necessary to 3
Chap. 111.] railroad corporations and railroads. 987
4 enable the corporation conveniently to collect and deliver passengers
5 and freight therein ; but no such branch, spur or connecting or
6 terminal track shall be laid longitudinally within the limits of a
7 public way without the consent of the mayor and aldermen or the
8 selectmen, who, in giving such consent, may impose such conditions
9 as to the location, construction and use thereof as may be agreed
10 upon between themselves and the directors. Corporations which
11 own or operate any such tracks so laid longitudinally in a public
12 way shall, in respect to the same, be liable to the city or town for
13 all loss or damage caused to it by the construction and use of such
14 tracks and by the negligence or default of the agents or workmen
15 of such corporations on such way.
1 Section 45. When responsible persons have, in good faith, S^*1*^*6'
2 subscribed the amount of capital stock required by section thirty- report to be
Q6t)Ofiit6Cl with
3 six to the agreement of association and at least ten per cent of the board, when.
4 par value of each share thereof has been actually paid in cash to the 1874^ 372, §28.
5 treasurer, the directors, clerk and treasurer shall indorse upon p- s- 112> § 43-
6 the agreement of association or annex thereto their certificate set-
7 ting forth these facts and that it is intended in good faith to locate,
8 construct, maintain and operate the railroad upon the route fixed,
9 shall also annex to said agreement the certificate of publication
10 mentioned in section thirty-eight and the several certificates fixing
11 the route, shall present the same for inspection to the board and
12 shall at the same time deposit in the office of the board the report
13 of the engineer and the map.
Certificate of Incorporation.
1 Section 46. When it is shown to the satisfaction of the board pneCOTpOTati00fn.
2 that the requirements of this chapter preliminary to the establish- ^72, j^y^
3 ment of a corporation have been complied with, and that an amount wsi! iei! ^
4 sufficient in its judgment to pay all damages immediate or conse-
5 quential which may be occasioned by laying out, making and
6 maintaining the railroad, or by taking any land or materials therefor,
7 has in good faith been paid in cash to the treasurer, and when said
8 board is satisfied by a bond, or such other assurance of good faith as it
9 may consider necessary and require, that said amount wall remain in
10 the hands of said treasurer until it is drawn out for the lawful ex-
11 penditures of the corporation, the clerk of the board, upon its order,
12 shall indorse upon the agreement of association or annex thereto a
13 certificate stating that such requirements appear to have been com-
14 plied with. The directors shall thereupon file the agreement of asso-
15 ciation, with all the certificates indorsed thereon or annexed thereto,
16 in the office of the secretary of the commonwealth ; who, upon the
17 payment to him of a fee of fifty dollars, shall record the agreement
18 of association and certificates indorsed thereon in a book to be kept
19 for that purpose, and shall issue a certificate substantially in the
20 following form : —
Commonwealth of Massachusetts.
Be it known that whereas [names of the subscribers to the agreement of *£™ ®*to#
association] have associated themselves with the intention of fonning a corpora-
tion under the name of the [name of the corporation], for the purpose of
locating, constructing, maintaining and operating a railroad [description of the
road as in the agreement of association], and have complied with the statutes of
988
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
this commonwealth in such cases made and provided : now, therefore, I, ,
secretary of the commonwealth of Massachusetts, do hereby certify that the
persons aforesaid, their associates and successors, are legally established as a
corporation under the name of the [name of the corporation] , with all the
powers and privileges, and subject to all the duties, liabilities and restrictions,
set forth in all general laws which now are or hereafter may be in force relating
to railroad corporations.
In witness whereof, I have hereunto subscribed my official signature, and
affixed the seal of said commonwealth, this day of , in the year
[day, month and year.]
Certificate to
be recorded.
The certificate shall be recorded with the agreement of association ; 21
and the original certificate or a certified copy of the record thereof 22
shall be conclusive evidence of the establishment of the corporation 23
at the date of such certificate. 24
Proceedings
void, when.
1882, 265, § 2.
Organizi
ition
of corporation,
etc.
1872,
53,|
jll.
1874,
372,
§30.
1878,
215.
1879,
156.
P. s.
112,
§45.
First meeting.
Increase and
reduction of
capital stock.
1872, 53, § 15.
1873, 121, § 1.
Limit of time
for construc-
tion of road.
1872, 53, § 16.
Section 47. The agreement of association and all proceedings 1
thereunder, including the fixing of the route, shall be void unless 2
the certificate of incorporation is issued within one year after the 3
time the route is fixed as provided in sections forty -two or forty- 4
three . 5
Organization, etc.
Section 48. Upon the issue of such certificate of incorporation, 1
the corporation may organize ; and, upon compliance with the pro- 2
visions of section eighty-eight, may locate its railroad upon the 3
route fixed, and may construct, maintain and • operate the same in 4
the manner hereinafter prescribed, subject to the following provi- 5
sions : — 6
First, The first meeting shall be called by a notice signed by a 7
majoritjr of the directors, stating the time, place and purpose of such 8
meeting ; and the clerk shall, seven days at least before the day 9
appointed therefor, deliver to each subscriber, or leave at his usual 10
place of business or residence, or deposit in the post office, prepaid, 11
and directed to him at his post office address, a copy of such notice. 12
The clerk shall make an affidavit of his doings relative thereto, 13
which shall be recorded with the records of the corporation. 14
Second, If the capital stock fixed in the agreement of association 15
is found to be insufficient for the construction and equipment of the 16
railroad, the corporation at a meeting called for the purpose may, 17
subject to the provisions of section twenty -four of chapter one hun- 18
dred and nine, increase the same, from time to time, to the amount 19
necessary for those purposes. It may, at a meeting called for the 20
purpose, reduce the amount of the capital stock, but not below 21
the limit prescribed in section thirty-six ; and in like manner may, 22
subject to the provisions of the fifth clause of this section, change 23
the gauge to the other authorized gauge. A certificate of the in- 24
crease or reduction of capital or change of gauge shall, within 25
thirty days thereafter, be filed in the office of the secretary of the 26
commonwealth. 27
Third, If such corporation does not begin the construction of its 28
road and expend thereon at least ten per cent of the amount of its 29
original capital stock within two years after the date of its certificate 30
of incorporation and does not complete and open its road for use 31
within four years after said date, its corporate powers and existence 32
shall cease. 33
Chap. 111.] railroad corporations and railroads. 989
34 Fourth, No corporation which has a railroad of the gauge of three capital stock
35 feet shall commence running its trains until its paid-up capital stock ™fraii.'
36 is equal to at least one-half of its cost, including equipment. Smuss
37 Fifth, No corporation organized to construct its road on a gauge change of
38 of three feet shall change such gauge to four feet eight and one-half fateleregu"
39 inches without complying with all provisions of law relative to the 1879>is6-
40 capital stock of roads of the wide gauge ; and the fact that such
41 provisions have been complied Avith shall be shown to the satisfac-
42 tion of the board and indorsed by its clerk upon the certificate of
43 such change of gauge before it is filed in the office of the secretary.
CITY AND TOWN SUBSCRIPTIONS.
1 Section 49 . Any town within which the road of a railroad cor- city and town
2 poration organized after the first day of February in the year lsroSfK8"
3 eighteen hundred and seventy-five, or the road of a railroad cor- j^a*.' 5 1;
4 poration then existing and whose road was not then constructed, is p7s'nl' §46
5 located or terminates, and any such city having by the latest census, 138 Mass. 286.*
6 state or national, less than thirty thousand inhabitants, may subscribe
7 for and hold shares of the capital stock or the securities of any or
8 all such corporations to an amount not exceeding, for the aggre-
9 gate in all such corporations two per cent of the valuation of such
10 city or town for the year in which the subscription is made ; and any
11 such town which has a valuation of not more than three million
12 dollars may so subscribe for and hold the securities of such corpora-
13 tions or either of them to an additional amount not exceeding one
14 per cent of the valuation of such town in the year in which the sub-
15 scription is made : provided, that two-thirds of the legal voters in
16 such city or town, present and voting by ballot and using the voting
17 list, at legal meetings called for the purpose and held in like manner
18 as the meetings for the choice of municipal officers are held therein,
19 vote so to subscribe. The provisions of this section shall not author-
20 ize a city or town to make subscriptions to a greater amount than is
21 authorized by section twenty-three of chapter twenty-seven.
1 Section 50. A city or town, by vote passed in accordance with ^ become
2 the provisions of the preceding section, may become an associate ^In?0018*6'
3 under the provisions of section thirty-five in the formation of a rail- ^MfJ« s 2;
4 road corporation to construct a road located or terminating therein, p. s. 112, §47.
5 with all the powers and privileges enjoyed by an individual associate.
1 Section 51. The form in which the matters provided for in the Person to^exe-
2 preceding two sections shall be voted upon shall be determined in town vote.
3 cities by a concurrent vote of both branches of the city council, if ist-»; 'J^V: § 3';
4 two branches exist, otherwise by vote of the legislative board of the F?sfn2,§48.
5 city, and in towns, by the selectmen ; and if a city or town has
6 voted to subscribe to such stock or securities or to become an
7 associate in the formation of such corporation, the mayor and alder-
8 men if there is such board, otherwise the mayor, and in towns, the
9 selectmen shall select some person who may, in behalf of the city or
10 town, execute its vote.
1 Section 52. A subscription which is authorized by vote under ^J;*;;;1'^
2 the provisions of section forty-nine shall be void unless actually montho after
990 RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
1874, 251, § 4; made by the persons authorized within twelve months after said 3
p. s: ii2, §49. vote ; and unless, within said period, a part thereof is actually paid, 4
<509°f" A" G' or some proceeding is commenced by the corporation to enforce 5
payment thereof, and at least twenty per cent of the capital stock of 6
the corporation is actually paid in cash, and at least ten per cent 7
of the capital stock is actually expended by it in the construction 8
of its road. 9
town8 may Section 53. Cities and towns so subscribing for stock or securi- 1
tax o™ioanytoy ^es may ra,ise money to pay for the same by tax, or, within the limits 2
pay for stock, prescribed by section twenty-three of chapter twenty-seven, by 3
1874) 25i; § 5- loan, and may issue their notes or bonds for such loan, and may hold 4
1876, 175. and dispose of such stock and securities in like manner as other town 5
FiV Mass. 226.' property; and the selectmen of towns, and such persons as may 6
be authorized by the legislative board of cities, may represent their 7
respective municipalities at all meetings of the corporations in 8
which the stock or securities are held and vote upon all the shares 9
of stock owned by them respectively. 10
to°secretarrof Section 54. The city or town clerk shall transmit to the secre- 1
wealth11" *ar^r °^ ^ne commonwealth and to the board a certified copy of any 2
1870, 64. vote of the city or town to subscribe for the stock of a railroad 3
is93,'423,§5.' corporation or to pledge its credit or grant aid to the same, within 4
thirty days after the day on which the vote is taken ; and if he neg- 5
lects or refuses so to do he shall be punished by a fine of not less 6
than five nor more than fifty dollars. 7
MEETINGS, OFFICERS.
meeting. Section 55. Every railroad corporation shall hold at least one 1
g I'll' It1' meeting in each year for the choice of directors. Such meeting 2
1863,' 212. shall be known as the annual meeting, and shall be held at some 3
1874', 323; 372, convenient place established by the by-laws. At such meeting the 4
p. s. ii2, § 5i. corporation shall fix the number of directors for the ensuing year, 5
which number shall not be less than five. 6
fngs^uow66*" Section 56. The president of a railroad corporation or of a 1
1876 201 street railway company shall, within ten days after receiving a 2
p. s'. ii2, § 52. written request therefor signed by not less than thirty stockholders, 3
1897 99 . °. * .
call a special meeting, which shall be held not more than thirty 4
days after the date of the call. If the number of stockholders of 5
the corporation is less than thirty, such meeting shall be called upon 6
the request of a majority thereof. A president who neglects to call 7
such meeting, when so requested, shall be punished by a fine of not 8
less than one hundred nor more than one thousand dollars. 9
ho°idersf 8tock" Section 57. The commonwealth, cities, towns and railroad cor- 1
RrsX39% 50 porations may at all meetings vote upon all the shares of stock held 2
1848,68.' by them and each individual stockholder shall be entitled to one 3
g. s. 63, §§ 5, 6. vote for each share held by him, not exceeding, however, one-tenth 4
inf-j Q70 R<\ A_~\ ^J
42.' ' part of the whole capital stock unless the vote of a certain proportion 5
p8s'. nl, §§ 53, °f the capital stock is required by law. No vote shall be given upon 6
M- shares owned by the corporation, or pledged in any form to or for its 7
Chap. 111.] railroad corporations and railroads. 991
8 benefit. No proxy shall be valid unless executed and dated within
9 six months before the meeting at which it is used.
1 Section 58. The immediate government and direction of the Directors,
2 affairs of the corporation shall be vested in a board of directors, Surerand
3 who shall hold their offices for one year and until others are elected jf ^ % § 49
4 in their places. The directors shall elect one of their number to be G-.s-<^§2'.'
5 president, and may elect another to be vice-president. They may mm! 372, § 43.
6 choose a clerk, who shall be sworn, and a treasurer, who shall give fe Gray,' Jot?'
7 bond in the sum required by the by-laws, with sureties, for the fit &??».
8 faithful performance of his duties. 117 Mass. 226.
CAPITAL STOCK.
1 Section 59. The shares in the capital stock may be transferred Transfer of
2 by an instrument in writing, recorded either bv the treasurer, 1833, m, §s.
3 or by an officer duly authorized by the directors, in books to be g. a. es, § n.
4 kept at such place as they may appoint. No transfer of shares, illf; lot'. § u'
5 unless so recorded, shall be valid against any person other than the f2' Gray%§if,6'
6 transferrer or his representatives, except as provided in sections |2{-]len U2 '
7 thirty-six and thirty-seven of chapter one hundred and nine. Upon f^^' "jjl
8 making the transfer, a new certificate shall be issued. 159 Mass.' 64. '
1 Section 60. The directors may from time to time assess upon Assessments
2 each share such amounts, not exceeding in all one hundred dollars R?sn39h,a§53-
3 on a share or the price fixed under the provisions of section thirty- q5| 3^3§§ g_10
4 one of chapter one hundred and nine, as they think proper, and w 7| 37| | *£•
5 may direct the same to be paid to the treasurer, who shall give notice 13 Met. 311.
6 thereof to the subscribers or stockholders. If a subscriber has 1 Gray, 544.
7 made no payment upon his shares, the directors, thirty days after 4Gray,'6i."
8 an assessment has become due, may declare them forfeited, and may g Gray,' 5%!
9 transfer them to any responsible person who subscribes for them and no Mast 21I;
10 pays the assessments then due. If a stockholder neglects, for thirty 113 Ma88- 79-
11 days after notice from the treasurer, to pay an assessment upon his
12 shares, the directors may order the treasurer, after giving notice of
13 the sale, to sell such shares by public auction to the highest bidder,
14 and, upon the payment by him to the corporation of the unpaid
15 assessments, of interest to the date of sale and of the charges of sale,
16 the shares shall be transferred to him. If within thirty days after
17 the sale the purchaser does not make said payment to the corpora-
18 tion, the sale shall be cancelled and the stockholder shall be liable
19 to the corporation for the unpaid assessments, interest thereon and
20 charges of sale. If the amount so paid by the purchaser to the cor-
21 poration is more than the amount for which the shares were sold,
22 the stockholder shall be liable to the purchaser for the deficiency ;
23 if it is less, the purchaser shall be liable to the stockholder for the
24 surplus.
1 Section 61. A railroad corporation, for the purpose of building increase of
2 a branch or extension, or of aiding in the construction of another rail- VsVi , m, §2^
3 road, or of taking stock in a grain elevator corporation in the organ- . L' §
4 ization of which it is an associate, or of erecting and operating g£jgj
5 grain elevators within this commonwealth, or of building depots, or
6 of abolishing grade crossings, or of making permanent investments
992
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Forfeiture for
unauthorized
increase of
capital stock.
1871, 389.
1874, 372, § 177.
P. S. 112, § 61.
109 Mass. 99.
142 Mass. 146.
or improvements, or of funding its floating debt, or of refunding its 7
funded debt, or for the payment of money borrowed for any lawful 8
purpose, or for other necessary and lawful purposes, may, from 9
time to time, in accordance with the provisions of section twenty- 10
four of chapter one hundred and nine, increase its capital stock or 11
bonds beyond the amounts fixed and limited by its agreement of 12
association or its charter, or by any special law. IS
Section 62. If a railroad corporation which owns a railroad in 1
this commonwealth and is consolidated with a corporation in another 2
state which owns a railroad therein increases its capital stock or the 3
capital stock of such consolidated corporation, except as authorized 4
by this chapter, without authority of the general court, or without 5
such authority extends its line of road, or consolidates with any 6
other corporation, or makes a stock dividend, the charter and fran- 7
chise of such corporation shall be subject to forfeiture. 8
Issue of bonds
to fund float-
ing debt.
1854, 286, §§ 1,
2,4.
G. S. 63, §§ 120,
121.
1869, 131, § 1.
1874, 372, § 49.
1875, 58.
1876, 170.
P. S. 112, § 62.
1887, 191.
1894, 462.
1897, 337.
10 Allen, 448,
459.
157 Mass. 40.
171 Mass. 242.
BONDS AND MORTGAGES.
Section 63. A railroad corporation may, by vote at a meeting 1
called for the purpose, in accordance with the provisions of this and 2
of sections twenty-four and twenty-five of chapter one hundred and 3
nine, but not otherwise, issue coupon or registered bonds, coupon 4
notes or other evidences of indebtedness payable at periods of more 5
than twelve months from the date thereof to provide means for 6
funding its floating debt, or for the payment of money borrowed for 7
any lawful purpose, and may mortgage or pledge, as security for the 8
payment of such indebtedness, a part or all of its road, equipment 9
or franchise, or a part or all of its real or personal property. Such 10
bonds, coupon notes or other evidences of indebtedness may be 11
issued in amounts of not less than one hundred dollars each, pay- 12
able in periods not exceeding fifty years from the date thereof, 13
and may bear interest not exceeding seven per cent a year, pay- 14
able annually or semi-annually, to an amount which, including that 15
of bonds, coupon notes or other evidences of indebtedness pre- 16
viously issued, does not exceed in all the capital stock of the cor- 17
poration actually paid in at the time ; and such bonds, coupon 18
notes or other evidences of indebtedness shall be recorded by its 19
treasurer in books to be kept in his office. A bond, coupon note or 20
other evidence of indebtedness shall not be issued unless approved 21
by a person appointed by the corporation for that purpose, who 22
shall certify that it is properly issued and recorded. 23
bl^dstered Section 64. At the request of the owner or holder of any 1
1874' 372' uk)-4' couPon bonds lawfully issued, other than bonds guaranteed by the 2
p. s'. U2, § 63'. commonwealth, the railroad corporation which issued them may 3
issue registered bonds in exchange for them, upon such terms and 4
under such regulations as its directors may prescribe, and with the 5
consent and approval of the trustees, if any, to whom a mortgage or 6
pledge has been executed ; and such registered bonds shall, with the 7
exception of the coupons, correspond in all respects with the coupon 8
bonds for which they are exchanged, and shall be in conformity with 9
all laws authorizing the issue of the coupon bonds. Such exchange 10
shall not affect a mortgage or pledge given as security for the pay- 11
Chap. 111.] railroad corporations and railroads. 993
12 ment of such coupon bonds, and such mortgage or pledge shall
13 remain in full force as security for such registered bonds ; and the
14 coupon bonds shall be cancelled and destroyed at the same time that
15 the registered bonds are issued in exchange therefor.
1 Section 65. No railroad corporation which has issued bonds Mortgage to
2 shall subsequently execute a mortgage upon its road, equipment and prevIous°iyds
3 franchise or upon any of its real or personal property, without in- isl^fase, § 3.
4 eluding in and securing by such mortgage all bonds previously g-_|' -^ 'Uj* •
5 issued and all its pre-existing debts and liabilities. p. s'. 112', § 64.
1 Section 66. All bonds or notes which are issued by a railroad feecct-£u;le8 co1"
2 corporation shall be binding and collectible in law, although nego- *|5| ™, § 5.
3 tiated and sold by it or its agents at less than par. 1874/372, § 52.'
J ° r P. S. 112, §65.
1 Section 67. If a railroad corporation, having executed a mort- Trustees
2 gage of its property, rights and privileges, or of a part thereof, to possession
3 trustees for the benefit of its general creditors or of a particular wftneorpora-
4 class of creditors, makes default in the performance of the condition ^ndto °Perate
5 of the mortgage so that the trustees or their successors are entitled ^'.esS'ia*.
6 to the actual possession and usufruct of the property, rights and P-s. 112, §66.
7 privileges therein conveyed, in trust for the purposes specified in
8 the mortgage, the trustees, after entry, instead of retaining actual
9 possession of the mortgaged premises and running the trains under
10 their own direction and on their own responsibility, may contract
11 with the corporation or other competent party to take or retain for
12 them the possession of the mortgaged premises, and to use and operate
13 the same on its own responsibility under the direction of its officers,
14 accounting with the trustees for the earnings and income, and pay-
15 ing over the net income and profits periodically, when and as far as
16 it may by the terms of the mortgage be necessary for the perform-
17 ance of its conditions, if at a meeting of the bondholders or creditors
18 under the mortgage, duly notified ten days before said meeting in
19 two or more daily newspapers published in the city of Boston and
20 in at least one newspaper in each county through which the road is
21 located, a majority in interest of the bondholders or creditors present
22 or represented so vote by each casting one vote personally or by
23 proxy for everyone hundred dollars held by him. All liabilities in-
24 curred by the corporation or other party in operating the road under
25 such contract shall be held as claims against and be paid out of the
26 income, in the same manner and to the same extent as if the property
27 had remained in the actual possession of the trustees and been
28 operated by them.
1 Section 68. Trustees in possession of a railroad under a Trustees in
./. • 1 1 l j • Tk \ possession to
2 mortgage shall annually notify a meeting, to be held in December, call annual
3 of the bondholders or creditors for whose security they hold the S&3f?H4&
4 road in trust, such notice to be published at least ten days before g^.O.Hi*,
5 such meeting, in two or more daily newspapers in the city of Boston **> U2> §§ ,i7-
6 and in at least one newspaper in each county through which the
7 road is located ; and at such meeting they shall submit a report for
8 the year, similar to the annual report of railroad directors to stock-
9 holders. If they fail to call such meeting, five or more bondholders
994
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. Ill
or creditors, whose claims secured by the mortgage amount to not 10
less than ten thousand dollars, may in the same manner call such 11
meeting, to be held in the January following said December. 12
Election and
confirmation
ot trustees.
1857, 178, § 4.
G. S. 63, § 127.
P. S. 112, § 69.
Section 69. At the annual meeting held under the provisions
of the preceding section, the bondholders or creditors may elect
three trustees under the mortgage, for the ensuing year and until
others are chosen and qualified, each bondholder or creditor casting
in person or by proxy one vote for every one hundred dollars due
and secured to him under the mortgage. And the trustees or any
of them or a bondholder or creditor may submit the proceedings of
the meeting to a justice of the supreme judicial court, in court or
at chambers, first giving notice of his intention to submit the pro-
ceeding's and to move for the confirmation thereof to the former
trustees under the mortgage, to the trustees of all other existing
mortgages upon the road and to the corporation, seven days at least
before the hearing thereon ; which notice may be served by an officer
or disinterested person. The justice may hear the parties, ratify
the election and make such order and decree as he may find neces-
sary and just to transfer the property to the new trustees ; which
order and decree shall be filed in the office of such clerk of the court
as the justice may direct.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Equity juris-
diction of
supreme
judicial court.
1857, 178, § 5.
G. S. 63, § 1-28.
P. S. 112, § 70.
127 Mass. 43.
171 Mass. 244.
Section 70. The supreme judicial court shall have jurisdiction
in equity of all cases arising under the provisions of the preceding
two sections, and of all questions arising out of railroad mortgages,
and may summarily remove a trustee under a railroad mortgage,
whether he is in possession of the railroad or not, and appoint a
new trustee in his stead.
1
2
3
4
5
6
Mortgage, etc.,
ot road to
common-
wealth.
Terms.
1838, 99, § 4.
G. S. 63, § 129.
P. S. 112, § 71.
Section 71. If a railroad corporation is required to convey its 1
road, franchise and property in pledge or mortgage to the common- 2
wealth to secure a loan or debt owing or to become due from it 3
to the commonwealth, the conveyance shall by its terms be of the 4
road, franchise and property of the corporation as the same exist 5
at the time of the execution of such conveyance, whether the cor- 6
poration has acquired a full title to the land upon which its road is 7
authorized to be made or not, or whether its road is completed or 8
not ; and the conveyance shall be in full force without a record 9
thereof. 10
— what prop-
erty bound by.
1838, 99, § 5.
G. S. 63, § 130.
P. S. 112, § 72.
Section 72. The conveyance shall, as against claims or encum- 1
brances to which the road, franchise or property may be thereafter 2
subjected, operate to cover and bind land included within the loca- 3
tion of the road, the title to which or the easement upon which shall 4
be thereafter acquired, and additions thereafter made to the road 5
by labor, materials or otherwise, and land thereafter purchased and 6
appropriated for depots for the road and buildings or fixtures placed 7
thereon, and also engines, cars or other apparatus placed upon the 8
road or procured therefor, as fully as if the road had been completed 9
and all said property had been acquired and owned by the corpora- 10
tion at the time of the execution of the conveyance ; but it shall not 11
include or affect personal property which may have been sold by the 12
Chap. 111.] railroad corporations and railroads. 995
13 corporation to a bona fide purchaser before the commonwealth took
14 possession thereof under the conveyance.
1 Section 73. The treasurer and receiver general shall forthwith Mortgage, etc.,
2 upon the delivery of all such bonds and mortgages cause them to W^o600
3 be recorded in the registry of deeds in each county and district p.' I' Ss»Vro.'
4 through which the road conve}red thereby may pass.
1 Section 74. A purchaser of a railroad at a sale under a valid ^fserunl1?'
2 foreclosure of a legal mortgage thereof and his successors in title foreclosure.
3 shall be subject to all and the same duties, liabilities and restrictions, m Mass. 244.
4 and have all and the same powers and rights, relative to the con-
5 struction, maintenance and operation of said railroad which the
6 mortgagor was subject to and had at the time of said sale.
1 Section 75. A contract for the sale of railroad or street railway conditional
2 rolling stock may stipulate that the title to the property sold or Itock/ rolllng
3 contracted to be sold shall not vest in the purchaser until the pur- 1894> 326, §§ *• *•
4 chase price is fully paid, or that the vendor shall have and retain a
5 lien thereon for the unpaid purchase money although possession
6 thereof may be delivered immediately or at any subsequent time,
7 and a contract for the leasing or hiring of such property may stipu-
8 late for a conditional sale thereof at the termination of such con-
9 tract, and that the rentals or amounts to be received thereunder
10 may, as paid, be applied and treated as purchase money, and that
1 1 the title to the property shall not vest in the lessee or bailee until
12 the purchase price shall have been paid in full and until the terms
13 of the contract shall have been fully performed, notwithstanding de-
14 livery to and possession by such lessee or bailee. No such contract
15 shall be valid as against any subsequent attaching creditor or any
16 subsequent bona fide purchaser for value and without notice unless
17 it is in writing executed by the parties and duly acknowledged by
18 the vendee, lessee or bailee before a magistrate authorized to take
19 acknowledgments of deeds, and in the same manner as deeds are
20 acknowledged, and recorded in the office of the secretary of the
21 commonwealth ; nor unless each locomotive, engine or car so sold,
22 leased or hired, or contracted to be sold, leased or hired as afore-
23 said, shall have the name of the vendor, lessor or bailor plainly
24 marked on each side thereof, followed by the word " owner", " les-
25 sor" or "bailor", as the case may be. The provisions of chapter
26 one hundred and ninety-eight shall not apply to such contracts.
fees.
1 Section 76. A contract authorized by the preceding section rcec°rd^con
2 shall be recorded by the secretary of the commonwealth in a book im,'m,§2,
3 to be kept for that purpose, and upon payment in full of the pur-
4 chase money and the performance of the terms and conditions stipu-
5 lated in such contract, a declaration in writing thereof may be made
6 by the vendor, lessor or bailor, or his assignee on the margin of the
7 record of the contract, duly attested, or it may be made by a sepa-
8 rate instrument, to be acknowledged by the vendor, lessor or bailor,
9 or his assignee, and recorded as aforesaid. A fee of five dollars
10 shall be paid to the secretary of the commonwealth for recording
11 such contract or declaration, and a fee of one dollar for noting such
12 declaration on the margin of the record.
996
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Taking stock
or bonds in
other corpora-
tions.
1868, 347, § 1.
1872, 53, §17;
180, § 2.
1874, 372, § 53.
P. S. 112, § 74.
TAKING STOCK, ETC., OF OTHER CORPORATIONS.
Section 77. No railroad corporation, unless authorized by the 1
general court or by the provisions of the following five sections, shall 2
directly or indirectly subscribe for, take or hold the stock or bonds 3
of or guarantee the bonds or dividends of a,ny other corporation ; 4
and the amount of the bonds of one or more other corporations 5
subscribed for and held by a railroad corporation, or guaranteed by 6
it conformably to special authority of the general court or the au- 7
thority given in said sections, with the amount of its own bonds 8
issued in conformity with sections sixty-three and sixty-four, shall 9
not exceed at any time the amount of its capital stock actually 10
paid in cash. 11
Taking stock
in a telegraph
company.
1849, 93, § 8.
G. S. 63, § 12.
1874, 372, § 54.
P. S. 112, § 75.
Section 78. A railroad corporation may hold stock in a tele- 1
graph company whose telegraph connects two or more places on the 2
railroad to an amount not exceeding two hundred dollars for each 3
mile of railroad so connected. 4
Guaranty of
bonds in steam-
ehip com-
panies.
1868, 347, § 2.
1874, 372, § 55.
P. S. 112, §76.
Section 79. A railroad corporation may guarantee, to an amount 1
not exceeding five per cent of its capital stock, the bonds of any 2
corporation incorporated by the general court for the purpose of 3
carrying freight, passengers and mails between any port of this 4
commonwealth and Europe ; or, upon adequate security therefor, 5
may issue its own bonds to the same amount, conformably to the 6
provisions of section sixty-three. 7
portion may Section 80. A railroad corporation may become an associate 1
become asso- under the provisions of chapter one hundred and ten in the forma- 2
ciate in grain x x _
elevator cor- tion oi a corporation tor the purpose ot erecting and operating a 3
poration . ... ° *
1874, 384,'§§ i, 2. grain elevator within this commonwealth, and may take stock in any 4
78. ' ' ' ' elevator corporation so organized and at all meetings and in all 5
transactions of such elevator corporation, the president of the rail- 6
road corporation, or in his absence any officer appointed by its board 7
of directors, may represent, act and vote in the name of such rail- 8
road corporation. 9
roadsemayg Section 81. If two corporations own and operate connecting
guarantee each railroads wholly constructed, either corporation may guarantee the
other's bonds. J. ' \ 1 j
1870, 325, § 4. bonds ot the other, upon such terms and to such an extent as may
be authorized at a meeting called for the purpose, if the bonds so
guaranteed do not exceed the amount of the capital stock of the
corporation by which they were issued which has been actually paid
in cash by its stockholders, and if they are in all other respects
issued in conformity with law.
1871, 384
1874, 372, § 56.
P. S. 112, § 79.
Railroad cor-
porations may
aid in con-
struction of
branches, etc.
1874, 351, §4;
372, § 57.
P. S. 112, § 80.
171 Mass. 239.
Section 82. A railroad corporation may aid in the construction
of any branch or connecting railroad within the limits of this com-
monwealth, whether connecting by a railroad or steamboat line, by
subscribing for shares of stock in such corporation, or by taking its
notes or bonds to be secured by mortgage or otherwise, and may
vote on all shares of stock so subscribed for and held ; but no corpo-
ration shall so subscribe to an amount in excess of two per cent of
its paid-up capital stock, or mortgage its property to secure the
1
2
3
4
5
6
7
8
1
2
3
4
5
6
7
8
Chap. 111.] railroad corporations and railroads. 997
9 loans or subscriptions made by any other corporation under the
10 provisions of this section, except by a vote of a majority in interest
11 of the stockholders at a meeting called for that purpose.
BOOKS AND RETURNS.
1 Section 83. Eailroad corporations shall keep their books and Books, ac-
. . „ r .-I, counts and an-
2 accounts in a unitorm manner, upon the system prescribed by the nual returns.
3 board, and shall at all times submit their books to the inspection of i837,-226, §5.*
4 the board or of any committee of the general court which may ilii, it'. § 2*
5 be authorized to inspect them; and the directors shall annually, lis?; 102; |§i!' *'
6 on or before the first Wednesday of September, transmit to the i^;tl;
7 board a report of their doings for the year ending on the thirtieth ilJT'lio8™
8 day of June preceding, which shall be called the annual return and ^|VAf-
9 which shall be sworn to by them and by the treasurer and the 134. '
10 chief accounting officer of the corporation. Such report shall state i863| 224,' § 1.'
11 whether any fatal accident or serious injury has occurred to a pas- is69!«y '
12 senger or other person upon the road during the year, and, if so, jljl0'307'51'
13 the cause of such accident or injury and the circumstances under J|^> ^ § 52>
14 which it occurred ; shall set forth copies of all contracts or leases J||*> |?|> f^.
15 made with other railroad corporations during the year and specify u' ' '
16 the receipts and expenditures under the same ; and shall include a i889,'328,'§i. '
17 detailed statement of all particulars relative to the railroad, its busi-
18 ness, receipts and expenditures during the year, in such form as
19 shall from time to time be prescribed by the board under the pro-
20 visions of section twenty-six. The books of each corporation shall
21 be so kept that returns may be made in exact conformity with the
22 form so prescribed ; and the accounts shall be closed on the thirtieth
23 day of June in each year, so that a balance sheet of that date can
24 be taken therefrom and included in the return.
1 Section 84. At the time of making such annual return, each u^and^e8"
2 railroad corporation shall pay to the treasurer and receiver general ^e[3f^e3raL
3 twenty dollars, which shall be applied to the payment of the expense mm! w£ § ^
4 of the printing and binding of the returns of the several railroad r.'s. 112', § 82/
5 corporations.
1 Section 85. Every railroad corporation which operates a rail- &8terlyre-
2 road within this commonwealth shall, within fifty days after the ex- ig». *}•
3 piration of each quarter of the calendar year, transmit to the board
4 a quarterly statement of its business and financial condition, in such
5 form and with such detail as the board may require, which shall at
6 reasonable times be open to public inspection. A railroad corpora-
7 tion which neglects to comply with the provisions of this section shall
8 forfeit fifty dollars for each day during which such neglect continues.
1 Section 86. Every railroad corporation shall, during the con- Lessee ofroad
2 tinuance of any lease which it has taken of the railroad of another tarasreqniwd
3 corporation, make all the returns required of the lessor, and pay the ise*. iot.'s »■
4 fee required by section eighty-four ; and during the continuance of 187v m\ s 173.
5 such lease, the lessor shall not be required to make such returns P.s.ua,S88.
6 or payment, if, when requested by the lessee, the lessor furnishes
7 all the information in its possession needed to make such returns ;
8 but if a railroad in this commonwealth is leased to a lessee in
998
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
another state, the lessors in this commonwealth shall make the 9
annual return and payment. 10
Penalty for
neglect to
make annual
return.
R. S. 39, § 82.
1851, 10-2, § 2.
1857, 40, § 6.
G. S. 63, § 135.
1863, 224, Vi.
1864, 167, § 2.
1874, 372, § 174.
P. S. 112, § 84.
Section 87. Every railroad corporation which neglects to make 1
the annual return within the time prescribed in section eighty- 2
three, or to make the payment prescribed in section eighty-four, or 3
to supply defects and omissions within fifteen days, when pointed 4
out by the board as provided in section twenty-six, shall forfeit, in 5
each case, fifty dollars for each day during which such neglect con- 6
tinues : and if a corporation unreasonably refuses or neglects to make 7
a report or return as prescribed by section eighty-three, it shall 8
forfeit for every such refusal or neglect not more than five thousand 9
dollars. 10
LOCATION AND CONSTRUCTION OF RAILROAD.
Conditions Precedent.
Prerequisites Section 88. A railroad corporation shall not locate or begin to 1
railroad. construct its road or a branch or extension thereof, or enter upon 2
g. s. 63,'§ 7.' and use land or other property, except for making surveys, until a 3
18781 215; || \\ I sworn estimate of the total cost of constructing the same, prepared 4
p8s'.ii2,§§85t' by ^s chief engineer, has been submitted to the board and approved 5
86, 136. by jt . nor until the board is satisfied that an amount of the capital 6
stock of the corporation equal to at least fifty per cent of such 7
estimated cost has been actually subscribed by responsible parties 8
without any condition which invalidates the subscription, and that 9
twenty per cent of the par value of each share has been actually paid 10
in ; and that the authority and consent required by section ninety- 11
eight have been obtained ; nor until the clerk of the board, upon its 12
order, has filed a certificate with the secretary of the commonwealth 13
that the provisions of this section have been observed ; nor until 14
the corporation has paid to the secretary a fee of fifty dollars for 15
filing such certificate. The supreme judicial court shall have juris- 16
diction in equity if the board certifies a location before ascertaining 17
that the authority and consent required by section ninety-eight have 18
been obtained. The certificate of a master in chancery or a justice 19
of a court of record for the county in which a subscriber resides 20
that he owns property in his own name equal in value, above all 21
encumbrances, to the amount of his subscription shall be conclusive 22
evidence of his responsibility. If the board refuses its approval to 23
an estimate or a subscription list so submitted, it shall in writing 24
state its reasons therefor in detail at the time and shall include them 25
in its next annual report. 26
Section 89. No railroad or part thereof which is operated by 1
steam power shall hereafter be located or constructed within three 2
miles of the state house without the previous consent in writing of 3
the board and of the mayor and aldermen of any city or of the 4
selectmen of any town in which the location is sought. 5
Location not
to be within
three miles of
state house.
1882, 265, § 4.
Location and
construction.
R. S. 39, § 54.
1853, 351, § 1.
G. S. 63, § 17 .
Laying out Railroad.
Section 90. A railroad corporation may lay out its road not 1
more than five rods wide ; and for the purpose of cuttings or em- 2
bankments or of procuring stone and gravel and for depot and sta- 3
Chap. 111.] railroad corporations and railroads. 999
4 tion purposes may purchase or otherwise take, in the manner mm, 372, § 58.
5 hereinafter provided, as much land as may be necessary for the g^tsfL? 88'"
6 proper construction and security of its road. u Gray, 93, 553. tr^Si
109 Mass. 527. 118 Mass. 391. 134 Mass. 14. 161 Mass. 387. 4 Grav' toi
113 Mass. 277. 124 Mass. 368. 141 Mass. 481. 167 Mass. 369. w«Wi»«.
1 Section 91. The corporation shall, Avithin one year after the ramp of the
2 filing of the certificate of the clerk of the board with the secretary Rs^'s 75.
3 of the commonwealth as provided in section eighty-eight, file with %-f'ifi V5I
4 the commissioners of each county through which the proposed road Hif ' If f ' |A 4
5 may pass the location of the road as laid out, defining the courses, p. s'. 112, §§ 89,'
6 distances and boundaries of such portion of it as lies within each 2 Gray, sso.
7 county, certified by the clerk of the board, and in such form and 127 Mast 57I
8 with such other particulars as may be required by the rules of the ]i\ Mass! If1'
9 board; and until such location has been duly filed, the corporation ue MaBS- 194#
10 shall not enter upon or use any land or other property, except for
11 making surveys. The supreme judicial court shall have jurisdiction
12 in equity of any violation of the provisions of this section by any
13 entry upon or use of lands.
1 Section 92. The corporation may, within one year after it has Location of
2 purchased or acquired land for railroad purposes, file with the com- Faxfdhased
3 missioners of each county in which such land is situated a location 1895> 356,
4 thereof, defining the courses, distances and boundaries of such land
5 and certified by the clerk of the board in such form and with such
6 other particulars as the rules of the board may require.
1 Section 93. A railroad corporation, having taken land for its Direction of
2 road, may vary the direction of the road in the city or town in varied!*7 e
3 which such land is situated ; but it shall not locate any part thereof r33!.^'^.
4 outside the limits of the route fixed under the provisions of sections §74,'3?i, §59.
5 forty-two and forty-three, without the consent in writing of the fgraylko90'
6 mayor and aldermen or selectmen, if it was fixed under the provi- 109 Mass. 528.
7 sions of section forty-two, or of the board, if it was fixed under the
8 provisions of section forty-three. The corporation shall, before the
9 expiration of the time required for completing the road, file with
10 the county commissioners the location of the different parts where
11 such variations have been made ; but the time for completing the
12 road shall not be extended in consequence of such variations.
1 Section 94. A railroad corporation, with the approval in writing improvement
2 of the board obtained upon petition and after due notice to all persons Sot So™"0
3 interested, may, for the purpose of improving the alignment of its 161MasB-<
4 road, change its location, subject to the provisions of this chapter
5 relative to the fixing of the route of railroads, the laying out of the
6 same and the taking of land and the payment of damages therefor.
1 Section 95. Ifa railroad corporation, for the purpose of making Limits of jand
2 or securing its road or for depot or station purposes, requires land |?route,how
3 or materials outside the limits of the route fixed, or requires addi- wj^ 148,5 8.
4 tional land for one or more new tracks adjacent to other land occu- J^* ${ffi
5 pied by such corporation by a track or tracks already in use, and is &fft\$
6 unable to obtain it by agreement with the owner, it may apply to «£!«&
7 the county commissioners, who, after notice to the owner, may pre- iyf.iMi,s9i.
8 scribe the limits within which it may be taken without his permis- 119 Mass. sie.
1000
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
141 Mass. 481.
161 Mass. 387.
sion in the manner hereinafter provided ; and the corporation shall, 9
within one year after the decree, file with the commissioners of each 10
county in which the land is situated, a location thereof, duly certified 11
by the clerk of the board, defining the courses, distances and boun- 12
daries thereof, in such form and with such other particulars as the 13
rules of the board may require. If highways, buildings, parks or 14
cemeteries are to be taken, the consent of the city or town in 15
which the land is to be taken shall first be obtained. 16
Land outside
limit taxable.
1853, 351, § 3.
G. S. 63, § 20.
1874, 372, § 62.
Section 96. Land outside the limits of the route fixed as afore- 1
said, which is taken or purchased for railroad, depot or station pur- 2
poses shall not be exempt from taxation. 3
P. S. 112, § 92.
1895, 356.
4 Met. 564.
8 Cush. 237
Rules as to
form, etc., of
records, etc.
1878, 135, § 2.
P. S. 112, § 93.
Section 97. The board shall, from time to time, prescribe rules 1
relative to the form in which all records of locations of railroads 2
shall be made, the particulars to be contained therein and the man- 3
ner in which such records shall be uniformly kept for preservation 4
and convenient reference in the offices of the clerks of the several 5
counties. No such record shall be filed until the clerk of the board 6
certifies thereon that it has been prepared in conformity with the 7
rules of the board. 8
136.
Taking Land and Damages therefor.
fo"tal?nsrlte8 Section 98. No railroad corporation shall take, by purchase or
land otherwise, or enter upon or use, except for making surveys, any
p.^s. ii2, §§ 94,' land or other property for the construction of its road or of any
branch or extension thereof until the county commissioners of the
county in which such land or other property is situated, after hear-
ing the parties, have determined the manner in which the railroad
shall cross the highways and other ways within such county, nor
until it has obtained from the board the consent required by sections
one hundred and twenty-four and one hundred and twenty-eight in
all cases in which the county commissioners adjudge that public
necessity requires the crossing at the same level ; and notice of such
hearing shall be given by publication for three successive weeks in
one or more newspapers published in such county, the last publica-
tion to be at least seven days before the hearing. The supreme
judicial court shall have jurisdiction in equity of violations of the
provisions of this section.
1
2
3
4
5
6
7
8'
9
10
11
12
13
14
15
16
Taking land,
and damages
therefor.
1833, 187, § 1.
1834, 137, § 1.
1835, 148, § 3.
P. S. 39, §§ 55,
5K, 63, 76.
1849, 153.
1853, 351, § 1.
1854, 448, § 33.
G. S. 63, §§ 19,
21, 36, 39.
1874, 372, § 63.
P. S. 112, § 95.
23 Pick. 376.
3 Met. 380.
3 Cush. 107.
4 Cush. 291, 467.
Section 99. If a railroad corporation is not able to obtain by 1
agreement with the owner the land or materials necessary for its 2
purposes as described in sections ninety, ninety-one, ninety-three 3
and ninety-five, it may take the same. It shall pay all damages 4
caused by laying out, making and maintaining its road, or by taking 5
land or materials therefor ; and such damages, upon the application 6
of either party, shall be estimated by the county commissioners in 7
the manner provided with reference to the laying out of highways ; 8
and if it is intended to take land or materials, application may be 9
made before the actual taking and appropriation thereof. 10
10 Cush. 385.
11 Cush. 506.
12 Cush. 224, 605.
2 Gray, 1.
4 Gray, 301.
14 Gray, 553.
7 Allen, 313.
14 Allen, 57.
103 Mass. 1, 10.
105 Mass. 303.
107 Mass. 352.
109 Mass. 527.
113 Mass. 52, 277.
121 Mass. 124.
124 Mass. 118.
125 Mass. 1.
127 Mass. 571.
141 Mass. 174.
144 Mass. 139.
152 Mass. 506.
Chap. 111.] railroad corporations and railroads. 1001
1 Section 100. No application to the county commissioners to Limitation of
2 estimate damages for land or other property taken shall, except as is i^ St^1!8"
3 provided in sections one hundred and fourteen to one hundred and f; §'• ^'| ;j|-
4 sixteen, inclusive, be sustained, unless it is made within three years ji&gjf'-
5 after the filing of the location.
1874, 372, § 64. P. S. 112, § 96. 7 Met. 78. 7 Gray, 389, 450.
1 Section 101. Upon application to the county commissioners by securities for
2 either party for an estimate of damages, they shall, if requested by coTts!scs and
3 the owner, require the corporation to give security to their satisfac- iH; \fg't | f ;
4 tion for the payment of all damages and costs which may be awarded ^fl9^61-
5 by them or by a jury for the land or other property taken ; and if, g-| '•&• §3|-
6 upon petition of the owner and notice to the adverse party, any p. s. 112, § 97.
• 127 Mass 50
7 security taken appears to them to have become insufficient, they shall 153 Mass! 565.
8 require the corporation to give further security to their satisfaction.
1 Section 102. After the county commissioners have made their Tender to
2 estimate, the corporation may tender to the owner of the land or 1833, 187, §4.
T? ft QO £ ft*)
3 other property the amount of damages estimated, in full satisfaction g. s. 63, § 35!
4 thereof, with costs. pJl.iil,!!!'.
1 Section 103. Either party, if dissatisfied with the estimate of the Application
2 county commissioners, may, at any time within one year after it has i833?i87?§ 1.
3 been completed and returned, apply for a jury to assess the damages. itfs.¥^§§ 57,
4 If no such application is made, the commissioners, after the expira- i^1)125j§3.
5 tion of said year, may issue warrants of distress to compel the pay- ^ ef.'l 22,
6 ment of the damages, with interest and costs. 37. '
o ' lb 1 A, 2bl.
1874,372,5 67. 21 Pick. 258. 119 Mass. 485. 128 Mass. 347.
P. S. 112, § 99. 1 Gray, 72. 125 Mass. 483. 139 Mass. 173.
1 Section 104. When either party applies for a jury to assess the Proceedings.^
2 damages, the proceedings shall be the same as are provided for the r. s. 39,'§§ 56, '
3 recovery of damages in the laying out of highways ; but upon such iS36, 278, § 2.
4 application, the prevailing party shall recover costs. If the owner iHg;!!:83,
5 has refused the tender mentioned in section one hundred and two, g.s.63,§§21,
6 he shall pay all costs caused by the application and arising after g^^Mf^
7 the tender unless, upon the final hearing, he recovers a greater isMct. .ws.
8 amount of damages than the amount tendered. If the corporation scusIuJl^
9 applied for the jury, and upon the final hearing the damages esti- 135 Maes". sm
10 mated by the county commissioners are not reduced, it shall pay all 139
11 costs caused by the application.
1 Section 105. If the corporation does not pay the amount of gg^JS^we.
2 damages awarded by the jury within thirty days after such aAvard, g&fM8-
3 a warrant of distress or execution may issue to compel the payment *f «y»
4 thereof with costs and interest. m Mass. 50. p. sf. 1 12", § loi.
1 Section 106. After a railroad corporation has taken land or £■»«£•*
2 other property in the manner hereinbefore authorized, it shall, before ggoi^. ? |
3 proceeding to construct the road, furnish a plan of the land to the zj.wjif
4 owner, and, upon request of the owner or occupant, shall fence it G.d.«j.'fM.
5 and, upon demand made by the owner of such other property within ^.StiA.
6 three years after the taking thereof, shall, within thirty days, furnish Jg^SJ;
7 him with a plan or description thereof in writing.
1002
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Right to use
of land sus-
pended, when.
1833, 187, §§ 2, 3.
R. S. 39, §§ 60,
61.
1854, 2.
1855, 9, §§ 1-3.
G. S. 63, §§ 32-
34,45.
1874, 372, §§ 65,
67, 69, 70, 72.
P. S. 112, §§ 97,
99, 101, 102, 104.
127 Mass. 50.
Section 107. All the right and authority of a railroad corpora- 1
tion to enter upon and use land or property taken by it, except for 2
making surveys, shall be suspended until it gives the security re- 3
quired by section one hundred and one ; or, if for thirty days after 4
a warrant has issued under the provisions of section one hundred 5
and three, it neglects to pay the same, until payment thereof; or 6
until it satisfies a warrant or execution issued under the provisions 7
of section one hundred and five ; or until it delivers a description 8
or plan as required by section one hundred and six ; and during the 9
time in which its right to enter upon or use land or other property 10
is so suspended, the supreme judicial court, upon petition of an 11
owner of the land or other property, shall have jurisdiction in equity 12
to prohibit and restrain the corporation from entering upon or using 13
such land or property. 14
Change of
location by
county com-
missioners,
when.
1872, 53, §13;
180, § 3.
1874, 372, § 71.
P. S. 112, § 103.
Section 108. An owner of land who is aggrieved by the loca- 1
tion of a railroad crossing his land in such manner as to be of 2
grievous damage, which could be avoided without serious injury to 3
others, may, within thirty days after receiving the plan of his land 4
as provided in section one hundred and six, petition the commis- 5
sioners of the county in which the land lies, who shall give due 6
notice land hear the parties, either at their regular meeting or at a 7
meeting called by their chairman for the purpose. If it appears 8
that such location will greatly and unnecessarily damage the peti- 9
tioner and that it can be so changed as to entirely or partially avoid 10
such damage without material detriment to the line of the railroad 11
and without great injury to other parties, the commissioners shall 12
change such location accordingly. They shall give to each party a 13
certificate of their determination within sixty days after receiving 14
the petition. The compensation of the commissioners, not exceed- 15
ing five dollars each a day and their necessary expenses, which shall 16
be retained to their own use, and the costs of the petition, shall be 17
paid by the corporation ; but if the commissioners decide that the 18
petition was frivolous, such compensation, expenses and costs shall 19
be paid by the petitioner. 20
Jurisdiction of
commissioners
over land in
contiguous
counties.
1853, 5, §§ 1, 2.
G. S. 63, § 23.
1874, 372, § 73.
P. S. 112, § 105.
Section 109. If land which is owned by one person lies con-
tiguously in different counties, an application for damages under the
provisions of section ninety-nine may be made by the owner of the
land to the commissioners of any of such counties ; and the com-
missioners of the county to whom application is first made shall
have exclusive jurisdiction, with like powers and duties as are set
forth in said section and section one hundred and eighteen ; and
either party may apply for a jury as provided in section one hun-
dred and three, and such jury shall be from the same county as the
commissioners, and shall estimate such damages as though the land
lay entirely in one county.
1
2
3
4
5
6
7
8
9
10
11
touttSmay^e. Section 110. If land or other property of a person who is
Ra|e iatW es' un(^er guardianship or if land which is held in trust is taken for the
g!_s.' 63,' § 24.' use of a railroad, the guardian or trustee may release all damages,
p. s. ii2, § 106. in like manner as if the land or other property were held in his own
right.
1
2
3
4
5
Chap. 111.] railroad corporations and railroads. 1003
1 Section 111. If a tenant for life or for years and the remainder- Assessment of
2 man or reversioner claim damages for the laying out or alteration df«K?ifn-r
3 of a railroad or if it appears that the real estate taken or affected is f^f^t §§ 2 2
4 encumbered by a contingent remainder, executory devise or power g.s'. 63,'§25.'"
5 of appointment, the damages shall be assessed and paid over and 1875> ml §§ M-
6 disposed of in the manner provided in sections seventeen, eighteen,
7 nineteen and twenty-six of chapter forty-eight relative to damages
8 assessed in like cases in laying out highways.
1 Section 112. If the land is mortgaged, both the mortgagor - when lands
2 and the mortgagee, in addition to their rights under the mortgage, i855"^f§§gi^d'
3 shall have the same powers, rights and privileges, and be subject to g\5s.63 §26
4 the same liabilities and duties, as are provided in this chapter for p7f nf t^L
5 land owners in cases of damages arising under the provisions of e Gray, 470.
6 section ninety-nine ; and all petitions for the estimation of such
7 damages shall state all mortgages which are known by the petitioner
8 to exist upon the premises. Mortgagors and mortgagees may join
9 in any such petition, and the tribunal to which it is presented shall
10 order the petitioner to give notice thereof to all parties who are hi-
ll terested as mortgagors or mortgagees, by serving on each of them,
12 fourteen days at least before the time of hearing, an attested copy
13 thereof and of the order thereon, that they may become parties to
14 the proceedings.
1 Section 113. If mortgagors or mortgagees commence or be- Apportion-
2 come parties to such proceedings, entire damages shall, upon final ™£eS.° am'
3 judgment, be assessed for the property taken, and such portion g~!.68,'/!£"*
4 thereof shall be ordered to be paid to every mortgagee who is a p^l'.iilllog.
5 party in the order of his mortgage, as is equal to the amount then 5Gray,47o.
6 unpaid thereon, and the balance to the mortgagor; and separate
7 judgment shall be entered accordingly for each mortgagee, who
8 shall hold his judgment in trust, first, with any proceeds realized
9 thereon, to satisfy his mortgage debt, and, after such debt is in any
10 way satisfied, to assign the judgment or pay over any balance of
11 proceeds to the mortgagor or other person entitled thereto.
1 Section 114. If the time for locating or constructing a rail- ggfSStoSJ;
2 road shall be extended by statute, all unsettled claims against the ^nn^revive
3 corporation for damages to land shall be revived, and the claimants JgJJg.w
4 for such damages may apply to the county commissioners, or for a r. s. 112, § iio.
5 jury, if the estimate of the commissioners has been completed and
6 returned, within one year after the passage of such statute. The
7 provisions of this section shall not include cases in which, by rea-
8 son of a defect in the original location of a road already constructed,
9 a new location is rendered necessary.
1 Section 115. If a suit is brought in which the right of the cor- Apportion
2 poration to lay out and construct its road on a particular location is withtaone
3 drawn in question, applications to the county commissioners for the S^naata*
4 estimation of damages caused by the taking of land or property gjffi.01
5 within such location maybe made within one year after the final gf|^.«^
6 determination of such suit upon the merits, if such suit is brought ^s.eMsfc
7 within one year after the time of such taking, or is brought for the f-Agty™
8 purpose of trying the same right which was drawn in question in an m Maw, m
1004
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
earlier suit which was commenced within one year after the time of 9
taking and which failed for want of jurisdiction, defect of form or 10
other like cause which was not decisive of the merits of the con- 11
troversy, and is brought within six months after the determination 12
of such former suit. 13
New applica-
tion if proceed-
ings are
quashed.
1847, 181, § 2.
G. S. 63, § 31.
1874, 372, § 80.
P. S. 112, § 112.
125 Mass. 484.
Section 116. If a person applies for an estimate of his damages 1
within the time limited by law, or applies for a jury to assess the 2
damages, or is a party to such application by another person for a 3
jury, and the petition or other proceeding is quashed, abated or 4
otherwise avoided or defeated for any inaccuracy, irregularity or 5
matter of form, or if, after verdict for such applicant or other party, 6
the judgment is arrested or reversed on a writ of error, or the pro- 7
ceedings are quashed on certiorari, such applicant, petitioner or 8
other party may commence such proceedings anew at any time 9
within one year after such abatement, reversal or other determina- 10
tion. 11
Damages for
elevated rail-
ways.
1890, 368, § 2.
Construction,
etc., of em-
bankments
may be
ordered.
1841, 125, §§ 1, 3.
G. S. 63, § 40.
1874, 372, § 81.
P. S. 112, $ 113.
154 Mass. '314.
Section 117. The building or use of a railway in any public
way in the manner described in section one hundred and ninety-
nine shall create a new servitude, for which any person who is
injured may recover damages in the manner provided in the preced-
ing nineteen sections and all the provisions of this chapter relative to
security for damages shall apply thereto. For the purpose of esti-
mating such damages, the abutters on such ways shall be considered
to be the owners of the fee thereof to the centre of such way ; and
the bonds of such railwaj^s provided for in this chapter shall be
approved by a justice of the superior court instead of the county
commissioners.
At the time of estimating damages to land owners
Embankments, Fences, etc
Section 118
under the provisions of section ninety-nine, the county commis
sioners shall in addition thereto order the corporation to construct
and maintain such embankments, culverts, walls, fences or other
structures as they judge reasonable for the security and benefit of
such owners, and shall prescribe the time and manner of making or
repairing them, and it shall not be competent for a jury to reverse
such order.
1
2
3
4
5
6
7
8
9
10
11
1
2
3
4
5
6
7
8
Enforcement
of order.
1841, 125, § 2.
G. S. 63, § 41.
1874, 372, § 82.
P. S. 112, § 114.
6 Cush. 420.
1 Gray, 614.
Section 119. If the corporation neglects to comply with such 1
order, the supreme judicial court, upon application of the land 2
owner or his assigns who is interested in its execution, shall have 3
jurisdiction in equity to enforce the specific performance thereof. 4
Or if the corporation, for more than forty-eight hours after notice 5
of such neglect, given in writing to the president or superintendent, 6
fails to commence the work required to be done, or thereafter un- 7
reasonably delays to complete it, the person so interested may, in 8
an action of tort against the corporation, recover double the 9
damages sustained by him by reason of the neglect. 10
Section 120.
Fences.
1846, 271, §§ 3, 4.
tain suitable fences, with convenient bars, gates or openings therein,
Every railroad corporation shall erect and main- 1
w- upon both sides of the entire length ot its railroad, except at the 6
Chap. 111.] railroad corporations and railroads. 1005
4 crossings of a public way or in places where the convenient use of 18?*> 372, § 84.
5 the road would be thereby obstructed, and except at places where, p. s'. 112', § 115.
6 and so long as, it is specially exempted from the duty of so doing loc'ush.' 12.
7 by the board. Such an exemption granted prior to the first day of lAiufn,'^05'
8 August in the year eighteen hundred and eighty-two shall not be re- ?02JMafs5383
9 voked except upon new proceedings had under the provisions of this {nf jj!pSB' ]??•
10 section, notice of which shall be given to the corporation interested, losMassim
11 and published once in each of three successive weeks in a newspaper 564.
12 published in each county in which the land is situated. The cor- ill Mast 2I8'
13 poration shall also construct and maintain sufficient barriers, where 157 mIss! 297!
14 it is necessary and practicable so to do, to prevent the entrance of
15 cattle upon the road. A corporation which unreasonably neglects
16 to comply with the provisions of this and the following section shall,
17 for every such neglect, forfeit not more than two hundred dollars
18 for every month during which the neglect continues ; and the
19 supreme judicial court shall have jurisdiction in equity to compel
20 the corporation to comply with such provisions, and, upon such
21 neglect, to restrain and prohibit it from crossing a highway or
22 town way, or from using any land, until such provisions shall have
23 been complied with.
1 Section 121. If a person other than the railroad corporation is cost of fenc-
2 required by law or contract to erect or maintain fences along a part cofWedfrom
3 of the line of the railroad, the corporation shall erect such fences llra,0^^?'
4 or keep them in repair as provided in the preceding section, and S2Mass.24.16i
5 may recover the reasonable cost thereof in an action of contract
6 from such person. If he is an owner of land adjoining such line,
7 the corporation shall also have a lien upon said land for labor
8 performed and furnished and all materials furnished and used by
9 it in erecting and repairing such fences, upon such land and for
10 the costs which may arise in enforcing it ; and it shall be enforced
11 in the manner provided for enforcing liens in chapter one hundred
12 and ninety-seven.
Crossings.
1 Section 122. If two or more railroad corporations whose separaMonof
2 tracks cross each other at the same level agree to separate the fn»-s by^gree-
3 grades, they may apply to the board, which shall thereupon deter- mh'm.
4 mine when, in what manner and by which corporation said work p- s- m- § m-
5 and each portion thereof shall be done, and shall apportion all
6 charges and expenses caused by making such alterations and all
7 future charges for keeping the necessary structures connected there-
8 with in repair among said corporations. For said purposes, the
9 corporations may, under the direction of the board, make all neces-
10 sary changes in the location, grade and construction of said rail-
11 roads and, so far as may be necessary, may take additional land
12 therefor, and may raise, lower or otherwise change any and all
13 highways and town ways ; and in the exercise of said powers said
14 corporations, and any person who sustains any damage thereby,
15 shall have all the rights, privileges and remedies, and be subject to
16 all the duties, liabilities and restrictions provided by law in the
17 case of land taken by railroad corporations. The supreme judicial
18 court shall have jurisdiction in equity to enforce compliance with
19 all such orders of the board.
1006
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Crossings of
one railroad
with another,
or over navi-
gable waters.
1872, 53, § 12;
180, § 3.
1873, 121, § 4.
1874,122; 372,
§85.
1881, 156.
P. S. 112, § 118.
125 Mass. 253.
Section 123. No railroad shall be constructed across another 1
railroad at the same level without the consent in writing of the 2
board, nor across navigable or tide waters without the consent 3
in writing of the board of harbor and land commissioners, and 4
in such manner as said boards, respectively, shall prescribe, nor 5
across any portion of the deep channel of Boston harbor below the 6
bridges existing on the thirtieth day of March in the year eight- 7
een hundred and eighty-one, without special legislative authority. 8
Any littoral proprietor whose access to the sea is obstructed 9
or interrupted by the location and construction, after said day, 10
of any railroad across tide water, otherwise than by a bridge with 11
a suitable draw, may recover all damages caused by such loca- 12
tion and construction of the corporation whose railroad is so lo- 13
cated, in the same manner and with the same rights as to security 14
as are provided by law in relation to damages caused by laying 15
out and maintaining railroads ; but this provision as to damages 16
shall not apply to any railroad constructed under the provisions of 17
chapter two hundred and fifty-two of the acts of the year eighteen 18
hundred and eighty. Associates for the purpose of constructing a 19
railroad under the provisions of section thirty-five, or a corporation 20
which proceeds to construct its road or branch or extension thereof, 21
shall not take proceedings which involve a new crossing of one 22
railroad by another at the same level, unless such crossing is first 23
approved in writing by the board ; and every preliminary approval 24
of a plan for such crossing shall be subject to revision by the board. 25
The supreme judicial court shall have jurisdiction in equity, upon 26
information filed by the attorney general, of violations of the pro- 27
visions of this section. 28
Railroad,
crossing a
highway, not
to obstruct
the same.
R. S. 39, § 66.
1846, 271, § 1.
G. S. 63, §§ 46,
47.
1874, 372, § 86.
1876, 73.
P. S. 112, § 119.
14 Gray, 379.
14 Allen, 444.
Section 124. A railroad which is laid out across a public way 1
shall be so constructed as not to obstruct the same ; and, unless 2
the county commissioners and the board authorize a crossing at 3
the same level as provided in section one hundred and twenty-eight, 4
it shall be constructed so as to pass either over or under the way, 5
as prescribed in 'the following section, and conformably to any 6
decree which may be made by the county commissioners under the 7
provisions of section one hundred and twenty-six. 8
Space under
bridge regu-
lated.
1846, 271, § 1.
G. S. 63, § 47.
1874, 372, § 87.
1875, 219.
P. S. 112, § 120.
130 Mass. 361.
176 Mass. 145.
Section 125. If the railroad is constructed to pass over the 1
way, a sufficient space shall be left under the railroad conveniently 2
to accommodate the travel on the way. If the railroad is constructed 3
to pass under the way, the railroad corporation shall build such 4
bridges, with their abutments and suitable approaches thereto, as 5
will accommodate the travel upon the way ; but no bridge for any 6
purpose shall be constructed over a railroad at a height less than 7
eighteen feet above the track of such railroad, except by the consent 8
in writing of the board. The supreme judicial court shall have ju- 9
risdiction in equity to enforce compliance with the provisions of 10
this section. 11
may
be raised or
Section 126. A railroad corporation may raise or lower a 1
lowered under public way for the purpose of having its road pass over or under 2
county com- the same ; but before proceeding to cross or to alter or exca- 3
S3l!T87?r§S5. vate for the purpose of crossing the way, it shall obtain from the 4
Chap. 111.] railroad corporations and railroads. 1007
5 county commissioners a decree prescribing what alterations may be r. s. 39, § 67.
6 made in the way and the manner and time of making the alterations alvli'f^.
7 or structures which the commissioners may require at the crossing; pjl'. ^112', 1 121
8 and before entering upon, excavating or altering the way, it shall f^Eh'i*"
9 give to the city or town in which the crossing is situated security, 1' Alien, 329.
10 satisfactory to the commissioners, that it will faithfully comply with 113 Mass. 52/
11 the requirements of the decree to their acceptance, and will indem- 134Mass-549-
12 nify the city or town against all damages and charges by reason of a
13 failure so to do.
1 Section 127. A railroad corporation may alter the course of a course of high-
2 public way for the purpose of facilitating the crossing thereof by altered?7 be
3 its road or of permitting its road to pass at the side thereof rI'.^'/to
4 without crossing, if, after due notice to the city or town in which £?4| l^\ ..
5 the way is situated, the county commissioners decide that such ist4, 372, §'s9.
x S 112 § 1^**
6 alteration will not essentially injure the way and make a decree 14 Alien,' 444. '
7 prescribing the time and manner of such alteration. The corpora-
8 tion shall pay all damages caused to private property by the
9 alteration, as in case of land taken for its road.
1 Section 128. If a railroad is laid out across a public way, crossing nigh-
2 the county commissioners, upon the application of the railroad wayata°ie°ei.
3 corporation or of the mayor and aldermen of the city or select- 5^' 152> §§ 2>
4 men of the town in which the crossing is situated, after due ilf2' 37-2' 1 96
5 notice to all persons interested and a hearing, may adjudge that *£7| ^J
6 public necessity requires the crossing at the same level, and may,
7 if the board also consents in writing to such crossing at the same
8 level, make a decree specially to authorize and require the corpo-
9 ration so to construct its road, in such manner as shall be prescribed
10 in the decree, and said commissioners may modify the terms of such
11 decree or may revoke it at any time before the construction of the
12 railroad at such crossing.
1 Section 129. A railroad corporation whose road is crossed by Rails to bepro-
2 a public way at the same level shall, at its own expense, so guard or way crossing."
3 protect its rails by plank, timber or otherwise as to secure a safe ofs'.ls/leo.
4 and easy passage across its road; and if, in the opinion of the i?7s*. ms* 1 ia*.
5 county commissioners, any subsequent alteration of the highway or ]$ jj;^; ?4I5.
6 other way or additional safeguards are required at the crossing, ie4Mass. 3<i.
7 they may order the corporation to establish the same as provided
8 in section one hundred and twenty-six.
1 Section 130. A public way may be laid out across a railroad w&pm&ybe
2 previously constructed, if the county commissioners adjudge that j^^;1'088
3 the public convenience and necessity so require ; and in such case, g^f-ft ^^
4 after due notice to the railroad corporation and a hearing of all g. d. es/§§ 57-
5 parties interested, they may thus lay out or may authorize a city or ism, 872, § ».
6 town, upon petition of the mayor and aldermen or selectmen p. |. im, 5 125.
7 thereof, to lay out a way across a railroad, in such manner as not p^gffl}'
8 to injure or obstruct the railroad, and otherwise in conformity with l$jfii*§jt
9 the provisions of sections one hundred and twenty-four and one i«MaBs.^;
10 hundred and twenty-five ; but they shall not permit it to cross at a 173 Mass. 12.
11 level with the railroad unless public necessity so requires and the
12 board consents thereto in writing, in which case the county com-
1008
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
missioners may give special authority for such crossing as provided 13
in section one hundred and twenty-eight. 14
Alterations of
canals.
1837, 226, §§ 1, 4.
G. S. 63, §56.
1874, 372, § 93.
P. S. 112, § 126.
Section 131. A railroad corporation may, with the consent of
a canal corporation, alter the course of a canal or of a feeder to a
canal, which interferes with the convenient location of its road.
Damages caused by taking property therefor shall be estimated and
paid as in case of land taken under the provisions of section ninety-
nine .
1
2
3
4
5
Obstructions
and repairs at
crossings.
1855, 350, § 2.
G. S. 63, § 49.
1874, 372, § 94.
P. S. 112, § 127.
Repairs of
bridges, etc.
R. S. 39, § 72.
1846, 271, § 1.
1851, 88.
1855, 350, § 4.
G. S. 63, §§ 61,
67, 69.
1872, 262, § 6.
1874, 372, § 95.
P. S. 112, § 128.
7 Cush. 490.
12 Allen, 254.
97 Mass. 430.
131 Mass. 516.
138 Mass. 454.
139 Mass. 528.
159 Mass. 289.
Alteration of
crossings.
1842, 22.
G. S. 63, §§ 53,
54.
1872, 262, §§ 1, 2.
1874, 305, §§1,3;
372, § 96.
P. S. 112, § 129.
1885, 194, § 2.
6 Cush. 424.
116 Mass. 73.
153 Mass. 218.
154 Mass. 410.
164 Mass. 551.
171 Mass. 135.
Section 132. If, upon application to the county commissioners 1
by the mayor and aldermen of a city or selectmen of a town, and 2
after due notice to the corporation which owns or operates a rail- 3
road, it appears that the railroad so crosses a public way as to 4
obstruct it, contrary to the provisions of section one hundred and 5
twenty-four, or of a decree made under the provisions of section 6
one hundred and twenty-six, or that the corporation refuses or 7
neglects to keep a bridge or other structure which is required or 8
necessary at such crossing in proper repair, the county commissioners 9
may make a decree prescribing what repairs shall be made by the 10
corporation at the crossing, and the time within which they shall be 11
made, and shall order the corporation to pay the costs of the appli- 12
cation. They may further order the corporation to give security, 13
as provided in section one hundred and twenty-six, for the faithful 14
performance of the requirements of the decree and for the indemnity 15
of said city or town upon a failure in such performance. 16
Section 133. Every railroad corporation shall, except as pro- 1
vided in sections one hundred and forty-nine to one hundred and 2
sixty, inclusive, at its own expense, construct, maintain and keep 3
in repair all bridges, with their approaches and abutments, which it 4
is authorized or required to construct over or under a canal or 5
public way ; and a city or town may recover of the railroad corpo- 6
ration whose road crosses a public way therein all damages, charges 7
and expenses incurred by such city or town by reason of the neglect 8
or refusal of the corporation to erect or keep in repair all structures 9
required or necessary at such crossing ; but if, after the laying out 10
and making of a railroad, the county commissioners authorize a 11
public way to be laid out across the railroad, all expenses of and 12
incident to constructing and maintaining the way at such crossing 13
shall be borne by the county, city, town or other owner of the 14
same, unless otherwise determined by an award of a special com- 15
mission, under proceedings in accordance with the provisions of 16
the following five sections. 17
Section 134. If a public way and a railroad cross each other, 1
and the mayor and aldermen of the city or the selectmen of the 2
town in which the crossing is situated, or the directors of the rail- 3
road corporation, are of opinion that it is necessary for the security 4
or convenience of the public that an alteration which does not in- 5
volve the abolition of a crossing at grade should be made in the 6
crossing, the approaches thereto, the location of the railroad or 7
way, or in a bridge at the crossing, they shall apply to the county 8
commissioners, or, if the crossing is situated in the city of Boston, 9
Chap. 111.] railroad corporations and railroads. 1009
13 forthwith certify their decision to the parties and to the board.
1 Section 135. If it is decided that the location of the railroad Land may be
2 or of the way shall be changed, land or other property may be taken ages assessed"'
3 therefor according to the provisions of law authorizing the taking of w^sw.' § 2;
4 land by railroad corporations or for highways or town ways, as the fs'sf.'wI.'fVS.
5 case may be ; and all damages caused by such taking or other- m Mas8- 135"
6 wise shall be assessed in the manner provided in case of the taking
7 of land by railroad corporations, or for highways and town ways,
8 respectively.
1 Section 136. A special commission of three disinterested per- Award to be
2 sons, who shall be appointed as provided in the following section, ^hucom-
3 shall determine which party shall carry such decision into effect and S^faS' § 2
4 which party shall pay the charges and expenses of making such J|Z|> f& ||8-
5 alteration and the future charges for keeping such crossing and the p- s- 112'> § 131-
6 approaches thereto in repair, as well as the costs of the application i887| 295!
7 to the county commissioners, or the board of railroad commission- 164 Mass! 311!
8 ers, and of the hearing before said special commission ; and it may
9 apportion all such charges, expenses and costs between the railroad
10 corporation, and the counties, cities or towns in which said cross-
11 ing is situated and other cities and towns which may be specially
12 benefited. Any county, and any city or town in which the crossing
13 is not situated, may be omitted from the apportionment if it seems
14 just.
1 Section 137. Upon the application of the county commission- special com.
2 ers, the board of railroad commissioners, the mayor and aldermen, p0'fnt?neiSIof.
3 the selectmen or the directors of the railroad corporation for the ll?!; 37't I^'
4 appointment of such commission, the superior court shall cause notice \^> f^; § h
5 thereof to be given to the other parties interested, fourteen days at p7f i"' f V32.
6 least before the time fixed for the hearing; and thereupon, after a 1885, 194,' § 5.
7 hearing, shall appoint such commission, one member of which shall
8 be a member of and designated by the board. The special commis-
9 sion shall meet as soon as may be after its appointment, and, after
10 notice to and a hearing of the parties, shall make its award in writ-
11 ing and return the same into said court.
1 Section 138. A party who is aggrieved by said award ma}^, Revision by
2 within fourteen days after it has been so returned, apply to the 1875/231, §§2,3.
3 court for a jury to revise and determine any matter of fact found P> sf.iiMius.
4 therein ; and thereupon the court, after due notice to all parties }« JJjjbb. 474.
5 interested, shall order a trial by jury at the bar of the court in the
6 same manner as civil cases are tried by jury. The decree of the
7 court upon said award or upon the verdict of a jury shall be final
8 and binding, and said court shall have jurisdiction in equity to en-
9 force compliance therewith and also to issue and enforce such inter-
10 locutory decrees and orders as justice may require.
1 Section 139. The party designated for that duty, having car- gewrejy after
2 ried into effect the decision of the county commissioners, may, in proportion of
expense.
1010
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
187-2, 262, § 5.
1874, 372, § 101.
P. S. 112, § 134.
6 Cush. 424.
an action of contract, recover of any other party the proportion 3
awarded to be paid by such other party, with interest ; and if the 4
party so designated unreasonably neglects or refuses to carry the 5
decision into effect, any other party who is affected by such neglect 6
or refusal may proceed to do it, and may, in an action of contract, 7
recover from each or all of the others the proportion awarded to be 8
paid by him or them, respectively, and from the party so neglecting 9
or refusing, all charges, expenses and costs occasioned thereby. 10
County com-
missioners to
have jurisdic-
tion of ob-
structions.
1849, 222, § 4.
Section 140. County commissioners shall have original juris- 1
diction of questions relative to obstructions to highways or town 2
ways which are caused by the construction or operation of railroads. 3
G. S. 63, § 62.
1874, 372, § 102.
P. S. 112, § 135.
4 Cush. 63.
2 Gray, 54.
14 Gray, 93.
141 Mass. 17.
155 Mass. 16.
— orders of,
how enforced.
1849, 222, § 5.
1855, 350, § 3.
G. 8. 63, §§ 50,
63.
1874, 372, § 103.
1881, 111, § 4.
P. S. 112, § 136.
7 Cush. 506.
174 Mass. 379.
Section 141. The supreme judicial court shall have jurisdiction 1
in equity to compel railroad corporations to raise or lower a public 2
way which the county commissioners have decided is necessary for 3
the security of the public to be raised or lowered, and to compel 4
them to comply with the orders of count}^ commissioners relative 5
to obstructions of such ways by them ; and if, upon the petition of 6
the mayor and aldermen of a city or selectmen of a town, it appears 7
that a corporation has excavated or altered a public way without 8
obtaining the decree and giving the security required by section one 9
hundred and twenty-six, or has neglected for fifteen days to give 10
security as required by section one hundred and thirty-two, said 11
court may enjoin it from entering upon, altering, excavating or 12
crossing the way until such decree has been obtained or such secu- 13
rity given. 14
Crossing a
private way.
1833, 187, § 5.
R. S. 39, § 71.
G. S. 63, § 28.
1874,362; 372,
§104.
Section 142. An application for damages which have been sus- 1
tained by the owner of a private way, by reason of a railroad crossing 2
the same, shall be made within three years after the time when the 3
way was so obstructed, and not afterward, p. s. 112, §137. 103 Mass. 1. 4
Severance of
private land
by crossing.
1857, 213, §§ 1-4.
G. S. 63, §§ 64-
66.
1874, 372, § 105.
P. S. 112, § 138.
1897, 264.
14 Alien, 444.
103 Mass. 1.
Section 143. If a railroad which has been lawfully laid out 1
through land without the consent of the owner thereof separates a 2
portion of such land from another or from a public way, and the 3
owner, having a right to cross the railroad, cannot agree with the 4
corporation as to the place or manner in which he shall cross, or if 5
a crossing is inconvenient, either party, in a case which does not 6
involve the abolition of a crossing at grade, may apply to the county 7
commissioners, who, after taking a recognizance from the applicant 8
to the county, with sureties to their satisfaction, for the payment 9
of costs and expenses according to their order, and after notice to 10
the other party and a hearing, may make an order relative to such 11
crossing and to the costs of the application ; but they shall not order 12
the corporation to construct or maintain a crossing without its con- 13
sent, unless it is liable by law or by agreement to construct a cross- 14
ing for the owner of the land, or is the applicant. 15
rat^ffby raud Section 144. If by the laying out of a railroad or the widen- 1
road. ing 0f its roadbed, a person is cut off from access to land owned by 2
Chap. 111.] railroad corporations and railroads. 1011
3 him, and has neither received compensation nor made an agreement 1892> *n-
4 with the corporation relative thereto, the board, after notice to the 165 Mass. iii.
5 parties and a hearing, may order a crossing to be made and main-
6 tained at the expense of the railroad corporation, specifying definitely
7 the character thereof and when it may be used. If the railroad cor-
8 poration neglects for ninety days after the date of such order to
9 comply therewith, it shall forfeit five dollars for every day there-
10 after during which such neglect continues, which shall be recovered
11 by the person aggrieved. The amount recovered shall be equally
12 divided between the plaintiff and the county within which the cross-
13 ing was ordered to be maintained.
1 Section 145. A party who is aggrieved by a decision or order Appeal from
2 of the county commissioners in any matter or proceeding arising musioners!1"
3 under the provisions of sections one hundred and thirty-four or one iti Vass. Jos?3'
4 hundred and forty-three, or by their unreasonable refusal or neglect
5 to announce a decision in any such matter or proceeding for sixty
6 days after the first day fixed for a hearing thereon, may appeal to
7 the board of railroad commissioners by filing a notice of appeal with
8 the county commissioners within ten days after the decision or order
9 appealed from, or in case of a refusal or neglect to announce a
10 decision, within ten days after the expiration of sixty days from the
11 first day fixed for a hearing thereon. The proceedings before the
12 county commissioners in which the appeal is taken shall thereupon
13 be stayed.
1 Section 146. The appellant, to perfect the appeal, shall, within ^eprre00c^eding8
2 twenty days after filing the notice thereof, file with the clerk of the iss2, 135, §§ 4, 5.
3 board a petition stating the reasons for the appeal, and shall, within
4 ten days after filing the petition, cause a certified copy thereof to be
5 served upon the county commissioners. An appeal may be waived
6 at any time before a hearing thereon by agreement of the parties
7 in writing, filed with the county commissioners and the board. If
8 the appellant fails to perfect the appeal, or if the appeal is waived,
9 the matter may proceed before the county commissioners as if no
10 appeal had been taken.
1 Section 147. The board shall hear the appeal authorized by Hearing of
2 section one hundred and forty-five in the county in which it is powers of
3 taken, unless the parties in writing otherwise agree. Upon such im,m, §§e, 7.
4 appeal, the board shall have the same powers and perform the same
5 duties as county commissioners in like matters and proceedings, and
6 shall be governed by the provisions of law relative to hearings
and determinations by, and decisions and orders of, the county
8 commissioners in such matters and proceedings.
1 Section 148. No right of way across any railroad track or loca- mghtrf ^
2 tion which is in use for railroad purposes shall be acquired by pre- acquireaby
3 scription. The provisions of this section shall not apply to rights \mM.
4 of way which existed on the fifth day of June in the year eighteen {$ jg» $;
5 hundred and ninety-two.
142 Mass. 21. 144 Mass. 336. 145 Mass. 433. 176 Maes. 860.
1012
KAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Commission
to abolish
grade cross-
ings.
1885, 194, § 1.
1890, 4'28, §§ 1,
11.
1891, 262.
1894, 216.
1897, 264.
153 Mass. 161,
228.
154 Mass. 411.
158 Mass. 300.
161 Mass. 259.
175 Mass. 430.
ABOLITION OF GRADE CROSSINGS.
Section 149. The mayor and aldermen of a city or the selectmen 1
of a town in which a public or private way and a railroad cross each 2
other at grade, the directors of the railroad corporation, or, upon 3
instructions from the governor and council given after notice to 4
parties interested and a hearing, the attorney general, may file a 5
petition in the superior court stating that the petitioners are of 6
opinion that it is necessary for the security and convenience of the 7
public that an alteration should be so made in such crossing, in the 8
approaches thereto, in the location of the railroad or public or 9
private way, or in the grades thereof, as to avoid a crossing at grade, 10
or that such crossing should be discontinued with or without build- 11
ing a new way in substitution therefor. The superior court shall 12
thereupon have jurisdiction in equity, after notice by the petitioner 13
to the board of railroad commissioners of the entry, of such petition, 14
and after such notice by advertisement or otherwise as the court 15
shall order and a hearing, in its discretion, to appoint a commission 16
of three disinterested persons. 17
Petition may
embrace
several cross-
ings, etc.
1890, 428, §§ 2, 8.
1891, 33, § 1.
Section 150. A petition under the provisions of the preceding 1
section may include several crossings or several railroads crossing 2
at or near the same point, or by order of the court two or more 3
petitions may be consolidated and heard as one. Service of such 4
petition and of all notices or processes thereunder may be made 5
upon the commonwealth by serving upon the attorney general per- 6
sonally, or by leaving in his office, an attested copy thereof. 7
Commission
to prescribe
the alterations.
1890, 428, § 3.
1891, 33, § 2.
1894, 216.
1897, 264.
153 Mass. 576.
161 Mass. 33.
169 Mass. 495.
172 Mass. 5, 117.
Section 151. The commission appointed under the provisions 1
of section one hundred and forty-nine shall meet at once, and if, 2
after notice and a hearing, it decides that the security and con- 3
venience of the public require the alterations, including the change 4
or discontinuance of a private way, if any, to be made, it shall pre- 5
scribe the manner and limits thereof and shall determine which of 6
the parties shall do the work, or shall apportion the work to be done 7
between each of the railroad corporations and the city or town. 8
The railroad corporation shall pay sixtj^-five per cent of the total 9
actual cost of the alterations as aforesaid, including therein in addi- 10
tion to the cost of construction, the cost of the hearing, the com- 11
pensation of the commissioners and auditors and all damages, except 12
as otherwise provided. The remaining thirty-five per cent shall 13
be apportioned by the commission between the commonwealth and 14
the city or town in which the crossing or crossings are situated, but 15
not more than ten per cent shall be apportioned to such city or 16
town. The commission shall equitably apportion the sixty-five 17
per cent to be paid by the railroad corporation between the several 18
railroads which may be parties to the proceedings. If the cross- 19
ing was established after the twenty-first day of June in the year 20
eighteen hundred and ninety, no part of said cost shall be charged 21
to the commonwealth. If the crossing is of a railroad and a 22
private way, and no crossing of a public way is abolished in con- 23
nection therewith, the entire cost as aforesaid shall be paid by the 24
railroad corporation. 25
Chap. 111.] railroad corporations and railroads. 1013
1 Section 152. The commission shall specify what portion, if Ending of
/» .. -,. . ini commission.
2 any, of an existing public or private way shall bo discontinued, the contents.
3 grades for the railroad and the way, the general method of construe- 1890,428, §4.
4 tion and what land or other property it considers necessary to be ism, 2u.
5 taken ; but if such decision involves a change in the grade of the rail- iSm. 356.
6 road, the consent of the board of railroad commissioners to such J71 Mass! m
7 change shall first be obtained. Said commission shall forthwith re-
8 turn its decision to the superior court, the decree of which, confirm-
9 ing such decision, shall be final and binding. If the commission
10 decides that the location of the railroad or of the public or private
11 way shall be changed, the decree of the court confirming such
12 decision shall constitute a taking of the specified land or other
13 property ; and the clerk of said court shall, within thirty days after
14 said decree, cause a copy of such decision and decree to be filed
15 with the county commissioners of the county or counties in which
16 the land or other property taken and the crossing are situated, to
17 be recorded in the registry of deeds for the counties and districts
18 in which such land, property and crossings are situated, and to be
19 filed with the auditor of the commonwealth. Said taking shall be a
20 taking by the city or town, if the land is to be used for a public way,
21 or by the railroad corporation, if the land is to be used for a private
22 way or by the railroad.
1 Section 153. All damages which may be sustained by any per- damages.
2 son in his property by the taking of land for, or by the alterations ism', 123'.
3 of the grade of, a public way, or by an abutter thereon, by the if^ieS:
4 discontinuance of such public way, to the same extent as damages Jgj*j; |~;
5 are recoverable by abutters on ways discontinued by towns, shall \™ Mass. ito.
6 primarily be paid by the city or town ; and all damages which may J»Jg»£§J
7 be caused by the taking of land for the railroad or by the change g*-MflM>'M0'
8 or discontinuance of a private way in connection with the aboli- 173 Mass. «g.
9 tion of a grade crossing shall primarily be paid by the railroad cor- 176 Mass! 101'.
10 poration ; and all damages which may be sustained by any person
11 by the abolition of private ways, except as hereinbefore provided,
12 shall be entirely paid by the railroad corporation. If the parties
13 interested cannot agree upon said damages, any party may have
14 the damages determined by a jury in the superior court for the
15 county in which the property and crossing are situated, on petition,
16 brought within one year after the date of the decree of the court
17 confirming the decision of said commission, in the same manner as
18 damages may be determined which are caused by the taking of
19 land for the locating of railroads and the laying out or discontinu-
20 ance of public ways, respectively, in such city or town ; but all
21 expense wBich results from the necessary relocating or changing of
22 streams and water courses forming the natural drainage channels
23 of the territory in which alterations of grades are authorized and of
24 sewers, drains and pipes therein owned and Operated by municipal
25 corporations shall be primarily paid by said city or town, and shall
26 be a part of the actual cost of the alterations mentioned in section
27 one hundred and fifty-one. Parties who recover damages m such
28 proceedings shall also recover costs as in other civil cases, and the
29 court may in its discretion allow, as a part of such costs, the rca-
50 sonable expenses incurred for surveys and plans.
1014
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Maintenance
of crossing
and ap-
proaches.
1890, 428, § 6.
1891, 33, § 2.
Auditor,
duties, com-
pensation.
1890, 428, § 7.
1893, 283.
1894, 545.
1898, 538.
161 Mass. 32.
162 Mass. 564.
172 Mass. 117.
Section 154. After the completion of the work, the expense of 1
maintenance and repair shall be paid as follows : if the public way 2
crosses the railroad by an overhead bridge, the framework of the 3
bridge and its abutments shall be maintained and kept in repair by 4
the, railroad corporation, and the surface of the bridge and its ap- 5
proaches shall be maintained and kept in repair by the city or town 6
in which they are situated ; if the public way passes under the 7
railroad, the bridge and its abutments shall be maintained and kept 8
in repair by the railroad corporation, and the public way and its 9
approaches shall be maintained and kept in repair by the city or 10
town in which they are situated ; if several railroads cross a public 1 1
way at or near a given point, the commission shall apportion and 12
award in what manner and proportion each of said railroad cor- 13
porations shall maintain and keep in repair the framework of the 14
bridge and its abutments if the public way crosses the railroad by 15
an overhead bridge, and the bridge and its abutments if the public 16
way passes under said railroads.
Section 155. The court shall appoint an auditor, who shall be
a disinterested person, not an inhabitant of the city or town in which
the crossing is situated, whose compensation shall be determined
by the court and to whom shall from time to time be submitted all
accounts of expense incurred by the railroads, city, town, commis-
sion or auditor, and who shall audit the same and make report
thereon to the court. Such auditing, when accepted by the court,
shall be final. A certified copy of such report and the decree of the
court thereon shall be filed with the auditor of the commonwealth.
The court shall, from time to time, issue its decrees for payments
on the part of the railroad corporation, not exceeding the amounts
apportioned to it by said auditor, and for the payment by the com-
monwealth of a sum not exceeding the amounts apportioned to it
and to the city or town ; and such city or town shall repay to the
commonwealth the amount apportioned to it by said auditor, with
interest thereon, payable annually at the rate of four per cent from
the date of the acceptance of the report of the auditor. Such repay-
ment of the principal shall be made annually in such amounts as the
auditor of the commonwealth may designate ; and the amount of
payment designated for the year, with the interest due on the out-
standing principal, shall be included by the treasurer and receiver
general in the amount charged to such city or town, and shall be
assessed upon it in the apportionment and assessment of its annual
state tax. The treasurer and receiver general shall in each year
notify such city or town of the amount of such assessment, which
shall be paid by it into the treasury of the commonwealth as a part
of, and at the time required for, the payment of its state tax. When
the final assessment on a city or town has been paid by it, the treas-
urer and receiver general shall repay to it, in reduction of said final
payment, the amount of interest, if any, which has been assessed to
and paid by it in excess of the actual interest cost to the common-
wealth for money borrowed for the abolition of grade crossings pre-
vious to the payment of said final assessment ; and such excess of
interest, if any, shall be on the exact amounts repaid by such city
or town to the commonwealth on which interest has been collected
under the provisions of this section, and no more.
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
Chap. 111.] railroad corporations and railroads.
1015
1
2
3
4
5
6
7
Section 156. The superior court shall have jurisdiction in Enforcement
equity to enforce compliance with the provisions of sections one lmjis, § s.
hundred and forty-nine to one hundred and sixty, inclusive, and mMss. 564.
with the decrees, agreements and decisions made thereunder; and
may issue and enforce such interlocutory decrees and orders as
justice may require, and any order, appointment or decree under
the provisions of said sections may be made in any county.
1 Section 157. If the board of aldermen of a city or the select- ^fa^r1188
2 men of a town in which a public way and a railroad cross each ment »s t0
i lfcpT*fi t"i on fl
3 other and the directors of the railroad corporation are of opinion isao, 428, § 9.
4 that it is necessary for the security and convenience of the public 5 a8S" 16 '
5 that alterations should be made in such crossing, in the approaches
6 thereto, in the location of the railroad or public way or in the
7 grades thereof, or in a bridge at such crossing, or that such crossing
8 should be discontinued with or without building a new way in sub-
9 stitution therefor, and they agree as to the alterations which should
10 be made, an instrument in writing signed, in behalf of a city, by the
11 mayor, duly authorized by the board of aldermen, or, in behalf of a
12 town, by the chairman of the selectmen, duly authorized by the
13 selectmen, and by the president of the railroad corporation, duly
14 authorized by its directors, specifying the manner and limits within
15 which the alterations shall be made, and by which party the work
16 shall be done, or how it shall be apportioned between the city or
17 town and the railroad corporation, the general method of construc-
18 tion, the grades for the railroad and the public way or ways, and
19 also what land or other property it is necessary to take, and what
20 portion, if any, of an existing public way is to be discontinued,
21 and how the cost thereof shall be apportioned between the city or
22 town and the railroad corporation, shall be valid and binding on the
23 city or town and the railroad corporation, respectively, and have
24 the same force and effect as a decree of the court under the provi-
25 sions of section one hundred and fifty-two, if the board, after
26 notice to all parties interested by advertisement and a public
27 hearing, approve of the alterations set forth in the agreement as
28 necessary for the convenience and security of the public. Said
29 approval by the board shall constitute a taking of the land and
30 other property specified in the agreement as necessary to be
31 taken, and the clerk of said board shall, within thirty days after
32 such approval, cause a copy of the agreement and approval to
33 be filed with the county commissioners of the county or counties
34 in which the land or other property taken and the crossing are
35 situated, to be recorded in the registry of deeds for the counties
36 and districts in which such land, property and crossing are sit-
37 uated, and also to be filed with the auditor of the commonwealth.
38 The provisions of section one hundred and fifty-two relative to the
39 taking of land under a decree of the court and of section one hun-
40 dred and fifty-three relative to the recovery of damages sustained
41 by any person in consequence of such taking, or of the alterations
42 made in pursuance of said decree, shall apply to the taking of land
43 and to damages sustained under an agreement made pursuant to
44 the provisions of this section, except that the petition for the
45 determination of damages maybe brought within one year after
46 the date of the approval of such agreement by the board of rail-
1016
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
road commissioners. The crossing and approaches shall be main- 47
tained and kept in repair as provided in section one hundred and 48
fifty-four. If the agreement provides for the abolition of a public 49
grade crossing, the board of railroad commissioners shall keep itself 50
informed of the progress and character of the work and of the 51
amounts reasonably expended for work done or for damages, so 52
far as rendered necessary for the abolition of the grade crossing ; 53
and for that purpose it may employ -any necessary agents, and, 54
from time to time as it may consider proper, shall issue certified 55
statements of the amount legally and properly expended for such 56
abolition of a grade crossing; and the commonwealth shall pay to 57
the parties entitled thereto under the agreement twenty per cent of 58
such expenditure. 59
Payments by
the common-
wealth.
Bonds.
Sinking fund.
1890, 4-28, § 10.
1893, 424.
1896, 439, §§ 1, 3.
[1 Op. A. G.
305.]
Section 158. The amount to be paid under the provisions of 1
the preceding nine sections by the commonwealth in any one year, 2
the year beginning with the twenty-first day of June, shall not 3
exceed five hundred thousand dollars, and the total amount shall 4
not exceed five million dollars ; but if in any year the expenditure 5
by the commonwealth shall not amount to five hundred thousand 6
dollars, the unexpended balance thereof shall be added to the five 7
hundred thousand dollars allowed to be paid by it in any subsequent 8
year. In computing and estimating the amount paid and to be paid 9
by the commonwealth, the amounts apportioned to cities and towns 10
and advanced by the commonwealth under the provisions of section 11
one hundred and fifty-five shall not be included. The treasurer and 12
receiver general shall pay the amount of cost apportioned to the 13
commonwealth from any money not otherwise appropriated, and 14
shall from time to time, on request of the governor and council, 15
issue and sell bonds, shall establish a sinking fund for the payment 16
thereof into which shall be paid any premiums received on the sale 17
of said bonds and shall apportion thereto from year to year, in 18
addition, amounts sufficient with their accumulations to extinguish 19
at maturity the debt incurred by the issue of said bonds. The 20
amount necessary to meet the annual sinking fund requirements 21
and to pay the interest on said bonds shall be raised by taxation 22
from year to year. From the proceeds of the sale of such bonds, 23
there shall be paid into the treasury of the commonwealth such 24
amounts as may have been expended therefrom under the provisions 25
of this section. 26
Board to have
notice of
petitions
entered and to
decide which
shall be acted
on.
1S90, 428, § 11.
Section 159. If applications are made for changes in grade cross- 1
ings, which will, in the opinion of the board after an examination of 2
the decision of the commission appointed by the court, require a 3
larger expenditure in any one year on the part of the commonwealth 4
than the amount authorized by the preceding section, said board shall 5
decide which, if any, of said pending petitions shall be proceeded 6
with during the year ; and no decree shall be entered under any such 7
petition until a certificate has been filed thereon by the board that, 8
in its judgment, the expenditure on the part of the commonwealth 9
will not exceed the amount provided for by said section. 10
of sections
hundred and
vfsrionsnotto Section 160. The provisions ot sections one
^PrS^o *,» thirty-four to one hundred and forty-one, inclusive, and one hun-
1890,428, § 12. J •> * '
1
2
Chap. 111.] railroad corporations and railroads. 1017
3 dred and forty-five to one hundred and forty-seven, inclusive, so
4 far as they relate to proceedings for the abolition of grade cross-
5 ings, shall not apply to cases within the provisions of the preceding
6 eleven sections.
BRANCHES AND EXTENSIONS.
1 Section 161. A railroad corporation, after having finished the Branches and
2 construction of its main road and put it in operation, may build ^■g'^
3 branches or extensions thereof in accordance with the provisions ^5; 37-' ^ 31»
4 of this chapter, if an amount of additional capital stock, applicable i|Ij>> ][f
5 solely to the construction of such branch or extension, has been p. s'. 112, §§ 139,
6 subscribed and a certificate of the board that public convenience 1882, 265, §§ 1, 3.
7 and necessity require the construction of the branch or extension 124 lass
8 has been obtained and a certificate of the clerk of the board has
9 been filed according to the provisions of section eighty-eight, and
10 it may build such branches or extensions without additional capital
11 stock, if its indebtedness is not thereby increased ; but the provi-
12 sions of this section shall not invalidate a lease or contract between
13 railroad corporations which is made pursuant to law. Upon the
14 filing of such certificate, fifty dollars shall be paid to the secretary
15 of the commonwealth. If the construction of such branch or exten-
16 sion is not begun and at least ten per cent of the additional capital
17 stock is not expended thereon within two years after the date of the
18 certificate required by section eighty-eight and the branch or exten-
19 sion completed and put in operation within four years after said
20 date, the power of the railroad corporation to construct the same
21 shall cease.
opening the railroad for use.
1 Section 162. No railroad or branch or extension thereof shall ^oad^nouo be
2 be opened for public use until the board, after an examination, g^ce™e
3 certifies that all laws relative to its construction have been complied i874,'223;'372,
4 with, and that it appears to be in a safe condition for operation. p. s.112, §ui.
1 Section 163. When a railroad or a branch or extension thereof JSSdte ta
2 is finished and opened for public use, the corporation by which it ^licuse^
3 was constructed shall, within one year thereafter, file in the office bejug,etc.
4 of the secretary of the commonwealth a map and profile thereof, iso '§ s! '
5 with tables of grade and curvature and a statement of the other p.'|'.m,'§ u'->.
6 characteristics of the road, certified by its president and engineer in
7 such form as the board may prescribe.
1
REMEDY FOR LABOR, ETC., FURNISHED FOR CONSTRUCTION.
Section 164. A person to whom a debt is due for labor per- A^on^ataet
2 formed or for materials furnished and actually used in constructing roadfor ^bor
3 a railroad under a contract with a person, other than the owner of ^|, »», § l.^"
4 the railroad, who has authority from or is rightfully acting for such u6 Mass. rao. '
5 owner in furnishing such labor or materials shall have a right of m Ma8B- wo-
6 action against such owner to recover such debt with costs, except as
7 provided in the following four sections.
1 Section 165. No such person who has contracted to construct (Xwe^.r*
2 the whole or a specified part of such railroad shall have such right action.
3 of action. 1873,353, §2. p. s. 112, § i-m.
1018
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
127 Mass. 101.
amount of debt Section 166. No such person shall have such right of action 1
i873e3Ked5 3 f°r la^0r performed, unless, within thirty days after ceasing to 2
p. s'. 112, § 145. perform it, he files in the office of the clerk of a city or town in 3
19,7 Maan 101 i . , n . -, ■, r. -, . J ,
which any of said labor was performed a written statement, under 4
oath, of the amount of the debt so due him and of the name of the 5
person or persons for whom and by whose employment the labor 6
was performed. Such right of action shall not be lost by a mistake 7
in stating the amount due ; but the claimant shall not recover as 8
damages a larger amount than is named in said statement as due him, 9
with interest thereon. 10
tent^tote Section 167. No such person shall have such right of action
187*353 «4 f°r materials furnished, unless, before beginning to furnish them,
p. s'. Hi, § U6. he files in the office of the clerk of the city or town in which any of
the materials were furnished a written notice of his intention to claim
such right, in the manner provided for filing the statement named in
the preceding section.
1
2
3
4
5
6
Limitation of
actions.
1873, 353, § 5.
P. S. 112, § 147.
127 Mass. 101.
Section 168. No such action shall be maintained unless it is 1
commenced within sixty days after the plaintiff ceased to perform 2
such labor or to furnish such materials. 3
Examination
of railroad
bridges.
1887, 334,
1899, 286.
1-3.
EQUIPMENT AND OPERATION.
Railroad Bridges.
Section 169. Every railroad corporation and street railway 1
company shall upon request of the board and at least once in two 2
years cause an examination of its bridges and of the approaches 3
thereto to be made by a competent and experienced engineer, who 4
shall report the result of his examinations, his conclusions and 5
recommendations to the corporation, and it shall forthwith trans- 6
mit a copy of the report to the board. Before a street railway 7
company builds a bridge, it shall first submit the plans thereof to 8
the board for approval. If a new bridge has been built, the railroad 9
corporation or street railway company shall forthwith cause such 10
examination and report to be made and transmitted to the board. 11
The reports shall furnish such information, in such detail and with 12
such drawings or prints, as may be requested in writing by the 13
board. The board may make further examination of the bridge 14
structure if necessary or expedient. The provisions of this section 15
shall not exempt a corporation from making other and more fre- 16
quent examinations of its bridges and the approaches thereto. 17
Superintend-
ents of draw-
bridges.
1855, 434, §§ 1, 2.
G. S. 63, § 73.
1863, 131, § 1.
1874, 372, § 108.
P. S. 112, § 148.
Drawbridges.
Section 170. Every railroad corporation shall provide for each 1
drawbridge upon the line of its road a steady and discreet superin- 2
tendent, experienced in the management of vessels, who shall have 3
full control and direction of the passing of vessels through the draw ; 4
and the corporation shall make and enforce regulations for each 5
drawbridge conformable to the following seven sections. 6
Every such drawbridge shall be kept closed at all 1
The 2
£r^Sges Section 171.
to be kept %
closed, except, times, except while open tor the actual passage of vessels
1855, 434, §§ 2, 3. * XT I ,
Chap. 111.] railroad corporations and railroads. 1019
3 superintendent shall at all hours of the day and night be ready to g. s. 63, § 74.
4 open the draw; shall decide, having regard to the convenient and ilfS; sffc 1 169.
5 secure passage of engines and trains and the state of the tide, when p- s- 112^ § 149<
6 and in what order vessels may pass, allowing no unnecessary deten-
7 tion ; shall give all necessary advice and furnish proper facilities for
8 such passing; and shall keep posted in a convenient place, for the
9 inspection of all interested, a printed copy of the regulations relat-
10 ing to the drawbridge.
1 Section 172. The master of a vessel who applies to pass such veassseafeh00fw
2 draw shall give to the superintendent a true report of his vessel's regulated.
3 draught of water, and shall be governed by him as to priority of g. s'. 63,'§§ 75, "
4 right if two or more vessels apply at the same time to pass . In ism, 372, § 110.
5 passing, he shall, unless otherwise directed by the superintendent, 127 Mass. 7. '
6 go to the right according to the tide, if practicable, and shall so 146MaS8-621-
7 place his buoys, warping-lines, anchors or cables as neither to
8 interfere with other vessels nor obstruct the bridge ; and he shall be
9 allowed a reasonable time for his vessel to pass. A railroad train
10 shall be allowed fifteen minutes to cross a draw before and after it
11 is due by its time table, and any approaching train shall be allowed
12 a further reasonable time to pass.
1 Section 173. Every drawbridge shall be furnished with con- Drawbridge
2 spicuous day and night signals, which shall be displayed at all times isf 3,ai|i , § 3.
3 in such manner as clearly to indicate to the engineman of an pJl.nl.lili.
4 approaching train whether the draw is open or closed.
1 Section 174. The railroad corporation may erect, at a distance -gates-
2 of five hundred feet from every drawbridge, or at such other distance mm, sra, § 112.
3 as may on its application be prescribed by the board, and on each
4 side thereof, a substantial gate, so constructed and connected with
5 the draw by suitable mechanism, that the draw, when in position
6 for the passage of trains, cannot be opened or moved until the gates
7 have been closed across the track in such manner as to be a barrier
8 and warning to any train which approaches in either direction.
1 Section 175. If a drawbridge is not furnished with such gates, Enghiemnnto
2 and in all cases if by reason of darkness or otherwise the gates bridge is
3 or signals connected with a drawbridge are not visible from the mkwsi, 1 6.
4 engine of an approaching passenger train, the engineman of such ^l.^f ms.
5 train shall bring it to a full stop at a distance of not less than three
6 hundred nor more than eight hundred feet from the drawbridge,
7 and, before proceeding, shall positively ascertain that the draw is
8 properly closed for the passage of trains ; except that if the draw-
9 bridge is between two railroad crossings at grade, within .six
10 hundred feet of each other, one stop only shall be required for such
11 crossings and drawbridge.
1 Section 176. A railroad corporation which neglects to comply gjjjgw^
2 with the provisions of sections one hundred and seventy-three and for neglect,
3 one hundred and seventy-five shall forfeit one hundred dollars for && mi, * ^
4 each day such neglect is continued ; and an engineman or superin- p.jf.m^ ,,,.
5 tendent of a drawbridge who violates any provision of said sections
1020
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
or any regulation established in conformity therewith for such 6
drawbridge by the corporation by which he is employed shall forfeit 7
one hundred dollars for each offence, which shall be recovered in 8
the county in which the offence is committed, to the use of the in- 9
former. 10
otatructfng su- Section 177. Whoever obstructs the superintendent in the
ltecrintendent' Perf°rmance of his duties or violates any provision of the preceding
g5| tif'M -%"-' seven sections shall, unless therein otherwise provided, forfeit
so. ' ' not less than three nor more than fifty dollars. Whoever breaks,
p._s. 112, § 155. defaces or impairs any such bridge or a wharf or pier appurtenant
thereto, or, without the consent of the superintendent, unnecessarily
opens or obstructs the draw or makes fast or moors any scow, raft
or other vessel to such bridge within wake of the draw shall forfeit
not less than three nor more than twenty dollars. Whoever
wilfully injures or damages a railroad bridge, wharf or pier, or
wilfully disturbs or hinders the superintendent in the performance
of his duties, shall forfeit for each offence not less than fifty nor 12
more than one hundred dollars, and be further liable in damages to 13
the corporation against which the offence is committed. 14
1
2
3
4
5
6
7
8
9
10
11
Stations.
^paifsenger11 Section 178. A railroad corporation which has established and
regulated maintained a passenger station throughout the year for five consec-
18-4 3-2' 116 U^ve years at any point upon its road shall not abandon such sta-
p. s. 112, § 156. tion, unless it is relocated under the provisions of the following
137 Mass 45 • ... .
158 Mass! 104. section, nor substantially diminish the accommodation furnished by
the stopping of trains thereat as compared with that furnished at
other stations on the same road. The supreme judicial court, upon
an information filed by the attorney general at the relation of ten
legal voters of the city or town in which such station is located, shall
have jurisdiction in equity to restrain the violation of the provisions 10
of this section. 11
stations and f Section 179. A railroad corporation may relocate passenger 1
freight depot, stations and freight depots, with the approval in writing of the 2
1874,' 372; § 117. board and of the city council of the city or the selectmen of the 3
P S 112 5 157 . • . .
137 Mass. 45. ' town in which such stations or depots are situated. 158 Mass. 104. 4
to be indicated. Section 180. Every railroad corporation shall indicate to its 1
iCTif 1068' passengers the name of each way station by placing at or near the 2
p. s'. 112, § 158. station a proper and conspicuous sign or signs, and shall forfeit fifty 3
dollars for each violation of the provisions of this section. 4
Compensation
for joint occu-
pation.
1893, 142.
Section 181. If one railroad corporation occupies or uses, 1
or has a right to occupy, enter upon and use, a station, road or 2
grounds of another, or any portion thereof, the board, upon petition 3
of either party and after notice to the other and a hearing, shall 4
determine the compensation to be paid for such occupancy and use. 5
Its award shall be binding upon the parties thereto for five years, 6
or until it is revised or altered by the board, and upon the request 7
in writing of a party affected thereby, filed within thirty days after 8
Chap. 111.] railroad corporations and railroads. 1021
9 the rendering thereof, the award shall be filed in the supreme judi-
10 cial court which shall have jurisdiction to revise the same as if the
11 award had been made by a commission appointed by said court.
Switches. Bridge Guards.
1 Section 182. All switches which are laid in a railroad track g^Ls
2 which is used or intended to be used by passenger or mixed trains, J87*'24-
3 including those so laid in renewal of existing switches, shall be p. s'. 112, § 159.
4 some kind of safety switch approved in writing by the board. For
5 each switch laid in violation of the provisions of this section, the
6 railroad corporation shall forfeit two hundred dollars, and the fur-
7 ther sum of five dollars for each day the switch is used.
1 Section 183. The frogs, switches and guard rails, except guard ^^4
2 rails on bridges, which are in or connected with the railroad tracks }886, 120.
3 operated or used by any railroad corporation shall be kept so
4 blocked by some method approved by the board as to prevent
5 employees from being caught therein. A railroad corporation
6 which violates the provisions of this section shall be punished by a
7 fine of not less than ten nor more than one hundred dollars for each
8 offence.
1 Section 184. Every railroad corporation, at every bridge or Bridge guards.
2 other structure, any portion of which crosses the railroad above the istoI !?6 2' 3'
3 track, shall erect and maintain suitable bridge guards which shall be §8n9.226' 372'
4 approved by the board and be erected and adjusted to its satisfac- p.8s'.ii2 §160.
5 tion. A corporation which neglects to comply with the provisions 175 Mass. 150.
6 of this section shall forfeit fifty dollars for each month's neglect.
7 Whoever wilfully destroys or breaks any such bridge guard shall be
8 punished by a fine of not more than one hundred dollars or by
9 imprisonment for not more than thirty days.
Signals, etc., at Crossings.
1 Section 185. If two railroads cross each other at the same level, f^^af £ade
2 the engineman of every freight train and, if both roads are used ^^gf sj 2
3 for passenger traffic, of every passenger train, upon approaching W5|39;W|L
4 such crossing, shall stop his engine within five hundred feet there- u.^ '
5 from, and shall not resume his course until signalled so to do, when ism! 372; § 121.
6 he shall pass slowly over the crossing ; but one stop shall be sufficient p' S- 112' § 16L
7 for all such crossings within six hundred feet of each other upon the
8 same railroad. Every engineman who fails so to stop his engine
9 shall forfeit one hundred dollars for each offence ; and the corpora-
10 tion on whose road the offence is committed shall forfeit the further
11 amount of three hundred dollars.
1 Section 186. The board shall make general regulations for all pr°easS?™ies
2 such crossings or special regulations for such particular crossings as i^'g^f^i.
3 it may designate, and in such detail as it may consider expedient ; ish! w| m
4 and the supreme judicial court may issue any processes necessary
5 to secure the enforcement of such regulations, or, upon the petition
6 of said board, may enjoin the running of trains on a railroad upon
7 which any regulation relative to such crossing is not exactly ob-
1022 RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
served. The approval of the board shall be required for a system 8
of signals to be established and maintained in concert by corpora- 9
tions operating railroads which cross each other ; but no such regu- 10
lation or system of signals shall exempt a railroad upon or across 11
which passenger trains are run by steam power from the require- 12
ments of the preceding section unless a system of interlocking or 13
automatic signals, approved in writing by the board, is adopted by 14
both corporations. 15
signals?*1115 Section 187. The board may, on the application of a railroad 1
1885, 85. corporation whose road crosses another railroad at the same level, 2
after notice to the parties and a hearing, authorize the applicant at 3
its own expense, to establish and maintain a system of interlocking 4
or automatic signals at any crossing of said roads and to erect and 5
maintain the necessary wires, rods, signal posts and signals, in 6
such manner as the board shall prescribe. Such corporation, after 7
the system has been established and approved in writing by the 8
board, shall be exempt as to such crossing from the requirements 9
of section one hundred and eighty-five so long as the board con- 10
tinues its approval. Upon payment to such corporation by the 11
corporation owning or operating the other railroad at such crossing 12
of so much of the cost of establishing such system of signals as, 13
upon petition of the latter corporation and a hearing, is awarded 14
by the board, both railroads shall, as to that crossing, be exempted 15
from the requirements of said section. Until such payment the 16
latter corporation shall semi-annually contribute toward the expense 17
of operating said signals an amount equal to the cost to it of oper- 18
ating the signals used by it at said crossing before the establishment 19
of the signals herein provided for. After the payment of such 20
award, the expense of maintaining and operating such system of 21
signals shall be borne by the two railroad corporations according to 22
the proportions fixed by the award for paying the original cost of 23
the signals. So much of the award as relates to the cost of main- 24
taining and operating said signals may, at the request of either 25
party, be revised at the expiration of five years from the original 26
award or from any revision thereof. 27
?re"hi8tieerung Section 188. Every railroad corporation shall cause a bell of 1
s<^.n(*ed. at least thirty-five pounds in weight, and a steam whistle, to be 2
R|'. 39.' § 78. placed on each locomotive engine passing upon its road; and such 3
g. s. 63,' § 83. bell shall be rung or at least three separate and distinct blasts of 4
1874' 372, § 123. such whistle sounded at the distance of at least eighty rods from 5
is90,' 173.' § 163' the place where the road crosses upon the same level any highway, 6
locushfiei. town way or travelled place over which a signboard is required to 7
i!o m"ss' 239 ^e mamtained as provided in sections one hundred and ninety and 8
153 Mass! 57, 82. one hundred and ninetv-one ; and such bell shall be rung or such 9
157 Mciss 340 • ■
159 Mass! 32.' whistle sounded continuously or alternately until the engine has 10
170 Mais! 430.' crossed such way or travelled place. The provisions of this section 11
shall not affect the authority conferred upon the board by the pro- 12
visions of the folio wino- section. 13
&
whistles5 of Section 189. The board, upon petition, and after notice to 1
i8g5U334d' ^he railroad corporation and a public hearing, may, for good cause 2
i89v>04. shown, recommend to such railroad corporation such changes as it 3
Chap. 111.] railroad corporations and railroads. 1023
4 considers proper in the manner of making up and shifting freight
5 trains or freight cars, and to the sounding of whistles on locomo-
6 tives, and it may by an order in writing forbid or regulate the
7 sounding of whistles on the locomotives of such corporation at
8 any specified grade crossings of the tracks of such corporation with
9 any highway or public way. The corporation which is subject to
10 the provisions of such order shall thereafter, until the order shall
11 have been modified or annulled by the board, conform in all respects
12 to the terms thereof.
1 Section 190. Every railroad corporation shall cause boards, signboards at
2 well supported by posts or otherwise at such height as to be easily way|mgs of
3 seen by travellers, and not obstructing travel, containing on each afl.^'^g.
4 side in capital letters at least nine inches long the following inscrip- \^ fff' | \-
5 tion, — Railroad Crossing — Look out for the Engine, — to be ^■6f-8613,'|284-
6 placed and constantly maintained across each highway or town way 1872) 191.
7 where it is crossed by the railroad at the same level ; or the corpo- mj>\ 219!
8 ration may substitute therefor warning boards on each side of the p.'s. 112, §164.
9 crossing, of such form, size and description as the board shall ap- il Mass! 135.
10 prove.
1 Section 191. The mayor and aldermen of a city or the select- "^iJ*cro]s18i^s8
2 men of a town in which a travelled place is crossed by a railroad at places, when.
• 1859 125 § 2
3 the same level, if of opinion that it is necessary for the better g. s. 63,' § 8.5.
4 security of the public that boards such as are described in the p.'s'. 112' § 165".
5 preceding section should be maintained at such travelled place, may i4oiass98238.
6 in writing request the railroad corporation to erect and maintain 170 Mass! 436.
7 them. If it refuses or neglects so to do, they may apply to the
8 county commissioners. If the commissioners, after notice and a
9 hearing, decide that such erection is necessary for the better security
10 of the public, the corporation shall comply with their decision and
11 shall pay the costs of the application. If they decide that it is not
12 necessary, one-half of such costs shall be paid by the city or town
13 and one-half by the corporation.
1 Section 192. The board, after notice to a railroad corporation Gates, etc., at
2 whose road crosses a highway, town way or travelled place at the i83oS,su|8§§ 4, 6.
3 same level, and a hearing, may direct in writing that gates shall be ^'49,'2^2,§§§°i-3.
4 erected at said crossing across said way or place and that an agent }§£; fj{;
5 be stationed thereat to open and close such gates when an engine or £5| "26^-§§ 8&_
6 train passes, or that a flagman be stationed at the crossing, who fV^ §3
7 shall display a flag when an engine or train passes, or that such is65|289!§2!
8 crossing shall be provided with such an electric signal as the board p.'s. 112', § lee'.
9 determines the better security of human life or the convenience of J^; Mo!
10 the public travel requires, and the corporation shall comply with JgjgS; $J;
11 Such Order. 153 Mass. 167.
1 Section 193. The supreme iudicial court shall have jurisdiction Enforcement
~ . . „ \. .1,1 •• e j.i j* of preceding
2 in equity to enforce compliance with the provisions 01 the preceding sections.
3 three sections, and a railroad corporation which unreasonably neg- e.^.89,'§81.
4 lects to comply with an order or decision made under the provisions gjf; $A%;
5 of the preceding two sections shall forfeit not more than one thou- i|M. |j*. « *»
6 sand dollars for every such neglect. p. s. 112, §§ 164, 168.
1024
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Signals at
overhead
crossings.
1891, 129.
Section 194. The board may require a railroad corporation 1
whose railroad crosses a highway by a crossing above the level of 2
the highway to give such signal of the approach of trains to any 3
such crossing as the board may designate. The board may in each 4
case determine the nature of the signal to be given and, in its 5
discretion, may require an automatic signal. The supreme judicial 6
court shall have jurisdiction in equity to compel railroad corpora- 7
tions to comply with orders made by the board under the provisions 8
of this section. 9
standing wood Section 195. If the view of a railroad crossing or highway at 1
i889r37img8- grade is obstructed by standing wood in woodlands, the railroad 2
corporation or ten citizens of a town may petition the county com- 3
missioners for the county in which such crossing is situated for the 4
removal of such standing wood ; and the commissioners after notice 5
and a hearing, shall make such orders as to such removal as the &
public safety demands. They shall also prescribe the limits within 7
which such standing wood shall be taken and shall determine the 8
damage sustained. Such damage and the expense incident thereto 9
shall be assessed and collected in the manner provided for the taking 10
of land by railroad corporations, and shall be paid by the railroad 11
corporation. Either party who is aggrieved by the decision of the 12
commissioners, may appeal therefrom in the manner provided in 13
section one hundred and three. 14
Penalty on
corporation
for obstructing
highways, etc.
1854, 378.
G. S. 63, § 68.
1871, 83, 316.
1874, 372, § 129.
V. S. 112, § 169.
1895, 173.
112 Mass. 412.
135 Mass. 550.
156 Mass. 159.
169 Mass. 403.
Section 196. No railroad corporation and no receiver or assignee 1
thereof, or its or his servants or agents, shall wilfully or negligently 2
obstruct or unnecessarily or unreasonably use or occupy a highway, 3
town way or street, nor in any case obstruct, use or occupy it with 4
cars or engines for more than five minutes at one time ; and if a 5
highway, town way or street has been thus used or occupied with 6
cars or engines, no railroad corporation, its receivers or assignees, 7
shall again use or occupy it with the cars or engines of a freight 8
train until a sufficient time, not less than three minutes, has been 9
allowed for the passage across the railroad of such travellers as 10
were ready and waiting to cross when the former occupation ceased. 11
A corporation, receiver or assignee who violates the provisions of 12
this section shall forfeit one hundred dollars. 13
w^ys^bycars* Section 197. Upon an application to the board, according to the 1
regulated. provisions of section sixteen, which states that a crossing of a rail- 2
road with a highway, town way or street at the same level is 3
improperly used by a railroad corporation with its freight engines, 4
freight cars or freight trains to the unreasonable inconvenience or 5
danger of the public, said board, after due notice, shall hear the par- 6
ties ; and, if public convenience or safety so requires, it may direct 7
that after a date to be fixed by it such railroad corporation shall not 8
use such crossing or any part thereof for making up, connecting or 9
disconnecting freight trains, or the engines or cars of such trains, 10
or for the purpose of distributing freight or freight cars ; and to 11
prevent the same may prescribe and direct such changes to be made 12
in the construction of side tracks, branches and connections, in 13
proximity to such crossings, and such regulations limiting the use 14
of such crossings, as may be necessary. The board may at any time 15
Chap. 111.] railroad corporations and railroads. 1025
16 modify its order after a hearing and for cause shown. The supreme
17 judicial court shall have jurisdiction in equity on application of the
18 attorney general to enforce compliance with any order made under
19 the provisions of this section.
Equipment of Engines, Cars, Trains, etc.
1 Section 198. Railroad corporations which are subject to the Electricity a
2 provisions of this chapter may operate their railroads by electricity. SsbJu^0™5*'
1 Section 199. A railroad or street railway corporation which is Meigs system.
2 organized or operated under the laws of this commonwealth may 1890' 368' § x'
3 build and use the Meigs system of elevated railway if each city in
4 which the tracks of said corporation or any part thereof are located,
5 by vote of a majority of all the members of the city council thereof,
6 and each town in which such tracks or portion thereof are located,
7 by vote taken by ballot at a town meeting, assent thereto and if the
8 location in Boston shall first have been approved by the board ; but
9 no portion thereof shall be built upon any part of Boston common.
1 Section 200. Every railroad corporation shall cause a good and brakeemend
2 sufficient brake to be attached to every car used upon its railroad i||7, 226, § s.
3 for the transportation of passengers, and to every car used for the g. s. 63,'§§ 8i,
4 transportation of freight, except four-wheel cars used only for 1869, 426.
5 freight; and shall cause at least one trusty and skilful brakeman for p. s'. 112, § 170.
6 every two cars in a passenger train to be stationed thereon and one
7 such brakeman upon the last car of every freight train, which car
8 shall always be equipped with a good and sufficient brake. A cor-
9 poration which violates any provision of this section shall forfeit
10 not more than one hundred dollars.
1 Section 201. A railroad corporation, in moving traffic between safety ap-
2 points in this commonwealth, shall not use any locomotive which is freight trains.
3 not equipped with a power driving wheel brake and appliances for 1895' 362' § 1-
4 operating the train brake system ; nor run any train in such traffic
5 unless a sufficient number of cars in it are so equipped with power or
6 train brakes that its speed can be controlled by the engineman of
7 the locomotive which is drawing such train, without the use of the
8 common hand brakes by the brakemen. When such corporation
9 has equipped a sufficient number of its cars with such power or train
10 brakes, it may lawfully refuse to receive from connecting lines of
11 railroad any cars used in such traffic which are not sufficiently
12 equipped with such power or train brakes as will work and readily
13 interchange with the brakes in use on its own cars.
ov
1 Section 202. A railroad corporation which operates a railroad foup^rson
2 or an}^ portion thereof within this commonwealth shall cause to be f^^™1-8-
3 placed upon both ends of every freight car owned by it and which
4 it may lawfully use such automatic or other safety coupler as the
5 board, after an examination and test, may prescribe, and the board
6 may annul any such requirement made by it. The supreme judi-
7 cial court, upon the application of the attorney general, may enforce
8 the provisions of this section.
1026
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Automatic
couplers for
freight cars.
1895, 362, § 2.
Grab irons.
1895, 362, § 3.
Section 203. A railroad corporation, in moving traffic between
points in this commonwealth, shall not haul or permit to be hauled
or used on its lines any car which is not equipped with couplers
coupling automatically by impact, and which can be uncoupled in
some other way than by men going between the ends of the cars.
Section 204. A railroad corporation, in moving traffic between
points in this commonwealth, until otherwise ordered by the board,
shall not use any car, except flat cars equipped with automatic
couplers, which is not provided with secure grab irons or hand
holds on the ends and sides for greater security to men in coupling
and uncoupling cars.
1
2
3
4
5
1
2
3
4
5
6
Standard
height of
drawbars for
freight cars.
1895, 362, § 4.
Section 205. The standard height of drawbars for freight cars, 1
measured perpendicularly from the level of the top of the rails to 2
the centres of the drawbars, shall be thirty-four and one-half inches 3
for standard gauge railroads and twenty-six inches for narrow 4
gauge railroads, with a maximum variation from such standard 5
height, in either case, of three inches between the drawbars of 6
empty and loaded cars ; and no freight car with drawbars which 7
do not comply with the above standard, whether loaded or un- 8
loaded, shall be used in moving traffic between points in this com- 9
mo n wealth. 10
Penalty.
1895, 362, § 5.
Section 206. A railroad corporation which violates any of the 1
provisions of sections two hundred and one and two hundred and 2
three to two hundred and five, inclusive, shall, for each offence, 3
forfeit one hundred dollars which shall be recovered in an action 4
of tort to the use of the commonwealth by the attorney general or 5
the district attorney for the district in which such offence was 6
committed. 7
Limitation of
preceding
sections.
1S95, 362, § 5.
Section 207. The provisions of sections two hundred and one 1
and two hundred and three to two hundred and six, inclusive, shall 2
not apply to trains composed of four-wheel cars, or to locomotives 3
4
used in hauling such trains
Extension of
time for
equipment.
1895, 362, § 6.
Section 208. The board of railroad commissioners may from 1
time to time, after hearing and for good cause, exempt, until a date 2
fixed by it, any railroad corporation from the requirements of sec- 3
tions two hundred and one and two hundred and three to two hun- 4
dred and five, inclusive. 5
Assumption
of risk by
employee
restricted.
1895, 362, § 7.
Section 209. An employee of a railroad corporation who is 1
injured by any locomotive, car or train which is used contrary to 2
the provisions of sections two hundred and one and two hundred 3
and three to two hundred and five, inclusive, shall not be con- 4
sidered to have assumed the risk of such injury, although he con- 5
tinues in the employment of such corporation after the unlawful 6
use of such locomotive, car or train has been brought to his 7
knowledge. 8
Tools to be
carried with
trains.
Section 210. Every railroad corporation shall equip each of its 1
trains, for use in case of accident, with two guide plates, two jack 2
Chap. 111.] railroad corporations and railroads. 1027
3 screws, two crowbars, one pinch bar, one claw bar, one spike 1870,372.
4 hammer, two sharp axes, and ropes or chains suitable for hauling ml; 372, § 131.
5 cars ; and shall also equip each car of every passenger train which is S'sf," 54 2§ 1 171"
6 owned or regularly used by it, including mail and baggage cars, with
7 two sets of tools, consisting of an axe, a sledge hammer, a crowbar,
8 hand saw and pail, which shall all be maintained in good condition,
9 and one set of which shall be kept upon the inside and the other upon
10 the outside of each such car, in a convenient place and in a manner
11 approved by the board ; but one set shall be sufficient if so placed
12 as to be accessible both from the inside and outside of such car.
13 A corporation which violates the provisions of this section shall
14 forfeit five hundred dollars.
1 Section 211. Every passenger, baggage, mail and express car, safeguards
2 which is owned or regularly used on any railroad in this common- im^, § 3!'
3 wealth, in which heating apparatus may be placed, shall be provided
4 with such safeguards against fire as the board in writing shall
5 approve. A corporation which violates the provisions of this sec-
6 tion shall forfeit three hundred dollars for each offence.
1 Section 212. A passenger, mail or baggage car in this common- Heating of
2 wealth shall not be heated by a stove or furnace which is kept inside lf^f, 36-f.ulate<i"
3 the car or suspended therefrom unless it is temporarily necessary by 1891> m
4 reason of an accident or other emergency, and no method of heating
5 such cars nor heater shall be used until it shall have been approved
6 in writing by the board ; but the board may from time to time grant
7 such exemptions from the requirements of this section as may seem
S to it necessary or reasonable and may grant permission to any rail-
9 road corporation to make such experiments in heating its passenger
10 cars as the board determines is proper. A corporation which vio-
11 lates the provisions of this section shall forfeit not more than five
12 hundred dollars.
1 Section 213. A passenger car on a railroad shall not be lighted notstonifeer cars
2 by naphtha, nor bv an illuminating- oil or fluid made in part of "gated by
011 1 ■ 1 .n ■ ci 11 explosive oils.
3 naphtha or which will ignite at a temperature 01 less than three ises, 286.
4 hundred degrees Fahrenheit. A corporation which violates the i874| 372; § 132.
5 provisions of this section shall forfeit not more than five hundred ' ' '
6 dollars .
1 Section 214. Every passenger, baggage, mail and express car, Platform
2 which is owned or regularly used on any railroad in this common- fgoo.W
3 wealth shall be provided at each end thereof with platform gates of
4 a pattern approved by the board. A railroad corporation which
5 runs, hauls or permits to be hauled or used on its road any car in
6 violation of the provisions of this section shall, for each offence, for-
7 feit one hundred dollars to the use of the commonwealth, and the
•8 attorney general or the district attorney for the district in which
9 such violation occurred shall bring an action therefor.
o
1 Section 215. A railroad corporation which uses any vacuum Mufflers with
2 brake shall provide and use on every locomotive equipped there- brakes"
3 with a muffler or other appliance, approved in writing by the board, p37!*.!^!! Ivi,"
4 for deadening the noise incident to the operation of such brake ; m-
1028
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Mufflers with
safety valves.
1879, 284, § 2.
P. S. 112, § 175.
Penalties.
1879, 284, § 4.
P. S. 112, § 176.
Testing of
locomotive
boilers.
1882, 73.
but any other appliance may be used upon any locomotive for the 5
purpose of experiment only, for not more than thirty days, but not 6
upon more than two locomotives of the same corporation at any 7
one time. Every application to the board for approval of such 8
appliances shall be in writing ; and such approval may be revoked 9
by the board by written notice to the corporation. 10
Section 216. A railroad corporation which uses upon its locomo- 1
tives a pop or other safety valve shall provide and use therewith a 2
suitable and sufficient appliance for deadening the sound made by 3
steam escaping therefrom, and, if it materially retards the escape of 4
steam or increases the pressure upon the boiler, the corporation 5
shall use an additional safety valve without such appliance, set at 6
a higher point than the other but below the point at which ex- 7
plosion is likely to occur. 8
Section 217. A corporation which violates any provision of the 1
preceding two sections shall forfeit not less than one hundred nor 2
more than three hundred dollars for every locomotive used by it in 3
violation thereof, and a further sum of five dollars for each day 4
upon which such locomotive shall be run in violation thereof. 5
Section 218. The board may make, and from time to time 1
revise, regulations for testing the boilers of locomotives, and shall 2
communicate such revision to every person or corporation which 3
operates a railroad in this commonwealth. The tests under such 4
regulations shall, if possible, be made by the master mechanic of 5
the corporation, firm or person which constructs, repairs or uses 6
such boilers. A person or corporation using a locomotive on a 7
railroad in this commonwealth the boiler of which has not been 8
tested in accordance with the provisions of this section shall be 9
punished by a fine of twenty dollars for every day during which 10
such use continues, to the use of the commonwealth. 11
commodatfons' Section 219. Every railroad corporation shall furnish reason- 1
g4| es'^iio a^e accomm°dations for the convenience and safety of passengers ; 2
1874,' 372, § 133. and for every wilful neglect to provide the same shall forfeit not 3
' ' less than five nor more than twenty dollars. 4
andfbad4sps Section 220. Every railroad corporation shall provide a uniform 1
for employees. nat or cap and distinguishing badges, which shall be worn by all its 2
§ 134. employees whose duties relate immediately to the transportation of 3
1 ft7fi *?^ J. */ ■/ ■*•
p. s. us, § 178. passengers or their baggage. A corporation which neglects to pre- 4
scribe and furnish such uniform hat or cap and badges shall forfeit 5
one hundred dollars for each week of such neglect ; and if such an 6-
employee neglects to wear the same when on duty, the corporation 7
which employs him shall for each case of such neglect forfeit 8
twenty-five dollars ; and no employee, unless wearing his uniform 9
hat or cap and badge, shall be permitted to exercise any authority 10
or to perform any of the duties of his office. 11
nessrebxanmina- Section 221. A railroad corporation shall not employ any 1
tion for. person or keep him in its employ in a position which requires the 2
p. s. 112, § 179. employee to distinguish form or color signals, unless he has been 3
1883, 125.
Chap. 111.] railroad corporations and railroads. 1029
4 examined for color-blindness or other defective sight by a com-
5 petent person employed by the corporation and has received a
6 certificate that he is not disqualified for such position by color-
7 blindness or other defective sight. A railroad corporation which
8 violates the provisions of this section shall forfeit one hundred
9 dollars.
1 Section 222. The board may require railroad corporations to Further
2 equip their cars with such other appliances as in its judgment are l^at^f."
3 necessary for the further protection of life in all passenger trains
4 which are used in this commonwealth.
Inspection of Equipment.
1 Section 223. Eailroad and railway inspectors who are ap- Duties of
2 pointed under the provisions of section eight shall, under the direc- IsaJfsM,1"^ 3, 4.
3 tion of the board, examine the roadbed, tracks, crossings, stations, 1897>376>§1-
4 rolling stock, machinery, equipments, appliances and grounds used
5 in or in connection with the operation of railroads or street railways ;
6 and if they are considered by an inspector not to be in compliance
7 with the requirements of law, or to be in such condition as to
8 endanger the safety of the public or of employees, he shall so
9 report in writing to the board, which, if it considers it necessary,
10 shall give notice to the corporation or to the persons who own or
11 operate the railroad or street railway of such failure to comply
12 with the requirements of the law or of such defects, with such
13 recommendation as it may consider necessary or proper.
1 Section 224. An inspector shall, under the direction of the investigation
2 board, investigate as promptly as may be any accident upon or re- i894,C535,e§58.'
3 suiting from the operation of a railroad or street railway which 189~> 376> § 2.
4 causes the death or risks the life of a passenger, employee or other
5 person, and shall report thereon to the board. He shall attend the
6 inquest held in the case of any such death by accident and may
7 cause any person who has knowledge of the facts or circumstances
8 connected with such death to be summoned as a witness to testify
9 at the inquest.
Fares, Tolls, Charges and Regulations.
1 Section 225. A railroad corporation may establish for its sole Rates of fare,
2 benefit fares, tolls and charges upon all passengers and property iishedand
3 conveyed or transported on its railroad, at such rates as may be r.vsS39;§s3.
4 determined by its directors, and may from time to time by its j*^ -J3. §112.
5 directors regulate the use of its road; but such fares, tolls and ^I'^l'liso
6 charges, and such regulations, shall at all times be subject to revision 12 Gray,' iso. '
7 and alteration by the general court or by such officers or persons as 170 Mass! 205.
8 it may appoint for the purpose, anything in the charter of a railroad
9 corporation to the contrary notwithstanding.
1 Section 226. A railroad corporation shall not demand or receive Extra fares
2 for any single ticket bought or fare paid on a train 01 elsewhere isHtIz.
3 than at its ticket offices more than ten cents in excess of the tariff 1900, 154-
4 rates charged at its ticket offices. When such excess is received,
1030
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
the conductor or other person receiving it shall give to the passenger 5
a printed certificate which shall entitle him to receive the excess so 6
paid at any station of the corporation in exchange for such certifi- 7
cate. A railroad corporation which violates any provision of this 8
section shall be punished by a fine of not less than ten nor more than 9
fifty dollars. 10
Commutation
tickets.
1900, 395.
Section 227. Every railroad corporation which has a terminus 1
in Boston, except the Boston, Revere Beach and Lynn Railroad 2
Company, shall sell a commutation ticket good for not more than 3
twenty-five trips between Boston and a station in the suburban dis- 4
trict, so called, which is named therein at the lowest rate for each 5
trip which was charged between said points on the first day of July 6
in the year nineteen hundred, except the rates charged for season 7
tickets and for tickets on workingmen's trains. 8
Transportation of Passengers.
Section 228. A railroad corporation may make contracts for 1
the conveyance of passengers upon designated trains for a specific 2
distance at fixed times, at such reduced rates of fare as the parties 3
may agree upon. Tickets may be issued for such passengers, upon 4
which shall be plainly printed the terms upon which they may be 5
used. Such tickets shall not be transferable without the consent 6
of the corporation, nor shall they entitle the holder to ride upon a 7
train which is not therein designated. 8
passengers at
reduced rates.
1871, 143.
1874, 372, 5 135.
P. S. 112, § 181.
Bicycles as
baggage.
1900, 318.
Section 229. A railroad corporation which owns or operates a 1
railroad of standard gauge in this commonwealth shall check and 2
transport between stations within the limits of this commonwealth, 3
as baggage, and subject to the same charges, terms and liabilities as 4
other baggage and to no other, one bicycle for each passenger who 5
pays by a mileage book, by a ticket other than a season ticket, or 6
in cash, the established fare, if it is not less than ten cents, exclusive 7
of rebate. The weight of the bicycle shall be included in determin- 8
ing the total weight of the baggage to be transported for such pas- 9
senger. Such corporation shall not require such bicycle to be 10
crated, covered or otherwise protected. 11
Baggage
checks.
1854, 23.
G. S. 63, § 111.
1874, 372, § 136.
P. S. 112, § 182.
15 Gray, 447.
7 Allen, 329.
Section 230. Every railroad corporation shall, upon request, 1
give checks to passengers for their baggage when delivered for trans- 2
portation, and shall re-deliver the baggage to the passengers upon 3
the surrender of such checks. A corporation which violates the pro- 4
visions of this section shall forfeit ten dollars for each offence. 5
fn^and10"1" Section 231. Every railroad corporation which has a terminus 1
i8-e2ni348 train8' *n Boston shall, upon the application of two hundred or more 2
p. s'. 112, § 183. persons therefor, furnish on each week day a morning train in and 3
an evening train out for distances not exceeding fifteen miles, or 4
suitable cars attached to other trains, and reaching and leaving 5
Boston at about six o'clock in the forenoon and afternoon, or at 6
such hours as may be fixed by the board ; and for such trains, shall 7
furnish season tickets good once a day each way for six days in the 8
Chap. 111.] raijlroad corporations and railroads. 1031
9 week, at a rate not exceeding, for yearly tickets, three dollars a
10 mile and for quarterly tickets, one dollar a mile.
1 Section 232. Every railroad corporation which has a terminus wqrkingmen-8
2 in Boston shall furnish such number of workingmen's trams, not fm*m.
3 less than two each way, as the board, upon a petition for such trains
4 filed with it, shall in each case order. Such trains shall arrive at
5 and depart from Boston between six and half past seven o'clock in
6 the morning and between the same hours in the evening and special
7 cars majr be provided therefor. Season tickets, good once a day
8 each wa}r for six days in the week, shall be furnished for such trains
9 at a rate not exceeding, for yearly tickets, three dollars a mile, and
10 for quarterly and weekly tickets, one dollar a mile.
1 Section 233. Every railroad corporation shall sell to an express season tickets
2 messenger or to a person who conducts a local express business, messenger.
3 as provided in section two hundred and forty-one, in its trains or lm' m' §§ 2> 5-
4 cars within this commonwealth, a season ticket for his personal
5 transportation, at a price not exceeding that at which similar
6 tickets are sold to passengers, upon receiving from him a release
7 of all right, to whomsoever accruing, to damages or compensation
8 for death or for any personal injury received by him while riding
9 on such ticket. The supreme judicial court or the superior court
10 shall have jurisdiction to enforce the provisions of this section by
11 injunction, mandamus or other suitable process.
1 Section 234. Any person who, being governor, lieutenant Free passes to
•/ i. o o 7 state officers
2 governor, member of the council, member or member-elect of the forbidden.
3 general court, justice of the supreme judicial court, justice of the ' • '
4 superior court, judge of probate, justice of a police, district or
5 municipal court or a county commissioner, who requests, for him-
6 self or another, accepts or uses any free pass upon a railroad, or
7 any ticket which entitles him to transportation upon a railroad, for
8 which he has paid a less price than is demanded of the public
9 generally, and an officer, agent or employee of a railroad corporation
10 who issues, delivers or offers to any person hereinbefore mentioned
11 or to or for any other person at the request, solicitation or procure-
12 ment of any such person a free pass or any ticket which entitles
13 him to transportation at a less rate of fare than is demanded of the
14 public generally, shall be punished by a fine of not less than one
15 hundred nor more than one thousand dollars.
1 Section 235. A railroad corporation which does business in women, etc.,
2 this commonwealth shall not require women or children to ride in CarS8m°king
3 smoking cars. For a violation of the provisions of this section the 1888>176-
4 corporation, or any officer or employee thereof, shall be punished by
5 a fine of not less than ten nor more than fifty dollars for each offence.
Transportation of the Mails.
1 Section 236. Every railroad corporation shall, upon request ^J^fg^a
2 of the postmaster general or of an authorized agent of the post office states mails,
3 department, carry the mails at such times and upon such trains as i8e7,&i,§i.
4 may be desired by him upon the terms provided in the following p'
5 two sections. „_
1032
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Compensation
for carrying
mails, how
determined.
1867, 351, § 2.
P. S. 112, § 185.
Revision of
rates.
1867, 351, § 3.
P. S. 112, § 186.
Receipts to
shippers of
merchandise.
1872, 308.
1874, 372, § 137.
P. S. 112, § 187.
Section 237. A corporation which is unable to agree with the 1
postmaster general or other proper officer of the United States as to 2
the compensation to be paid for such transportation maj notify the 3
postmaster general of its unwillingness to carry the mails upon the 4
terms proposed ; and after the expiration of three months from 5
the depositing of such notice in a post office in this commonwealth, 6
addressed to the postmaster general, such corporation shall be ab- 7
solved from the duty imposed in the preceding section, unless he or 8
some officer or agent of the post office department within that time 9
has filed a petition in the supreme judicial court in any county, pray- 10
ing for the appointment of three commissioners to fix the price to be 11
paid by the corporation for such service ; and the court, after due 12
notice to the corporation, shall appoint three commissioners to hear 13
the parties and determine such compensation, the award of a major 14
part of whom, being made to and confirmed by said court, shall be 15
final as to all past service and for the period of two years after such 16
confirmation. 17
Section 238. Upon application to said court by either party to 1
such proceedings at any time after the expiration of two years from 2
the confirmation of such award, the matter may be reopened, and 3
the same or other commissioners shall rehear the parties, and the 4
award of said commissioners or of a major part of them, when made 5
to and confirmed by said court, shall be binding on the parties for 6
two years more, when like proceedings may again be had on petition 7
of either party. 8
Transportation of Merchandise.
Section 239. If a person delivers a commodity which is not 1
extra hazardous to a railroad corporation for transportation, it shall, 2
without additional charge, give to him, if requested at the time of 3
such delivery, a receipt describing the same or the marks and num- 4
bers on packages so delivered. A corporation which refuses to 5
give such receipt shall forfeit fifty dollars to the person who is en- 6
titled thereto. 7
Equal facili-
ties for trans-
portation.
1867, 339.
1874, 372, § 138.
P. S. 112, § 188.
115 Mass. 116.
128 Mass. 326.
147 Mass. 35,
266.
165 Mass. 398.
— to local
expressmen.
1894, 469, §§ 1,
5,6.
165 Mass. 398.
Section 240. Every railroad corporation shall, subject to the 1
provisions of section two hundred and forty-five, give to all per- 2
sons reasonable and equal terms, facilities and accommodations for 3
the transportation upon its railroad of themselves, their agents and 4
servants, and of their merchandise and other property and for the 5
use of its depot and other buildings and grounds ; and, at any point 6
where its railroad connects with another railroad, it shall give rea- 7
sonable and equal terms and facilities of interchange. 8
Section 241. The provisions of the preceding section shall 1
apply to all persons engaged only in a local express business for the 2
forwarding of express matter between points within the common- 3
wealth in the trains or cars of any railroad corporation, and to 4
persons desiring to engage therein who obtain the recommendation 5
of the board therefor, and who agree in writing to indemnify the 6
corporation against all loss of and damage to any property which is 7
carried by them on its trains. Such recommendation shall be given 8
only after notice to all parties interested and a hearing thereon, and 9
with due regard, among other considerations, to the public interest. 10
Chap. 111.] railroad corporations and railroads. 1033
11 Such corporation may contract with one or more persons for the
12 express service over its road or system, subject to the rights of such
13 persons as may then be engaged in, or shall have obtained the rec-
14 ommendation aforesaid to conduct, such local express business
15 thereon between points within this commonwealth under the pro-
16 visions of this section ; and the terms, facilities and accommoda-
17 tions provided for such last named persons shall not be unreasonable
18 or unequal, having regard to the amount and character of the service
19 and also to such reasonable regulation of said business as may be
20 for the public interest and the efficient operation of the railroad.
21 The provisions of this section shall not deprive any railroad cor-
22 poration of any right which it has under its charter or under general
23 law, to perform ail the transportation of property upon its road.
24 The supreme judicial court or the superior court shall have juris-
25 diction to enforce the provisions of this section by injunction,
26 mandamus or other suitable process.
1 Section 242. Every railroad corporation shall promptly for- Merchandise to
2 ward merchandise consigned to or directed to be sent over another prompTiyrded
3 road connecting with its road, according to the directions contained Gpi.^'/rk
4 thereon or accompanying the same, and shall not receive and ^7| i^' §189
5 forward over its road merchandise consigned, ordered or expressly
6 directed to be received and forwarded by a different route.
1 Section 243. No railroad corporation shall charge or receive charges for
2 for the transportation of freight to any station on its road a greater oTir^ghtf41011
3 amount than is at the time charged or received for the transporta- Jf^; f^f; § 140-
4 tion of the like class and quantity of freight from the same original ^Mass. 56190*
5 point of departure to a station at a greater distance on its road in
6 the same direction. Two or more railroad corporations whose
7 roads connect shall not charge or receive for the transportation of
8 freight to any station on the road of either of them a greater amount
9 than is at the time charged or received for the transportation of the
10 like class and quantity of freight from the same original point of
11 departure to a station at a greater distance on the road of either
12 of them in the same direction. In the construction of this section,
13 the amount charged or received for the transportation of freight
14 shall include all terminal charges ; and the road of a corporation
15 shall include all the road in use by it, whether owned or operated
16 under a contract or lease.
1 Section 244. A railroad corporation which violates any pro- Penalties on
2 vision of the preceding four sections, in addition to liability for all 1959, 209, § 2.'
3 damages sustained by reason of such violation, shall for each offence S'-f/24o.§ 1M"
4 forfeit two hundred dollars, which shall be recovered in an action Jgll5141'
5 of tort to his own use by the party aggrieved, or to the use of the f^^'.yf-
6 commonwealth by the attorney general or the district attorney of
7 the district in which such violation was committed ; but no such
8 action shall be maintained unless brought within one year after the
9 date of such violation.
1 Section 245. A railroad corporation shall not in its charges pisorimtaa.
« ,» . 1 . • 1 • 'a. jl • -Li l- ■ tot>n i'1 freight
2 for the transportation of freight or in doing its freight business, rates for.
3 make or give any undue or unreasonable preference or advantage to JS^'Jl; 225.
1034
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
Transporta-
tion of milk.
1879, 206, §§1,3.
P. S. 112, § 192.
1893, 210, § 1.
or in favor of any person, firm or corporation, nor subject any per- 4
son, firm or corporation to any undue or unreasonable prejudice 5
or disadvantage. 6
Transportation of Milk.
Section 246. A railroad corporation shall not receive, forward 1
or deliver milk in large quantities over any portion of its line or 2
furnish or allow to others facilities or advantages for so doing, 3
under contract, lease or hiring of cars or otherwise, without at the 4
same time furnishing or providing the same or equal facilities and 5
advantages, as regards time, care and preservation of the milk and 6
the return of the empty cans, for receiving, forwarding and deliver- 7
ing milk by the can over the same portion of its line ; nor without 8
establishing a tariff for the milk by the can which is fairly pro- 9
portionate to the rate or price which it charges or receives as 10
aforesaid for milk in large quantities. 11
— tariff for,
how fixed.
1879, 206, § 2.
P. S. 112, § 193.
1893, 210, § 2.
158 Mass. 1.
Section 247. Upon the petition of one or more persons who
desire to forward milk by the can over any railroad or any portion
or portions thereof, the board of railroad commissioners, after notice
to the railroad corporation and a hearing, shall ascertain and com-
pare the tariff established as aforesaid for milk by the can with the
rate or price charged or received as aforesaid for milk in large
quantities over such railroad or such portion or portions thereof;
and if the former is, in the judgment of the board, unreasonably
high, as compared with the latter, the board shall revise said tariff
and shall fix such rates for milk by the can as in its judgment are
fairly proportionate to the rate or price for milk in large quan-
tities, including in both cases the same care and preservation of
the milk and the return of the empty cans, as aforesaid ; and shall
notify the corporation in writing of the rates by the can so fixed
over such railroad or such portion or portions thereof; but milk
received by one railroad corporation from another shall not be
considered as received at the point of junction of the two roads, in
comparing and fixing as aforesaid rates for milk by the can tendered
at such point of junction.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Penalties.
1879, 206, § 3.
P. S. 112, § 194.
1893, 210, § 3.
Section 248. A railroad corporation which refuses or neglects 1
to receive, forward or deliver milk by the can over its railroad or 2
any portion thereof at the tariff rates therefor, so fixed and notified 3
to it by the board, shall forfeit to the person who tenders the same 4
five dollars for each and every can of milk which it so refuses to 5
receive or neglects to forward and deliver at the said tariff rates. 6
Walking on
track.
1853, 414, § 4.
G. S. 63, § 102.
1S74, 372, § 148.
OFFENCES AND PENALTIES.
Section 249. Whoever without right knowingly stands or walks 1
on a railroad track shall forfeit not less than five nor more than fifty 2
dollars. P. S. 112, § 195. 142 Mass. 300. 3
Loitering in
station.
Section 250. Whoever without right loiters or remains within 1
ills' ilo 1 149' a s*a^on bouse of a railroad corporation or upon the platform or 2
p. s'. ii2, § we. grounds adjacent to such station, after being requested to leave the 3
Chap. 111.] railroad corporations and railroads. 1035
4 same by a railroad police officer, shall forfeit not less than two nor
5 more than twenty dollars.
1 Section 251. Whoever fraudulently evades or attempts to evade Evading pay-
2 the payment of a toll or fare lawfully established by a railroad cor- maf'wift™'
3 poration or street railway company, either by giving a false answer &?gf. es/^us,
4 to the collector of the toll or fare, or by travelling beyond the point Jf^ 229 §33
5 to which he has paid the same, or by leaving the train or car with- J|^ ||i', § jjj^
6 out having paid the toll or fare established for the distance travelled, p s'. 112, § 197.
. . 143 Mass 68
7 or otherwise, shall forfeit not less than five nor more than twenty 174 Mass! 40L
8 dollars. Whoever does not upon demand first pay such toll or fare
9 shall not be entitled to be transported for any distance, and may be
10 ejected from a street railway car ; but no person shall be removed
11 from a car of a steam railroad corporation except as provided in
12 section eighteen of chapter one hundred and eight, nor from a train
13 except at a regular passenger station.
1 Section 252. Whoever rides, drives or leads ahorse or other Riding or
2 beast on a railroad which is opened for use without the consent of onaraiiroad.
3 the corporation or its agent, except in the proper use of a street q\ 1; H[ f 103.
4 railway, of a highway or other way, or of a travelled place at a p87!'. 112, §198.
5 crossing of such railroad therewith upon the same level, shall forfeit
6 not more than one hundred dollars for each offence, and be liable
7 for any damage which results therefrom.
1 Section 253. The person through whose fault or negligence a Negligence in
2 horse or other beast goes at large within the limits of a railroad beast upon
3 which is opened for use shall forfeit not more than twenty dollars r/s!°3V§ 86.
4 for each offence, and be liable for any damage which results there- Svf/ara.lm
5 from. p. s. 112, § 199.
1 Section 254. Whoever enters upon or crosses a railroad at a Neglect to
2 private way which is closed by gates or bars, and neglects to close private cross-
3 them securely, shall forfeit not less than two nor more than ten 1862, 123.
4 dollars for each offence, and be liable for any damage which results p8.7|'.m',|m
5 therefrom.
1 Section 255. Whoever wilfully and maliciously obstructs the obstructing
n . „ . m j • • • passage of
2 passing of any engine or car on a railroad, or in any way injures engine or car
3 such road or anything pertaining thereto or any materials or imple- RDsa39,°§77.
4 ments for the construction or use thereof, or aids or abets in such ^74/3^ Vim.
5 trespass, shall for each offence forfeit to the use of the corporation p. s. 112, § 201.
6 treble the amount of damages proved to have been sustained there-
7 by ; and may be further punished by a fine of not more than one
8 thousand dollars or by imprisonment for not more than one year.
1 Section 256. Whoever commits any of the acts mentioned in Punishment,
_ . ,. .. , jii- i tj? when life is
2 the preceding section in such manner as thereby to endanger lite endangered.
3 shall be punished as provided in said section or by imprisonment <j. s'. es, § ioe.
4 in the state prison for not more than twenty years. p. s. 112, § 202. 1874, 37'2' § 155*
1 Section 257. Whoever, himself or by others, obstructs an ^SSmS^F
2 engine or car passing upon a railroad, or endangers the safety endangering
r> /»° I,.OJr ,1 ■ 1 •j.j.'L • passengers,
3 of persons conveyed in or upon the same, or aids or assists therein, |te.
4 shall be punished by solitary imprisonment in the state prison for ^I.Wiot.
1036
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
1874, 372, § 156.
P. S. 113, § 203.
109 Mass. 345.
Attempt to ob-
struct engine
or car.
1852, 186, § 2.
G. S. 63, § 108.
1874, 372, § 157.
P. S. 112, § 204.
1890, 332.
105 Mass. 53.
Wilfully stop-
ping train.
1879, 177.
P. S. 112, § 205.
109 Mass. 345.
not more than ten days and by imprisonment thereafter in said '5
prison for not more than twenty years. 6
Section 258. Whoever wilfully does or causes to be done any- 1
thing with intent to obstruct an engine or car passing upon a rail- 2
road, or with intent to endanger the safety of persons conveyed in 3
or upon the same, or aids or assists therein, shall be punished by 4
imprisonment in the state prison for not more than twenty years 5
or by a fine of not more than five hundred dollars and imprison- 6
ment in jail for not more than one year, and shall for each offence 7
forfeit to the use of the corporation treble the amount of damages 8
proved to have been sustained thereby. 9
Section 259. Whoever wilfully and maliciously stops a train 1
on a railroad or causes it to be stopped for the purpose of entering, 2
leaving or wantonly delaying the same shall be punished by a fine 3
of not more than one hundred dollars or by imprisonment for not 4
more than one month. 5
ThrowiDg
missiles or
assaulting
engineer, etc.
1880, 110.
P. S. 112, § 206.
145 Mass. 403.
Section 260. Whoever wilfully throws or shoots a missile at a 1
locomotive engine or railroad or street railway car, or at a person 2
on such engine or car, or in any way assaults or interferes with a 3
conductor, engineer, brakeman, motorman or driver while in the 4
performance of his duty on or near a locomotive engine, car or train, 5
or on or near a street railway car, shall be punished by a fine of not 6
more than one hundred dollars or by imprisonment for not more 7
than one year, or by both such fine and imprisonment. A person 8
so offending may be arrested without a warrant by an officer author- 9
ized to serve criminal process and kept in custody in jail or other 10
convenient place not more than twenty-four hours, Sundays and 11
legal holidays excepted, at or before the expiration of which time 12
he shall be taken before a proper court or magistrate, and proceeded 13
against according- to law. 14
Tampering
with tools.
1882, 54, § 2.
Injuring
signal.
1876, 63.
P. S. 112, § 207
1884, 5.
1899, 252.
Section 261. Whoever unlawfully uses, removes or tampers 1
with any tools or appliances carried on the cars as required by 2
section two hundred and ten shall be punished by a fine of not 3
more than one hundred dollars or by imprisonment for not more 4
than three months, or by both such fine and imprisonment. 5
Section 262. Whoever unlawfully and intentionally injures, 1
molests or destroys any signal of a railroad or street railway corpo- 2
ration, or any line, wire, post or other structure or mechanism 3
used in connection with such signal on a railroad or street railway, 4
or destroys or in any way interferes with the proper working of 5
such signal, shall be punished by a fine of not more than five 6
hundred dollars or by imprisonment for not more than two years, 7
or by both such fine and imprisonment. 8
Notice of
accidents.
1849, 172, § 2.
G. S. 63, § 100.
1869, 408, § 14.
ACCIDENTS.
Section 263. Every railroad corporation shall give immediate 1
notice of an accident on its road, which results in a loss of life to 2
the medical examiner of the county who resides nearest to the place 3
Chap. UK] railroad corporations and railroads. 1037
4 of accident, and shall also, within twenty-four hours, give notice i873,98,§2.
5 to the board of any such accident or of any accident of the descrip- \m] f'2' § 159-
6 tion of accidents of which the board may require notice to be given . p< S- 112, § m
7 For each omission to give such notice the corporation shall forfeit
8 not more than one hundred dollars.
1 Section 264. If, upon the trial of an action against a city or Liability
2 town, the plaintiff recovers damages for an injury to his person personal*03"
3 or property which was caused by reason of a defect in a highway, ^n,ln, § wo.
4 within the location of a railroad, and if the corporation which owns p- s'. 112, § 209.
5 the road is liable for such damages and has had reasonable notice to
6 defend the action, the city or town may recover such damages and
7 the costs of both plaintiff and defendant in the action from the cor-
8 poration.
1 Section 265. If an engineman, fireman or other agent of a Penalty on en-
2 railroad corporation is guilty of negligence whereby an injury is toTmghgmce.
3 done to a person or corporation, he shall be punished by a fine of g.3s. 63%§975.
4 not more than one thousand dollars or by imprisonment for not p 7|' 112 1 210
5 more than twelve months.
1 Section 266. Whoever, having the management of or control —for gross
2 of a railroad train while being used for the common carriage of mfmagement
3 persons, is guilty of gross negligence in or in relation to the man- 1853, 418.'
4 agement or control thereof, shall be punished by a fine of not more i87f,'3?2,§§9i62.
5 than five thousand dollars or by imprisonment for not more than p" s< 112, § 2n"
6 three years.
1 Section 267. If a corporation which operates a railroad or a penalty on
2 street railway, by reason of its negligence or by reason of the un- for'ioss o? nfe
3 fitness or gross negligence of its agents or servants while engaged gen°JeSetcegU"
4 in its business, causes the death of a passenger, or of a person who Jjj*o> so- c<: , „
. . . ,, . „-. -ii- P . ,, 1853> iU> §§ 1-3.
5 is m the exercise of due care and who is not a passenger or 111 the p- s. 63, §§ 97-
6 employ of such corporation, it shall be punished by a fine of not 1m, 229, §§ 37,
7 less than five hundred nor more than five thousand dollars which isct, 164.
8 shall be recovered by an indictment prosecuted within one year If.1' 381' §§ 49,
9 after the time of the injury which caused the death, and shall be \Hf \H' |§]f •
10 paid to the executor or administrator, one-half thereof to the use of p* 6g m . 212
11 the widow and one-half to the use of the children of the deceased ; or, iss3, 243.'
12 if there are no children, the whole to the use of the widow; or, if iic'ush.'5i2.
13 there is no widow, the whole to the use of the next of kin ; but a 10 Alien, 189.
14 corporation which operates a railroad shall not be so liable for the loiMass.m
15 death of a person while walking or being upon its road contrary to Jos Mass! 7?6'
16 law or to the reasonable rules and regulations of the corporation. J|o Mass. 372.
17 Such corporation shall also be liable in damages in the sum of not JUjjJj^-gJj-
18 less than five hundred nor more than five thousand dollars, which 135 Mass! 44s!
19 shall be assessed with reference to the degree of culpability of the 139 Mass! 238,
20 corporation or of its servants or agents, and shall be recovered in Hi'iufss. 471.
21 an action of tort, commenced within one year after the injury which 1^ Mass! 426!
22 caused the death, by the executor or administrator of the deceased J^ Mass! Its
23 for the use of the persons hereinbefore specified in the case of an in- «g.
1 n 'i 1 ■ j« 1 • • j/i 168 Mass. 79,
24 dictment. If an employee of a railroad corporation, being in the ex- 113,300.
25 ercise of due care, is killed under such circumstances as would have 624.
1038
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
156 Mass. 316, entitled him to maintain an action for damages against such corpo-
159'Mass. 3, 536. ration if death had not resulted, the corporation shall be liable in
i6i Mass! It', the same manner and to the same extent as it would have been if
fel'Mass. 66. the deceased had not been an employee. But no executor or
163 Mass. 132, administrator shall, for the same cause, avail himself of more than
164 Mass. 425. one of the remedies given by the provisions of this section.
166 Mass. 492. 171 Mass. 33, 52, 164. 172 Mass. 211. 173 Mass. 136. 175 Mass. 181.
26
27
28
29
30
31
Liability for
damages in
case of col-
lision, etc.
1871, 352.
1874, 372, § 164.
1881, 199, §§ 2,
5,6.
P. S. 112, § 213.
120 Mass. 372.
125 Mass. 64.
129 Mass. 440.
133 Mass. 383,
491.
145 Mass. 286.
146 Mass. 241.
154 Mass. 402.
159 Mass. 493.
163 Mass. 132.
172 Mass. 98.
Section 268. If a person is injured in his person or property 1
by collision with the engines or cars of a railroad corporation at a 2
crossing such as is described in section one hundred and eighty-eight 3
and it appears that the corporation neglected to give the signals 4
required by said section, and that such neglect contributed to the 5
injury, the corporation shall be liable for all damages caused by the 6
collision, or to a fine recoverable by indictment as provided in 7
the preceding section, or, if the life of a person so injured is lost, 8
to damages recoverable in an action of tort, as provided in said sec- 9
tion, unless it is shown that, in addition to a mere want of ordinary 10
care, the person injured or the person who had charge of his per- 11
son or property was, at the time of the collision, guilty of gross or 12
wilful negligence, or was acting in violation of the law, and that 13
such gross or wilful negligence or unlawful act contributed to the 14
injury. 15
Non-liability
for acts of
expressmen.
1894, 469, § 3.
170 Mass. 464.
Section 269. A railroad corporation shall not be liable to any 1
person for personal injuries which may be caused by the acts or 2
omissions of any persons or companies who do an express business 3
over its road or of their servants or agents. 4
Loss by Are
■caused by
engine.
1837, 226, §§ 9,
10.
1840, 85, § 1.
O. S. 03, § 101.
1864, 229, § 34.
1871, 381, § 45.
1874, 372, § 106.
P. S. 112, § 214.
1895, 293.
13 Met. 99.
4 Cush. 288.
16 Grav, 71.
2 Allen, 331.
6 Allen, 87.
8 Allen, 438.
98 Mass. 414,
422.
103 Mass. 583.
118 Mass. 543.
121 Mass. 134.
DAMAGES BY FIRE.
Section 270. Every railroad corporation and street railway 1
company shall be liable in damages to a person or corporation 2
whose buildings or other property may be injured by fire communi- 3
cated by its locomotive engines, and shall have an insurable interest 4
in the property upon its route for which it may be so held liable, 5
and may procure insurance thereon in its own behalf. If it is held 6
liable in damages, it shall be entitled to the benefit of any insurance 7
effected upon such property by the owner thereof, less the cost of 8
premium and expense of recovery. The money received as 9
insurance shall be deducted from the damages, if recovered before 10
they are assessed ; and if not so recovered, the policy of insurance 11
shall be assigned to the corporation which is held liable in dam- 12
ages, and it may maintain an action thereon. 13
145 Mass. 129. 169 Mass. 398. 171 Mass. 245. 165 U. S. 1.
No prescrip-
tive right in
land of corpo-
ration.
1861, 100.
1874, 372, § 107.
P. S. 112, § 215.
ENCROACHMENT ON LANDS OF CORPORATION.
Section 271. No length of possession or occupancy of land
which belongs to a railroad corporation by an owner or occupier
of adjoining land, shall create in him or in a person who claims
under him a right to such land of the corporation.
146 Mass. 268. 161 Mass. 283.
1
2
3
4
Chap. 111.] railroad corporations and railroads. 1039
connecting railroads.
1 Section 272. If a railroad constructed after the eighth day of Connecting
2 April in the year eighteen hundred and seventy-two meets another panies ma^™~se
3 railroad which terminates in the same city or town, or lawfully roadSot ers
4 crosses another railroad at the same level therewith, the corporation iss?; 291,' §| 1,' I:
5 by which either of said roads is owned may enter its road upon, fyds- 68' §§ n8,
6 unite the same with and use the road of the other ; if a railroad JfoYI' § 12;
7 constructed after said day meets another railroad which passes is74, 372, § i65.
8 through the same city or town, the corporation by which either of p. s. 112, § 216.
9 said roads is owned may, with the written consent of the board and rd> >*-'•■-
10 upon such terms as the board upon due hearing prescribes, enter its
11 road upon, unite the same with and use the road of the other ; and
12 if a railroad corporation whose road was constructed prior to said
13 day is specially authorized to enter its road upon, unite the same
14 with and use the railroad of another corporation, each of such
15 corporations may enter upon, unite its road with and use the road
16 of the other; but no locomotive engine or other motive power
17 which is not owned and controlled by the corporation owning or
18 lawfully operating the road shall be allowed to run upon a railroad
19 except with the consent of such corporation.
1 Section 273. If two corporations are authorized as in the compensation
2 preceding section each to enter with its road upon, unite the same cars,etc!mg
3 with and use the road of the other, each of them shall at reasonable Jf4^; 291' |§2i, 3.
4 times and for a reasonable compensation draw over its road the g-_| -J^ §'Y^
5 passengers, merchandise and cars of the other, and each of them p. s. 112, § 217.
6 shall for a reasonable compensation provide upon its road con- 14 Alien, 469.
7 venient and suitable station accommodations for the passengers and
8 merchandise of the other corporation passing to and over it, and
9 shall receive and deliver the same in the manner it receives
10 and delivers its own passengers and freight.
1 Section 274. If the corporations cannot agree upon the stated tioneoT™tesaor
2 periods at which the cars of one shall be drawn over the other, and law. ijn. |§ i 2-4.
3 upon the compensation to be paid therefor, or upon the terms and isos', 10.'
4 conditions upon which accommodations shall be furnished for the pas- us. '
5 sengers and merchandise of the other, or if two corporations operat- Hf2', m, § I'.
6 ing roads of different gauges cannot agree as to the requisite terminal p.7|'. iil',§ m
7 accommodation, or as to the manner in which freight and passengers i4CGray3253
8 shall be transferred from one road to the other and forwarded, 266-
9 the board, upon the petition of either party and after notice to
10 the other, shall hear the parties, and determine, having reference
11 to the convenience and interest of the corporations and of the public
12 to be accommodated thereby, the stated periods for drawing cars,
13 the compensation therefor, the terms and conditions for passengers
14 and merchandise, or the requisite terminal accommodations and
15 manner of transferring passengers and freight as aforesaid ; and,
16 upon the application of either party, shall determine all questions
17 between the parties relative to the transportation of freight and
18 passengers and other business upon and connected with said roads
19 in which they are jointly interested and the manner in which the
20 business shall be done, and shall apportion to the corporations their
21 respective shares of the expenses, receipts and income of the same;
1040
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
and the award of the board shall be binding upon the respective 22
corporations for one year or until the board revises and alters the 23
same ; and the compensation of the board for services and expenses 24
under the provisions of this section shall be paid by the respective 25
corporations in such proportions as the board shall determine and 26
set forth in its award. Upon the request in writing of a party 27
affected thereby, filed with the board within thirty days after the 28
rendering thereof, the award shall be filed in the supreme judicial 29
court which shall have jurisdiction to revise it as if it had been 30
made by a commission appointed by said court. 31
Connecting
roads cbar-
Section 275. Railroad corporations which are created by the 1
tered by other ]aws 0f other states shall have all the rights and privileges relative 2
to connecting roads, under the provisions of the preceding three 3
4
states.
1860, 201.
p.' s. 112, §219. sections, of corporations which are created by this commonwealth.
Connecting
companies
may contract
that one shall
perform all
transportation
for the other.
1838, 90, §§ 1-3.
G. S. 63, §§ 115,
116.
1872, 180, § 1.
1873, 361.
1874, 372, § 170.
1880, 205, § 1.
P. S. 112, §§ 220,
221.
1894, 506, § 1.
10 Gray, 103.
5 Allen, 230.
8 Allen, 438.
[1 Op. A. G.
118.]
Section 276. Two railroad corporations which are incorporated 1
under the laws of this commonwealth and whose roads enter upon 2
or connect with each other may contract that either corporation 3
shall perform all the transportation upon and over the road of the 4
other ; and any such corporation may lease its road to any other 5
such corporation. The facilities for travel and business on either 6
of the roads of said corporations shall not thereby be diminished. 7
Such leases shall be upon such terms as the directors agree and as a 8
majority in interest of the stockholders of both corporations at meet- 9
ings called for the purpose approve, subject to the provisions of 10
section two hundred and seventy-eight. The income arising from 11
such contracts or leases shall be subject to the provisions of law 12
relative to the right of the commonwealth to purchase the roads of 13
the railroad corporations or to reduce their tolls, in the same manner 14
as that arising from the use of the roads. Copies of such contracts 15
or leases shall be deposited with the board, and full statements of 16
the facts shall be set forth in the next annual return of such corpora- 17
tions. The provisions of this section shall not authorize a lease or 18
contract between two railroad corporations each of which has a 19
terminus in the city of Boston. The roads of two railroad corpora- 20
tions shall be considered to enter upon or connect with each other, 21
within the meaning of this section, if one of such roads enters upon, 22
connects with or intersects a road leased to the other or operated by 23
it under a contract as herein authorized. 24
Term of lease
not to exceed
ninety-nine
years, etc.
1880, 205, § 2.
P. S. 112, § 222.
Leases, etc., to
be approved
by board.
1894, 506, § 1.
Section 277. A railroad corporation shall not lease or contract 1
for the operation of its road for a period of more than ninety-nine 2
years without the consent of the general court ; but the provisions 3
of this section shall not render invalid a lease which was approved 4
by the stockholders of a corporation before the first day of July in 5
the year eighteen hundred and eighty. 6
Section 278. No lease or purchase and sale of the franchise 1
and property of a railroad corporation or street railway company, 2
and no consolidation of two or more railroad corporations or street 3
railway companies, whether authorized by general or special law, 4
shall be valid or binding until the terms thereof shall, after notice 5
and a public hearing, have been approved by the board and a certifi- 6
Chap. 111.] railroad corporations and railroads. 1041
7 cate signed by the board, setting forth the vote of approval, shall
8 have been filed in the office of the secretary of the commonwealth.
9 The board shall announce its decision within thirty days after the
10 final hearing upon the application of any railroad corporation or
11 street railway company for permission to lease or sell to, consolidate
12 with or purchase the franchise and other property of, any other rail-
13 road corporation or street railway company.
RAILROADS FOR PRIVATE USE.
1 Section 279. A person or corporation may construct a railroad Rr^atedsfor
2 for private use in the transportation of freight ; but shall not take 1871> -^-
3 or use lands or other property therefor without the consent of the ne.' '"'
4 owner thereof. No such road shall be connected with a railroad 224.'
5 without the consent of the railroad corporation ; nor shall it be con- 156Mass-159-
6 structed across or upon a highway, town way or travelled place with-
7 out the consent of the mayor and aldermen of the city or selectmen
8 of the town, nor except in a place and manner approved by them.
9 If the mayor and aldermen or selectmen consent, they shall from
10 time to time make such regulations relative to the motive power to
11 be used, the rate of speed to be run and the time and manner of
12 using the road over and upon such way or travelled place, as in
13 their judgment the public safety and convenience require, and they
14 mav order such changes to be made in the track as are rendered
15 necessary by the alteration or repair of such way. If they allow
16 steam power to be used on such road, the provisions of this chapter
17 relative to the crossing of ways and travelled places by railroad
18 corporations shall apply to such road and to the person or corpora-
19 tion who construct or operate the same.
1 Section 280. If the consent of the board is required for the Regulation of
2 crossing of a way or travelled place by a railroad for private use, lggo.^sl8'
3 it may limit the number of tracks and may impose other conditions
4 relative to the use of the crossing by said railroad, and may from
5 time to time modify such limitations and conditions.
CORPORATIONS TO CONSTRUCT RAILROADS IN FOREIGN COUNTRIES.
1 Section 281. Fifteen or more persons, a majority of whom are corporation to
2 inhabitants of this commonwealth, may associate themselves by an roads in for-1'
3 agreement in writing, with the intention of forming a corporation fgfg, otmi'68'
4 to construct and operate a railroad or railroad and telegraph in any p- s- Ui> § 225-
5 foreign country, but in accordance with the laws of such country ;
6 and, upon complying with the provisions of section two hundred
7 and eighty-three, shall, with their associates and successors, be and
8 remain a corporation for the purpose aforesaid, with the powers
9 necessary and incident thereto, and with such powers and privi-
10 leges, and subject to such duties, liabilities and restrictions, as to
11 the location, construction, maintenance and operation of its railroad
12 and telegraph and the transfer of its property by mortgage, lease
13 or otherwise, as may be fixed by such country.
1 Section 282. The agreement of association shall set forth the Agreement of
2 name of the corporation , the names of at least nine persons to act w™ii4,Ti.
1 I'. 8. J 12, §226.
1042
RAILROAD CORPORATIONS AND RAILROADS. [CHAP. 111.
as a board of directors until others are chosen, the amount of its 3
capital stock and, as far as may be practicable, the termini of the 4
railroad and telegraph to be built. Each associate shall subscribe to 5
the agreement his name, residence, post office address and the 6
number of shares of stock which he agrees to take ; but no sub- 7
scriber shall be bound to pay more than ten per cent of the amount 8
of his subscription, unless a corporation is duly established. 9
Certificate of
compliance
with require-
ments.
1879, 274, § 3.
P. S. 112, § 227.
Section 283. When it is shown to the satisfaction of the board 1
that the requirements of the preceding two sections have been com- 2
plied with, the clerk of the board, upon its order, shall indorse 3
upon or annex to the agreement of association a certificate setting 4
forth that fact. The directors shall thereupon file the agreement 5
of association and certificate in the office of the secretary of the 6
commonwealth, who, upon the payment to him of a fee of fifty 7
dollars, shall record them in a book to be kept for that purpose, 8
and shall issue a certificate substantially in the following form : — 9
Certificate of
incorporation.
Commonwealth of Massachusetts.
Be it known, that whereas [names of the subscribers to the agreement of asso-
ciation] have associated themselves with the intention of forming a corporation,
under the name of the [name of the corporation] , for the purpose of locating,
constructing, maintaining and operating a railroad [or railroad and telegraph]
[description of the road as in the agreement of association] , and have complied
with the statutes of this commonwealth in such cases made and provided ; now,
therefore, I, , secretary of the commonwealth of Massachusetts, do hereby
certify that the persons aforesaid, their associates and successors, are legally
established as a corporation, under the name of the [name of the corporation],
with all the powers and privileges, and subject to all the duties, liabilities and
restrictions, set forth in the general laws applicable to such corporations.
In witness whereof, I have hereunto subscribed my official signature, and
affixed the seal of said commonwealth, this day of , in the year
[day, month and year] .
The certificate so executed shall be recorded with the agreement 10
of association ; and such certificate or a certified copy of the record 11
thereof shall be conclusive evidence of the establishment of the cor- 12
poration at the date of such certificate. 13
reductfon°of Section 284. The corporation may from time to time, at a 1
capitaistock. meeting of directors called for the purpose, reduce the amount 2
p. s. 112, § 228. of the capital stock, or increase it for the purpose of constructing 3
and equipping its road and extensions or branches thereof. If 4
such increase or reduction is made, a certificate of the fact, signed 5
by the president of the corporation, shall, within thirty days there- 6
after, be filed in the office of the secretary of the commonwealth. 7
Section 285. Such corporation shall be subject to the pro-
statutes gov-
erning such
i879P(274tl§>§58'6 visi°ns °f the first clause of section forty-eight and sections fifty-
139M112'' III'9' ^ve' fifty-eight, fifty-nine, sixty and seventy-eight of this chapter,
and of section fifty-two of chapter fourteen.
1
2
3
4
Chap. 112.] steeet railway companies. 1043
CHAPTEE 112.
OF STREET RAILWAY COMPANIES.
Section 1 . — Powers and Duties .
Sections 2-14. — Formation.
Sections 15-17 . — Meetings and Officers .
Sections 18-26. — Capital Stock. Assessments.
Sections 27-38. — Construction and Use of Tracks.
Sections 39-61. — Operation of Road. Streets.
Sections 62-68. — Crossings of Railroads.
Sections 69-75. — Fares and Accommodations.
Section 76. — Acquisition of Pleasure Resorts.
Sections 77-84. — Connecting Roads.
Sections 85-91. — Lease or Sale of Road.
Section 92. — Extension of Franchise .
Sections 93-98. — Books, Returns and Reports.
Sections 99, 100. — Additional Remedies.
POWERS AND DUTIES.
1 Section 1. Street railway companies shall be subject to the Powers and
2 provisions of this chapter. Companies which have been specially ra4iwayfcomeet
3 chartered shall continue to exercise and enjoy the powers and privi- ^^g §§i
4 leges granted and be subject to all the liabilities imposed by their ^4' 381' $5 /
5 respective charters, except as modified and controlled by any act 58.
6 in amendment thereof or by the provisions of this chapter. All p. s. 113, § 1.
7 street railway companies whether organized under general or special igoo| i97,§| i!28
8 laws shall be subject to any other general laws applicable thereto. ViAnen> 262-
9 All provisions of law which may be in force at the time of the
10 enactment hereof and are applicable to the Boston Elevated Eail-
11 way Company or to companies whose railways were, on the first
12 day of October in the year eighteen hundred and ninety-eight,
13 leased or operated by it shall remain in full force and effect in
14 respect to said company and companies. The provisions of law
15 relative to street railway companies shall, as far as applicable, apply
16 to a person, partnership or association constructing, maintaining or
17 operating, under authority of law, a street railway.
FORMATION.
1 Section 2. Fifteen or more persons may associate themselves Formation of
2 by an agreement in writing with the intention of forming a corpora- co^oratioT^
3 tion for the purpose of constructing and operating a street raibvay p^iS^fi.
4 for the conveyance of passengers ; and, upon complying with the
5 provisions of this chapter preliminary to the establishment of such
6 corporation, shall, with their associates and successors, be and re-
7 main a corporation.
1 Section 3. The agreement of association, the mode of sub- £**S?t;
2 scribing and the amount which subscribers shall be bound to pay ggxiiL1
3 thereon shall be governed by the provisions of section thirty-six of ism; 229; § 21.
1044 STREET RAILWAY COMPANIES. [CHAP. 112.
i87i, 38i, § 27. chapter one hundred and eleven, except that the gauge of a street 4
1877', 105. ' ' railway shall be four feet eight and one-half inches, the number of 5
directors named in the said agreement shall be seven instead of 6
nine, and the amount of the capital stock shall not be less than ten 7
thousand dollars for each mile unless the railway is to be wholly 8
outside of any city, in which case it may be not less than twenty- 9
five hundred dollars for each mile. 10
corporate Section 4. The corporate name shall be one which is not in 1
name. r .,.
1874, 29, §3. use by any other street railway company in this commonwealth and 2
shall contain the words ' ' street railway company " at the end thereof. 3
Directors to be Section 5. The directors shall be subscribers to the agreement 1
subscribers. ., . . o
cierk and of association, and a maioritv of them shall be inhabitants of the 2
1874, 29, §4. cities and towns in which said railway may be located. They shall 3
appoint a clerk and a treasurer, who shall hold their respective 4
offices until a clerk and treasurer of the corporation are chosen. 5
The directors shall fill any vacancy in their board, or in the office 6
of clerk or treasurer. 7
Agreement of Section 6. The directors, before proceeding to fix the route 1
association to -i-ii r>i /»
be published, of the road, shall cause a copy of the agreement of association to 2
p. s. 113, § e. be published in one or more newspapers in each county in which 3
the road is proposed to be located at least once in each of three sue- 4
cessive weeks. The sworn certificate of the clerk shall be evidence 5
of the publication. 6
tracks.011 °f Section 7 . The board of aldermen of a city or the selectmen of a 1
i87i' lii' I it' town, upon the petition of the board of directors of a company organ- 2
187*1 29, § 6.^ ized under the provisions of this chapter or under a special act or of 3
1898,' 578,' § i3. a majority of the directors of a company in process of organization 4
175 Mass! sis', under the provisions of this chapter for an original location of tracks 5
Jt89?f'A"G'392' in such city or town, shall give fourteen days' notice of the time and 6
place for a hearing on such petition by publication thereof in one or 7
more newspapers, if any, published in said city or town ; otherwise, 8
in one or more newspapers published in the county in which the 9
city or town is situated ; and if, after a hearing, they are of opinion 10
that public necessity and convenience so require, they shall grant 11
said location or any portion thereof, and may prescribe how the 12
tracks shall be laid and the kind of rails, poles, wires and other 13
appliances which shall be used, and impose such other terms, con- 14
ditions and obligations in addition to the general provisions of law 15
governing such companies as the public interest may in their 16
judgment require. Such location shall be the true location if, 17
within thirty days after receiving notice of the granting thereof, 18
the directors file a written acceptance thereof with the board of 19
aldermen or selectmen. If, within fifteen days after the granting 20
of such location, not less than ten owners of real estate which abuts 21
on a public way in which such location has been granted or a ma- 22
jority in value of such owners, as determined by the last preceding 23
assessment for taxation, file a written protest with the board of 24
railroad commissioners, the location in such way shall not be valid 25
until approved by said board after public notice and a hearing. A 26
Chap. 112.] street railway companies. 1045
27 street railway company shall not commence construction under a
28 grant of location as aforesaid until the expiration of the time for
29 filing such protest, nor, if such protest has been filed, until the
30 board of railroad commissioners has finally approved such location.
31 All locations which were granted or in use before the first day of
32 October in the year eighteen hundred and ninety-eight are ratified
33 and confirmed as if they had been accepted under the provisions
34 of this section and shall continue in force, subject only to revoca-
35 tion as provided in section thirty-two and to the general pro-
36 visions of law governing such companies.
1 Section 8 . When the track or tracks of the proposed company when tracks
2 have been so located, the corporation may be established, and the etc.^corpifra.
3 first meeting shall be called under the conditions and in the manner established.
4 provided for railroad corporations in sections forty-five, forty-six, p8 7|' li'3§| t-9'
5 and the first clause of section forty-eight, of chapter one hundred 1898,578,' §27.
6 and eleven, which shall apply to street railway companies as far as
7 appropriate, except so much of said section forty-six as requires a
8 payment to be made to the treasurer in excess of ten per cent of
9 the capital stock, or requires a bond or assurance.
1 Section 9. A street railway company heretofore or hereafter Location on
2 organized under the laws of this commonwealth or in process of iwi^osITl
3 organization thereunder, having first obtained the approval of the
4 aldermen of the city or selectmen of the town in which private land
5 is situated to the construction of its railway thereon, may, for the
6 purpose of avoiding grades and curves in a public street or way and
7 for such other purposes incidental to the use of the public streets
8 or ways as the board of railroad commissioners may in the manner
9 hereinafter provided approve, petition said board for authority to
10 construct and maintain parts of its railway and extensions thereof
11 upon such private land outside the limits of such public ways. The
12 company in such petition shall set forth the purpose for which
13 such authority is desired in each case, and shall file with the peti-
14 tion a plan, in such form and upon such scale as the board may
15 prescribe, of the proposed railway or extension, and of the localities
16 where it is desired to construct the same upon private land, and
17 said board, after public notice and a hearing, if it is satisfied that
18 public necessity and convenience demand that portions of the pro-
19 posed railway or extension should be built outside the limits of
20 public ways, substantially on the private land selected, and that
2 1 the approval of the aldermen or selectmen of the city or town in
22 which the land is situated has been obtained as aforesaid, may au-
23 thorize the petitioner to construct and operate its railway upon and
24 over private land, and for that purpose to purchase or lease private
25 land or rights therein and thereover, in such cases and to such
26 extent as the board is of opinion that public necessity and con-
27 venience in the construction and operation of the proposed railway
28 require. Said board in granting such authority may determine the
29 kind of construction to be used, the grade and alignment of the
30 tracks, and may order such special appliances to be furnished and
31 such safeguards to be adopted in the construction and operation of
32 the railway upon private land as, in its judgment, regard for public
33 necessity, convenience and safety demands.
1046
STREET RAILWAY COMPANIES.
[Chap. 112.
Regulation of
location on
private land.
1901, 503, § 2.
Location for
extension.
1898, 578, § 14.
Section 10. A street railway constructed, after the fourteenth 1
day of June in the year nineteen hundred and one, upon private 2
land shall not be opened for public use until the board, after an 3
examination, certifies that all laws relative to its construction and 4
all requirements of said board have been complied with, and that it 5
appears to be in a safe condition for operation. Said board may, 6
at any time after the opening of any street railway for public use, 7
order such changes and improvements to be made in the construe- 8
tion and operation of any part of the railway located on any private 9
land as in its judgment may be necessary for public safety in the 10
use thereof; and such order shall be complied with by the street . 11
railway company. 12
Section 11. A street railway company whose petition for an 1
original location, made necessary to connect two towns or cities or 2
a city and town, has in whole or in part been granted or refused, 3
or has been neither granted nor refused in such connecting town or 4
city within three months after the filing thereof, may, within thirty 5
days of such grant or refusal of a location, or of the expiration of 6
said three months, apply to the board of railroad commissioners 7
for such location . If it shall appear at a hearing on said applica- 8
tion, after such notice to the aldermen or selectmen and to all 9
persons who own real estate which abuts upon any way in which 10
such location was asked for, by publication or otherwise, as said board 11
may order, that the company has already been granted and has duly 12
accepted locations for a street railway in two towns or cities, or a 13
town and city, adjoining the city or town in which such location has 14
been asked for, and that a location is necessary to connect such 15
existing locations, said board may, if it finds that public necessity 16
and convenience so require, enter a decree granting a connecting 17
location. In granting the location said board may prescribe the 18
appliances and impose the conditions and obligations which are 19
specified or referred to in section seven relative to the granting of 20
original locations. No company shall commence construction under 21
an order of a board of aldermen or of selectmen granting a loca- 22
tion as aforesaid until the expiration of the time in which such 23
application may be made to the board of railroad commissioners, 24
nor, in case such application is made, until final action thereon has 25
been had. 26
Sale of railway
by receivers.
1900, 381, §§ 1,
2,6.
Section 12. A receiver of the property of a street railway 1
company may, by order of the court, sell and transfer the road and 2
property of such company, its locations and franchises, on such 3
terms and in such manner as the court may order. The purchasers 4
from such receiver, and a corporation organized under the provi- 5
sions of the following section, if such road has been transferred to 6
it, shall hold and possess said road, all its rights and franchises and 7
all property acquired in connection therewith, with the same rights 8
and privileges and subject to the same duties and liabilities as the 9
original street railway company ; but no action shall be brought 10
against such purchaser or such new corporation, to enforce any 11
liability incurred by said original corporation, except debts and 12
liabilities owing from said original corporation to any city or town 13
within which the road is operated and taxes and assessments for 14
Chap. 112.] street railway companies. 1047
15 which said original corporation is liable under the statutes relating
16 to street railways, which shall be assumed and paid by said new cor-
17 poration. The provisions of this section shall not impair the
1 8 powers of the holders of an outstanding mortgage to enforce their
19 rights by suit or otherwise.
1 Section 13. The purchasers at such sale shall, with their asso- organization
2 ciates, to the number of at least fifteen, within sixty days after such r'atfon! corpo"
3 sale, organize a corporation for the purpose of holding, owning and 1900>381>§3-
4 operating the street railway purchased, by filing an agreement of
5 association in the office of the secretary of the commonwealth set-
6 ting forth the name of the corporation, the name of the corporation
7 whose property and franchises have been purchased, the name of
8 each city, town and county through which the route of the pur-
9 chased street railway extends, the termini of said railway, the name
10 of the court by which the sale was ordered, the date of such order,
11 the date of the sale, the amount of the capital stock of the suc-
12 cessor corporation and the names of at least seven persons to act as
13 a board of directors until others are chosen by the corporation.
14 Each associate shall subscribe to the agreement of association his
15 name, residence, post office address and the number of shares of
16 stock which he agrees to take. The secretary of the commonwealth
17 shall record the agreement of association in a book kept by him for
18 this purpose and shall issue a certificate of incorporation in the
19 form which is authorized by section forty-six of chapter one hun-
20 dred and eleven. When said certificate is issued the corporation
21 shall organize in the manner provided for the organization of street
22 railway companies in section eight. A corporation which is organ-
23 ized under the provisions of this section may begin business as soon
24 as it is organized. If said purchasers fail to organize a corporation
25 as herein provided, all rights and powers to operate said road shall
26 thereupon cease.
1 Section 14. The capital of a corporation which is organized anSdutie^of8
2 under the authority of the preceding section shall be fixed at an |^eg81 §§4 5
3 amount approved by the board of railroad commissioners, but shall
4 not exceed the fair cost of replacing the road and property so ac-
5 quired, less the amount of any outstanding mortgages to which the
6 property may remain subject in the hands of such new corpora-
7 tion. Such cost of replacing shall be determined by the board
8 upon the application of the corporation. Such corporation shall
9 have all the rights and be subject to all the duties of street rail-
10 way companies, except as otherwise provided in the two preceding
11 sections.
MEETINGS AND OFFICERS.
1 Section 15. The stockholders of every street railway company officers.
2 shall annually choose by ballot from their own number a board i87i! ssi' 1 2!
3 of not less than five directors, who shall hold their offices for one mWBeAei.
4 year and until others are chosen in their places. The immediate
5 government and direction of the affairs of the company shall be
6 vested in the directors, who shall elect one of their number to
7 be president of the board and of the company, a clerk, who shall be
8 sworn, and a treasurer, who shall give bond with sufficient sureties,
1048
STREET RAILWAY COMPANIES.
[Chap. 112.
in the sum required by the by-laws, for the faithful performance of 9
his duties. 10
meetings. Section 16. The meetings of such company shall be called and 1
i87i' iii' 1 1' notified in the manner provided in its by-laws , or, if the by-laws make 2
p. s. 113, § lb. no provision therefor, in the manner provided in sections thirteen 3
and fourteen of chapter one hundred and nine, as the case may be. 4
Votes
Proxies
Section 17. At all meetings each stockholder shall be entitled 1
ilfi' ill' llf'i* ^° one v0^e f°r eacn snare h^d by him, not exceeding one-tenth 2
p. s. ii3, §§ ii, part of the whole capital stock, unless the vote of a certain propor- 3
1889, 2io. tion of the capital stock is required by law. No vote shall be given 4
upon shares which are owned by the company or which are pledged 5
in any form to or for its benefit. No proxy shall be valid unless 6
executed and dated within six months previous to the meeting at 7
which it is used. 8
Issue of cer-
tiflcate. Con-
veyance of
shares.
1864, 229, §§ 6,
10.
1S71, 381, §§ 7,
10.
1SS1, 302.
P. S. 113, § 13.
150 Mass. 200.
Directors per-
sonally liable,
when.
1864, 229, § 6.
1871, 381, § 7.
P. S. 113, § 14.
CAPITAL STOCK. ASSESSMENTS.
Section 18. No certificate of stock in a street railway company 1
shall be issued until the par value thereof shall have been actually 2
paid in in cash. The shares may be transferred by a conveyance in 3
writing, recorded either by the treasurer or by an officer duly author- 4
ized by the directors, in books to be kept at such place within the 5
commonwealth as they may appoint. No conveyance of shares, 6
unless so recorded, shall be valid against any person other than the 7
grantor or his legal representatives, except as provided in sections 8
thirty-six and thirty-seven of chapter one hundred and nine. Upon 9
making the transfer and surrendering the old certificate, a new cer- 10
tificate shall be granted. 11
Section 19. The directors of a street railway company shall 1
be jointly and severally liable, to the extent of its capital stock, for 2
all its debts and contracts until the whole amount of its capital 3
stock as originally fixed by its agreement of association, or if a 4
chartered company, by its directors, shall have been paid in, and a 5
certificate stating the amount thereof so fixed and paid in shall have 6
been signed and sworn to by its president, treasurer, clerk and a 7
majority of its directors, and filed in the office of the secretary 8
of the commonwealth. 9
Increase of
capital stock.
1864, 229, § 7.
1871, 381, § 8.
1874, 29, § 15.
P. S. 113, § 15.
1887, 366.
1896, 409.
Section 20. A street railway company for the purpose of build- 1
ing and equipping a branch or extension of its road upon a location 2
duly granted or extended, or for other necessary and lawful pur- 3
poses set forth in its petition to the board for authority therefor, 4
may, from time to time, in accordance with the provisions of sec- 5
tions twenty-four, thirty and thirty-one of chapter one hundred and 6
nine, increase the capital stock beyond the amount fixed and limited 7
by its agreement of association, or by any act of the general court 8
relative thereto. If it appears that the assets or capital stock of a 9
company are impaired, the board may prescribe such conditions and 10
requirements as it considers proper, and shall state in its annual 11
report the amount of such impairment and the conditions and re- 12
quirements which were imposed. 13
CHAP. 112.] STREET RAILWAY COMPANIES. 1049
1 Section 21. A street railway company may issue capital stock ^c[teaa1seof,
2 to the amount which the board shall find to have been actually paid <» pay high.
3 by, or to have become a legal liability of, such company under the ment^sess
4 provisions of sections thirty, thirty-three and thirty-four. 1898,578,^22.
1 Section 22. Upon the petition of a street railway company for Reduction of
2 authority to reduce its capital stock, presented in accordance with a i89Po?326\tock"
3 vote of the stockholders at a meeting called for the purpose, the
4 board may, after a hearing and such examination of the financial
5 condition of the company as it considers necessary, authorize such
6 reduction to be made if it appears to be consistent with the public
7 interest and with the limitations imposed by general or special laws.
8 A certificate of the amount of the reduction and of any terms and
9 conditions imposed shall be forthwith filed by the board in the office
10 of the secretary of the commonwealth. When such reduction is
11 made, no money or other property shall be paid or transferred to the
12 stockholders unless specially authorized by the board, and by a vote
13 of the directors of the corporation taken by yeas and nays at a
14 meeting called for the purpose. The directors who vote therefor
15 shall be jointly and severally liable for the debts or contracts of the
16 company which exist at the time when the capital stock is reduced,
17 to the extent of the money or property paid or transferred to the
18 stockholders.
1 Section 23. A street railway company which has no preferred ^Jfage
2 stock may, by vote of a majority in interest of its stockholders i889, 316, §§1,
3 at a meeting: called for the purpose, in accordance with the pro- 1892, 192.
• • 1 157 Mass 37
4 visions of this section and of sections twenty-four and twenty-five
5 of chapter one hundred and nine, authorize the issue of coupon or
6 registered bonds in amounts of not less than one hundred dollars
7 each, payable at periods of not more than twenty years after the
8 date thereof, secured by a mortgage of a part or of the whole of
9 its railway, equipments, franchise and other property, real or per-
10 sonal, to provide means for construction and equipment, for funding
11 so much of its floating debt as may have been incurred for con-
12 struction, for the purchase of such real or personal estate as may
13 have been necessary or convenient for the operation of its road,
14 for refunding its funded debt, to provide means for building and
15 equipping a branch or extension upon a location duly granted or
16 extended or for the contemplated purchase of such additional real
17 or personal property as may be necessary or convenient for the
18 operation of its railway. Such bonds shall be recorded by the
19 treasurer in books to be kept in his office, and shall not be issued
20 until the board is satisfied that the value of the constructed tracks,
2.1 the equipments and the other real and personal property of the
22 company, taken at a fair value for railway purposes, and excluding
23 the value of the franchise, equals or exceeds the amount of the
24 capital stock outstanding and the debt and, after an examination of
25 the assets and liabilities of the compan}^ and such further investiga-
26 tion as it considers expedient, shall by vote approve their issue, nor
27 until the bonds shall have been approved by a person appointed by
28 the company for that purpose, who shall certify that they are
29 properly issued and recorded. The vote approving such issue shall
30 be in accordance with the provisions of section twenty-four of
1050
STREET RAILWAY COMPANIES.
[Chap. 112.
chapter one hundred and nine and shall specify the rate of interest, 31
not exceeding six per cent per annum, which such bonds shall bear. 32
Tppuifabfeto Section 24. The provisions of sections sixty-four to seventy, 1
i889d3i6 «3 inclusive, of chapter one hundred and eleven shall apply to street 2
railway companies which act under the provisions of the preceding 3
section. 4
laieeofI8hares Section 25. The directors may from time to time assess upon 1
1864 o-29 ««8 9 a^ ^e shares subscribed but not paid in, such amounts of money 2
i87i| 38i', § 9.' " which are not in excess of their par value, as they think proper, 3
' ' and may direct the same to be paid to the treasurer, who shall give 4
written notice thereof to the subscribers. If a subscriber neglects 5
to pay his assessment for thirty days after such notice, the directors 6
may transfer the rights under such subscription to any person who 7
subscribes for the same and pays the assessments due, or may order 8
the treasurer, after giving notice of the sale, to sell such shares by 9
public auction to the highest bidder and, upon the payment by him 10
to the corporation of the unpaid assessments, of interest to the date 11
of sale and of the charges of the sale, the shares shall be transferred 12
to him. If, within thirty days after the sale, the purchaser does 13
not make said payment to the corporation, the sale shall be cancelled 14
and the subscriber shall be liable to the corporation for the unpaid 15
assessments, the interest thereon and the charges of sale. If the 16
amount so paid by the purchaser to the corporation is more than the 17
amount for which the shares were sold, the subscriber shall be liable 18
to the purchaser for the deficiency, if it is less, the purchaser shall 19
be liable to the subscriber for the surplus. 20
Companies
may nold real
and personal
estate.
1864, 229, § 13.
1871, 381, § 13.
1874, 29, § 10.
P. S. 113, § 18.
Section 26. A street railway company may purchase and hold 1
such real and personal estate as may be necessary or convenient 2
for the operation of its road ; but it shall not, except as provided 3
in section eighty-seven, directly or indirectly, subscribe for, take or 4
hold stock or bonds of a street railway company which is organized 5
under the general laws unless specially so authorized by the general 6
court. 7
Certificate to
be filed.
1864, '229, § 6.
1871, 381, § 6.
P. S. 113, § 19.
141 Mass. 496.
CONSTRUCTION AND USE OF TRACKS.
Section 27. No street railway company shall begin to build its 1
road until it shall have filed in the office of the secretary of the com- 2
mon wealth a certificate, signed and sworn to by its president, treas- 3
urer, clerk and a majority of its directors, stating that the amount 4
of its capital stock has been unconditionally subscribed for by re- 5
sponsible parties, and that fifty per cent of the par value of each 6
share thereof has been actually paid in in cash. 7
Road to be
built, etc.,
within eight-
een months.
1857, 198.
G. S. 63, § 140.
1864, 229, § 12.
Section 28. If a street railway company does not build and put 1
in operation some portion of its road within eighteen months after 2
the date of its certificate of establishment, its corporate powers shall 3
cease.
1871, 381, § 12.
P. S. 113, § 20.
On private
ian6?rlvate Section 29. Except as provided in this chapter and except 1
i9oi, 503, §§3, 4. for the purpose of reaching its car barns or repair shops, and of 2
Chap. 112.] street railway companies. 1051
3 reaching and providing convenient terminals in parks and pleasure
4 resorts situated upon the line of its railway, a street railway com-
5 pany shall not, unless authorized by special act of the general court
6 so to do, construct or operate any part of its railway outside the
7 limits of a public highway, street or bridge ; but a street railway
8 company which, prior to the fourteenth day of June in the year
9 nineteen hundred and one, without special legislative authority
10 therefor constructed any part of its railway upon private land, with
11 the consent of the owners of such land, or upon land leased or pur-
12 chased by such company, or which prior to said date purchased or
13 leased land for the purpose of constructing its railway thereon, or
14 which prior to said date after public notice and a hearing obtained
15 the approval of the aldermen of a city or of the selectmen of a
16 town to the construction of a part of its railway upon private land
17 within such city or town, and prior to said date actually with the
18 consent of the owners of the land began, or obtained their consent
19 to begin, such construction, may construct, maintain and operate its
20 railway upon such private land, subject however to the provisions
21 of this or the preceding chapter giving control to the board over
22 street railways constructed upon private land.
1 Section 30. The board of aldermen of a city or the selectmen Location,
2 of a town, upon the petition of fifty legal voters or of the directors lsW^Tii."
3 of a street railway company whose tracks are located in said city or lsgf ; 57I,' | fs .*
4 town, after notice and a hearing as provided in section seven, may [iopaA.' g85'
5 grant a location for the extension of the tracks of such company and 392> 489-]
6 prescribe how said tracks shall be laid and the kinds of rails, poles,
7 wires and other appliances which shall be used ; but they shall im-
8 pose no terms or conditions to such grant in addition to those im-
9 posed by general laws on street railways in force on the first day of
10 October in the }^ear eighteen hundred and ninety-eight, or such as
11 may have been imposed in the original grant of location to such
12 company in such city or town subsequent to said date. The pro-
13 visions of section seven as to acceptance and as to protest of abut-
14 ters and approval by the board of railroad commissioners shall apply
15 to grants of extensions under the provisions of this section.
1 Section 31. The board of aldermen of a city or the selectmen -alteration of.
2 of a town, upon the petition of the directors of a street railway 1371! 38i)-§ is!
i T* S IIS 6 22
3 company whose tracks are located in said city or town, or upon the i898,'578,'§i6."
4 petition of any interested party, after notice and a hearing as pro- *| JgJJ ^;
5 vided in section seven, may alter the location of the tracks in the |^g9fjG-
6 manner prescribed in, and subject to the provisions of, the preced-
7 ing section. Such alterations shall be made by such company within
8 such time, and the expense thereof shall be borne by such party or
9 parties, and in such proportions, as the board of aldermen or select-
10 men may determine.
1 Section 32. The board of aldermen of a city or the selectmen -revocation
2 of a town, after the expiration of one year from the opening for use ism, 229, § is.
3 of a street railway in their city or town, and after notice as provided J^'381' §§ 16>
4 in section seven, and a hearing, if the public necessity and con- £ s. m, §§ 23,
5 venience in the use of the streets so require, may, for good and |ff^^;
6 sufficient reasons to be stated in the order therefor, revoke the
1052 STREET RAILWAY COMPANIES. [CHAP. 112.
location of a street railway in any highway or street in said city or 7
town ; but unless, within thirty days after such order of revocation, 8
the company consents thereto in writing, such order shall not be 9
valid until approved by the board of railroad commissioners after 10
public notice and a hearing. Upon the approval of such order of 11
revocation, the company shall remove the railway in conformity 12
with such order and shall put the surface of streets which has been 13
disturbed by such removal into as good condition as the adjacent 14
surface of said streets. If the company neglects to comply with 15
such order after thirty days' notice of the approval thereof, the board 16
of aldermen or the selectmen may cause it to be executed and the 17
work to be done at the expense of the company, and such expense 18
shall be recovered in an action of tort. 19
paSrteofnexnt °f Section 33. If application is made for a location in a street or 1
wldenin street highway m which no street car tracks are located, and such street 2
1898, 578, § 19. or highway is widened under the provisions of chapter fifty by an 3
order declaring the widening to be rendered necessary for the public 4
convenience for the purpose of granting such location of street rail- 5
way tracks therein, a proportionate share of the expense of such 6
widening may be assessed upon a street railway company which 7
accepts a location in the street or highway so widened ; but the 8
amount of such assessment, in addition to the amounts assessed 9
on real estate, shall not exceed one-half of the total cost of such 10
widening. 11
•&•
^!radeofUon Section 34. If a street or highway in which the tracks of a 1
lm 57sy § 20 street railway company have been located for a period of five years 2
is altered, or if the grade thereof is changed under the provisions 3
of chapter fifty, the company shall pay such proportionate share of 4
the expense thereof, including therein the necessary cost of chang- 5
ing its railway to conform to such alteration or change of grade, as 6
may be assessed upon it, provided that no such assessment shall 7
exceed the aggregate amount of all the betterments assessed upon 8
real estate, and that no such assessment shall exceed one-quarter 9
of the total cost of such alteration or change of grade. 10
iawrappncSbi°e Section 35. The provisions of chapter fifty relative to the 1
1898 578 §21 assessment of betterments on real estate, so far as applicable, shall 2
apply to assessments made under the provisions of the two preced- 3
ing sections. Said assessments shall be collected according to the 4
provisions of chapter thirteen. 5
taken up! be Section 36. If a street railway company voluntarily discon- 1
i864ei229 § 19 tmues the use of any part of its tracks for a period of six months, 2
i87i! 38i| § 25! the streets or highways occupied thereby shall, upon the order 3
of the board of aldermen or selectmen, forthwith, at the expense 4
of the company, be cleared of said tracks, and be put into as good 5
condition for public travel as they were in immediately before 6
being so occupied. 7
dls?™npt?nuance Section 37. The board of aldermen or selectmen may order a 1
of- street railway company to discontinue temporarily the use of any 2
Chap. 112.] street railway companies. 1053
3 tracks within the limits of their city or town if they determine 1864, 229, § 20.
4 that the safety or convenience of the inhabitants so requires. pJs'.iik, § m?.
1 Section 38. If the selectmen of a town and the president of a Location of
2 street railway company make application to the Massachusetts highway p^ed tobe
3 commission, and with the application submit satisfactory plans, pro- £0ntroi arder
4 files and cross-sections of a way which the selectmen, or the county highwaycom-
. 1 . -1 1 t i mission.
5 commissioners 01 the county in which the town lies, have in writing 1901,414.
6 requested the commonwealth to take charge of, said commission
7 shall indicate on such plans and profiles a location and grade for
8 the tracks of said street railway company. If said commission
9 considers said way suitable for a state highway, and said commis-
10 sion and the president of said street railway company agree as to
11 the proportionate part of the cost of constructing it which shall be
12 paid by the commonwealth and by the street railway company,
13 then said commission may pay, out of the appropriations for the
14 construction and repair of state highways, said proportionate part
15 of the damages sustained by a person whose property is injured
16 by the construction of such state highway, and of the cost of grading
17 said road to the lines established by the Massachusetts highway
18 commission. A way which is graded under the provisions of this
19 section shall remain a town way or a highway, subject to all laws
20 relative thereto, until said way is taken charge of as a state high-
21 way by the commonwealth.
OPERATION OF ROAD. STREETS.
1 Section 39. A street railway or branch or extension of a opening for
2 street railway shall not be opened for public use until the board, 1901,368.
3 after an examination, certifies that all laws relative to its construc-
4 tion have been complied with, and that it appears to be in a safe
5 condition for operation.
1 Section 40. The board of aldermen or the selectmen may from Rules as to
2 time to time establish such regulations as to the rate of speed and etc* of spee '
3 as to the mode of use of the tracks within their city or town as the Jj$f; |?; f/fg,
4 interest and convenience of the public may require, and a street ^; s 113) §§ 27>
5 railway company whose servants or agents wilfully or negligently ^-Allen 287
6 violate any such regulation shall forfeit not more than five hundred 167 Mass. 49.*
7 dollars for each offence.
1 Section 41. Street railway companies shall clear snow from clearing snow
_ ,, ,. , J , ii_xi • from tracks.
2 their tracks in such a manner as may be approved by the superm- i898, svs, § 12.
3 tendent of streets, or by any officer who exercises like powers in the
4 city or town in which such tracks are situated.
1 Section 42. The board of aldermen or the selectmen may from use of cars,
2 time to time make such regulations as to the manner and extent of regulated.''
3 use of tracks, and the number and routes of cars of any and all com- Jjj$; f&} 13-
4 panies which run over such tracks within their city or town, as the ^s.ii8,§§29,
5 interest of public travel may require, and, subject thereto, the direct-
6 ors of a street railway company may from time to time establish
7 regulations for the use of its road and cars, subject to the approval,
8 revision or alteration of the board of railroad commissioners.
1054
STREET RAILWAY COMPANIES.
[Chap. 112.
takenup,aetebe Section 43. Cities or towns which, for any lawful purpose, 1
lPi'lli'Uo *a^e UP' a^er or discontinue streets or highways in which the 2
p. s'. ii3, §31. tracks of a street railway are located, shall not be liable in damages 3
1QS TVTooo SKI J ©
135 Mass. 551.
therefor to the street railway company.
— portion of,
to be kept in
repair.
1864, 2-29, § 18.
1866, 286.
1871, 381, § 21.
1881, 121.
P. S. 113, § 32.
1898, 578, § 11.
104 Mass. 18.
109 Mass. 221,
525.
112 Mass. 57.
116 Mass. 420.
130 Mass. 492.
132 Mass. 178.
149 Mass. 335.
168 Mass. 556.
169 Mass. 508.
173 Mass. 587.
Company
liable for
defect in high-
way, when.
1866, 286.
1871, 381, § 22.
P. S. 113, § 33.
112 Mass. 48.
Guard 8 to be
maintained
upon bridges,
etc.
Section 44. Street railway companies shall not be required to 1
keep any portion of the surface material of streets, roads and bridges 2
in repair, but they shall remain subject to all legal obligations im- 3
posed in original grants of locations and may, as incident to their 4
corporate franchise, and without being subject to the payment of 5
any fee or to any other condition precedent, open any street, road or 6
bridge in which any part of their railway is located, for the purpose 7
of making repairs or renewals of the railway, or of any part thereof, 8
the superintendent of streets or other officer who exercises like 9
authority, or the board of aldermen or selectmen issuing the neces- 10
sary permits therefor in a city or town in which such are required. 11
If, during the original construction or subsequent alteration or ex- 12
tension or the making of any such repairs or renewals of any 13
railway or a portion thereof, said surface material is disturbed, the 14
companjr which owns or operates such railway shall, at its own 15
cost, except as provided in sections thirty-one and sixty-one, 16
replace to the reasonable satisfaction of the superintendent of 17
streets, or other officer who exercises like authority, said surface 18
material with the same form of construction as that which was 19
disturbed, or, by first obtaining the approval thereof by such 20
officer, with a different material and form of construction, and shall 21
restore said street, road or bridge to as good condition as existed 22
at the time of such disturbance. A street railway company shall 23
be liable for any loss or injury which may be sustained by any per- 24
son in the management and use of its tracks and during the con- 25
struction, alteration, extension, repair or renewal of its railway, or 26
while replacing the surface of any street which may have been dis- 27
turbed as aforesaid, and which results from the carelessness, neglect 28
or misconduct of its agents or servants who are engaged in the 29
prosecution of such work, if notice of such loss or injury is given 30
to the company and an action therefor is commenced in the manner 31
provided by section twenty of chapter fifty-one. The provisions 32
of this section shall not affect the duties or liabilities of any street 33
railway company for or concerning the construction or maintenance 34
of any bridge or part thereof which any private person or corpora- 35
tion maybe liable, in whole or in part, to construct or maintain. 36
Section 45. If, upon the trial of an action against a city, town, 1
railroad corporation or bridge corporation, the plaintiff recovers 2
damages for an injury to his person or property which was caused by 3
reason of a defect in a street, highway or bridge which is occupied 4
by the tracks of a street railway company, and the street railway 5
company is liable for such damages and has had reasonable notice to 6
defend the action, the city, town, railroad corporation or bridge 7
corporation may recover the damages, and all the costs of both plain- 8
tiff and defendant in the action from the street railway company. 9
Section 46. Every street railway company shall erect and 1
maintain suitable guards or railings upon every bridge or draw of 2
Chap. 112.] street railway companies. 1055
3 a bridge which is crossed by its track, which shall be sufficient to mo, 306.
4 prevent its cars from running off and shall be satisfactory to the If.1' m' §§ 23,
5 board of aldermen of the city or the selectmen of the town in f5' s> 113> §§ u'
6 which such draw or bridge or any portion thereof is situated. If,
7 for sixty days after service upon it of an order of a board of alder-
8 men or the selectmen relative to such guards or railings, it neglects
9 to comply therewith, it shall, for each month of such neglect sub-
10 sequent to said sixty days, forfeit two hundred dollars, to the use
11 of the city or town.
1 Section 47. The board of aldermen or the selectmen mav estab- Notice ofap.
_,.,, -!,• ..!-,. J proacn or cars.
2 lish such regulations, requiring the driver, motorman or conductor ^>|29>§22-
3 to give notice or warning of the approach of street cars, as shall in p. s'. m', § 36.
4 their opinion best secure the unobstructed use of the tracks and the
5 free passage of the cars.
1 Section 48. Whoever wilfully and maliciously obstructs a street penaity for
2 railway company in the legal use of a railway track, or delays the tracks.
• • • 1864 229 § 22
3 passing of the cars or railway carriages thereon, or aids in or abets i87i! 38i| § 29!
4 such detention or delay, shall be punished by a fine of not more 1901,' 452.' §37'
5 than five hundred dollars or by imprisonment for not more than 7AUen>573.
6 three months.
7 Whoever commits any of said acts in such manner as to endanger
8 the life or safety of persons conveyed in or upon said cars or railway
9 carriages, or aids or assists therein, shall be punished by imprison-
10 ment in the state prison for not more than ten years, or by a fine
11 of not more than one thousand dollars.
1 Section 49. If a street railway company, its agents or servants, — forobstruc
2 wilfully or negligently obstruct a street or highway, or hinder the 1864, ^L8*^8'
3 passing of carriages over the same, or wilfully detain the cars of pjs.ii3, §38.
4 another company which has the lawful right to pass thereon, it
5 shall be punished by a fine of not more than five hundred dollars ;
6 and any such agent or servant shall be punished by a fine of not
7 more than ten dollars or by imprisonment for not more than three
8 months.
1 Section 50. If a street railway company, its agents or servants — for allowing
• sales bv chil
2 allow a child under the age of ten years to enter upon or into drenoncars.
3 any of its cars for the purpose of selling newspapers or other arti- 1889>229-
4 cles therein or offering them for sale, it shall forfeit fifty dollars for
5 each offence which shall be recovered by any person by an action
6 brought within three months after the offence has been committed.
6*
1 Section 51. A street railway company may use such motive Motive power.
2 power on its tracks as the board of aldermen of cities or the select- mi, ssi, § u.
3 men of towns, through which its tracks are located, may from time r- s- 113» § 39-
4 to time permit.
irds.
1 Section 52. A street railway company shall equip its cars, Fenders and
2 when in use, unless propelled by horse power, with s-ich fenders vsxfdE*'
3 and wheel guards as may be required by the board, and the board HIS;!?!; 5
4 may, from time to time, modify its requirements.
1056
STREET RAILWAY COMPANIES.
[Chap. 112.
Heating of
street cars.
1895, 136.
Section 53. The board shall require street railway companies 1
to heat their cars when in use for the transportation of passengers, 2
at such times, by such means and to such extent, as the board 3
determines, and a company shall forfeit twenty-five dollars for each 4
trip run by any of its cars not so heated unless in case of accident 5
to the heating process or apparatus. The district police shall cause 6
the provisions of this section to be enforced. 7
fingecari9?ink" Section 54. A street railway company may allow street sprink- 1
1897,315. ling cars or similar apparatus to be used upon its tracks, may fur- 2
nish the motive power and use of tracks or other facilities, and may 3
make contracts therefor ; but the provisions of this section shall be 4
operative in the city of Boston only to such extent and subject to 5
such regulations and restrictions as the board, having regard to the (>
necessities of public travel, may approve. 7
Gravel, etc.,
cars.
1898, 328.
Section 55. A street railway company may, with the consent of 1
the mayor and board of aldermen of a city or the selectmen of a town, 2
convey, in cars operated by electricity or horse power, over its tracks 3
snow, ice, stones, gravel, dirt or street sweepings taken from any 4
street or way over or through which its tracks are located, for the 5
purpose of improving said street or way, or may convey to any point 6
on its line necessary material for use in the construction, grading, 7
repairing or improving of such street or way. 8
Enclosed plat-
forms.
1897, 452, § 1.
1900, 414, § 1.
Section 56. On and after the first day of December in the year 1
nineteen hundred and two, all street cars in use for the transporta- 2
tion of passengers in December, January, February and March in 3
each year, except as provided in the following section, shall have 4
their platforms enclosed in such manner as to protect the motor- 5
men, conductors or other employees who operate such cars from 6
exposure to wind and weather in such manner as the board shall 7
approve. 8
Decisions of Section 57. All decisions heretofore rendered by said board 1
thereto. under any provision of law shall continue to have the same force 2
1 SO1- A.R9
1900U14! and effect as they have at the time when this act takes effect, but 3
4
they shall be subject to revision by the board.
Definition.
1897, 452, § 2.
1900, 414, § 3.
Section 58. Such street cars shall include all street cars which 1
are operated by steam or electricity, which, while in motion, require 2
the constant care or service of an employee upon the platforms of 3
the car or upon one of them. 4
F897al452' § 3 Section 59. A street railway company which fails or neglects 1
i9ooJ4i4;§§4,5. to comply with the provisions of the three preceding sections shall 2
be punished by a fine of not more than one hundred dollars for 3
each day during which such neglect continues, and a superintendent 4
or manager of such street railway who causes or permits such viola- 5
tion shall be jointly and severally liable with said railway to said 6
fine, and, in default of payment thereof, may be committed to jail 7
until the fine is paid, but for not more than three months. 8
Chap. 112.] street railway companies. 1057
1 Section 60. A street railway company whose railway is con- Provisions of
2 structed in part outside the limits of public ways shall, with respect iS.Toi!^ 5ble"
3 to the equipment, use and operation of its railway and transportation
4 thereon, be subject to all the provisions of law relative to street
5 railways and street railway companies, as fully as if its railway were
6 located wholly within the limits of public ways.
1 Section 61. If a public way in which a street railway location supervision by
2 has been granted shall be thereafter laid out, taken charge of or co^JisliZ*7
3 constructed by or under the authority of the state highway commis- 1898' 578' § u'
4 sion, said commission shall thereafter, relative to the location and
5 maintenance of street railways upon such state highway, have the
6 same authority and exercise it in the same manner and subject to
7 the same provisions as is conferred by the provisions of sections
8 seven, eleven, thirty, thirty-one, thirty-two and forty-four upon
9 boards of aldermen and selectmen, but subject to the same rights of
10 abutters and of the street railway company, as is provided in sec-
11 tion seven with respect to the relocation and maintenance of street
12 railways in other public ways which are not under the charge of said
13 commission.
CROSSINGS OF RAILROADS.
1 Section 62. If a street railway crosses at the same level a cars to stop at
2 steam railroad where locomotive engines are in daily use, every crossings.
3 driver or motorman of a car upon the street railway shall, when g^I.^'Imz.
4 approaching the point of intersection, stop his car within one hun- if^' Is?' f s3^
5 dred feet of the crossing. For each violation of the provisions of i?-g' ,,»' 5S41'
6 this section, the driver or motorman shall forfeit ten dollars and the 42.
7 company which employs him shall forfeit twenty dollars.
1 Section 63. A street railway shall not be constructed across Grade cross-
2 the tracks of a railroad nor shall a railroad be constructed across islf, 229,u§ ^^
3 the tracks of a street railway at the same level therewith without the pj^.m, §40.
4 consent of the board of railroad commissioners or of a special board gfeVn'MW
5 of commissioners appointed as provided in the following section.
1 Section 64. A corporation which desires to construct its rail- commission.
2 road across the tracks of a street railway or to construct its street 1895> 426> § 2-
3 railway across the tracks of a railroad at the same level therewith
4 may elect whether the right to cross shall be determined by the
5 board of railroad commissioners or by a board of special commis-
6 sioners, and, upon exercising its election, its right to apply to the
7 other board shall cease. If it elects a board of special commis-
8 sioners, it shall apply to the superior court for the county in which
9 the crossing is proposed to be made, which, after notice to all the
10 parties interested and a hearing, shall appoint a commission of three
11 disinterested persons, who, after hearing the parties, shall deter-
12 mine whether the public convenience and safety reasonably require
13 a crossing at the same level and, if so, how it shall be constructed,
14 and shall make return thereof to the court within thirty days after
15 the close of the hearing. Such return, when accepted by the court,
16 shall be final between the parties. Such special commissioners shall
17 be paid in the same manner as auditors who are appointed by the
18 superior court.
1058
STREET RAILWAY COMPANIES.
[Chap. 112.
Abolition of
grade cross-
ings.
1898, 404, § 1.
Section 65. For the purpose of avoiding or abolishing a cross- 1
ing of a railroad by the tracks of a street railway company at grade, 2
the company may purchase or otherwise take land necessary there- 3
for, not exceeding fifty feet in width, outside the limits of a public 4
way ; but no land shall be so taken which cannot lawfully be taken 5
for the laying out of a railroad, nor shall it be so taken until a plan 6
on an appropriate scale, showing by metes and bounds the land pro- 7
posed to be purchased or taken and the names of the owners thereof 8
has, after notice to such owners, and after such public notice and 9
hearing as is required by section seven, been approved in writing 10
by the board of aldermen of the city or the selectmen of the town 11
in which such land is situated ; nor shall the land of a railroad cor- 12
poration or of another street railway company b6 so taken without 13
its consent, without the approval of the board of railroad commis- l
sioners, after notice and a hearing.
15
Description
of land to be
filed.
1898, 404, § 2.
Section 66. A deed or description, and a plan of the land so 1
purchased or taken shall be filed in the registry of deeds for the 2
county or district in which the land is situated ; and the provisions 3
of law relative to the assessment, payment or recovery of damages 4
for land and other property taken for railroad purposes shall apply 5
to land and property taken under the provisions of the preceding 6
section. , 7
Construction
of track out-
side way.
1898, 404, § 3.
Section 67. A street railway company, which has acquired land 1
for such purpose, may construct its railway over or under a railroad, 2
in the manner agreed by the companies, or, if they do not agree, in 3
the manner prescribed by the board ; but no overhead structure 4
shall be built at a height of less than eighteen feet above the rail- 5
road track without the consent in writing of the board. 6
Structures
within limits
of way.
1898, 404, § 4.
Section 68. The board of aldermen of a city or the selectmen 1
of a town may authorize structures or alterations within, or partly 2
within, the limits of a public way which are necessary for carrying 3
a street railway over or under a railroad, if such way is not thereby 4
made unsafe for other public travel. If such public way is a state 5
highway, the consent of the Massachusetts highway commission 6
shall also be required. 7
Reasonable
accommoda-
tions, etc.
1864, 229, § 26.
1865, 261.
1871, 381, § 33.
P. S. 113, § 43.
FARES AND ACCOMMODATIONS.
Section 69. Every street railway company shall furnish reason- 1
able accommodations for the conveyance of passengers, and for every 2
wilful neglect to provide such accommodations shall forfeit not less 3
than five nor more than twenty dollars ; and its directors may estab- 4
lish the rates of fare for all passengers and property conveyed or 5
transported in its cars, subject, however, to the limitations named 6
in its charter or hereinafter set forth. 7
Additional
accommoda-
tions.
1891, 216.
Section 70. If, in the opinion of the board, additional ac- 1
commodations for the travelling public are required upon any street 2
railway, it may, after due notice to the company and a hearing, 3
make an order requiring such additional accommodations to be pro- 4
vided as it determines are just and may alter, renew or revoke the 5
Chap. 112.] street railway companies. 1059
6 order. A street railway company which, for more than one week
7 after receiving notice in writing of such order, neglects to comply
8 therewith, shall forfeit to the use of the city or town for which
9 such additional accommodations are ordered, or if they are to be
10 provided for more than one city or town, to the use equally of such
11 cities or towns, one hundred dollars for each day thereafter during
12 which such neglect continues.
1 Section 71. Street railway companies may provide cars for special service
2 special service and may make special rates therefor ; and may make mi,' 5is, § is.
3 special rates for working men and working women on week days
4 between the hours of five and seven in the morning and five and
5 seven in the evening, and for children attending school. They shall
6 not give free tickets or passes to any state, county or municipal
7 official or to any person in the employ of the commonwealth or
8 of any county, city or town, except policemen, firemen and letter
9 carriers, in uniform ; but they may give them to a director of the
10 company or to any person who is connected with it in any executive
11 capacity. A violation of the provisions of this section shall be a
12 sufficient reason for the board of railroad commissioners, in its dis-
13 cretion, to approve the revocation of a location or any portion
14 thereof.
1 Section 72. The rates of fare charged by street or elevated fj^uputh8.
2 railway companies for the transportation of pupils of the public j^dSe c
3 schools between a given point, from or to which it is necessary for isoo, iw.
4 them to ride in travelling to or from the school houses in which they
5 attend school and their homes, whether such school houses are
6 located in the city or town in which the pupils reside or in another
7 city or town, shall not exceed one-half the regular fare charged by
8 such street or elevated railway company for the transportation of
9 other passengers between said points, and tickets for the transporta-
10 tion of pupils as aforesaid, good during the days when said schools
11 are in session, shall be sold by said companies in lots of ten each.
12 A railway company which violates the provisions of this section
13 shall forfeit twenty-five dollars for each offence.
1 Section 73. All proceedings relative to the regulation of fares Regulation of
2 upon street railways shall be governed by the provisions of chapter {m%29, § 26.
3 one hundred and eleven relative to the changes and regulation of p87s'.n3,§M.
4 fares upon railroads, and such provisions shall apply to street rail- i|of; ilo! § 23'
5 ways.
1 Section 74. No corporation which operates a street railway shall ^checks™1
2 withdraw or discontinue the use of any free checks or free transfers regulated.
3 from one car or line of cars to another without the approval ot the
4 board.
1 Section 75. A street railway company which is established J^g1^0*
2 under the laws of this commonwealth may carry the United States ^YB2wperB"
3 mail, and may also act as a common carrier of newspapers in any
4 city or town in which it is authorized to operate its railway, subject
5 to such ordinances and by-laws as may from time to time be made
6 by such city or town, and also subject to the provisions of chapter
7 seventy and of all other laws relative to common carriers.
1060
STREET RAILWAY COMPANIES.
[Chap. 112.
Pleasure
resorts.
1895, 316.
ACQUISITION OF PLEASURE RESORTS.
Section 76. Street railway companies may, except in the city 1
of Boston, acquire, hold, maintain and equip land for purposes of 2
recreation and for pleasure resorts. Admission to the grounds of 3
such pleasure resorts shall be free, subject to such restrictions as 4
may be imposed by the mayor and aldermen of cities or the select- 5
men of towns in which such grounds may be situated ; but said 6
companies shall not sell intoxicating liquors nor allow them to be 7
sold on said grounds. Such companies shall not acquire or sell 8
such land without the approval of the board. Such companies may, 9
in accordance with the provisions of section twenty -four of chapter 10
one hundred and nine, increase their capital stock and issue bonds 11
to the amount considered reasonably necessary by said board for 12
the purposes named in this section, but not in any one case exceed- 13
ing one hundred thousand dollars. 14
Use of tracks
of other roads
regulated.
1874, 29, § 12.
P. S. 113, § 48.
12 Allen, 262.
118 Mass. 290.
143 Mass. 200.
175 Maes. 518.
CONNECTING ROADS.
Section 77. If the board of aldermen or the selectmen, after 1
notice and a hearing, decide that public necessity and convenience 2
so require, they ma}^ authorize a street railway company, whose 3
tracks have been duly located in their city or town, and which owns 4
and operates not less than two continuous miles of track, to enter 5
upon and use with its horses and cars, within defined limits, the 6
tracks of any other street railway company therein which it may 7
meet or cross, subject to the provisions of the eight following 8
sections. 9
approval* t0 Section 78. A street railway company shall not run its cars 1
1888, 278, § i. over or use the tracks of another street railway company until the 2
authority therefor has been approved by the board of railroad com- 3
missioners after a hearing of all parties in interest. 4
Ia"ted whlfe" Section 79. If the track of either company is in two or more 1
track is in two cities or towns, and the boards of aldermen or the selectmen thereof 2
or more towns. ' .
1874, 29, § 14. are unable to agree as to the necessity for such entry and use, the 3
P S 113 § 49 *-' ^ ...
143 Mass. 2oo.' board of railroad commissioners shall, upon the petition of either 4
company, after a hearing, decide whether public convenience and 5
necessity require such entry and use, and shall determine the extent 6
of use of tracks and the number and routes of cars ; and its decision 7
shall be final. 8
— manner of,
determined.
1863, 223, §§ 1,
2,5.
1864, 229, § 29.
1871, 3S1, § 38.
P. S. 113, § 50.
12 Allen, 262.
118 Mass. 290.
139 Mass. 454.
Section 80. If a street railway company, which has been duly 1
authorized by law, enters upon and uses or proposes to enter upon 2
and use the tracks or any portion thereof of another company, and 3
the companies cannot agree upon the manner and conditions of such 4
entry and use or the compensation to be paid therefor, the board, 5
after notice to and a hearing of the parties interested, shall deter- 6
mine the rate of compensation to be paid for future use, and, if 7
desired by either party, for past use ; or shall fix the manner and 8
stated periods of such use, or the mode of connection of the tracks, 9
having reference to the convenience and interest of the companies 10
and of the public to be accommodated thereby. The award of the 11
Chap. 112.] street railway companies. 1061
12 board shall be binding upon the respective companies interested
13 therein ; but no such award shall apply to a period of time covered
14 by a previous award of commissioners or by an agreement of parties.
1 Section 81. A street railway company which lawfully enters compensation
2 upon and uses the tracks of another company shall thereafter, until mlnatilndeter"
3 the rate of compensation has been agreed upon or fixed as provided il^l; |||' || lb4'
4 in the preceding section, pay for such use monthly at such rate as Sh' wi' « so'
5 the board, upon petition of either party and notice to the other, shall 40- '
6 from time to time order. If the compensation finally established by 52. " 3' §§51>
7 the board for the prior use of tracks exceeds the rate previously fixed
8 by it, the excess shall be paid by the company using the tracks ;
9 and if it falls below such rate, the difference shall be deducted from
10 the compensation subsequently accruing. If the company fails to
11 make such payments monthly at the rate named by the board the
12 supreme judicial court shall have jurisdiction in equity to enjoin the
13 further use of said tracks until all payments in arrear have been
14 made or satisfactorily secured.
1 Section 82. In all cases heard before the board under the pro- Award, ex.
2 visions of the two preceding sections, the expenses and costs attend- co8tsofand
3 ing the same shall be paid by such party, or divided between the i||; f|j; | j$2
4 parties in such proportions, as the board determines. p7s' iil'lei'
1 Section 83. An award made by the board under the provisions —how revised.
«j *• 1871 381 R 4.9
2 of this chapter shall be forthwith filed in the supreme judicial court p. s'. 113, § 54.
3 in the county in which the question passed upon arose, and shall be
4 there subject to revision in the same manner as if the board had
5 derived its power to act in the premises under the appointment of
6 said court.
1 Section 84. A street railway company, while using the tracks corporation
2 of another company, shall conform to the rules and regulations from S-acfs of an.
3 time to time established by the authorities of the respective cities form to rules.
4 and towns through which its cars run, and to the rules and regula- H?f ; Hf; 1 1{;
5 tions adopted by the company whose tracks it uses, for the regulation p- s- 113> § 55-
6 of its own cars and employees, and shall keep an account of the
7 number of cars daily run by it.
lease or sale of road.
1 Section 85. No street railway company shall lease or contract ^sed^rsoid6
2 for the operation of its railway for a period of more than ninety-nine ggf^6^ '
3 years without the consent of the general court, nor, except as pro- mi! 38i! § s\.
4 vided in the three following sections, shall it sell its road unless i807,"2i3,'§3. "
5 authorized so to do by its charter or by special act of the general n-futsi%L
fi prmrr 15T M,,8S- 39-
O COUrt. 173 MaS8. 287.
1 Section 86. A street railway company which is incorporated |^onrofOBBoU'
2 under the laws of this commonwealth may sell and convey its fran- Jg*^ § L
3 chise and property to, or may consolidate with, any other such street
4 railway company whose railway connects with, intersects or forms
5 a continuous line with its own if the facilities for travel on the
f> railway of each of said companies shall not be thereby diminished
1062
STREET KAILAVAY COMPANIES.
[Chap. 112.
or the rates of fare increased, and such other company may pur- 7
chase of or consolidate with it as aforesaid ; but such purchase and 8
sale or consolidation shall not be valid or binding until the terms 9
thereof have been agreed to by a majority of the directors and have 10
been approved, at meetings called for the purpose, by a vote of 11
two-thirds in interest of the stockholders of each of the contracting 12
companies, and by the board of railroad commissioners as required 13
by section two hundred and seventy-eight of chapter one hundred 14
and eleven. 15
Increase of
capital.
1897,' 269, § 2.
Powers and
duties of
consolidated
company.
1897, 269, § 3.
Section 87. The purchasing or consolidated company may, 1
subject to the provisions of section twenty-four of chapter one hun- 2
dred and nine, increase its capital stock and issue bonds to an 3
amount necessary for the purposes authorized in the preceding sec- 4
tion, and may exchange its securities for those of the selling or 5
merged company, if the aggregate amount of the capital stock and 6
debt of the two contracting companies shall not by reason of such 7
purchase and sale or consolidation be increased. 8
Section 88. Such purchasing or consolidated company shall 1
have the powers and privileges, and be subject to the duties, liabili- 2
ties and restrictions, of the company selling or merged, but no 3
right to conduct an express business or to be a common carrier 4
of merchandise shall, by reason of any such sale or consolidation, 5
be allowed over any location where it had not been granted prior 6
to the tenth day of April in the year eighteen hundred and ninety- 7
seven. 8
Operating
contracts and
leases.
1897, 213, §§ 1, 2.
Section 89. Two street railway companies which are incor-
porated under the laws of this commonwealth, whose railways con-
nect with or intersect each other or together form a continuous line,
may contract that either company shall perform all the transporta-
tion upon and over the railway of the other ; or any such company
may lease its franchise, property and railway to any other such
company ; but the facilities for travel on either of the railways of
said companies shall not be thereby diminished or the rates of fare
increased. Such contract or lease shall not be valid or binding
until its terms have been agreed to by a majority of the directors
and have been approved, at meetings called for the purpose, by the
vote of a majority in interest of the stockholders of each of said
companies, and have been approved by the board as required by
section two hundred and seventy-eight of chapter one hundred and
eleven. The income arising from such contracts or leases shall be
subject to the provisions of law relative to the right to reduce their
fares, in the same manner as that arising from the use of the rail-
ways. Such railways shall be considered as connecting with or
intersecting each other, or forming a continuous line, if one of them
connects with or intersects or forms a continuous line with a railway
leased to or operated by the other under a contract authorized by
the provisions of this section.
Section 90.
Powers under
contracts or
1897^213, §4. operation, or takes a lease, of another railway shall, subject to the
terms of such contract or lease, have and enjoy the powers and privi
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
A street railway company which contracts for the 1
2
3
Chap. 112.] street railway companies. 1063
4 leges, and shall be subject to the duties, liabilities and restrictions
5 of the company which owns it ; but no right to carry on an express
6 business or to be common carriers of merchandise shall be allowed
7 over any location where it had not been granted prior to the twenty-
8 ninth day of March in the year eighteen hundred and ninety-seven.
1 Section 91. No street railway company shall appropriate any Proceeds of
2 money for the payment of dividends which has been received for the useVfoVdiv?-
3 sale of any portion of its railway unless it first reduces its capital fl^f 229, § 39.
4 stock issued, by an amount which, at its par value, is equal to the p.7!'. 113, f 57.
5 amount which such portion of its railway cost said company.
EXTENSION OF FRANCHISE.
1 Section 92. A street railway company which, by its charter or Extension of
2 certificate of incorporation, or by special legislative act, is author- adjoTiu-og1 °
3 ized to construct, maintain and operate a street railway in any city i896°56i.
4 or town in this commonwealth, and which has constructed its rail-
5 way therein, may, subject to the provisions of the general laws
6 relative to the location, construction and operation of street rail-
7 ways, extend its railway into such other cities and towns in this
8 commonwealth adjoining those cities and towns only in which said
9 street railway company was empowered to build and operate its road
10 under its original charter, as the board shall, upon the application
11 of such company, and after public notice and a hearing of all parties
12 interested, certify that the public convenience requires. A duly
13 attested copy of such certificate shall, within three days after the
14 granting of the same, be filed by the board in the office of the secre-
15 tary of the commonwealth.
BOOKS, RETURNS AND REPORTS.
1 Section 93. Every street railway company shall keep its books Books and
2 and accounts in a uniform manner, upon the system heretofore pre- 1857, 40,' §§ 5, 6;
3 scribed by the board ; and the directors of every company shall i8o8, le, §*s.
4 annually, on or before the first Wednesday of November, transmit f^f' 63, §§ U3>
5 to the board a report of the doings of the company for the year i^64- 229> §§ 40>
6 ending on the thirtieth day of September preceding, which shall be i|70, 307, 383^
7 sworn to by themselves and by the treasurer and the superintendent 53, 56.
8 of the companv. Such report shall set forth copies of all leases and § 1. '
9 contracts made during the year with other companies and mdi-
10 viduals, and shall contain full and complete information upon the
11 several items contained in the form prescribed by the board. A
12 company which owns a leased road shall be responsible for the com-
13 pleteness and correctness of its annual returns to the same extent
14 as if the road was in its own possession. If a report is defective or
15 appears to be erroneous, the board shall notify the company to
16 amend it within fifteen days. A company which neglects to make
17 a report, or to amend it when notified so to do, shall forfeit twenty-
18 five dollars for each day during which such neglect continues.
1 Section 94. The board may from time to time make changes in Board^may^ ^
2 and additions to the form of the returns required by the preceding rSfs;0™0
3 section, if it gives to the several companies one year's notice of any ^mfft*'
1064
STREET RAILWAY COMPANIES.
[Chap. 112.
g. s. 63, § 145. such changes as require an alteration in the method or form of
\m, Hi! I Mi keeping their accounts ; and shall annually, on or before the fifteenth
p. s. ii3, § 59. fay 0f September, furnish blank forms for such returns.
4
5
6
toward exion Section 95. Every street railway company shall, at the time of 1
pen se of print- transmitting- its annual report to the board, pay twenty dollars .to the 2
in°" r6port. "
1892, 254. ' treasurer and receiver general to be applied to the expense of print- 3
ing and binding such report. 4
Tables and
abstracts of
reports.
1871, 381, § 55.
P. S. 113, § 60.
Lessee of road
to make same
report to
lessor.
1864, 229, § 24.
1871, 381, § 32.
P. S. 113, § 61.
Records of
proceedings
before boards.
1898, 578, § 25.
Section 96. The board shall prepare tables and abstracts of the 1
reports of the several companies, and transmit said reports and ab- 2
stracts to the secretary of the commonwealth at the time and in the 3
manner provided in section eleven of chapter one hundred and 4
eleven for the transmission of the reports of railroad corporations. 5
Section 97. The lessee of a street railway shall make to the 1
company which owns it the same annual report under oath of the 2
operations and business of the road as is required of the company 3
which owns it ; and, for failure so to do, shall be liable in an action 4
of tort to said company for all the penalties prescribed by law for 5
failure by it to make its annual report. 6
Section 98. Every state board and commission shall keep a 1
record of its proceedings in any matter considered by it under the pro- 2
visions of this chapter or under any laws affecting street railways, in 3
which it shall enter every request made by any party before it for a 4
ruling of law and of its action upon such request, and the neglect to 5
either grant or refuse such request shall be taken in any judicial 6
review of such proceedings as a refusal. 7
Board to notify
attorney gen-
eral of viola-
tions of law,
1870, 307, §5;
383, § 1.
P. S. 113, § 62.
ADDITIONAL REMEDIES.
Section 99. If, in the judgment of the board, a street rail- 1
way company has violated any law relative to such company, and 2
after notice in writing from the board, continues such violation or 3
refuses or neglects to make returns as required by law, or to amend 4
the same when lawfully required so to do, the board shall forthwith 5
present the facts to the attorney general for his action. 6
Laws, how
enforced.
1861, 199, § 1.
1864, 229, § 43.
1866, 294, § 1.
1871, 381, § 57.
P. S. 113, § 63.
1891, 293.
1898, 578, § 25.
161 Mass. 416.
175 Mass. 518.
Section 100. The supreme judicial court or the superior court 1
shall have jurisdiction in equity, upon the petition of a street rail- 2
way company, or of the mayor and aldermen of a city or the 3
selectmen of a town in which the street railway is located, or of 4
any interested party, to compel the observance of and to restrain the 5
violation of all laws which govern street railway companies, and of 6
all orders, rules and regulations made in accordance with the pro- 7
visions of this chapter by the board of aldermen of a city, the select- 8
men of a town or by the board of railroad commissioners, and to 9
review, annul, modify or amend the rulings of any state board or 10
commission relative to street railways as law and justice may 11
require. 12
Chap. 113.] savings banks. 1065
CHAPTEK 113.
OF SAVINGS BANKS AND INSTITUTIONS FOR SAVINGS.
Sections 1-9. — Board of Commissioners of Savings Banks.
Sections 10-13. — General Provisions.
Sections 14-19. — Officers and Meetings.
Sections 20-24. — Banking House. Transaction of Business.
Sections 25-29. — Deposits, Loans and Investments.
Sections 30-41. — Dividends and Payments.
Sections 42-45. — Special Trust Funds.
Sections 46-54. — Books and Returns.
Sections 55, 56. — Unclaimed Deposits.
BOARD OF COMMISSIONERS OF SAVINGS BANKS.
1 Section 1. There shall be a board of commissioners of savings Board of com-
2 banks consisting of three persons, one of whom shall annually "ppoStmlnt.
3 before the first day of July be appointed by the governor, with the lill', 43. §§ *' 7'
4 advice and consent of the council, for a term of three years from \^\> f^ §§ 1 7
5 said day, and who may in like manner be removed. Said commis- g. s'.57,'§§ 1,2.
6 sioners shall be sworn and the governor shall designate one mem- i87e| 231! §§ 1-3!
7 ber of the board to be the chairman. 1894, 317, §1. 148 Mass. 242. i889,'32i,'§i.*
1 Section 2 . The annual salary of the chairman of the board shall ^l0*ytnCie5sand
2 be three thousand five hundred dollars and that of the other com- Jjgs. jo-Vi)
3 missioners three thousand dollars each. The board may employ is59|i48!
4 two clerks ; the annual salary of the first clerk shall be two thousand i862,*2i2.
ICfiC 1 GO C O
5 dollars and that of the second clerk, fifteen hundred dollars. It may mo, 244! '
6 employ additional clerical and expert assistants as it may from time 1379; ill'; §293,
7 to time require and may annually expend therefor, including the |g|0 161 §5
8 actual travelling expenses of such assistants, not more than twenty- f^'Uflf-
9 five hundred dollars. The board shall also be allowed its necessary 1886I252!
10 office expenses and the actual expenses incurred in travelling in the 1892)248.
1HQ4 m*7 £9.
11 performance of its official duties. 1895,66. 1897,362.
1 Section 3. The commissioners or one of them shall, at least ^n°ttonext'
2 once in each year and whenever they consider it expedient, visit banks by.
3 each savings bank incorporated in this commonwealth, and, if it is 1m, 127, § 2.
4 connected with a national bank, they shall make such arrangements is*66,"i5Jj,§§§ 2, 8.
5 with the national bank examiner, if possible, that their visits shall pj|. ne, §3.
6 be simultaneous. At such visits they shall have free access to the Js^;^^.
7 vaults, books and papers, and shall thoroughly inspect and examine
8 the affairs of said corporation, to ascertain its condition, its ability
9 to fulfil its obligations and whether it has complied with the pro-
10 visions of law. They shall preserve in a permanent form a full
11 record of their proceedings, including a statement of the condition
12 of each of said corporations.
1 Section 4. Anv of the commissioners may summon the trustees, -may sum.
m />i j- 11J.T.-J. mon and ex-
2 officers or agents of such corporation, and sucn other witnesses as amine officers,
3 he thinks proper, and examine them relative to the affairs, trans- isss, 14, § 3.
4 actions and condition of the corporation, and for that purpose may lasii 127. § 3.
1066
SAVINGS BANKS.
[Chap. 113.
G. S. 57, § 5.
1866, 192, § 3.
1876, 231, § 3.
P. S. 116, § 4.
1894, 317, § 4.
administer oaths. Whoever, without justifiable cause, refuses to 5
appear and testify when so required, or obstructs a commissioner 6
in the performance of his duty, shall be punished by a fine of not 7
more than one thousand dollars or by imprisonment for not more 8
than one year. 9
Examination
of bank on
request of
officers, etc.
1851, 127, § 4.
G. S. 57, § 6.
1866, 192, § 4.
1876, 231, § 3.
P. S. 116, § 5.
1894, 317, § 5.
Section 5. Upon the written application under oath to the 1
commissioners by five or more officers, trustees, creditors or de- 2
positors of such corporation setting forth their interest and the 3
reasons for making an examination and requesting them to examine 4
such corporation, they shall forthwith make a full investigation of 5
its affairs in the manner before provided. 6
Proceedings
when bank is
insolvent or in
a hazardous
condition.
1838, 14, § 5.
1839, 27, § 2.
1851, 127, § 5.
G. S. 57, § 7.
1866, 192, § 5.
1876, 231, § 3.
P. S. 116, § 6.
1894, 317, § 6.
Section 6. If upon examination a savings bank appears to be 1
insolvent or its condition such as to render the continuance of its 2
business hazardous to the public or to those having funds in its 3
custody, the commissioners shall apply, or, if such corporation ap- 4
pears to have exceeded its powers or failed to comply with any 5
provision of law, may apply to the supreme judicial court, which 6
shall have jurisdiction in equity of such application, for an injunc- 7
tion to restrain such corporation, in whole or in part, from further 8
proceeding with its business. The court may appoint one or more 9
receivers to take possession of its property and effects, subject to 10
such directions as may from time to time be prescribed by the court. 11
Schedule of
property to be
made.
1878, 253, § 5.
P. S. 116, § 7.
1894, 317, § 7.
Section 7. "When receivers are so appointed the treasurer of 1
the corporation shall make a schedule of its property ; and he, with 2
the board of investment and other officers transferring its property 3
to the receivers, shall make oath that said schedule sets forth all the 4
property which the corporation owns or is entitled to. The treas- 5
urer shall deliver said schedule to the receivers and a copy thereof 6
to the commissioners, who may at any time examine under oath 7
such treasurer, board of investment or other officers, to determine 8
whether all the property which the corporation owns or is entitled 9
to has been transferred to the receivers. 10
Commissioners
to examine
accounts, etc.,
of receivers.
1878, 253, §§ 1-4.
P. S. 116, §§ 8,
10.
1894, 317, §§ 8,
10.
Section 8. The commissioners, or one of them, shall at least
once in each year, and whenever they consider it expedient, ex-
amine the accounts and doings of said receivers ; and shall care-
fully examine and report upon all accounts and reports of receivers
made to the supreme judicial court and referred to them by it ; and,
for such purposes, shall have free access to the books and papers
relating to the transactions of such receivers, whom they may ex-
amine under oath relative to such transactions. If in their opinion
such receiver has violated his duty they shall present the facts to
the supreme judicial court.
1
2
3
4
5
6
7
8
9
10
— to report vio-
lations of law
by officers.
1838, 14, § 6.
1851, 127, § 10.
G. S. 57, § 9.
1866, 192, § 7.
1876, 231, § 3.
1878, 253, § 6.
Section 9. If, in the opinion of the commissioners, such corpo- 1
ration or its officers or trustees have violated any law relative to 2
savings banks, they shall forthwith report such violation to the 3
attorney general, who shall forthwith, in behalf of the common- 4
wealth, institute a prosecution for such violation. 5
P. S. 116, § 9. 1894, 317, § 9.
Chap. 113.] savings banks. 1067
general provisions.
1 Section 10. The words " savings banks " as used in this chapter savings banks
2 shall include institutions for savings incorporated as such in this deflned-
3 commonwealth.
1 Section 11. No bank, and no person, association or body cor- unauthorized
2 porate, except savings banks incorporated in this commonwealth, hfbitedg pro*
3 and trust companies so incorporated previous to the first day of \Hl[ ||o! § L
4 January in the year eighteen hundred and ninety-three, and which 189*> sn, § 52.
5 were organized and doing business on the first day of October in
6 said year, shall advertise or put forth a sign as a savings bank or
7 in any way solicit or receive deposits as a savings bank. A bank,
8 association, corporation or person violating this provision shall for-
9 feit one hundred dollars for each day such offence shall be continued.
1 Section 12. Savings banks incorporated in this commonwealth savings banks,
2 shall be subject to the provisions of the following sections as far duties of.n
3 as the same are consistent with the provisions of their respective r f.36S§7i.
4 charters ; and any such corporation may, by vote at its annual meet- ^'7f;|o3,| \35'
5 ing or at a meeting called for the purpose, accept any provision of fagf^'l j1}-
6 said sections which is inconsistent with its charter.
1 Section 13. Savings banks and their officers shall be subject to General court
2 examination by a committee of the general court appointed for the further1 reguia-
3 purpose, who may examine their affairs and shall have free access to Is^sf'aMiT.
4 their books and vaults. An officer of any such corporation, or other r3|^36%§40
5 person having charge of its books and property, who refuses or g'|4-57 §§102
6 neglects to exhibit the same to such committee or obstructs its J2^55i 527
7 examination thereof, shall be punished bv a fine of not more than p. s'. ue, § 12.
1894: 317 § 12
8 ten thousand dollars or by imprisonment for not more than three 9 cu'sh. 604. '
9 years.
OFFICERS AND MEETINGS.
1 Section 14. The officers of such corporation shall be a president, officers of such
t f 1 -1 ji • j corporations.
2 one or more vice presidents, a board 01 not less than nine trustees, 1834, 190, §§ 2, 3.
3 a treasurer, clerk and such other officers as it may find necessary 73. ' ' '
4 for the management of its affairs. Such officers shall be sworn, 137. ' '8S '
5 and shall hold their several offices until others are chosen and quali- p.7s. 11I', §§i3.3"
6 fied in their stead, except as hereinafter otherwise provided. The 1894> 317> § 13-
7 president, vice president and trustees shall be chosen from the mem-
8 bers, and no person shall hold an office in two such corporations at
9 the same time.
1 Section 15. Every treasurer, vice treasurer and assistant treas- Treasurer to
2 urer shall give bond to the satisfaction of the trustees for the faithful f£l 203! §'3C
3 performance of his duties and shall file with the board of commis- p,8s'.iil,§H.
4 sioners of savings banks an attested copy thereof, with a certificate J||[j; ^
5 of its custodian that the original is in his possession. Such officer ]^'|^'|Ji
6 shall notify said board of any change thereafter made therein. If he J^Mass. 73.
7 fails, within ten days from the date thereof, to file a copy of his
8 bond, or to notify the board of any change therein, he shall be
9 liable to a penalty of fifty dollars. The board shall keep a record
1068
SAVINGS BANKS.
[Chap. 113.
Choice and
appointment
of officers.
1834, 190, § 3.
R. S 36, § 74.
G. S. 57, § 138.
1864, 126.
1868, 49.
1876, 203, « 4.
P. S. 116, § 15.
1893, 254, § 2.
1894, 317, § 15.
Special meet-
ings.
1834, 190, § 4.
R. S. 36, § 75.
G. S. 57, § 139.
1876, 203, § 5.
P. S. 116, § 16.
1884, 150.
1894, 317, § 16.
showing when said bonds expire, and the changes so notified, and, 10
when in its judgment it is necessary for the security of the deposi- 11
tors, it shall require a new bond in such amount and with such 12
sureties as said board may approve. Said officers shall give new 13
bonds at least once in five years. 14
Section 16. The officers of such corporation, except the treas- 1
urer, vice treasurer and assistant treasurer, shall be chosen at its 2
annual meeting to be held at such time as the by-laws direct, any- 3
thing in its charter to the contrary notwithstanding. The treasurer, 4
vice treasurer and assistant treasurer shall be appointed by the 5
trustees and shall hold office during their pleasure. If an office 6
becomes vacant during the year, the trustees may appoint a person 7
to fill it until the next annual meeting ; and if a person chosen or 8
appointed does not, within thirty days thereafter, take the oath, his 9
office shall thereupon become vacant. The person acting as clerk 10
at such meeting shall, within ten days thereafter, notify all persons 11
elected to office ; and within thirty days thereafter shall publish in 12
a newspaper published in the county in which the corporation is 13
established a list of all persons who have taken the oath of office to 14
which they were elected. A clerk who neglects to give such notice 15
or make such publication or who makes a false publication, and a 16
person who knowingly publishes or circulates, or knowingly causes 17
to be published or circulated, a printed notice containing the name 18
of a person as an officer of such corporation who has not taken the 19
oath of office, shall be liable to a penalty of fifty dollars. 20
Section 17. Such corporation may hold special meetings by 1
order of its trustees ; and its clerk shall notify special meetings 2
upon request in writing of ten members of the corporation. Notice 3
of all meetings shall be given by advertisement in a newspaper 4
published in the county in which the corporation is established, 5
and by seasonably mailing to each member a written or printed 6
notice thereof. 7
Members of
such corpora-
tions.
1834, 190, § 5.
R. S. 36, § 76.
G. S. 57, § 140.
1876, 203, § 6.
P. S. 116, § 17.
1888, 120.
1890, 222.
1894, 317, § 17.
Regular meet-
ings of trus-
tees, etc.
1876, 203, § 7.
P. S. 116, § 18.
1882, 50.
1888, 96.
1894, 317, § 18.
Section 18. Such corporation may, at a legal meeting, elect by 1
ballot any citizen of this commonwealth to be a member thereof; 2
and any person may, at an annual meeting, cease to be a member, 3
if, three months at least before such meeting, he has filed with the 4
clerk a written notice of his intention so to do. If a member fails 5
to attend two consecutive annual meetings his membership may, by 6
vote of the corporation at its next annual meeting, be declared 7
forfeited. Such action and vote recorded shall be evidence of for- 8
feiture of membership. No person shall continue to be a member 9
after removing from this commonwealth. 10
Section 19. A regular meeting of the board of trustees of such 1
corporation shall be held at least once in three months, for the pur- 2
pose of receiving the report of its treasurer and for the transaction 3
of other business. A quorum shall consist of not less than seven 4
trustees, but less than a quorum may adjourn from time to time or 5
until the next regular meeting. At each regular meeting the trus- 6
tees shall cause to be prepared a statement showing the condition of 7
the corporation as it appears upon its books, in the form of a trial 8
Chap. 113.] savings banks. 1069
9 balance of its accounts, and such statement shall be posted in a con-
10 spicuous place in its banking room, and there remain until the next
11 regular meeting of said board. A record shall be made at each
12 meeting of the transactions of the trustees and the names of those
13 present. If a trustee fails both to attend the regular meetings of
14 the board and to perform any of the duties devolving upon him
15 as such trustee, for six consecutive months, his office shall there-
16 upon become vacant. A record of such vacancy shall be entered
17 upon the books of the corporation and a transcript of such record
18 shall be sent by mail to the person whose office is thus made vacant.
19 The trustees shall cause to be published semi-annually in a news-
20 paper published in the county in which said corporation is located
21 the names of the members of the board of investment or other offi-
22 cers of such corporation charged with the duty of investing its funds.
23 The first publication thereof shall be within thirty days of the elec-
24 tion of said officers and the second publication at the expiration of
25 six months therefrom.
BANKING HOUSE. TEANSACTION OF BUSINESS.
1 Section 20. Such corporation shall carry on its usual business Business to be
2 at its banking house only, and a deposit shall not be received nor pay- tonk^houL
3 ment on account of deposits be made by such corporation or by a i^'253°'§ i.
4 person on its account in any other place than at its banking house, ilH' 3i7§§1i9
5 which shall be in the city or town in which such corporation is estab-
6 lished ; but its annual meeting and meetings of its trustees may be
7 held at other Dlaces in such city or town.
1 Section 21. A savings bank shall not occupy the same room connection be-
2 with a bank or national banking association, unless such savings anTnatfonaf8
3 bank shall have first filed with the board of commissioners of l^f^, §§ 1,2,
4 savings banks an agreement signed by the president and the cashier
5 or treasurer of such bank or national banking association, in accord-
6 ance with a vote duly passed by its board of directors or trustees,
7 that it and they will permit and facilitate an examination of the
8 books, accounts, vouchers, cash, securities and other property of
9 such bank or banking association by the board of commissioners of
10 savings banks, or by a person duly appointed by it, at such times
11 and to such extent as may be considered necessary or expedient by
12 said board to determine the condition of the savings bank. The
13 expense of such examination shall be fixed by said board of com-
14 missioners of savings banks and shall be paid by the bank or
15 national banking association so examined. A duly certified copy of
16 said vote shall be furnished at the same time with said agreement,
17 and the agreement shall continue in force as long as such savings
18 bank occupies the same room with such other bank or national
19 banking association, or keeps any of its money or securities in the
20 same vault with such other bank or national banking association.
1 Section 22. A savings bank shall not transact its business over Business not
2 the same counter or occupy in common the same safes or vaults with acted over
3 a bank, national banking association or trust company j but a sav- ltf™^-?"^?1"'
4 ings bank may occupy within such vault a safe or compartment over ^9y- A- G- -
5 which it has exclusive control, or may transact business over a part
1070
SAVINGS BANKS.
[Chap. 113.
Committee to
examine con-
dition.
1898, 567, § 4.
Bond by-
savings bank.
1898, 567, § 5.
of the same counter which is separated by a suitable partition or 6
lattice work from the part of the counter used exclusively by such 7
other bank, banking association or trust company. 8
Section 23. If a savings bank transacts its business within the
same enclosure with a bank or national banking association a com-
mittee of not less than three shall be chosen by the trustees of such
savings bank from their own number, who shall at least once in
every six months examine the condition of such savings bank at the
same time that a similar examination is made of the condition of such
bank or banking association by the directors thereof, or by any
other person appointed by them.
Section 24. If a
savings
bank transacts its business within
the same enclosure with a bank or national banking association or
if such banks have the same president, treasurer or cashier, the
treasurer, tellers and clerks of the savings bank shall give a bond of
a company authorized to transact fidelity insurance or corporate
suretyship in this commonwealth, in a form and for a sum to be
approved by the board of commissioners of savings banks.
1
2
3
4
5
6
7
8
1
2
3
4
5
6
7
Amount of
deposits
limited.
1834, 190, § 6.
R. S. 36, § 77.
G. S. 57, § 141.
1874, 393.
1875, 100.
1876, 203, § 8.
P. S. 116, § 19.
1889, 86; 449,
§1.
1894, 317, § 20.
Investment of
deposits, etc.
P. S. 116, § 20.
— in mort-
gages.
1834, 190, § 7.
R. S. 36, § 78.
G. S. 57, §§ 142,
143.
1876, 203, § 9,
cl. 1.
P. S. 116, § 20,
cl. 1.
1894, 317, § 21,
cl. 1.
[lOp. A. G.
434.J
— in public
funds.
1834, 190, § 7.
R. S. 36, § 78.
G. S. 57, § 142.
1863, 175, § 1.
1894, 317, § 21,
cl. 2.
1885, HI.
DEPOSITS, LOANS AND INVESTMENTS.
Section 25. Such corporation may receive deposits from any
person until they amount to one thousand dollars ; and may allow
interest upon such deposits, and upon the interest accumulated
thereon, until the principal, with the accrued interest, amounts to
one thousand six hundred dollars ; and thereafter upon no greater
amount than one thousand six hundred dollars ; but the provisions
of this section shall not apply to deposits by religious or charitable
corporations, or to deposits made in the name of a judge of probate
or by order of any court.
Section 26. Deposits and the income derived therefrom shall
be invested only as follows : — 1894, 317, § 21. 134 Mass. 177.
First, In first mortgages of real estate situated in this common-
wealth, not to exceed sixty per cent of the valuation of such real
estate ; but not more than seventy per cent of the whole amount of
deposits shall be so invested. A loan on mortgage shall not be
made except upon the report of not less than two members of the
board of investment, who shall certify, according to their best judg-
ment, to the value of the premises to be mortgaged and such report
shall be filed and preserved with the records of the corporation.
Second, a. In the public funds of the United States, or of any
of the New England states, or of the state of New York.
1876, 203, § 9, cl. 2. 1880, 177. 1881, 214, § 2. P. S. 116, § 20, cl. 2.
b. In the bonds or notes of a county, city or town of this com-
monwealth.
In the bonds or notes of an incorporated district in this com-
monwealth whose net indebtedness does not exceed five per cent of
the last preceding valuation of the property therein for the assess-
ment of taxes.
d. In the bonds or notes of any city of Maine, New Hampshire,
Vermont, Rhode Island or Connecticut, whose net indebtedness
does not exceed five per cent of the last preceding valuation of the 21
1
2
3
4
5
6
7
8
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Chap. 113.] savings banks. 1071
22 property therein for the assessment of taxes ; or of any county or
23 town of said states whose net indebtedness does not exceed three per
24 cent of such valuation.
25 e. In the notes of a citizen of this commonwealth with a ptedge investment of
26 of any of the aforesaid securities at no more than the par value dep0Slts-
27 thereof.
28 /. In the legally authorized bonds of the states of Pennsylvania, 1882, 231.
29 Ohio, Indiana, Illinois, Michigan, Wisconsin, Minnesota, Missouri ill?; Hi:
30 and Iowa, and of the District of Columbia, and in the legally author- i8!8,; 1%.
31 ized bonds for municipal purposes, and in the refunding bonds issued }ffy 16*- G
32 to take up at maturity bonds which have been issued for other than 190-]
33 municipal purposes, but on which the interest has been fully paid,
34 of any city of the aforesaid states and of the state of New York,
35 which has at the date of such investment more than thirty thousand
36 inhabitants, as established by the last national or state census, or
37 city census, certified to by the city clerk or treasurer of said city
38 and taken in the same manner as a national or state census, preced-
39 ing such investment, and whose net indebtedness does not exceed
40 five per cent of the valuation of the taxable property therein, to be
41 ascertained by the last preceding valuation of property therein for
42 the assessment of taxes ; and in the note or notes of a citizen of this
43 commonwealth, with a pledge as collateral of any of the aforesaid
44 securities, the amount invested in such note or notes not to exceed
45 in any case eighty per cent of the market value of the securities
46 pledged.
47 Third, a. In the first mortgage bonds of a railroad company — m railroad
48 incorporated in anv of the New England states and whose road is etc. '
49 located wholly or in part in the same, whether such corporation is in 1863! 175, §1.
50 possession of and is operating its own road or has leased it to another ci.7!'.203, § 9'
51 railroad corporation, and has earned and paid regular dividends of p.8s'.ii6,§2b,
52 not less than three per cent per annum on all its issues of capital ^g176
53 stock for the two years last preceding such investment. issi', 196.
J f b 1889,305.
1894, 317, § 21, cl. 3. 1898, 184, § 1, cl. a, d. [1 Op. A. G. 149.]
54 b. In the first mortgage bonds of a railroad company incorpo- 1887, 196.
55 rated in any of the New England states and whose road is located ci.9!'.1S4,§ '
56 wholly or in part in the same, guaranteed by a railroad company
57 described in the preceding paragraph which is in possession of and
58 is operating its own road.
59 c. In the bonds or notes of a railroad company incorporated in i887, 196.
60 this commonwealth and whose road is located wholly or in part
61 therein, and is unencumbered by mortgage and which has paid a
62 dividend of not less than five per cent per annum for two years last
63 preceding such investment.
64 d. In the bonds and notes of the Fitchburg Railroad Company i||5,348.
65 issued according to law.
6Q e. In the bonds and notes of the Old Colony Railroad Company i883, 134.
67 issued according to law, notwithstanding the mortgages on that part
68 of its railroad formerly belonging to the Boston, Clinton, Fitchburg
69 and New Bedford Railroad Company.
70 /. In the bonds and notes of the Boston and Lowell Railroad 1888> 53-
71 Corporation issued according to law, notwithstanding the mortgages
72 on those portions of its railroad formerly belonging tc the Salem
73 and Lowell Railroad Company and the Lowell and Lawrence Rail-
74 road Company.
1072 SAVINGS BANKS. [CHAP. 113.
depolitefntof 9' *n tne bonds and notes of the Boston and Maine Kailroad 75
1888, 250, § 2. issued according to law, notwithstanding any mortgages on that part 76
of its railroad, franchises and property formerly belonging to the 77
Eastern Railroad Company, the Eastern Railroad in New Hampshire, 78
or the Portsmouth, Great Falls and Conway Railroad. 79
1896,178. ]l% jn the bon(Js and notes of the New York, New Haven and 80
Hartford Railroad Company issued according to law, notwithstanding 81
the existence on the twenty-first day of March in the year eighteen 82
hundred and ninety-six of a mortgage indebtedness not then matured 83
upon the whole or a part of the road of said company. 84
1890,298. i jn £he first mortgage bonds of the Concord and Montreal Rail- 85
road, although such company may be formed by the union of two 86
or more companies, only one of which has paid regular dividends for 87
the two years last preceding such investment on all its issues of 88
capital stock, and notwithstanding a mortgage indebtedness on that 89
part of its road formerly belonging to the Boston, Concord and 90
Montreal Railroad : provided, however, that said bonds shall be 91
issued in whole or in part to renew and refund said existing mortgage 92
indebtedness, and that an amount of such bonds equal at the par 93
value to the amount of such existing mortgage indebtedness shall, by 94
the terms of the mortgage securing the same, be made applicable ex- 95
clusively to the payment of such existing mortgage indebtedness and, 96
for the purpose of securing such payment at the maturity of the same, 97
shall be deposited with and held by such trust company incorporated 98
in this commonwealth and doing business in the city of Boston as 99
may be approved by the board of commissioners of savings banks. 100
1890,394. j jn fljg bonds of the Maine Central Railroad Company, known 101
as the Consolidated Mortgage Bonds, notwithstanding the existence 102
of a mortgage indebtedness not matured upon the whole or a part of 103
the road of said railroad company : provided, however, that said bonds 104
be issued in whole or in part to renew and refund said existing first 105
mortgage indebtedness, and that an amount of such bonds equal at 106
the par value to the amount of such existing mortgage indebtedness 107
shall, by the terms of the mortgage securing the same, be made ap- 108
plicable exclusively to the payment of such existing mortgage indebt- 109
edness ; and to secure such payment at the maturity of the same, 110
said bonds shall be deposited with and held by such trust company 111
incorporated in this commonwealth and doing business in the city 112
of Boston as may be approved by the board of commissioners of 113
savings banks. 114
lis' 213! ^' ^n tne note or notes of a citizen of this commonwealth with 115
a pledge as collateral of any of the aforesaid securities at no more 116
than the par value thereof. 117
1887,196. im jn fae note or notes of a citizen of this commonwealth with 118
a pledge as collateral of shares of the capital stock of a railroad 119
company incorporated in any of the New England states and whose 120
road is located wholly or in part therein and which is in possession 121
of and is operating its own road and has earned and paid regular 122
dividends of not less than five per cent per annum on all its issues 123
of capital stock for five years last preceding the date of such note 124
or notes, or a renewal thereof, and at no more than seventy-five per 125
cent of the market value thereof, such note or notes to be made 126
payable on demand and to be paid or renewed within one year from 127
the date thereof. 128
Chap. 113.] savings banks. 1073
129 m. In the note or notes of a citizen of this commonwealth with investment of
QftlDOSltB
130 a pledge as collateral of shares of the capital stock of the Boston wee, m.
131 and Lowell Railroad Corporation, of the Boston and Providence
132 Railroad Company, of the Connecticut River Railroad Company and
133 of the Old Colony Railroad Company, notwithstanding the road of
134 each of said companies may be leased to another railroad company ;
135 but such note or notes shall not in any case exceed seventy-five per
136 cent of the market value of the securities pledged and shall be pay-
137 able on demand and be paid or renewed within one year from the
138 date thereof.
139 Fourth, a. In the bonds of the New York and New England Rail- New Y°oASand
140 road Company issued according to law, and for the payment of the §!TEnfland
141 principal and interest of which first mortgages, made as provided isss, 301, §e.
142 in chapter three hundred and one of the acts of the year eighteen cift'. 317' § 21'
143 hundred and eighty-eight, are held as collateral security under an
144 indenture of trust duly made and entered into for that purpose :
145 provided, that the amount of the bonds so issued shall not exceed
146 the amount of the mortgages so held in trust, and that no one of
147 said mortgages shall exceed in amount sixty per cent of the value
148 of the real estate thereby mortgaged ; and no investment in said
149 bonds shall be made by such corporation except upon the report
150 of not less than two members of the board of investment, who
151 shall, according to their best judgment, certify to the value of
152 the premises covered by each of said mortgages, and such report
153 shall be filed and preserved with the records of the corporation.
154 b. In the bonds of the Boston, Revere Beach and Lynn Railroad B.inRb<Bd| l
155 Company, issued according to law. 1897,262. RR-
156 c. In the legally authorized bonds of the New York Central and NewY°orkSOf
157 Hudson River Railroad Company, of the Michigan Central Railroad ^^ R^er
158 Company, of the Lake Shore and Michigan Southern Railway Com- Railroad, etc.
159 pany, of the Illinois Central Railroad Company, of the Pennsylvania
160 Railroad Company, of the Delaware, Lackawanna and "Western Rail-
161 road Company, of the Chicago, Burlington and Quincy Railroad
162 Company, of the Chicago and Northwestern Railway Company, and
163 of the Delaware and Hudson Canal Company : provided, that all
164 such bonds shall be secured by a first mortgage of the whole or a
165 part of the railroad and railroad property actually in the possession
166 of and operated by such company ; and that each railroad whose
167 bonds are hereby authorized for investment shall have earned and
168 paid regular dividends on all its issues of capital stock of not less
169 than four per cent each fiscal year for the ten years last preceding
170 such investment, and that such capital stock shall equal or exceed
171 in amount one-third of the par value of its bonded indebtedness.
172 d. In the legally authorized bonds of a railroad company in- -in bonds of
173 corporated under the authority of the states of New York, Pennsyl- railroad's. e
174 vania, Ohio, Indiana, Illinois, Michigan or Iowa, whose road is 1899-269-
175 located wholly or in part within the limits of said states and has
176 earned and paid regular dividends of not less than four per cent
177 per annum on all its issues of capital stock for the ten years last
178 preceding such investment: provided, that said bonds shall be
179 secured by a first mortgage of the whole or a part of the railroad
180 and railroad property of such company, and be guaranteed, both
181 principal and interest, by one or more of the companies named in
182 the preceding paragraph.
1074
SAVINGS BANKS.
[Chap. 113.
Investment of
deposits.
1899, 269.
— in Boston
Terminal
bonds.
1896, 516, § 4.
1S99, 215.
1887, 196.
— in bank
stocks.
1S34, 190, § 7.
E. S. 36, § 78.
1855, 294.
G. S. 57, §§ 142-
144.
1863, 175, §§2, 3;
234.
1864; 2.
186S, 227.
1876, 203, § 9,
cl. 4.
1881, 214, § 3.
P. S. 116, § 20,
cl. 4.
1882, 224.
1883, 202.
1886, 95.
1890, 168.
1894, 317, § 21,
cl. 5.
141 Mass. 522.
151 Mass. 107.
— in loans to
depositors.
1879, 57, § 1.
P. S. 116, § 20,
Cl O
1894,' 317, § 21,
cl. 6.
— in personal
securities.
1834, 190, § 8.
R. S. 36, § 79.
G. S. 57, § 145.
187b', 203, § 9,
P.' s! 116, § 20,
cl. 6.
1884, 56, 168.
1886, 69.
1894, 317, § 21,
cl. 7.
134 Mass. 177.
— in building
and site.
1870, 226.
1876, 203, § 9,
cl. 6.
P. S. 116, § 20,
cl. 7.
e. In the note or notes of a citizen of this commonwealth, with 183
a pledge as collateral of any of the securities mentioned in the two 184
preceding paragraphs at no more than the par value thereof. 185
f. In the bonds of the Boston Terminal Company authorized 186
by the provisions of section four of chapter five hundred and six- 187
teen of the acts of the year eighteen hundred and ninety-six, and in 188
the note or notes of a citizen of this commonwealth with a pledge as 189
collateral of the first mortgage bonds of said company at no more 190
than the par value thereof. 191
g. Street railway companies are not railroad companies within 192
the meaning of the third and fourth clauses of this section. 193
Fifth, In the stock of a bank incorporated in this commonwealth, 194
or in the stock of a banking association located in the New England 195
states and incorporated under the authority of the United States, 196
or in the stock of a trust company incorporated under the laws of 197
and doing business within this commonwealth, as provided in chap- 198
ter one hundred and sixteen, or of those trust companies incorpo- 199
rated as such by special charters granted under the laws of and doing 200
business within this commonwealth, whose special charters require 201
them to provide the same security as prescribed in sections twenty- 202
eight and thirty of said chapter, or in the notes of a citizen of this 203
commonwealth, with a pledge as collateral of any of the aforesaid 204
securities at no more than eighty per cent of the market value and 205
not exceeding the par value thereof; but such corporation shall not 206
hold, both by way of investment and as security for loans, more 207
than thirty-five per cent of its deposits in the stock of such banks, 208
associations or companies, nor in any one such bank, association or 209
company more than three per cent of its deposits in, nor more 210
than one hundred thousand dollars nor more than one-quarter of 211
the capital stock of such bank, association or company. Such cor- 212
poration may deposit not more than five per cent of its deposits in 213
any one such bank, association or company, but such deposit shall 214
not exceed twenty-five per cent of the capital stock and surplus of 215
such depositary. 216
Sixth, In loans to a depositor of such corporation upon his 217
personal note to an amount not exceeding one-half of his deposit; 218
and the deposit and the book of the depositor shall be held by the 219
corporation as collateral security for the payment of such loan. 220
Seventh, If such deposits and income cannot be conveniently 221
invested in the modes hereinbefore prescribed, not exceeding one- 222
third part thereof may be invested in bonds or other personal securi- 223
ties, payable and to be paid at a time, not exceeding one year, with 224
at least two sureties, if the principal and sureties are all citizens of 225
this commonwealth and resident therein : provided, that the total lia- 226
bilities to such corporation of a person, partnership, company or 227
corporation for money borrowed upon personal security, including 228
in the liabilities of a partnership or company not incorporated the 229
liabilities of the several members thereof, shall not exceed five per 230
cent of such deposits and income. 231
Eighth, Five per cent of the deposits of such corporation, not 232
exceeding two hundred thousand dollars, may be invested in the 233
purchase of a suitable site and the erection or preparation of a suit- 234
able building for the convenient transaction of its business. 235
1893, 174.
1894, 317, § 21, cl. 8. 149 Mass. 1. 151 Mass. 107. [1 Op. A. G. 420.]
Chap. 113.] savings banks. 1075
236 Ninth, Such ^corporation may hold real estate acquired by the Real estate
237 foreclosure of a mortgage owned by it, or by purchase at sales made ffito^
238 under the provisions of such mortgage or upon judgments for debts ^76 226
239 due to it, or in settlements effected to secure such debts. All such p7| n|'f fo
240 real estate shall be sold by the corporation within five years after c1'8'
241 the title thereof is vested in it; but the board of commissioners of 1883)52,248.
242 savings banks may, upon the petition of the board of investment of mt, 317, § 21,
243 such corporation, and for cause, grant an additional time for the lsbs.'us.
244 sale of the same or of the securities mentioned in the followine" 149 Ma88' 4'
245 clause.
246 Tenth, Such corporation may hold stocks, bonds or other securi- fcC^TredSm
247 ties acquired in settlements effected to secure loans or indebtedness, settlement of
248 but unless the time during which such securities may be held is ex- 1898, us.
249 tended as provided in the preceding paragraph they shall be sold
250 within five years after being acquired. A corporation holding such
251 'securities on the eighth day of March in the year eighteen hundred
252 and ninety-eight shall not be required to sell the same before the
253 first day of February in the year nineteen hundred and three.
254 Eleventh, The provisions of this chapter shall not invalidate or Pledges of
255 impair the title of a corporation to securities which have been or may collateral to8
256 be held by it in pledge or as security for a loan or indebtedness ; li^os™1^!
257 and the same shall be held for the purposes for which they were p7| ^j§§-20
258 pledged. Such corporation shall not be required to change invest- i^- 317 52!*
259 ments made before the first day of October in the year eighteen ci.'i'o.
260 hundred and seventy-six.
1 Section 27. No president, treasurer, member of a committee or no officer,
2 board of investment or officer of such corporation charged with the toalfof cor-w
3 duty of investing its funds shall borrow or use any portion thereof, confetlsurety!>e"
4 be surety for loans to others or, directly or indirectly, be an obligor ^3| 360'§§8o
5 for money borrowed of the corporation ; and if such member or offi- g5| *8-'
6 cer becomes the owner of real estate upon which a mortgage is held i§72,'293, § 3.
7 by the corporation, his office shall become vacant at the expiration p. s'. lie, § 21.
8 of sixty days thereafter unless he has ceased to be the owner thereof 1394; 317) § 22.
9 or has caused said mortgage to be discharged. Only one of the
10 persons holding the offices of president, clerk, and treasurer shall
11 at the same time be a member of the board of investment.
1 Section 28. Such corporation, or a person acting in its behalf, f^!,1 not to nks'
2 shall not negotiate, take or receive a fee, brokerage, commission, fce®iJtecbl0°nier-
3 gift or other consideration for or on account of a loan made by or account 'of a
4 on behalf of such corporation, other than appears on the face of the 1872,293, §§ 1, 5.
5 note or contract by which such loan purports to be made ; but the p.'s'. 116, §22.
6 provisions of this section shall not apply to a reasonable charge for 1894' 317> § 23,
7 services in the examination of titles and preparation of conveyances
8 to such corporation as security for its loans. Whoever violates a
9 provision of this section shall be punished by a fine of not less than
10 one hundred nor more than one thousand dollars. All amounts paid
11 for services, fees or otherwise to a member of the board of trus-
12 tees shall be reported in detail at the next regular meeting of the
13 trustees.
1 Section 29. All applications to the corporation for loans shall ^ffiSKg,,
2 be made in writing to the treasurer of the corporation, who shall to be m writing
1076
SAVINGS BANKS.
[Chap. 113.
and record
kept.
1872, 293, § 3.
1876, 203, § 12.
P. S. 116, § 23.
1894, 317, § 24.
keep a record thereof showing the date, name of applicant, amount 3
asked for and the security offered, and he shall cause the same to 4
be presented to the board of investment. 5
Guaranty fund
to be created
and main-
tained.
1876, 203, § 13.
P. S. 116, § 24.
1894, 317, § 25.
[1 Op. A. G.
303, 538.]
DIVIDENDS AND PAYMENTS.
Section 30. Such corporation shall at the time of making each 1
semi-annual dividend reserve as a guaranty fund from the net 2
profits which have accumulated during the six months last preced- 3
ing not less than one-eighth nor more than one-fourth of one per 4
cent of the whole amount of deposits, until such fund amounts to 5
five per cent of the whole amount of deposits, which fund shall be 6
thereafter maintained and held to meet losses in its business from 7
depreciation of its securities, or otherwise. 8
Manner of
division of net
profit, etc.,
among
depositors.
1834, 190, § 10.
R. S. 36, § 81.
1859, 181, § 1.
G. S. 57, § 147.
1876, 203, § 14.
P. S. 116, § 25.
1894, 317, § 26.
1897, 109.
Section 31. The income or profit of such corporation, after a 1
deduction of the reasonable expenses incurred in the management 2
thereof, and the amounts reserved for the guaranty fund, shall be 3
divided in the following manner among its depositors or their 4
legal representatives at times fixed by its by-laws : ordinary divi- 5
dends shall be made every six months, and shall not exceed two 6
and one-half per cent on all amounts which have been on deposit for 7
the six months last preceding, or one and one-fourth per cent on 8
all amounts which have been on deposit for the three months last 9
preceding. No ordinary dividend shall be declared or paid except 10
as above provided, nor upon a deposit of less than three months' 11
standing ; but in computing dividends as aforesaid amounts deposited 12
on or before the third day of the quarter last preceding or the third 13
day of the half year last preceding may be considered as having 14
been on deposit for three and six months, respectively. Such cor- 15
poration may, by its by-laws, provide that a dividend shall not be 16
declared or paid on less than three dollars, or on the fractional part 17
of a dollar. 18
Dividend not
to be paid,
when.
1876, 203, § 15.
1880, 150.
P. S. 116, § 26.
1894, 317, § 27.
Section 32. If, at the time provided by the by-laws for making 1
ordinary dividends, the net profits for the six months last preced- 2
ing, over and above the amount to be added to the guaranty fund, do 3
not amount to one and one-half per cent of the deposits, no divi- 4
dend of the profits shall be declared or paid, except such as shall 5
be approved in writing by the board of commissioners of savings 6
banks. 7
Extra divi-
dends may be
paid once in
every three
years, when,
etc
1876, 203, § 16.
P. S. 116, § 27.
1888, 355.
1894, 317, § 28.
1896, 231.
Section 33. Once in three years, at the time provided by the 1
by-laws for making ordinary dividends, if after such dividend is 2
made, the net profits accumulated, including the guaranty fund, 3
amount to eleven per cent of the deposits which have remained in 4
such corporation for one year last preceding, such net profits in 5
excess of ten per cent shall be divided among the depositors whose 6
deposits have remained therein for the year last preceding, in propor- 7
tion to the amount of dividends which have been declared on their 8
deposits during the three years last preceding. 9
Section 34. A dividend shall not be declared until the trustees 1
2
Payment of
dividend to be
authorized by cause an examination to be made, and find that the amount thereof
trustees.
Chap. 113.] savings banks. 1077
3 has actually accrued ; and a dividend or interest shall not be paid £pf Wfjf 3-
4 unless authorized by a vote of the trustees after such examination. is'76,'203, § n."
P. S. 116, § 28. 1894, 317, § 29.
1 Section 35. The principal deposits in such corporation may be withdrawal of
2 withdrawn at such time and in such manner as the by-laws direct, payments to
3 but the deposits so withdrawn shall be deducted in each case from fssi0m § io
4 the amounts last deposited. Money deposited in the name of a minor ]|5f'-f6?-[,§ 81-
5 may, at the discretion of the trustees or board of investment, be paid ©■ s'. 57,§§ 147,
6 to such minor or to the person making such deposit ; and the same 1876, 203, § is.
7 shall be a valid payment.
P. S. 116, §29. 1894, 317, § 30. 141 Mass. 33. 152 Mass. 49.
1 Section 36. Such corporation may pay an order, drawn by a payment on
2 person who has funds on deposit to meet the same, notwithstanding death ofter
3 the death of the drawer, if presentation is made within thirty days i88^w|i0' § 2
4 after the date of such order ; and at any time if the corporation has 1894> 317> § 3*-
5 not received actual notice of the death of the drawer.
1 Section 37. A person indebted to such corporation, whether Depositor may
2 his indebtedness is secured or not, may, in a proceeding for the ofhif deposit*
3 collection thereof or for the enforcement of any security therefor, re- ^ ^neCcorpofa-
4 coup or set off the amount of a deposit held and owned by him at the J*"™- 261
5 time of the commencement of such proceeding, and of the interest p. s. ii6, § 30.
O ' _ 1894 317 § 32
6 due thereon, except a deposit purchased or acquired from another 128 Mass. 512!
7 after the commencement of proceedings in equity to restrain the cor-
8 poration from doing its actual business, and the provisions of section
9 three of chapter one hundred and seventy-four shall not apply to
10 such set-off; but a judgment shall not be rendered against such
11 corporation in favor of the defendant or defendants for any bal-
12 ance found due from the plaintiff if such corporation is under per-
13 petual injunction, as provided in section six.
1 Section 38. If, in an action against such corporation for money interpleader.
2 on deposit therewith, it appears that the same fund is claimed by if^; ^l; § 19'
3 another party than the plaintiff, whether by the husband or wife of ^"9f ; 317/ II31;
4 such plaintiff, or otherwise, the court in which such action is pending, 125 Mass. 596.
5 on the petition of the corporation and, on such notice to the plain- 162 Mass. 457.
6 tiff and to such claimants as the court considers proper, may order
7 the proceedings to be amended by making such claimants defend-
8 ants thereto ; and thereupon the rights and interests of the several
9 parties in and to said funds shall be heard and determined. Such
10 deposits may remain with the corporation until final judgment, and
11 shall be paid in accordance with the order of the court, or may be
12 paid into court to await final judgment; and, when so paid into
13 court, the action shall be discontinued as to such corporation and
14 its liability for such deposit shall cease. The taxable costs of the
15 corporation in such actions shall be in the discretion of the court, and
16 may be charged upon the fund.
1 Section 39. If a deposit is made with such corporation by if deposit
,-v . n ,1 ,1 i -j v i.u is made In
2 one person in trust for another, the name and residence ot the person trust, name of
3 for whom it is made shall be disclosed, and it shall be credited to the ^ disclosed.
4 depositor as trustee for such person ; and if no other notice of the 1876« 203> 5 *>-
1078
SAVINGS BANKS.
[Chap. 113.
p. s. ii6, § 32. existence and terms of a trust has been given in writing to the cor- 5
142 Mass. i. ' poration, the deposit, with the interest thereon, may in case of the 6
iw Mass.' ill' death of the trustee be paid to the person for whom such deposit 7
was made, or to his legal representative. 8
Depositor to
be notified,
when.
1871, 262, § 1.
1876, 203, § 21.
P. S. 116, § 33.
1894, 317, § 35.
Section 40. The treasurer of such corporation, upon making up 1
each semi-annual dividend, shall send notice by mail to each de- 2
positor who for the six months last preceding has not been entitled 3
to a dividend on the whole amount standing to his credit, because the 4
same exceeds the amount on which interest is allowed, specifying 5
the amount not entitled to dividend. v 6
List of
amounts due
depositors to
be published.
1871, 262, § 2.
1876, 203, § 22.
P. S. 116, § 34.
1894, 317, § 36.
Section 41. Such corporation shall once in five years publish, in 1
three successive issues of a newspaper of the county in which it is 2
established, a list of the amounts standing to the credit of depositors 3
who have not been entitled to dividends on the whole amount stand- 4
ing to their credit for the two years last preceding, because the 5
same exceed the amount on which interest is allowed, with the 6
names and last known residences of the persons to whose credit such 7
amounts stand. 8
Special trust
fund for parks,
shade trees,
etc.
1875, 174, § 1.
P. S. 116, § 35.
1894, 317, § 37.
153 Mass. 467.
163 Mass. 509.
Probate court
may authorize
executors to
deposit such
funds.
1S77, 162.
P. S. 116, § 36.
1894, 317, § 38.
139 Mass. 353.
153 Mass. 467.
SPECIAL TKUST FUNDS.
Section 42. Such corporation may receive on deposit to any 1
amount funds in trust for the purpose of setting out shade trees in 2
streets and parks and improving the same ; for purchasing land for 3
parks and improving the same ; for maintaining cemeteries or ceme- 4
tery lots or for erecting and maintaining drinking fountains in 5
public places. Such funds shall be placed on interest in such corpo- 6
ration, and the interest and dividends arising therefrom shall be paid 7
semi-annually to such city, town or cemetery authorities as may be 8
designated by the donors of said funds or the will of the person be- 9
queathing the same, and shall be expended by such authorities within 10
their respective cities, towns or cemeteries for any or all of said 11
purposes, as may be specified by such donors or such will. No part 12
of the principal of such funds shall be withdrawn or expended, and 13
the same shall be exempt from attachment or levy on execution. 14
Section 43. A judge of probate, after notice and a hearing, 1
may authorize an executor, administrator or trustee holding money 2
or other personal property for any of the purposes mentioned in the 3
preceding section, to deposit such money, or the avails arising 4
from such personal property, in any such corporation designated by 5
the judge, to be held by it in the manner and for the uses and pur- 6
poses mentioned in said section and upon the trusts upon which the 7
executor, administrator or trustee held the same ; and upon the de- 8
posit of such money and its receipt and acceptance by such corpo- 9
ration the executor, administrator or trustee shall be discharged 10
from further care and responsibility therefor. 11
statement of Section 44. The funds held in accordance with the two preced-
amountof such . , in t t oi-im i n ±
funds to be {ng sections shall be known as the "Shade lree and Cemetery
third6 |ear7etc. Fund ", and the treasurer of the corporation with which they are
p.7!. lit', §37. deposited shall give a receipt therefor to the depositor, and shall
1894, 3i7, § 39. sen^ fry maji or deliver in January in each third year after the first
1
2
3
4
5
Chap. 113.] savings banks. 1079
6 deposit to the mayor of a city or the chairman of the selectmen of
7 a town within the limits of which the interest and dividends of such
8 fund are to be expended a written statement, signed by such
9 treasurer, of the amount of funds on deposit for the purposes afore-
10 said, which shall be recorded in the office of the clerk of such city
11 or town.
1 Section 45 . If a corporation holding such fund surrenders its Funds to be
2 charter or ceases to do business, the supreme judicial court may order when!erre '
3 said fund to be transferred and deposited in another such corpora- pJi'.iie.lfs.
4 tion, upon the same trusts ; and if the laws authorizing such corpo- 1894> 317, § 40#
5 rations are repealed, the court may order such fund to be transferred
6 and deposited in such banking institutions as it may find proper,
7 to be held upon the trusts aforesaid.
BOOKS AND RETURNS.
1 Section 46. The board of commissioners of savings banks may Boots and
2 prescribe the manner and form of keeping and auditing the books istoJ1^? § i.
3 and accounts of such corporation. p. s. ii6,§39. i894, m, § 4i. isso, 228, §i.
1 Section 47. The treasurer of such corporation shall annually, Annual report
2 within twenty days after the last business day of October, make a is34°i9o!'§ 11.
3 report to the board of commissioners of savings banks, showing ^f.'fl.'l f.2'
4 accurately the condition of such corporation at close of business ^•6f,^.§^!'
5 on said day. The report shall be in such form as said board shall f|6|^9.2'.10'
6 prescribe, and shall specify the following particulars : name of cor- i867,'203i§i.'
7 poration and number of corporators ; place where located ; amount Res! m&, 68.
8 of deposits ; amount of each item of other liabilities ; public funds, ilv^m52"
9 including all United States, state, county, city, town and district ^"J; 127.' §40-
10 bonds, stating each particular kind, the par value, estimated market 1894« 317> § *2-
11 value and amount invested in each; loans on public funds, stating
12 amount on each ; stock in banks and trust companies, stating par
13 value, estimated market value and amount invested in each;
14 loans on stock in banks and trust companies, stating amount on
15 each; railroad bonds, stating par value, estimated market value
16 and amount invested in each; loans on railroad bonds, stating
17 amount on each; loans on railroad stock, stating amount on each;
18 estimated value of real estate, and amount invested therein ; loans
19 on mortgage of real estate ; loans to counties, cities, towns or
20 districts ; loans on personal security ; cash on deposit in banks
21 and trust companies, with the names of such banks and trust
22 companies and the amount deposited in each ; cash on hand ;
23 the whole amount of interest or profits received, and the rate
24 and amount of each semi-annual and extra dividend for the previous
25 year ; the times for the dividends fixed by the by-laws ; the rates
26 of interest received on loans ; the total amount of loans bearing each
27 specified rate of interest; the number of outstanding loans which
28 are of an amount not exceeding three thousand dollars each, and the
29 aggregate amount of the same ; the number of open accounts ; also
30 the number and amount of deposits received ; the number and
31 amount of withdrawals ; the number of accounts opened and the
32 number of accounts closed, severally, for the previous year ; and
33 the annual expenses of the corporation ; all of which shall be certi-
1080
SAVINGS BANKS.
[Chap. 113.
fied and sworn to by the treasurer. The president and five or more 34
of the trustees shall certify and make oath that the report is correct 35
according to their best knowledge and belief. 36
Additional
statements
may be re-
quired by the
board.
1879, 285, 5 2.
1880, 228, § 2.
P. S. 116, §41.
1888, 127.
1890, 44.
1894, 317, § 43.
Blank forms
for report of
board.
1834, 190, § 11.
R. S. 36, § 83.
1846,49; 86, §2.
G. S. 57, § 149.
1866, 192, § 6.
1867, 203, § 2.
1876, 203, § 24.
1878, 253, § 2.
P. S. 116, § 42.
1S94, 317, § 44.
Section 48. Such report shall, in the year nineteen hundred and 1
four, and in each fifth year thereafter, also state the number and 2
amount of deposits of fifty dollars and less, of those exceeding fifty 3
dollars and not more than one hundred dollars, of those exceeding 4
one hundred dollars and not more than two hundred dollars, of those 5
exceeding two hundred dollars and not more than five hundred dol- 6
lars, of those exceeding five hundred dollars and less than one 7
thousand dollars, of those of one thousand dollars or more ; and of 8
those to the credit of women, both adults and minors, guardians, 9
religious and charitable associations, and in trust, respectively, re- 10
ceived during the twelve months last preceding. 11
Section 49. The board of commissioners of savings banks shall 1
furnish blank forms of reports to such corporation and shall pre- 2
pare annually from such reports, and communicate to the general 3
court, on or before the first Wednesday in January, a statement of 4
the condition of each corporation from which a report has been 5
received for the preceding year and shall include therein a state- 6
ment of the affairs of such corporations in the hands of receivers 7
and shall make such suggestions as they may consider expedient 8
relative to the general conduct and condition of each corporation 9
visited by them. 10
returned to the Section 50. The treasurer of such corporation shall, within 1
board and pub- fifteen days after the last business day of October in the year 2
1887, 319. nineteen hundred and two and each fifth year thereafter, return 3
' to the board a sworn statement of the name, the amount standing 4
to his credit, the last known residence or post office address, and 5
the fact of death, if known to him, of each depositor who shall not 6
have made a deposit therein or withdrawn therefrom any part of his 7
deposit, or any part of the interest thereon, for more than twenty 8
years last preceding ; he shall also give notice of these deposits in 9
one or more newspapers published in or nearest to the city or town 10
in which such banks are located, at least once a week for three sue- 11
cessive weeks ; but the provisions of this section shall not apply to 12
the deposit made by or in the name of a person known to the bank 13
to be living, or to a deposit which, with the accumulations thereon, 14
shall be less than twenty-five dollars. The treasurer of a savings 15
bank who neglects or refuses to make the sworn return required by 16
this section shall be punished by a fine of one hundred dollars. 17
Said board shall incorporate in its annual report, or in a supplemen- 18
tary report, each return made to it as provided in this section. 19
mak1nyfairse Section 51. An officer, agent, clerk or servant of a corporation 1
reports to com- wh0 refuses or neglects to make a report or statement lawfully 2
1896,327. ' required by the board of commissioners of savings banks or who 3
knowingly makes a false report or statement to said board shall be 4
punished by a fine of not more than one thousand dollars or by im- 5
prisonment in the house of correction for not more than three years 6
or by both such fine and imprisonment. 7
Chap. 113.] savings banks. 1081
1 Section 52. Every such corporation shall, at least once in each 7889al8salance-
2 of its fiscal years, make an accurate trial balance of its depositors' isa*! 317, § 46.
3 ledger.
1 Section 53. In the year nineteen hundred and one and in each B°80it!°bde'
2 third year thereafter such corporation shall call in the books of de- verified.
3 posit of their depositors for verification under rules to be prescribed i894| 317, § 47.
4 by their respective boards of investment, duly approved by the 1896> 193,
5 board of commissioners of savings banks.
1 Section 54. Copies from the records, books and accounts of ^e°cpire| troJ? to
2 such corporation shall be competent evidence in all cases, equallv be .competent
3 with the originals thereof, if there is annexed to such copies an affi- i885, 92.. '
4 davit taken before a clerk of a court of record or notary public, under 1894' 317, § 49*
5 the seal of such court or notary public, stating that the affiant is
6 the officer having charge of the original records, books and accounts,
7 and that such copy is true and correct and is full, so far as it relates
8 to the subject matter therein referred to.
unclaimed deposits.
1 Section 55. The probate court, court of insolvency or other unclaimed
2 court, respectively, shall, upon the application of a person interested deposed of.w
3 or of the attorney general, and after public notice, order and decree 1I94; 317,' § 56.
4 that all amounts of money heretofore or hereafter deposited with such
5 corporation, by authority of any of said courts or judge thereof,
6 and which shall have remained unclaimed for more than five years
7 from the date of such deposit, with the increase and proceeds
8 thereof, shall be paid to the treasurer and receiver general, to be
9 held and used by him according to law, subject for fifteen years
10 only to be repaid to the person having and establishing a lawful
11 right thereto, with interest at the rate of three per cent per annum
12 from the time it is so paid to said treasurer to the time it is paid
13 over by him to such person.
1 Section 56. Receivers of insolvent savings banks, at the expira- Receivers to
2 tion of one year after final settlement ordered by the court, shall unclaimed
3 report to the court the names and residences, if known, of the 1^1/70.
4 persons entitled to money or dividends from the estate of such ^"8f "tt.6* § **"
5 corporations remaining in their hands uncalled for, with the amount ™®> |g8-
6 due to each. The court shall thereupon order a notice to be given i89i| 317, § 54.
7 by the receivers and, upon the expiration of one year after the time
8 of giving such notice, the receivers shall in like manner report the
9 amounts still uncalled for. Unless cause shall appear for decreeing
10 otherwise such amounts shall then be ordered to be paid into the
11 treasury of the commonwealth, and schedules signed by the receivers
12 shall at the same time be deposited with the treasurer and receiver
13 general and auditor, setting forth the decree of the court and the
14 names and residences, so far as known, of the persons or parties
15 entitled thereto alphabetically arranged, and the amount due to
16 each. The auditor shall forthwith cause notice of such deposit to
17 be mailed to such persons and, upon certification by him that a
18 claimant is entitled to any part of said deposit, it shall be paid in
1082 CO-OPERATIVE BANKS. [CHAP. 114.
the same manner as other claims against the commonwealth. Upon 19
the payment into the treasury of the commonwealth of such un- 20
claimed money or dividends, the receivers shall deposit with the 21
board of commissioners of savings banks all books and papers of 22
such insolvent savings bank, including those relative to their re- 23
ceivership, which shall be preserved by the board. 24
CHAPTEE 114.
OF CO-OPERATIVE BANKS.
bankP8eto beln. Section 1. No person, and no association or corporation, 1
isJ^I^u 3 excePt foreign associations and corporations duly licensed by the 2
liqfi' 286' §§ 1'' 4' k°ard °f commissioners of savings banks prior to the fourteenth day 3
149 Mass. 367. of April in the year eighteen hundred and ninety-six to transact 4
business in this commonwealth, shall transact the business of accu- 5
mulating the savings of its members and loaning to them such 6
accumulations in the manner of a co-operative bank, unless incorpo- 7
rated in this commonwealth for such purpose. Whoever violates 8
any provision of this section shall be punished by a fine of not more 9
than one thousand dollars, and the supreme judicial court or the 10
superior court shall have jurisdiction in equity to enforce the pro- 11
visions of this section. 12
f^*.011. Section 2. Twenty-five or more persons, who associate them- 1
igyf 'la k i selves by an agreement in writing with the intention of forming a 2
ps'-i1?'. §i- corporation for the purpose of accumulating the savings of its 3
members paid into such corporation in fixed periodical instalments 4
and loaning to its members the funds so accumulated, shall, with the 5
consent of the board of commissioners of savings banks, become 6
a corporation upon complying with the provisions of the following 7
section. 8
i87ff224,a§1§°2|4. Section 3. The provisions of sections fifteen to twenty, in- 1
p. s. in, §§2, 4. elusive, of chapter one hundred and ten shall apply to such corpo- 2
rations, except that the agreement of association shall also state 3
the limit of capital to be accumulated, that, in the certificate signed 4
by the secretary of the commonwealth, the limit of capital to be 5
accumulated as fixed in the agreement of association shall be inserted 6
instead of the amount of capital, that the certificate required by 7
section twenty of said chapter to be filed and recorded may be 8
signed and sworn to by the presiding and financial officers and a 9
majority at least of the officers who possess the powers of directors, 10
by whatever name they may be called, and that the fees to be paid 11
for filing and recording the certificates required by said section 12
twenty, including the issuing of the certificate of organization, shall 13
be five dollars. 14
capital0* Section 4. The capital actually paid in shall not exceed one 1
issue of stock, million dollars, and shall be divided into shares of the ultimate 2
etc.
1877, 224, § 5. value of two hundred dollars each. The shares may be issued in 3
Chap. 114.] co-opeeative banks. 1083
4 quarterly, half-yearly or yearly series, in such amounts and at such p. s. in, § 5.
5 times as the members may determine, so long as the capital actually i49Mas8.§i67.
6 paid in on shares does not exceed one million dollars.
7 No person shall hold more than twenty-five shares in the capital
8 of one such corporation. No shares of a prior series shall be issued
9 after the issue of a new series.
1 Section 5. Shares may be issued in the name of a- minor, and fomfn r8ued
2 may, in the discretion of the directors, be withdrawn as provided shares held in
3 in section nine by such minor or by his parent or guardian, and in i887,2ie,§s.
4 either case payments made on such withdrawals of shares shall
5 be valid. If shares are held in trust the name and residence of the
6 beneficiary shall be disclosed and the account shall be kept in the
7 name of such holder as trustee for such person. If no other notice
8 of the existence and terms of such trust has been given in writing
9 to the corporation, such shares may, upon the death of the trustee,
10 be withdrawn by the person for whom such deposit was made or by
11 his legal representatives.
1 Section 6. The number, title, duties and compensation of the By-laws.
2 officers of the corporation, their terms of office, the time of their SrcTssw, §§e,
3 election, the qualifications of electors and the time of each periodi- p;s 117 §6
4 cal meeting of the officers and members shall be determined by the ilof' 123' § 1-
5 by-laws. The by-laws may also provide for the election of the
6 secretary and treasurer either by the shareholders or by the board
7 of directors. No member shall be entitled to more than one vote at
8 any election. All officers shall continue in office until their suc-
9 cessors are duly elected. The offices of secretary and treasurer
10 may be held by the same person.
1 Section 7. The treasurer shall dispose of and secure the safe Treasurer,
2 keeping of all money, securities and property of the corporation, Bon!8'
3 in the manner designated by the by-laws, and the treasurer and p/s.m'.ln.
4 secretary shall give, subject to the provisions of section fifteen of 1898> m> §L
5 chapter one hundred and thirteen, such bond for the faithful per-
6 formance of their respective duties as the by-laws may require.
1 Section 8. The officers shall hold stated monthly meetings at ^*w^f*-
2 any place in the city or town in which the bank is located. At or 1877, 224, §§ 5,
3 before each such meeting every member shall pay to the corporation mi, 271, § 1,
4 as a contribution to its capital one dollar as dues upon each share p.' s'. 117, § 7.
5 held by him until the share reaches the ultimate value of two 1900>2i9-
6 hundred dollars, or is withdrawn, cancelled or forfeited. Payment
7 of dues on each series shall commence from its issue.
1 Section 9. A member may withdraw his unpledged shares, withdrawal of
2 after giving thirty days' notice of his intention so to do, written in fsTV^k §10.
3 a book held and provided by the corporation for such purpose. ci83.271,§1,
4 Upon such withdrawal such shareholder shall be paid the balance ^"8f ,* 2517,' § 18.'
5 remaining after deducting from the amount then standing to the j^y^^
6 credit of the shares all fines, a proportionate part of any unadjusted
7 loss, and such proportion of the profits previously credited to the
8 shares as the by-laws may provide ; but at no time shall more than
1084 CO-OPERATIVE BANKS. [CHAP. 114.
one-half of the funds in the treasury be applicable to the demands 9
of withdrawing members without the consent of the directors. The 10
directors may, under rules made by them, retire the unpledged 11
shares of any series after four years from the date of their issue, by 12
enforcing the withdrawal thereof; but if there shall remain in any 13
series, at the expiration of five years after the date of its issue, 14
more than one hundred unpledged shares, the directors shall annually 15
retire twenty-five per cent of the excess so that not more than one 16
hundred unpledged shares shall remain in such series at the expira- 1 7
tion of nine years from the date of its issue, and when such excess 18
shall have been retired they may retire such other unpledged shares 19
as they consider the best interests of the bank require. When such 20
withdrawal of shares is to be enforced, the shares to be retired shall 21
be determined by lot, and the holders thereof shall be paid the full 22
value of their shares, less all fines and a proportionate part of any 23
unadjusted loss. Shares pledged for share loans shall be treated as 24
unpledged shares. 25
mafa«-edWhe11 Section 10. When each unpledged share of a given series 1
1881, 27i, § l, reaches the value of two hundred dollars, all payments of dues there- 2
r.' s'. in, § 9. on shall cease, and the holder thereof shall be paid out of the funds of 3
1882 251 § 1 •
1887^ 2i6,' § si the corporation two hundred dollars ; but at no time shall more 4
1 QQQ OA/7 C 9 si
' ' s ' than one-half of the funds in the treasury be applicable to the pay- 5
ment of such matured shares without the consent of the directors. 6
If any series of shares, pledged or unpledged, reaches maturity 7
between the dates of adjustment of profits, or if shares are retired 8
between said dates, the holders of such shares shall, in addition 9
to the value thereof, receive interest for all full months from the 10
date of the preceding adjustment to the time of payment, at the 11
rate at which profits were distributed at said adjustment ; but 12
before the payment of matured shares all arrears and fines shall be 13
deducted. 14
money Mnvest- Section 11. The money accumulated, after due allowance for 1
18-7*224 6 7 a^ necessaiy expenses and the cancellation of shares, shall, at each 2
i88i! 27i! § i, stated monthly meeting, be offered to the members according to the 3
p." s'. in, § io. premiums bid by them for priority of right to a loan, or, if the 4
1890, 78?' § 2- corporation so provides in its by-laws, the bid for loans shall, instead 5
1896, 277. 0£ a premium, be a rate of annual interest payable in monthly instal- 6
ments upon the amount desired. Such bids shall include the whole 7
interest to be paid and may be at any rate not less than five per 8
cent per annum. Each member whose bid is accepted shall be 9
entitled, upon giving proper security, to receive a loan of two hun- 10
dred dollars for each unpledged share held by him, or such fractional 11
part of two hundred dollars as the by-laws may allow. If any 12
money so offered for sale remains unsold, the directors may invest 13
it in any of the securities named in the second clause of section 14
twenty-six of chapter one hundred and thirteen, or may loan it upon 15
first mortgages of real estate situated in this commonwealth, upon 16
the conditions imposed by this chapter, or upon the shares of the 17
bank to an amount not exceeding their value at the adjustment last 18
preceding the time of the loan ; but in either case the loans shall be 19
at the highest rate at the last preceding monthly sale of money, and 20
a note shall be given as required by section fourteen. 21
Chap. 114.] co-operative banks. 1085
1 Section 12. Premiums for loans shall consist of a percentage Premiums.
2 charged on the amount loaned in addition to interest, and shall be p.7kii7',§ii.
3 a consideration paid by the borrower for the present use and
4 possession of the future or ultimate value of his shares, and shall,
5 with interest and fines, be received by the corporation as a profit on
6 the capital invested in the loan, and shall be distributed to the
7 various shares and series of said capital as hereinafter provided.
1 Section 13. A borrowing member, for each share borrowed i^f^*- -,
2 upon, shall, in addition to his dues and monthly premium, pay <a.s'.
3 monthly interest on his loan at the rate of six per cent per annum
4 until his shares reach the ultimate value of two hundred dollars
5 each, or the. loan has been repaid ; and when said ultimate value is
6 reached, said shares and loan shall be declared cancelled and satis-
7 fied, and the balance, if any, due upon the shares, shall be paid to
8 the member.
1 Section 14. For every loan made a note shall be given, accom- security.
2 panied by a transfer and pledge of the shares of the borrower, and iHI* m.', § l',
3 secured by a mortgage of real estate situated in this commonwealth p.'s.n7 §13.
4 and unencumbered by any mortgage or lien other than such as may \®®> f$ | \-
5 be held by the bank making the loan. The shares so pledged shall
6 be held by the corporation as collateral security for the performance
7 of the conditions of said note and mortgage. Said note and mort-
8 gage shall recite the number of shares pledged and the amount of
9 money advanced thereon, and shall be conditioned for the payment
10 at the stated meetings of the corporation of the monthly dues on
11 said shares, and the interest and premium upon the loan, with all
12 fines on payments in arrears, until said shares reach the ultimate
13 value of two hundred dollars each, or said loan is otherwise can-
14 celled and discharged ; provided, however, that the directors may
15 accept the shares as sufficient security for loans to an amount not
16 exceeding their value at the adjustment last preceding the time of
17 the loan.
18 If the borrower neglects to offer security satisfactory to the direct-
19 ors within the time prescribed by the by-laws, his right to the loan
20 shall be forfeited, and he shall be charged with one month's interest
21 and one month's premium at the rate bid by him, with all expenses
22 incurred ; and the money appropriated for such loan may be re-
23 loaned at any subsequent meeting.
1 Section 15. If a member purchases money at a lower rate Effect of new
2 than that paid by him on an existing loan, secured by a mortgage, is«n|mort"
3 for the purpose by him declared of reducing the premium or rate f^m, § 2.
4 of interest upon said loan, a new mortgage shall not be required, but
5 an agreement in writing for the reduction of said premium or rate
6 of interest, signed by said borrowing member and the secretary
7 of the bank, with the written approval of the president, shall be
8 valid, and shall not impair or affect the existing mortgage; and
9 thereafter said borrowing member shall make the monthly payments
10 on said loan in accordance with the terms of said agreement, and
11 the amount of money previously so purchased by him may be resold
12 by the bank at the same meeting. The borrower shall before the
13 sale give written notice to the secretary of his intention to re-buy
1086
CO-OPERATIVE BANKS.
[Chap. 114.
his money. The provisions of this section shall not exempt the 14
re-borrower from paying the interest and premium for the current 15
month on the loan made by him for the substitution of which the 16
new loan is made. 17
Payment of
loans.
1877, 224, § 11.
P. S. 117, § 14.
Section 16. A borrower may repay a loan at any time, upon 1
application to the corporation, whereupon, on settlement of his 2
account, he shall be charged with the full amount of the original 3
loan, with all monthly instalments of interest, premium and fines in 4
arrears, and shall be given credit for the withdrawing value of his 5
shares pledged and transferred as security ; and the balance shall 6
be received by the corporation in full satisfaction of said loan. All 7
settlements made between stated meetings of the directors shall be 8
made as of the date of the stated meeting next succeeding such 9
settlement. A borrower who desires to retain his shares and mem- 10
bership may repay his loan without claiming credit for said shares, 11
whereupon said shares shall be transferred to him, free from any 12
claim on account of said cancelled loan. 13
Partial pay
ments of loans
Section 17. Partial payments of loans on real estate made by 1
°n jeai estate. a co-operative bank may be received in amounts of fifty dollars or 2
a multiple thereof; and for each two hundred dollars so repaid 3
one share of stock shall be released from pledge. 4
Fines, forfeit-
ure of shares.
1877, 224, § 13.
P. S. 117, § 15.
1896, 285.
Section 18. Members who make default in the payment of their 1
monthly dues, interest and premiums, shall be charged a fine not 2
exceeding two per cent a month on each dollar in arrears. No fines 3
shall be charged after the expiration of six months from the first 4
lapse in any such payment, nor upon a fine in arrears. The shares 5
of a member who continues in arrears more than six months shall, 6
at the option of the directors, if the member fails to pay the arrears 7
within thirty days after notice, be declared forfeited, and the with- 8
drawing value of the shares at the time of forfeiture shall be ascer- 9
tained, and, after deducting all fines and other legal charges, the 10
balance remaining shall be transferred to an account to be designated 11
the "Forfeited Share Account" to the credit of the defaulting mem- 12
ber. Said member, if not a borrower, shall be entitled upon giving 13
thirty days' notice to receive, out of the funds appropriated to the 14
payment of withdrawals, the balance so transferred without interest 15
from the time of the transfer, in the order in which such notices are 16
given. All shares so forfeited or transferred shall cease to partici- 17
pate in any profits of the corporation accruing after the adjustment 18
and valuation of shares last preceding said forfeiture. 19
Recovery of
loan.
1877, 224, §§ 8,
13.
P. S. 117, § 16.
1882, 251, § 1.
1885, 121, § 4.
Section 19. If a borrowing member is in arrears for dues, in- 1
terest, premium or fines for more than six months, the directors 2
may, after one month's notice, declare the shares forfeited if the 3
arrears then remain unpaid. The account of such borrowing mem- 4
ber shall then be debited with the arrears of interest, premium and 5
fines to date of forfeiture, and the shares shall be credited upon the 6
loan at their withdrawing value. The balance of the account may 7
and after six months shall be enforced against the security, and be 8
recovered as secured debts are recovered at law. 9
Chap. 114.] co-operative banks. 1087
1 Section 20. No member whose shares are withdrawn, forfeited FJneson.^
. -i-i-ii-ii i-ir> snares witn-
2 or retired, shall be charged with fanes upon such shares in excess of drawn, etc.
3 the profits distributed thereto, and if no profits shall have been dis-
4 tributed to such shares no fines shall be charged thereon. The
5 provisions of this section shall not prevent a borrowing member
6 being charged with fines according to law upon interest and pre-
7 miums in arrears.
1 Section 21. No co-operative bank, nor any person acting in its Bank or
2 behalf, shall take or receive a fee, brokerage, commission, gift or receive certain
3 other consideration for or on account of a loan made by or on behalf i897,'i6i.
4 of such corporation, other than appears on the face of the note or
5 contract by which such loan purports to be made ; but the provi-
6 sions of this section shall not apply to a reasonable charge for
7 services in the examination of property and titles and preparation
8 and recording of conveyances to such corporation as security for
9 its loans. Whoever violates a provision of this section shall be
10 punished by a fine of not less than one hundred nor more than one
11 thousand dollars.
1 Section 22. The general accounts of every such corporation Books of
* Account
2 shall be kept by double entry. AH money received by the corpo- 1877, 224', § 14.
3 ration from each member shall be receipted for by persons desig- 173 Mass. 54. '
4 nated by the directors, in a pass book provided by the corporation
5 for the use of and to be held by the member. Said pass book
6 shall be plainly marked with the name and residence of the holder
7 thereof, the number of shares held by him and the number or des-
8 ignation of the series or issue to which said shares, respectively, be-
9 long, and the date of the issue of such series. All money so
10 received shall be originally entered by the proper officer in a book
11 to be called the "cash book", to be provided by the corporation for
12 the purpose, and the entries therein shall show the name of the payer,
13 the number of shares, the number or designation of the series or
14 issues of the particular share or shares so entered, with the amount
15 of dues, interest, premiums and fines paid thereon. Each payment
16 shall be classified and entered in a column devoted to its kind. Said
17 cash book shall be closed after the termination of each stated meet-
18 ing, and shall be an exhibit of the receipts of all money paid at said
19 meeting. All payments made by the corporation shall be by order,
20 check or draft upon the treasurer, signed by the president and
21 secretary and indorsed by the persons in whose favor the same are
22 drawn. The name of the payee, the amount paid and the purpose,
23 object or thing for which the payment is made, with its date, shall
24 be entered on the margin of said order, check or draft.
1 Section 23. Profits and losses may be distributed annually, Duwtmtfon of
2 semi-annually or quarterly to the shares then existing, but shall j°^es.^
3 be distributed at least once in each year, and when a new series of i88i!a7i!§i,'
4 shares is to be issued. Profits and losses shall be distributed to the p.' s'. 117, § is.
5 various shares existing at the time of such distribution, in propor-
6 tion to their value at that time, and shall be computed upon the
7 basis of a single share fully paid to the date of distribution. Losses
8 shall be apportioned immediately after their occurrence.
1088
CO-OPERATIVE BANKS.
[Chap. 114.
Guaranty
fund.
1885, 121, § 2.
Section 24. At each distribution of profits, the directors shall 1
reserve as a guaranty fund not less than one nor more than five per 2
cent of the net profits accrued since the last preceding adjustment, 3
until such fund amounts to five per cent of the dues capital, which 4
fund shall thereafter be maintained and held available to meet losses 5
in the business of the corporation including depreciation of its 6
securities. 7
account. Section 25. A corporation which carries on its books as assets 1
1900,273. anj unpaid interest, premiums or fines shall, at each distribution 2
of profits, transfer at least five per cent of such items to the credit 3
of its surplus account until such account amounts to at least 4
twenty-five per cent of the total of all such items existing at the 5
time of such distribution. If the amount in said surplus account 6
falls below said twenty-five per cent it shall be replenished by 7
transfers as herein provided until it reaches said amount. 8
mf/bu^and Section 26. Such corporation may purchase at public or private 1
1877 r224 U7te" sale real estate upon which it may have a mortgage, judgment, lien 2
p. s. in, § 19. or other encumbrance, or in which it may have an interest, and may 3
i9oo! 2u. ' sell, convey or lease the real estate acquired by it and, on the sale 4
ioi.f' ' ' thereof, may take a mortgage in common form thereon to secure the 5
payment of the whole or part of the purchase price. All real estate 6
shall be sold within five years from the acquisition of the title 7
thereto ; but the board of commissioners of savings banks may, upon 8
the petition of the security committee of such corporation and for 9
cause, grant an additional time for the sale of the same. 10
Place of busi-
ness.
1900, 249.
Powers of
savings bank
commission-
el's
1879, 129.
P. S. 117, § 20.
Foreign banks
not to do busi-
ness, when.
1889, 452. § 1.
1890, 310, § 2.
1891, 403.
Section 27. A co-operative bank, except as provided in section 1
eight, shall carry on its usual business at its office only, which shall 2
be in the city or town named in its agreement of association. It 3
shall not maintain a sign or advertise to transact business in any 4
other place ; but the secretary or other person authorized to re- 5
ceive money may receive dues, interest, premiums and fines upon 6
such days and in such other places as its board of directors may 7
authorize, subject to the approval of the board of commissioners of 8
savings banks. 9
Section 28. The board of commissioners of savings banks shall 1
perform the same duties relative to every such corporation, and shall 2
have the same powers, as are required of or given to them relative 3
to savings banks, and shall annually make report to the general court 4
of such facts and statements relative to such corporations and in 5
such form as they consider the public interest requires. Every 6
officer of such corporation shall answer truly all inquiries made, 7
and shall make all returns required by the commissioners. 8
Section 29. If, in the opinion of the board of commissioners 1
of savings banks, any foreign association or corporation authorized 2
to carry on the business of a co-operative bank in this common- 3
wealth is transacting such business in a manner hazardous to the 4
public, or its condition is such as to render further proceedings by 5
it hazardous to the public, said board shall revoke or suspend the 6
authority given to such association or corporation and, if it is not 7
Chap. 115.] banks and banking. - 1089
8 authorized to carry on business in this commonwealth, said board
9 shall notify it to cease the transaction of such business. The pro-
10 visions of this chapter shall not prevent a foreign co-operative bank
11 from loaning money upon mortgages of real estate located within
12 this commonwealth.
1 Section 30. Every co-operative bank shall annually, within Annual
2 thirty days after the last business day of October, make to the board cooperative
3 of commissioners of savings banks in such form as may be pre- is^im, § 2.
4 scribed by it, a return, signed and sworn to by the secretary and 1895> m-
5 treasurer of the corporation, showing accurately the condition
6 thereof at close of business on said day. The president and five
7 or more of the directors shall certify and make oath that the report
8 is correct according to their best knowledge and belief. Such re-
9 turns shall include all amounts received and disbursed up to close
10 of business on said day, except that amounts received for dues,
11 interest, premiums and fines on account of the next monthly meet-
12 ing may be omitted. If a report is defective or appears to be
13 erroneous, the board shall notify the bank to amend the same within
14 fifteen days. A co-operative bank which neglects to make the
15 return required by the provisions of this section on or before the
16 time named therein, or to amend such report within fifteen days,
17 if notified by the board so to do, shall forfeit five dollars for each
18 day during which such neglect continues.
CHAPTER 115.
OF BANKS AND BANKING.
Sections 1-8. — Organization.
Sections 9-16. — Meetings .
Sections 17-26. — Directors .
Sections 27-29 . — Cashier.
Sections 30-49. — Course of Business.
Section 50. — Reserve.
Sections 51-54. — Loans and Discounts.
Sections 55-59. — Loans to the Commonwealth.
Sections 60-79 . — Circulating Notes .
Sections 80-87. — Liability of Stockholders.
Sections 88,89. — Weights .
Sections 90-94. — Taking Land.
Sections 95-98. — Sale of Shares.
Sections 99-107 . — Returns.
Sections 108-114. — Supervision.
Sections 115-118. — Surrender of Franchise.
ORGANIZATION.
1 Section 1. Ten or more persons may form a corporation for the Formation.
2 purpose of carrying on the business of banking, on the terms and general com
3 conditions prescribed in this chapter. The general court may alter O. W!.
4 or repeal any of the provisions of this chapter or of any statute ]^!2'2267, §§ 1
5 governing such corporations, and may by special act annul or dis- 1!&2, 236, § 1.
1090
BANKS AND BANKING.
[Chap. 115.
g. s. 57, §§ 13, solve any such corporation ; but its dissolution shall not impair any 6
p. s. 118, §1. remedy given against the same, its stockholders, or officers, for a 7
liability previously incurred. 8
howpaid0*' Section 2 . The capital stock of each bank shall not be less than 1
G5S577'iiii2' one nun(lred thousand nor more than one million dollars, in shares 2
p.' s.' us, § 2. ' transferable only at the banking house and on the books of the 3
bank. The stock shall be paid in gold or silver money, one-half 4
before the bank goes into operation, and the remainder within one 5
year thereafter ; subject to which provisions it shall be paid in such 6
instalments and at such times as the stockholders direct. 7
Bank not to go
into operation,
until, etc.
1828, 96, § 3.
B. S. 36, § 4.
1851, 267, § 2.
1859, 267.
G. S. 57, § 16.
P. S. 118, § 3.
Section 3. No bank shall go into operation until one-half of its 1
capital stock has been so paid in gold and silver money, and is in 2
its vaults, and until the money has been examined by three com- 3
missioners appointed by the governor. Such commissioners shall, 4
at the expense of the bank, examine and count the money actually 5
in the vaults, and ascertain by the oaths of a majority of the directors 6
that such money has been paid in by the stockholders toward pay- 7
ment of their respective shares, and not for any other purpose, and 8
that it is intended that the same shall remain as part of said capital ; 9
and shall return a certificate thereof to the governor. 10
Certificate of
organization.
1828, 96, § 2.
B. S. 36, § 2.
G. S. 57, §§ 13,
112.
P. S. 118, § 4.
Section 4. Before a bank commences business, the president 1
and directors shall under their hands and seals make a certificate, 2
which shall specify, — i85i„267, §3. 3
First, The corporate name, which shall be different from that of 4
any bank previously organized or incorporated in this commonwealth, 5
and shall be in the following form : The President, Directors, and 6
Company of the Bank (the name of the bank) . 7
Second, The name of the city or town in which it is to be located. 8
Third, The amount and number of shares of its capital stock. 9
Fourth, The name, place of residence, and number of shares of 10
each stockholder. 11
Fifth, The time when it is to go into operation. 12
The certificate shall be acknowledged before a justice of the peace 13
and recorded in the registry of deeds of the county or district in 14
which the bank is to be located, and a copy thereof shall be filed 15
in the office of the secretary of the commonwealth. Copies of 16
such certificate attested by the register or secretary shall be ad- 17
mitted as sufficient evidence in all cases. 18
IndioinsTo Section 5. No part of the capital stock of a bank shall be sold 1
stockholders, or transferred until the whole amount thereof is paid in, and no 2
r."s. 36, §§'5, 7. loan shall be made to a stockholder until the full amount of his 3
is. ' ' shares is paid in. p. s. us, §5. 4
holding Section 6. No person shall directly or indirectly hold or own 1
i83?,' 50| f \-0 more than one-half of the capital stock of a bank, exclusive of 2
g. s. 57, §21. stock which he holds as collateral security. p. s. us, §6. o
weSth°may Section 7. In addition to the capital stock to which a bank is 1
il-28 96° 5ki8 entitled, the commonwealth may subscribe thereto to an amount 2
b. s'. 36, § 42. not exceeding fifty per cent of its authorized capital, when pro- 3
Chap. 115.] banks and banking. 1091
4 vision is made therefor by law ; and the commonwealth, from the g. s. 57, § 22.
5 time of making any payment towards such capital stock, shall be p' s' 118' § 7<
6 entitled to its proportionate share of the profits and dividends.
1 Section 8. A bank may by a vote of three-fourths of its stock- increase of
. . -ii • i • !-,.. capital stock.
2 holders increase its capital stock, within the limits prescribed by 1836, 263.
3 section two, upon proceedings similar to those prescribed in section g. s'. 57? §§ 20,
4 four, and such increased capital shall be paid in gold and silver p. s. us, § 8.
5 money in such instalments, not exceeding four, as the directors
6 determine ; and each instalment shall be a part of the capital of the
7 bank as soon as it is so paid in and a certificate thereof forwarded
S to the secretary of the commonwealth.
MEETINGS.
1 Section 9. Written notices of the time and place of each meet- Notice of
2 ing of the stockholders of a bank, properly directed to each stock- SII, 96? l'§ 8, 10.
3 holder, shall be mailed by the cashier ten days at least before the as".
4 meeting ; and the directors shall give public notice of all meetings g5s.57,'§§362.
5 fourteen days previous thereto in a newspaper, if any, published in Pl St 118' § 9-
6 the county, otherwise in a newspaper published in Boston.
1 Section 10. A stockholder may vote according to the number votes of
2 of his shares, in the following proportion : for one share one vote, proxies!der8'
3 and for every two additional shares one vote more ; but no stock- b.21'.?6,§§ 23.
4 holder shall have more than ten votes. Absent stockholders may jf^'^ §1
5 vote by proxy, but no salaried officer of the bank shall vote as p-|'-iJi§c3fA
6 proxy. No officer shall as proxy cast more than ten votes, and no
7 person shall as proxy cast more than fifty votes.
1 Section 11. Each bank shall at least once in every six months List of stock-
2 prepare a list of its stockholders, with the amount of stock held Eeco^d'of
3 by each ; and shall provide a book in which all proxies filed under Penalty.
4 the following section shall be forthwith entered, with the date of g5!'.!?'!!!.'7'
5 execution, acknowledgment and filing of the same, and the names p. s. ns, §11.
6 of the stockholder and proxy or attorney named therein, and such
7 list, book and proxies filed shall at all times be open to the inspec-
8 tion of every stockholder. A bank failing to comply with the
9 provisions of this section shall for each offence forfeit not more than
10 five hundred dollars.
1 Section 12. Proxies and letters appointing an attorney or proxy Proxies, etc.,
2 to act at a meeting of the stockholders of a bank shall have the date ti°or™andecu"
3 of execution and the name of the proxy or attorney fully written il^f2°d', § 2.
4 in ink, shall be attested by at least one witness and acknowledged £• §; fj^ii
5 before a justice of the peace who is not an officer or director of the
6 bank, shall bear the date of their acknowledgment and shall, within
7 ten days from the date of acknowledgment and three at least before
8 the meeting referred to therein, be filed with the cashier or book-
9 keeper of the bank.
1 Section 13. Proxies shall be valid for three months only from -whenvaiid.
2 their date, and only for the meeting named therein and adjourn- g.s'.57,'§3o.
3 ments thereof; but proxies for stockholders who are citizens of this P-S118>§13-
1092
BANKS AND BANKING.
[Chap. 115.
commonwealth and absent therefrom shall be valid, if three days 4
at least before the meeting at which the same are to be used the 5
attorney named therein files his affidavit that his principal has not 6
since the date of the proxy been within this commonwealth. 7
Proxies, list of,
etc., to be read
at meeting.
1857, 243, § 5.
G. S. 57, § 37.
P. S. 118, § 14.
Section 14. Within three days before any meeting of stock- 1
holders, the directors shall prepare a list of the proxies in force 2
therefor, with the names of the stockholders and their respective 3
attorneys or proxies ; which list shall be read at the meeting before 4
proceeding to other business. 5
— not to be
received, etc.,
by salaried
officers.
Penalty.
1857, 243, § 1.
G. S. 57, § 38.
1866, 192, § 8.
P. S. 118, § 15.
Section 15. A salaried officer of a bank asking for, receiving 1
or being the medium of transmission of a proxy in a bank of which 2
he is an officer, except for the purpose of causing the same to be 3
recorded as provided in section eleven, shall in addition to the 4
penalty provided in the following section be disqualified from being 5
an officer in such bank; and, upon notice and satisfactory proof of 6
the same, the directors of the bank or the commissioners of savings 7
banks shall forthwith remove him. 8
officers^011 Section 16. A cashier violating a provision of section nine, 1
gPs 2K'$ik an(^ an °fl*cer °f a bank violating a provision of the four preceding 2
p." s.' us, § 16. sections, shall for each offence forfeit not more than five hundred 3
dollars. 4
directors.
Section 17. No bank shall have less than seven nor more than
twelve directors, the number to be determined by the by-laws, and
Directors,
number of.
1828, 96, § 7.
g. s. bi] § 4o! every bank having a capital of five hundred thousand dollars or
I860, 209, §§1,8; J , ,, , ,&, K ,.
214; 218. more shall have at least nine directors. p. s. us, §17. 2 Met. 163.
1
2
a
4
— qualifica-
tions of.
1828, 96, § 7.
R. S. 36, §§ 17,
18.
1838, 196, § 6.
1853, 401.
G. S. 57, §§ 41,
42.
1860, 209, § 1.
P. S. 118, § 18.
Section 18. No person shall be a director of a bank unless he 1
is a stockholder holding at least five shares of unpledged stock 2
therein and a citizen of and resident in this commonwealth, nor &
shall a person be a director in two banks at the same time. A 4
majority of the directors of every bank shall reside or have their 5
places of business within the county where the bank is established, 6
or within ten miles of the bank. 7
— choice of.
1828, 96, § 8.
R. S. 36, § 22.
1838, 196, § 1.
1843, 93, § 10.
1848, 121, § 1.
G. S. 57, § 43.
P. S. 118, § 19.
Section 19. The directors shall be chosen annually by ballot,
at a meeting of the stockholders on a day in October designated in
the by-laws of the bank if there is but one bank in a city or town,
otherwise on successive days, beginning on the first Monday of
October in the order of the bank abstract for the year last preced-
ing, or, in case of omissions in said abstract, in the order of the
dates of the organizations 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 place within the city or town as the directors shall appoint.
1
2
3
4
5
6
7
8
9
10
colrtnmay Section 20. In addition to the directors to be chosen by the 1
i828°96%i9 stockholders, the general court may from time to time appoint a 2
r. s. 36, § 43. number of directors in such proportion to the whole number as the &
Chap. 115.] banks and banking. 1093
4 sums paid by the commonwealth toward the stock of the bank bear g. s. 57, § 44.
5 to the whole amount of the stock actually paid in. p. s. us, §20.
1 Section 21. Directors chosen by the stockholders may be re- Directors
2 moved at a special meeting of the stockholders, the notification of removed.
3 which states that a change in the board of directors is contemplated ; r2|. H, § 24.
4 and vacancies in the board may be filled at a special meeting. Jf3! 5976'§§4|
P.' S." 118, § 2i.
1 Section 22. A majority of the directors shall always be neces — quorum of.
2 sary to constitute a quorum for doing business. r2s'.36,§§ 21.
G. S. 57, § 46. P. S. 118, § 22.
1 Section 23. The directors of every bank shall cause a book to —to record
2 be kept, in which shall be entered all notes and bills offered them offereofior
3 for discount, specifying such as are discounted ; they shall also w$?m,'§9!'
4 keep a record of the names and proceedings of all the directors i^f; If^f f; 8"
5 present at any meeting for discounts or other official business ; and p' §' j^ §<4™
6 a bank the directors of which fail to comply with the provisions of
7 this section shall for each such neglect forfeit five hundred dollars.
^»*
1 Section 24. They may call special meetings of the stockholders special
2 as often as the interest of the bank requires, g. s. 57, §48. p. s.ns, §24. ^ff.^fl's.
R. S. 36, § 25.
1 Section 25. They shall choose one of their own number to act f^l8^611/?
2 as president, and may allow him such compensation as they think g- 1- 1<>> 1 20.
3 reasonable. 6 Alien, 207. p.' s.' ii8,"§ 25.
1 Section 26. They shall appoint a cashier, and may appoint ^ghi^r'§egc-
2 clerks and other officers for conducting the business of the bank; 5-§'-§S*f 1£-
3 all of whom may be removed by the directors. p.' s.' 118, § 26.
cashier.
1 Section 27. The cashier before entering on the duties of his cashier to give
2 office shall give a bond in the sum of not less than twenty thousand i828, 96, § 10.
3 dollars, with two or more sureties to the satisfaction of the directors, i83s,'i96,§3.'
4 conditioned for the faithful performance of his duties. p.' I.' ii8,§§527.
3 Pick. 335. 2 Met. 522. 5 Allen, 413. 12 Allen, 243.
4 Pick. 314. 16 Gray, 473. 8 Allen, 371.
1 Section 28. He shall, upon application in writing of the pro — to can
2 prietors of one-fifth of the capital stock, call special meetings of fP^ai meet.
3 the stockholders. r. s. 36, § 28. g. s. 57, § 52. p. s. ns, § 28. Jf£jj; f|; § 10
1 Section 29. He shall not be a director of the bank of which "^cto^ete.
2 he is cashier, nor shall he or an officer under him hire money of JgSjaJrffla
3 such bank. A bank violating the provisions of this section shall unjoin!
4 for each offence forfeit five hundred dollars. p. s. ns, §29.
COURSE OF BUSINESS.
1 Section 30. A bank shall carry on, at its banking house only, Business.
2 the usual business of banking, and no loan or discount shall be Hi; m', |§ 2, 4,
3 made, nor shall a bill or note be issued by such bank or by any I.1!-. 8e, §§ 8,
4 person on its account, in any other place than at its banking house ; *•**• 267| s 5
5 and such banking house shall be in the city or town in which the j^j^jjj*"*
1094
BANKS AND BANKING.
[Chap. 115.
P. S. 118, § 30.
10 Mass. 284.
bank is established. It may receive deposits, and may loan and 6
negotiate its moneys and effects by discounting on banking princi- 7
pies upon such, security as the stockholders consider expedient ; and 8
dividends of the profits may be made by the directors every six 9
months. If after receiving circulating notes as hereinafter provided 10
it neglects or omits to carry on such business, such neglect or 11
omission shall work a forfeiture of its privilege, and it may be pro- 12
ceeded against as provided in section one hundred and eleven. 13
Section 31.
Limit of loans
on its own
i828,k96, § 3. loans made on a pledge of its own stock, more than one-half of its
r. s. 36, § 6. capital actually paid in . g. s. 57, § 23. p. s. lis, § 31.
Banks not to
hold their own
No bank shall have owing to it at one time, on 1
2
3
Section 32. A bank purchasing or holding its own stock except 1
stock, except, as security for debts, or neglecting to sell all stock so received as 2
security within six months after it has become the property of the 3
bank, shall for each offence forfeit five hundred dollars. 4
1838, 196, § 7.
1851, 339, § 1
Limit of debts.
1828, 96, § 5.
1834, 203, § 2.
R. S. 36, § 9.
G. S. 57, § 25.
P. S. 118, § 33.
Preceding
section, how
construed.
1834, 203, § 2.
R. S. 36, § 10.
1854, 7.
G. S. 57, § 26.
1861, 213.
P. S. 118, § 34.
G. S. 57, § 24.
P. S. 118, § 32.
Section 33. The debts of a bank shall not at any time exceed
twice the amount of its capital stock actually paid in, exclusive of
sums due on account of deposits not bearing interest ; nor shall there
at any time be due to a bank more than double the amount of its
capital stock actually paid in.
Section 34. Debts due from one bank to another, including
bills of the bank so indebted and loans directly made by a bank to
the commonwealth or to the United States, and notes or scrip of
the commonwealth or United States held by a bank and directly
purchased by it from the commonwealth or the United States, shall
not be debts due within the meaning of the preceding section.
1
2
3
4
5
1
2
3
4
5
6
Liability of
directors, etc.
1828, 96, § 5.
R. S. 36, § 11.
G. S. 57, § 27.
P. S. 118, § 35.
Absent, etc.,
directors, how
exonerated.
1828, 96, § 5.
R. S. 36, § 12.
1838, 196, § 5.
G. S. 57, § 28.
Section 35. If a bank becomes indebted beyond the amount 1
allowed by the provisions of the two preceding sections, the directors 2
under whose administration it happens shall be personally liable for 3
the excess ; and an action of contract may in such case be brought 4
against them or any of them, their or any of their heirs, executors 5
or administrators, by any creditor of the bank, or such creditor may 6
have a remedy in equity. 7
Section 36. Directors dissenting or absent when such excess 1
of debts is authorized or contracted may exonerate themselves from 2
liability by forthwith giving notice of the fact and of their absence 3
or dissent to the board of commissioners of savings banks. 4
1866, 192, § 8. P. S. US, § 36.
Section 37. The provisions of the two preceding sections shall 1
Corporations
to remain
im%, §5. no^ exempt a bank, or its lands, goods or chattels from liability for 2
R. S.36, §13. SUCh excess. G. S.57, §29. P. S. 118, §37. 3
Banks shall
not trade, etc.
1828, 96, § 6.
R. S. 36, § 14.
G. S. 57, § 30.
P. S. 118, § 38.
7 Mass. 433.
Section 38. No bank shall use any of its moneys, goods, 1
chattels or effects in trade or commerce ; but a bank may sell 2
property held by it in pledge ; and if the proceeds of such sale are 3
more than sufficient to repay the sum loaned on such pledge, with 4
interest and expenses, the surplus shall upon request be paid over 5
Chap. 115.] banks and banking. 1095
6 by the bank to the person who conveyed the property in pledge or
7 to his assigns.
1 Section 39. A bank may hold real estate requisite for the con- Banks may
2 venient transaction of its business ; but such estate shall not, unless reaf estate?
3 by virtue of special authority for that purpose, exceed twelve per pf | f6' \%
4 cent of the amount of its capital stock, exclusive of what the bank S-f'Sj'5.81-
5 may hold on mortgage, receive on execution or take as security for
6 or in payment of debts.
1 Section 40. No bank shall make or issue a note, bill, check, —not to issue
2 draft, acceptance, certificate or contract for the payment of money etc. interest
3 at a future day certain or with interest, except for money borrowed lSs.^fl!*
4 of the commonwealth or of a domestic institution for savings or aft. 3<f,'§§57.
5 money deposited by an assignee as provided in section sixty-two of J^f fj § 63
6 chapter one hundred and sixty-three ; and except also that debts ^2|i k\li4^
7 due to one bank from another, including; bills of the bank indebted, w Gray, 537.
4: A 1 Ip.ti 1
8 may draw interest ; and banks may contract with cities and towns
9 in this commonwealth for the payment or receipt of interest upon
10 an account current of money deposited with and drawn from them
11 by said cities and towns.
1 Section 41. A bank which receives in payment or upon deposit — shall stamp,
2 or for redemption from another bank or from an individual a counter- feitW worth.
3 feit or uncurrent or worthless bank bill, or a bank bill which has i853,378,'§§i,'2.
4 been altered from its original denomination, or paper not a bank bill dfk ot1,'! ei.'4,
5 but made in the similitude thereof, or paper purporting to be the p' s" 118' § 41-
6 bill of a bank which never existed, shall write or stamp upon such
7 counterfeit bills the word " Counterfeit", upon such altered bills
8 the word ' 'Altered ", and upon such other bills and papers the word
9 " Worthless" ; adding thereto the name of the bank and the initials
10 of the officer by whom the writing or stamp is made.
1 Section 42. A bank neglecting or refusing to write upon or penalty for
2 stamp any bill or bills, as prescribed in the preceding section, shall j™* Bta™Pms»
3 forfeit the full amount of the bill or bills allowed to pass without g5|.3577%§632.
4 being so written upon or stamped. And if a bank or bank officer, p- s. 118, § 42.
5 by mistake or inadvertence and not fraudulently, so writes upon or
6 stamps a bank bill which is not a counterfeit, altered, or worthless
7 bill, such bank shall on demand pay to the holder its value.
1 Section 43 . A bank holding itself out to receive the bills of any Kedeeming
2 bank in New England, current by law or usage in this common- Swnfo'f
3 wealth, for the purpose of redemption and return, either directly p^undf at
4 or indirectly, to the bank of issue, shall receive at par all such bills ^oalsi e§§ i, 2
5 offered in the usual course of business, until notice is given at its p. s. us, § 43.
6 counter of refusal of such bills ; and a bank giving such notice of
7 refusal shall publish the same in the next daily issue of a newspaper
8 published in Boston.
1 Section 44. No bank shall require anything from any person -f^0™^
2 offering such bills which it does not require from all persons ; but liability.
3 the provisions of this chapter shall not affect a contract voluntarily p. s. us, § 44.
4 entered into relative to the redemption of such bills.
1096
BANKS AND BANKING.
[Chap. 115.
Swai^'§4 Section 45. Whoever violates a provision of the two preceding 1
p. s'. us, § 45. sections shall for each offence forfeit one thousand dollars, to be 2
recovered by an action, one-half to the use of the prosecutor and 3
one-half to the use of the commonwealth. 4
What bills
bank to pay
out.
1843, 93, § 11.
1851, 267, § 12.
G. S. 57, §§ 55,
124.
Bills, etc.,
redemption.
Penalty.
1816, 91, § 2.
1828, 96, § 25.
E. S. 36, $ 61.
G. S. 57, § 70.
1865, 147, § 1.
P. S. 118, § 47.
4 Pick. 314.
Section 46. No bank shall pay from its counter bills, except
its own, those of other banks of this commonwealth, of a banking
association organized under the laws of the United States and
located in New England, and demand notes of the United States.
1862, 4.
1864, 190, § 5.
P. S. 118, § 46.
Preceding
section limited.
1816, 91, § 2.
1828, 96, § 25.
R. S. 36, § 62.
G. S. 57, § 71.
P. S. 118, § 48.
16 Gray, 534.
Section 47. A bank which issues a bill, note, check or draft
redeemable in any other manner than by pajonent in specie or law-
ful money of the United States on demand, or payable at a place
other than the place where such bank is by law established and
kept, shall pay the same in specie or lawful money of the United
States to the holder thereof on demand at said bank, without a
previous demand at the place where the same is on the face of such
bill, note, check or draft made payable ; and the bank which issued
the same neglecting or refusing so to pay on demand, shall pay to
the holder thereof two per cent a month damages as long as such
neglect or refusal continues.
Section 48. The provisions of the preceding section shall not
apply to a check or draft drawn by the president or cashier of a
bank within this commonwealth, on another bank either within or
without this commonwealth, for a sum exceeding one hundred
dollars ; but all such checks or drafts shall first be presented for
payment at the bank on which they are drawn, and in default of
payment the holder may recover against the bank which issued the
same the amount of such check or draft, with additional damages of
two per cent a month on the amount thereof from the time of such
default.
1
2
3
4
1
2
3
4
5
6
7
8
9
10
11
1
2
3
4
5
6
7
8
9
10
Banks may
draw for
balances.
Section 49. The provisions of this chapter shall not prevent a 1
bank from drawing a check or draft for a balance due to it. 2
1828, 96, § 25.
R. S. 36, § i
G. S. 57, § 72.
P. S. 118, § 49.
Amount of
reserve.
1856, 95.
1858, 69, § 1.
1859, 218, § 1.
G. S. 57, § 19.
1865, 147, § 1.
P. S. 118, § 50.
4 Allen, 1.
RESERVE.
Section 50. A bank shall keep in the bank as a reserve an 1
amount of specie or lawful money of the United States equal to 2
fifteen per cent of its liability for circulation and deposits ; and 3
when by the returns required by sections ninety-nine and one hun- 4
dred it appears that the weekly or monthly average of reserve 5
required thereby to be returned by a bank is less than that amount, 6
such bank shall make no new loans until its reserve is restored to 7
such amount. Lawful money of the United States or specie spe- 8
dally deposited by a bank in Boston in the bank of deposit of the 9
Boston Clearing House, and balances payable on demand due from 10
other banks to banks out of Boston or in South Boston and in the 11
parts of Boston formerly Brighton, Charlestown, Dorchester, Rox- 12
bury and West Roxbury, which may be applied to the redemption 13
of their bills, shall be a part of the reserve in the bank for the 14
purposes of this section. 15
Chap. 115.] banks and banking. 1097
loans and discounts.
1 Section 51. No bank shall directly or indirectly make a loan Loans, etc.,
2 or discount unless the amount of the loan or the proceeds of the Semand^ete.
3 discount are payable by the bank on demand in specie or in bills r2|. f6' |1|'
4 which it is authorized to pay out. A loan or discount made con- p^f'f^Yfi
5 trary to the provisions of this section shall be void ; and the bank ]0^sh- &&■
6 for each such offence shall forfeit five hundred dollars. 6 Gray, 458.
16 Gray, 534. 8 Allen, 201. 11 Gray, 256.
1 Section 52. A bank which loans or issues any of its notes or certain wiis
2 bills with an agreement or understanding that they shall not be put fromSa'
3 into immediate unrestricted circulation, or that they shall not be 183?; 224.
4 returned to the bank within a limited time, shall forfeit not more p"|"n§§§652
5 than one-half nor less than one-fourth of the amount so loaned or ? Me*. 587.
„ . , 4 Allen, 1.
0 issued.
1 Section 53. Unless by a special vote passed at a meeting called to™fficersloans
2 by written notification to the stockholders, giving notice of the i||8> i|>. §6.
3 proposed vote, no officer of a bank shall be in any way liable to it g. s. 57,'§ 54.
4 upon notes, checks, drafts or other security to an amount greater
5 than eight per cent of its capital actually paid in, nor exceeding
6 forty thousand dollars ; nor shall its whole board of directors be so
7 liable to an amount exceeding thirty per cent of its capital stock ;
8 and such vote shall have no validity after one year and thirty days
9 from its passage, nor unless it states the amount so authorized. A
10 bank violating a provision of this section shall for each offence
11 forfeit five hundred dollars.
1 Section 54. No bank shall make a loan or discount to a manu- Loans to
2 facturing corporation whose cashier, treasurer, or financial officer is ^rations*
3 also cashier of said bank. p. s. ns, § 54. 1860, m< § 2- ,
LOANS TO THE COMMONWEALTH.
1 Section 55. Upon requisition of the general court each bank ^ea]th.mmon"
2 shall loan to the commonwealth not more than five per cent of its ]|2| |66> § ij.
3 capital stock at anyone time, reimbursable by five annual instal- g! s. 57J § 8|!
4 ments or at a shorter period at the election of the commonwealth, p. s'. us', § 55.
5 with annual interest at a rate not exceeding six per cent ; but the
6 commonwealth shall not be entitled to demand of a bank loans
7 which together at any one time exceed one-tenth of its capital.
1 Section 56. "When the treasurer and receiver general is author- Notice to
2 ized by an act or resolve of the general court to borrow money of iJS, 133, § 1.
3 a bank, he shall give notice in writing to the president or cashier bJI.h^m.
4 thereof of the amount to be furnished by such bank, and shall f;|;f^§§^#
5 require a loan of the same in accordance with the provisions of this
6 chapter ; and thereupon the bank shall place to the credit of the
7 commonwealth the amount of the loan required.
1 Section 57. The treasurer and receiver general in making de- Apportion.
2 mand upon the banks for such loan shall equalize as far as con- required.09
1098
BANKS AND BANKING.
[Chap. 115.
1815,
133
,§4.
1828,
96,
§16.
R. S.
,36,
§37.
G. S.
.57,
§85.
P. S.
118
; § 57,
Forfeiture if
banks refuse
to loan.
1815,
133
,§2.
1828,
96,
§16;
97, § 6.
R. S.
36,
§38.
G. S.
57,
§86.
P. S.
118
,§58.
veniently practicable the amount of such demand among the several 3
banks, having reference to the amount of the obligation of each to 4
lend to the commonwealth, and to the amount previously borrowed 5
by it of each bank. 6
Section 58. A bank neglecting or refusing for thirty days after 1
notice from the treasurer and receiver general to make such loan 2
and to place the amount thereof to the credit of the commonwealth, 3
shall forfeit a sum equal to two per cent a month upon the amount, 4
as long as such refusal or neglect continues : provided, that the 5
notice demanding such loan is approved by the governor in writing, 6
and accompanied by an attested copy of such act or resolve. 7
Suit for
refusal.
1815, 133, § 3.
1828, 96, § 16.
R. S. 36, § 39.
G. S. 57, § 87.
P. S. 118, § 59.
Section 59. The treasurer and receiver general, at the expira- 1
tion of thirty days after such demand and after such neglect or 2
refusal, shall institute an action, in the name of and for the use of 3
the commonwealth, against the bank so neglecting or refusing, for 4
the recovery of said penalty ; and from month to month shall in- 5
stitute similar suits as long as such neglect or refusal continues ; 6
and upon obtaining judgment and execution he shall cause the 7
amount thereof to be forthwith levied and the judgment satisfied. 8
CIRCULATING NOTES.
te?n engraved Section 60. The auditor shall cause to be specially engraved
banknotes, an(j printed for each bank, in the best manner to guard against
is5i,267, §6. counterfeiting, circulating notes in the similitude of bank notes,
1859 221 6 6 o" o "
g. s. 57,'§ ii5. in blank, of such denominations as are allowed by law, and in
1861172! 209'§6* such quantities as he may from time to time consider necessary.
p. s. us, § 60. before such notes are delivered to a bank they shall be numbered
and registered in proper books kept for the purpose in the office of
the auditor, and countersigned by him, or under his direction by
some person or persons, not exceeding three in number, by him
appointed with the approval of the governor and subject to removal,
of which appointment such public notice shall be given as the gov-
ernor requires.
1
2
3
4
5
6
7
8
9
10
11
12
rTotes'totont Section 61. When a bank transfers to the auditor, to an amount
w28n96eT'4 n0* ^ess ^an ^y thousand dollars and not exceeding twenty-five
r. s'. 36, § 8. per cent above its capital stock, any public stock producing five per
1851 267 §7 . . oi
i852| 236! § 2! cent or more a year, issued by this commonwealth or by a county,
g.°s.6597,§§§56, city, or town therein, or by any of the other New England states,
i860, 170. or b}r the United States, or any public stock issued by the State of
P. S'. 118, §61,
New York and equal in value to stock issued by this commonwealth
producing six per cent a year, such transfer being at a rate not
above the par value of the stock transferred nor above its current
market value, such bank shall be entitled to receive from the auditor
an equal amount of circulating notes so countersigned and regis- 11
tered, and stamped on their face, " secured by- the pledge of public 12
stocks." 13
1
2
3
4
5
6
7
8
9
10
— to destroy
notes returned.
Section 62. A bank may at any time return any portion of its 1
g. s.57, §116. circulating notes to the auditor, who shall forthwith on receipt 2
Chap. 115.] banks and banking. 1099
3 thereof cause them to be destroyed in his presence and in the pres- i860, 2.
4 ence of the cashier and of one of the directors of the bank; and p6s.iil,§62.
5 a certificate thereof shall be entered upon the books of the auditor,
6 and signed by him and said cashier and director.
1 Section 63. The circulating notes held by a bank shall at all f^endfrof
2 times be secured in full by public stocks as provided in section 8tock-
3 sixty-one, and shall never be less in amount than fifty thousand g. s. 57,' § iw.
P C 1 111 S £Q
4 dollars; subject to which provisions, the auditor may, upon appli-
5 cation of a bank, surrender and transfer to it its deposited stock
6 or any part thereof, in exchange for other stocks of the kind speci-
7 fied in said section, or for an equal amount of circulating notes
8 originally delivered to said bank, to be by the auditor immediately
9 cancelled.
1 Section 64. Securities held by the auditor under the provisions securities to
2 of this chapter shall as soon as received, and in presence of the anlmdorsed,
3 president or cashier of the bank, be stamped or branded with the Ghsn57, § 119.
4 following words : — p- s- 118> § u-
Commonwealth of Massachusetts.
Deposited in the auditor's office by [the name of the bank depositing the
security] as security for its circulating notes. Not to be withdrawn without
the consent of the auditor indorsed hereon, and countersigned by the treasurer
and receiver general.
5 And such securities, when withdrawn in accordance with the pro-
6 visions of this chapter, shall be indorsed with the words " With-
7 drawn by consent of the auditor"; which consent shall be signed
8 by the auditor and countersigned by the treasurer and receiver
9 general.
1 Section 65. The auditor shall not countersign circulating notes penalty for
2 for a bank to an amount in the aggregate exceeding the public fng excesf of
3 stocks deposited with him by such bank. For wilfully violating Jgg-f8^ § 14.
4 the provisions of this section he shall be punished by a fine of not £■ |. g/§ 122.
5 less than five thousand dollars or by imprisonment for not less
6 than five years, or by both such fine and imprisonment.
1 Section 6Q. The auditor shall make and deliver to every bank ^3-^^
2 powers of attorney to receive the interest and dividends at any etc., on public
„. , , J , -, . tt -,11-jiii i stock pledged.
3 tune due on the public stock deposited by it ; but he may revoke win. 267, § 9.
4 such powers of attorney when in his judgment the public safety p.' s.' iw, § 66.'
5 requires it ; and money received by him as interest or dividends
6 shall be held in trust for and on account of the bank.
1 Section 67. The board of commissioners of savings banks shall j**1^^
2 from time to time when it considers it necessary, and as often as ere to examine
3 once in each year, examine the certificates of stocks held by the ihsi, •]<;:,§ 17.
4 auditor and the amount of circulating notes issued to a bank on lse&'uifs. '
5 account thereof, and, if in its opinion such stocks have so depre- p-s-118-§67-
6 ciated in value as to make them unsafe for the security deposited,
1100 BANKS AND BANKING. [CHAP. 115.
shall require the bank to exchange them, or give additional security 7
to the satisfaction of said board. 8
Rates, dies, Section 68. The plates, dies and materials to be procured by 1
i8i7'i88§§§'i 2. *^e auditor for making such notes shall remain in his custody and 2
i85i; 267' § 13'. under his direction . g. s. 57, § 123. p. s. ns, § 68. 3
fornnumbpmng Section 69. Banks shall pay for numbering, registering, and 1
i8°62eS95etc- countersigning circulating notes, one cent for each sheet of four 2
p. s. us, § 69. impressions ; and for making out transfers of stock from the auditor 3
to the bank, twenty cents for each folio. All further expenses in- 4
curred in the auditor's department for business required by law to 5
be performed therein appertaining to said banks shall be paid by 6
assessments, pro rata, upon the capital stock of all banks. Pay- 7
ments required by the provisions of this section shall be made on 8
the first day of April and of October in each year ; and the amounts 9
and items due on said days from the several banks shall be certified 10
to the treasurer and receiver general by the auditor. 11
W28C,U9M025. Section 70. The bank, after having executed such circulating 1
fm "2367 §§5io n°tes in the name of the president, directors, and company of the 2
G- s- 5".'§§ 57i bank, and caused them to be signed by its president and cashier, 3
p. a. ns, § 70. so as to make them notes paj^able on demand at its banking house, 4
may loan and circulate them as money, subject to the laws and 5
usages of this commonwealth in regard to banking, and shall issue 6
no other circulating notes. 7
wheneepdayment Section 71. If a bank after receiving such circulating notes 1
refused9 i8 refuses or delays payment in gold and silver or lawful money of the 2
1809. 38, § i. United States of any such note issued by it and presented for pay- 3
r."s'. 36, § 29. ment in its usual hours of business, it shall pav to the holder of such 4
i85i| 267J § ii. note, as damages, at the rate of twenty-four per cent a year for the 5
g.^s. 57, §§ 59, tjme durmg which such payment is delayed or refused, and the 6
i863| I- holder making such demand may cause the same'to be protested. 7
1865' i' ^ne auditor, on receiving and filing in his office such protest, shall 8
1866,' 39. forthwith give notice in writing to the bank which issued such note ; 9
1867 1. " ® .
p. s. 1*18, § 71. and if it neglects or refuses to redeem it in gold or silver or lawful 10
5 Pick.' 105.' money of the United States for ten days after such notice, he shall 11
89A^ien'll' immediately, unless he is satisfied that there is a good and legal 12
defence against the payment thereof, give notice by publication in 13
two or more newspapers that all the circulating notes issued by such 14
bank will be redeemed out of the trust funds in his hands for such 15
purpose. He shall thereupon apply such trust funds to the payment, 16
pro rata, of all the circulating notes issued by such bank, whether 17
protested or not, and adopt such measures for the payment thereof 18
as will in his opinion most effectually prevent loss to the holders. 19
?etarn™dtobthe Section 72. When a bank redeems and returns to the auditor 1
ba^ at least ninety per cent of the circulating notes which it has received, 2
g. s. 57,'§ 129. and deposits in his name in such bank as he approves an amount of 3
1869', 149! ' money equal to its unredeemed circulating notes, be may give up 4
• • ns, § 72. a^ ^e securjties theretofore deposited by it. 5
Chap. 115.] banks and banking. 1101
1 Section 73. A bank which has complied with the provisions of Bank may be
2 the preceding section may give notice for six years in any news- whenaige '
3 paper authorized to publish the laws of this commonwealth, and also g. s. 57, §130.
4 in at least one newspaper published in the county where the bank is p.6s. nt, § 73.
5 located, that all circulating notes issued by it must be presented at
6 the auditor's office within six years from the first publication of such
7 notice, and that at the termination of said six years the notes will
8 not be redeemed. On proof that such notice has been given, the
9 auditor shall pay over to the bank any money in his hands ; and the
10 bank shall not be longer held for the redemption of its bills.
1 Section 74. No bank shall have in circulation at one time notes Denomination
2 under five dollars to an amount exceeding one-quarter part of its 1799, 32?'§ 3.
3 capital actually paid in ; and no bank shall issue, loan or receive 1805; u, § 1.
4 bank bills of any fractional denomination, whether greater or less Hit; III §§ 3' 4*
5 than one dollar ; and a bank which so issues, loans or receives frac- J|^> ™« |y> 3-
6 tional bills shall for each offence forfeit one hundred dollars. JLf'li:556-
G. S. 57, § 60. P. S. 118, § 74.
1 Section 75. Circulating notes signed by the president or cashier Redemption of
2 of a bank, which are in circulation through the agency or neglect notes. ' etc-'
3 of any of its officers, shall be redeemed by the bank. A bank e2s'.936,§§°44,
4 shall be liable to pay to a bona fide holder the original amount of g.' 13.57 §§57
5 a circulating note of such bank which is altered to a larger amount pg
f> in the course of its circulation.
1 Section 76. A bank may, in like manner as in case of goods Banks may
2 unlawfully detained, cause to be replevied any of its circulating flSng notes5!1"
3 notes issued as currency, detained by the holder after it has paid (ffs'.OT^Hs.
4 or tendered to him the amount due thereon with interest and costs p- s- 118, § 76-
5 accrued ; if they are so secreted or withheld that they cannot be
6 replevied, remedy may be had in equity, as in case of goods so
7 secreted or withheld.
1 Section 77. If upon the hearing it appears that the full amount ^g^l^l?
2 of principal, interest and costs has been paid or tendered to the ip9, 1^6, §|
3 defendant, the plaintiff's damages for the detention shall be assessed p.' s.' 118, § 77.
4 by the jury or by the court upon a hearing in equity, and the
5 plaintiff shall recover the same with his costs of suit, and the
6 defendant shall have judgment for any sum tendered and not re-
7 ceived. But if it appears that said notes were withheld for an
8 amount due to the defendant beyond the amount paid or tendered,
9 he shall have judgment for the sum due at that time, and unpaid,
10 with interest and costs.
1 Section 78. The property and effects of a bank shall be first Jr°etfeesrtr^e
2 applied to the redemption of its notes in circulation. 1 Gray, 382. pf'Ss8^
1 Section 79. When a bank is placed in the charge of one or Auditor to
2 more receivers or trustees by the supreme judicial court, the auditor Btoeks?retc., to
3 shall transfer and pay over to them all stocks or moneys held by ggfwftn.
4 him as the property of such bank, to be by them applied to the g;f;fkyj£
5 redemption of its circulating notes.
1102
BANKS AND BANKING.
[Chap. 115.
Liability of
stockholders
for redemption
of bills.
1828, 96, § 13.
R. S. 36, § 31.
1849, 32.
G. S. 57, §§ 79,
80.
1865, 105, § 4.
P. S. 118, § 80.
23 Pick. 334.
9 Met. 195.
10 Met. 525, 569.
1 Gray, 386.
3 Allen, 43.
Ill Mass. 201.
LIABILITY OF STOCKHOLDERS.
Section 80. Stockholders in a bank at the time when it stops 1
payment, or when its corporate franchises are surrendered or for- 2
feited, shall be personally liable for the payment and redemption 3
of all circulating notes issued by such bank and remaining unpaid, 4
in proportion to the stock they respectively held at the time afore- 5
said ; and stockholders, who, having reason to believe that a bank 6
is about to stop payment, transfer their shares or any part thereof 7
with intent to avoid such liability, or who having reasonable cause 8
to believe such bank insolvent transfer any of their shares within 9
six months before such surrender or forfeiture of its franchises, 10
with intent to avoid such liability, shall be subject to the same, on 11
the shares so transferred. 12
Assessment by
receivers on
stockholders.
1860, 167, § 1.
P. S. 118, § 81.
3 Allen, 42.
Section 81. When receivers appointed to close the affairs of a 1
bank are of opinion, at the expiration of thirty days after their 2
appointment, that the funds in their hands at the expiration of 3
thirty days thereafter will be insufficient for the redemption of the 4
circulating notes of said bank, they shall assess ratably upon all 5
the stockholders liable therefor an amount sufficient to make up 6
such probable deficiency ; such assessment to be approved by the 7
supreme judicial court, after due notice by publication or otherwise. 8
— proceedings
thereupon.
1860, 167, § 2.
P. S. 118, § 82.
Section 82. The amount thus assessed shall be payable at such 1
time and place as the court may direct ; and a stockholder refusing 2
or neglecting so to pay the same shall be liable in an action of tort, 3
to be brought by said receivers, for the amount so assessed with 4
interest at the rate of twelve per cent per annum while such neglect 5
or default continues ; and no such assessment shall be invalidated 6
as to a person who is liable for the redemption of such notes by 7
reason of an omission or misstatement as to any other person. 8
Further
assessments.
1860, 167, § 3.
P. S. 118, § 83.
Section 83. If such assessment proves to be insufficient or in- 1
complete, the court may, from time to time, order further assess- 2
ments necessary to correct the same or to supply the deficiency. 3
Corporations
liable as other
stockholders.
1860, 167, § 4.
P. S. 118, § 84.
Section 84. Corporations holding stock in a bank shall be liable 1
as other stockholders to the provisions of this and the three pre- 2
ceding sections ; and the provisions of said sections shall not impair 3
the liability of any person who may transfer stock with intent to 4
avoid liability, or impair any other remedies of the holders of cir- 5
culating notes, or the right of a stockholder compelled to pay a 6
debt or demand against a bank to compel contribution against other 7
persons liable therefor. 8
deficiency, etc. Section 85. Ka loss or deficiency of the capital stock in a bank
nabiehold^rs ' arises from the official mismanagement of the directors, the stock-
ists, 96, § 12. holders at the time of such mismanagement shall be personally liable
T? ^ 3fi 8 3ft "
g. s.' 57,' § 78.' to pay the same ; but no stockholder shall be liable to pay a sum
23 pick.8ii285' exceeding the amount of the stock actually held by him at that time.
9 Met. 182.
maykTO0mpeeri8 Section 86. A stockholder of a bank who is obliged to pay a
contribution. defot or demand against said bank out of his individual property
1
2
3
4
5
1
2
Chap. 115.] banks and banking. 1103
3 may have a suit in equity to recover the proportional parts of sums is28, 96, § u.
4 so paid, from the other stockholders liable for the same, and such §! 1'. li] § !'.
5 damages and costs as the court may decree. p36!'. ii8,§86.
1 Section 87. A corporation which is a stockholder in a bank similar liabiii-
. . -1 . ties ol corpora-
2 shall be liable in its corporate capacity to pay any loss or deficiency ti°n8-
3 of the capital stock in such bank arising from the official misman- R. s. 36, § 33.
4 agement of its directors, and for the payment and redemption of g. s'. 57, §82.
5 all circulating notes issued by said bank and remaining unpaid when P" s' 118' § 87'
6 its corporate franchises are surrendered or forfeited, or when it has
7 stopped payment, in the same manner as individual stockholders
8 are liable in their individual capacities ; and such corporation may
9 compel contribution from other stockholders in the manner pre-
10 scribed in the preceding section.
WEIGHTS.
1 Section 88. The directors of each bank, once in five years, weights of
2 shall have the weights used in it compared, proved and sealed by proved every
3 the treasurer and receiver general, which shall supersede so far as ?sT)3,yi4v§ 2.
4 respects such bank the sealing of its weights by the city or town ^2| 9366> |2427-
5 sealer- &£&•«%.
1 Section 89. No tender by a bank of gold, weighed with weights no tender of
2 other than those compared, proved and sealed as required in the uniessfeW.
3 preceding section, shall be legal; and the payer or receiver may 1I2I; slf §§22!
4 also require that the gold shall be weighed in each scale, and the g! 1'. 57', f 92.
5 mean weight resulting therefrom shall be considered the true weight. p- s- 118- § S9-
TAKING LAND.
1 Section 90. The lands of a bank may be taken on execution saieofreai
2 and sold at public auction to the highest bidder ; and the officer elocution.
3 levying such execution, having first given notice of the time and i8^; 9M§24!
4 place of sale at least fourteen days previous thereto in two or more g; |; f^ | f3\
5 public places in the city or town where such lands lie, and also in p.s. ns, §90.
6 a newspaper, if any, published in the county ; otherwise, in a news-
7 paper published in Boston, shall convey such lands to the purchaser,
8 and such conveyance shall transfer to the purchaser all the estate
9 and interest of the bank therein.
1 Section 91. The officer who levies such execution may adjourn -adjourn.
2 the sale from time to time, not exceeding seven days at one time, 1811, 105, § 2.
3 until the sale is completed. g.s.57,§74. p. s. us, §91. R82t.?6,§§fi*.
1 Section 92. All the right, title, claim, and interest of a bank ^S0°*
2 in lands mortgaged for security of a debt due or assigned to such ^ 24> §§ ^ 2>
3 bank, may be seized on execution and sold at public auction in the i8^96;§|£
4 manner prescribed in the two preceding sections ; and a debt secured g. s'. s£ §«•
5 by such mortgage, and due to the bank at the time of such sale,
6 shall pass by the deed of conveyance executed by the officer. The
7 purchaser or his legal representatives may in his or their name
8 maintain any action proper to recover such debt or obtain possession
9 of such lands which might have been maintained in the name of the
1104
BANKS AND BANKING.
[Chap. 115.
bank had no such sale been made, and a copy of such mortgage 10
deed, certified by the register of deeds for the county or district 11
where such lands are situate, shall be admissible evidence of the 12
same. 13
Cashier, etc., to
furnish copies
of notes, etc.,
to officer, etc.
1813, 24, § 2.
1828, 96, § 24.
R. S. 36, § 53.
G. S. 57, § 76.
P. S. 118, § 93.
No transfer of
such note, etc.
after notice,
etc., to be
valid, except,
etc.
1813, 24, § 3.
1828, 96, § 24.
R. S. 36, § 54.
G. S. 57, § 77.
P. S. 118, § 94.
Section 93. The cashier or clerk of such bank, on reasonable 1
request, shall furnish to the officer serving such execution, or the 2
judgment creditor, a certified copy of the note or obligation and 3
the indorsement thereon secured by such mortgage, with a state- 4
ment of all payments made thereon by the debtor, and, after the 5
sale of such mortgage, shall deliver said note or obligation to the 6
purchaser. 7
Section 94. The officer making such seizure on execution, if 1
' required by the creditor, shall file a notice thereof in the registry 2
of deeds, and give a like notice to the cashier or president, or 3
leave the same at the banking house ; and no sale or transfer of 4
such note, obligation or mortgage, made by the bank after such 5
notice, shall have any validity against the purchaser under such 6
sale, but the same shall be void except as between the bank and 7
the person to whom it makes such sale or transfer, his heirs, exec- 8
utors, administrators or assigns. * 9
Banks may
sell shares
upon which
they liave
lien, etc.
1863, 174, § 1.
P. S. 118, § 95.
SALE OF SHARES.
Section 95. A bank which has a lien on any of its shares, by 1
virtue of a by-law or otherwise, for any indebtedness of a stock- 2
holder after default made in the payment of the sum for which the 3
shares are held or any part thereof, may give to the owner notice 4
of its intention to enforce payment by a sale thereof, which notice 5
shall state the time and place of sale, and shall be served by leaving 6
a copy thereof with the owner, or at his last and usual place of 7
abode, if within the county in which the bank is situated, sixty 8
days before the time fixed for the sale ; and if he has no such place 9
of abode within the county, said copy shall be sent to him by mail 10
at his last known place of residence ; and in all cases a copy of 1 1
such notice shall be published three successive weeks in one of the 12
principal newspapers, if any, published in the city or town where 13
the bank is situated ; otherwise, in a newspaper published in the 14
county ; the last publication to be at least thirty days before the 15
time fixed for said sale. 16
Sale, and
application of
proceeds, etc.
1863, 174, § 2.
P. S. 118, § 96.
Evidence of
notice, how
perpetuated.
1863, 174, § 3.
P. S. 118, § 97.
Section 96. If the debt is not paid before the time of sale, the 1
bank may sell the shares at public auction, pursuant to said notice, 2
and apply the proceeds toward the satisfaction of the debt and the 3
expense of notice and sale ; and any surplus shall be paid on 4
demand to the person entitled thereto. The purchaser shall be 5
entitled to a certificate of the shares bought by him. 6
Section 97. The notice, with an affidavit of the person giving 1
the same, setting forth fully and particularly the giving of said 2
notice and the sale of the shares, shall be recorded within thirty 3
days after the sale in the office of the clerk of the city or town 4
where the bank is situated ; and when so recorded, the original 5
Chap. 115.] banks and banking. 1105
6 notice and affidavit, or an attested copy of the record thereof, shall
7 be admitted as evidence that notice was duly given and the sale
8 duly made, if it appears therein that the provisions of this and the
9 two preceding sections were complied with.
1 Section 98. The provisions of the three preceding sections shares not to
2 shall not authorize a bank to sell and dispose of stock contrary to contraiyto °
3 the terms of the contract under which it is held. p. s.ns, §98. i8ra?ra,'§4.
RETURNS.
1 Section 99. A bank doing business in Boston, except in that weekly re-
2 portion called South Boston, and except in those portions which tain banks*"
3 were formerly Brighton, Charlestown, Dorchester, Roxbury and is^o^" i.
4 West Roxbury, shall on every Monday morning transmit to the §63,'25iV§9l.'
5 secretary of the commonwealth a statement under the oath of its igee'^i' §3"
6 president or cashier of the amount of its capital stock, the average p- s- 118» § "•
7 amounts due to and from other banks, of deposits, circulation, loans,
8 and discounts, specie and lawful money of the United States actually
9 in the bank, including specie and lawful money of the United States
10 specially deposited in the bank of deposit of the Boston Clearing
11 House, which statement shall be based upon the condition of the
12 bank on each day of the week last preceding said Monday.
1 Section 100. A bank in South Boston, and in those portions Monthly re-
2 of Boston formerly Brighton, Charlestown, Dorchester, Roxbury banks0 ot er
3 and West Roxbury, and a bank out of Boston, shall on the first isie!, 95?' § 3"
4 Monday of each month transmit to the secretary of the common- jes8'69'*1'
5 wealth a like statement, except that banks out of Boston shall not *p| |\8,c§^
6 include in their returns specie and lawful money of the United p. s. lis, § 160.
7 States deposited in the bank of deposit of the Boston Clearing
8 House ; and all the banks named in this section shall state the
9 balances payable on demand due from other banks, which may be
10 applied to the redemption of their bills ; which returns shall be
11 based upon the condition of the several banks on each Saturday
12 since their preceding return.
1 Section 101. A bank neglecting to comply with the require- penalty for
2 ments of section ninety-nine shall for each neglect forfeit five hun- ^^ot, § 6.
3 dred dollars ; and a bank neglecting to comply with the requirements g?!.^ 95.
4 of the preceding section shall, unless the secretary of the common- p- s- 118> § 101-
5 wealth or the treasurer and receiver general is duly satisfied that
6 said returns were duly made, properly directed to the secretary and
7 deposited in the post office where said bank is situated, and that
8 there was no neglect on the part of the officers of the bank, for
9 each neglect forfeit twenty-five dollars ; and the secretary shall
10 immediately notify such bank of its neglect, and, if such neglect
11 continues ten days from said first Monday of any month, the bank
12 shall forfeit five hundred dollars.
1 Section 102. The secretary shall cause an abstract of said Aveekly secretary to
,. . -■ . J i> ,1 t» j. i »i publish ab-
2 returns to be published in one or more of the Boston daily papers struct of
3 on the Wednesday after the same are received, and a like abstract i854™07,e§§ '2,
4 of the said monthly returns as soon as may be after the receipt of 4> 5-
1106
BANKS AND BANKING.
[Chap. 115.
G. S. 57, § 96.
P. S. 118, § 102.
Blanks to be
furnished.
1854, 307, § 7.
G. S. 57, § 97.
P. S. 118, § 103.
Cashiers to
make returns
annually.
1802, 132.
1805, 111.
1812, HO, § 1.
1828,96, §27;
97, §4.
R. S. 36, § 65.
1837, 65.
1842, 49.
1851, 267, § 15.
1854, 309.
1856, 95.
1858, 115.
G. S. 57, §§ 98,
126.
1865, 147, § 1.
the sanie ; and he shall have regard to prices at which offers may 5
be made to make the required publication of such abstracts. All 6
bills therefor shall be approved by the governor and council. 7
Section 103. The secretary shall transmit to each bank blank 1
forms for the returns required by sections ninety-nine and one hun- 2
dred, and the banks shall adopt said forms in making the returns. 3
Section 104. The cashier of each bank shall annually make a 1
return of the state of such bank as it existed at seven o'clock in 2
the afternoon of any Saturday the governor may direct ; and he 3
shall transmit the same as soon as may be, not exceeding fifteen 4
days thereafter, to the secretary of the commonwealth. Such re- 5
turn shall specify the amount due from the bank, designating in 6
distinct columns the several particulars included therein, and shall 7
also specify the resources of the bank, designating in distinct col- 8
umns the several particulars included therein, and shall be in sub- 9
stance as follows : p. s. us, § 104. 10
Form of
return.
Slate of
Bank, on the
Saturday of
19 , 7 o'clock, P.M.
DUE FROM THE BANK.
1. Capital stock. 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, includ-
ing all sums due from the bank not bearing 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.
Returns, how
authenticated.
RESOURCES OF THE BANK.
9. Demand notes of the United States, and 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, and specifying separately the
amount of United States notes and of specie. 10. Real estate. 11. Bills of
banks in this and other New England states. 12. Balances due from other
banks. 13. If the bank is in South Boston, or in either of those portions of
Boston formerly Brighton, Charlestown, Dorchester, Roxbury or West Roxbury,
or in any place out of Boston, the 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 from other banks, and specifying and
describing the stocks which it has deposited with the auditor to secure its cir-
culating notes. 15. Total amount of the resources of the bank. Rate, amount,
and date of dividends since last return. Amount of reserved profits at the time
of declaring the last dividend. 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.
Such return shall be signed by the cashier, who shall make oath
before a justice of the peace to the truth of said return according
to his best knowledge and belief; and a majority of the directors
shall certify and make oath that the books of the bank indicate the
state of facts so returned by the cashier, and that they have full
confidence in the truth of said return.
11
12
13
14
15
16
nlgiect for Section 105. A bank neglecting to comply with the provisions 1
ill 97V73' °^ ^ne Prece(^mg section shall forfeit one hundred dollars for each 2
r. s'. 36, § 66. day's neglect, to be recovered by the treasurer and receiver general. 3
G. S. 57, § 99. P. S. 118, § 105.
Chap. 115.] banks and banking. 1107
1 Section 106. The secretary of the commonwealth shall annually secretary to
2 in the month of March or April furnish four printed copies of the ffwt/s™8-
3 form of the return required by section one hundred and four to the g! 1. 57', 1 iob.
4 cashier of every bank. p- s- 118> § 106-
1 Section 107. The secretary of the commonwealth shall, as soon —to prepare
2 as may be after he has received the annual returns from the several th^reuimsf
3 banks, cause to be prepared and printed a true abstract of the same, 1828,96, §29.
4 with each column added up ; and he shall transmit by mail one copy Sbf^,^.
5 to the cashier of each bank in this commonwealth, and shall submit g-7s> 57,§§ 101>
6 the same to the general court at its next session. *"• s- us, § 107.
supervision.
1 Section 108. Any committee, appointed by the general court General court
2 for the purpose, mav examine into the doings of anv bank, and banks, etc.
0*/7T ftoo qf; SIT
3 shall have free access to its books and vaults. If upon such exam- r. s. 36, § 40.
4 ination and after a hearing of said bank thereon it is determined by p.' I' ns.Vios.
5 the general court that said bank has exceeded its powers, or failed
6 to comply with any of the rules, restrictions and conditions pro-
7 vided by law, its corporate franchises may be declared forfeited,
8 and shall thereby be annulled.
1 Section 109. An officer of a bank, or any other person having Penalty for
2 charge of its books and property, refusing or neglecting to exhibit exhibit books,
3 them to such committee, or in any way obstructing the examination lass, 96, §17.
4 thereof by the committee, shall be punished by a fine of not more <*. il I?! 1 103.
5 than ten thousand dollars or by imprisonment for not more than p- 8- 118> § 109-
6 three years.
1 Section 110. One-eighth of the stockholders in number or committee of
2 interest in a bank may, when they consider it necessary, choose a etc.66 lga on'
3 committee of their own number to investigate its affairs. If upon g. s. 57, § 104.
4 examination such committee are of opinion that the bank is insolvent, p6!. nl',f iio.
5 or that its condition is such as to render its further progress hazard-
6 ous to the public or to those having funds in its custody, or that the
7 bank has exceeded its powers, or failed to comply with all the rules,
8 restrictions and conditions provided by law, they shall forthwith
9 report the facts to the supreme judicial court, which shall have juris-
10 diction in equity to enjoin it in whole or in part from further pro- injunctions.
11 ceeding with its business until a hearing, and to make such orders
12 and decrees to suspend, restrain or prohibit the further prosecution
13 of the business of such bank as may be needful. It may appoint
14 agents or receivers to take possession of the property and effects of
15 the bank, subject to such rules and orders as it may from time to
16 time prescribe.
1 Section 111. "When the supreme judicial court is satisfied, from -maybe
~ ,, r . ° . 11 1 1 1 • • 1 x issued when
2 the certificate of the auditor or otherwise, that a bank is insolvent, bankisinsoi-
3 or that its condition is such as to render its further continuance usWsr.'i *>.
4 hazardous to the public or to those having funds in its custody, or feiJ^Vfe.
5 that it has exceeded its powers, or has failed to comply with all the
6 rules, restrictions and conditions provided by law, the same pro-
7 ceedings shall be had in relation thereto as are provided in the
8 preceding section.
1108
BANKS AND BANKING.
[Chap. 115.
Commission-
ers of savings
banks to visit
banks.
1839, 27, § 1.
1843, 93, § 1.
G. S. 57, § 4.
1866, 192, § 8.
1876, 231, § 3.
P. S. 118, § 112.
Section 112. The board of commissioners of savings banks 1
shall, when it deems it necessary, visit any bank organized under 2
the provisions of this chapter, and shall continue such visits after 3
the corporate powers of a bank have been annulled by an act of the 4
general court or by the surrender by its stockholders, so long as 5
it continues a body corporate. 6
coTmiLlon- Section 113. Said board shall have the powers and perform the
i838asi4° bank8' duties relative to such banks that it has relative to savings banks by
r5s'12%s5-8 secti°ns three to six, inclusive, and section forty-nine of chapter
i862,'i3i. " one hundred and thirteen, and said sections shall apply to banks.
1866, 192, § 8. 1876, 231, § 3. P. S. 118, § 113.
1
2
3
4
Commission-
ers to report
violations of
law.
1838, 14, § 6.
1851, 127, §§ 6,
10.
G. S. 57, § 9.
1866, 192, § 8.
1876, 231, § 3.
P. S. 118, § 114.
Section 114. If in the opinion of the board such bank or its 1
directors or cashier has violated a law relative to banks and banking, 2
it shall forthwith report the same to the secretary of the common- 3
wealth. The secretary shall notify the attorney general thereof, 4
who shall forthwith institute in behalf of the commonwealth a 5
prosecution for such violation. 6
Surrender of
franchise.
1838, 108, § 1.
1841, 113.
G. S. 57, § 105.
P. S. 118, § 115.
SURRENDER OF FRANCHISE.
Section 115. The stockholders of a bank, at a meeting called 1
by a written notice from the cashier, stating the time, place and 2
object of the meeting, sent to each stockholder thirty days at least 3
before the time of holding the same, and published in one or more 4
newspapers, if any, published in the city or town, otherwise, in 5
one or more newspapers published in the county where such bank 6
is situated, for three weeks before the time of such meeting, may, 7
by a majority of the votes all the stockholders could cast if present, 8
or, when the board of commissioners of savings banks has so 9
recommended, by a majority of the votes cast at such meeting, 10
surrender and thereby annul the corporate franchises of such bank ; 11
but such annulling shall not exempt the stockholders from any 12
liability imposed by the provisions of this chapter or chapter one 13
hundred and nine. 14
ofhabim1"16 Section 116. A stockholder or creditor of a bank which has 1
1848, 251. surrendered its corporate franchise may, for the purpose of limiting 2
p.' s." us, § ii6. the time beyond which its liabilities shall be barred, apply by 3
petition to the supreme judicial court, which shall have as full 4
power to fix such limitation as if the bank were before it by a 5
creditors' bill in equity, or under chapter one hundred and nine. 6
Disposition of
plates and
dies.
1855, 168, §§ 2, 3.
1860, 209, § 6.
G. S. 57, § 108.
1863, 85.
P. S. 118, § 117.
Section 117. When the corporate franchise of a bank expires 1
or is forfeited, or when a bank closes its business, the auditor shall 2
forthwith deliver up all its plates and dies to the court of record 3
having jurisdiction of the offence of counterfeiting in the county 4
in which the bank has been established, and the court shall cause 5
them to be disposed of in such manner as shall be considered ex- 6
pedient in order to prevent their use for an unlawful purpose. 7
o^tanks61501^8 Section 118. The directors of a bank authorized to settle and 1
closing affairs, close its affairs, and receivers appointed to take possession of the 2
Chap. 116.] trust companies. 1109
3 property and effects of a bank, shall annually, on the second Wednes- im, 32.
4 day of January, make a report to the general court, stating under S'7S* 57' §§ 156,
5 specific heads the liabilities and property of the bank, and rendering p88^ ^f § 118
6 a full account of their receipts, payments and doings in the execu-
7 tion of their trusts. Directors and receivers neglecting to comply
8 with the provisions of this section shall for each day's neglect
9 severally forfeit twenty dollars, to be recovered by the treasurer
10 and receiver general ; but no payment of a forfeiture so incurred
11 or of expenses resulting from such forfeiture shall be allowed as a
12 charge against such bank.
CHAPTER 116.
OF TRUST COMPANIES.
1 Section 1. Domestic trust companies incorporated subsequent corporations
2 to the twenty-eighth day of May in the year eighteen hundred and chapter.
• 1888 4-13 S 1
3 eighty-eight shall be subject to the provisions of this chapter, and i89o| 315; § 2.
4 any such corporation chartered prior to said date which has adopted il!Vass.§3k.
5 or which shall adopt according to law the provisions of this chapter
6 or of any section thereof, or the corresponding provisions of earlier
7 laws, shall be subject to the provisions so adopted ; and all such
8 corporations, whenever incorporated, shall be subject to the provi-
9 sions of sections fourteen, fifteen and eighteen to twenty-two, inclu-
10 sive, section twenty-four, so much of section thirty-seven as applies
11 to corporations exercising the powers conferred by the provisions
12 of section eighteen, and section thirty-eight ; but the provisions of
13 section twenty-four so far as they are inconsistent with the provi-
14 sions of the charter of a trust company incorporated prior to the
15 twenty-eighth day of May in the year eighteen hundred and eighty-
16 eight shall not apply to such corporation in the performance of its
17 duties as trustee.
1 Section 2. A domestic trust company transacting business in chapter, how
2 this commonwealth may adopt as a part of its charter the provisions i89o?3i5,' § 2.
3 of this chapter or of any section thereof by a majority vote of the
4 stock represented at a special meeting called for the purpose and
5 by filing, within ten days from the date of such meeting, with the
6 secretary of the commonwealth and with the board of commissioners
7 of savings banks a certificate sworn to by the clerk of such corpora-
8 tion and stating such adoption.
1 Section 3 . No person or association and no bank or corpora- who may do
2 tion, except trust companies incorporated as such in this common- i8so,n467.'
3 wealth, shall advertise or put forth a sign as a trust company or in
4 any way solicit or receive deposits as such. Whoever violates any
5 provision of this section shall forfeit for each offence one hundred
6 dollars for each day during which such offence continues. But the
7 provisions of this section shall not prohibit an insurance company
8 authorized prior to the first day of October in the year eighteen hun-
9 dred and ninety-nine to do business in this commonwealth nor a
10 company authorized prior to said date to transact a foreign mortgage
1110
TRUST COMPANIES.
[Chap. 116.
business in this commonwealth from using the words " Trust Com- 11
pany" as a part of its corporate name. 12
ftjrorgaidza? Section 4. A domestic trust company shall organize and com- 1
1893' iu «i mence business within two years from the date of its incorporation, 2
otherwise its charter shall become void. 3
Capital stock
ana shares.
1888, 413, § 2.
1897, 304, § 1.
Section 5. The capital stock of such corporation shall be not 1
less than five hundred thousand nor more than one million dollars, 2
except that in a city or town whose population is not more than one 3
hundred thousand the capital stock may be not less than two hun- 4
dred thousand dollars, divided into snares of the par value of one 5
hundred dollars each ; and no business shall be transacted by the &
corporation until the whole amount of its capital stock is subscribed 7
for and actually paid in, and no shares shall be issued until the par 8
value of such shares shall have actually been paid in in cash. 9
List of stock
holders.
1897, 304, § 1.
Section 6. Before entering upon active business, such corpora-
tion shall file with the board of commissioners of savings banks a
list of its stockholders, with the name, residence and post ofiice ad-
dress of each and the number of shares held by each, which list shall
be verified by the two principal officers of the corporation. Unless
it appears upon examination caused to be made by said board, upon
receipt of said list, that the entire capital of such corporation has
been paid in in cash, said board shall not grant a certificate author-
izing such corporation to commence business ; and it shall not com-
mence business until such certificate has been granted.
1
2
3
4
5
7
8
9
10
Officers.
1888, 413, § 3.
1897, 304, § 2.
Section 7. The officers of such corporation shall be sworn to the 1
faithful performance of their duties and shall be a president, clerk 2
or secretary, a board of not less than seven directors, a treasurer or 3
actuary or both, and such other officers as may be prescribed by its 4
by-laws. 5
— how chosen,
1888, 413, § 4.
Section 8. The officers of such corporation, except the treas- 1
urer and actuary, shall be chosen at its annual meeting. The treas- 2
urer and actuary shall be appointed by the directors, shall hold their 3
respective offices during the pleasure of the board of directors and 4
shall give bond to the satisfaction of said board for the faithful per- 5
formance of their duties. 6
Directors.
1888, 413, § 19.
Section 9 . No person shall be a director in any such corporation 1
unless he is a stockholder holding not less than ten shares of unpledged 2
stock therein. A majority of the directors shall be citizens of and 3
resident in this commonwealth and not more than one-third of the 4
directors shall be directors in any other such corporation. 5
By-laws.
Quorum.
1888, 413, § 5.
Section 10. The corporation may adopt by-laws for the proper 1
management of its affairs, may establish regulations controlling the 2
assignment and transfer of its shares and may determine what num- 3
ber of shares shall be represented at any meeting to constitute a 4
quorum. If the quorum is not so determined, a majority in interest 5
of the stockholders shall be a quorum. 6
Chap. 116.] trust companies. 1111
1 Section 11. The books of such corporation shall at all reason- Books open
2 able times be open for inspection to the stockholders and to bene- i8^Mi3?f25.n'
3 ficiaries under any trust held by such corporation as hereinafter
4 provided. •
1 Section 12. Such corporation may receive on deposit, storage Deposits.
2 or otherwise, money, government securities, stocks, bonds, coin, iiii| 42!) f il
3 jewelry, plate, valuable papers and documents, evidences of debt,
4 and other property of any kind, upon such terms or conditions as
5 may be agreed upon, and at the request of the depositor may collect
6 and disburse the interest or income, if any, upon said property
7 received on deposit and collect and disburse the principal of such
8 of said property as produces interest or income when it becomes
9 due, upon terms to be prescribed by the corporation. Such deposits
10 shall be general deposits, and may be made by corporations and
11 persons acting individually or in any fiduciary capacity. Such cor-
12 poration shall not give collateral or other security for a deposit of
13 money received under the provisions of this section.
1 Section 13. Such corporations may, subject to the limitations investment of
2 of the following section, advance money or credits, whether capital isss, I13, § 6.
3 or general deposits, on real property situated within this common- 1890> 315> § x-
4 wealth and on personal security, on terms that may be agreed upon,
5 and also invest its money or credits, whether capital or general
6 deposits, in the stocks, bonds or other evidences of indebtedness
7 of corporations.
1 Section 14. No trust company shall advance money or credits Loans on farm
2 upon notes secured by deed of trust or by mortgage upon farms or ^smiIj 1.
3 agricultural or unimproved land outside of this commonwealth, 1889>342-
4 except upon land situated in the New England states or the state
5 of New York, nor invest in nor make loans upon the bonds or
6 other securities of a company negotiating or dealing in such notes
7 so secured or in such mortgages.
1 Section 15. No trust company shall as agent, buy, sell or Agent to buy,
2 negotiate securities or evidences of debt on which said company 1896, 315, § 1.
3 may not lawfully advance money or credits, nor as such agent
4 buy, sell or negotiate evidences of debts secured exclusively by
5 real estate under mortgage or deed of trust.
1 Section 16. A court of law or equity, or a court of probate and ^Xoritjof
2 insolvency of this commonwealth, may direct that money or prop- ^\^ 7>
3 erty under its control, or which may be paid into court by parties
4 to any legal proceedings, or which may be brought into court by
5 reason of an order or judgment, be deposited with such corporation,
6 upon such terms and subject to such instructions as the court may see § is.
7 prescribe. Such corporation may also hold money or property in
8 trust, or on deposit from executors, administrators, assignees, guar-
9 dians and trustees, upon such terms and conditions as may be agreed
10 upon.
1 Section 17. Money or property received under the provisions -investment
2 of the preceding section shall be loaned on or invested only in the 1*88,413, §7.
1112
TRUST COMPANIES.
[Chap. 11(5.
authorized loans of the United States, or any of the New England 3
states, the counties, cities or towns thereof, or of the states of 4
Illinois, Iowa, Michigan, Minnesota, Wisconsin, or the counties or 5
cities thereof, or stocks of state or national banks organized within 6
this commonwealth, or in the first mortgage bonds of a railroad cor- 7
poration incorporated in any of the New England states and whose 8
road is located wholly or in part in the same and which has earned 9
and paid regular dividends on all its issues of capital stock for two 10
years last preceding such loan or investment, or in the bonds of any 11
such railroad company unencumbered by mortgage, or in first mort- 12
gages on real estate in this commonwealth, or in any securities in 13
which savings banks may invest, or upon notes with two sureties 14
of domestic manufacturing corporations or of individuals with a sum- 15
cient pledge as collateral of any of the aforesaid securities ; but all 16
real estate acquired by foreclosure of mortgage or by levy of exe- 17
cution shall be sold at public auction within two years after such 18
foreclosure or levy. 19
a^&ust&e1611* Section 18. Such corporation may be appointed executor of a 1
1888° 413 \f~ 's wnl> codicil or writing testamentary, administrator with the will 2
1899^ sis', §§ i, 2! annexed, administrator of the estate of any person, receiver, as- 3
signee, guardian, or trustee under a will or instrument creating 4
a trust for the care and management of property, under the same 5
circumstances, in the same manner, and subject to the same control 6
by the court having jurisdiction of the same, as a legally qualified 7
person. Any such appointment as guardian shall apply to the 8
estate and not to the person of the ward. Such corporation shall 9
not be required to receive or hold property or money or assume or 10
execute a trust under the provisions of this or of section sixteen 11
without its assent. 12
Capital stock
as security.
1888, 413, § 8.
1899, 348, § 2.
Section 19. The capital stock of such corporations, with the 1
liabilities of the stockholders thereunder, shall be held as security 2
for the faithful performance of the duties undertaken by virtue of 3
sections sixteen and eighteen or of any similar provision of law, 4
and, except as provided in section twenty-two, no surety shall be 5
required upon the bonds filed by such corporation. 6
powers!3etcC,i8e Section 20. No such corporation shall commence to exercise 1
hied88 author" the powers and duties described in sections sixteen to eighteen, in- 2
i89K,-423, §3. elusive, until it has received authority in writing therefor from the 3
1899 348 § 5
board of commissioners of savings banks, and said board may grant 4
or refuse such authority after such investigation of the affairs of the 5
corporation as it may consider expedient. 6
Signing of
returns, etc.
Examination
of officers.
1888, 413, § 8.
1899, 348, § 2.
Section 21. In all proceedings in the probate court or else- 1
where, connected with any authority exercised under the provisions 2
of sections sixteen and eighteen, or under any similar provisions 3
of law, all accounts, returns and other papers may be signed and 4
sworn to, in behalf of the corporation, by any officer thereof duly 5
authorized by it, and the answers and examinations under oath of 6
said officer shall be received as the answers and examinations of the 7
corporation. The court may order and compel an officer of such 8
corporation to answer and attend said examination in the same 9
Chap. 116.] trust companies. 1113
10 manner as if he, instead of the corporation, were a party to the pro-
11 ceeding.
1 Section 22. The court making an appointment under the pro- Additional
2 visions of section eighteen, except of a trustee, may, upon applica- isS^s,' §v£en'
3 tion by an interested person, require the corporation so appointed
4 to give such security, in addition to that provided by section nine-
5 teen, as the court may consider proper, and upon failure of such
6 corporation to give the security required, may revoke such appoint-
7 ment and remove such corporation from the trust.
1 Section 23. A person creating a trust may direct whether Disposition of
2 money or property deposited under it shall be held and invested etc.st funds'
3 separately or invested in the general trust fund of the corporation ; 1888' 413' § 8-
4 and such corporation acting as trustee shall be governed by direc-
5 tions contained in a will or instrument under which it may act.
1 Section 24. Money, property or securities received, invested ^nt* depart"
2 or loaned under the provisions of sections sixteen to eighteen, in- x|||' |1|' |§s7, 9-
3 elusive, shall be a special deposit in such corporation, and the
4 accounts thereof shall be kept separate. Such funds and the invest-
5 ment or loans thereof shall be specially appropriated to the security
6 and payment of such deposits, shall not be mingled with the invest-
7 ments of the capital stock or other money or property belonging
8 to such corporation , or be liable for the debts or obligations thereof.
9 For the purpose of this section, such corporation shall have a trust
■10 department in which all business authorized by said sections sixteen
11 to eighteen, inclusive, shall be kept separate and distinct from its
12 general business.
1 Section 25. The directors may from time to time set apart as a Trust guaranty
2 trust guaranty fund such portion of the profits as they may consider im, m, § 10.
3 expedient. Such fund shall be invested in such securities only as
4 the trust deposits may be invested in. The accounts of its invest-
5 ment and management, and the securities in which it is invested, shall
6 be kept in the trust department.
1 Section 26. The trust guaranty fund shall be absolutely pledged igsj^f^'ii^"
2 for the faithful performance by the corporation of all its duties and
3 undertakings under the provisions of sections sixteen to eighteen,
4 inclusive, and shall be applied to make good any default in such per-
5 formance, and such pledge and liability shall not in any way relieve
6 the capital stock and general funds of the corporation, but creditors
7 under said sections shall have an equal claim with other creditors
8 upon the capital and other property of the corporation, in addition
9 to the security hereby given.
1 Section 27. No portion of such trust guaranty fund shall be -a°0B*(*J*£
2 transferred to the general capital while the corporation has under- eta ^ ^
3 takings of the kind mentioned in sections sixteen and eighteen
4 for whose performance bonds are required from individuals, out-
5 standing uncompleted ; but its income, if not required at any divi-
6 dend time to make good such deposits or undertakings, may be
7 added to and disposed of with the general income of the corporation.
1114
TRUST COMPANIES.
[Chap. 116.
Amount of
reserve.
1888, 413, § 13.
1900, 257.
Guaranty
fund.
1896, 423, § 2.
Liability of
stockholders.
1888, 413, § 14.
— how en-
forced.
1892, 327.
Section 28. Such corporation shall maintain as a reserve an 1
amount equal to at least fifteen per cent of the amount of its deposits 2
which are subject to withdrawal upon demand or within ten days. 3
If said reserve is at any time less than said amount, the corporation 4
shall not increase its liabilities by making new loans until said fifteen 5
per cent shall have been restored. Such reserve shall consist of 6
lawful money of the United States or, in place thereof, one-third of 7
such reserve may consist of bonds of the United States or of this 8
commonwealth, the absolute property of such corporation, and two- 9
thirds of such reserve may consist of balances payable on demand 10
due from a national bank doing business in this commonwealth or 11
in the city of New York, or balances payable upon demand or within 12
ten days from any domestic trust company doing business in this 13
commonwealth which is approved for the purpose by the board of 14
commissioners of savings banks and which has a reserve fund equal 15
to fifteen per cent of the amount of its deposits subject to with- 16
drawal on demand or within ten days and which consists of lawful 17
money of the United States or, to the extent of one-third thereof, 18
of balances payable on demand due from any national bank doing 19
business in this commonwealth or in the city of New York. 20
Section 29. Every such corporation chartered subsequent to the 1
twenty-first day of May in the year eighteen hundred and ninety- 2
six, after a deduction of all reasonable expenses and losses incurred 3
during the year in the management thereof, shall annually set aside 4
not less than ten per cent of its remaining earnings as a guaranty 5
fund, until such fund amounts to twenty-five per cent of its capital, 6'
which fund shall be invested in the same manner as deposits in 7
savings banks may be invested. 8
Section 30. The stockholders of such corporation shall be per- 1
sonally liable, equally and ratably and not one for another, for all 2
contracts, debts and engagements of the corporation, to the amount 3
of their stock therein at the par value thereof, in addition to the 4
amount invested in such shares. The provisions of sections sixty 5
to sixty-eight, inclusive, of chapter one hundred and ten shall apply 6
to and regulate the enforcement of such liability. 7
Section 31. A trust company whose stockholders are liable 1
under the provisions of the preceding section and whose capital 2
stock shall, in the opinion of the board of commissioners of savings 3
banks, have become impaired by losses or otherwise, shall, within 4
three months after receiving notice from said board, pay the defi- 5
ciency in the capital stock by assessment upon the stockholders 6
pro rata to the shares held by each. If such corporation shall fail 7
to pay such deficiency in its capital stock for three months after 8
receiving such notice, the board may apply to the supreme judicial 9
court for an injunction, as provided in section six of chapter one 10
hundred and thirteen ; and if a stockholder of such corporation shall 11
neglect or refuse, after three months' notice, to pay the assessment as 12
provided in this section, the board of directors shall cause an amount 13
of his stock sufficient to make good his assessment to be sold by 14
public auction, after thirty days' notice given by posting such notice 15
in the office of the corporation and by publishing it in a newspaper 16
Chap. 116.] trust companies. 1115
17 of the city or town in which the corporation is located or in a
18 newspaper published nearest thereto ; and the balance, if any, shall
19 be returned to such delinquent stockholder. The provisions of
20 this section shall not take away the right of creditors to enforce
21 the liability of stockholders in such corporations, as provided in
22 the preceding section, nor increase the general liability of such
23 stockholders.
1 Section 32. Such corporation may act as agent for the purpose May act as
2 of issuing, registering or countersigning the certificates of stock, l^nt' truBtee'
3 bonds or other evidences of indebtedness of a corporation, associa- 1888' 413> § 15,
4 tion, municipal corporation, state or national government, on such
5 terms as may be agreed upon, and may also act as trustee or finan-
6 cial or other agent for a person, association, municipal corporation
7 or government, and in their behalf may negotiate loans and sell
8 and negotiate the sale of securities, and may also act as trustee for
9 the bondholders of a corporation, and for such purpose may receive
10 transfers of real and personal property upon such terms as may be
11 agreed upon.
1 Section 33. No such corporation shall make a loan or discount Loans on
2 on the security of the shares of its own capital stock, nor be the itai stock, etc!
3 purchaser or holder of such shares, unless such security or purchase '
4 shall be necessary to prevent loss upon a debt previously contracted
5 in good faith ; and stock so purchased or acquired shall, within six
6 months after its purchase, be sold or disposed of at public or private
7 sale.
1 Section 34. The total liabilities of a person, other than cities Liability of
2 or towns, for money borrowed, including in the liabilities of a son, etc. per*
3 firm the liabilities of its several members, to such corporations hav- {^ %Hi § 17,
4 ing a capital stock of five hundred thousand dollars or more shall
5 at no time exceed one-fifth part of the surplus" account and of such
6 amount of the capital stock as is actually paid up, and to any other
7 such corporation shall at no time exceed one-fifth of such amount
8 of the capital stock of the corporation as is actually paid up ; but
9 the discount of bills of exchange drawn in good faith against actually
10 existing values, and the discount of commercial or business paper
11 actually owned by the person negotiating it, shall not be considered
12 as money borrowed.
1 Section 35. Such corporation may hold real estate unen- May hold real
2 cumbered by mortgage suitable for the transaction of its business ms, m, § 18.
3 to an amount including the cost of alterations and additions in the im' 2lL
4 nature of permanent fixtures, not exceeding twenty-five per cent of
5 its capital actually paid in, and in no case to exceed two hundred
6 and fifty thousand dollars ; but the provisions of this section shall
7 not require such corporation to change an investment legally made
8 prior to the eighteenth day of April in the year eighteen hundred
9 and ninety-four.
1 Section 36. Such corporation shall annually, within ten days Returns to
2 after the last business day of October, and at such other times as the offings11"8
3 board of commissioners of savings banks may require, but not exceed- is£f Sis, § 26.
1116
TRUST COMPANIES.
[Chap. 116.
ing four times within any calendar year, make a return to said board, 4
signed and sworn to by its president and secretary, treasurer or actu- 5
ary and a majority of its board of directors, showing accurately the 6
condition of such corporation at close of business on said day ; and 7
said return shall specify the following : capital stock ; amount of all 8
money and property in detail in the possession or charge of said 9
corporation as deposits ; amount of deposits payable on demand or 10
within ten days ; amount of trust guaranty fund ; trust funds or for 11
purposes of investment ; number of depositors ; investments in 12
authorized loans of the United States or any of the New England 13
states, counties, cities or towns ; investments in bank stock, railroad 14
stock and railroad bonds, stating amount in each ; loans on notes of 15
corporations ; loans on notes of individuals ; loans on mortgages of 16
real estate ; cash on hand, rate, amount and date of dividends since 17
last return, and such other information as the board of commissioners 18
of savings banks may require. Such return shall be in the form of 19
a trial balance of its books and shall specify the different kinds of 20
its liabilities and assets, with the amount of each kind, in accord- 21
ance with a blank form to be furnished by said board and shall be 22
published by and at the expense of such corporation in a newspaper 23
of the city or town in which such corporation is located, at such 24
times and in such manner as may be directed by said board, and 25
in the annual report of said board. 26
Examination
by commis-
sioners of
savings banks.
1888, 413, § 26.
1899, 348, § 6.
Section 37. The board of commissioners of savings banks shall
have access to the vaults, books and papers of the corporation, and
shall inspect, examine and inquire into its affairs and take proceed-
ings
in regard to it in the same manner and to the same extent as
if it were a savings bank ; and may make, or cause to be made by
an expert at the expense of the corporation, such further examina-
tion of a corporation exercising the powers conferred by the pro-
visions of section eighteen as it may consider necessary, and shall,
when ordered by any court of competent jurisdiction, make an
examination or cause it to be made.
1
2
3
4
5
6
7
8
9
10
Proceedings
if rent of
paid
1887, 89.
Section 38. If the amount due for the rent or use of a box 1
boxes, etc., not 0r safe in the vaults of a domestic corporation organized for the 2
purpose of letting vaults, safes and other receptacles shall not have 3
been paid for two years, such corporation may cause to be mailed, 4
postpaid, to the person in whose name such safe or box stands upon 5
the books of such corporation and at his address as stated on said 6
books, a notice stating that if the amount then due for the use or 7
rent of such safe or box shall not be paid within sixty da,js from 8
the date of such notice such corporation will cause such safe or box 9
to be opened in the presence of its president, treasurer or super- 10
intendent and of a notary public, and the contents thereof, if any, 11
to be sealed up in a package and placed in one of the storage vaults 12
of such corporation. If, upon the expiration of said sixty days 13
from the date of such notice, such person shall have failed to pay 14
the amount due for the use or rent of such safe or box in full to the 15
date of such notice, all right of such person in such safe or box 16
and of access thereto shall cease, and such corporation may in the 17
presence of its president, treasurer or superintendent and of a notary 18
public not an officer or in the general employ of such corporation, 19
Chap. 117.] mortgage loan and investment companies. 1117
20 cause such safe or box to be opened, and such notary public shall
21 remove the contents thereof, make a list of the same and* shall seal
22 up such contents in a package and shall mark thereon the name of
23 the person in whose name such safe or box stood on the books of
24 such corporation and his address as stated on said books, and such
25 package shall in the presence of said notary public and of said
26 president, treasurer or superintendent be placed in one of the
27 storage vaults of such corporation ; and the proceedings of such
28 notary public, including said list of the contents of said safe or box
29 and his estimate of the total value of said contents, shall be set
30 forth bv him in his own handwriting and under his official seal in a
31 book to be kept by such corporation for the purpose. The officer
32 of such corporation who sent said written notice shall in the same
33 book state his proceedings relative thereto, setting forth a copy of
34 said notice. Both of said statements shall be sworn to by such
35 notary public and officer, respectively, before a justice of the peace,
36 who shall make certificate thereof in said book ; and said written
37 statements shall be prima facie evidence of the facts therein set
38 forth in all proceedings at law and in equity wherein evidence of
39 such facts would be competent. The provisions of this section
40 shall not impair any right relative to such safes, boxes or their
41 contents which such corporation would otherwise have.
CHAPTER 117.
of mortgage loan and investment companies.
1 Section 1. Every corporation chartered in this commonwealth £°yeesreand
2 for the special purpose of negotiating or making loans of money isss, 387, § i.
3 secured by deed of trust or mortgage of real estate situated outside
4 of this commonwealth shall be subject to the provisions of this
5 chapter. Such corporations chartered prior to the twenty-second
6 day of May in the year eighteen hundred and eighty-eight shall, ex-
7 cept where inconsistent with the provisions of this chapter, continue
8 to exercise the powers and be subject to the duties set forth in their
9 respective charters.
1 Section 2. Such corporation may loan money secured by deed J^ms^ § 2.
2 of trust or mortgage of real estate not subject to a prior mortgage or
3 encumbrance and situated in any state, other than this common-
4 wealth, or territory of the United States to an amount not exceed-
5 ing fifty per cent of the appraised value of said property. It may
6 also hold, sell and assign the bonds, notes, mortgages and securities
7 taken for such loans ; may guarantee the payment of the interest and
8 principal of bonds, notes or other evidences of debt secured as afore-
9 said, and may guarantee the title to the property securing such evi-
10 dences of debt for the time such debt remains unpaid ; but the
11 provisions of this chapter shall not authorize such corporations to
12 engage in the business of title insurance.
1 Section 3. Such corporation may purchase, hold, guarantee, May purchase,
,, . ,i iiii j i £■ ± , i. sell and assign
2 sell and assign notes or bonds, and the mortgages or deeds ot trust notes, etc.
& ° c lsss, 387, §3.
1118
MOETGAGE LOAN AND INVESTMENT COMPANIES. [CHAP. 117.
securing the same, or other papers securing a loan made in accord- 3
ance with the provisions of the preceding section. 4
Receipt of
money for
investment,
etc.
1888, 387, § 4.
Foreclosure of
mortgages,
etc.
1888, 387, § 5.
Issue of de-
bentures or
bonds.
1888, 387, § 6.
Section 4. Such corporation may receive money for investment 1
in the securities which it is by this chapter authorized to sell or issue, 2
and may allow interest on such money from the time of its receipt 3
to the time of its investment, at such rate as may be agreed upon ; 4
may receive, care for, manage and sell stocks, bonds and evidences 5
of debt, the avails of which are intended for investment as aforesaid. 6
No such corporation shall receive money on deposit, except as here- 7
inbefore provided, or engage in any form of banking or trust busi- 8
ness except that permitted by the provisions of this chapter. 9
Section 5. Such corporation may act as agent for the purpose 1
of foreclosing mortgages and collecting claims arising by reason of 2
any evidence of debt deposited with it under the provisions of the 3
preceding section. It may purchase real estate at public auction 4
sale thereof made by virtue of the power contained in any deed of 5
trust or mortgage owned, held or guaranteed by it, or at private sale 6
thereof made for the purpose of cancelling the debt secured by such 7
deed of trust or mortgage, and may hold, sell, transfer and convey 8
said property ; but real estate so purchased or acquired shall be sold 9
within five years thereafter. 10
Section 6. Such corporation may issue debentures or bonds, to 1
secure the payment of which, it shall from time to time assign and 2
transfer to trustees, none of whom shall be officers of the corpora- 3
tion, or to a domestic trust company deeds of trust or mortgages of 4
real estate on which loans have been made in accordance with the 5
provisions of this chapter, to be held by such trustees or company 6
in trust for the benefit of the holders of said debentures or bonds, 7
whereupon such trustees or company shall indorse their or its certifi- 8
cate of such fact upon debentures or bonds not exceeding in amount 9
the face value of securities so transferred to them or it. 10
Amount
guaranteed
limited.
1888, 387, § 7.
Section 7. The total amount of mortgages guaranteed and of 1
debentures or bonds issued by such corporation shall at no time ex- 2
ceed ten times the amount of its capital stock actually paid in and 3
its surplus. 4
Bonds, notes,
etc., where
payable.
1888, 387, § 8.
Section 8. Bonds, notes and other evidences of debt taken by 1
such corporation for money loaned shall be payable to such corpora- 2
tion at its principal place of business in this commonwealth, and 3
shall pass by delivery, by transfer on the books of such corporation 4
at said place of business, or by certificate of its transfer agent at 5
such other place as it may appoint. No transfer except on the 6
books of the corporation or by certificate of its transfer agent, shall 7
be valid unless the last transfer shall have been to bearer. A com- 8
plete record of such transfer by said transfer agents shall be for- 9
warded to and kept at said place of business of such corporation. 10
May hold real
estate.
1888, 387, § 9.
Section 9. Such corporation may hold real estate in this com- 1
mon wealth suitable for the transaction of its business, to an amount 2
not exceeding twenty-five per cent of its capital actually paid in. 3
Chap. 117.] mortgage loan and investment companies. 1119
1 Section 10. No such corporation shall purchase or hold shares Holding its
2 of its own capital stock, unless such purchase shall be necessary to stockCapital
3 prevent loss upon a debt previously contracted in good faith ; and 1888, 387, § 10-
4 stock so purchased shall, within six months thereafter, be sold or
5 disposed of at public or private sale.
1 Section 11. The shareholders of such corporation shall be Liability of
2 personally liable in the same manner and to the same extent as i888™^!1eii.'
3 stockholders of manufacturing corporations are liable under the laws
4 of this commonwealth. The provisions of sections sixty to sixty-
5 eight, inclusive, of chapter one hundred and ten shall apply to and
6 regulate the enforcement of such liability.
1 Section 12. Such corporation shall set apart as a guaranty fund ^2iadranty
2 an amount not less than five per cent of its paid in capital, and shall 1888, 387, § 12.
3 thereafter annually add thereto not less than ten per cent of its net
4 earnings, until such fund, with the accumulated interest thereon,
5 shall be equal to not less than twenty-five per cent of its paid in
6 capital. Said fund shall be invested in United States bonds, Eng-
7 lish consols, first mortgage bonds of any railroad corporation which
8 has paid a dividend on its stock for at least three years last pre-
9 ceding the date of said investment, the legally authorized bonds
10 for municipal purposes of any city of the United States of not less
11 than thirty thousand inhabitants whose whole indebtedness does not
12 exceed five per cent of its last assessed valuation, or in any securi-
13 ties in which savings banks may invest their deposits.
1 Section 13. The books of such corporation shall at all reason- Books to be
2 able times be open for inspection to the stockholders and to holders Sspectkin.
3 of bonds and debentures issued by such corporation, or of notes and 1888>387' § 13-
4 other evidences of debt guaranteed by it.
1 Section 14. The board of commissioners of savings banks shall erToTslvfngs
2 have access to the vaults, books and papers of such corporation, bants to have
1 „ . . \ • ■ • i 'j /*• • t j 1 supervision.
3 shall inspect, examine and inquire into its anairs and take pro- isss, 387, § 14.
4 ceedings in regard to it at such tunes as it shall consider necessary,
5 in the same manner and to the same extent as if such corporation
6 were a savings bank, and said board may cause an examination to
7 be made by an expert under its direction but at the expense of
8 the corporation.
1 Section 15. Such corporation shall annually, within ten days Returns.
2 after the last business day of October, make a return to said board 1888, 387' §
3 which shall be in the form of a trial balance of its books, and shall
4 specify the different kinds of its liabilities and assets, stating the
5 amount of each kind in accordance with a blank form to be furnished
6 by said board ; and such returns shall be published in a newspaper
7 of the city or town in which such corporation is located, at the ex-
8 pense of such corporation, at such times and in such manner as
9 may be directed by said board. Said board shall annually report
10 to the general court such facts and statements relative to such cor-
11 porations and in such form as they consider the public interest
12 requires.
1120
INSURANCE.
[Chap. 118.
OHAPTEE 118.
OF INSURANCE.
Sections 1-3. — Definitions and Companies.
Sections 4-17. — Insurance Commissioner.
Sections 18-21. — Provisions Common to all Companies.
Sections 22-28. — General Provisions for Massachusetts Companies.
Sections 29-3 1 . — Organization .
Sections 32-38. — Stock Companies .
Sections 39-51. — Mutual Fire.
Sections 52-55. — Mutual Marine and Mutual Fire and Marine.
Sections 56-60. — Fire Insurance.
Section 61. — Fidelity Insurance and Corporate Surety.
Sections 62-64 . — Title Insurance.
Sections 65-76. — Life Insurance.
S ections 7 7-8 5 . — Foreign Companies .
Section 86. — Lloyds.
Sections 87-93 . — Agents and Brokers.
Section 94. — Deposits.
Section 95. — Receivers.
Section 96. — Annual Statements.
Sections 97-112. — Penalties.
DEFINITIONS AND COMPANIES.
Certain terms
defined.
" Company.'1
" Insurance
company."
*' Domestic."
" Foreign."
" Unearned
premiums."
" Reinsurance
reserve."
" Net value of
policies."
" Premium
reserve."
" Net assets."
" Profits."
Section 1. In this chapter, unless the context otherwise requires :
1854, 453, § 30.
1856, 252, § 55.
G. S. 58, § 78.
1873, 141, § 14.
1878, 130, § 7.
P. S. 119, § 1.
1887, 214, § 1.
1894, 522, § 1.
"Company" or "insurance company" includes all corporations, 2
associations, partnerships or individuals engaged as principals in 3
the business of insurance. 4
"Domestic" designates those companies incorporated or formed 5
in this commonwealth, and "foreign", when used without limita- 6
tion, includes all those formed by authority of any other state or 7
government. 8
' * Unearned premiums " and ' ' reinsurance reserve " and ' ' net value 9
of policies" or "premium reserve" severally intend the liability of 10
an insurance company upon its insurance contracts, other than accrued 11
claims, computed by rules of valuation established by section eleven. 12
"Net assets" means the funds of an insurance company avail- 13
able for the payment of its obligations in this commonwealth, includ- 14
ing, in the case of a mutual tire company, its deposit notes or other 15
contingent funds, and, in the case of a mutual marine or mutual fire 16
and marine company, its subscription fund and premium notes 17
absolutely due, and also including uncollected and deferred pre- 18
miums not more than three months due, on policies actually in force, 19
after deducting from such funds all unpaid losses and claims, and 20
claims for losses, and all other debts and liabilities inclusive of 21
policy liability and exclusive of capital. 22
"Profits" of a mutual insurance company means that portion 23
of its cash funds not required for payment of losses and expenses 24
nor set apart for any purpose allowed by law. 25
Chap. 118.] insurance. 1121
1 Section 2. All insurance companies now or hereafter incorpo- companies
2 rated or formed by authority of any general or special law of this chapter!0
3 commonwealth, except as provided in chapters one hundred and ?l^PH7°n§|'i 2.
4 nineteen and one hundred and twenty, shall be subject to the pro- ^'5f' fsl'§| i' ^4"
5 visions of this chapter. g. s. 58, § 12. 1872, 375, § 1. 1873, 167, § 1. ]85i'> 453> § i.
P. S. 119, §§ 22, 25. 1887, 214, §2. 1894, 522, § 2. 170 Mass. 224. 172 Mass. 278. 1856, 252, § 1.
1 Section 3. A contract of insurance is an agreement by which definition of
_ . . . . ~ j insurance.
2 one party lor a consideration promises to pay money or its equiva- J88]. 21*. § 3-
3 lent or to do an act valuable to the assured upon the destruction, 1897)66.'
4 loss or injury of something in which the other party has an interest, i6o Mall' 413.'
5 and it shall be unlawful for a company to make a contract of 175 Mass." 154.'
6 insurance upon or relative to any property or interests or lives in \}^i \itklt
7 this commonwealth, or with any resident thereof, or for any person 544-^
8 as insurance agent or insurance broker to make, negotiate, solicit
9 or in any manner aid in the transaction of such insurance, except as
10 authorized by the provisions of this chapter or chapters one hundred
11 and nineteen and one hundred and twenty. All contracts of insur-
12 ance on property, lives or interests in this commonwealth shall be
13 deemed to be made therein.
INSURANCE COMMISSIONER.
1 Section 4. There shall be an insurance commissioner for the insurance
2 commonwealth, appointed by the governor, with the advice and con- S,™^^'
3 sent of the council, who shall hold his office for the term of three i854,§453, § 42.
4 years from the date of his commission and until his successor is i855, 124, §§ 1,
5 appointed and qualified. He may be removed by the governor. ^5|. ^7,JJ-n
6 He shall give bond with sureties in the sum often thousand dollars, i866,"255.
7 to be approved by the treasurer and receiver general, for the faithful 1876) 210) § 1.'
8 performance of his duties, and shall receive in full compensation for p.'s.i°i9,§2.
9 his services an annual salary of thirty-five hundred dollars. llool 2I7! § 4*
1894) 522] § 4.
1 Section 5. The commissioner may, with the approval of the —deputy, etc.
2 governor and council, appoint, and with their consent remove, a \m, 255,' § 2.
3 deputy commissioner to assist him in his duties, who shall receive ^'f1!.7' § 3;
4 an annual salary of twenty-five hundred dollars, and an "examiner, ifff; f|f ; § 6.
5 who shall receive an annual salary of two thousand dollars. In case i|7|! 374! ^
6 of a vacancy in the office of commissioner or during the absence or 1877) 203!
7 disability of that officer, the deputy commissioner shall perform the r.'s'. ii9,§§2U)
8 duties of the office. The commissioner may employ in his depart- 1887)214; §5.
9 ment an actuary with an annual salary of two thousand dollars, ^94) 522, § 5.
10 a chief clerk with an annual salary of two thousand dollars, a \lw',tlh.
11 second clerk with an annual salary of fifteen hundred dollars, a third is98)54.
12 clerk with an annual salary of twelve hundred dollars, and such
13 additional clerks and assistants as the public business in his charge
14 may require, at an expense not to exceed such amount as the general
15 court may appropriate each year. He shall transmit forthwith to
16 each register of probate and insolvency the names of all corporate
17 surety companies which become qualified or cease to be qualified to
18 do business in this commonwealth.
1 Section 6. Before granting certificates of authority to an insur- Examination
„ . ° .. . ° 1 j. j_ .? • ±1 of companies
2 ance company to issue policies or make contracts 01 insurance the aB to quaiiflca.
tions, etc.
1122
INSURANCE.
[Chap. 118.
1871, 297, § 5.
P. S. 119, § 5.
1887, 214, § 6.
1894, 522, § 6.
1897, 67, § 1.
Examination
of domestic
companies.
1855, 124, §§ 5, 7.
1858, 177, § 2.
G. S. 58, § 2.
1871, 297, § 1.
P. S. 119, § 6.
18S3, 235.
— of foreign
companies.
1871, 297, § 2.
P. S. 119, § 7.
— of books,
papers, etc.
1855, 124, §§ 5, 6.
1856, 252, § 53.
G.S.58,§§2,3,5.
1871, 297, $ 3.
P. S. 119, §§ 8,
10.
commissioner shall be satisfied, by such examination as he may 3
make and such evidence as he may require, that such company is 4
otherwise duly qualified under the laws of this commonwealth to 5
transact business herein. 6
At least once in each three years and whenever he determines it 7
to be prudent he shall personally or by his deputy, examiner, or 8
chief clerk, visit each domestic insurance company, and thoroughly 9
inspect and examine its affairs to ascertain its financial condition, 10
its ability to fulfil its obligations and whether it has complied with 11
the provisions of law. He shall also make such examination upon 12
the request of five or more of the stockholders, creditors, policy 13
holders or persons pecuniarily interested therein who shall make 14
affi davit of their belief, with specifications of their reasons therefor, 15
that such company is in an unsound condition. 16
When he determines it to be prudent for the protection of 17
policy holders in this commonwealth, he shall in like manner visit 18
and examine or cause to be visited and examined by some com- 19
petent person or persons whom he may appoint for that purpose 20
any foreign insurance company applying for admission or already 21
admitted to do business by agencies in this commonwealth, and 22
such company shall pay the proper charges incurred in such exami- 23
nation, including the expenses of the commissioner or his deputy 24
and the expenses and compensation of his assistants employed 25
therein. 26
For the purposes aforesaid the commissioner or his deputy or the 27
person making the examination shall have free access to all the 28
books and papers of an insurance company which relate to its busi- 29
ness, and to the books and papers kept by any of its agents, and 30
may summon and administer the oath to and examine as witnesses 31
the directors, officers, agents and trustees of any such company, 32
and any other persons, relative to its affairs, transactions and con- 33
dition. 34
Suspension of
authority of
foreign com-
panies to do
business, etc.
1871, 297, § 4.
P. S. 119, § 13.
1887, 214, § 7.
1890, 304.
1894, 522, § 7.
155 Mass. 404.
166 Mass. 238.
171 Mass. 81.
Section 7. If the commissioner is of opinion upon examination 1
or other evidence that a foreign insurance company is in an unsound 2
condition, that it has failed to comply with the law, or that its actual 3
funds exclusive of its capital, if it is a life insurance company, are 4
less than its liabilities, or if its officers or agents refuse to submit to 5
examination or to perform any legal obligation relative thereto, 6
he shall revoke or suspend all certificates of authority granted to 7
said foreign insurance company, its officers or agents, and shall 8
cause notices. thereof to be published in the newspaper in which the 9
general laws are published, and no new business shall thereafter be 10
done by it or its agents in this commonwealth while such default or 11
disability continues, nor until its authority to do business is restored 12
by the commissioner. Unless the ground for revocation or suspen- 13
sion relates only to the financial condition or soundness of the 14
company, or to a deficiency in its assets, he shall, except as provided 15
in section twenty, notify the company not less than ten days before 16
revoking its authority to do business in this commonwealth ; and 17
he shall specify in the notice the particulars of the alleged violation 18
of law. The supreme judicial court upon petition of said company, 19
brought within the ten days aforesaid, shall summarily hear and 20
determine the question whether such violation has been committed, 21
Chap. 118.] insurance. 1123
22 and shall make any appropriate order or decree therein. If the
23 order or decree is adverse to the petitioning company, an appeal
24 therefrom may be taken to the full court; and in case of such
25 appeal the commissioner may revoke the right of said petitioning
26 company to do business in this commonwealth until the final de-
27 termination of the question by the full court aforesaid.
28 If, upon examination, he is of opinion that any domestic insurance Application
29 company is insolvent, or has exceeded its powers, or has failed to ls^^fs011'
30 comply with any provision of law, or that its condition is such as to isef.'ifi §H5.
31 render its further proceedings hazardous to the public or to its policy Jjjj^> f^> f ^
32 holders, he shall apply to the supreme judicial court, which shall J- s- us". §§ i*.
33 have jurisdiction in equity of such application, for an injunction
34 restraining it in whole or in part from further proceeding with its
35 business. The court may issue an injunction forthwith and may,
36 after a full hearing, make the injunction perpetual and may appoint
37 agents or receivers to take possession of the property and effects
38 of the company and to settle its affairs, subject to such rules and
39 orders as the court may from time to time prescribe.
1 Section 8. If it appears to him that the capital of a domestic Notice to make
2 insurance company is impaired to the extent of one-fourth or more, fsw, 2i4f§t."
3 on the basis fixed in section eleven, he shall notify the company 1894* 522> § 8-
4 that its capital is legally subject to be made good in the mode pro-
5 vided by section thirty-five, and if such company shall not within
6 three months after such notice satisfy him that it has fully made
7 good its capital, or reduced it, as provided in section thirty-seven,
■8 he shall institute proceedings against it in accordance with the
9 provisions of the preceding section.
1 Section 9. If the actual funds of a domestic life insurance -to cease
2 company, exclusive of its capital, are not of a net cash value equal when688'
3 to its liabilities, including the net value of its policies computed by pfl.iit, §155.
4 the rule of valuation established by section eleven, he shall notify ilU; |||; 1 1;
5 such company and its agents to issue no new policies until its funds
6 become equal to its liabilities.
1 Section 10. If upon examination or other evidence exhibited to Report of vk>.
„,.,./... ,1, . /r> lations of law.
2 him he is of opinion that any insurance company, or an officer or i855( 124, §§ 9,
3 agent thereof, has violated any provision of this chapter, he shall g°; 8< 68| § 8-
4 report the facts to the attorney general, who shall cause such com- p8"'. 119, §16.
5 pany, officer or agent to be prosecuted therefor. illl' III,' 1 10"
1 Section 11. He shall each year compute the reserve liability on valuation of
2 the thirty-first day of December of the preceding year of every companies l
3 company authorized to make insurance on lives in this common- i^rnf § 2.
4 wealth, in accordance with the rules following : — f>- §; n9,Vi7.
5 First, The net value on the last day of December of the preced- JfgjgJJg;
6 ing year of all outstanding policies of life insurance in the company Jf^];^1;
7 issued before the first day" of January in the year nineteen hundred W] '
8 and one shall be computed upon the basis of the ' ' Combined Ex-
9 perience" or "Actuaries' Table" of mortality, with interest at four
10 per cent per annum.
11 Second, The net value on the last day of December of the pre-
12 ceding year of all outstanding policies of life insurance issued after
1124: INSURANCE. [CHAP. 118.
the thirty-first day of December in the year nineteen hundred shall 13
be computed upon the basis of the "American Experience Table" 14
of mortality, with interest at three and one-half per cent per annum ; 15
but any such life insurance company may at any time elect to reserve 16
upon a three per cent basis, and thereupon its policies issued upon 17
such reserve shall be computed upon the basis of the "American 18
Experience Table" of mortality, with interest at three per cent per 19
annum. 20
Third, In every case in which the actual premium charged for an 21
insurance is less than the net premium for such insurance, computed 22
according to its respective tables of mortality and rate of interest 23
aforesaid, the company shall also be charged with the value of an 24
annuity, the amount of which shall equal the difference between the 25
premium charged and that required by the rules above stated, and 26
the term of which in years shall equal the number of future annual 27
payments due on the insurance at the date of the valuation. 28
Fourth, The aggregate net value so ascertained of all the policies 29
of any such company shall be deemed its reserve liability, to provide 30
for which it shall hold funds in secure investments of an amount 31
equal to such net value above all its other liabilities. 32
wmfra8™sent -^ policies or certificates of insurance issued before the first day 33
1899, 229, §§4, 5. 0f July in the year eighteen hundred and ninety-nine by corpora- 34
tions which formerly transacted a life insurance business under the 35
provisions of chapter four hundred and twenty-one of the acts of the 36
year eighteen hundred and ninety and acts in amendment thereof, 37
and which now have authority to do business in this commonwealth 38
under the provisions of this chapter, which policies or certificates 39
are in force on the thirty-first day of December of any year and 40
which contain a provision for a payment other than the premium 41
stipulated therein and under which the duration of the premium 42
payment is the same as the duration of the contract, except in 43
endowment certificates and endowment policies, shall be valued and 44
shall have a reserve maintained thereon on the basis of renewable term 45
insurance as fixed by attained age in accordance with the provisions 46
of this chapter. To the reserve liability determined as above the 47
insurance commissioner shall add the determinate contract reserve 48
under any other policies or certificates issued by said companies, 49
before said first day of July and remaining in force on the thirty- 50
first day of December of any year, and in the absence of such con- 51
tract reserve shall value them as contracts providing similar benefits 52
are to be valued under the provisions of this chapter. But under 53
no policy or certificate shall a greater aggregate reserve liability be 54
charged than is otherwise required by this chapter. All policies 55
of life insurance issued by any such corporation subsequent to the 56
first day of July in the year eighteen hundred and ninety-nine, in- 57
eluding those which contain a provision for a payment other than 58
the premiums specified therein, shall be valued and a reserve main- 59
tained thereon according to the provisions of this chapter, but all 60
such policies issued by said former assessment corporations prior to 61
the first day of January in the year nineteen hundred and three, 62
shall be valued taking the first year as one-year- term insurance. 63
computation To determine the liability upon its contracts of insurance of an 64
ot reserves tor * A
reinsurance or insurance company, other than life and real estate title insurance, 65
policy liability. r J
Chap. 118.] insurance. 1125
66 and the amount such company shall hold as a reserve for reinsur- 1874, ios.
67 ance, he may take fifty per cent or the actual unearned portion of p8s'.3ii9, § n.
68 the premiums written in its policies ; but in respect to marine risks Jggf' J^;
69 he shall compute the liability thereon by charging sixty per cent of
70 the amount of premiums written in its policies upon yearly risks,
71 and upon risks covering more than one passage not terminated, and
72 the full amount of premiums written in policies upon all other
73 marine risks not terminated ; but in the case of foreign fire and
74 marine insurance companies with less than three hundred thousand
75 dollars capital, admitted to transact fire insurance only in this com-
76 monwealth, the full amount of premiums written in their marine and
77 inland navigation and transportation insurance policies shall be
78 charged as liability.
79 He shall allow to the credit of an insurance company in the what assets
80 account of its financial condition only such assets as are immediately admi881ble-
81 available for the payment of losses in this commonwealth, but may
82 credit any deposits or funds of the company set apart as security
83 for a particular liability in set-off to the amount charged on account
84 of such liability.
85 He shall not allow stockholders' obligations of any description as stockholders'
86 part of the assets or capital of any stock insurance company, unless cap^ailwhen?
87 the same are secured by sufficient approved collateral, p. s. 119, §64. 1872, 325, § 3.
1 Section 12. He shall, upon application, examine the proceed- o^^eedln^s
2 ings of domestic companies to increase or reduce their capital stock, for increase .or
3 and, if found conformable to law, shall indorse certificates thereof, capital.
4 and shall issue certificates of authority to such companies to trans- i878| 35! § 3.
5 act business upon such increased or reduced capital. p. s. 119, §§ 67,
1887, 214, § 12. 1894, 522, § 12.
1 Section 13. He, his deputy or examiner shall annually, or — <3i accounts
an. ,i , j i i- /» it of receivers of
2 oftener, examine the accounts and transactions of all receivers insolvent com-
3 of insolvent insurance companies ; and shall also carefully examine ?8m!308?§§i,3.
4 all accounts of such receivers referred to him under the provisions pJt.ukff^ies,
5 of section ninety-five, and make report thereof to the court. isct, 214, § 13.
1894, 522, § 13. 1898, 53.
6 For the above purposes he, his deputy or examiner shall have insurance
7 free access to the official books and papers of such receivers relative may examine
8 to their transactions, and may examine such receivers under oath i876,83,§'3.
9 as to all matters connected therewith. Pl S- 119' § 17L
10 If in his opinion a receiver has violated his duty in office, or Notice to court
11 further proceedings bv receivers to collect an assessment will not oi receivers.
12 offer substantial relief to creditors, the commissioner shall certify mn', 83, §4. "
13 the facts to the court having jurisdiction of the proceedings. p. s. 119, § 172.
1 Section 14. He shall perform the duties required by the pro- Attorney for
2 visions of section five of chapter one hundred and twenty-six. panies.
P. S. 119, § 203. 1887, 214, § 14. 1894, 522, § 14. 132 Mass. 432. 1879^ 14! § 2'
1 Section 15. He shall collect and pay into the treasury charges collection, etc.,
2 and fees as follows : for valuation of life policies, two and one-half charges and
3 mills for each thousand dollars of insurance ; for each examination <£?!'. 58( § 64.
1126
INSURANCE.
[Chap. 118.
1867, 267, § 6.
1870, 349, § 8.
1871, 297, § 5.
1878, 35, § 4;
36, § 2.
P. S. 119, §§ 5,
18, 71, 157, 203.
1884, 55.
1887, 214, §§ 15,
24,71.
1894, 19; 522,
§§ 15, 24, 71.
1897, 67, § 2.
of a domestic company's qualification to transact business, thirty 4
dollars ; for filing copy of charter or deed of settlement of each 5
foreign company, thirty dollars, and for filing statement with appli- 6
cation for admission and for each annual statement, twenty dollars ; 7
for each license to procure fire insurance in unauthorized foreign 8
companies, twenty dollars annually; for each license to an insur- 9
ance broker, ten dollars ; for each license or renewal thereof to an 10
insurance agent, two dollars ; for each certificate of the valuation of 11
the policies of any life insurance company and for each certificate 12
of the examination, condition or qualification of an insurance com- 13
pany, two dollars ; for each service of lawful process upon him as 14
attorney, two dollars ; for each copy of any paper on file in his 15
office, twelve cents a page and one dollar for certifying the same ; 16
and all other fees and charges due and payable into the treasury for 17
any official act or service of the commissioner. 18
Blanks for
annual state-
ments.
1837, 192, § 4.
1833, 178, § 3.
1849, 104, § 6.
1856, 252, § 8.
1858, 170, § 2.
Section 16. He shall annually, in December, furnish to each 1
of the insurance companies authorized to do business in this com- 2
monwealth two or more blanks in form adapted for their annual 3
statements. g. s. 58, §7. p. s. 119, §19. i883, 33, §3. 1887, 214, § 16. 4
1888, 199, § 3. 1889, 451, § 8. 1894, 522, § 16. 1897, 65.
Kecord of
proceedings.
1855, 124, § 3.
G. S. 58, § 9.
P. S. 119, § 20.
Annual report
to legislature.
1837. 192, § 5.
1852, 227, §4;
231, § 5; 311,
§14.
1854, 453, § 42.
1855, 124, § 9.
1856, 252, §§ 8,
56.
1857, 40, § 8.
1858, 177, § 2.
G. S. 58, § 10.
1867, 267, § 9.
P. S. 119, § 21.
Section 17. He shall preserve in a permanent form a record of 1
his proceedings, including a concise statement of the result of official 2
examinations of insurance companies. 3
1887, 214, § 17.
1894, 522, § 17.
He shall annually, and as early as is consistent with full and
accurate preparation, make a report to the general court of his
official transactions, and shall include in such report a statement of
the receipts and expenditures of his department for the preceding
year ; a report of the condition of the receiverships of insolvent
companies ; an exhibit of the financial condition and business trans-
actions of the several insurance companies as disclosed by official
examinations of the same or by their annual statements, abstracts
of which statements, with his valuation of life policies, shall appear
therein ; and such other information and comments relative to in-
surance and the public interest therein, as he thinks proper.
4
5
6
7
8
9
10
11
12
13
14
To act in cor-
porate name
only.
1853, 333, § 1.
1854, 453, § 8.
1856, 252, § 5.
G. S. 58, § 24.
Liabilities to
be published
with assets,
etc.
1878, 87, §1.
P. S. 119, § 179.
PROVISIONS COMMON TO ALL COMPANIES.
Section 18. Every insurance company, foreign or domestic, shall 1
conduct its business in this commonwealth in the name by which it 2
is incorporated, and the policies and contracts of insurance issued 3
by it shall be headed or entitled only by such name. 4
P. S. 119, § 178. 1887, 214, § 18. 1894, 522, § 18.
When any such company publishes its assets it shall in the same 5
connection and with equal conspicuousness publish its liabilities 6
computed on the basis allowed for its annual statements, and any 7
publication purporting to show its capital shall exhibit only the 8
amount of such capital as has been actually paid in cash. Such 9
publications shall be held to include all policies, renewals, signs, 10
circulars, cards or other means by which public announcements are 11
made. 12
Chap. 118.] insurance. 1127
1 Section 19. Every such company shall be liable to taxation by Taxation.
2 any general law taxing insurance companies and it shall by its assessment"©!
3 proper officers make to the tax commissioner or other officer of the w£t%5> § 7i
4 commonwealth such returns and statements of its business and if|' ]3f '§§§\32-
5 affairs as the law may require for the purpose of assessment of such 3^ '
6 taxes and thereupon its officers and agents may be examined under iss^ 453; § is!
1856 252 S 7
7 oath by the officer to whom such returns are to be made.
G. S. 58, § 19. 1872, 325, § 5. 1887, 214, § 19.
1871, 297, § 7. P. S. 119, § 45. 1894, 522, § 19.
8 It shall, upon receiving notice of loss by fire upon property in Return to Are
9 this commonwealth on which it is liable under a policy of insur- J^ng."
10 ance, forthwith notify the state fire marshal thereof, and no insur-
11 ance upon any such property shall be paid by any company until
12 one week after it has notified said fire marshal.
1 Section 20. If a company authorized to transact the business swom report
2 of insurance in this commonwealth directly or indirectly contracts ^reinsurance,
3 for or effects any reinsurance of any risk or part thereof taken pJI'.nl' §i52,
4 by it, it shall make a sworn report thereof to the insurance com- ^||> ^ i-
5 missioner at the time of filing its annual statement or at such other 1887^ 214, § 20.
6 time as he may request; and such reinsurance, except so far as it is 1892U7.'
1 RQ4. 1 Q*7 ST*
7 in companies authorized to do business in this commonwealth, shall 522, §20. '
8 not reduce the reserve required of it or the taxes to be paid by it. 1895' 59, § 1-
9 No insurance company shall insure in a single risk a larger amount Limit of single
10 than one-tenth of its net assets ; but a mutual boiler insurance com- 1817,' 120, § 7.
11 pany of this commonwealth may insure in a single risk an amount r. s. 37,"§2i.
12 not exceeding one-fourth of its net assets. i856| 252,' f 15.
G. S. 58, § 32. P. S. 119, § 56. [1 Op. A. G. 25, 315.]
13 Every fire insurance company admitted to do business in this Report of
14 commonwealth shall annually and at such other times as the insur- ^company?7
15 ance commissioner may require, in addition to all returns now by 1898> 537, § L
16 law required of it or its agents or managers, make a return to the
17 insurance commissioner in such form and detail as may be pre-
18 scribed by him, of all reinsurance contracted for or effected by it,
19 directly or indirectly, upon property located in this commonwealth,
20 such return to be certified by the oath of its president and secretary
21 if a company of one of the United States, and, if a company of a
22 foreign country, by its president and secretary or by officers corre-
23 sponding thereto as to reinsurance as aforesaid contracted for or
24 effected through the foreign office, and by the United States man-
25 ager, as to such reinsurance effected by the United States branch.
26 If a company directly or indirectly reinsures a risk taken by it
27 on any property located in this commonwealth in a company not
28 duly authorized to transact business herein, or if it refuses or
29 neglects to make the returns required by this chapter, the insurance
30 commissioner may revoke its authority to transact business in this
31 commonwealth ; but any company authorized to do business in this
32 commonwealth may insure and have full authority to reinsure in
33 unauthorized companies any property located in this commonwealth
34 in respect to which an affidavit has been filed within the twelve
35 months last preceding in accordance with the provisions of section
36 eighty-three, in which case the restrictive provision of this section
37 as to the amount which may be insured in a single risk shall not
38 apply.
1128
INSURANCE.
[Chap. 118.
Limit of risk
by marine
company.
1898, 537, § 3.
[1 Op. A. G.
573.]
An insurance company authorized to do marine business in this 39
commonwealth may take any risk if it reinsures the same, if 40
necessary, so that it does not retain for itself an amount of the 41
risk exceeding ten per cent of its capital and surplus wherever 42
they may be, and if it also places such reinsurance, if possible, at 43
the time and at not over the original rate, with companies author- 44
ized to do marine insurance in this commonwealth ; any amount in 45
excess of what can be so placed may be reinsured with other com- 46
panies, if the company or agent who procures said risk files an 47
affidavit to that effect with the insurance commissioner, at such 48
time and in such form as may be prescribed by him. 49
Misrepresen-
tation by as-
sured not to
avoid policy,
unless, etc.
1878, 157.
P. S. 119, § 181.
1887, 214, § 21.
1894, 522, § 21.
1895, 271.
145 Mass. 426.
Section 21. No oral or written misrepresentation or warranty 1
made in the negotiation of a contract or policy of insurance by the 2
assured or in his behalf shall be deemed material or defeat or avoid 3
the policy or prevent its attaching unless such misrepresentation or 4
warranty is made with actual intent to deceive or unless the matter 5
misrepresented or made a warranty increased the risk of loss. 6
159 Mass. 514.
163 Mass. 108, 117.
164 Mass. 448.
167 Mass. 109.
170 Mass. 224, 27
172 Mass. 503.
173 Mass. 197.
Subject to
general cor-
poration law.
P. S. 105, § 1.
1887, 214, § 22.
1894, 103; 522,
§22.
GENERAL PROVISIONS FOR MASSACHUSETTS COMPANIES.
Section 22. The general provisions of law relative to the powers, 1
duties and liabilities of corporations shall apply to all incorporated 2
domestic insurance companies, so far as such provisions are pertinent 3
and not in conflict with other provisions of law relative to such com- 4
panies or with their charters. 5
continuation Section 23. Domestic insurance companies incorporated by
of corporation. K. . . f . i i,
1875,34. ^ special acts, whose charters are subject to a limitation ot time, shall
1887,' 2 14,' § 23." after such limitation expires continue to be bodies corporate, subject
1894, 522, § 23. ^ ^ generaj ]aws applicable to such companies.
1
2
3
4
Domestic com-
pany to obtain
certificate
before issuing
policies.
1871, 297, § 5.
P. S. 119, § 5.
1887, 214, § 24.
1894, 522, § 24.
Section 24. No domestic insurance company shall issue policies 1
until upon examination by the commissioner, his deputy or examiner, 2
it is found to have complied with the laws of the commonwealth, 3
nor until it has obtained from the commissioner a certificate stating 4
that fact and authorizing it to issue policies. 5
1897, 67, §2. 122 Mass. 90.
— may adopt
by-laws, divide
directors into
classes, etc.
1832, 95, § 5.
R. S. 37, § 8.
1854, 453, § 43.
1856, 252, § 9.
G. S. 58, § 16.
P. S. 119, § 43.
1887, 214, § 25.
1894, 522, § 25.
— secretary
and treasurer
of, to give
bond.
1856, 252, § 9.
— call for
meetings of.
1856, 252, § 9.
Section 25. Such company may adopt by-laws for the conduct 1
of its business and therein may provide for the division of its board 2
of directors into two, three or four classes, and the election thereof 3
at its annual meetings in such manner that the members of one 4
class only shall retire and their successors be chosen each year. 5
Vacancies in any such class may be filled by election by the board 6
for the unexpired term. 7
The secretory and treasurer shall severally give bond with sureties 8
in such sum as the directors may require for the faithful performance 9
of their respective duties. g. s. 58, §17. p. s. 119, §41. 10
All matters proposed to be acted upon at any meeting of the com- 11
pany shall be specified in the call for the same. 12
G. S. 58, § 15.
P. S. 119, § 42.
Chap. 118.] insurance. 1129
13 All investments of the funds of the company shall be made in its Domestic com.
14 corporate name, and no officer of the company and no member of a StVoMote
15 committee thereof charged with the duty of investing its funds shall mm0erporate
16 borrow the same or be directly or indirectly liable for or on account <ffs'.?8%§205,
17 of loans thereof to others; nor shall any director or other officer PS- n^> § ^
18 take or receive to his own use any fee, brokerage, commission, gift officio? to
19 or other consideration for or on account of a loan made by or on i8°5M£.'etc"
20 behalf of such company. p. s. 119, § 47. 141 Mass. 292. ml -55i8' § 21'
21 All policies issued by such company shall be signed by its secre — policies, how
22 tary or, in his absence, by a secretary pro tempore, and by its iSj?i2o?'§ 1.
23 president or vice president or, in their absence, by two directors. iff!'. 37!' §§13
1851, 281, § 9. 1856, 252, § 15. 1864, 113, § 2. 29-
1854, 453, § 7. G. S. 58, § 32. P. S. 119, § 56.
24 Such company shall have its office in the city or town specified in —office for
25 its charter or agreement of association ; and if it establishes agencies cardsfetc., to
26 in other cities or towns, all signs, cards, pamphlets and advertise- tu>nC.lty loca"
27 ments exhibited or issued by them shall specify the city or town H56! 2I2; 1 15'
28 in which the company they represent is located. p. s. 119, § 44. G- s- 58> § 18-
29 Such company shall not engage in buying or selling goods, wares — nottoen-
30 or merchandise, except articles insured by it on which losses are fuffnTssUler
31 claimed, and except in replacing, rebuilding or repairing insured r^s.^'/u.
32 property as provided in its policies, nor engage in any business J||[> |^> | *L
33 other than as specified in its charter or agreement of association and ||5|' 2^|> § *•
34 expressly authorized by law. p. s. 119, § 49.
35 No such company shall hold real estate, except for the convenient ^Sreaf
36 accommodation of its business at a cost not exceeding twenty-five f^f|81 12
37 per cent of its cash assets, and real estate acquired under the con- i872| 375) § 15.'
38 ditions of any mortgage owned by it, or by purchase or set-off on
39 execution upon judgment for debts due it in the course of its legiti-
40 mate business.
1 Section 26. Such company shall not make any condition or —venue and
2 stipulation in its insurance contracts relative to the court or juris- suits.
3 diction wherein any suit thereon may be brought, nor limit the g.°I. 5°82,'§§i96.
4 time within which such suit may be commenced to less than two fm^ujlt
5 years after the cause of action accrues, and any such condition or l894> 522> § 26>
6 stipulation shall be void.
1 Section 27. Mortgages on real estate held by a domestic in- J^a°g?ah^
2 surance company may be attached and taken and sold on execu- ^f0nn°'nexe*
3 tion, in the manner provided in sections ninety to ninety-four, i8oi, 28i, § 22.
4 inclusive, of chapter one hundred and fifteen relative to mortgages i856| 252! § 6. '
5 held by banks, and the secretary of the company shall perform p.' s.* ii9,§§ 48.
6 relative thereto the duties required of cashiers and clerks of banks. 1111; 1-M; | II:
1 Section 28. If any domestic insurance company shall not com — corporate
2 mence to issue policies .within one year after the date of its act cease, when.
3 of incorporation or of its certificate of organization, or if after it has W 252, § 3.
4 commenced to issue policies it shall cease for the period of one year &6s/&?9,§§§i,2.
5 to make new insurance, its corporate powers shall thereby expire, p.7|. ill', |§24,
6 and the supreme judicial court, upon petition of the insurance com- f4fti4,'§88.
7 missioner or of any person interested, may fix by decree the time j8"^522- £28-
8 within which it shall settle and close its affairs. A company incor- in.f'J
1130
INSURANCE.
[Chap. 118.
Domestic com-
pany, invest-
ments of.
1888, 165.
porated by special act shall, within one year after the date thereof, 9
file with the secretary of the commonwealth a written notice of its 10
organization under its charter, or the same shall be void. 11
Nothing in the charter of any domestic mutual life insurance 12
company shall limit the investments of such company unless such 13
limitation is contained in the general insurance laws in force at the 14
time of making the investment. 15
Purposes for
which com-
panies may be
formed.
1872, 375, § 1-.
P. S. 119, § 26.
Loss by fire,
etc.
Loss by
perils of the
sea.
Guaranty of
fidelity, etc.
1884, 296, § 1.
Damage by
steam looiler
explosions.
Accident to
persons and
against lia-
bility for
injury to
employees.
1894, 133, § 1.
1900, 183, § 1.
155 Mass. 404.
Breakage of
plate glass.
1873, 167, § 1.
Damage by
water.
1895, 474, § 1.
— from
accidents to
elevators, etc.
1895, 474, § 1.
Credit insur-
ance.
1896, 447, § 1.
Title insur-
ance.
1884, 180, § 1.
1887, 214, § 62.
1889, 378.
1894, 522, §§ 62,
64.
Burglary, etc.
1900, 92, § 1.
Accidents to
machinery.
1901, 296, § 1.
ORGANIZATION.
Section 29. Ten or more persons residents of this common- 1
wealth may form an insurance company for any one of the following 2
purposes: 1887, 214, § 29. 1894, 133, §1;522, §29. 1895, 474, §1. 1896, 447, § 1. 3
First, To insure against loss or damage to property by fire, 4
lightning, or tempest on land, upon the stock or mutual plan. 5
Second, To insure upon the stock or mutual plan vessels, 6
freights, goods, money, effects, and money lent on bottomry or 7
respondentia, against the perils of the sea and other perils usually 8
insured against by marine insurance, including risks of inland navi- 9
gation and transportation. 10
Third, To guarantee the fidelity of persons in positions of trust, 11
private or public, and to act as surety on official bonds and for the 12
performance of other obligations. 13
Fourth, To insure against loss or damage to property of the 14
assured, or loss or damage to the life, person or property of another 15
for which the assured is liable, caused by the explosion of steam 16
boilers. 17
Fifth, To insure any person against bodily injury or death by 18
accident, or any person, firm or corporation against loss or damage 19
on account of the bodily injury or death by accident of any 20
person for which loss or damage said person, firm or corpo- 21
ration is responsible, and to make insurance upon the health of 22
individuals. 23
Sixth, To insure against the breakage of plate glass, local or in 24
transit. 25
Seventh, To insure against loss or damage by water to any goods 26
or premises arising from the breakage or leakage of sprinklers and 27
water pipes. 28
Eighth, To insure against loss or damage to property arising 29
from accidents to elevators, bicycles and vehicles, except rolling 30
stock of railways. 31
Ninth, To carry on the business commonly known as credit 32
insurance or guaranty, either by agreeing to purchase uncollectible 33
debts, or otherwise to insure against loss or damage from the 34
failure of persons indebted to the assured to meet their liabilities. 35
Tenth, To examine titles of real and personal property, furnish 36
information relative thereto and insure owners and others inter- 37
ested therein against loss by reason of encumbrances and defective 38
title. 39
Eleventh, To insure against loss or damage by burglary, theft or 40
housebreaking. 41
Twelfth, To insure against loss or damage arising from the pre- 42
vention or suspension of the use and occupation of any building, 43
plant or manufacturing establishment, or of any part thereof, due 44
Chap. 118.] insurance. 1131
45 to or caused by the breakage of or accident to engines, boilers,
46 motors, machinery, or by any cause, except fire, not brought about
47 by the act or will of the owners, occupants or users thereof.
48 No such corporation shall transact any business other than that Business
49 specified in its charter or agreement of association, except as pro- lssr.lii, §31.
50 vided in section fifty-six.
1894, 133, § 2; 522, § 31. 1895, 474, § 2. 1896, 447, § 2. 1900, 92, § 2; 183, § 2.
51 Mutual companies organized prior to the twenty-eighth day certain com.
52 of May in the year eighteen hundred and ninety-six to transact ?ontfnu™busi-
53 employers' liability insurance may continue such business under the is96%47, §2.
54 fifth clause of this section, and such companies shall be subject to
55 the laws, so far as applicable, relative to mutual fire insurance com-
56 panies.
1 Section 30. The corporation shall be formed in the manner Formation of
2 described in and be subject to the provisions of sections fifteen to i872^375f§§ni,2.
3 twenty, inclusive, of chapter one hundred and ten, except as herein 1873, 167, § L
4 otherwise expressly provided.
P. S. 119, §§ 26, 27. 1887, 214, § 30. 1894, 522, § 30.
5 The name of the corporation shall be approved by the insurance Name.
6 commissioner.
7 The agreement of association shall state the class of insurance it Agreement of
° , , , .., ,.„ association.
8 proposes to transact and on what business plan or principle ; and it
9 the company does not transact business on the stock plan the amount
10 of its capital stock and the par value of its shares may be omitted.
11 At the first meeting only the directors and such other officers as First meeting.
12 the by-laws require shall be chosen, and the president, secretary and officers" °f
13 such other officers as the by-laws authorize them to choose shall be p7| fl|; f^f:
14 chosen by the directors. 34,
15 The certificate of organization shall be signed and sworn to by certificate of
16 the president, secretary and a majority of the directors, and shall, ist^mT",'
17 with the records of the corporation, be submitted to the insurance p.'s. 119, §35.
18 commissioner instead of the commissioner of corporations, and he
19 shall perform the duties relative thereto required of the commis-
20 sioner of corporations relative to manufacturing corporations.
21 The certificate issued by the secretary under the provisions of
22 section twenty of chapter one hundred and ten shall be modified
23 to conform to the requirements of this section.
24 The fee to be paid to the secretary upon the filing of the certifi- Fee-
25 cate of organization shall be twenty-five dollars.
1 Section 31. Such companies may organize with a capital as Minimum
2 follows : 1872, 375, § 2.
3 Under the first clause upon the stock plan and under the third, liJVi.7' § 2;
4 fourth, fifth, seventh, eighth, ninth, tenth, eleventh or twelfth clause p- s. 119, §§ 29,
5 of section twenty-nine, not less than two hundred thousand dollars. i8S3,33,§4.
1884, 296, § 2. 1887, 214, § 31. 1894, 133, § 2; 522, § 31. 1901, 296, § 2.
6 Under the second clause of said section upon the stock plan, not J|°'§9|.,§2;
7 less than three hundred thousand dollars.
8 Under the sixth clause of said section, not less than one hundred gJ£J||;
9 thousand dollars.
10 If organized under the first clause of said section upon the stock 1888» m-
11 plan to insure only mechanics' tools and apparatus against loss by
12 fire to an amount of not more than two hundred and fifty dollars on
1132
INSURANCE.
[Chap. 118.
1884, 180, § 1.
1887, 214, § 62.
a single risk, not less than twenty-five thousand dollars with shares 13
of a par value of ten dollars each. 14
If organized under the tenth clause of said section, the capital 15
shall not exceed one million dollars. 1894, 522, § 62. 16
Directors, elec-
tion, term.
1832, 95, §§ 3, 5.
R. S. 37, §§ 3,
5,7.
1854, 453, §§ 3, 4.
1856, 252, § 11.
G. S. 58, § 27.
1881, 142, § 1.
P. S. 119, § 51.
1887, 214, § 32.
1894, 522, § 32.
Votes of stock-
holders, etc.
Proxies.
Evidence of
elections.
Directors to
accept in writ-
ing; quorum;
vacancies.
Statement of
transactions.
Elections,
meetings of
stockholders,
1817, 120, § 2.
1819, 46.
1832, 95, j
3-5.
1833, 83.
R. S. 37,
1854, 453, §§ 2, 4.
1,
2-4,
Secretary to
keep list of
stockholders,
etc.
STOCK COMPANIES.
Officers, — their Election and Duties.
Section 32. The board of directors of each domestic stock in-
surance company shall consist of not less than five members, who
shall be chosen by ballot from the stockholders and a majority of
whom shall be residents of the commonwealth. They shall hold
office for one year or for the term provided in its by-laws, as
authorized by the provisions of section twenty-five, and until their
successors are qualified. 1896, 253.
In the choice of directors and at all meetings of the company each
stockholder shall be entitled to one vote for each share he holds not
in excess of one-tenth of the capital. Proxies may be authorized
by written power of attorney, but no officer shall vote as proxy.
The record of the votes made by the secretary or clerk, which shall
show whether the same were cast in person or by proxy, shall be
evidence of all such elections.
The directors before they are qualified to act, shall file with the
secretary a written acceptance of the trust. Not less than four shall
constitute a quorum, and a majority of those in attendance may
transact business. Vacancies in any office may be filled by the
directors or by the stockholders as the by-laws shall provide.
The directors shall at each annual meeting of the company sub-
mit a full statement of the transactions of the company during the
previous year and of its financial condition.
Such companies shall be subject to the provisions of section
fort}r-one, except as herein modified.
No treasurer shall be chosen unless such officer is required by the
by-laws.
Written requests for special meetings shall be signed by owners
of one-fifth part of the capital or by twenty stockholders.
1856, 252, §§ 12, 13.
G. S. 58, §§ 28, 29.
1864, 113, § 1.
P. S. 119, §§ 52, 53.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The secretary shall keep a list of the stockholders and of the 29
number of shares standing in the name of each and a record of 30
all transfers of such shares. 31
Officers liable
for loss, when.
1817, 120, § 4.
R. S. 37, § 18.
1854, 453, § 12.
1856, 252, §§ 14,
16.
G. S. 58, §§ 31,
33.
1864, 29.
P. S. 119, §§ 55,
57.
1887, 214, § 33.
1894, 522, § 33.
10 Gray, 325.
12 Gray, 355.
Personal Liability of Officers.
Section 33. The directors or other officer making or authoriz-
ing an investment or loan in violation of the provisions of the fol-
lowing section shall be personally liable to the stockholders for any
loss caused thereby.
If a company is under liability for losses equal to its net assets,
and the president and directors knowing it make or assent to further
insurance, they shall be personally liable for any loss under such
insurance.
If the directors allow to be insured on a single risk a
larger
amount than the law permits they shall be liable for any loss thereon
above the amount they might lawfully insure.
1
2
3
4
5
6
7
8
9
10
11
Chap. 118.] insurance. 1133
Payment and Investment of Capital.
1 Section 34. The capital stock shall be paid in cash within capital stock,
2 twelve months after date of charter or certificate of organization, paidin?p>ouen
3 and no certificates of full shares and no policies shall be issued & ""fe,
4 until the whole capital is paid in. A majority of the directors shall if3!' 1^ ||-
5 certify on oath that the money has been paid by the stockholders isW^, § 5.
6 for their respective shares and the same is held as the capital of the g. s. 582,'§§3o!"
7 company invested or to be invested as required by the provisions p.l'm.HI'f
8 of this section. Such capital shall be invested only as follows : 1885,308.
1887,214, §34. 1894, 522, § 34. 1896,171. 146 Maes. 224.
9 First, In first mortgages of real estate in this commonwealth, caVfte*ment of
10 not exceeding in all sixty per cent of its capital nor twenty per cent 1817> 120> § 3.
11 thereof in one mortgage. i836,'208.
■•to"©
12 Second, In public funds of the United States or of any of the S 252,' § ii.
13 New England states, New York, Pennsylvania, Ohio, Michigan, p.' f; mS\
14 Indiana, Illinois, Wisconsin and Iowa, and of the District of i^m
15 Columbia, and in the legally authorized bonds of the states of Hlf ' 1^* 124*
16 Minnesota and Missouri. i88s;9o.'
1890 369
17 Third, In the bonds or notes of any city, county or town, or 1894^ 317,' § 21,
18 incorporated district of this commonwealth; or of any city of any i895,'i64.
19 other of the New England states whose net indebtedness as defined
20 in section five of chapter eight does not exceed five per cent of the
21 last preceding valuation of the property therein for purposes of
22 taxation ; or of any county or town of said states, whose net in-
23 debtedness as above defined does not exceed three per cent of such
24 valuation of its taxable property.
25 Fourth, In the legally authorized bonds for municipal purposes
26 and refunding bonds issued to take up at maturity bonds which
27 have been issued for other than municipal purposes, but on which
28 the interest has been fully paid, of any city of more than thirty
29 thousand inhabitants in the states of New York, Pennsylvania,
30 Ohio, Indiana, Illinois, Michigan, Wisconsin, Minnesota, Missouri
31 and Iowa, whose net indebtedness as above defined at the date of
32 such investment does not exceed five per cent of the valuation of
33 its property for assessment of taxes.
34 Fifth, In the first mortgage bonds of any railroad company in- 1838,35.
35 corporated under the authority of any of the New England states ism! 453, §5.
36 whose road is located wholly or in part in the same and which g5s. 582,'§§3l'
37 has earned and paid regular dividends for the two years last pre- ^; f; 116> § 20>
38 ceding such investment, whether such corporation is in possession 1^5, m. ^
39 of and operates its own road or has leased it to another railroad i889| 305! '
40 company ; or in the first mortgage bonds of any railroad so incor- ci. 3'.
41 porated whose road is thus located, guaranteed by any such railroad
42 company which is in possession of and operates its own road ;
43 or in the bonds, stocks or notes of any railroad company incor-
44 porated under the laws of this commonwealth and whose road is
45 located wholly or in part therein and is unencumbered bj' mortgage,
46 and which has paid a dividend of not less than five per cent per
47 annum for two years last preceding such investment; or in bonds,
48 stocks and notes issued according to law of either the Old Colony
49 Railroad Company, the Fitchburg Railroad Company, or the
50 Worcester, Nashua and Rochester Railroad Company. But the
51 term "railroad companies " as here used shall not be construed to
52 include street railway companies.
1134
INSURANCE.
[Chap. 118.
Investment of
capital.
1817, 120, § 3.
R. S. 37, § 10.
1854, 453, § 5.
1856, 252, § 14.
G. S. 58, § 31.
1864, 29.
P. S. 116, § 20,
cl. 4.
1882, 224.
1883, 202.
1886, 95.
1890, 168.
1894, 317, § 21,
Cl. 5.
141 Mass. 522.
151 Mass. 107.
1817, 120, § 3.
R. S. 37, § 10.
1854, 453, § 5.
1856, 252, § 14.
G. S. 68, § 31.
P. S. 119, § 55.
1896, 171.
1887, 196.
1894, .317, § 21.
— in loans to
depositors.
1879, 57.
P. S. 116, § 20,
cl. 5.
1894, 317, § 21,
cl. 6.
— in personal
securities.
1834, 190, § S.
R. S. 36, § 79.
G. S. 57, § 145.
1876, 203, § 9,
P.' S'. 116, § 20,
cl. 6.
1884, 56, 168.
1886, 69.
1894, 317, § 21,
cl. 7.
Sixth, In the stock of a bank incorporated in this common- 53
wealth, or in the stock of a banking association located in the New 54
England states and incorporated under the authority of the United 55
States, or in the stock of a trust company incorporated under the 56
laws of and doing business within this commonwealth, as provided 57
in chapter one hundred and sixteen, or of those trust companies in- 58
corporated as such by special charters granted under the laws of 59
and doing business within this commonwealth, whose special charters 60
require them to provide the same security as prescribed in sections 61
twenty-eight and thirty of said chapter ; but such corporation shall 62
not hold, both by way of investment and as security for loans, more 63
than one-fourth of the capital stock of any bank nor more than 64
thirty-five per cent of its capital in the stock of such trust compa- 65
nies, and shall not so hold more than three per cent of its capital 66
in, nor more than one hundred thousand dollars nor more than 67
one-quarter part of the capital stock of, such trust company. No 68
insurance company shall invest in or loan upon the stock and bonds 69
of any railroad corporation more than one-tenth of its own capital ; 70
nor shall its entire investment in and loans upon all railroad prop- 71
erty and securities exceed one-third of its capital. 72
Seventh, In loans upon the note or notes of a citizen of this 73
commonwealth secured by pledge as collateral of any of the afore- 74
said securities. If the pledged securities are of those specified in 75
the first, second, third or fourth clause, as above, the loan thereon 76
may be of an amount not more than their par value. If the pledged 77
securities are of those specified in the fifth and sixth clauses, the 78
loan thereon shall not exceed their par value nor be more than four- 79
fifths of their market value. 80
Eighth, In the securities named in clause third, paragraphs f, 81
g, h, i, j, of section twenty-six of chapter one hundred and thirteen, 82
and in the note or notes of a citizen of this commonwealth with a 83
pledge as collateral of the securities therein named at no more than 84
the par value thereof. 85
In the securities named in clause third, paragraphs I and m of 86
said section twenty-six. 87
Ninth, In the securities named in clause fourth, paragraphs a, b, 88
c, d, e, f, of said section twenty-six, except that the report re- 89
quired by the provisions of paragraph a of clause fourth shall be 90
made by two members of the board of directors instead of two mem- 91
bers of the board of investment. 92
Tenth, In loans to a depositor of a savings bank or institution 93
of this commonwealth upon his personal note to an amount not 94
exceeding one-half of his deposit, with the deposit and the book 95
of the depositor as collateral security for the payment of such 96
loan. 97
Eleventh, If the capital cannot be conveniently invested in 98
the modes hereinbefore prescribed, not exceeding one-third part 99
thereof may be invested in bonds or other personal securities, 100
payable and to be paid at a time not exceeding one year, with at 101
least two sureties, if the principal and sureties are all citizens 102
of this commonwealth and resident therein : provided, that the 103
total liabilities to such corporation, of a person, or of any part- 104
nership, company or corporation for money borrowed upon personal 105
security, including in the liabilities of a partnership or company 106
Chap. 118.] insurance. 1135
107 not incorporated the liabilities of the several members thereof, shall
108 not exceed five per cent of such capital.
109 Twelfth, In any of the securities in which savings banks may isss, 308.
110 invest their deposits. i896.ni..
111 If such investments by savings banks are limited in respect of
112 their deposits, corresponding limitations shall apply to insurance
113 companies in respect of their capital.
Impairment, Increase and Reduction of Capital.
1 Section 35. If the net assets of the company do not amount impaired capi.
2 to more than three-fourths of its original capital, it may make how!1 '
3 good its capital to the original amount by assessment of its stock. i872| 325) § i.~ '
1875, 27, § 6. P. S. 119, §§ 59-61. 1887, 214, § 35. 1894, 522, § 35.
4 Shares on which such assessment is not paid within sixty days Forfeiture of
5 after demand shall be forfeitable, and may be cancelled by a vote shares-
6 of the directors, and new shares issued to make up the deficiency.
7 If such company shall not, within three months after notice from Authority to
8,i. •• i !•, .,i n • -i do business to
the insurance commissioner, make good its capital as aforesaid, or cease, when.
9 reduce the same as provided in section thirty-seven, its authority to
10 transact new business of insurance shall cease.
1 Section 36. Such company may issue pro rata to its stock- capi?aiseof
2 holders certificates of any portion of its actual net surplus it may jjp, 375, §§ 13,
3 decide to divide, which shall be deemed to be an increase of its 1875,27, §5.
4 capital to the amount of such certificates, and such company may, p.'s'. 119, §§62,
5 at a meeting called for the purpose, vote to increase the amount {sot, 214, § 36.
6 and number of shares of its capital stock, and to issue certificates 1894, 522' § 36-
7 thereof when paid for in full.
8 However the increase is made, the company shall, within thirty -certificate of.
9 days after the issue of such certificates, submit to the insurance
10 commissioner a certificate stating the amount of the increase and
11 the facts of the transaction, signed and sworn to by its presi-
12 dent and secretary and a majority of its directors. If the com-
13 missioner finds that the facts conform to the law he shall indorse
14 his approval thereof; and, upon filing such certificate so indorsed
15 with the secretary of the commonwealth and the payment of a fee
16 of five dollars for filing the same, the company may transact
17 business upon the capital as increased and the commissioner shall
18 issue his certificate to that effect.
1 Section 37. If the capital stock of a company is impaired, ^j^011 0l
2 such company may, upon a vote of a majority of the stock repre- p37!*2^1-^
3 sented at a meeting legally called for that purpose, reduce its capital law, |.^'' f p-
4 stock and the number of shares thereof to an amount not less than
5 the minimum amount required by law. But no part of its assets
6 and property shall be distributed to its stockholders.
7 Within ten days after such meeting the company shall submit to -certificate of.
8 the insurance commissioner a certificate setting forth the pro- p.'s'. 119, §66.
9 ceedings thereof and the amount of such reduction and the assets
10 and liabilities of the company, signed and sworn to by its president,
11 secretary and a majority of its directors. If the commissioner finds
12 that the reduction is made in conformity to law and that it will
1136
INSURANCE.
[Chap. 118.
Company may
transact busi-
ness upon
basis of re-
duced capital,
when.
1875, 27, § 3.
P. S. 119, § 67.
Substitute
certificates of
stock.
1875, 27, § 4.
P. S. 119, § 68.
not be prejudicial to the public, he shall indorse his approval upon
the certificate.
Upon filing the certificate, so indorsed, with the secretary of the
commonwealth, and paying a fee of five dollars for the filing
thereof, the company may transact business upon the basis of such
reduced capital as though the same were its original capital, and its
charter shall be deemed to be amended to conform thereto ; and the
insurance commissioner shall issue his certificate to that effect.
Such company may, by a majority vote of its directors, after
such reduction, require the return of the original certificates of
stock held by each stockholder in exchange for new certificates
which it may issue in lieu thereof for such number of shares as
each stockholder is entitled to in the proportion that the reduced
capital bears to the original capital.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Dividends to
be made only
from surplus,
etc.
1817, 120, § 2.
R. S. 37, § 15.
1856, 252, § 16.
G. S. 58, § 34.
1872, 375, § 17.
1874, 222.
1875, 95.
1877, 36.
1878, 35, §§ 1, 2.
P. S. 119, §§ 69,
70, 72.
1887, 214, § 38.
1891, 289.
1894, 522, § 38.
121 Mass. 524.
Dividends.
Section 38. No stock company shall make a dividend, either 1
in cash or stock certificates, except from its actual net surplus com- 2
puted as required by law in its annual statement ; nor shall any 3
such company which has ceased to do new business of insurance 4
divide any portion of its assets, except surplus, to its stockholders 5
until it shall have performed or cancelled its policy obligations. 6
Any such company may declare and pay, annually or semi-annually, 7
from its surplus, cash dividends to its stockholders of not more 8
than ten per cent of its capital stock in a year ; and if the dividends 9
in any year are less than ten per cent, the difference may be made 10
up in any subsequent year or years from surplus accumulations ; but 11
any such company may pay such dividend as the directors may con- 12
sider prudent out of any surplus that shall remain after charging in 13
addition to all its liabilities, except unearned premiums, an amount 14
equal to the whole amount of premiums on unexpired risks, and de- 15
ducting from the assets all securities and book accounts on which no 16
part of the principal or interest has been paid within the last year 17
and for which foreclosure or suit has not been commenced for col- 18
lection, or which after judgment obtained thereon shall have re- 19
mained more than two years unsatisfied and on which interest shall 20
not have been paid, and also deducting all interest due and unpaid 21
on any property of the company. 22
Issue of
policies.
1835, 147, § 5.
R. S. 37, § 28.
1851, 90.
1854, 453, § 22.
1856, 252, § 39.
1858, 150.
G. S. 58, § 58.
1872, 375, § 10.
1878, 33.
P. S. 119, §§ 38,
86.
1887, 214, § 39.
1894, 300; 522,
§39.
1896, 126.
1897, 62.
MUTUAL FIRE.
Section 39. No policy shall be issued by a purely mutual fire 1
insurance company organized subsequent to the twenty-third day 2
of April in the year eighteen hundred and ninety-four, nor by a 3
mutual fire insurance company with a guaranty capital of less than 4
one hundred thousand dollars, until not less than one million dollars 5
of insurance, in not less than four hundred separate risks upon 6
property located in this commonwealth, has been subscribed for and 7
entered on its books ; except that in any town of less than four 8
thousand inhabitants a company may be formed to insure only 9
dwelling houses, farm buildings and their contents within such 10
town, and may issue policies when fifty thousand dollars of insur- 11
ance has been subscribed for. No policy shall be issued under the 12
Chap. 118.] insurance. 1137
13 provisions of this section until the president and secretary of the
14 company shall have certified under oath that every subscription
15 for insurance in the list presented to the insurance commissioner
16 for approval is genuine, and made with an agreement with every
1 7 subscriber for insurance that he will take the policies subscribed for
18 by him within thirty days of the granting of a license to the com-
19 pany by the insurance commissioner to issue policies. If such
20 officers shall take" a false oath relative to such certificate they shall
21 be guilty of perjury. No officer or other person whose duty it is
22 to determine the character of the risks, and upon whose decision
23 the applications shall be accepted or rejected by a mutual fire in-
24 surance company, shall receive as any part of his compensation a
25 commission upon the premiums, but his compensation shall be a
26 fixed salary and such share of the net profits as the directors may
27 determine. Nor shall such officer or person aforesaid be an em-
28 ployee of any officer or agent of the company.
Members and Elections.
1 Section 40. Every person insured by a mutual fire insurance Members, ana
2 company, shall be a member while his policy is in force, entitled to im, 147, § 6.
3 one vote for each policy he holds, and shall be notified of the time I'sf,'^,^.
4 and place of holding its meetings by a written notice or by an g5I. fl/nl'
5 imprint upon the back of each policy, receipt or certificate of JI72; 230,' 1 1!
6 renewal, as follows : —
P. S. 119, §§ 78, 80. 1887, 214, § 40. 1894, 522, § 40. 8 Allen, 217.
The assured is hereby notified that by virtue of this policy he is a member of
the Insurance Company, and that the annual meetings of said company
are holden at its home office on the day of in each year, at
o'clock.
7 The blanks shall be duly filled in print, and shall be a sufficient
8 notice.
9 A corporation which becomes a member of such company may Representative
10 authorize any person to represent it in such company, and such rep- corporation to
11 resentative shall have all the rights of an individual member. amlmlef.8 of
1851, 170. 1856, 252, § 26. P. S. 119, § 84.
1854, 453, § 16. G. S. 58, § 47.
12 Any person holding property in trust may insure the same in such gn^l'to0-'
13 company, and as such trustee assume the liabilities and be entitled ^fjj*^ a
14 to the rights of a member, but shall not be personally liable upon is43,82.'
-, r -, , , P . G. S. 58, § 59.
15 such contract of insurance. p. s. 119, §85.
16 Members may vote by proxies dated and executed within three voting by
17 months and returned and recorded on the books of the company ¥£$£ 147, § 3.
18 three days or more before the meeting at which they are to be used ; ^"lis^Ts.
19 but no person shall as attorney or otherwise cast more than twenty ijp, 252, §§ 28,
20 votes, and no officer or agent shall himself or by another ask for, g. s.58,§§43,
21 receive, procure to be obtained or use a proxy to vote. I862,i8i,§5.
1872, 230, § 1. 1879, 58. P S. 119, §§ 79, 80, 82.
22 Every such company shall elect by ballot a board of not less than Rectors,
23 seven directors, who shall manage and conduct its business and who term,°eto,
24 shall hold office for one year or for such term as the by laws may UG™?>m-
25 provide, in accordance with the provisions of section twenty-five,
26 and until their successors are qualified.
1138
INSURANCE.
[Chap. 118.
Directors,
eligibility of.
- quorum.
— vacancies.
Two-thirds at least of the directors shall be citizens of this com- 27
monwealth and, after the first election, members only shall be eligi- 28
ble, but no director shall be disqualified from serving the term for 29
which he was chosen by reason of the expiration or cancellation 30
of his policy : provided, that in companies with a guaranty capital 31
one-half of the directors shall be chosen by and from the stock- 32
holders. 33
Five or more of the directors shall constitute a quorum for the 34
transaction of business by the vote of a majority of those in attend- 35
ance. 36
Vacancies in any office may be filled in such manner as the by- 37
laws shall provide. 38
Election of
officers.
1835, 147, § 4.
R. S. 37, §§ '26,
27.
1851, 157.
1856, 252, §§ 24,
25, 37.
Special meet-
ings.
Officers to be
sworn, etc.
Secretary to
keep record
of proceedings,
etc.
Powers and Duties of Officers.
Section 41 . The directors shall annually choose by ballot a pres-
ident, who shall be a member of the board, a secretary, a treasurer,
who may also be either the president or secretary, and such other
officers as the by-laws provide. g. s. 58, §§ 44-46.
P. S. 119, §§ 81-83. 1887, 214, § 41. 1894, 522, § 41. 8 Allen, 217.
They may call special meetings of the members of the corporation,
of which each member shall have such notice as the by-laws provide,
and shall call such meetings upon the written request of twenty
members or of the owners of one-fifth of the guaranty capital, stating
the purpose thereof.
The president, the vice president, if any, and the secretary and
treasurer shall be annually sworn, and their oaths be entered
of record in the books of the corporation. The president or, in
his absence, the vice president shall preside at all meetings of the
directors or members. In the absence of both, a president pro
tempore may be chosen.
The secretary shall keep a record of the votes, whether cast in
person or by proxjr, and the other proceedings of all meetings of the
directors and of the members ; a true list of the holders of the guar-
anty capital, if any, the number of shares owned by each, and a
record of all transfers of such shares ; and shall record all policies
issued and all authorized assignments, transfers and cancellations
thereof; and such other books and records as the president and
directors may require. The records so kept shall be evidence of the
transactions to which they relate, and for making any wilfully false
record the secretary shall be deemed guilty of perjury. Such
records shall be open to the inspection of any person interested
therein.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Guaranty capi-
tal of mutual
fire insurance
companies.
1872, 375, § 11,
cl. 1; 375, §19.
1873, 177.
1877, 175, § 1.
1879, 52.
P. S. 119, § 74.
1887, 214, § 42.
1890, 26.
1594, 522, § 42.
1595, 190.
142 Mass. 403.
Companies with a Guaranty Capital.
Section 42. A mutual fire insurance company may be formed 1
with, or an existing mutual fire insurance company may establish, a 2
guaranty capital of not less than twenty-five thousand dollars nor 3
more than two hundred thousand dollars, divided into shares of one 4
hundred dollars each, which shall be invested in the same manner 5
as is provided for the investment of the capital stock of certain in- 6
surance companies by section thirty-four. The stockholders of the 7
guaranty capital of a company, acquired under the provisions of the 8
Public Statutes of this commonwealth, or of any acts subsequent 9
Chap. 118.] insurance. 1139
10 thereto, shall be entitled to a semi-annual dividend of not more than
11 three and one-half per cent on their respective shares if the net
12 profits or unused premiums left after all expenses, losses and liabili- toriosi^etc
13 ties then incurred, with the reserve for reinsurance, are provided i87|, 375, §' n, "
14 for, shall be sufficient to pay the same. The guaranty capital shall p." s'. 119, § 75.
15 be applied to the payment of losses only when the company has
16 exhausted its cash in hand and the invested assets, exclusive of
17 uncollected premiums, and when thus impaired, the directors may
18 make good the whole or any part of it by assessments upon the
19 contingent funds of the company at the date of such impairment.
20 Shareholders and members of such companies shall be subject to the Right of share-
21 same provisions of law relative to their right to vote as apply members to
22 respectively to shareholders in stock companies and policy holders Jsn,'^,'^ n
23 in purely mutual companies ; and said guaranty capital shall be re- ^9-g 119 §76
24 tired when the permanent fund of the company equals two per cent
25 of the amount insured upon all policies in force ; and said guaranty Reduction or
26 capital may be reduced or retired by vote of the policy holders of guaranty tof
27 the company and the assent of the insurance commissioner, if the caPitaL
28 net assets of the company above its reinsurance reserve and all
29 other claims and obligations, exclusive of guaranty capital, for two
30 years last preceding and including the date of its last annual
31 statement, shall be not less than twenty-five per cent of the guaranty
32 capital. Due notice of such proposed action on the part of the com-
33 pany shall be mailed to each policy holder of the company not less
34 than thirty days before the meeting when such action may be taken,
35 and shall also be advertised in two papers of general circulation,
36 approved by the insurance commissioner, not less than three times a
37 week for a period of not less than four weeks before said meeting.
38 No insurance company with a guaranty capital, which has ceased to
39 do new business, shall divide among its stockholders any part of its
40 assets or guaranty capital, except income from investments, until it
41 shall have performed or cancelled its policy obligations.
Permanent Fund.
1 Section 43. Mutual fire insurance companies may continue to Accumuia^
2 hold as a permanent fund the net profits, and such companies with permanent
3 a guaranty capital the special reserve, already set apart as provided 1877,198, §§3, 5.
4 by law. If such fund of any such company is less than two per us^aX'f is.'
5 cent of its insurance in force, or if such company has no such fund, jfgj fS^ 5 tt.
6 the directors may annually set apart not exceeding twenty per cent
7 of the net profits of the preceding year for an addition to or to
8 establish such fund until said limit of two per cent has been
9 reached. Such fund shall be held for the security of the insured
10 and shall be subject to the provisions of law relative to the invest-
11 ment of the capital stock of insurance companies on the stock plan.
12 The permanent fund so accumulated shall be used for the payment
13 of losses and expenses when the cash funds of the company in excess
14 of an amount equal to its liabilities, including guaranty capital, are
15 exhausted ; and when the said fund is drawn upon, the reservation
16 of profits as aforesaid may be renewed or continued until the limit of
17 accumulation as herein provided is reached. The income of the per-
18 manent fund shall be included annually in the cash receipts of the
19 company ; but the provisions of this section shall not affect the
1140
INSURANCE.
[Chap. 118.
rights existing on the fifteenth day of February in the year eighteen 20
hundred and ninety of holders of policies in companies having a 21
guaranty capital. 22
Dividends and
assessments.
1835, 147, § 12.
B. S. 37, § 33.
1854, 453, § 21.
1856, 252, § 30.
G. S. 58, § 51.
1863, 249, § 6.
P. S. 119, § 97.
1887, 214, § 44.
1890, 26.
1894, 522, § 44.
1897, 197, § 1.
9 Allen, 319.
165 Ma6S. 565.
6 Gray, 77.
112 Mass. 192.
Dividends and Assessments.
Section 44. The directors of any mutual fire insurance company
may, from time to time, by vote, fix and determine the amount to
be paid as a dividend upon policies expiring during each year. In
the year nineteen hundred and five, and at the expiration of each
term of five years thereafter, the directors shall, subject to the pro-
visions of the preceding section, apportion as an extra dividend,
according to their best judgment, proportionately to the holders of
policies which have expired during the preceding five year period
the entire remaining net profits. Any such dividends declared
subsequent to the thirty-first day of December in the year eighteen
hundred and ninety-nine, and remaining uncalled for at the expira-
tion of the five year period in which such dividends are declared,' 12
shall be forfeited to the company. Each policy holder shall be 13
liable to pay his proportional part of any assessments which may be 14
laid by the company in accordance with law and his contract, on 15
account of losses and expenses incurred while he was a member, 16
if he is notified of such assessment within one year after the 17
expiration of his policy. Mutual companies which make at least 18
annually an entire apportionment and division of earnings or profits 19
shall not be subject to the provisions of this or the preceding sec- 20
tion, except the provision relative to the assessment of members. 21
1
2
3
4
5
6
7
8
9
10
11
Premium to be
charged, and
contingent
liability.
1876, 120, $ 3.
P. S. 119, § 97.
1887, 214, § 45.
18©4, 522, § 45.
165 Mass. 565.
Section 45. Mutual fire insurance companies, except as pro- 1
vided in the following section, shall charge and collect upon their 2
policies a full mutual premium in cash, or notes absolutely payable. 3
Any such company may in its by-laws and policies fix the contin- 4
gent mutual liability of its members for the payment of losses and 5
expenses not provided for by its cash funds ; but such contingent 6
liability of a member shall not be less than an amount equal to and 7
in addition to the cash premium written in his policy. The total 8
amount of the liability of the policy holder shall be plainly and 9
legibly stated upon the back of each policy. Whenever any reduc- 10
tion is made in the contingent liability of members such reduction 11
shall apply proportionally to all policies in force. 12
S76°i2oTu82 Section 46. Mutual fire insurance companies organized prior 1
1877! las', §§ i\ 2, to the twenty-first day of May in the year eighteen hundred and 2
p\s. 119, §§ ii3- eighty-seven and now lawfully doing business upon the plan of 3
taking deposit notes for a percentage of the amount insured by its 4
policies, and making a call or assessment thereon for the payment 5
of losses and expenses as the same are incurred, may continue 6
such system of business, and such deposit notes shall constitute 7
the entire liability of their members. 8
115
1887, 214, § 46.
1894, 522, § 46.
[1 Op. A. G.
158.]
Assessments.
Assessments. Section 47. If a mutual fire insurance company is not pos- 1
r. s. 37,'§ 31. sessed of cash funds above its reinsurance reserve, sufficient for 2
i85e! 252^ §§ 27, the payment of incurred losses and expenses, it shall make an 3
Chap. 118.] insurance. 1141
4 assessment for the amount needed to pay such losses and expenses g.s.58,§§48,
5 upon its members liable to assessment therefor > in proportion to 1877, m
6 their several liability. p. s. iw, §§ aj,
7 The company shall cause to be recorded in a book kept for that Jill; Hi', § %'
8 purpose the order for such assessment, with a statement which fo^Iy^aV2*0'
9 shall set forth the condition of the company at the date of the 1 jH}en''235-
10 order, the amount of its cash assets and of its deposit notes or other 9 Alien,' 319,
11 contingent funds liable to the assessment, the amount the assess- 10 Alien, 110.
12 ment calls for and the particular losses or other liabilities it is made 11I Mass. 116,
13 to provide for. Such record shall be made and signed by the i69'Ma08's!9|o'8.
14 directors who voted for the order, before any part of the assessment in Mass- 484-
15 is collected, and any person liable to the assessment may inspect
16 and take a copy of the same.
1 Section 48. If by reason of depreciation or loss of its funds Alternative
2 or otherwise the cash assets of such a company, after providing for premium
3 for its other debts, are less than the required premium reserve pXory and"
4 upon its policies, it shall make good the deficiency by assess- i^^'g 4.
5 ment in the mode provided in the preceding section ; or if the ^7 '214 '§48°'
6 directors are of the opinion that the company is liable to become J?K, 522' %^-
. • i p 1 , -i 112 Mass. 116.
7 insolvent they may, instead 01 such assessment, make two assess-
8 ments, the first determining what each policy holder must equitably
9 pay or receive in case of withdrawal from the company and having
10 his policy cancelled, the second what further amount each must pay
1 1 in order to reinsure the unexpired term of his policy at the same rate
12 as the whole was insured at first. Each policy holder shall pay or
13 receive according to the first assessment, and his policy shall then
14 be cancelled, unless he pays the amount further determined by the
15 second assessment, in which case his policy shall continue in force ;
16 but in neither case shall a policy holder receive or have credited
17 to him more than he would have received on having his policy
18 cancelled by vote of the directors, under the by-laws.
19 If within two months after such alternative assessments have company to
20 become collectible the amount of the policies whose holders have whin. u,r'"'(,w-
21 settled for both assessments is less than five hundred thousand p.6l'.n9,§ib6.
22 dollars, the company shall cease to issue policies ; and all policies
23 whose holders have not settled for both assessments shall be void,
24 and the company shall continue only for the purpose of adjusting
25 the deficiency or excess of premiums among the members, and
26 settling outstanding claims.
27 No assessment shall be valid against a person who has not been Members to be
28 duly notified thereof within one year after the expiration or cancel- assessment.
29 lation of his policy. And when an assessment is ordered the g5!'.2582/§§54.'
30 directors shall forthwith cause written notice and demand for pay- p^l.ng^^.
31 ment to be made upon each person subject thereto, by mail or isw.w,' §2.
32 personal service.
1
2
Section 49. If the directors by authority of statute make an supreme
assessment or call on the members for money, or vote that there mayCorde?,ur
3 exists a necessity for such assessment or call, tney or any person ment in certain
4 interested in the company as an officer, policy holder or creditor, gg'i^j L
5 may apply to the supreme judicial court for any county, by a *§*•**»• |§;
6 petition in the nature of a bill in equity, praying the court to uraj 379! ^
7 examine such assessment or call, the necessity therefor, and all i887,-2i4,'§49. '
1142
INSURANCE.
[Chap. 118.
1894, 522, § 49.
112 Mass. 142.
169 Mass. 408.
Assessments
in certain
cases, notice
and proceed-
ings.
1862, 181, § 2.
1864, 161, § 2.
1872, 379.
P. S. 119, § 102.
— auditor to
appoint time
and place of
hearing, give
notice, etc.
1862, 181, § 2.
1863, 249, §§ 3, 5.
1864, 161, § 2.
1872, 379.
P. S. 119, § 103.
112 Mass. 192.
171 Mass. 484.
— decree and
effect thereof.
1862, 181, § 3.
1864, 161, § 2.
1372, 379.
P. S. 119, § 104.
11 Allen, 574.
— cost of pro-
ceedings, etc.
— stay of col.
lection.
1863, 249, § 3.
1864, 161, § 1.
P. S. 119, § 105.
matters connected therewith, and to confirm, amend or annul the 8
assessment or call, or to order that the same be made as law and 9
justice may require ; but if an application is made by any party 10
except the corporation, or a receiver, or the insurance commis- 11
sioner, the court may decline to exercise jurisdiction thereof. If 12
the directors unreasonably neglect to make an assessment or cail IS
to satisfy an admitted or ascertained claim upon the company, 14
any judgment creditor, or any person holding such claim, or the 15
insurance commissioner, may make the application to the court. 16
Upon such application, if made by the directors, or upon an order 17
of the court, if made by any other person, the directors shall set 18
forth the claims against the company, its assets, and all other facts 19
and particulars appertaining to the matter. 20
The court before which such petition is filed shall order notice to 21
be given by publication or otherwise to all parties interested and, 22
upon the return thereof, shall examine the assessment or call, or the 23
necessity therefor, and all matters connected therewith. Any parties 24
interested may appear and be heard thereon. All questions that 25
arise shall be heard and determined as in other equity cases. 26
The application shall be referred to an auditor, who shall appoint 27
a time and place to hear all parties interested, and shall give personal 28
notice thereof in writing to the insurance commissioner, and through 29
the post office, so far as he is able, to all persons liable upon said 30
assessment or call. The auditor shall hear the parties, and report 31
upon the correctness of the assessment or call, and all matters con- 32
nected therewith. The court may confirm, amend or annul the 33
assessment or call, or order one to be made ; and may make such 34
orders and decrees as under all the circumstances justice and equity 35
require. If the assessment or call is altered or amended, or one is 36
ordered to be made, the directors shall forthwith proceed to vote 37
the same in legal form, and the record of such vote shall be set 38
forth in a supplemental bill or answer. 39
When an assessment or call has been so confirmed, ascertained or 40
established, a decree shall be entered which shall be final and conclu- 41
sive upon the company and all persons liable to the assessment or 42
call, as to the necessity of the same, the authority of the company 43
to make or collect the same, the amount thereof, and all formalities 44
connected therewith. An assessment or call altered or amended by 45
vote of directors and decree of the court thereon shall be binding 46
upon all parties who would have been liable under it as originally 47
made, and in all legal proceedings shall be held to be such original 48
assessment or call. All such proceedings shall be at the cost of the 49
company, unless the court for cause otherwise orders ; and in all 50
cases the court may control the disposition of the funds collected 51
under such proceedings. 52
If the court finds that the net proceeds of any assessment or call 53
will not be sufficient to furnish substantial relief to those having 54
claims against the company, it may decree that no assessment shall 55
be collected ; and if, upon the application of the insurance commis- 56
sioner or a member of the company, or of any person interested, 57
the court is of opinion that further attempts to collect an assessment 58
then partially collected will not benefit those having claims against 59
the company, it may stay the further collection of said assessment. 60
Chap. 118.] insurance. 1143
Personal Liability of Officers.
1 Section 50. No director or other officer of a mutual fire in- officer to give
2 surance company shall either officially or privately give a guaranty agafnsttssess-
3 to a policy holder thereof against an assessment to which he would Seo.W
4 otherwise be liable. 1887, 214, § 50. 1894, 522, § 50. p. s'. 119, § 108.
5 If the directors of any such company neglect or omit for six Directors
6 months to lay and collect with all practicable diligence any assess- i^Iu^T
7 ment they are required to make by the provisions of the two pre- p' S- 119' § m
8 ceding sections, they shall be personally liable for all debts and
9 claims then outstanding against the company, or that may accrue
10 until such assessment is laid and put in process of collection.
11 If the treasurer of such company unreasonably neglects to collect Treasurer
x •/ ^ j o liable, wncn.
12 an assessment made by order of the directors, and to apply the 1835,147, §9.
~R S 37 6 33
13 same to the payment of the claims for which it was made, he ism,' 453, §19.
14 shall be personally liable to the person having such claims, for the g. s'. 58,'§ 49.'
15 amount of the assessment; and he may repay himself out of any p- s- 119» § 112-
16 money afterward received for the company on account of said
17 assessment.
18 If sufficient property of any such company cannot be found j^ab1et0when
19 to satisfy an execution issued against it, and it has property y® |> ^-M-
20 belonging to the period assessed, the proceeds of which can be i854,'453, § is.
21 applied to satisfy such execution, if the directors neglect to pay the g. s. 58,' § 48.'
22 same, or neglect for thirty days after the rendition of judgment to 103 Mass. 551. '
23 make an assessment and deliver the same to the treasurer for collec-
24 tion, or to apply such assessment when collected to the payment of
25 the execution, they shall be personally liable for the amount of the
26 execution.
27 If the directors of any such company are liable to pay an ex- Remedy of
28 ecution against it, the creditor may recover the same by a suit in crefnoTand
29 equity or by an action at law against the directors. The director f^u*', § 10.
30 who pays an execution against the company for which he is person- Rs.37, §§34,
31 ally liable may sue in equity for contribution any of the directors ^;|§;f|j;
32 for their proportion, and also the company or the individual mem- ^•|-^'i5n1
33 bers thereof to the extent of their several liability to assessment 106 Mass. 344. '
34 therefor.
Limit of Risks.
1 Section 51. Mutual fire insurance companies may insure prop- Location of
2 erty in any of the New England states, New York, New Jersey and Slsf'uj, § 5.
3 Pennsylvania. Such companies which have a guaranty capital or Hk.'ioi.'iliT.
4 which insure manufacturing as well as other property may make Jg *™« | ^
5 insurances upon property located in any part of the United States <f l.fg'^8;
6 or in Canada.
1872,375,§11. 1877, 198, §6. 1886,222. 1893,54.
1875,59. P. S. 119, §88. 1887, 214, § 51. 1894, 522, § 51.
MUTUAL MARINE AND MUTUAL EIRE AND MARINE.
1 Section 52. A mutual marine insurance company organized *0^™n£fts0ne
2 under the provisions of this chapter shall have an agreement under Jgjgg™^
3 the seal of each subscriber thereto, substantially as follows : biiity fund.'
1851, 281, § 15. 1856, 252, § 18. 1868, 317, § 3. 1887, 214, § 52.
1854', 453; § 25! G. S. 58, § 35. P. S. 119, §§ 116, 117. 1894, 522, § 52.
1144
INSURANCE.
[Chap. 118.
The subscribers severally agree to pay to the Insurance Company on
demand the whole or such part of the amounts set against our names as may be
called from time to time for the use of said company in the payment of its losses
and expenses not otherwise provided for.
Policies of
mutual marine
companies.
Amount of
subscriptions
to be kept
good.
Dividends and
reimburse-
ment.
Net profits to
be divided.
1852, 137, §§1,2.
G. S. 58, §§ 40,
41.
P. S. 119, §§ 125-
127.
Limit of
accumulation
of profits.
Such company shall not issue policies until the amount of three 4
hundred thousand dollars, which shall be the total of such subscrip- 5
tions, shall have been so subscribed, and a certificate signed by the 6
president and a majority of the directors, certifying that the sub- 7
scribers are known to them and that they believe them to be solvent 8
and able to pay their subscriptions, has been deposited with and 9
approved by the insurance commissioner. If a subscriber dies 10
or becomes insolvent his subscription shall be cancelled, and if the 11
amount of the subscription fund is thereby or otherwise reduced, 12
the deficiency shall be made good by new subscriptions certified in 13
the same manner as the original. Subscribers shall be entitled to 14
annual dividends of two per cent upon the amount of their sub- 15
scriptions from the profits of the company, and shall also be re- 16
imbursed from future profits for all amounts of money they may pay 17
the company for its uses under their agreement, with lawful interest 18
thereon. 19
The net profits or divisible surplus of such companies shall be an- 20
nually divided among the insured whose policies terminated within 21
the year, in proportion to the contribution of each to such profits or 22
surplus, and such dividends shall be made only in scrip certificates 23
payable only out of the accumulation of net profits or surplus, which 24
accumulation shall constitute and be kept and invested by the com- 25
pany as a separate fund in trust for the redemption of such scrip 26
certificates and the contingent payment of losses and expenses as 27
herein provided. Such certificates until redeemed shall be subject 28
to future losses and expenses of the company and to be reduced 29
if the redemption fund is drawn upon for the payment of such 30
losses and expenses. But no part of the redemption fund shall be 31
used for the payment of losses or expenses unless the cash assets of 32
the company are insufficient therefor and except to the extent of 33
the deficiency ; and if any portion thereof shall be used for such 34
payment, the outstanding certificates shall be reduced in proportion, 35
so that the redemption fund shall at all times equal the amount of 36
the unredeemed certificates. The net income of the redemption 37
fund shall be divided annually among the holders of its certificates ; 38
or the company may make such certificates with a specific rate of 39
interest payable from the income of its invested funds. As such 40
profits accumulate and are invested, subscriptions of an equal amount 41
shall be cancelled. The maximum of such accumulation of profits 42
shall be three hundred thousand dollars, and all excess of profits 43
above said amount shall be applied annually to the payment of the 44
certificates in the order of their issue. The certificates shall be 45
forthwith payable when the company shall cease to issue policies and 46
the fund is no longer liable to be drawn upon for the payment of 47
losses. 48
pan^subTect Section 53. A mutual marine and a mutual fire and marine 1
visions of the" msurance company organized prior to the twenty-first day of May 2
Public statutes, in the year eighteen hundred and eighty-seven under any law of this 3
Chap. 118.] insurance. 1145
4 commonwealth shall remain subject to the provisions applicable to 1887, 214, § 53.
5 each contained in sections one hundred and seventeen to one '
6 hundred and thirty, inclusive, of chapter one hundred and nineteen
7 of the Public Statutes, notwithstanding the repeal of said chapter.
8 Any such company may redeem its certificates of dividends of profits Redemption of
9 when its permanent fund has been paid in cash and invested and certlficates-
10 its surplus is sufficient for the purpose. The shareholders of the Reduction of
11 permanent fund of any such company shall be entitled to not more dmdends-
12 than five per cent semi-annual dividends thereon.
1 Section 54. All domestic mutual marine insurance companies companies
2 shall be subject to the provisions of sections forty and forty-one, and to §§%1>UaTd4i,
3 each subscriber to the permanent fund, or agreement specified in fssi, 281, §§ 2-8.
4 section fifty-two, of any such company shall be a member thereof ilJe' £52' 1 19'
5 during the term of his subscription and entitled to one vote. g. s'.58,'§36.'
c p. s. 119, § 121.
1887, 214, § 54. 1894, 522, § 54.
Personal Liability of Officers.
1 Section 55. If a subscriber to the permanent fund or agreement For certifying
2 of a mutual marine or mutual fire and marine insurance company 185i, asi. § w.
• • • 1856 ^52 6 ^0
3 fails to pay his subscription or any assessment thereon, and it is g. s*. 58,'§ 37.'
4 proved that the president or a director certified falsely in regard to Ssf.^H.'f 55?"
5 such subscriber, the person certifying shall be liable to the company ¥okr£y,l£i.'
6 for such amount as the subscriber fails to pay. 12 Gray, 355.
7 If any such company is at any time liable for losses beyond the For over.
8 amount of its net assets the president and directors shall be person- issiTIsi?! 19.
9 ally liable for all losses on insurance effected while the company g5I. lf,'§§38!'
10 was in such condition. p. s. 119, § 123.
FIRE INSURANCE.
1 Section 56. All insurance companies authorized to transact fire Powers, etc.,
2 insurance business in this commonwealth may, in addition to the i896?uo.ame8"
3 business which they are otherwise authorized by law to do, insure [?9op! a^g1."
4 sprinklers, pumps and other apparatus erected or put in position 540^
5 for the purpose of extinguishing fires, against damage, loss or
6 injury resulting from accidental causes, other than fire ; and may
7 also insure any property which such companies are authorized to
8 insure against loss or damage by fire, against damage, loss or injury
9 by water or otherwise, resulting from the accidental breaking of or
10 injury to such sprinklers, pumps or other apparatus, arising from
11 causes other than fire ; and may also insure property against loss by
12 bombardment. Contracts of insurance of these kinds shall not be
13 incorporated in any contract of insurance against loss or damage by
14 fire, but shall be contained in separate and distinct policies. The
15 conditions of such policies, except policies of bombardment insur-
16 ance, shall be prescribed by the insurance commissioner.
1 Section 57. No insurance company shall knowingly issue any over-insur-
2 fire insurance policy upon property within this commonwealth for bfdden.r"
3 an amount which with any existing insurance thereon exceeds the r?|.W'§5268.
4 fair value of the property, nor for a longer term than seven years. Hi|; |||; | lf;
1861,189. 1878, 132, §1. 1887, 214, § 57. 9 Met. 210. G. S*. 58,' § 24.
1875,72, §1. P. S. 119, §§ 136, 178. 1894, 522, § 57. 10 Met. 215.
1146
INSURANCE.
[Chap. 118.
Liability for
Are losses
limited.
1898, 571.
If buildings insured against loss by fire, and situated within this 5
commonwealth, are totally destroyed by fire, the company shall 6
not be liable beyond the actual value of the insured property at the 7
time of the loss or damage ; and if it shall appear that the insured 8
has paid premiums on an amount in excess of said actual value, 9
the assured shall be reimbursed the proportionate excess of pre- 10
miums paid on the difference between the amount named in the 11
policy and said actual value, with interest at six per cent per 12
annum from the date of issue ; and said excess of premiums and 13
interest thereon shall be allowed the insured from the time any 14
company or companies carrying said insurance at the time of the 15
loss have continuously carried the insurance on the destroyed 16
building or buildings, whether under policies existing at the time 17
of the loss or under previous policies in the same company or 18
companies. 19
Payment to
mortgagees
protected by
policies.
1878, 132, § 2.
P. S. 119, § 137.
1887, 214, § 58.
1894, 522, § 58.
168 Mass. 147.
Section 58. If by an agreement with the insured or by the
terms of a fire insurance policy taken out by a mortgagor the
whole or any part of the loss thereon is payable to a mortgagee or
mortgagees of the property or for their benefit, the company shall,
upon satisfactory proof of the rights and title of the parties, in
accordance with such terms or agreement, pay all mortgagees
protected by such policy in the order of their priority of claim as
their claim shall appear, not beyond the amount for which the
company is liable, and such payment shall be to the extent thereof
payment and satisfaction of the liability of the company under such
policy.
1
2
3
4
5
6
7
8
9
10
11
Applications
and by-laws
not warranties,
except.
1861, 152.
1864, 196.
1881, 166.
P. S. 119, § 138.
1887, 214, § 59.
1894, 522, § 59.
Section 59. In all insurance against loss by fire the conditions 1
of insurance shall be stated in full, and neither the application of the 2
insured nor the by-laws of the company shall be considered as a 3
warranty or a part of the contract, except so far as they are in- 4
corporated in full into the policy. 7 Alien, 42, 132. 98 Mass. 420. 5
105 Mass. 298.
118 Mass. 393.
120 Mass. 254.
145 Mass. 426.
163 Mass. 112.
165 Mass. 462.
170 Mass. 277.
172 Mass. 280.
Standard form
of fire policy
to be used,
except.
1873, 331, §§ 1, 2.
1S80, 175, § 1.
1881, 166, §§ 1, 3.
Name, loca-
tion, etc.
Section 60. No fire insurance company shall issue fire insur-
ance policies on property in this commonwealth, other than those
of the standard form herein set forth, except as follows :
P. S. 119, § 139.
1887, 214, § 60.
1894, 522, § 60.
Printed forms
of description.
Lightning
clause.
1880, 175, § 2.
First, A company may print on or in its policies its name,
location and date of incorporation, the amount of its paid up capital
stock, the names of its officers and agents, the number and date of
the policy, and, if it is issued through an agent, the words " This
policy shall not be valid until countersigned by the duly authorized
agent of the company at ."
Second, A company may print or use in its policies printed
forms of description and specification of the property insured.
Third, A company insuring against damage by lightning may
print, in the clause enumerating the perils insured against, the
additional words ' ' Also any damage by lightning, whether fire
ensues or not", and, in the clause providing for an apportionment
of loss in case of other insurance, the words "whether by fire,
lightning or both".
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Chap. 118.] insurance. 1147
18 Fourth, A company incorporated or formed in this common- sundry
19 wealth may print in its policies any provisions which it is authorized Provisions-
20 or required by law to insert therein ; and any company not incor-
21 porated or formed in this commonwealth may, with the approval
22 of the insurance commissioner, so print any provision required by
23 its charter or deed of settlement, or by the laws of its own state or i
24 country, not contrary to the laws of this commonwealth ; but the
25 insurance commissioner shall require any provision which, in his
26 opinion, modifies the contract of insurance in such way as to affect
27 the question of loss, to be appended to the policy by a slip or rider
28 as hereinafter provided.
29 Fifth, The blanks in said standard form mav be filled in print Blanks filled
nn ... J r in print or
30 or writing. writing.
31 Sixth, A company may print upon policies issued in compliance "Massacnu-
32 with the preceding provisions of this section the words " Massachu- Poifcy^u^df
33 setts Standard Policy."
34 Seventh, A company may write upon the margin or across the other provi-
35 face of a policy, or write, or print in type not smaller than long fi°op.A.G.
36 primer, upon separate slips or riders to be attached thereto, pro- i°4>431-]
37 visions adding to or modifying those contained in the standard
38 form ; and all such slips, riders and provisions must be signed by
39 the officers or agent of the company so using them.
40 Said standard form of policy shall be plainly printed, and no Poiicytobe
41 portion thereof shall be in type smaller than long primer, and shall printed, etc.
42 be as follows :
No. $
[Corporate name of the company or association ; its principal place or places Standard farm
of business.] of policy.
This company shall not be liable beyond the actual value of the insured prop-
erty at the time any loss or damage happens.
In consideration of dollars to it paid by the insured, hereinafter named,
the receipt whereof is hereby acknowledged, does insure and legal
representatives against loss or damage by fire, to the amount of dollars.
(Description of property insured.)
Bills of exchange, notes, accounts, evidences and securities of property of Property not
every kind, books, wearing apparel, plate, money, jewels, medals, patterns, policy. 7
models, scientific cabinets and collections, paintings, sculpture and curiosities are
not included in said insured property, unless specially mentioned.
Said property is insured for the term of , beginning on the day Term,
of , in the year nineteen hundred and , at noon, and continuing until 189°' 59> $ 3*
the day of , in the year nineteen hundred and , at noon, against
all loss or damage by fire originating from any cause except invasion, foreign Perils insured
enemies, civil commotions, riots, or any military or usurped power whatever; asain8t-
the amount of said loss or damage to be estimated according to the actual value
of the insured property at the time when such loss or damage happens, but not
to include loss or damage caused by explosions of any kind unless fire ensues,
and then to include that caused by fire only.
This policy shall be void if any material fact or circumstance stated in writing Matters avoid,
has not been fairly represented by the insured, — or if the insured now has or i^^g1^.
shall hereafter make any other insurance on the said property without the assent 112 Mass. 136.
in writing or in print of the company, — or if, without such assent, the said i|i Mass. 164,
property shall be removed, except that, if such removal shall be necessary for 136 Mass. 108.
the preservation of the property from fire, this policy shall be valid without such \H jy}^; gf9(
assent for five days thereafter, — or if, without such assent, the situation or 426.
circumstances affecting the risk shall, by or with the knowledge, advice, agency 150 Mass'. 374*.
or consent of the insured, be so altered as to cause an increase of such risks, or 153 Mass. 475.
if, without such assent, the said property shall be sold, or this policy assigned, or {53 Mass! 475!
if the premises hereby insured shall become vacant by the removal of the owner 162 Mass. 479.
or occupant, and so remain vacant for more than thirty days without such assent, 17° Mas8, 492,
1148
INSURANCE.
[Chap. 118.
Insured prop-
erty exposed
to nre to be
protected.
Statement by
insured in case
of Joss.
140 Mass. 38.
145 Mass. 582.
150 Mass. 160.
152 Mass. 263.
164 Mass. 3S2.
Payment of
loss to be made
within sixty
days after
proof, unless
insurer elects
to rebuild or
repair.
142 Mass.
142.
Apportion,
ment of loss iu
case of other
insurance.
118 Mass. 465.
Claims against
third parties
to be assigned
to company.
Rights of
parties in case
policy is made
payable to
mortgagee.
Proviso.
142 Mass. 142.
166 Mass. 189.
210.
168 Mass. 147.
Cancellation
of policy.
Differences to
be submitted
to referees.
138 Mass. 572.
or if it be a manufacturing establishment, running, in whole or in part, extra time,
except that such establishments may run, in whole or in part, extra hours not
later than nine o'clock p.m., or if such establishments shall cease operation for
more than thirty days without permission in writing indorsed hereon, or if the
insured shall make any attempt to defraud the company either before or after
the loss, — or if gunpowder or other articles subject to legal restriction shall be
kept in quantities or manner different from those allowed or prescribed by law,
— or if camphene, benzine, naphtha, or other chemical oils or burning fluids
shall be kept or used by the insured on the premises insured, except that what
is known as refined petroleum, kerosene or coal oil, majr be used for lighting,
and in dwelling houses kerosene oil stoves may be used for domestic purposes,
— to be filled when cold, by daylight, and with oil of lawful fire test only.
If the insured property shall be exposed to loss or damage by fire, the insured
shall make all reasonable exertions to save and protect the same.
In case of any loss or damage under this policy, a statement in writing, signed
and sworn to by the insured, shall be forthwith rendered to the company, setting
forth the value of the property insured, the interest of the insured therein, all
other insurance thereon, in detail, the purposes for which and the persons by
whom the building insured, or containing the property insured, was used, and
the time at which and manner in which the fire originated, so far as known to
the insured. The company may also examine the books of account and vouchers
of the insured, and make extracts from the same.
In case of any loss or damage, the company, within sixty days after the insured
shall have submitted a statement, as provided in the preceding clause, shall
either pay the amount for which it shall be liable, which amount if not agreed
upon shall be ascertained by award of referees as hereinafter provided, or re-
place the property with other of the same kind and goodness, — or it may, within
fifteen days after such statement is submitted, notify the insured of its intention
to rebuild or repair the premises, or any portion thereof separately insured by
this policy, and shall thereupon enter upon said premises and proceed to rebuild
or repair the same with reasonable expedition. It is moreover understood that
there can be no abandonment of the property insured to the company, and that
the company shall not in any case be liable for more than the sum insured, with
interest thereon from the time when the loss shall become payable, as above
provided .
If there shall be any other insurance on the property insured, whether
prior or subsequent, the insured shall recover on this policy no greater propor-
tion of the loss sustained than the sum hereby insured bears to the whole amount
insured thereon. And whenever the company shall pay any loss, the insured
shall assign to it, to the extent of the amount so paid, all rights to recover satis-
faction for the loss or damage from any person, town or other corporation,
excepting other insurers ; or the insured, if requested, shall prosecute therefor
at the charge and for the account of the company.
If this policy shall be made payable to a mortgagee of the insured real estate,
no act or default of any person other than such mortgagee or his agents, or those
claimino- under him, shall affect such morto-ao-ee's rio-ht to recover in case of
loss on such real estate : provided, that the mortgagee shall, on demand, pay
according to the established scale of rates for any increase of risks not paid for
by the insured ; and whenever this company shall be liable to a mortgagee for
any sum for loss under this policy, for which no liability exists as to the mort-
gagor, or owner, and this company shall elect by itself, or with others, to pay
the mortgagee the full amount secured by such mortgage, then the mortgagee
shall assign and transfer to the companies interested, upon such payment, the
said mortgage, together with the note and debt thereby secured.
This policy may be cancelled at any time at the request of the insured, who
shall thereupon be entitled to a return of the portion of the above premium
remaining, after deducting the customary monthly short rates for the time this
policy shall have been in force. The company also reserves the right, after
giving written notice to the insured, and to any mortgagee to whom this policy
is made payable, and tendering to the insured a ratable proportion of the pre-
mium, to cancel this policy as to all risks subsequent to the expiration of ten
days from such notice, and no mortgagee shall then have the right to recover as
to such risks .
In case of loss under this policy and a failure of the parties to agree as to the
amount of loss, it is mutually agreed that the amount of such loss shall be
referred to three disinterested men, the company and the insured each choosing
Chap. 118.] insurance. 1149
one out of three persons to be named by the other, and the third being selected 1*0 Mass. 343.
by the two so chosen ; the award in writing by a majority of the referees shall \H Matt'. 335!
be conclusive and final upon the parties as to the amount of loss or damage, and 15* Mass. 77.
such reference unless waived by the parties shall be a condition precedent to any 171 Mass! 433'.
right of action in law or equity to recover for such loss; but no person shall be
chosen or act as a referee, against the objection of either party, who has acted
in a like capacity within four months.
.No suit or action against this company for the recovery of any claim by virtue Suit or action
of this policy shall be sustained in any court of law or equity in this Common- to becom-
wealth unless commenced within two years from the time the loss occurred. two years.
In witness whereof the said company has caused this policy to be signed
by its president and attested by its secretary [or by such proper officers as may
be designated] , at their office in
[date] .
43 In case of loss under any fire insurance policy, issued on property Proceedings in
44 in this commonwealth, in the standard form above set forth, and to choose11 ure
45 the failure of the parties to agree as to the amount of loss, the Hsl^i.' etc"
46 insurance company shall, within ten days after a written request to ^g H)-
47 appoint referees under the provision for arbitration in such policy, 1897> 357-
48 name three men under such provision, each of whom shall be a
49 resident of this commonwealth and willing to act as one of such
50 referees, of whom the insured shall, within ten days after receiving
51 said names, make known to the insurance company its choice of one
52 of them to act as one of such referees ; and such insurance company
53 shall, within ten days after receiving the names of three men named
54 by the insured under such provision, make known to the insured
55 its choice of one of them to act as one of such referees. And in
56 case of the failure of two referees, chosen, respectively, by the in-
57 surance company and the insured, to agree upon and select within
58 ten days from their appointment a third referee willing to act in said
59 capacity, either of said referees or parties may within twenty days
60 from the expiration of said ten days make written application, set-
61 ting forth the facts, to the insurance commissioner to appoint such
62 third referee ; and said commissioner shall thereupon make such
63 appointment and shall send written notification thereof to the parties.
64 In every case of the appointment by the insurance commissioner of
65 said third referee the insuring company or companies shall withhold
Q6 from the amount of the award rendered one-half of the compensation
67 and expenses of said referee, and said company or companies shall
68 thereupon pay to said referee the full amount of his compensation
69 and expenses.
FIDELITY INSURANCE AND CORPORATE SURETY.
1 Section 61. A company organized under the provisions of ™^°fay
2 this chapter or the corresponding provisions of earlier laws or char- j^°|^s-g 4
3 tered by any other state or government to transact fidelity insurance lag! *«• '
J J ,. -1 l • r> i 1 it • • j_1 • 1807, 214, t) bl.
4 and corporate suretyship, and qualified to do business in this com- \m, in, § 1.
1 J , r ' . ^ , -. . , , ,1 1894, 522, § 61.
5 monwealth, may make contracts of insurance to guarantee the 1896, 346, 861.
6 fidelity of persons holding positions of trust in private or public nop^.U"
7 employment or responsibility, and may, if accepted and approved ""O
8 by the court, magistrate, obligee or person competent to approve
9 such bond, act as surety upon the official bond or undertaking in
10 civil procedure of any person or corporation to the United States,
11 to this commonwealth, or to any county, city, town, judge of pro-
12 bate and insolvency or other court, sheriff, magistrate or public
1150
INSURANCE.
[Chap. 118.
Sole surety in
certain cases.
— on probate
bonds, though
non-resident.
Limit of
liability.
Sureties may
covenant
against loss in
certain cases.
1893, 117, § 2.
Record.
1893, 117, § 3.
officer, or to any corporation or association public or private : and 13
also may act as surety upon any bond or undertaking to any person 14
or corporation or to the commonwealth conditioned upon the per- 1 5
formance of any duty or trust or for the doing or not doing of 16
anything in said bond specified, and upon bonds to indemnify 17
against loss any person or persons who are responsible as surety or 18
sureties upon a written instrument or otherwise for the perform- 19
ance by others of any office, employment, contract or trust. If by 20
law two or more sureties are required upon any obligation such 21
company is authorized to insure, it may act as sole surety thereon, 22
and may be accepted as such by the court, magistrate or other officer 23
or person authorized to approve the sufficiency of such bond or un- 24
dertaking ; and so much of section nine of chapter one hundred and 25
forty-nine as requires that sureties on bonds to a judge of probate 26
shall be residents of the commonwealth shall not forbid the accept- 27
ance of a qualified foreign corporation as joint or sole surety on 28
any such bond. A bond given by it under the provisions of section 29
twenty-four of chapter one hundred and ten, section fifteen of 30
chapter one hundred and thirteen or section seven of chapter one 31
hundred and fourteen, shall be in a form approved by the commis- 32
sioner of corporations or the commissioners of savings banks, re- 33
spectively, and an attested copy of such bond, with a certificate of 34
the custodian that the original is in his possession, shall be filed 35
with him or them, respectively. No such company shall incur in 36
behalf or on account of any one person, partnership, association or 37
corporation a liability for an amount larger than one-tenth of its 38
paid up capital, unless it shall be secured from loss thereon beyond 39
that amount by suitable and sufficient collateral agreements of in- 40
demnity, by deposit with it in pledge or conveyance to it in trust 41
for its protection of property equal in value to the excess of its 42
liability over such limit, or, if such liability is incurred in behalf 43
or on account of a fiduciary holding property in a trust capacity, 44
by such deposit or other disposition of a suitable and sufficient por- 45
tion of the estate so held that no further sale, mortgage, pledge or 46
other disposition can be made thereof without such company's ap- 47
proval, except by the decree of a court having proper jurisdiction. 48
Any person, partnership, association or corporation holding 49
property for the benefit of another, except when acting under wills 50
allowed or trusts created before the twenty-fourth day of April in 51
the year eighteen hundred and ninety- three, may make such cove- 52
nants with the surety or sureties upon his official bond as shall 53
enable such fiduciary to secure said surety or sureties from loss in 54
any manner provided by this section ; but if such fiduciary was 55
appointed by the decree of any court within this commonwealth, 56
the approval of such court shall first be obtained to such covenant. 57
A copy of such covenant, duly acknowledged in the manner
required for the acknowledgment of deeds of real estate, may be
filed and recorded as follows : in the office of the clerk or registrar
of the court in which said fiduciary obtained his appointment ; if
not appointed by the decree of court, in the manner provided by 62
law for the record of deeds of real estate, if said covenant relates to 63
real estate, or mortgages of personal property, if said covenant 64
relates to personal property. Such record shall be notice to and 65
binding on all persons. 6Q
58
59
60
61
Chap. 118.] insurance. 1151
TITLE INSURANCE.
1 Section 62. Companies organized under the tenth clause of fgff^fu
2 section twenty-nine shall not be subject to the provisions of this 18S7,' 214', § 62.
3 chapter except as regards the manner of their formation and as rio'p. a. g. '
4 follows : 'J
5 Any such corporation, before it shall issue any policy or make certificate
6 any contract of guarantee or insurance, shall file with the insurance i8^iso!'§4.
7 commissioner a certified copy of the record of its certificate of its
8 organization in the office of the secretary of the commonwealth, and
9 shall obtain from the insurance commissioner his certificate that it
10 has complied with the laws applicable to it and is authorized to do
11 business.
12 Every such corporation shall, on or before the fifteenth day of mentfl8tate'
13 January of each year, file in the office of the insurance commissioner 1884> i8o. § 3.
14 a statement such as he may require of its condition and of its affairs
15 for the year ending on the preceding thirty-first day of December,
16 signed and sworn to by its president or secretary or treasurer and
17 one of its directors, and, for neglect to file such annual statements
18 or for making a wilfully false statement, shall be liable to the same
19 penalties as are imposed upon insurance companies. The insurance visitation.
20 commissioner shall have the same power and authority to visit and
21 examine such corporations as he has in the case of domestic insurance
22 companies, and the duties and liabilities of such corporations and
23 their agents relative to such examination shall be the same as those
24 of domestic insurance companies.
1 Section 63. Every such corporation shall set apart an amount j^1adrantJr
2 not less than two-fifths of its capital, and not less than one hundred investment.
3 thousand dollars in anv case, as a guaranty fund, and shall. invest i887| 2u| § 63.
a -i. • xi -j.- • i • i i j.' • • • 1894,522,5 63.
4 it in the securities in which domestic insurance companies may m-
5 vest their capital, and shall issue no policy and make no contract of
6 guaranty or insurance until such amount is so set apart and in-
7 vested.
8 The principal of such guaranty fund shall be a trust for the pro-
9 tection of policy holders and shall be applied only to the payment
10 of losses and expenses incurred by reason of the guaranty or insur-
11 ance contracts of the corporation. Whenever the corporation shall
12 increase its capital, two-fifths or a sufficient part of the increase shall
13 be set apart and duly invested and added to the guaranty fund so
14 that such fund shall always be not less in amount than two-fifths of
15 the entire capital.
16 If,':by reason of losses or other cause, the guaranty fund is less
17 than two-fifths of the capital, the company shall make no further con-
18 tract of guaranty or insurance until the fund is made good.
1 Section 64. A company organized under the authority of chap- Application oi
2 ter one hundred and eighty of the acts of the year eighteen hundred sSonsng
3 and eighty-four, section sixty-two of chapter two hundred and Jgg; |$; j {&
4 fourteen of the acts of the* year eighteen hundred and eighty-seven,
5 section sixty-two of chapter five hundred and twenty-two of the
6 acts of the year eighteen hundred and ninety-four or the tenth clause
7 of section twenty-nine of this chapter shall be subject to the pro-
8 visions of the two preceding sections.
1152
INSURANCE.
[Chap. 118.
Examination
and insurance
of titles.
1889, 378.
Such companies may examine titles and furnish information rela- 9
tive to both personal property and real estate, and may insure 10
owners of both real estate and personal property, and others inter- 11
ested therein, against loss by reason of encumbrances and defective 12
titles. 13
Definition.
1870, 349, § 5.
1872, 325, § 7.
1875, 107, § 1.
1877, 204, § 2.
1880, 196, § 4.
P. S. 119, § 154.
1887, 214, § 65.
1894, 522, § 65.
Assessment
contracts.
1899, 229, &§ 4, 5.
LIFE INSURANCE.
Section 65. All corporations, associations, partnerships or
individuals doing business in this commonwealth under any charter,
compact, agreement or statute of this or any other state, involving
the payment of money or other thing of value to families or repre-
sentatives of policy and certificate holders or members, conditioned
upon the continuance or cessation of human life, or involving an
insurance, guaranty, contract or pledge for the payment of endow-
ments or annuities shall be deemed to be life insurance companies,
and shall not make any such insurance, guaranty, contract or pledge
in this commonwealth, or to or with any citizen or resident thereof,
which does not distinctly state the amount of benefits payable,
the manner of payment and the consideration therefor, nor any
such insurance, guaranty, contract or pledge, the performance of
which is contingent upon the payment of assessments made upon
survivors.
All life insurance business hereafter transacted by corporations
which formerly issued policies or certificates on the assessment
plan under chapter four hundred and twenty-one of the acts of the
year eighteen hundred and ninety and acts in amendment thereof,
shall be carried on in accordance with the provisions of this
chapter ; but such corporations may carry out in good faith their
assessment contracts made with their members prior to the first
day of July in the year eighteen hundred and ninety-nine.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Business to
cease after
notice.
1863, 148.
P. S. 119, § 155.
1887, 214, § 66.
1894, 522, § 66.
Section QQ. No life insurance company, after notice as provided 1
in sections seven and nine, shall issue new policies under its 2
authority to do business in this commonwealth until its funds have 3
become equal to its liabilities and it has complied with the laws as 4
provided in said sections, and has obtained from the insurance 5
commissioner a certificate to that effect, with license to resume 6
business. 7
Section 67. A company organized under the laws of any other
Admission of
foreign life
i8-mpi3oiessi 7 °^ ^e United States for the transaction of life insurance may be
p. s. U9, § 2i8.' admitted to do business in this commonwealth, if it has the requisite
i§94,' 522; § 67." funds of a life insurance company and, in the opinion of the
[1 Op. A. G.
269 -
269.]
commissioner, is in sound financial condition and has policies in
force upon not less than one thousand lives for an aggregate amount
of not less than one million dollars. Any such company organized
under the laws of a state or government other than one of the
United States, in addition to the above requirements, shall have
and keep on deposit or in the hands of trustees, as provided in sec-
tions seventy-nine and eighty-one, in exclusive trust for the
security of its contracts with policy holders in the United States, 12
funds of an amount equal to the net value of all its policies in the 13
United States and not less than two hundred thousand dollars. 14
1
2
3
4
5
6
7
8
9
10
11
Chap. 118.] insurance. 1153
1 Section 68. No life insurance company doing business in this Discrimma.
2 commonwealth shall make or permit any distinction or discrimina- wmtecL0"
3 tion in favor of individuals between insurants of the same class and i|||; ^|; f U;
4 equal expectation of life in the amount or payment of premiums or
5 rates charged for policies of life or endowment insurance, or in the
6 dividends or other benefits payable thereon, or in any other of the'
7 terms and conditions of the contracts it makes ; nor shall any such
8 company or any agent thereof make any contract of insurance, or
9 agreement as to such contract, other than as plainly expressed in
10 the policy issued thereon ; nor shall any such company or agent
11 pay or allow, or offer to pay or allow as inducement to insurance,
12 any rebate of premium payable on the policy, or any special favor
13 or advantage in the dividends or other benefit to accrue thereon, or
14 any valuable consideration or inducement not specified in the policy
15 contract of insurance.
1 Section 69. No life insurance company shall make any dis- coiordis-
2 tinction or discrimination between white persons and colored forbidden.11
3 persons wholly or partially of African descent, as to the premiums if!?' |f|' | eg.
4 or rates charged for policies upon the lives of such persons ; nor 1894> 522> § 69-
5 shall any such company demand or require greater premiums from
6 such colored persons than are at that time required by such company
7 from white persons of the same age, sex, general condition of
8 health and prospect of longevity, nor shall any such company
9 make or require any rebate, diminution or discount upon the
10 amount to be paid on such policy in case of the death of such
11 colored person insured, nor insert in the policy any condition, nor
12 make any stipulation whereby such person insured shall bind him-
13 self or his heirs, executors, administrators and assigns to accept any
14 amount less than the full value or amount of such policy in case
15 of a claim accruing thereon by reason of the death of such person
16 insured, other than such as are imposed upon white persons in
1 7 similar cases ; and any such stipulation or condition so made or
18 inserted shall be void.
19 Any such company which shall refuse the application of any Physician's
20 such colored person for insurance upon such person's life shall fur- up^refusai.
21 nish such person, on his request therefor, with the certificate of a 1884>235>§2-
22 regular examining physician of such company who made the exami-
23 nation, stating that such refusal was not because such applicant is a
24 person of color, but solely upon such grounds of the general health
25 and prospect of longevity of such person as would be applicable to
26 white persons of the same age and sex.
1 Section 70. Every life insurance company doing business in this Surplus ac-
2 commonwealth shall report in its annual statement the amount of statemenTnual
3 forfeitures and undivided surplus on lapsed or terminated policies HH; |M; 1 70!
4 which it holds for or which is to accrue to the benefit of any class of
5 its policy holders, whether dividends thereof have been declared or
6 allotment made, and whether said amount is liable for obligations of
7 the company until distribution thereof is made ; also the amount of
8 surplus accrued from and contributed by its policies in force which
9 has not been ordered to be distributed nor included in the annual
10 statement as dividends due to policy holders nor appropriated to the
11 permanent safety fund under the provisions of section seventy-five.
1154
INSURANCE.
[Chap. 118.
Medical exam-
ination.
1895, 366.
Section 71. No life insurance company organized under the
laws of or doing business in this commonwealth shall enter into any
contract of insurance upon lives within this commonwealth without
having previously made or caused to be made a prescribed medical
examination of the insured by a registered medical practitioner.
Any insurance company violating the provisions of this section,
or any officer,
agent
or other person soliciting or effecting, or
attempting to effect, a contract of insurance contrary to the pro-
visions hereof, shall be punished by a fine of not more than one
hundred dollars for each offence.
1
2
3
4
5
6
7
8
9
10
Reinsurance
by domestic
Section 72. No domestic life insurance company shall reinsure
^J?.0?™,13?1?168- its risks except by permission of the insurance commissioner ; but
IS t 4, 109, § 1. . J../A ,,/./» .,..■,,.•■
p. s. ii9, § 152. may reinsure not exceeding one-half of any individual risk.
18S7, 214, § 72. 1894, 522, § 72.
1
2
3
Rights of
creditor and of
beneficiary.
1844, 82.
1847, 248.
1854, 453, § 28.
1856, 252, § 42.
G. S. 58, § 62.
1864, 197.
P. S. 119, § 167.
1887, 214, § 73.
1892, 372.
1893, 434.
1894, 120; 225;
522, § 73.
11 Allen, 224.
97 Mass. 359.
99 Mass. 154,
157, 342.
101 Mass. 564.
118 Mass. 219.
131 Mass. 294.
132 Mass. 408.
153 Mass. 544.
157 Mass. 47.
158 Mass. 227.
159 Mass. 575.
164 Mass. 302.
166 Mass. 1S9.
170 Mass. 369.
172 Mass. 498.
Policies to
married
woman, etc.,
to inure to her
benefit.
1894, 120.
Certain poli-
cies issued
without pre-
vious medical
examination
to be valid.
1892, 372.
160 Mass. 386.
162 Mass. 241.
Copy of appli
cation to be
attached to cer-
tain policies.
1893, 434.
Section 73. If a policy of insurance is effected by any per- 1
son on his own life, or on another life, in favor of a person other 2
than himself having an insurable interest therein, the lawful bene- 3
ficiary thereof, other than himself or his legal representatives, shall 4
be entitled to its proceeds, against the creditors and representa- 5
tives of the person effecting the same ; and the person to whom a 6
policy of life insurance, issued subsequent to the eleventh day of 7
April in the year eighteen hundred and ninety-four, is made payable 8
may maintain an action thereon in his own name : provided, that, 9
subject to the statute of limitation, the amount of any premiums for 10
said insurance paid in fraud of creditors, with interest thereon, shall 11
inure to their benefit from the proceeds of the policy ; but the com- 12
pany issuing the policy shall be discharged of all liability thereon 13
by payment of its proceeds in accordance with its terms, unless, 14
before such payment, the company shall have written notice by or 15
in behalf of a creditor, with specification of the amount claimed, 16
claiming to recover for certain premiums paid in fraud of creditors. 17
Every policy of life insurance made payable to or for the benefit of 18
a married woman, or after its issue assigned, transferred or in any 19
way made payable to a married woman, or to any person in trust 20
for her or for her benefit, whether procured by herself, her husband 21
or by any other person, and whether the assignment or transfer is 22
made by her husband or by any other person, shall inure to her 23
separate use and benefit, and to that of her children, subject to the 24
provisions of this section relative to premiums paid in fraud of 25
creditors and those of section seventy-six. In any claim arising 26
under a policy which has been issued in this commonwealth by any 27
life insurance company, without previous medical examination, or 28
without the knowledge and consent of the insured, or, if said in- 29
sured is a minor, without the consent of the parent, guardian or 30
other person having legal custody of said minor, the statements 31
made in the application as to the age, physical condition, and 32
family history of the insured shall be held to be valid and binding 33
upon the company ; but the company shall not be debarred from 34
proving as a defence to such claim that said statements were wil- 35
fully false, fraudulent or misleading. Every policy which contains 36
a reference to the application of the insured, either as a part of 37
the policy or as having any bearing thereon, must have attached 38
Chap. 118.] insurance. 1155
39 thereto a correct copy of the application, and unless so attached the 165 Mass. 462.
40 same shall not be considered a part of tbe policy or received in evi- /2Mass-m
41 dence. Each application for such policy shall have printed upon copyofappii-
42 it in large bold-faced type the following words : ' ' Under the laws nishedto1""
43 of Massachusetts, each applicant for a policy of insurance to be aPPlicants-
44 issued hereunder is entitled to be furnished with a copy of this
45 application attached to any policy issued thereon." A solicitor, Penalties for
46 agent, examining physician or other person who knowingly or wil- etc86 a emen '
47 fully makes a false or fraudulent statement or representation in or
48 relative to any application for life insurance, or who makes any
49 such statement for the purpose of obtaining a fee, commission,
50 money or benefit in a corporation transacting such business under
51 the provisions of this chapter, shall be punished by a fine of not
52 less than one hundred nor more than five hundred dollars or by
53 imprisonment for not less than thirty days nor more than one year,
54 or by both such fine and imprisonment ; and a person who wilfully
55 makes a false statement of an}^ material fact or thing in a sworn
56 statement as to the death or disability of a policy or certificate
57 holder in any such corporation, for the purpose of procuring pay-
58 ment of a benefit named in the certificate of such holder, shall be
b9 guilty of perjury. No life insurance company transacting business Terms of con-
60 under the provisions of this chapter shall issue a policy to a resident dreascribedeon
61 of this commonwealth, which does not bear in bold letters upon its {$<&, il£ollcy'
62 face a plain description of the policy, so fully defining its character,
63 including dividend periods and other peculiarities, that the holder
64 thereof shall not be liable to mistake the nature or scope of the
65 contract.
Hights of Policy Holders in Domestic Mutual Life Companies.
1 Section 74. Every person insured by a domestic mutual life Members, etc.
2 insurance company shall be a member entitled to one vote, and one p.'s. 119, §153.
3 vote additional for each five thousand dollars of insurance in excess i894; 522; § 74!
4 of the first five thousand dollars, and shall be notified of its annual
5 meetings by written notice or by an imprint in the form prescribed
6 in section forty, upon the back of each policy, receipt or certificate
7 of renewal.
8 Members may vote by proxies dated and executed within three Proxies.
9 months, and returned and recorded on the books of the company
10 seven days or more before the meeting at which they are to be used ;
11 but no person shall, as attorney or otherwise, cast more than twenty
12 votes, and no officer shall liimself, or by another, ask for, receive,
13 procure to be obtained or use a proxy to vote.
1 Section 75. The stockholders of the guaranty capital of any Guaranty oapi-
2 such company shall be entitled to such annual dividends not exceed- redUnpti<S! 8'
3 ing eight per cent, payable from the net surplus, as may have been HStft|S
4 agreed upon in the subscription thereof. Any such company may f8(jf ;35|; § 60-
5 redeem its guaranty capital by appropriation of net surplus for that wo, 349, § e.
6 purpose if its members so vote. p. s. 119, §§ 145, 147-150.
1887, 214, §§ 72, 75. 1894, 522, §§ 72, 75. 1900, 363, § 2. 142 Mass. 403.
7 The directors of any domestic life insurance company, out of the nisMbution
8 funds remaining after providing for the reserve required by the pro- °
9 visions of section eleven and for all other liabilities, may from time
1156
INSURANCE.
[Chap. 118.
to time make to policy holders not in arrears distributions of sur- 10
plus not inconsistent with the terms of their policies. Such distri- 11
butions to policy holders shall be made upon the contribution to 12
surplus plan. 13
Non-forfeiture
of policies.
1861, 1S6.
1877, 61.
1880, 232.
1881, 63.
P. S. 119, §§ 159-
166.
1887, 214, § 76.
1894, 522, § 76.
1896, 470.
1900, 363, § 3.
100 Mass. 500.
103 Mass. 254.
109 Mass. 430.
120 Mass. 503.
123 Mass. 113.
127 Mass. 153.
131 Mass. 64.
170 Mass. 254.
Paid up and
cash surrender
values.
Section 76. All policies issued prior to the first day of January
in the year nineteen hundred and one by any domestic life insurance
company shall be subject to the provisions of law limiting forfeiture
which are applicable and in force at the date of their issue. No
policy of life or endowment insurance issued by any such company
after the thirty-first day of December in the year nineteen hundred
shall become forfeit or void for non-payment of premium after three
full annual premiums have been paid thereon ; but in case of default
in the payment of any subsequent premium, then without any
further stipulation or act such policy shall be binding upon the
company for the amount of paid up insurance which the then net
value of the policy and all dividend additions thereon, computed by
the rule of section eleven, less any indebtedness to the company on
account of said policy, and less the surrender charge provided
herein, will purchase as a net single premium for life or endowment
terminating at the time and in the manner
insurance
maturing or
provided in the original policy contract ; and such default shall not
change or affect the conditions or terms of the policy, except as
regards the payment of premiums and the amount payable thereon.
Said surrender charge, unless fixed at a smaller rate by the policy,
shall be five per cent of the present value of the future net pre-
miums at the date of default, which by its terms said policy is ex-
posed to pay in case of its continuance, computed upon the rate of
mortality and interest assumed in section eleven. But any com-
pany may contract with its policy holders to furnish, in lieu of the
paid up insurance provided for in this section, any other form of
life insurance lawful in this commonwealth, of not less value.
Every such paid up policy shall have a cash surrender value, which
shall be its net value, less any indebtedness to the company on ac-
count of said policy, and every policy which by its own terms has
become paid up shall have a cash surrender value, which shall be
its net value, less five per cent of one net premium, and the holder
of any paid up policy may upon any anniversary of its issue sur-
render the same and claim and recover from the company such sur-
render value in cash. But no surrender of a policy shall be made
without the written assent of the person to whom the policy is
made payable. On policies of prudential or industrial insurance
on which the weekly premiums are not more than fifty cents each
the surrender value shall in all cases be payable in cash, which shall
be a legal claim for not more than two years from the date of lapse.
Any condition or stipulation in the policy or elsewhere which is
contrary to the provisions of this section, and any waiver of such
provisions by the insured, shall be void.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
FOREIGN COMPANIES.
i887m2ni0§77 Section 77. Foreign insurance companies, upon complying with
i89e' 124' § ?7' ^ie conditions herein set forth applicable to such companies, may
i6o Mass. 413. be admitted to transact in this commonwealth by constituted agents
1
2
3
Chap. 118.] insurance. 1157
4 resident therein any class of insurance authorized by the laws of
5 this commonwealth, subject to all general laws now or hereafter
6 in force relative to insurance companies, and subject to all laws
7 applicable to the transaction of such business by foreign insurance
8 companies and their agents ; but no provision of law which by its
9 terms applies specifically to domestic life insurance companies shall
10 thereby become applicable to foreign life insurance companies.
Conditions of Admission of Foreign Companies.
1 Section 78. No foreign insurance company shall be so admitted admfssionSof
2 and authorized to do business until — 152 Mass. 432.
160 Mass. 413. [1 Op. A. G. 1, 115.]
3 First, It has deposited with the insurance commissioner a certi- terPstatemeant
4 fied copy of its charter or deed of settlement and a statement of its of condition,
5 financial condition and business, in such form and detail as he may ance affidavit.
6 require, signed and sworn to by its president and secretary, or r. s. 37,'§ 40'.
7 other proper officer, and has paid for the filing of such copy thirty 1I5I; 453,' f 35.
8 dollars, and for the filing of such statement twenty dollars ; and, &ft.258,'§7i."
9 if to transact the business of fire insurance, has filed in the office of i86V267,§§i,
10 the insurance commissioner a declaration signed and sworn to by ^s, |i7,§i.
11 its president and secretary, or officers corresponding thereto, that it p. s. 119, § 199.
1887 914 5 78
12 will not reinsure any risk or part thereof taken by it on any prop- ci. 1!
13 erty located in this commonwealth with any company not authorized 0i. 1. '
14 to transact the business of fire insurance in this commonwealth, if9GYa8y,' Jo!'
15 except as provided in section twenty. 2 Alien, 39s.
16 Second, It has satisfied the insurance commissioner that it is Proofoforgan.
17 fully and legally organized under the laws of its state or govern- Capitai.an
18 ment to do the business it proposes to transact; that it has, if a T'k^J^hf'
19 stock company, a fully paid up and unimpaired capital, exclusive f|i7j 273, §§ 2, 3.
20 of stockholders' obligations of any description, of an amount not ilff' I5I' | gi
21 less than is required of similar companies formed under the pro- 1856,' 252; §§ 44,
22 visions of this chapter, and, if a mutual company, other than life, g.' s. 58, §§ 66,
23 that it has net cash assets equal to the capital required of like com- im, 249, § 10.
24 panies on the stock plan ; or that it possesses net cash assets of not if^f; f^5' § 16-
25 less than one hundred thousand dollars or net cash assets of not less ^•U9,§§196"
26 than fifty thousand dollars, with also invested assets of not less than 1887, 214, § 78,
27 one hundred thousand dollars and, in each case, with additional i|9|,' 522, § 78,
28 contingent assets of not less than three hundred thousand dollars, i»96,' 270, § 1.
29 and that such capital or net assets are well invested and immedi- 6 Gray,' 376.'
30 ately available for the payment of losses in this commonwealth ; i0f Sassff-k
31 and that it insures on any single hazard an amount no larger than
32 one-tenth of its net assets.
33 Third, It has complied with the provisions of section four of £PapCn™nt
34 chapter one hundred and twenty-six.
35 Fourth, It has appointed as its agent or agents in this common- Agents to be
36 wealth some resident or residents thereof.
1887, 214, § 78, cl. 4. 1894, 522, § 78, cl. 4.
37 Fifth, It has obtained from the insurance commissioner a certifi- jj£ffity?of
38 cate that it has complied with the laws of this commonwealth and ffi$£}$;
39 is authorized to make contracts of insurance. JFI^iiil,
1887, 214, § 78, cl. 5. 1894, 522, § 78, cl. 5.
1 Section 79. Such foreign company, if incorporated or associ- f00r"\^0Una
2 ated under the laws of any government or state other than the d1^,£,tnake
1158
INSURANCE.
[Chap. 118,
1878,
P. S.
1887,
1894,
130,
119,
214,
522,
§§§2\g7; United States or one of the United States, shall not be admitted 3
|7.|- until, besides complying with the conditions of the preceding sec- 4
tion, it has made a deposit with the treasurer and receiver general 5
or with the financial officer of some other state of the United 6
States, of an amount not less than the capital required of like 7
companies under this chapter. Such deposit must be in exclusive 8
trust for the benefit and security of all the company's policy holders 9
and creditors in the United States, and may be made in the 10
securities but subject to the limitations specified in section thirty- 11
four, and such deposit shall be for all purposes of the insurance 12
laws the capital of the company making it. 13
One class of
insurance
only, except.
1879, 130.
1881, 51.
P. S. 119, § 201.
1887, 214, § 80.
1889, 356.
1891, 195.
1894, 133, §3;
522, § 80.
1895, 474, § 3.
155 Mass. 404.
FlOp. A. G.19,
47.]
Section 80. No foreign insurance company admitted to do
business in this commonwealth shall be authorized, except as other-
wise provided, to transact more than one class or kind of insurance
therein. But any company, domestic or foreign, engaged in this
commonwealth in the sole business of life insurance
may, in con-
nection therewith, also engage in the business of insuring against
bodily injury or death by accident, by increasing its capital to the
amount now required of two separate companies engaged in either
one of these two classes of business ; and no foreign company shall
be allowed to transact both of said classes of business unless it
possesses an aggregate capital equal to that required of two separate
companies engaged in either one of these two classes of business ;
but a company authorized to transact within this commonwealth
the business authorized under the fourth or eighth clause of section
twenty-nine of this chapter may also be permitted to transact the
business authorized under the seventh clause of said section.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Trustees ap-
pointed by-
directors.
1878, 130, §§ 2,
3,7.
P. S. 119, §§ 219,
220.
1887, 214, § 81.
1894, 522, § 81.
Assets of the
company.
Section 81. Any admitted company of a foreign country may 1
appoint trustees, who are citizens of the United States and approved 2
by the insurance commissioner, to hold funds in trust for the benefit 3
of its policy holders and creditors in the United States. Said 4
trustees shall be named by the directors of the company and a cer- 5
tified copy of the record of the appointment of such trustees and 6
of the deed of trust shall be filed in the office of the insurance 7
commissioner, who may examine such trustees and the assets in 8
trust and all books and papers relative thereto in the same manner 9
as he may examine the officers, agents, assets and affairs of 10
insurance companies. The funds so held by such trustees, so far 11
as the same are in securities, money or credits admissible as sound 12
assets in the financial accounts of insurance companies, shall, with 13
its deposits made in accordance with section seventy-nine, consti- 14
tute the assets of such company as regards its policy holders and 15
creditors in the United States. 16
Revocation of
authority.
1887, 214, § 82.
1890, 304.
1894, 522, § 82.
Section 82. The authority of a foreign insurance company may 1
be revoked if it violates or neglects to comply with any provision 2
of law obligatory upon it, and if, in the opinion of the insurance 3
commissioner, its condition is unsound or its assets above its lia- 4
bilities, exclusive of capital and inclusive of unearned premiums 5
estimated as provided in section eleven, are less than the amount of 6
its original capital or required unimpaired funds. 7
Chap. 118.] insurance. 1159
Fire Insurance in Unauthorized Companies.
1 Section 83. The insurance commissioner, upon the annual pay- insurance by
2 ment of twenty dollars, may issue licenses to citizens of this ™mptanieIsZ.ed
3 commonwealth, subject to revocation at anytime, permitting the 111; 214' §83
4 person named therein to procure policies of fire or bombardment J8||> 147> 522>
5 insurance on property in this commonwealth in foreign insurance isas. sso, § 2.
6 companies not authorized to transact business in this common-
7 wealth. Before the person named in such license shall procure any
8 insurance in such companies on any such property he shall in every
9 case execute and file with the insurance commissioner an affidavit,
10 which shall have force and effect for one year only from the date
11 thereof, that he is unable to procure, in companies admitted to do
12 business as aforesaid, the amount of insurance necessary to pro-
13 tect said property, and shall only procure insurance under such
14 license after he has procured insurance in companies admitted to
15 do business as aforesaid to the full amount which said companies are
16 willing to write on said property; but such licensed person shall
17 not be required to file such affidavit if one relative to the same
18 property has been filed within the preceding twelve months by any
19 broker who has been licensed as authorized by this chapter, nor to
20 offer any portion of such insurance to any company which is not
21 possessed of cash assets amounting to at least twenty-five thousand
22 dollars, nor to one which has within the preceding twelve months
23 been in an impaired condition. Each person so licensed shall keep
24 a separate account of the business done under the license, a certi-
25 fied copy of which account he shall forthwith file with the insur-
26 ance commissioner, showing the exact amount of such insurance
27 placed for any person, firm or corporation, the gross premium
28 charged thereon, the companies in which the same is placed, the
29 date of the policies and the term thereof, and also a report in the
30 same detail of all such policies cancelled, and the gross return
31 premiums thereon, and before receiving such license shall execute
32 and deliver to the treasurer and receiver general a bond in the
33 penal sum of two thousand dollars, with such sureties as the treas-
34 urer and receiver general shall approve, with a condition that the
35 licensee will faithfully comply with all the requirements of this
36 section, and will annually file with the treasurer and receiver
37 general, in January, a sworn statement of the gross premiums
38 charged for insurance procured or placed and the gross return
39 premiums on such insurance cancelled under such license during
40 the year ending on the thirty-first day of December last preceding,
41 and at the time of filing such statement will pay into the treasury
42 of the commonwealth an amount equal to four per cent of such gross
43 premiums, less such return premiums so reported.
Miscellaneous Provisions.
1 Section 84. Foreign companies admitted to do business in this Resident
1 • 'I ,r01J t'8
2 commonwealth shall make contracts of insurance upon lives, prop-
3 erty or interests therein, only by lawfully constituted and licensed
4 resident agents. No policy of insurance issued to a citizen of this Policy not
5 commonwealth by an authorized company organized under the laws war.1 ate y
6 of a foreign country shall be invalidated by the occurrence of hos- p87|. n^l^V"
1160
INSURANCE.
[Chap. 118.
1883, 33, § 1.
1887, 214, § 84.
1894, 522, § 84.
1898, 537, § 2.
Conditions of
other states.
1832, 140, § 1.
R. S. 37, § 44.
1854, 453, § 34.
1856, 252, § 47.
G. S. 58, § 70.
1870, 391.
1871, 297, § 10.
1873, 141, § 6.
P. S. 119, § 215.
1887, 214, tj 85.
1894, 522, § 85.
tilities between such foreign country and the United States. And 7
no company shall directly or indirectly contract for or effect re- 8
insurance of any risk in this commonwealth with any company not 9
authorized to do business therein, except as provided in section 10
twenty. 11
Reciprocal Obligations.
Section 85. If by the laws of any other state any taxes, fines, 1
penalties, licenses, fees, deposits or other obligations or prohibi- 2
tions, additional to or in excess of those imposed by the laws of 3
this commonwealth upon foreign insurance companies and their 4
agents, are imposed on insurance companies of this commonwealth 5
and their agents doing business in such state, like obligations and 6
prohibitions shall be imposed upon all insurance companies of such 7
state and their agents doing business in this commonwealth so lone; 8
as such laws remain in force. 9
Lloyds asso-
ciations.
1878, 218, §§ 2, 3.
P. S. 119, § 175.
1887, 214, §86;
283, § 2.
1894, 522, § 86.
LLOYDS
Section 86. Associations of individuals, citizens of the United 1
States, whether organized within this commonwealth or elsewhere 2
within the United States, formed upon the plan known as Lloyds 3
— whereby each associate underwriter becomes liable for a propor- 4
tionate part of the whole amount insured by a policy — may be 5
authorized to transact insurance other than life in this common- 6
wealth, in like manner and upon the same terms and conditions as 7
insurance companies of other of the United States. 8
AGENTS AND BROKERS.
DanTee8s to °om' Section 87. Ever}' domestic insurance company shall file with 1
report name of the insurance commissioner the name and residence of each person 2
1895, 46. it appoints or employs to act as its agent in this commonwealth ; 3
and whoever shall assume to act as such agent, or, unless a licensed 4
broker, shall in any manner for compensation aid in negotiating 5
contracts of insurance on behalf of such corporation for a person 6
other than himself, prior to the filing of such notice of appointment, 7
shall be subject to the penalties of section one hundred and eleven. 8
Licenses to
agents of
foreign com-
panies.
1856, 252, § 51.
G. S. 58, § 74.
1867, 267, § 5.
P. S. 119, § 209.
1887, 214, §§ 91,
92.
1894, 522, §§ 91,
92.
1 Allen, 440.
105 Mass. 149.
Section 88. Upon written notice by an authorized foreign in- 1
surance company of its appointment of a suitable person to act as 2
its agent within this commonwealth, and the payment of two dollars, 3
the insurance commissioner shall, if the facts warrant it, grant to 4
such person a license, which shall state in substance that the com- 5
pany is authorized to do business in this commonwealth and that 6
the person named therein is a constituted agent of the company for 7
the transaction of such business as it is authorized to do in this 8
commonwealth. Said license shall continue in force until the first 9
day of April next after its issue, and, by the renewal thereof on 10
the annual payment for such renewal of two dollars before the first 11
day of April, until revoked by the commissioner for non-compliance 12
with the laws or until the company, by written notice to the insur- 13
ance commissioner, cancels the agent's authority to act for it. 14
While such license remains in force the company shall be bound 15
Chap. 118.] insurance. 1161
16 by the acts of the person named therein within his apparent author-
17 ity as its acknowledged agent.
18 Every person acting for a foreign insurance company shall exhibit o^™^/!^6
19 in conspicuous letters, on the sign designating his place of business, be exhibited
20 the name of the state or country under whose authority the com- 1852, M, § 3';
21 pany he represents has been incorporated or formed. And said lsk^t, § 9.
22 company and agent shall also have printed in large type the name G.5|.f|'§§753°*
23 of such state or country and the kind of company, whether mutual fsgf'iof.'8205'
24 or stock, upon all policies issued to citizens of this commonwealth,
25 on all cards, placards and pamphlets, and in all advertisements
26 published, issued or circulated in this commonwealth by it or him,
27 relative to the business of such company.
28 Every agent of a foreign insurance company shall annually, on Returns to tax
29 or before the fifteenth day of November, make return to the tax isre^ifsT*'
30 commissioner of all business transacted by him as such agent during p.7l'.i3%§34.
31 the year ending with the thirty-first day of October last preceding, iHg' lol' § 2"
32 in such form as the tax commissioner may prescribe ; and all books, 1897I 63.
33 papers and accounts of his agency shall be open to the inspection
34 of the tax commissioner at any time to enable him to verify the
35 statements and transactions aforesaid. If such agent neglects or
36 refuses to make such return, or refuses to submit the books, papers
37 and accounts of his agency to such inspection, the tax commissioner
38 shall report such neglect or refusal to the insurance commissioner,
39 who shall thereupon cancel the license to such agent and make pub-
40 lication thereof, and the license so cancelled shall not be renewed
41 within one year thereafter ; but only such agents shall be subject
42 to this provision as are not accountable to any other agent in this
43 commonwealth for premiums received.
1 Section 89. An officer of a domestic insurance company, or a Agents of
2 person appointed as its agent for that purpose, or acting without compares.
3 compensation, may, without other qualification, act in the negotia- ilgl) 522) f Hi
4 tion and transaction with such company of any insurance which
5 such company may lawfully do.
1 Section 90. The insurance commissioner may, upon the pay- certificate of
2 ment of ten dollars, issue to any suitable person, resident in this i869,°93, f§ % 3.
3 commonwealth or resident in any other state granting brokers' p .7|'. n*; §§ m,
4 licenses to residents of this commonwealth, a license to act as 1^7, 214, § 93.
5 an insurance broker to negotiate contracts of insurance or rein- i|j*|. jjf2,A93,
6 surance or place risks or effect insurance or reinsurance with any 1896^ 44s.
7 qualified domestic insurance company or its agents, and with the
8 authorized agents in this commonwealth of any foreign insurance
9 company duly admitted to do business in this commonwealth.
10 A broker's license shall remain in force for one year unless Revocation.
11 revoked by the commissioner for cause. Such cause shall exist
12 upon conviction of the holder of such license of a violation of the
13 insurance laws, or if it shall appear to the commissioner, upon
14 due proof after notice, that the holder has unreasonably failed and
15 neglected to pay over to the company or agent entitled thereto any
16 premium or part thereof collected by him on any policy of insurance.
17 The commissioner shall publish such revocation in such manner as
18 he determines proper for the protection of the public.
1162
INSURANCE.
[Chap. 118.
Exemption of
veterans.
1895, 159.
No fee for such license shall be required of any soldier or 19
sailor resident in this commonwealth who served in the army or 20
navy during the war of the rebellion and who received an honorable 21
discharge from such service, upon satisfactory evidence of the iden- 22
tity of such soldier or sailor. 23
Effect of pay.
ment to agent
or broker.
1853, 376.
1854, 453, § 39.
1S56, 25-2, § 51.
G. S. 58, § 74.
187S, 166, § 1.
P. S. 119, §§ 185,
194.
1887, 214, § 90.
1894, 522, § 90.
Penalty for
fraudulent
representa-
tions.
126 Mass. 316.
Section 91. An insurance agent or broker who acts for a per- 1
son other than himself in negotiating a contract of insurance by an 2
insurance company shall, for the purpose of receiving the premium 3
therefor, be held to be the company's agent, whatever conditions 4
or stipulations may be contained in the policy or contract. Such 5
agent or broker who knowingly procures by fraudulent representa- 6
tions payment, or an obligation for the payment, of a premium of 7
insurance, shall be punished by a fine of not less than one hundred 8
nor more than one thousand dollars or by imprisonment for not 9
more than one year. 10
Section 92. An insurance agent shall be personally liable on 1
all contracts of insurance unlawfully made by or through him, 2
directly or indirectly, for or in behalf of any company not author- 3
ized to do business in this commonwealth. 160 Mass. 413. 4
Section 93. Whoever, for compensation, not being the ap- 1
pointed agent or officer of the company in which such insurance or 2
reinsurance is effected, acts or aids in any manner in negotiating 3
contracts of insurance or reinsurance Or placing risks or effecting 4
insurance or reinsurance for a person other than himself, shall be 5
an insurance broker, and no person shall act as such broker, except 6
as provided in section ninety. 7
lst?1^ §1 ^ person not a duly licensed insurance broker, who for compen- 8
1^252' 554' sation solicits insurance on behalf of any insurance company, or 9
i86i|i7o! transmits for a person other than himself an application for or a 10
1864, 114, §1. ,. n . j. £ U & 11
p. s. 119, §§ 183, policy 01 insurance to or from such company, or offers or assumes 11
i8i'iien,436. to act in the negotiation of such insurance, shall be an insurance 12
103 mTs's2378. agent within the intent of this chapter, and shall thereby become 13
133 Mass' I26' liable to all the duties, requirements, liabilities and penalties to 14
r3MaSS'ii9' which an agent of such company is subject. [iop.A.G.74.] 15
Liability on
unlawful con-
tracts.
1864, 114, § 2.
1878, 36, § 4.
P. S. 119, § 210.
1887, 214, § S9.
1894, 522, § 89.
Insurance
brokers.
1869, 93, §§ 1, 2.
1871, 297, § 8.
P. S. 119, §§ 186,
187.
1887, 214, §§ 87,
93.
1894, 522, §§ 87,
93.
1895, 59, § 2.
168 Mass. 596.
Deposits of
insurance com-
panies to be
held in trust.
1856, 252, § 43.
G. S. 58, § 63.
1878, 130, §§ 1, 7.
P. S. 119, §§ 156,
218.
1883, 107.
18S4, 119.
1887, 214, § 94.
1893, 224.
1894, 522, § 94.
Return of
deposits.
DEPOSITS.
Section 94. The treasurer and receiver general in his official 1
capacity shall take and hold in trust deposits made by any domestic 2
insurance company for the purpose of complying with the laws of 3
any other state to enable such company to do business in such state ; 4
and shall also in like manner take and hold any deposit made by a 5
foreign insurance company under any law of this commonwealth. 6
The company making such deposit shall be entitled to the income 7
thereof, and may from time to time with the consent of the treas- 8
urer and receiver general, when not forbidden by the law under 9
which the deposit is made, change in whole or part the securities 10
which compose the deposit, for other approved securities of equal 11
par value. 12
Upon request of any domestic insurance company the treasurer 13
and receiver general may return to such company the whole or any 14
Chap. 118.] insurance. 1163
15 portion of the securities of such company held by him on deposit
16 if he shall be satisfied that the securities so asked to be returned
17 are subject to no liability and not required to be longer held by any
18 provision of law or for the purpose of the original deposit. And
19 he may return to the trustees or other representative authorized for
20 that purpose of a foreign insurance company any deposit made by
21 such company if it shall appear that such company has ceased to
22 do business in this commonwealth and is under no obligation
23 to policy holders or other persons in this commonwealth or in the
24 United States for whose benefit such deposit was made.
25 An insurance company which has made such deposit, or its Trust may be
26 trustees or resident manager in the United States, or the insurance fn equity. etc"'
27 commissioner, or any creditor of such company may at any time 1883>107>§3-
28 bring, in the supreme judicial court for the county of Suffolk, a
29 suit in equity against the commonwealth and other parties properly
30 joined therein to enforce, administer or terminate the trust created
31 by such deposit. The process in such suit shall be served on the
32 treasurer and receiver general who shall appear and answer on
33 behalf of the commonwealth and perform such orders and decrees
34 as the court may make thereon.
35 No company shall be required to have on deposit with the treas- Deposits with
36 urer and receiver general an amount in excess of what is sufficient recefvergen-
37 to enable it to comply with the laws of the states in which it trans- isl?1,' 214, § 31.
38 acts business ; and all amounts in excess of this amount held on de- Jf^'g^f; s a'
39 posit with the treasurer and receiver general or elsewhere shall be i|||' t^f ' 1 1*
40 counted as of the surplus funds of the company. 1900, 92, § 2; 183, § 2.
RECEIVERS.
1 Section 95. The compensation of receivers of insolvent in- compensation
2 surance companies shall be fixed by the supreme judicial court. i«i4, M^j^i
3 All accounts rendered to the court by such receivers shall be re- llvl; Iff §§i^"
4 ferred to the insurance commissioner for his examination and report p.8!'. 119, §§ 16$
5 thereon. 1887, 214, § 95. 1894,522,195. 169,173.
114 Mass. 230. 115 Mass. 67, 278. 118 Mass. 300. 119 Mass. 155.
6 Such receivers, at the expiration of one year after final settlement f|p^Jterst0
7 ordered bv the court, shall report to the court the names and resi- unclaimed
8 dences, if known, of the persons entitled to money or dividends i883,33,§5;
9 from the estate of such companies remaining in their hands uncalled flle^ioo, §2.
10 for, with the amount due to each. The court shall thereupon order
11 a notice to be given by the receivers and, upon the expiration of
12 one year after the time of giving such notice, the receivers shall in
13 like manner report the amounts still uncalled for. Unless cause
14 shall appear for decreeing otherwise, such amounts shall then be
15 ordered to be paid into the treasury of the commonwealth, and
16 schedules signed by the receivers shall at the same time be deposited
17 with the treasurer and receiver general and auditor, setting forth
18 the decree of the court and the names and residences, so far as
19 known, of the persons or parties entitled thereto alphabetically ar-
20 ranged, and the amount due to each. The auditor shall forthwith
21 cause notice of such deposit to be mailed to such persons, and, upon
22 certification by him that a claimant is entitled to any part of said
23 deposit, it shall be paid in the same manner as other claims against
24 the commonwealth. Upon the payment into the treasury of the
1164
INSURANCE.
[Chap. 118.
commonwealth of such unclaimed money or dividends by the re- 25
ceiver, and the allowance by the court of his final account, or at the 26
expiration of one year after the final settlement ordered by the court 27
if he then has in his hands no unclaimed money or dividends, he 28
shall deposit with the insurance commissioner all books and papers 29
of such company, including those relative to his receivership, which 30
shall be preserved by the commissioner. 31
Companies to
make annual
statements.
1837, 192, §§1,2.
1838, 178, § 2.
1842, 9, §§ 1, 3.
1849, 104, § 4.
1851, 281, § 21.
1852, 227, §§1,3;
231, §5; 311, §14.
1854, 453, §§ 37,
45.
1856, 252, §§ 8,
56.
Form.
ANNUAL STATEMENTS.
Section 96. Every insurance company shall annually, on or
before the fifteenth day of January, file in the office of the insurance
commissioner a statement which shall exhibit its financial condition
on the thirty-first day of December of the previous year, and its
business of that year. For cause the commissioner may extend
the time within which any such statement may be filed, but not to
a date later than the fifteenth day of February.
Companies
of foreign
countries.
1884, 58.
flOp. A.G.
423.]
Fee for filing.
New business
after default
unlawful.
1859, 146.
G. S. 58, §§ 25, 75.
1860, 156.
1862, 181, §§6, 7.
1867, 267, §§ 2-4.
1870, 349, §§ 2, 3.
P. S. 119, §§ 226, 229.
1883, 33, § 4.
1884, 217.
1887, 214, § 96.
1894, 522, § 90.
Such annual statement shall be in the form required by the insur-
ance commissioner. He shall embody therein, so far as appropriate to
the several companies, the substance of the appended forms, with any
additional inquiries he may require for the purpose of eliciting a
complete and accurate exhibit of the conditions and transactions
of the companies. The assets and liabilities shall be computed and
allowed in such statement in accordance with the rules stated in sec-
tion eleven. Such statement shall be subscribed and sworn to by
the president and secretary, or, in their absence, by two of its prin-
cipal officers.
The annual statement of a company of a foreign country shall
embrace only its business and condition in the United States, and
shall be subscribed and sworn to by its resident manager or prin-
cipal representative in charge of its American business.
For filing each annual statement each foreign company shall pay
to the commonwealth twenty dollars.
The transaction of any new business by any company or its agents
which has failed to file a statement in the manner herein provided
shall, after notice to that effect from the insurance commissioner,
be unlawful while such default continues.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Complainant
entitled to one-
half of fine in
certain cases.
ia<52, 231, §10;
311, § 17.
1873, 142.
P. S. 119, § 182.
PENALTIES.
Section 97. The person, if other than the insurance commis- 1
sioner or his deputy, upon whose complaint a conviction is had for 2
violation of the law prohibiting insurance in or by foreign com- 3
panies not authorized to do business in this commonwealth, shall be 4
entitled to one-half of the fine recovered upon sentence therefor. 5
1887, 214, § 97. 1894, 522, § 97.
Penalty for
negotiation of
unlawful
contracts.
1826, 141, § 3.
R. S. 37, § 43.
1854, 453, §§ 36,
40.
1856, 252, § 49.
Section 98. A person who assumes to act as an insurance agent 1
or insurance broker without license therefor as herein provided, or 2
who acts in any manner in the negotiation or transaction of unlaw- 3
ful insurance with a foreign insurance company not admitted to do 4
business in this commonwealth, or who, as principal or agent, violates 5
Chap. 118.] insurance. 1165
6 any provision of this chapter relative to the negotiation or effecting 1857, 259, § 1.
7 of contracts of insurance, shall be punished for each offence by a fine 77. S' 58, §§ 72'
8 of not less than one hundred nor more than five hundred dollars. FsVf 200.9' §§ 185'
1887, 214, § 98. 160 Mass. 413. 173 Mass. 119.
1894, 522, § 98. 168 Mass. 596. 175 Mass. 154.
1 Section 99. A person licensed under the provisions of section Penalty for
2 eighty-three, who procures or acts in any manner in the procure- of if^el0*8
3 ment or negotiation of insurance in any unauthorized foreign com- f8e8r7802°4 § 99
4 pany, and who neglects to make and file the affidavit and state- 1894> 522> § "•
5 ments required by said section, or who wilfully makes a false
6 affidavit or statement, shall forfeit his license and be punished by
7 a fine of not less than one hundred nor more than five hundred dol-
8 lars or by imprisonment for not more than one year, or by both
9 such fine and imprisonment.
1 Section 100. A company or an agent thereof who issues or cir — forfaiiureto
2 culates advertisements in violation of the provisions of section ties with iablU'
3 eighteen shall be punished by a fine of not less than fifty nor more m£f%, § 2.
4 than five hundred dollars. 1887, 214, § 100. 1894, 522, § 100. P- S- 119, § m
1 Section 101. A companjr which neglects to make and file its —for neglect
2 annual statement in the form and within the time provided by sec- ments.'6 state"
3 tion ninety-six shall forfeit one hundred dollars for each day during illl* gf§' J. 3"
4 which such neglect continues, and, upon notice by the insurance alii) 227' 1 2"
5 commissioner to that effect, its authority to do new business shall *j|*> |p» | |i-
6 cease while such default continues. For wilfully making a false p- s. 08,' § 26.
7 annual or other statement required by law, an insurance companv p s'. 119, § 230.
1 ftft'* *?1 A. R 1 C\~\
8 and the persons making oath to or subscribing the same shall sev- 1894,' 522,' § 101!
9 erally be punished by a fine of not less than five hundred nor more
10 than five thousand dollars. A person who makes oath to such false
11 statement shall be guilty of perjury.
1 Section 102. For making any reinsurance in violation of the — formnsur.
2 provisions of section twenty an insurance company and the agent tion of § 20.
3 effecting or acting in the negotiation of such reinsurance shall sev- 1894) 522) § 102!
4 erally be punished by a fine of five hundred dollars.
1 Section 103. An insurance company which insures upon a —for over-
2 single risk a larger amount than the law permits shall be punished 1887,214, §103.
3 by a fine of five hundred dollars. '
1 Section 104. An officer or agent of a life insurance company —for issue of
■ 1 • life uolicics
2 who, after notice by the commissioner, issues a new policy, in vio- after notice
3 lation of the provisions of section sixty-six, shall forfeit not more m™2u*pm.
4 than one thousand dollars for each offence. . 1894, 522, § 104.
1 Section 105. An insurance company or agent who makes, issues — forusueof
2 or delivers a policy of fire insurance in wilful violation of the pro- other than
3 visions of section sixty shall forfeit not less than fifty nor more than 1873, m, §§3^
4 two hundred dollars for each offence ; but such policy shall be \& 166i § 2.
5 binding upon the company issuing the same. 1894, 522, § 105. issv,' 214,' § 105."
1166
INSURANCE.
[Chap. 118.
Penalty
for unlawful
guaranty to
policy holder.
1860, 149.
P. S. 119, § 108.
1887, 2H, § 106.
1894, 522, § 106.
Section 106. A director or other officer of a mutual fire in- 1
surance company who officially or privately gives a guaranty to a 2
policy holder thereof against an assessment for which such policy 3
holder is liable shall be punished by a fine of not more than one 4
hundred dollars for each offence. 5
— for proxy
vote by officer
or agent.
1887, 214, § 107.
1894, 522, § 107.
Section 107. A paid officer or agent of a domestic mutual in- 1
surance company who asks for, receives or procures to be obtained 2
or uses a proxy to vote in violation of the provisions of section 3
forty or section seventy-four shall be punished by a fine of not less 4
than one hundred nor more than three hundred dollars for each 5
offence. 6
tron°ofbcSomC" Section 108. Whoever, without justifiable cause, neglects, upon
missioner, etc. due summons to appear and testify before the commissioner as pro-
231, § s. ' ' vided in section six, and whoever obstructs the commissioner, his
p.' s.' ii9, § io. deputy or examiner, in his examination of an insurance company,
is94[ 522', § 108! shall be punished by a fine of not more than one thousand dollars
or by imprisonment for not more than one year.
1
2
3
4
5
6
crimimf«ondis Section 109. A life company or an officer or agent thereof who 1
ill' I22' ! 109' vi°lates any of the provisions of section sixty-nine shall be punished 2
for each offence by a fine of not more than one hundred dollars. 3
— for unau-
thorized for-
eign agencies.
1897, 186.
Section 110. A domestic fire insurance company which estab- 1
lishes an agency or appoints an agent or other person to solicit or 2
transact business for it in a state in which such corporation has not 3
been lawfully authorized to transact business or which pays or 4
allows a commission or emolument to any person within such state, 5
for the solicitation or procurement of insurance upon property 6
therein, shall be punished by a fine of not less than three hundred 7
dollars. 8
vLfia«onser Section 111. Whoever violates any provision of this chapter, 1
1894 I22' 1 110' ^ie Penalty whereof is not specifically provided for herein, shall be 2
punished by a fine of not more than five hundred dollars. 3
Enforcement
of reciprocal
obligations.
18S7, 214, § 111.
1894, 522, § HI.
Agent or
broker to be
deemed guilty
of larceny in
certain cases.
1S78, 166, § 2.
P. S. 203, § 47.
Section 112. Compliance with the provisions of section eighty- 1
five as to deposits, obligations and prohibitions, and the payment 2
of taxes, fines, fees and penalties by and upon foreign insurance 3
companies, may be enforced in the ordinary course of equity pro- 4
cedure by information brought in the supreme judicial court by the 5
attorney general at the relation of the insurance commissioner. 6
An insurance agent or broker who acts in negotiating a contract 7
of insurance by an insurance company lawfully doing business in 8
this commonwealth, and who embezzles or fraudulently converts to 9
his own use, or with intent to use or embezzle, takes, secretes or 10
otherwise disposes of, or fraudulently withholds, appropriates, 11
lends, invests or otherwise uses or applies any money or substitute 12
for money received by him as such agent or broker, contrary to 13
the instructions or without the consent of the company for or on 14
account of which the same was received by him, shall be deemed 15
guilty of larceny. 16
Chap. 11 8. J insurance. 1167
A. — Form of Return for Stock Insurance Companies, except Life.
(1.) State the name of the company. (2.) Where located. (3.) When Form A.
incorporated and for what period. (4.) Amount of capital. (5.) Amount of
capital actually paid in. (6.) Cash value of real estate owned. (7.) Amount
loaned on mortgage of real estate. (8.) Amount and description of each kind
of bonds and stocks owned, with par and market value. (9.) Amount loaned
on collateral ; par and market value of each security pledged. (10.) Amount
of cash on hand. (11.) Amount of gross premiums in course of collection.
(12.) Amount of bills receivable, not matured, taken for premiums. (13.)
Amount of all other property or investments. (14.) All outstanding losses.
(15.) Amount of unearned premiums on policies in force. (16.) All other
liabilities and claims against the company. (17.) Amount of cash received for
premiums. (18.) Amount of notes received for premiums. (19.) Amount
received for interest and rents. (20.) Amount of income received from all
other sources. (21.) Amount paid for losses. (22.) Amount paid for divi-
dends. (23.) Amount paid for expenses. (24.) All other expenditures.
(25.) State amount of risks written, terminated and in force, with gross pre-
miums thereon.
B. — Form of Return of Mutual Companies, except Life.
(1.) State the name of the company. (2.) Where located. (3.) When FormB.
incorporated and for what period. (4.) Amount of guaranty fund, if any.
(5.) Cash value of real estate owned. (6.) Amount loaned on mortgage of
real estate. (7.) Amount and description of each kind of stocks and bonds
owned, with par and market value. (8.) Loans on collateral, with par and
market value of each security pledged. (9.) Cash in office and in bank.
(10.) Gross premiums in course of collection. (11.) All other loans, invest-
ments and property. (12.) Premium notes liable to assessment. (13.)
Amount of scrip outstanding. (14.) All outstanding losses. (15.) Unearned
premiums. (16.) Dividends declared and unpaid. (17.) Borrowed money.
(18.) All other liabilities and claims against the company. (19.) Cash re-
ceived for premiums. (20.) Cash received for interest and rent. (21.) Pre-
mium notes received. (22.) Income from all other sources. (23.) Paid for
losses. (24.) Paid for expenses. (25.) Surplus returned to policy holders.
(26.) All other expenditures. (27.) Scrip dividends declared. (28.) State
amount of risks written, terminated and in force, with gross premiums thereon.
C. — Form of Return of Life Insurance Companies.
(1.) The name of the company. (2.) Where located. (3.) When incor- Form C.
porated and for what period. (4.) Amount of capital stock or guaranty fund.
(5.) Cash value of real estate owned. (6.) Amount loaned on mortgage of
real estate. (7.) Amount and description of each kind of bonds and stocks
owned, with par and market value. (8.) Loans on collateral, with par and
market value of each security pledged. (9.) Cash in office and in bank.
(10.) Premium notes and loans on policies in force. (11-) Outstanding and
deferred premiums on policies in force. (12.) All other loans, investments
and property. (13.) All outstanding losses and policy claims. (14.) Divi-
dends of surplus due policy holders. (15.) Forfeitures and surplus accrued,
held for and to be divided to any special class of policy holders ; surplus ac-
crued on policies in force, not yet due to be distributed. (16.) All other liabili-
ties and claims against the company. (17.) Cash received for premiums.
(18.) Cash received for interest and rents. (19.) Income from all other
sources. (20.) Paid for losses and claims. (21.) Dividends of surplus to
policy holders. (22.) Paid for expenses. (23.) All other expenditures.
(24.) Number, date, amount and kind of each outstanding policy not here-
tofore returned, gross premium thereon, and age of the insured. (25.) Num-
ber, 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.
1168
FRATERNAL BENEFICIARY CORPORATIONS.
TChAP. 119.
CHAPTEE 119.
OF FRATERNAL BENEFICIARY CORPORATIONS.
Formation of
corporation.
1888, 429, § 1.
1894, 367, § 1.
1898, 474, § 1.
1899, 442, § 1.
1901, 422, § 1.
151 Mass. 558.
161 Mass. 364.
172 Mass. 278.
Section 1. Seven or more persons, residents of this common- 1
wealth, may form a fraternal beneficiary corporation for the pur- 2
pose of providing for the payments of benefits in the case of death 3
or disability, or of both. The disability may be temporary or per- 4
manent and the result of sickness or of accident. Any educational, 5
charitable, benevolent or social purpose may be united therewith. 6
The membership may be limited to members of a particular order, 7
class or fraternity ; to the employees of towns or cities, the com- 8
mon wealth, or the federal government, or of a designated firm, busi- 9
ness house or corporation ; or to persons of the same occupation. 10
If its membership is not limited as above provided, its business 11
shall be conducted on the lodge system, with a representative form 12
of government, and, in such case, the incorporators, their successors 13
and associates, with the officers, ex-presiding officers, and such per- 14
sons as may be admitted as representatives, shall be a supreme or 15
governing body, with power to create subordinate bodies by the 16
grant to applicants therefor of charters authorizing those named 17
therein to organize as a subordinate lodge and to admit members 18
after its organization, in accordance with such ritual as the supreme 19
or governing body may prescribe. 20
Organization,
etc.
1888, 429, §§ 2-
4,7.
1894, 367, §§ 2-
4,7.
1898, 474, §§ 2-
4,7.
1899, 442, §§ 2-
4,7.
[l Op. A. G.
ill.]
1888, 429, § 5.
1894, 367, § 5.
1898, 474, § 5.
1899, 442, § 5.
1901, 422, §§ 2-5,
7,11.
Section 2. The corporation shall be formed in the manner pre- 1
scribed in, and be subject to the provisions of, sections fifteen to 2
twenty, inclusive, of chapter one hundred and ten, except as fol- 3
lows : 4
The agreement shall omit the statement of the amount of its 5
capital stock and the par value and number of its shares. 6
All officers shall be elected by ballot and the president shall be 7
included among the officers to be elected at the first meeting by 8
the associates, and no person who has not subscribed the agree- 9
ment of association shall be eligible as a director or other officer. 10
The provisions of section six of chapter one hundred and twenty- 11
five shall apply to such corporation, except that the financial officer 12
shall not be required to sign or make oath to the certificate of 13
organization. 14
The by-laws may, unless it is otherwise provided, also prescribe 15
the officers and elective members of standing committees, who may 16
be, ex officiis, directors or other officers corresponding thereto ; the 17
method of calling its meetings and the notice thereof which shall be 18
given ; the right of attendance, individual or representative, at its 19
meetings ; the assessments and benefits in case of disability or death, 20
and the conditions upon which the same shall be paid ; the amount 21
which shall be deemed one full individual assessment for the re- 22
spective funds and for calls for fractional parts thereof ; and the loss 23
or forfeiture of membership and benefits, the method of the amend- 24
ment of the by-laws and such other provisions as the corporation 25
may determine. 26
If the corporation conducts its business as a fraternal society on 27
Chap. 119.] fraternal beneficiary corporations. 1169
28 the lodge system, it shall have a ritualistic form of work and no per-
29 son shall be admitted as a member thereof unless he has previously
30 made a written application therefor, and has been initiated in, and
31 become a member of, a local branch of said corporation. Its by-
32 laws shall provide that meetings of said branches shall be held at
33 least once each month, and may provide that, in addition to rep-
34 resentatives chosen by the grand or subordinate bodies, the in-
35 corporators, officers, members of standing committees and the
36 ex-presiding officers of the supreme or governing body may be
37 members thereof.
38 The certificate of organization and the records shall be submitted
39 to the insurance commissioner, instead of the commissioner of
40 corporations, and he shall perform the duties relative thereto which
41 are required of the commissioner of corporations relative to manu-
42 facturing corporations.
43 The fee to be paid to the secretary of the commonwealth upon
44 the filing of the certificate of organization shall be five dollars.
1 Section 3. Officers chosen at the first meeting of the associ- T^re of
2 ates shall hold office until the next meeting of the corporation for J888, i2?. § e.
3 the election of officers, the date of which, within two years of the is98', 474^ § 6!
4 time of organization, shall be prescribed by the by-laws. At such 1901; 422', § e'.
5 meeting, and thereafter at least biennially, the officers shall be
6 chosen by ballot and shall hold office until their successors are
7 elected and qualified. Standing committees or boards having pre-
8 scribed duties under the by-laws, including those the members of
9 which are by such by-laws made directors or other officers corre-
10 sponding thereto, may be constituted by the election of one or more
11 members thereof annually, to serve for not more than three years
12 under any one election. No person shall be elected or appointed
13 to an administrative position for more than three years at any one
14 election or appointment.
1 Section 4. No corporation organized as aforesaid subsequent to Not to com-
2 the twenty-third day of May in the year nineteen hundred and one SfS8?untn!"
3 to conduct business as a fraternal society on the lodge system, or 1111; f f2) 1 il
4 which limits its membership to a particular order or fraternity, shall ^99, 442, § 8.
5 incur any liability or issue any benefit certificate until it has re-
6 ceived from the insurance commissioner a certificate to the effect
7 that it has complied with all the requirements of law and is duly
8 authorized to transact business in this commonwealth ; but the fore-
9 going provision shall not apply to a corporation which confines its
10 membership to that of a particular order or fraternity in any one
11 county, or to a lodge of such order or fraternity. Before such cer-
12 tificate is granted, the corporation must present satisfactory evidence
13 to the insurance commissioner that at least five hundred persons have
14 each paid one advance assessment for its mortuary or disability busi-
15 ness, or both if such business is combined, at its established rates,
16 and have become bona fide members of the corporation. Ifsuchcor-
17 poration is a fraternal society on the lodge system, paying a death
18 benefit, it must also show that it has established mortuory assess-
19 ment rates which are not lower than those indicated as necessary
20 on the twenty-third day of May in the year nineteen hundred and
21 one by the ''National Fraternal Congress Mortality Tables",
1170
FRATERNAL BENEFICIARY CORPORATIONS.
[Chap. 119.
Annual meet-
ing.
1898, 474, § 10.
1899, 442, § 10.
1901, 422, § 10.
unless it is a fraternal beneficiary corporation which confines its 22
membership to the employees of towns or cities, the commonwealth, 23
the federal government, of a designated firm, business house or cor- 24
poration, or to persons of the same occupation. 25
Section 5. A domestic corporation subject to the provisions 1
of this chapter may hold its annual meetings in any state, in the 2
District of Columbia, or in the Dominion of Canada or a province 3
thereof, if in such state, district or province it has one or more local 4
branches ; and its acts at such meetings shall have the same effect 5
as if done within this commonwealth. 6
Regulations.
1877, 204, § 1.
P. S. 115, § 8.
1S82, 195, §§1,2.
1888, 429, § S.
1890, 341, 400.
1891, 163.
1894, 32S; 367,
§8.
1897, 228.
1898, 474, § 11.
1899, 442, § 11.
1901, 275; 422,
§11; 487.
139 Mass. 473.
140 Mass. 5S0.
143 Mass. 216.
145 Mass. 134.
146 Mass. 217,
286, 391.
149 Mass. 512.
150 Mass. 100.
152 Mass. 288.
153 Mass. 314.
156 Mass. 431,
435.
15S Mass. 224,
322.
159 Mass. 9.
162 Mass. 98.
165 Mass. 421.
168 Mass. 391.
171 Mass. 456.
175 Mass. 396.
Section 6. A corporation duly organized and transacting busi- 1
ness under the provisions of this chapter, which conducts its 2
business as a fraternal society on the lodge system, or which limits 3
its certificate holders to a particular order, class or fraternity, or to 4
the employees of towns or cities, the commonwealth, or the federal 5
government, or of a designated firm, business house or corporation, 6
or to persons of the same occupation may make provision for the 7
payment of benefits in case of death or disability or of both. The 8
funds from which the payment of such benefits shall be made 9
shall be derived only from assessments collected from the members, 10
except as provided in sections eight, nine and ten. The fund from 11
which the expenses shall be defrayed may be derived from a per 12
capita tax, dues or expense assessments. Such provisions, funds, 13
assessments and payments shall be as required in the by-laws 14
of the corporation. The benefit certificate shall, in effect, provide 15
that if the death of the member therein named shall occur when 16
one full assessment on each member would not amount to the face 17
amount of the maximum certificate of such corporation, then the 18
amount paid the beneficiary thereunder shall not exceed the amount 19
of such full assessment or the proportionate part thereof which 20
said face amount named in such certificate bears to such maximum 21
certificate, but this restriction shall not apply to a corporation 22
which confines its membership to the permanent employees of 23
towns or cities, the commonwealth, or the federal government, nor 24
to a corporation having an emergency or reserve fund, until such 25
fund shall have been exhausted. Such death benefit shall be pay- 26
able only to the husband, wife, betrothed, child by legal adoption, 27
parent by legal adoption, or relatives of, or persons dependent 28
upon, the member named in the benefit certificate ; but a member 29
of any fraternal beneficiary corporation may, with the consent of 30
the officers thereof, name as beneficiary a home located within this 31
commonwealth and incorporated under the laws thereof, and main- 32
tained and supported by any secret fraternity or order for the 33
care and maintenance of its aged, infirm, indigent or unfortunate 34
members, or for the care and support of the wife or widow of such 35
member, or for the care, support and education of -minor children of 36
such members or of deceased members, to the extent of the amount 37
disbursed for the benefit of said member, wife, widow or child, by 38
such home, at rate of average cost of maintenance thereof, during 39
the period of occupancy of such member, wife, widow or child, 40
with any sums expended for assessments, dues, tax or other pay- 41
ments by such home by reason of such benefit certificates ; and, 42
Chap. 119.] fraternal beneficiary corporations. 1171
43 subject to the limitations of this section, another person as benefi-
44 ciary of the remainder. If a benefit certificate has been lawfully
45 issued and the beneficiary therein named and the husband, wife,
46 betrothed, child, child by legal adoption, parent, parent by legal
47 adoption, or persons dependent upon the member named in the
48 benefit certificate have all died, the member with the consent of the
49 officers of the corporation, and under such rules as they may pre-
50 scribe, may have any other person substituted as beneficiary therein.
1 Section 7. A corporation organized under or conducting its Death and
2 business in accordance with the provisions of this chapter may hold fSndfency
3 as a death fund belonging to the beneficiaries of members when p8s'.ii5,§9'
4 deceased not more than the amount of three assessments from a ill'lii'lV'2'
5 general or unlimited membership, or of three assessments from J|$34l'
6 each limited class or division of its members ; and in addition 1897I 22s!
7 thereto may create, collect, maintain, disburse and apply an emer- ml', m\ 1 12!
8 gency fund in accordance with its by-laws, not however at any time lseVafs.m
9 exceeding in amount collected from its members five per cent of the 175 Mass.' m.
10 aggregate face value of all its then outstanding benefit certificates, ]& °55 f" G" *'
11 If any part of such fund payable by a member under such by-laws
12 remains unpaid at his decease, it may be deducted from the amount
13 payable to his beneficiary or beneficiaries ; but any decrease in such
14 face value shall not require a corresponding diminution of such
15 emergency fund. The emergency fund shall be used only for the
16 payment of death or disability benefits. Such death fund while
17 held in trust shall be invested in securities in which insurance com-
18 panies may invest their capital, or deposited in safe banking insti-
19 tutions subject to sight drafts, for distribution to the beneficiaries
20 aforesaid. Whenever the death fund exceeds, above all known
21 liabilities, the amount of three assessments as aforesaid, such excess
22 shall be transferred to the emergency fund. Such emergency fund
23 shall be invested in securities in which insurance companies may
24 invest their capital, but a part thereof, not exceeding twenty per
25 cent, may be invested in a building for use and occupancy by the
2Q corporation as its home office within this commonwealth. Such
27 securities, if registered or recorded, shall be taken and stand in the
28 name of the corporation, and all the securities in which the emergency
29 fund is invested shall be deposited with the treasurer and receiver
30 general ; but the corporation may at any time exchange any part of
31 said securities for other authorized securities which the treasurer
32 and receiver general determines are of equal value. No part of
33 said securities shall be withdrawn except upon a requisition signed
34 by three-fourths of the directors or executive committee, or other
35 officers corresponding thereto, and indorsed by the insurance com-
36 missioner, setting forth that the same is to be used for the purposes
37 of the trust. The income from securities so deposited shall be paid
38 to the corporation for the uses of the fund as specified in the by-
39 laws. No sale, assignment, release, discharge, or surrender of
40 securities so deposited to or in favor of any obligor, mortgagor or
41 other person, shall be valid against the corporation owning the
42 same, unless the original papers which constitute, or are the evi-
43 dence of, said securities, are transferred or surrendered to the
44 person entitled thereto, except in case of the actual loss or destruc-
45 tion thereof.
1172
FRATERNAL BENEFICIARY CORPORATIONS.
[Chap. 119.
Restrictions.
1897, 228.
1898, 474, § 11.
1899, 442, § 13.
1901, 422, § 13.
Section 8. No part of the death, disability, or emergency
funds herein provided for shall be used for any purposes other
than those specifically prescribed in this chapter, and no assessment
for the disability fund shall be called while there remains on hand
of such fund an amount equal to that received from three assess-
ments ; but payments for total permanent disability may be made
from the death fund if made in a single payment.
No contract Under this chapter shall be valid which shall be
conditional upon an agreement or understanding that the person
to whom the death benefit is made payable shall pay the dues or
assessments. Death, disability and expense assessments may be
called together ; but the proportion to be used for each purpose shall
be distinctly stated and the amount received for each fund shall be
held and used only in the manner heretofore specified ; but transfers
from the expense fund to any other fund may be made by the
directors.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
i894?60fr367?'§ 9. Section 9. A domestic corporation subject to the provisions
1899* ill' I ll" °f tlns chapter, in addition to the revenues in this chapter provided,
i9w| 422; § 14! may receive and hold gifts, bequests and money from other sources,
which shall be held in a separate fund ; subject however to transfer
in accordance with its by-laws to funds herein authorized.
1
2
3
4
5
toe^upreme40 Sectton 10. A corporation organized under or conducting its 1
i899y442 Ti5r' business in accordance with the provisions of this chapter, which 2
i9oi; 422; § is. on the twenty-eighth day of June in the year eighteen hundred and 3
ninety-nine was, or the members of which then formed, a part or 4
jurisdiction of one general order or fraternity conducted on the 5
lodge system and paying only death, sick, disability or old age 6
benefits, and having a common name and ritualistic ceremonies, and 7
which corporation was then in affiliation with the supreme or gov- 8
erning body of such order or fraternity, may continue to affiliate 9
with and contribute to the support of such supreme body under the 10
methods and laws then existing, or which have been or hereafter 11
may be adopted by both said corporation and supreme body, and 12
in addition to the other rights and authority conferred by this 13
chapter may by assessments or through its other funds provide for 14
death benefits and the payment thereof, and may pay death benefits, 15
to or for the beneficiaries of deceased members of such order or 16
fraternity, holding benefit certificates issued not by said corpora- 17
tion but by said supreme body or by one of the grand or subordinate 18
bodies thereof organized or incorporated elsewhere than in this com- 19
monwealth, under an arrangement or agreement with said supreme 20
body and in compliance with the laws or rules thereof, whereby said 21
corporation may afford relief and aid by payment of or for such 22
death benefits as aforesaid, or itself receive similar payments for 23
relief and aid to the beneficiaries of its deceased members as the 24
case may require and such laws and rules provide ; but this authority 25
shall not permit the payment of benefits other than those arising 26
from death. 27
Expense
assessments.
1882, 195, § 4.
Section 11. A corporation organized under or conducting its 1
business in accordance with the provisions of this chapter, and which 2
Chap. 119.] fraternal beneficiary corporations. 1173
3 has no provision for a per capita tax, or for dues payable to the 1888, 429, § 10.
4 supreme or governing body for expenses, may make not more than lls^f^'
5 three assessments a year, to meet its reasonably necessary expenses, ll^'tvi3^9,
6 The purpose of such assessments shall be clearly stated in calls 1899> 442> § 16-
7 therefor, and no expense assessment shall be called while the amount
8 of one assessment remains on hand.
9 A corporation organized as aforesaid which limits its membership Annuities and
10 to the permanent employees of towns or cities, the commonwealth, gra m ie8'
11 or the federal government, and which does not pay death benefits,
12 may pay annuities or gratuities contingent upon disability or long
13 service, and may fix the amount of the annual assessment therefor.
14 A corporation which is subject to the provisions of this chapter Reinsurance,
15 may reinsure with or transfer its membership, certificates or funds 1901, 422°fi6.
16 to any other corporation or organization which is authorized to do
17 business under this chapter in this commonwealth. The agreement
18 of transfer or reinsurance shall first be submitted to and approved
19 by a two-thirds vote of the certificate holders of each corporation
20 or organization present at meetings called to consider the same, of
21 which meetings written or printed notice shall be mailed to each
22 certificate holder at least thirty days before the day fixed for the
23 meeting, and such agreement shall not take effect until a certified
24 copy thereof is filed with the insurance commissioner. The mem-
25 bers of fraternal beneficiary corporations shall not vote by proxy ;
26 but if the instrument appointing the proxy is filed with the secretary
27 of the corporation at least fifteen days before the day fixed for a
28 meeting called to consider the agreements of transfer aforesaid, they
29 may so vote at such meeting.
1 Section 12. A fraternal beneficiary corporation, — or an asso- Exemptions.
2 ciation which limits its membership to a particular order, class or 1898^ 474,' § 12.
3 fraternity, or to the employees of towns or cities, the commonwealth, 190?; lf|f 17.'
4 or the federal government, or of a designated firm, business house
5 or corporation, — or a secret fraternity or order, — or a purely
6 charitable association or corporation existing on the twenty-eighth
7 day of June in the year eighteen hundred and ninety-nine or on
8 the twenty-third day of May in the year nineteen hundred and one,
9 — any one of which pays a death or funeral benefit not exceeding
10 two hundred dollars, or disability benefits not exceeding ten dollars
11 a week, or both, and which is not conducted as a business enterprise
12 or for profit, may transact in this commonwealth such business,
13 without otherwise conforming to the provisions of this chapter.
1 Section 13. A fraternal beneficiary corporation organized under Foreign corpo-
2 the laws of another state of the United States or of the Dominion ifsftg, § 11.
3 of Canada or a province thereof and paying only disability and \lf2't%]-
4 death benefits may be admitted to do the business defined in this ig»'. jbi, | ^
5 chapter if it files with the insurance commissioner a duly certified laps! m, § 13.
1 . t n • , 1899, 442, § 18.
6 copy of its charter and agreement of association, and a copy of its woo, 185.
7 constitution and by-laws certified to by its secretary or correspond- 14s k&el. m.
8 ing officer, with the appointment of such commissioner as the person iJSs mms! US'.
9 upon whom process shall be served as provided in section four of
10 chapter one hundred and twenty-six, and a statement under oath of
11 the president and secretary in the form required by such commis-
12 sioner of its business for the preceding year, if such corporation
1174
FRATERNAL BENEFICIARY CORPORATIONS. [CHAP. 119.
Annual state-
ment.
1880, 196, § 1.
P. S. 115, § 11.
1882, 195, § 3.
1888, 429, § 12.
1890, 341.
1894, 367, § 11.
1898, 474, § 14.
1899, 442, § 19.
1901, 422, § 19.
shall be shown to be authorized or permitted to do business in the IS
state, dominion or province in which it is incorporated or organized, 14
and if similar corporations organized under the laws of this com- 15
monwealth are authorized to do business in such state, dominion 16
or province. No such corporation which was not doing business in 17
this commonwealth on the twenty-third day of May in the year 18
nineteen hundred and one shall hereafter be admitted to do such 19
business in this commonwealth unless it shall have adopted and 20
have in force mortuary assessment rates which are not lower than 21
those then indicated as necessary by the " National Fraternal Con- 22
gress MortalhVy Tables." If any other state, the Dominion of Canada 23
or a province thereof shall impose any obligation in excess of the 24
obligations imposed by the provisions of this chapter upon any such 25
corporation of this commonwealth, like obligation shall be imposed 26
on similar corporations of such state, dominion or province doing 27
business in this commonwealth. The transaction of the business 28
denned in this chapter by any corporation, association, partnership 29
or individuals, unless organized, continuing or admitted as provided 30
herein, is forbidden. A corporation heretofore admitted to do busi- 31
ness in this commonwealth under the corresponding provisions of 32
earlier laws may continue such business without being re-admitted, 3S
but shall otherwise be subject to the provisions of this chapter. 34
Section 14. A corporation doing business under the foregoing 1
provisions shall annually, on or before the first day of February, 2
report to the insurance commissioner the location of its principal 3
office in this commonwealth, and the names and addresses of its 4
president, secretary and treasurer, or other officers corresponding 5
thereto ; and shall make under oath such statements of its member- 6
ship and financial transactions for the year ending on the preceding 7
thirty-first day of December, as the commissioner may require 8
to show its business and standing ; and at all times shall make 9
under oath all statements relative to said corporation required by 10
said commissioner. For cause the commissioner may extend the 11
time within which an annual statement may be filed, to a date not 12
later than the first day of March. Such statement shall be sub- 13
scribed and sworn to by the president and secretary of the cor- 14
poration, or officers corresponding thereto. For wilfully making 15
a false statement, if the statement, whether annual or otherwise, is 16
required by law, the corporation and the persons making oath to 17
or subscribing the statement shall severally be punished by a fine of 18
not less than one hundred nor more than five hundred dollars. 19
Examination
by insurance
commissioner.
1901, 422, § 19.
Section 15. The insurance commissioner shall, upon request 1
of a domestic corporation doing business on the lodge system, person- 2
ally or by some person designated by him visit such corporation 3
and thoroughly inspect and examine its aifairs, especially as to its 4
financial condition. When he determines it to be prudent for the 5
protection of the certificate holders in the commonwealth, he may in 6
like manner visit and examine, or cause to be visited and examined 7
by some competent person or persons whom he maj^ appoint for the 8
purpose, any foreign fraternal beneficiary corporation applying for 9
admission or already admitted to do business in this commonwealth, 10
and such foreign corporation shall pay the expense of such examina- 11
Chap. 119.] frateknal beneficiary corporations. 1175
12 tion . For the purposes aforesaid, the commissioner or person making
13 the examination shall have free access to all the books and papers
14 that relate to the business of such corporation, and to the books
15 and papers kept by any of its organizers, and may summon and
16 administer the oath to and examine as witnesses the directors,
17 officers, agents, organizers and trustees of any such corporation,
18 and any other persons, relative to its financial affairs, transactions
19 and condition. He may in his discretion accept, in lieu of such ex-
20 amination, the examination of the insurance department of the state,
21 the Dominion of Canada or a province thereof in which such foreign
22 corporation is organized.
1 Section 16. No corporation organized or transacting business Agents regu.
2 under the provisions of this chapter shall employ paid agents in isllf 429, §§ 8,
3 soliciting or procuring business ; but corporations which transact J^ U1
4 business as fraternal societies on the lodge system may employ Jg94, 367> §§ 8»
5 organizers in the preliminary organization of local branches, and 1898, 474, § 16.
6 members, as officers or deputies, to assist members of weak and i?oi! 422! § 21!
7 inactive local branches to increase their membership, if their com-
8 pensation does not depend upon and is not affected by such in-
9 crease, and corporations which limit their certificate holders to a
10 particular order or fraternity may employ and pay members for
11 securing new members, and any corporation may pay local col-
12 lectors. Whoever solicits membership for, or in any manner assists
13 in procuring membership in, or aids in the transaction of business
14 for, a corporation or organization not authorized to do business in
15 this commonwealth, shall be punished as provided in section twenty-
16 one of this chapter. A corporation organized or transacting business Amendment to
17 under or as defined in this chapter shall, within two months after the y" aws'
18 adoption by it of an amendment to its by-laws, file with the insur-
19 ance commissioner a copy thereof, setting forth such amendment
20 distinctly and clearly, and this copy shall be certified by its record-
21 in g: officer.
*&
1 Section 17. The money or other benefit to be paid by a cor- Exemption
2 poration authorized to do business under the provisions of this ment.a
3 chapter shall not be liable to attachment by trustee or other proc- p37^. n*', Vs.
4 ess, or be seized, taken, appropriated or applied by any legal or if||; HE,' §§i5. 2'
5 equitable process, or by operation of law, to pay a debt or liability iJH' f^' I "•
6 of a certificate holder, or a beneficiary named therein. ww, m, § 22!
1901, 422, § 22. 144 Mass. 306. 159 Mass. 14, 259. 175 Mass. 396.
1 Section 18. A solicitor, agent or examining physician who Penalties.
2 shall knowingly or wilfully make any false or fraudulent statement Htf, m\ § It
3 or representation in or with reference to any application for mem- }gg|; ^|; | ]%[
4 bership, or who shall make any false or fraudulent statement or 1901> 422> § 23-
5 representation for the purpose of obtaining any money from or
6 benefit in any corporation transacting business under the provisions
7 of this chapter shall be punished by a fine of not less than one
8 hundred nor more than five hundred dollars or by imprisonment
9 for not less than thirty days nor more than one year, or by both
10 such fine and imprisonment. A person wilfully making a false
11 statement of any material fact or thing in a sworn statement as to
12 the death or disability of a certificate holder in any such corporation,
1176
FRATERNAL BENEFICIARY CORPORATIONS.
[Chap. 119.
for the purpose of procuring payment of a benefit named in the 13
certificate of such holder, shall be guilty of perjury. 14
Receivership.
1892, 435, § 1.
1895, 340, § 1.
1898, 474, § 19.
1899, 442, § 24.
1901, 422, § 24.
159 Mass. 9.
If the insurance commissioner on investigation is
Change of pur-
pose.
1888, 429, § 17.
1894, 367, § 16.
1898, 474, § 20.
1899, 442, § 25.
1901, 422, § 25.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Section 19
satisfied that a corporation organized or conducting business under
the provisions of this chapter has exceeded its powers, or has failed
to comply with any provisions of law, or has conducted business
fraudulently, or that its condition is such as to render its further
proceedings hazardous to the public or to its certificate holders, or
if such corporation shall vote to discontinue its business, he shall
report the facts to the attorney general, who may thereupon apply to
the supreme judicial court or the superior court, which shall have
jurisdiction in equity of such application for an injunction restrain-
ing such corporation in whole or in part from the further prosecution
of business. Before making such report to the attorney general
the insurance commissioner, if he is satisfied that the corporation
has exceeded its powers, or has failed to comply with any provision
of law, or has conducted its business fraudulently, shall notify such 15
corporation of particulars in which he decides that it has exceeded 16
its powers, or of the provisions of law with which it has failed to 17
comply, or of the fraudulent matter in the conduct of its business 18
and shall give such corporation a reasonable opportunity to comply 19
with the law or amend its methods. The application shall state the 20
specific facts relied upon as in excess of power, or as neglect or 21
violation of law, or as constituting fraudulent conduct of business. 22
The court may issue such injunction forthwith or, upon notice and 23
hearing thereon, may issue an injunction or decree for the removal 24
of any officer of said corporation, and may substitute a suitable 25
person to serve in his stead until a successor is chosen, and may 26
make such further orders and decrees as the interests of the cor- 27
poration, the certificate holders and the public may require ; and 28
may, after a full hearing, appoint a permanent receiver to take 29
possession of the property and effects of the corporation, and to 30
settle its affairs, subject to such rules and orders as the court may 31
from time to time prescribe. No such injunction shall issue, and 32
no order, judgment or decree appointing a temporary or permanent 33
receiver shall be made or granted, otherwise than upon the applica- 34
tion of the attorney general, on his own motion, or at the relation 35
of the insurance commissioner, whether the commonwealth or a 36
member, or other party seeks relief. 37
Section 20. A domestic fraternal beneficiary corporation may, 1
with the approval of the insurance commissioner, change the purposes 2
for which it was organized so as to permit it to transact any business 3
authorized by this chapter. Upon such approval the presiding, finan- . 4
cial and recording officers, and a majority of its other officers having 5
the powers of directors, shall file in the office of the secretary of the 6
commonwealth a certificate, with the approval of the insurance com- 7
missioner indorsed thereon, setting forth the change in the pur- 8
poses of the corporation. The secretary of the commonwealth shall, 9
upon receipt thereof and upon the payment of five dollars, cause 10
such certificate to be filed and recorded in his office. Such action 11
shall operate to reincorporate the corporation hereunder, but rein- 12
corporation shall not be required. Every domestic fraternal benefi- 13
Chap. 120.] assessment insurance. 1177
14 ciary corporation may continue to exercise all the rights, powers and
15 privileges conferred by the provisions of this chapter or of its
16 certificate of incorporation or charter not inconsistent herewith, and
17 shall be subject to the provisions of this chapter, as if reincorpo-
18 rated hereunder. No certificate of incorporation granted under the Failure to do
19 provisions of this chapter shall continue valid after one year from busine8B-
20 the date of such certificate, unless the organization has been com-
21 pleted and business begun thereunder. The certificate of incorpo-
22 ration or the charter of any corporation subject to the provisions of
23 this chapter, and any certificate hereafter granted under the pro-
24 visions of this chapter, shall become invalid if during a period of
25 twelve months no business is transacted thereunder.
1 Section 21. A corporation, association or society transacting Penalties.
~ 1888 4-^Q 6 18
2 business in this commonwealth and an agent or officer thereof 1893; 321; § 2. '
3 neglecting to comply with or violating any provision of this chapter i898| 474; § 21'.
4 shall be punished by a fine of not less than fifty nor more than two {901; fii; § It
5 hundred dollars or by imprisonment for not less than three months
6 nor more than two years, or by both such fine and imprisonment.
1 Section 22. The provisions of chapter one hundred and anceeiawnotrto
2 eighteen, except section ninety-five, shall not apply to corporations i^1^
3 organized or admitted under and transacting business authorized by J||7. 204, § 2.
4 the provisions of this chapter ; and corporations or associations here- p. s. 115, §16.
5 tofore exempted by special laws from the provisions of chapter four 1894; 367; § is.
** 1 OHO J^ I coo
6 hundred and forty-two of the acts of the year eighteen hundred and 1899; 442,' § 27!
7 ninety-nine shall not be subject to the provisions of this chapter. iTOMaBsA!^
CHAPTEK 120.
OF ASSESSMENT INSURANCE.
1 Section 1 . Every contract whereby a benefit is to accrue through f^/an^on
2 the death of the insured by accident or his physical disability from tbe assessment
3 accident or sickness to a party or parties named therein, which Certain
4 benefit is conditioned, not upon fixed payments but upon the col- exl'mpt.a lons
5 lection from time to time of an assessment upon persons holding \lw] HI] f \]
6 similar contracts, shall be a contract of insurance on the assessment ucVa^s. 217,
7 plan ; and the business involving the issuance of such contracts shall i?(j*MasB. 103
8 be carried on in this commonwealth only by duly organized corpo- Jj>| Mass- 224.
9 rations subject to the provisions and requirements of this chapter ; 109 Mass.' 510!
10 but fraternal beneficiary organizations conducting their business in 224.
1 1 accordance with the provisions of the preceding chapter shall be "2 Mass.' 27I.'
12 exempt from the provisions of this chapter. . j^lssfso?.']
1 Section 2. Seven or more persons, residents of this common- Formation of
2 wealth, may form a corporation for the purpose of transacting the isaTisa, §2.'
3 business of assessment insurance as hereinafter provided. IfoVa^sAoi.
1 Section 3. The corporation shall be formed in the manner pre- organization,
2 scribed in, and be subject to the provisions of, sections fifteen to i885,i83,§2.
1178
ASSESSMENT INSURANCE.
[Chap. 120.
1890, 421, §§ 3- twenty, inclusive, of chapter one hundred and ten, except as ex- 3
150 Mass. 104. pressly provided in section two of chapter one hundred and nine- 4
teen. 5
Terms of
office.
1890, 421, § 7.
Section 4. Officers chosen at the first meeting of the associates 1
shall hold office until the next succeeding meeting of the corpora- 2
tion for the election of officers, the date for which, within two years 3
of the time of organization, shall be prescribed by the by-laws, at 4
which, and thereafter at least biennially, the before-mentioned offi- 5
cers shall be chosen and shall hold office until their successors are 6
elected and qualified. 7
Business
authorized.
1885, 183, § 2.
1890, 421, § 9.
150 Mass. 104.
Section 5. Such corporation shall not assume any liability nor 1
make any other than the advance assessment nor issue any policy or 2
certificate, until at least five hundred persons have subscribed in 3
writing an agreement to be insured therein, and have each paid in 4
one full benefit assessment, to be held in trust for the beneficiaries, 5
which shall have been deposited as hereinafter provided, nor until 6
the insurance commissioner has certified that it has complied with 7
the provisions of law and is authorized to transact business. The 8
insurance commissioner may require of the applicants for such cer- 9
tificate, and at any time of the officers of any corporation organized 10
or transacting business under the provisions of this chapter, such 11
evidence, under oath or otherwise, relative to the affairs of the cor- 12
poration as he may consider necessary. 13
Amount to be
paid to assured
to be specified
in policy.
1885, 183, § 5.
1890, 421, § 10.
152 Mass. 288.
153 Mass. 173.
156 Mass. 435.
162 Mass. 100.
164 Mass. 347.
171 Mass. 194.
174 Mass. 274.
Upon failure to
pay for thirty
days may be
notified to sus-
pend business.
Investigation.
1885, 183, § 6.
1890, 421, § 11.
171 Mass. 194.
Section 6. Every policy issued by any such corporation shall 1
specify the amount of money which it promises to pay upon the con- 2
tingency insured against, which shall not be larger than the amount 3
of one benefit assessment upon the entire membership, and the 4
number of days after satisfactory proof of the happening of such con- 5
tingency at which such payment shall be made ; and upon the 6
occurrence of such contingency, the beneficiary may maintain an 7
action upon such policy in his own name ; and the indebtedness 8
thereon shall be alien upon all the property of the corporation, with 9
priority over all indebtedness thereafter incurred, except as here- 10
inafter provided in case of the distribution of assets of an insolvent 11
corporation. If the insurance commissioner shall be satisfied, on 12
investigation, that any such corporation has refused or failed to pay 13
such indebtedness for thirty days after it became due, and after proper 14
demand, he shall notify the corporation to suspend business until such 15
indebtedness is fully paid. While such notice is in force no officer 16
or agent of the corporation shall make, sign or issue any policy of 17
insurance, nor issue any notice of nor call upon the members for 18
payment of an assessment ; and all money received from any source 19
by the corporation, its agents or officers, shall be forthwith depos- 20
ited in a bank or trust company to await a final decision as provided 21
in the following section. 22
Section 7. When the insurance commissioner shall have given 1
the notice required by the provisions of the preceding section, he 2
shall proceed without delay to investigate the condition of the cor- 3
poration, and shall have full power, in person or by deputy, to ex- 4
amine its books, papers and accounts, and to examine under oath its 5
Chap. 120.] assessment insurance. 1179
6 officers, agents, clerks and policy holders, or other persons having
7 knowledge of its business ; and if it shall appear to him that its
8 liabilities exceed its resources, and that it cannot within a reasonable
9 time, not more than three months from the date of the original default,
10 pay its accrued indebtedness in full, he shall report the facts to the
11 attorney general, who shall, upon the commissioner's report, apply
12 to the supreme judicial court or the superior court for an order
13 closing the business of the corporation, and appointing a receiver for Receivership.
14 the distribution of its assets among creditors ; but ten days' notice i6iVass. 229.
15 shall be given before a final order therein, and the court may make 163Mass-560«
16 such order as the interest of the corporation and the public may
17 require.
1 Section 8. No such corporation shall transfer its risks to or Transfer of
2 reinsure them in any other corporation unless said contract of insurance,
3 transfer or reinsurance is first submitted to and approved by a two- f||g> 183 § 7
4 thirds vote of a meeting of the insured called to consider the same, 1890> 421> § 12<
5 of which meeting a written or printed notice shall be mailed to each
6 policy holder at least ten days before the day fixed for said meet-
7 irig ; and if said transfer or reinsurance shall be approved every
8 policy holder of said corporation who shall file with the secretary
9 thereof within five days after said meeting written notice of his
10 preference to be transferred to a corporation other than that named
11 in the contract shall be accorded all the rights and privileges if
12 any in aid of such transfer as would have been accorded under the
13 terms of the said contract had he been transferred to the corporation
14 named therein. Such vote of approval of a contract of reinsurance Dissolution of
15 or transfer shall operate to dissolve the corporation, and all liability rems^ance. 7
16 upon its policies shall cease at the expiration of the before-mentioned
17 five days following such vote, but its officers may thereafter perform
18 any act necessary to close its affairs. If such vote of approval of
19 reinsurance or transfer shall include an agreement for the transfer
20 of an emergency fund to the reinsuring corporation, the insurance
21 commissioner may approve an order therefor ; and thereupon the
22 treasurer and receiver general shall transfer said emergency fund in
23 accordance with said agreement.
1 Section 9. If the insurance commissioner, on investigation, is corporation
2 satisfied that any such corporation has exceeded its powers, failed powJW.Ttc.,8
3 to comply with any provision of law or is conducting business Sdeen"
4 fraudulently, he shall report the facts to the attorney general, ilS ll; f 13.
5 who shall thereupon apply to the supreme judicial court or the ra Mass. 274.
6 superior court for an injunction restraining such corporation from
7 the further prosecution of business. The court may, upon hearing,
8 issue such injunction, or decree the removal of any officer, and sub-
9 stitute a suitable person to serve in his stead until a successor is
10 chosen, and may make such other order and decrees as the interests
11 of the corporation and the public may require.
1 Section 10. Such corporations shall provide in their contracts Emergency
2 with policy holders for the accumulation of an emergency fund, accumulated.
3 which shall be at all times not less than the proceeds of one iliojlif; f fi.
4 benefit assessment on all policy holders thereof; said fund shall be JSiSSffi
5 accumulated within six months from the date of their incorporation, fj'^jfjf.^j
1180
ASSESSMENT INSURANCE.
[Chap. 120.
Investment of
fund.
Disposition of
fund when
corporation
discontinues
business.
and, together with the income thereon, shall be a trust for the pay- 6
ment of death and disability claims : provided, that when said emer- 7
gency fund is in excess of double the amount of one benefit assessment 8
upon the entire membership, the corporation may apply such excess, 9
or any portion thereof, in reduction of assessments upon policy hold- 10
ers, or in such other equitable division or apportionment thereof as 11
its rules or contracts may provide. Said fund shall be invested in 12
securities in which insurance companies are allowed by law to invest 13
their capital, and of such securities an amount not less than one as- 14
sessment shall be deposited in trust with the treasurer and receiver 15
general ; but the corporation shall have at all times, on approval of 16
the insurance commissioner, the right to exchange any part of said 17
securities for others of a like amount and character. Any portion of 18
said emergency fund may be drawn by a requisition , signed by two- 19
thirds of the directors and indorsed by the insurance commissioner, 20
setting forth that the same is to be used for the purposes of said 21
trust. If such corporation shall discontinue business the supreme 22
judicial court or the superior court may appoint a receiver to ad- 23
minister any unexhausted portion of said fund, which shall be 24
used, less such compensation, not to exceed five per cent thereof 25
if the assets exceed five thousand dollars, as the court may allow 26
the receiver: first, in the payment of accrued claims upon policies, 27
and if insufficient to pay such claims in full, in their payment pro 28
rata ; second, if a balance remain, in the payment of like claims 29
thereafter accruing in the order of their occurrence. 30
Liability of
officers for
failure to
assess.
1890, 421, § 15.
Section 11. The officers of a corporation refusing or neglecting, 1
for sixty days after the filing of satisfactory proof of the accidental 2
death of a policy holder, if the claim arising thereon is not disputed 3
and if the benefit or emergency fund is not sufficient to pay said 4
claim, to levy an assessment to provide for its payment, shall thereby 5
become liable to the beneficiary under said policy in an amount 6
not exceeding the face of said claim. 7
Admission of
foreign cor-
porations.
1885, 183, § 9.
1890, 421, § 16.
Section 12. A corporation organized under authority of an- 1
other state or government to issue policies of insurance on the 2
assessment plan, as a condition precedent to transacting business in 3
this commonwealth, shall deposit with the insurance commissioner 4
a certified copy of its charter ; a statement, under oath, of its 5
president and secretary in the form required by the insurance com- 6
missioner, of its business for the preceding year ; a certificate, under 7
oath, of its president and secretary, that it is paying, and for the 8
twelve months then last preceding has paid, the maximum amount 9
named in its policies in full ; a certificate from the proper authority 10
in its home state that corporations of this commonwealth engaged 11
according to the provisions of this chapter in insurance on the assess- 12
ment plan, are legally entitled to do business in such state ; a copy 13
of its policy and application, which must show that benefits are 14
provided for by assessment upon policy holders ; evidence satisfac- 15
tory to the insurance commissioner that the corporation has accumu- 16
lated and maintains a fund equal in amount to that required by the 17
provisions of section ten, that such accumulation is permitted by 18
the law of its incorporation and is a trust for the benefit of policy 19
holders only, and is securely invested. The insurance commis- 20
Chap. 120.] assessment insurance. 1181
21 sioner shall thereupon issue or renew a certificate authorizing such Renewal or
, ... . ° revocation of
22 corporation to do business in this commonwealth; and such au- authority to do
23 thority shall be revoked if the insurance commissioner, on investi-
24 gation, is satisfied that such corporation is not paying in full the
25 maximum amount named in its policies, or that it has otherwise
26 failed to comply with any provision of this chapter or its own con-
27 tracts. Upon such revocation the commissioner shall cause notice
28 thereof to be published in the newspaper in which the general laws
29 are published ; and no new business shall be thereafter done by it
30 or its agents in this commonwealth. A foreign corporation admitted ^s,183 14
31 under the provisions of this section to transact business shall pay,
32 on filing its application, thirty dollars, and for each annual state-
33 ment thereafter, twenty dollars. If any other state or country shall Extra duties.
34 impose any obligation in excess of those imposed by the provisions
35 of this chapter upon any such corporation of this commonwealth,
36 like obligation shall be imposed on similar corporations, and their
37 agents, of such state or country doing business in this common-
38 wealth.
1 Section 13. A foreign corporation transacting the business of ^gf1^ U8
2 insurance under the provisions of this chapter shall file with the
3 insurance commissioner the name and residence of each person it
4 shall appoint or employ to act as its agent; and whoever shall
5 assume to act as such agent, or shall, on behalf of such corporation,
6 in any manner for compensation aid in negotiating contracts of
7 insurance for a person other than himself, before such notice of
8 appointment or employment is filed, shall be punished as provided
9 in section twenty-one.
1 Section 14. A person soliciting assessment insurance for, or soliciting
c. . , . . i . l • • insurance in
2 in any manner assisting in placing such insurance in, any corpora- unauthorized
3 tion or organization not authorized to do business in this common- i89o^2if§ 19.
4 wealth shall be punished as provided in section twenty-one.
1 Section 15. No corporation doing business under this chapter Age limit, etc.
2 shall issue a policy in favor of any person as beneficiary who has isssfis-s, § io.
3 no insurable interest, and an assignment of a policy to a person ^90' m' §§ 12*
4 having no such interest shall render such policy void. No such {j^ffs. 104.
5 corporation shall insure any person who is more than seventy years Jf0^a^; £?°-
6 of age when the policy is issued, except in case of transfer or re- 348, 514.]
7 insurance as provided in section eight. Every call for payments
8 by the policy holders shall distinctly state the purpose of the same,
9 and if any part of the amount called for is to be used for expenses
10 the call shall clearly state how much. Funds received from benefit
11 calls shall be expended only in the payment of benefits, but expenses
12 incurred in investigating and contesting cases believed to be fraud-
13 ulent may be considered as part of the benefit expense.
1 Section 16. All policies issued to persons within this com- copies of
2 monwealth by corporations transacting the business of insurance e^.toVe011'
3 herein under the provisions of this chapter, which policies contain p^Cyed 10
4 any reference to the application of the insured, or the constitution, ilMsVata:
5 by-laws or other rules of the corporation, either as forming a part 172 Mass. 278.
6 of or affecting the policy or contract between the parties thereto,
1182
ASSESSMENT INSURANCE.
[Chap. 120.
Policy, etc., to
be plainly
printed.
shall contain or have attached to said policy a correct copy of the 7
application as signed by the applicant, and the portions of the con- 8
stitution, by-laws or other rules referred to ; and unless so attached 9
and accompanying the policy, no such application, constitution, 10
by-laws or other rules shall be received as evidence in any con- 11
troversy between the parties to or interested in said policy, and 12
shall not be considered a part of the policy or of the contract 13
between such parties. Said policy, application, constitution, by- 14
laws or other rules shall be plainly printed, and no portion thereof 15
shall be in type smaller than brevier ; but the provisions of this 16
section shall not apply to health certificates or contributional 17
receipts or other evidences used in reinstatement of a policy. 18
Annual re-
turns.
1885, 183, § 13.
1890, 421, § 22.
1899, 472.
158 Mass. 224,
227.
Examination
of affairs of
domestic
insurance
corporation.
— of foreign
insurance
companies.
Section 17. Every corporation doing the business of insur- 1
ance under the provisions of this chapter shall annually, on or 2
before the first day of February, return to the insurance commis- 3
sioner, in such manner and form and including such information as 4
he may require, a sworn statement of its affairs for the year ending 5
on the preceding thirty-first day of December. Such statement 6
shall be signed and sworn to by the president and secretary of the 7
corporation or, in their absence, by two of its principal officers. A 8
corporation which wilfully makes and a person who wilfully makes 9
oath to or subscribes a false statement, if the statement is required 10
by law, shall be punished by a fine of not less than five hundred nor 11
more than five thousand dollars and such person, if he has made oath 12
to such statement, shall also be guilty of perjury. The insurance 13
commissioner may personally or by his deputy, examiner or chief 14
clerk visit each domestic insurance corporation doing business on the 15
assessment plan and thoroughly inspect and examine its affairs to 16
ascertain its financial condition, its ability to fulfil its obligations, 17
and whether it has complied with the provisions of law. If he con- 18
siders it prudent for the protection of the policy holders in this 19
commonwealth, he may in like manner visit and examine, or cause 20
to be visited and examined by some competent person or persons 21
he may appoint for that purpose, any foreign insurance company 22
doing business on the assessment plan, applying for admission or 23
already admitted to do business in this commonwealth, and such '24
company shall pay the expense of such examination, including the 25
expenses of the commissioner or the persons he may appoint and 26
the expenses and compensation of all assistants employed therein. 27
For the purposes aforesaid the commissioner or person making the 28
examination shall have free access to all the books and papers that 29
relate to the business of such company, and to the books and papers 30
kept by any of its agents, and may summon, administer the oath 31
to and examine as witnesses the directors, officers, agents and trus- 32
tees of any such company and any other persons, relative to its 33
affairs, transactions and condition. 34
Benefit not
liable to
attachment.
1885, 183, § 11.
1890, 421, « 23.
150 Mass. 104.
156 Mass. 3.
Section 18. The benefit to be paid by any corporation author- 1
ized to do the business of insurance under the provisions of this 2
chapter, shall not be liable to attachment by trustee or other proc- 3
ess, or be seized, taken, appropriated or applied by any legal or 4
equitable process, nor by operation of law, to pay any debt or lia- 5
bility of a policy holder, or any beneficiary therein. 6
Chap. 121.] gas and electric light companies. 1183
1 Section 19. A person who knowingly or wilfully makes a false Penalty on
2 or fraudulent statement or representation in or relative to an ap- Smg faise°r
3 plication for insurance, or for the purpose of obtaining any money fssif i^" §' ll!5"
4 or benefit, in a corporation transacting the business of insurance 1890> 421> § u-
5 under the provisions of this chapter, shall be punished by a fine of
6 not less than one hundred nor more than five hundred dollars or by
7 imprisonment for not less than thirty days nor more than one year,
8 or by both such fine and imprisonment ; and a person who wil-
9 fully makes a false statement of a material fact or thing in a sworn
10 statement as to the death or disability of a policy holder in such
11 corporation, for the purpose of procuring payment of a benefit
12 named in the policy of such holder, shall be guilty of perjury.
1 Section 20. A corporation existing under the laws of this Reincorpora.
2 commonwealth, and now engaged in transacting the business of isss,' lis,' § 3.
3 insurance on the assessment plan may continue to exercise all itoVfBVioL'
4 rights, powers and privileges conferred by this chapter, or its
5 articles of incorporation not inconsistent herewith, subject to the
6 provisions of this chapter. No certificate of incorporation granted w^^hin6
7 under the provisions of this chapter shall continue valid after one one year-
8 year from the date thereof unless the organization has been com-
9 pleted and business begun thereunder.
1 Section 21. A corporation transacting in this commonwealth f^8^' § 26
2 insurance on the assessment plan and an agent or officer of such
3 corporation neglecting to comply with or violating any provision of
4 this chapter shall be punished by a fine of not less than one hun-
5 dred nor more than five hundred dollars.
1 Section 22. Except as hereinbefore and in chapter one hundred f^j^fe®
2 and nineteen specifically provided, all insurance or benefit contracts J^/^ §2^-
3 relative to insurance on the assessment plan within this common-
4 wealth, or with residents thereof, shall be governed by the pro-
5 visions and be subject to the limitations of chapter one hundred and
6 eighteen.
CHAPTEE 121.
OF GAS AND ELECTRIC LIGHT COMPANIES.
Sections 1-9. — Board of Gas and Electric Light Commissioners.
Sections 10-41. — Gas and Electric Light Companies.
BOARD OF GAS AND ELECTRIC LIGHT COMMISSIONERS.
1 Section 1. There shall be a board of gas and electric light com- Board of gas
2 missioners consisting of three persons, citizens of this common- ujJhtecomiSs.
3 wealth, one of whom shall annually before the first day of July be f^lut §§ l-i.
4 appointed by the governor, with the advice and consent of the coun- \*&> ||j-
5 cil, for a term of three years from said day. The commissioners Jgjjl'gj}'-
6 shall be sworn to the faithful performance of their official duties.
7 They shall not be in the employ of or own any stock in any gas
8 or electric light company or be in any way, directly or indi-
9 rectly, pecuniarily interested in the manufacture or sale of gas or
1184
GAS AND ELECTRIC LIGHT COMPANIES.
[Chap. 121.
electric light or of any article or commodity used by gas or electric 10
light companies or used for any purpose connected with the manu- 11
facture or sale of gas or electric light, and shall not engage in any 12
other business. The governor shall designate the chairman of the 13
board and may, with the advice and consent of the council, remove 14
any member for cause after notice and hearing. The chairman of 15
the board shall receive from the commonwealth an annual salary of 16
four thousand dollars and each of the other two members an annual 17
salary of three thousand five hundred dollars. The board shall be 18
provided with an office in the state house or in some other suitable 19
place in the city of Boston in which their records shall be kept. 20
Clerk of com-
mission.
1885, 314, § 1.
1894, 503.
1898, 499.
Incidental ex-
penses and
clerical assist-
ance.
1885, 314, § 5.
1891, 351.
1895, 463, § 1.
1899, 365.
Assessment of
expenses.
1885, 314, § 6.
1887, 382, § 4.
1891, 351.
1895, 463, § 1.
1899, 365.
Section 2. The board shall have a clerk, who shall be appointed 1
by the governor, with the advice and consent of the council, who 2
shall not engage in any other business, shall keep a full and faithful 3
record of the proceedings of the board, shall serve such notices and 4
perform such other duties as the commissioners may require and 5
shall be sworn before entering upon the performance of his duties. 6
Section 3. The board may expend not more than three thousand 1
dollars annually for necessary statistics, books and stationery and 2
for necessary incidental expenses ; and not more than forty-one 3
hundred dollars annually for clerical assistance. 1901,499, §1. 4
Section 4. The annual expenses of the commissioners and clerk, 1
including salaries, shall be borne by the several gas and electric 2
light companies in proportion to their gross earnings, and shall be 3
assessed and recovered in the manner provided by section ten of 4
chapter one hundred and eleven for the assessment and recovery of 5
the expenses of the railroad commissioners. 6
ofeboarddutieB Section 5. Said board shall have the general supervision of all
ill?' 382 ' l§8i 6- corPorati°ns and companies which are engaged in the manufacture
385, §§7, io. ' ' and sale of gas or electricity for light or heat, and shall make all
necessary examinations and inquiries and keep themselves informed
as to the compliance of the several corporations and companies
with the provisions of law.
1
2
3
4
5
6
Regulation of
purity of gas.
1885, 314, § 11.
Section 6. The board shall, from time to time, ascertain what 1
degree of purity can reasonably be required in gas made and sup- 2
plied by corporations and companies engaged in the manufacture 3
and sale of gas for light or heat, and shall report to the general 4
court, when, in its opinion, any change in the law relative thereto 5
is desirable. 6
Annual report.
1885, 314, § 14.
1886, 346, § 2.
1887, 382, §§ 2, 6.
1888, 350, § 2.
Section 7. The board shall annually, on or before the first 1
Wednesday in January, transmit to the secretary of the common- 2
wealth a report to the general court of its doings, with such sugges- 3
tions as to the condition of affairs or conduct of corporations and 4
companies which are engaged in the manufacture and sale of gas or 5
electricity for light or heat as may be appropriate, with such abstracts 6
of the returns required by section thirty-one as it considers ex- 7
pedient and an abstract of the accidents reported to it under the 8
provisions of section thirty-nine. 9
Chap. 121.] gas and electric light companies. 1185
1 Section 8. If a corporation or company which is engaged in violations of
2 the manufacture and sale of gas or electricity for light or heat is*®, 3i4,°§ \i! '
3 violates or neglects to comply with the provisions of law, or refuses [lopfi'^d?'6'
4 or neglects to comply with any lawful order of the board, the ^
5 board shall give notice thereof in writing to such corporation or
6 company, and to the attorney general for his action.
1 Section 9. The supreme judicial court or the superior court Enforcement
2 shall have jurisdiction in equity, upon the application of said board, isss, 314, § 13.
3 to enforce all lawful orders of said board and all provisions of law 18961 426!
4 relative to cities, towns, corporations or persons engaged in the
5 manufacture and sale of gas or electricity for light or heat.
GAS AND ELECTRIC LIGHT COMPANIES.
1 Section 10. No gas company, unless specially authorized, shall Bonds of gas
0 • 1. J j. i j.1. Zx. l / \ company to be
2 issue any bonds at less than the par value, nor tor an amount ex- issued only at
3 ceeding its capital actually paid in and applied to the purposes of 1886, 346, § 3.
4 its incorporation. 159 Mass. 505.
1 Section 11. The proceeds of all bonds which may be issued olproceed^of
2 shall be applied to the payment of obligations incurred for the en- 1886, 346, § 3
3 largement or extension of the works and the purchase of real estate i896| 473.'
■ 159 Mass 505
4 for the use of such gas company or for the payment of liabilities
5 existing on the thirtieth day of June in the year eighteen hundred
6 and eighty-six. A company may, subject to the provisions of sec-
7 tions twenty-four, twenty-six, twenty-seven and twenty-eight of
8 chapter one hundred and nine, upon vote of a majority in interest
9 of its stockholders at a meeting duly called for the purpose, issue
10 bonds in accordance with the provisions of this and the preceding
11 section, to bear interest at not more than six per cent per annum,
12 and may secure the payment of principal and interest by a mortgage
13 of its franchise and other property.
1 Section 12. Any corporation which is organized under the laws Mortgage
2 of this commonwealth and is authorized to erect and maintain poles, eiectricfight
3 wires or other fixtures in, over or under streets and highways for the is^ri!68"
4 purpose of furnishing electricity for light or power may secure the
5 payment of bonds issued by it by a mortgage of its franchise in
6 connection with its corporeal property, so that all persons who
7 acquire any poles, wires or fixtures by virtue of such mortgage
8 shall have the same rights and be subject to the same obligations
9 relative to their erection, care and maintenance as the corporation
10 would have had or been subject to if the mortgage had not been
11 made. Such mortgage and all bonds shall be authorized by vote of
12 a majority in interest of the stockholders of the corporation at a
13 meeting called for that purpose ; and the rate of interest on such
14 bonds shall not exceed six per cent per annum. No bonds shall be
15 issued by any such corporation for an amount exceeding its capital
16 then actually paid in and applied to the purposes of the corporation.
1 Section 13. A gas company shall not transfer its franchise, lease Transfer of
2 its works or contract with any person, association or corporation to 188M4M4.
3 carry on its works, without the authority of the general court. iee Mass. 217.
1186
GAS AND ELECTEIC LIGHT COMPANIES.
[Chap. 121.
Electric light
and power,
authority to
furnish.
1887, 385, § 1.
Section 14. The board of gas and electric light commissioners, 1
upon application in writing by any gas light company which is 2
organized or chartered under the laws of the commonwealth, may, 3
after notice and a hearing, authorize said company to engage in the 4
business of generating and furnishing electricity for light and power. 5
A gas company may engage in such business in the territory, or any 6
such part thereof as the board may designate, in which it is author- 7
ized to supply gas ; but a company shall not engage in said business 8
unless authorized by vote of two-thirds of the stockholders, repre- 9
senting not less than two-thirds of the stock, at a meeting duly 10
called for that purpose. Said company shall file in the office of the 11
secretary of the commonwealth a certificate as provided in section 12
forty-seven of chapter one hundred and ten. 13
Time pre-
scribed for
equipment of
plant.
1887. 385, § 2.
Kecord of
orders for
erection of
plant and of
compliance.
1887, 385, § 3.
Section 15. The board, when granting such authority, shall pre- 1
scribe the time, not exceeding six months, within which said company 2
shall erect and equip a plant for generating electricity for light and 3
power such as may be required in the specified territory, and shall 4
designate the minimum capacity of such plant ; and if the company 5
neglects to erect and complete said plant within the time prescribed, 6
said authority shall become void and no such authority shall be 7
again granted to it within two years thereafter. The board may 8
for cause shown extend the time for erecting and equipping said 9
plant for not more than three months from the expiration of the 10
time first prescribed. 11
Section 16. At the expiration of such time or of any extension 1
thereof, said board shall, after such examination as it considers 2
proper, make, in a book kept for that purpose, a record that its 3
orders relative to the erection and completion of said plant have or 4
have not been complied with, which shall be conclusive evidence of 5
the truth of the matters stated therein. 6
Erection of
poles and wires
regulated.
1887, 385, § 4.
Damages.
1887, 385, § 5.
Section 17. Said company, except upon the purchase or lease 1
of the property, licenses, rights and franchises of an electric light 2
company as authorized under the provisions of section twenty-two, 3
shall not erect or maintain any poles for the support of wires, nor 4
erect or maintain any wires in, through or over any streets or 5
highways, nor dig up any streets or highways for the purpose of 6
laying said wires underground, until it has, upon petition in writ- 7
ing, obtained the consent in writing of the mayor and aldermen of 8
cities or the selectmen of towns in which said streets are located. 9
It may thereupon, under the direction and control of the mayor and 10
aldermen or selectmen, dig up and open the "ground in any streets 11
and highways, so far as is necessary for the purpose of laying wires 12
and for the purpose of keeping said wires in repair and for the pur- 13
pose of erecting and maintaining lines of wire upon or above the 14
surface of such streets and highways. It shall put all streets and 15
highways which it opens into as good repair as they were in when 16
opened, and upon failure so to do within a reasonable time, shall be 17
deemed guilty of a nuisance. 18
Section 18. If a person who is injured in his person or prop- 1
erty by a defect in a public way which is caused by the operations 2
Chap. 121.] gas and electric light companies. 1187
3 of said company in laying, erecting, maintaining or repairing its
4 lines of wires or in otherwise obstructing such way recovers dam-
5 ages therefor of the city or town in which such injury is received,
6 such city or town shall, if said company is liable for said damages
7 and has had reasonable notice to appear and defend the original
8 action, be entitled to recover of said company the damages so
9 recovered from it with the taxable costs of both parties in such
10 action.
1 Section 19. The mayor and aldermen of cities and the select- Regulation of
2 men of towns, respectively, may regulate, restrict and control all health and
3 acts of said company which may in any manner affect the health, inhabitants.
4 safety, convenience or property of the inhabitants of their respec- 1887> 385> § 6-
5 tive cities or towns.
1 Section 20. Gas companies, as respecting the business in which an^eiectricP8
2 thev are, bv the provisions of section fourteen, authorized to engage, light commis-
3 shall be subject to the control of the board of gas and electric light i887,385,§7.
4 commissioners in the same manner and to the same extent as they
5 are in respect of the business of furnishing gas.
1 Section 21. Except as hereinbefore expressly provided, gas Powers and
2 companies shall, in exercising the powers conferred by the provi- panfe8s°f com"
3 sions of the seven preceding sections, have all the powers and 1887, 385« § 8-
4 privileges and be subject to all the duties, restrictions and liabilities
5 of companies which are engaged in the transmission of electricity
6 for light or power under the general laws which now are or here-
7 after may be in force.
1 Section 22. Said gas companies so authorized by the board of ^"^lls0*
2 gas and electric light commissioners mav purchase or lease and use etc of electric
o o j *- lisriit com-
3 the property, licenses, rights, privileges and franchises of any elec- panics.
4 trie light company which is engaged in the business of furnishing '
5 electric light or power in the territory in which such gas company
6 may be authorized to furnish such light and power.
1 Section 23. The provisions of the nine preceding sections, Application to
2 which are applicable to gas companies authorized to engage in the Ind power
3 business of generating and furnishing electricity for light and power, i^^T'io.
4 shall also apply to electric light and power companies.
1 Section 24. A person or corporation, not a railway company, Electricity for
2 engaged in the business of transmitting electricity for light or cookingp^r-
3 power through wires located over or under the streets and highways ^420.
4 may sell such electricity for operating heating, cooking and kindred
5 apparatus and motors ; but the provisions of this section shall not
6 confer upon such person or corporation the exclusive right to sell
7 or distribute electricity in any city or town for such purposes.
1 Section 25. In a city or town in which a gas company exists in a second gas
2 active operation, or in which a person owns or operates works for to "ay^ipes0,
3 the manufacture and sale of gas for light or heat, no other gas com- isss^w, § 10.
4 pany, nor any other persons, shall dig up and open the streets, lanes 1886>346> §7-
1188 GAS AND ELECTKIC LIGHT COMPANIES. [CHAP. 121.
and highways of such city or town, for the purpose of laying gas 5
pipes therein, without the consent of the mayor and aldermen or 6
selectmen, granted after notice by publication or otherwise to all 7
parties interested and a public hearing before them. 8
wire^of differ. Section 26. In a city or town in which a company, corporation 1
ent companies or person is engaged in the manufacture or sale of electric light no 2
restricted. * & & > &
1887, 382, §3. other person, firm or corporation shall lay, erect, maintain or use, 3
i895|35o! over or under the streets, lanes and highways of such city or town, 4
157 Mass. 86. any wires for the transmission of electricity for light, heat or power 5
[iop.A.G.88.] except wires used for heat or power bystreet railway companies, 6
without the consent of the mayor and aldermen of such city or select- 7
men of such town granted after notice to all parties interested and a 8
public hearing. 9
m$5e3ii §16. Section 27. Any corporation, company or person aggrieved by 1
rfo' 38i §g' ^e decision of the mayor and aldermen of a city or selectmen of a 2
89.] town, under the provisions of the two preceding sections, may, 3
within thirty days from the notice of said decision, appeal therefrom 4
to the board of gas and electric light commissioners, and said board 5
shall thereupon give due notice and hear all parties interested, and 6
its decision thereon shall be final. 7
pany Mohave1" Section 28. Corporations and companies which are engaged in 1
office where the manufacture and sale of gas or electricity for light or heat shall 2
works are ^ •/ o
located. have an oflice in the city or town in which their works are located 3
i887| m, §§ 2, 6. and shall keep in said office all the books and papers which are 4
required by law to be kept within the commonwealth, and also such 5
books as may be required to show their receipts, expenditures, 6
indebtedness and financial condition ; and shall at all times, upon 7
application, submit their books to the inspection of the board of 8
gas and electric light commissioners. 9
be°kept h?"' to Section29. Corporations and companies which are engaged in 1
prescribed the manufacture and sale of gas or electricity for light or heat shall 2
1886, 346, § 2. keep their books and accounts in a form to be prescribed by the 3
' ' ' board of gas and electric light commissioners, and the accounts shall 4
be closed annually on the thirtieth day of June, so that a balance 5
sheet of that date can be taken therefrom. Manufacturing com- 6
panies in which the manufacture of gas is a minor portion of their 7
business shall be required to keep accounts of the expenses and 8
income of their gas business only. 9
fo^beTepT01^8 Section 30. Persons or corporations engaged in the manu- 1
1896,356,480. facture or sale of gas or electric light shall keep such records of 2
their work at their manufacturing station, and in respect to their 3
distributing plant, as the board of gas and electric light commisr 4
sioners may from time to time require. Said records shall be in 5
such form as the board may prescribe. 6
tams alre" Section 31. Corporations and companies engaged in the manu- 1
1885, 314, § 7. facture and sale of gas or electricity for light or heat shall annually, 2
Chap. 121.] gas and electric light companies. 1189
3 on or before the second Wednesday of September, make to said ifif* Hi* 1 1"
4 board, in a form prescribed by it, a return for the year ending on [iop.a'.g."
5 the thirtieth day of June, signed and sworn to by its president and
6 treasurer and a majority of the directors, of the amount of its author-
7 ized capital, its indebtedness and financial condition, on the first day
8 of January preceding, its income and expenses during the preceding
9 year, its dividends paid out and declared, a list of the names of all
10 its salaried officers, and the amount of the annual salary paid to each,
11 and the balance sheet of its accounts as of the preceding thirtieth
12 day of June. Every such corporation and company shall at all times,
13 upon request, furnish any information required by the board relative
14 to its condition, management and operation, and shall comply with
15 all lawful orders of said board.
1 Section 32. Each such gas or electric light corporation or com- Penalty.
2 pany neglecting to make the annual return required by the preced- ill; 263! §7'
3 ing section, shall, for the first fifteen days or portion thereof during
4 which such neglect continues, forfeit five dollars a day ; for the sec-
5 ond fifteen days or any portion thereof, ten dollars a day ; and for
6 each day thereafter not more than fifteen dollars a day. If any com-
7 pany unreasonably refuses or neglects to make such return, it shall,
8 in addition thereto, forfeit not more than five hundred dollars for
9 each offence. All forfeitures recovered under the provisions of this
10 section shall be paid into the treasury of the commonwealth and
11 applied to the payment of the expenses of the board.
1 Section 33. Upon the petition in writing of any person who supply of gas
2 has a residence or place of business in a city or town in which a how enforced.
3 corporation or company is engaged in the manufacture and sale of 1II7; HI; |§52, 6.
4 gas or electricity for light or heat, and who is aggrieved by the
5 refusal or neglect of such corporation or company to supply him
6 with gas or electricity, the board of gas and electric light commis-
7 sioners may, after notice to the corporation or company to appear
8 at a time and place therein named to show cause why the prayer of
9 such petition should not be granted, issue an order directing and
10 requiring the corporation or company to supply the petitioner with
11 gas for either of said purposes or with electric light, upon such
12 terms and conditions as are legal and reasonable.
1 Section 34. Upon the complaint in writing of the mayor of a Quality of gas.
2 city or the selectmen of a town in which a corporation or company 18871382; §§2, 6.
3 engaged in the manufacture or sale of gas or electricity for light or llil' li?! § 1*
4 heat is located, or of twenty customers thereof, either of the quality
5 or price of the gas or electric light sold and delivered, the board
6 shall notify the corporation or company by leaving at its office a
7 copy of such complaint, and shall thereupon after notice give a
8 public hearing to such petitioner and such corporation or company,
9 and after said hearing may order any reduction in the price of gas
10 or electric light or improvement in quality thereof, and a report of
11 such proceedings and the result thereof shall be included in its
12 annual report. The maximum price fixed by such order shall not
13 thereafter be increased by such corporation or company except as
14 provided in the following section.
1190 GAS AND ELECTRIC LIGHT COMPANIES. [CHAP. 121.
ai^eiectffcity Section 35. A gas company in this commonwealth which far- 1
how fixed and' nishes gas under the provisions of general or special laws or of any 2
1888,350, §1. contract with a city or town, and a gas or electric light company 3
which is engaged in the sale and delivery of electric light may apply 4
to the board to fix and determine the price of gas or electricity 5
to be thereafter sold and delivered by said company, or to revise 6
any former order or action of said board relative to the quality or 7
price thereof. Said board shall, after notice, give a public hearing 8
to the petitioner, to the city or town and to all other persons 9
interested, and thereafter may pass such orders relative to 10
the price and quality of the gas or electricity thereafter to be fur- 11
nished by said company as it determines are just and reasonable. 12
Such orders shall be binding upon all parties until further order of 13
said board. 14
SecteicmeterB Section 36. A customer of an electric lighting company or 1
i90i, 497, § i. such company may apply to the board of gas and electric light com- 2
missioners for an examination and test of any meter in use upon a 3
customer's premises. The board shall forthwith cause to be made 4
by a competent and disinterested person such examination and test 5
of said meter, if any, as in the judgment of the board is practicable 6
and reasonable, and shall furnish to the company and to the cus- 7
tomer a certificate of the result and expense thereof. If upon such 8
examination it appears that the meter does not register correctly, the 9
board may order the company to correct or remove such meter and 10
to substitute a correct meter therefor. All fees for examinations 11
and tests shall in the first instance be paid by the person or com- 12
pany making application therefor ; but if the examination or test is 13
made at the request of a customer and the meter is found to be in- 14
correct because too fast the company shall pay such fees to the 15
board, to be repaid by it to the applicant. A meter shall be 16
deemed correct for the purposes of this section if it appears from 17
such examination or test that it does not vary more than five per 18
cent from the standard approved by the board. 19
registration1"1 Section 37. The person designated to make such inspection 1
SoT^q- 66 2 ^ may a^ any reasonable time enter upon any premises where the meter 2
' to be inspected is placed, for the purpose of making the inspection. 3
He shall receive such compensation for his services as the board may 4
determine, together with his necessary travelling and other ex- 5
penses, which shall be audited by the board and paid from the 6
treasury of the commonwealth ; but the total amount of compensa- 7
tion and expenses shall not exceed three thousand dollars in any 8
year ; and if the total amount of such compensation and expenses 9
shall in any year exceed the amount of the fees received for such 10
examinations and tests, the excess shall be assessed and recovered 11
from the electric light companies in the manner now provided for the 12
assessment and recovery of the other expenses of the board. All 13
money received for fees for such examinations and tests shall be paid 14
into the treasury of the commonwealth by the board quarterly on 15
the first Mondays of January, April, July and October of each 16
year. The board may establish such rules and regulations, fix such 17
standards, prescribe such fees, and employ such means and methods 18
Chap. 121.] gas and electric light companies. 1191
19 in, and in connection with, such examinations and tests of electric
20 meters as in the judgment of the board shall be most practicable,
21 expedient and economical. The board may purchase such mate-
22 rials, apparatus and standard measuring instruments for such exami-
23 nations and tests as it may deem, necessary.
1 Section 38. In the two preceding sections the word " com- Definition.
2 pany" or "companies" shall include every person, partnership, 1901,497,§4'
3 association, corporation and municipality engaged in the sale of
4 incandescent electric light or electricity for incandescent lighting.
1 Section 39. Companies, persons and municipalities engaged in Report of
2 the manufacture and sale of gas or electricity for light or fuel shall, isssf 35o,s§ 2.
3 within twenty-four hours, report, in writing, to the board every 1896>338-
4 accident caused by the gas or electricity manufactured or supplied
5 by them, whereby an employee or other person is injured, killed
6 or rendered insensible, stating the time, place and circumstances
7 of the accident and such other facts relative thereto as the board
8 may require. The chief of police of the city or town, and the
9 medical examiner of the district, in which such accident occurs shall,
10 in writing, report the same to said board. The chief of police
11 shall so report within twenty-four hours, and the medical examiner
12 within seven days, after he has notice thereof. The members of
13 the board shall personally investigate all cases which require inves-
14 tigation.
1 Section 40. Whoever unlawfully and intentionally injures or Penalty for
2 destroys, or suffers to be injured or destroyed, any meter, pipe, dfverlfon of
3 conduit, wire, line, pole, lamp or other apparatus belonging to a cor- ig^fm7' etc*
4 poration or company engaged in the manufacture or sale of electricity
5 for lighting purposes, or unlawfully and intentionally prevents an
6 electric meter from duly registering the quantity of electricity sup-
7 plied, or in any way interferes with its proper action or just regis-
8 tration, or, without the consent of such corporation or company, un-
9 lawfully and intentionally diverts any electric current from any wire of
10 such corporation or company, or otherwise unlawfully and intention-
11 ally uses or causes to be used, without the consent of such corporation
12 or company, any electricity manufactured or distributed by such
13 corporation or company, shall, for every such offence, be punished
14 by a fine of not more than one hundred dollars or by imprisonment
15 for not more than one year, or by both such fine and imprisonment.
1 Section 41. In the construction of sections four, five, six, construction
2 seven, eight, twenty-eight, twenty-nine, thirty-one, thirty-three, °m*MG,'% 1.
3 and thirty-four of this chapter, the terms "gas company", and 1887-382« §6-
4 " corporation " shall include all persons owning or operating works
5 for the manufacture and sale of gas for heating or illuminating
6 purposes within the commonwealth, and the terms "company"
7 and "companies" shall include all corporations or individuals
8 engaged in the manufacture and sale of electric light within the
9 commonwealth.
1192
TRANSMISSION OF ELECTRICITY.
[Chap. 122.
CHAPTEE 122.
OF COMPANIES FOR THE TRANSMISSION OF ELECTRICITY.
Sections 1, 2
Sections 3-5
Sections 6-8
Sections 9-11
Sections 12-14
Section 15
Sections 16, 17
Sections 18, 19
Sections 20, 21
Sections 22, 23
• Construction of Lines upon Highways.
•Damages of Land Owners.
-Capital and Debts.
■Telegraph Companies.
Telephone Companies.
-Damages.
•Protection and Marking of Wires.
Officers to Supervise Wires.
Poles to be Insulated.
Wires, etc., not to be affixed without Permission.
To be marked.
Sections 24-30. — General Provisions.
Construction
of lines.
1849, 93, § 2.
G. S. 64, § 2.
P. S. 109, § 2.
1883, 221.
1889, 434.
1895, 350.
97 Mass. 555.
136 Mass. 75,
485.
153 Mass. 200.
CONSTRUCTION OF LINES UPON HIGHWAYS.
Section 1. A company which is incorporated for the transmis- 1
sion of intelligence by electricity, or by telephone, whether by 2
electricity or otherwise, or for the transmission of electricity for 3
lighting, heating or power, except lines for heat or power by a 4
street railway company, may, under the provisions of the follow- 5
ing sections, construct lines for such transmission upon and along 6
the public ways and across any waters within the commonwealth, by 7
the erection of the poles, piers, abutments and other fixtures, except 8
bridges, which may be necessar}' to sustain the wires of its lines ; 9
but shall not incommode the public use of public ways nor endanger 10
or interrupt navigation. 11
Location, etc.,
by mayor and
aldermen, etc.
1849, 93, § 3.
G. S. 64, § 3.
P. S. 109, § 3.
9 Gray, 387.
97 Mass. 555.
136 Mass. 75.
153 Mass. 200.
Section 2. The mayor and aldermen of a city or the select-
company are to pass
men of a town through which the lines of a
shall give the company a writing specifying where the poles may be
located, the kind of poles and the height at which, and the places
where, the wires may run. After the erection of the lines, having
first given the company or its agents opportunity to be heard, they
may direct any alteration in the location or erection of the poles,
piers or abutments and in the height of the wires. Such specifi-
cations and decisions shall be recorded in the records of the city or
town.
1
2
3
4
5
6
7
8
9
10
DAMAGES OF LAND OWNERS.
cause(fbSy erec- Section 3. An owner of land which abuts upon a public way
tion of lines, along which telegraph or telephone, electric light, heating or power
1849, 93, §§ 4, s. lines are constructed, erected or altered in location or construction
p.'s.'W, §§4,5! by any telegraph or telephone, electric light, heating or power
189% 35o'. § " company, whose property is injuriously affected or diminished in
172 Mass! 197. value by occupation of the ground or of the air, or otherwise by
such construction, erection or alteration, whether such owner is
also the owner of the fee in such way or not, may, within three
1
2
3
4
5
6
7
8
Chap. 122.] transmission of electricity. 1193
«
9 months after such construction, erection or alteration, apply to the
10 mayor and aldermen of the city or selectmen of the town in which
11 such land is situated to assess and appraise his damages. Before
12 entering upon the service, the mayor and aldermen or selectmen
13 shall severally be sworn faithfully and impartially to perform the
14 duties herein required. They shall, upon view, make a just
15 appraisal in writing of the loss or damage, if any, to the applicant,
16 sign duplicates thereof, and on demand deliver one copy to the
17 applicant and the other to the company or its agent. If damages
18 are assessed, the company shall pay them and the costs of the
19 appraisers. If the appraisers find that the applicant has suffered
20 no damage he shall pay said costs. The mayor and aldermen and
21 selectmen shall each receive two dollars a day for services per-
22 formed as appraisers.
1 Section 4. If such company does not pay such damages as- if amount is
2 sessed, or, upon appeal, the amount of the final judgment, within tMny^aysf1111
3 thirty days after demand, the mayor and aldermen or selectmen Eemrfoved"*7
4 may, upon request of such owner, remove all the poles, wires or iljjj'iio'82,
5 other structures of such company from that portion of the public
6 way upon which the land of such person abuts, first leaving a
7 written statement at the office of such company in such city or
8 town of the time when and place where they intend to remove
9 such poles, wires or structures, not less than forty-eight hours
10 prior to such removal. If such company has no office in such
11 city or town, such notice shall be deposited in the post office,
12 postage prepaid, and directed to such company at its office in some
13 city or town in the county. The city or town so removing any
14 such poles, wires or structures may recover the expense thereof
15 of such company. The provisions of this section shall not prevent
16 such owner from collecting the damages assessed.
1 Section 5 . A person who is aggrieved by the assessment of A88^88111611* by
2 his damages may have them determined by a jury in proceedings ^4| ^ §*-
3 according to the provisions of section eighty of chapter forty-eight. p- s- 1°9. § 6.
4 If the jury increase the damages, the amount of the verdict and all
5 charges shall be paid by the company ; otherwise, the charges shall
6 be paid by the applicant.
1
CAPITAL AND DEBTS.
Section 6. A telegraph or telephone company shall not com- capital stock
2 mence the construction of its line until three-fourths of its capital *ned8tatement
3 stock have been unconditionally subscribed for, and at least one- ofs. w7,'§§73'
4 half has been paid in in cash; and the directors shall, within ten fggf^.'57'
5 days after commencing construction, file in the office of the secretary
6 of the commonwealth a sworn statement of such subscription and
7 payment.
1 Section 7. Such company shall not at any time contract or Limit of debt.
2 owe debts to a larger " amount than one-half of its capital stock g. s'.64,'§8.'
3 actually paid in. p.s.mm8.
1194
TRANSMISSION OF ELECTRICITY.
[Chap. 122.
officers*7 °f Section 8. The president and treasurer of such company shall 1
G51sfl'ii' ^e jointly and severally liable for all its indebtedness, in case of 2
p." s.' io9, § 9. wilful neglect or omission on their part to comply with any of 3
the provisions of this chapter. 4
TELEGRAPH COMPANIES.
Duties of com-
panies.
1849, 93, § 6.
G. S. 64, § 10.
P. S. 109, § 10.
13 Allen, 226.
113 Mass. 299.
137 Mass. 463.
Section 9. A telegraph company shall receive despatches from 1
and for other telegraph companies and associations, and from and 2
for any person ; and, upon payment of the usual charges for trans- 3
mitting despatches according to the regulations of the company, 4
shall transmit them faithfully and impartially. 5
Charges for
despatches
received by
mail, etc.
1849, 93, § 6.
G. S. 64, § 10.
1867, 348.
P. S. 109, §§ 10,
11.
Section 10. A telegraph company shall receive, compute and 1
transmit despatches which may be received at its offices from an- 2
other telegraph company or by mail, at the same rates of charge as 3
for despatches which may be received for transmission from individ- 4
uals on the same day and at the same place. A telegraph com- 5
pany which wilfully neglects or refuses to comply with the provisions 6
of this or the preceding section shall forfeit not more than one hun- 7
dred dollars to the company or person who sends or desires to send 8
the despatch. 9
Salsmlssum1 Section 11. A telegraph company shall be liable for damages 1
of telegraphic to the amount of one hundred dollars actually caused by its negli- 2
messages. , ■ • i -i
1885,380. gence, or that of its agents, in transmitting, receiving or delivering 3
telegraphic messages, and any limit of such liability by contract or 4
regulation shall apply only to the damages in each case in excess 5
of one hundred dollars ; but no action therefor shall be maintained 6
unless a claim is presented in writing to such company or its agent 7
within sixty days after such right of action accrues. The provi- 8
sions of this section shall not apply to negligence occurring in a 9
telegraph office which is established for the convenience and safety 10
of a railroad corporation in the running of its trains, and transacting 11
a public telegraph business only as incidental thereto, nor to 12
negligence in the delivery of messages received at such office. 13
TELEPHONE COMPANIES.
Service to
telegraph
companies
without
Section 12. A person or corporation owning, controlling or 1
operating a telephone exchange or service in this commonwealth 2
discrimination, shall, upon application of a telegraph company, furnish such com- 3
pany with the use of a telephone or telephones and telephone ser- 4
vice, and connection with their respective exchanges, with the 5
subscribers thereto, and with their telephone service, without dis- 6
crimination between telegraph companies as to such connection, 7
service or use of instruments furnished or charges therefor for the 8
same class of service. ' 9
Telephone ser-
vice without
Section 13. A person or corporation" owning, controlling or
i885r267in§a2i011' °Peratmg a telephone exchange or service in this commonwealth
shall, upon application of an individual or corporation and the
tender of the charges or rental usual or customary for the class of
1
2
3
4
Chap. 122.] transmission of electricity. 1195
5 service required, without discrimination for the same class of ser-
6 vice rendered, furnish such individual or corporation with the use
7 of a telephone and telephone service and connection with their
8 respective exchanges and the subscribers thereto, if the applicant
9 secures the rights necessary to make the connections applied for
10 and pays to the telephone company in advance an amount sufficient
11 to cover the actual cost of the extension, if said extension is more
12 than one mile from any main exchange circuit of the said telephone
13 company. .
1 Section 14. The supreme iudicial court or the superior court Provisions
x may oe GH-
2 shall have jurisdiction in equity to enforce the provisions of the two forced in
3j • ,. equity.
preceding sections. im, 267, § 3.
DAMAGES.
1 Section 15. A telegraph company shall be liable in damages to injury to per.
2 a person injured in his person or property by the poles, wires erty0rprop"
3 or other apparatus of such company. If they are erected upon a ill; ito! § 2'
4 public way, the city or town shall not, by reason of anything con- £; §; S^Yia.
5 tained in this chapter or done thereunder, be discharged from its ^^av> '6lh
n i -1 -1 . 97 Mass. 5o5.
6 liability, but all damages and costs recovered against it on ac- i36Mass. 75.
o Igl Mass. 558
7 count of such injury shall be reimbursed by the company which
8 owns the poles, wires or other apparatus.
PROTECTION AND MARKING OF WIRES.
1 Section 16. A person or a corporation, private or municipal, Regulations
i . -• v * - • j j. 1. i-i-i concerning
2 owning or operating a line 01 wires over or under streets or build- wires m cities
unci towns
3 ings in a city or town shall use only strong and proper wires safely 1890, 404, §1.
4 attached to strong and sufficient supports and insulated at all points i6i Mass. 583.
5 of attachment ; shall remove all wires the use of which is abandoned ;
6 shall properly insulate every wire where it enters a building, and,
7 if such wire is other than a wire designed to carry an electric
8 light, heat or power current, shall attach to it at a proper point in
9 the circuit, near the place of entering the building, and so situated
10 as to avoid danger from fire, an appliance adapted at all times to
11 prevent a current of electricity of such intensity or volume as to be
12 capable of injuring electrical instruments or of causing fire from
13 entering the building by means of such wire beyond the point at
14 which such appliance is attached ; and shall properly insulate every
15 wire within a building which is designed to carry an electric light,
16 heat or power current.
1 Section 17. Such person or corporation shall, in cities, affix at Names of
, . „ i.i . ii j • • • owners to be
2 the points of support at which any wire or cable containing wires attached.
3 provided for in the preceding section is attached, a tag or mark 1899) 320'; 337,
4 distinctly designating the owner or user of such wire or cable. §2"
5 No such tag or mark shall be required for the wires of a street
6 railway company, except for its feed wires at points of attachment
7 to poles carrying the feed wires of one or more other street railway >
8 companies. In towns wherever wires belonging to different owners
9 are attached to -the same pole, cross arm or fixture, such pole, cross
10 arm or fixture shall be plainly marked with the name or initials
1196
TRANSMISSION OF ELECTRICITY.
[Chap. 122.
of the owner of the same, and such wires, at or near their points of 11
attachment to such pole, cross arm or fixture, shall be tagged or 12
marked with the names or initials of their owners. 13
OFFICERS TO SUPERVISE WIRES.
wire^duties. Section 18. A city shall, by ordinance, designate or provide 1
1899' 337* i 1' t ^or ^e appointment of an inspector of wires, and any town may, 2
at an annual town meeting, instruct its selectmen to appoint such 3
an inspector. Such inspector shall supervise every wire over or 4
under streets or buildings in such city or town and every wire 5
within a building which is designed to carry an electric light, heat 6
or power current, shall notify the person or corporation owning or 7
operating any such wire whenever its attachments, insulation, sup- 8
ports or appliances are improper or unsafe, or whenever the tags 9
or marks thereof are insufficient or illegible, shall, at the expense 10
of the city or town, remove every wire the use of which has been 11
abandoned and every wire which is not tagged or marked as here- 12
inbefore required, and shall see that all laws and regulations rela- 13
tive to wires are strictly enforced. A city or town may recover in 14
an action of contract of the person or corporation owning any wire so 15
removed the expense which it has incurred for the removal thereof. 16
Provisions
may be
enforced in
equity.
1890, 404, § 5.
Section 19. The supreme judicial court or the superior court 1
shall have juridiction in equity upon petition of the officer or in- 2
spector designated or appointed as aforesaid, to enforce the pro- 3
visions of the three preceding sections and to restrain the use or 4
maintenance, or to cause the removal, of any wire, pole or other 5
support which is erected, maintained or used in violation of the 6
provisions of said sections. 7
POLES TO BE INSULATED.
insulation of Section 20. Poles which are used for the transmission of elec-
poles. , ,
1895, 228, §§ i, 2. tricity shall be insulated in such manner as to protect employees
and other persons from accidents. The officer and inspector of
wires appointed under the authority of section eighteen or the com-
missioner of wires of the city of Boston shall enforce the provisions
of this section, and he shall be the sole judge of what constitutes
a proper insulation.
Penalty.
1895, 228, § 3.
Section 21. A person or corporation owning poles which are
used for the transmission of electricity who fails to comply with the
provisions of the preceding section shall be punished by a fine of
not less than ten nor more than one hundred dollars for every pole
left uninsulated for an unreasonable time after a request for a proper
insulation by the officer, inspector or commissioner acting under
the provisions of the preceding section.
1
2
3
4
5
6
7
1
2
3
4
5
6
7
WIRES, ETC., NOT TO BE AFFIXED WITHOUT PERMISSION.
MARKED.
TO BE
Section 22.
Affixing tele-
phone wires, ~~~ — ~" — ' "- r~- — * — "~ r""- — ~— &
etc- t0.fif°P- telephone, telegraph or other electric wires or any other person who
permission. in any manner affixes or causes to be affixed to the property of
1884, 302, § 1. J r i. j
A corporation or person maintaining or operating 1
2
3
Chap. 122.] transmission of electricity. 1197
4 another any pole, structure, fixture, wire or other apparatus for
5 telephonic, telegraphic or other electrical communication, or who
6 enters upon the property of another for the purpose of affixing
7 the same, without first obtaining the consent of the owner or lawful
8 agent of the owner of such property, shall, on complaint of such
9 owner or his tenant, be punished by a fine of not more than one
10 hundred dollars.
1 Section 23. A corporation or person maintaining or operating Name of corpo-
2 telephone, telegraph or other electric wires shall, at all places where Ifi^uluSe.6
3 such wires are affixed by any pole, structure or fixture to the prop- 1884> 302> § 2-
4 erty of another, mark such pole, structure or fixture in a clear,
5 durable and legible manner with the name of the corporation or
6 person maintaining or operating such wires, and any corporation or
7 person who fails to comply with the provisions of this section shall
8 be punished by a fine of not more than one hundred dollars.
GENERAL PROVISIONS.
1 Section 24. Every telegraph company shall annually, on or Annual
2 before the fifteenth day of October, make returns to the secretary lssi^its'.
3 of the commonwealth, according to forms to be furnished on appli- J^ ^ | J;
4 cation to him, specifying therein the location and line of its tele- p* §• f^ Yi3
5 graph, its name, capital actually paid in, manner of investment of
6 capital, annual receipts and expenditures, real estate and its value,
7 cash on hand, credits on book account and the amount of its in-
8 debtedness. Such return shall be signed and sworn to by the
9 president, clerk and treasurer of the company.
1 Section 25. Owners and associations engaged in the business umncorpo-
2 specified in section one of this chapter, although not incorporated, panies.om"
3 shall be subject to the provisions of this chapter, so far as they are ill?; 247,§| 2! 6*
4 applicable. 13 Allen, 226. 97 Mass. 555. P.' I.' 109 Vli.
1 Section 26. No enjoyment, for the purposes specified in section no easement
2 one of this chapter, by a person or corporation for any length poies^etc^
3 of time of the privilege of" having or maintaining poles, wires g?s\&£§§u.
4 or apparatus in, upon, over or attached to any building or land p- s- 109> § 15-
5 of other persons shall give a legal right to the continued en-
6 joyment of such easement or raise any presumption of a grant
7 thereof.
1 Section 27. Whoever unlawfully and intentionally injures, injury to lines,
2 molests or destroys any line, wire, pole, pier or abutment, or any i849?B93?§C7.
3 of the materials or property, of any company, owner or association p.- 1; io9,Vi6.
4 described in sections one and twenty-five shall be punished by
5 a fine of not more than five hundred dollars or by imprisonment
6 for not more than two years, or by both such fine and imprison-
7 ment.
1 Section 28. Whoever, in order to move a building, or for any wires may bo
2 necessarv purpose, desires to cut, disconnect or remove the wires MeS,uh§i.
J r L P. S. 109, § 17.
1198
PROPRIETORS OF WHARVES, ETC.
[Chap. 123.
of any such company, may do so, exercising reasonable care, if he 3
has first left a written statement, signed by him, of the time when, 4
and the place, described by reference to the crossings of streets or 5
highways, where he wishes to remove said wires, at the office of the 6
company in the town in which such place is situated, twenty -four 7
hours before the time so stated, or, if there is no such office, if 8
he has deposited such statement in the post office, properly prepaid, 9
and directed to the company at its office nearest to said place, three 10
days before the time mentioned in said statement. 11
Penalty for
cutting wires
Section 29. Whoever wilfully cuts, disconnects, removes or 1
im°m n§°£ce" otherwise interrupts the use of the wires of any such company, 2
p. s'. io9, § is. without first giving notice as provided in the preceding section, 3
shall be punished as provided in section twenty -seven. 4
preceding11 °f Section 30. The provisions of the two preceding sections shall
sections. not apply to any wires attached to poles which have not been
p. s. 109, § 19. erected in compliance with the provisions of law.
1
2
3
CHAPTEE 123.
of proprietors of wharves, real estate lying in common, gen-
eral FIELDS, AND AQUEDUCT CORPORATIONS.
Sections 1-17. — Wharves and Real Estate lying in Common.
Sections 18-40. — General Fields.
Sections 41-53. — Aqueduct Corporations.
Application
for incorpora-
tion.
1712-13, 9, § 1.
1735-6, 5, § 1.
1753-4, 1, § 1.
1783, 39, § 1.
R. S. 43, §§ 1, 2.
G. S. 67, §§ 1, 2.
P. S. Ill, §§1,2.
24 Pick. 304.
10 Met. 419.
WHARVES AND REAL ESTATE LYING IN COMMON.
Section 1 . Upon the written application of five or more pro- 1
prietors of lands, wharves or other real estate held in common to 2
a justice of the peace, stating that they intend to organize them- 3
selves as a corporation, he shall issue his warrant to one of the 4
applicants, directing him to call a meeting of all the proprietors 5
and expressing in the warrant the time, place, occasion and pur- 6
pose of the meeting. 5 Gray, 488. 153 Mass. 42. 7
Notice, etc., of
first meeting.
1712-13, 9, § 1.
1735-6, 5, § 1.
1753-4, 1, § 1.
1783, 39, § 1.
R. S. 43, § 3.
G. S. 67, § 3.
P. S. Ill, § 3.
Section 2 . The meeting shall be called by posting a notice con- 1
taining the substance of the warrant, signed by the person to whom . 2
the warrant is directed, fourteen days at least before the meeting, 3
in one or more public places in the town, and by publishing it in a 4
newspaper, if any, published in the county in which the estate lies ; 5
otherwise, in a newspaper published in an adjoining county. 6
Organization.
1712-13, 9, § 1.
1735-6, 5, § 1.
1753-4, 1, § 1.
1783, 39, § 1.
R. S. 43, §§ 4, 5.
G. S. 67, §§ 4, 5.
P. S. Ill, §§4, 5.
1897, 496, § 7.
Section 3. At such meeting, by vote of a majority in number 1
and interest of all the proprietors, they may organize themselves 2
as a corporation under the provisions of this chapter ; and they 3
may thereupon choose a clerk, treasurer, collector and such com- 4
mittees and other officers as they consider are necessary for the 5
management of their affairs, and may agree upon and direct the 6
manner of calling future meetings. Each officer chosen by the pro- 7
Chap. 123.] proprietors of wharves, etc. 1199
8 prietors shall hold his office until his successor is chosen and quali-
9 fied. The clerk, treasurer and collector shall forthwith make, sign,
10 swear to and file for record in the office of the secretary of the
11 commonwealth a certificate setting forth the name of the corpora-
12 tion, its purpose, the city or town and county in which it is located,
13 the date of the meeting for organization and any adjournments
14 thereof, and any other facts of importance which may be contained
15 in the proceedings of organization ; otherwise, the organization
16 shall be void.
1 Section 4. The clerk shall be sworn, and shall record all votes, cierk; oath;
2 orders and proceedings of the proprietors in books which he shall 171^13%, § 1.
3 keep for that purpose until they are delivered to the clerk of the "^AV-
4 city or town as hereinafter provided. g. s. 67, § 6. p. s. 111, § 6. R- s- 43> § 14-
1 Section 5 . The treasurer shall demand and receive all money Treasurer,
2 due or belonging to the proprietors, shall sue for and recover in his powers' of.
3 own name to their use all fines and penalties incurred under the ri^W^T1'
4 provisions of sections seven and eight, shall pay out all money in g- 1- f„< | *5-
5 his hands according to the order of the proprietors and shall, from p- s." ni, § 7.
6 time to time when required, render his accounts thereof.
1 Section 6. Such proprietors may sue and be sued as a body Proprietors
2 corporate ; and an action brought by the corporation for trespass on beTuedt etcd
3 the common property may be pleaded in abatement or answered in Jf^i is" § 1.
4 bar of an action for the same trespass brought by any of the pro- ™> *®> § *•
5 prietors in his individual capacity. p. s. m, §8. 153 Mass. 42. r. s. 43, § 12.
1 Section 7. They may make by-laws not inconsistent with law— may make
1.
2 for the orderly conducting of their business, with penalties for the rm^l
3 breach thereof not exceeding three dollars for each offence ; but by- r8|. f^ln.
4 laws with penalties annexed shall be approved by the county com- £• |- ^ § 9g
5 missioners for the county in which the estate lies.
1 Section 8 . The moderator of a meeting of the proprietors shall Power of
1110Q.Grfl.tor
2 have the same power as the moderator of a town meeting, except the 1783. 39, § 2.
3 power of confining a person or causing him to be removed from the g'. s*. 67, § 10.
4 meeting. Whoever resists or disobeys his orders shall be subject p' s< m' § 10'
5 to the pecuniary penalties provided for the like offences at a town
6 meeting.
1 Section 9 . The proprietors may, at a legal meeting, exercise - of propri.
2 any of the powers granted to them in this chapter ; but no business meeting!egal
3 shall be acted on unless it is expressed in the notice for the meeting. rreU'iSW'
R. S. 43, § 5. G. S. 67, § 11. P. S. Ill, § 11. 143 Mass. 110. 1"83> 39, § 1.
1 Section 10. Each proprietor shall be entitled to vote according votes.
2 to the number of his shares or the amount of his interest, if known ; nssfssu 8.
3 and if not known, the proprietors shall vote equally. Absent pro- g; |; $; | %
4 prietors may vote by proxy authorized in writing. ubMass. m!
1 Section 11. The proprietors may by vote adopt such measures Proprietors
2 and levy such assessments in proportion to their respective rights Slon/y/etc.
1200
GENERAL FIELDS.
[Chap. 123.
1726-7, 15, § i. and interests in the property as they consider proper for managing, 3
llijsViV?' improving or dividing their common property and for carrying on 4
G. li 6?,' § 13. their business . P. S. HI, § 13. 5 Greenl. 164. 7 Greenl. 404. 5
2 Mass. 475.
10 Mass. 5.
Ill Mass. 468.
154 Mass. 582.
15
4 Greenl. 237.
hoSwcon©cteci. Section 12. If a proprietor neglects to pay an assessment for 1
ireiifeVs2' s*x mon^ns after demand therefor by the collector or other proper 2
g s 67' ff il 9' on*cer' or a^er a notice of such assessment posted and published in 3
15. ' the manner prescribed for the first meeting, the committee of the 4
T> c "111 gg ~\A *- O7
' proprietors or other officers authorized by them for that purpose 5
may sell by public auction and give to the purchaser a deed of 6
so much of the right or share of such proprietor as is sufficient 7
to pay the amount so due from him and all the reasonable charges 8
of the sale, first giving thirty days' notice of the time and place 9
appointed for such sale in the manner prescribed for notifying the 10
first meeting.
Shares.011 Section 13. The proprietor of the share or part sold may, 1
Vm^i^it within one year after the sale, redeem it by paying to the purchaser 2
g !' 67' 1 16' or ms assigns the purchase price with interest at the rate of twelve 3
p.' s.' ni, § 16. per cent a year from the time of the sale. 4
proprietors. Section 14. If there are ten or more proprietors, they may, 1
G8s 67* § n. k,y a vote of more than two-thirds both in number and interest at a 2
ITifo b1^17- le&al meeting, sell such estate and divide the proceeds thereof. 3
3 Pick. 396. 8 Cush. 21. 8 Allen, 11. 143 Mass. 110.
Deposit of
records.
1783, 39, § 9.
1790, 40, § 2.
R. S. 43, § 17.
1851, 161, § 5.
G. S. 67, § 18.
P. S. Ill, § 18.
Section 15. After the final division of their common property, 1
the proprietors may cause their records to be deposited with the 2
clerk of the city or town in which the land or any part of it lies ; 3
and the clerk may make and certify copies from the records as the 4
clerk of the proprietors might have done. 5
Corporate
powers, etc., to
remain.
1790, 40, U.
R. S. 43, § 18.
G. S. 67, § 19.
P. S. Ill, §19.
Section 16. A final division of the common property shall not 1
dissolve the corporation until the expiration of ten years thereafter ; 2
but the proprietors at the time of the division and their heirs shall 3
retain their corporate powers for the purpose of collecting all taxes, 4
debts and effects due or belonging to the corporation, and shall be 5
liable for its debts. 6
After division
meetings may
be held, etc.
1790, 40, § 1.
R. S. 43, § 19.
G. S. 67, § 20.
P. S. HI, § 20.
Section 17. The proprietors may, within ten years after such 1
division, call and hold meetings and vote and raise money by assess- 2
ments, as before provided, for the payment of their debts and all 3
other charges and demands against them, and may do all other law- 4
ful acts necessary for closing their business. 5
Meetings, etc.
1785, 53, § 1.
R. S. 43, § 20.
G. S. 67, § 21.
P. S. HI, § 21.
GENERAL FIELDS.
Section 18. If several distinct lots or parcels of land are en- 1
closed and fenced in one common field, or if all the proprietors of 2
such lands agree so to enclose them, the proprietors, if not less 3
than five in number, may, from time to time, in the manner herein- 4
Chap. 123.] general fields. 1201
5 after provided, hold regular meetings for the purpose of managing
6 their common concerns.
1 Section 19. Upon the application of two or more proprietors Meetings, etc.,
2 to a justice of the peace, he shall issue his warrant for a meeting, as votes.a
3 provided in section one, which shall be called either in the manner lvltlfifu!'
4 prescribed in section two or by personal notice served on each pro- its^kj3^ Vio.
5 prietor fourteen days at least before the time appointed for the pf | \z §§ 21_
6 meeting. Each proprietor may vote according to the relative amount 'g- s ' 2^
7 or value of his interest, if known ; otherwise, in accordance with the 2*'
Q . . . j. , . - ' p. s. m, §§ 22-
0 provisions 01 Section ten. 3 Gray, 487. 119 Mass. 584. 24.
1 Section 20. The proprietors may from time to time choose a cierk, assess-
2 clerk, three or more assessors, a collector and such other officers as i72S7-8,ci3, §2. '
3 they find to be necessary ; each of whom shall continue in office 1753II; ?; § \\
4 until removed by the proprietors or until his successor is chosen r8s.43, §24.
5 and qualified. The clerk and assessors shall be sworn. p'l'ni§§225
1 Section 21. They may choose one or more field drivers, who S|J58dilvfr28"
2 shall have and exercise the same powers with respect to the general 1785,53, §4.
3 fields as field drivers chosen by a town. p. s. 111, § 26. g'. s'. ei', § 26*.
1 Section 22. They may adopt such rules as to pasturing the ^|ui|tions.
2 land and as to other matters in which they have a common interest as R. s'. 43, § 27.
3 they consider just and equitable and most for the general good ; but p.' s.' ni, § 27.
4 in all other respects, each proprietor may manage and cultivate his 154 ultl'. ill'.
5 land as he thinks best.
1 Section 23. At meetings of proprietors for adopting rules or Proprietors
2 regulations as to pasturing, land of a proprietor which is enclosed land not to
3 for his exclusive benefit shall not be valued or reckoned in deter- l^^ie.
4 mining his right to vote on questions relative to pasturing his land, p." |; iii,§§28.
1 Section 24. If a proprietor puts horses, cattle or other beasts Trespass.
2 into the general field contrary to the regulations of the proprietors, i698,'i2, §3. '
3 either by putting in more than the number allowed him, or by put- ml~%T§i.2'
4 ting them in before the day fixed for that purpose, or by keeping §; |; gf; | fj;
5 them therein longer than the time limited, he shall be considered a p- s- m> § 29-
6 trespasser, and his beasts may be impounded as taken doing damage.
1 Section 25. The proprietors may from time to time raise money Assessment of
2 for defraying their common charges and managing their affairs, 1726-7, is, § 1.
3 which shall be assessed bv the assessors upon the several proprietors 1741-2! 3.'
4 in proportion to their respective interests; and a proprietor who is 1735, 53, '§3."
5 aggrieved by such assessment may apply for an abatement to the q |; ^; | |j;
6 county commissioners, who shall hear and determine the case, and r. s. 111, §30.
7 whose judgment thereon shall be final.
1 Section 26. The clerk shall issue his warrant to th-3 collector, cieAtoiwue
2 requiring him to collect all amounts so assessed and to pay them coveting, etc.
3 over to the clerk or other proper officer according to the orders of 1727-8! 13, § 2'.
4 the proprietors. The collector shall collect said amounts in the 1758^; ?;f 2.
1202
GENERAL FIELDS.
[Chap. 123.
1785, 53, § 3.
R. S. 43, § 26.
G. S. 67, § 31.
same manner as collectors of towns are authorized to collect town 5
taxes. P. S. Ill, §31. 6 Mass. 43. 6
^redrbey0bea°ts Section 27. A proprietor who is injured in his lands by the 1
i698tr6ai§g5er' beasts of a stranger shall have the same remedy therefor as if his 2
1785! 53, § 6. land had been enclosed and used separately. 3
E. S. 43, § 37. G. S. 67, § 32. P. S. Ill, § 32.
Apportion-
ment of fence,
etc.
C. L. 17, § 3.
169S, 12, § 3.
1785, 53, § 1.
E. S. 43, § 28.
G. S. 67, § 33.
P. S. Ill, § 33.
6 Mass. 92.
Section 28. The whole fence enclosing such general field shall, 1
so far as it may be found convenient, be apportioned among the 2
proprietors according to the number of acres held and cultivated or 3
otherwise used by each ; and the part to be maintained by each pro- 4
prietor shall be apportioned to him by two or more fence viewers, 5
unless the proprietors agree on such apportionment. The proportion 6
of fence of each proprietor shall be recorded in the books of the 7
proprietors by the clerk, if any ; otherwise, by the clerk of the city 8
or town in which the general field is situated. 9
whXnotto Section 29. A proprietor shall not, so long as he declines to 1
maintain cultivate his land or to use it for pasturing, for the growth of wood 2
1785, 53, §12. or otherwise, be required to maintain any part of the fence or to 3
g.' s! 67^ § 34.' pay any tax or assessment on account of his land. p. s. hi, § 34. 4
Expense of
apportioning
fence, etc.
1727-S, 13, § 1.
1785, 53, §§ 1, 2.
E. S. 43, § 30.
G. S. 67, § 35.
P. S. Ill, § 35.
Section 30. The expense of apportioning the fence and also of 1
making and maintaining such part thereof as cannot be conveniently 2
and justly apportioned to any one proprietor shall be borne by all 3
the proprietors liable to be taxed in proportion to their respective 4
interests ; and the part apportioned to each proprietor shall be made 5
and maintained by him so long as he uses his part of the general 6
field for pasturing, planting, mowing or otherwise. 7
whe^p'art^f Section 31. If the part of the fence apportioned to a proprietor 1
fence assigned becomes deficient and he does not repair it within three days after 2
1794, 38, §i! notice of such deficiency has been given to him by a fence viewer 3
of the town, it may be repaired by any other proprietor. Two or 4
more fence viewers may examine such repairs, and, if they adjudge 5
them to be sufficient, may ascertain and determine the cost of the 6
same and make a statement thereof and of the amount of their fees 7
in writing under their hands. 8
E. S. 43, § 31.
G. S. 67, § 36.
P. S. Ill, § 36.
ingrto refit?*" Section 32. The person who makes such repairs may demand
liable to double 0f the proprietor who is bound to make them, or of the tenant who
1758-9? 33', § 2.' holds under him, double the cost of the repairs and of the fees of the
r. s'. 43, § 32. fence viewers so ascertained ; and if they are not paid within one
p.' s.' lii, § 37. month after notice and demand, he may recover them in an action
of tort.
1
2
3
4
5
6
Liability to
repair in case
of sudden
destruction,
etc.
1794, 38, § 2.
R. S. 43, § 33.
G. S. 67, § 38.
P. S. Ill, § 38.
Section 33. If a part of the fence is suddenly blown down or 1
carried away by a flood or tempest at a time when the crops of grain 2
or grass in the field are thereby exposed to immediate destruction 3
or injury, the proprietor to whom such part of the fence was assigned 4
shall repair it within twenty-four hours after notice thereof given to 5
Chap. 123.] general fields. 1203
6 him by a fence viewer ; and if he fails so to do, the fence may be
7 repaired by any other proprietor, who may recover double the cost
S of the repairs and fees, as provided in the preceding section.
1 Section 34. A proprietor may enclose his land at his own ex- Proprietor
2 pense ; and, so long as he keeps it enclosed with a sufficient fence, hi^aend.lose
3 may cultivate and use it as he thinks fit ; and during such period, so u9!.1^', § 36.
4 far as such enclosed land is concerned, he shall neither be assessed (f5! 678,§§39
5 for any expenses incident to the common field nor exercise any con- r- s- ni> § 3i>-
6 trol over the portion thereof not enclosed.
1 Section 35. Every proprietor of land lying unfenced in a Proprietors to
2 general field shall once in every two years, if requested by the owner fn tw^yeanT
3 of the adjoining land, run lines with such owner between their lots 1692-3, 28, § 2.
4 and shall make and keep up the boundaries between them by sufficient ^8| 54| §A-g
5 bound stones, at their joint expense. If he fails so to do after seven p,§-i?j§54?A
6 days' notice by the adjoining owner, he shall forfeit two dollars to
7 the use of such adjoining owner.
1 Section 36. If it is for the interest of the proprietors of five superior court
2 or more parcels of land to enclose them in one common field, the proprietors to
3 superior court for the county in which the land or any part of it lies |eneraf field8
4 may, upon the application of a majority in interest of the proprietors, |p| ^ §§ 39
5 after notice to all other persons interested and a hearing, order it to *o- g ' '
6 be so enclosed, if it appears to be for the common benefit of the ±2.
- ,. > Vf P. S. Ill, §§ 41,
7 parties. 42.
1 Section 37. After a common or general field is so established prf^rietors'to
2 by an order of the court, the further proceedings in relation thereto fslf en TerSd
3 shall be the same as are provided when a field is so enclosed by the t>y consent.
4 consent of the proprietors ; and the proprietors shall be entitled to r. s'. 43, § 41.
5 the privileges and be subject to the duties before provided in this p.' f.' lii.Vfs.
6 chapter relative to the proprietors of fields enclosed by consent.
1 Section 38. Three or more proprietors of lots in a general field generauieid
2 lying within one general fence or enclosure may, by a petition in ^s°5n^et^n-
3 writing to the proprietors of such field at a meeting of said pro- R. s'.43, §43.
4 prietors legally warned for the purpose, request to have their lots, p.' s." lii, § 44.
5 either alone or jointly with any other lots in such field, divided from
C) the remainder of the field in order to be enclosed by one common
7 fence and occupied by them as an entire field separately from the
8 other proprietors. If the majority of proprietors in interest present
9 at such meeting withhold or refuse their assent to such division, the
10 superior court may, upon like application, appoint five disinterested
11 and suitable persons within the county in which the general field is
12 situated, to be a committee to make the division, if they deem it
13 expedient, and to assign to each field its proportion of the partition
14 fence which by reason of such division should be kept up and
15 maintained by the proprietors of the said general fields respectively.
1 Section 39. The committee shall, as soon as may be after their same subject.
2 appointment, make return of their doings under their hands to the »*&.«', s§«.
3 court ; and after its acceptance by the court, the fields so divided g; |; nV§4«>.
1204 AQUEDUCT CORPORATIONS. [CHAP. 123.
shall be deemed separate general fields and the proprietors of the 4
field set off, and the remaining proprietors of the original field, re- 5
spectively, shall be distinct and separate proprietary bodies, having 6
like powers and privileges and subject to like duties and liabilities 7
as the proprietors of the original general field before the division ; 8
but no order for such division shall be made, and no such committee 9
shall be appointed, until the other proprietors have had notice of 10
the petition for such division. Such notice shall be given by serv- 11
ing upon the clerk of the proprietors a copy of the petition at least 12
thirty days before such order or appointment is made. 13
?nce°ofgenerai Section 40. A majority in interest of the proprietors of a com- 1
imBh §5 mon field> whether established by consent or by an order of court, 2
r8^' « 1 42 may discontinue it at a legal meeting warned for the purpose ; but 3
g. s. 6:1 § 46'. the discontinuance shall not take effect until the expiration of six 4
months after such vote. 5
AQUEDUCT CORPORATIONS.
mefti^lsand' Section 41. The proprietors of an aqueduct corporation which 1
i79°8iC59°§3lerk' nas been organized under the provisions of chapter one hundred 2
g' s 6-' 1 1' an<^ ^en °^ ^e -^um^c Statutes or the corresponding provisions of 3
p.' s." no, § i earlier laws may at a legal meeting agree upon the method of calling 4
future meetings of the corporation, and may choose a clerk, who 5
shall be sworn and who shall record in books to be provided and 6
kept by him for that purpose all by-laws, votes and other proceed- 7
ings of the corporation. Such books shall at all times be subject to 8
the inspection of any person appointed for that purpose by the 9
general court. 10
tranter °to be Section 42. The clerk, at or immediately after the first meet- 1
booksd in ino ' shall enter in the books the names of the several proprietors 2
r9I lo §s§46' 8" an^ ^e shares owned by each ; and transfers of shares shall, within 3
g! si 65', §4. three months after they have been made, be entered by him in 4
the books in such form and for such fees as the directors order. 5
No person shall be deemed a proprietor whose share or interest is 6
not so entered. 7
i79™C59,r§ 3. Section 43. The proprietors may choose any number of direct- 1
g 1" 65' 1 5' ors and other officers to manage the business ; and the directors 2
p. s. 116, §5. shall choose one of their number to be the president of the 3
corporation . 4
lre^UlT^8' Section 44. The directors may make such assessments on each 1
g I" 65' § 6" share as they find necessary ; and, upon the default of a proprietor for 2
p. s. 116, § 6. thirty days after notice thereof to pay an assessment, they may sell 3
by public auction so many of his shares as will be sufficient to pay 4
the assessment and the necessary charges, such sale being first 5
advertised three weeks successively in a newspaper published in 6
the county, or notices thereof being posted thirty days at least 7
before the sale in public places in the city or town. The surplus 8
proceeds arising from the sale shall be paid to the owner of the 9
shares sold. 10
Chap. 123.] aqueduct corporations. 1205
1 Section 45 . Such corporation may purchase and hold real estate Real estate.
2 necessary for the purpose of its association not exceeding thirty r9|.549o'(§§8.
3 thousand dollars in value. p.'l.'no.Va-
1 Section 46. Such corporation may, with the consent in writing corporation
2 of the mayor and aldermen of a city or the selectmen of a town, hilhways^etc.
3 dig up and open any street or way therein for the purpose of plac- r9|. 4o,|79.
4 ing such pipes as are necessary in constructing its aqueduct or in p'f'f^Yio
5 repairing or extending the same, if the same is so done as not to u Gray,' 154.
fi prevent the convenient passing of teams and carriages.
1 Section 47 . Contracts made by or with such a corporation shall ^p^ralors
2 remain in force after its dissolution, and the shareholders at such dis- after dissoiu-
3 solution shall continue liable and capable as a corporation in all its 1798,' 59, § 9.
4 suits relative to such contracts until they are performed, if suit is g'. s! 65| § io!
5 commenced within six years after the dissolution or after the right P" s' 110' § u"
6 of action accrued.
1 Section 48. If no corporate property can be found to satisfy a individual
2 judgment recovered against the shareholders after the dissolution, shareholders.
3 and it is not satisfied within six months after it is recovered, the r9I\4o,§§9ii.
4 judgment creditor may satisfy the same out of the private estate of p.' |; f^^1^
5 the shareholders or any of them, as if the judgment had been
6 against them in their private capacity.
1 Section 49 . If the corporation at its dissolution is seised of real oon^eii estate
2 estate, the proprietors shall become tenants in common thereof in t0 h'e in com-
3 proportion to their respective shares or interests in the stock of the 1798/59, § 9.
, L r r R. S. 40, § 12.
4 corporation. g. s. 65, §12. p. s. 110, §13.
1 Section 50. Whoever maliciously injures an aqueduct or any Penalty for
2 of its appurtenances shall forfeit not more than one hundred dollars aqueducts.
3 to the use of the city or town in which the offence is committed, and r9|. 40, §n.
4 shall be liable to the corporation for treble the amount of damages £• f • f^Yii.
5 sustained thereby.
1 Section 51. A city or town in which such aqueduct is situated ^c^Avater^
2 may put conductors into the pipes for the purpose of drawing there- case of fires.
3 from, free of expense, as much water as is necessary if a building r. s. 40, § 15.
4 is on fire therein and such conductors are so secured that water shall p.' s. 116, § 15.
5 not be drawn therefrom except for the purpose of extinguishing 144 Mass.' 177.
6 fires.
1 Section 52. If the selectmen consider it necessary for the Provisions by
2 protection of persons and property in their town against fire to take takln™wate°i\
3 water from the conductors or pipes therein of an aqueduct corpora- p^s'.no, §§i6,
4 tion, they may direct the engineers of the fire department to request JoiMass. 93.
5 the corporation to put into such conductors or pipes, in such places iw Mass. 177.
6 as said engineers shall think necessary, connections or conductors
. 7 for the purpose of attaching hydrants or conducting water into
8 reservoirs. If the corporation refuses or neglects for two weeks
9 after such request to comply therewith, said engineers may make
10 such connections at the cost of the town, using all necessary means
1206
AGRICULTURAL AND HORTICULTURAL SOCIETIES. [CHAP. 124.
Warrants of
distress for
damages.
1851, 289, §§1,2.
G. S. 65, §§ 15,
16.
P. S. 110, §§ 18,
19.
4 Cush. 60.
16 Gray, 347.
142 Mass. 394.
for making the same and using reasonable care for the protection 11
of the pipes and works of such corporation. 12
Section 53. If, upon the application of a person who has 1
sustained injury in his land or by the diversion of water by the 2
operations of an aqueduct corporation, damages have been assessed 3
against it by county commissioners or a jury, in pursuance of the act 4
incorporating it or otherwise, the commissioners may issue warrants 5
of distress to compel payment of such damages with interest and 6
costs, in the manner and with the limitations prescribed in relation 7
to railroad corporations. Such damages shall not be recovered or 8
allowed against a corporation, except for injuries sustained within 9
three years last preceding the filing of the application to the county 10
commissioners. 11
CHAPTBK 124.
OF AGRICULTURAL AND HORTICULTURAL SOCIETIES.
Sis nii4 §§i2 Section 1. Every incorporated agricultural society which was
K-4|^.'§§1.'2- entitled to bounty from this commonwealth before the twenty-fifth
1852, 246.
G. S. 66, § 1.
1866, 189, § 1.
1870, 258.
1881, 285.
P. S. 114, § 1.
1890, 297.
90.?P"A-G-
1
2
3
4
5
6
7
8
9
10
day of May in the year eighteen hundred and sixty-six, and every
other such society whose exhibition grounds and buildings are not
within twelve miles of those of a society which was then entitled to
bounty, and which has raised by contribution of individuals and
holds, as a capital appropriated to its uses, one thousand dollars,
invested in an interest bearing public or private security or in real
estate, buildings and appurtenances for its use and accommodation,
shall, except when otherwise determined by the state board of agri-
culture as provided in section four, be entitled to receive annually 11
in October from the commonwealth, two hundred dollars, and in 12
that proportion for any greater amount so contributed and put at 13
interest or invested ; but no society shall receive a larger amount in 14
one year than it has awarded and paid in premiums during the year 15
last preceding, nor more than six hundred dollars. If there is only 16
one incorporated agricultural society in any county, it shall be en- 17
titled to receive said bounty notwithstanding its exhibition grounds 18
and buildings are within twelve miles of a society entitled to said 19
bounty ; and, after having received said bounty, it shall not be de- 20
prived of the right to receive the same by reason of the subsequent 21
incorporation of another society within the same county. 22
ass^atlonT Section 2. The state board of agriculture may set aside from 1
1895, 35i. the bounty allowed by the commonwealth to an incorporated agri- 2
cultural society such amount as may be recommended by the dele- 3
gate who represents such society on said board, and it shall be 4
devoted solely to the premium list of such chartered poultry asso- 5
ciation as said delegate may recommend, and upon such conditions 6
as the board of agriculture may determine. 7
fnlbount^to11" Section 3. A society which claims bounty shall annually, on or 1
^certificate, before the tenth day of January, file in the office of the secretary of 2
r. s'. 42, '§ 3.' the board of agriculture, a certificate signed by its president and 3
Chap. 124.] agricultural and horticultural societies. 1207
4 treasurer, stating under oath the amount so contributed which it Jf£'??& M:
5 holds at interest or invested, as a capital stock ; and also such other isss, 127! § 1*.
6 returns of its financial affairs as the board of agriculture may require, p.' s." nl, § 2.
7 upon a blank to be furnished by the secretary of said board to the 1891' m"
8 treasurer of said society.
1 Section 4. The amount of bounty to which a society is entitled bou2tytof
2 for any year shall be ascertained by the certificate last filed by it state b?*rd
3 under the provisions of the preceding section. But a society shall same.
• • 1847 69 § 2
4 not receive bounty in any year, if the state board of agriculture, g. s'. 66, §3.
5 having first given to it full opportunity to be heard relative to its pfs'.iu, §3.
6 financial affairs and general management, so determines by a two-
7 thirds vote of the whole number of its members present at its
8 annual meeting, and by its secretary notifies the treasurer and
9 receiver general thereof on or before the first day of September in
10 such year.
1 Section 5. A society which receives bounty shall make such ^rfbution of
2 rules for the distribution thereof as shall, in its opinion, best pro- ]^B|£-
3 mote the improvement of agriculture ; subject, however, to the p- s'. 114, § 4.
4 restrictions of sections eight to twelve, inclusive.
1 Section 6. A society which has received or may receive a saieormort-
2 bounty from the commonwealth shall not sell or mortgage the whole property regu-
3 or any portion of its real estate unless so authorized by a vote of iggof^.
4 two-thirds of the members of such society, at a meeting called for
5 the purpose, approved by the state board of agriculture after notice
6 to parties interested and a hearing.
1 Section 7. Every such society shall annually, on or before Annual re-
2 the tenth day of January, make a full return of its doings, signed isi8,sii4, § 4.
3 by its president and secretary, to the secretary of the state board ^l/m^i.
4 of agriculture, containing a statement of all expenditures, of the il^ 142 V*.
5 nature of the encouragement proposed by the society, the objects J|5| ^ J6L
6 for which its premiums have been offered and the persons to whom i8'74,'i82.
7 they have been awarded, all reports of committees and all state-
8 ments of experiments and cultivation which are regarded by the
9 president and secretary as worthy of publication, with such general
10 observations relative to the state of agriculture and manufactures
11 in the commonwealth as it may consider useful. The return shall
12 be so marked that the passages which are considered by such
13 officers most worthy of public notice, study and application may be
14 easily distinguished.
1 Section 8. A society which neglects in any year to comply with £ounetyUreof
2 the laws relating; thereto or with the regulations of the state board i&fjj. 1}}<X5-
o . -1 -i , • 1 t 1847, 69, § 3.
3 of agriculture shall not be entitled to bounty in the succeeding year. 1853, 127, § 3.
1856, 181, § 2. 1859, 232, § 5. G. S. 66, § 6. P. S. 114, § 6.
1 Section 9. A society which receives said bounty shall offer an- Premiums to
2 nually by way of premiums, or shall otherwise apply, for the societies, etc.
3 encouragement or improvement of agriculture or manufactures, an r.1!.^'///
4 amount not less than the amount so annually received, and shall p;!;^^.
1208
AGRICULTURAL AND HORTICULTURAL SOCIETIES. [CHAP. 124.
offer such premiums for agricultural experiments, and in such man- 5
ner, as the state board of agriculture requires. 6
Premiums
for trees for
ship timber.
1818, 114, § 5.
R. S. 42, § 6.
6. S. 66, § 8.
P. S. 114, § 8.
1901, 58.
Section 10. Every such society shall annually offer such pre- 1
miums and encouragement for the raising and preservation of oaks 2
and other forest trees as it considers proper and adapted to per- 3
petuate within the commonwealth an adequate supply of ship and 4
other timber. 5
i86™i8o,s§i. Section 11. Every such society shall admit as members, upon 1
p. s. ii4, §9. equal terms, citizens of every town in the county in which it is 2
located, and all premiums offered shall be subject to the competition 3
of every citizen of such county. 4
atmterest.be Section 12. All money offered for premiums which is not 1
r1! 42%§54' awarded or paid shall be placed at interest and added to the capital 2
g. s. m, § 9. stock of the society. p. s. 114, § 10. 3
ues^provfslons Section 13. Sections one, three, four, five and seven to twelve,
ill 114 5 6 inclusive, except the proviso in section four authorizing the state
r. s. 42,' § 7. board of agriculture to withhold bounty, shall not, except by special
1881,' 285. enactment, extend to an agricultural society incorporated for any
P. S. 114, § n. , . , -, ,i , ° J r J
territory less than a county.
1
2
3
4
5
Cattle shows
regulated.
1820, 49, § 1.
R. S. 42, §§ 8-10.
1847, 69, § 5.
G. S. 66, §§ 11-
13.
P. S. 114, §§ 12-
14.
6 Allen, 588.
Section 14. The officers of such society may define and fix 1
bounds of sufficient extent for the erection of its cattle pens and 2
yards and for convenient passage ways to and about the same on 3
the days of its cattle shows and exhibitions, and also for its plough- 4
ing matches and trials of working oxen ; but they shall not occupy 5
or include within such bounds the land of any person without his 6
consent, nor obstruct travel on any public highway. No person 7
shall be permitted to enter or pass within such bounds unless in 8
conformity with the regulations of the officers of the society. 9
Whoever, contrary to such regulations, and after notice thereof, 10
enters or passes within the bounds so fixed, shall forfeit not more 11
than five dollars. 12
Marshals,
powers of.
1820, 49, § 2.
R. S. 42, § 11.
G. S. 66, § 14.
P. S. 114, § 15.
6 Allen, 588.
Section 15. The officers of such society may appoint a suffi- 1
cient number of suitable inhabitants of the county to act as marshals 2
at cattle shows and exhibitions. Such marshals shall have the 3
powers of constables in relation to the preservation of the public 4
peace and the service and execution of criminal process within the 5
respective towns in which such shows and exhibitions are held, and 6
such process may be directed to them accordingly ; and they shall 7
exercise their office from twelve o'clock at noon of the day preced- 8
ing the commencement of such shows and exhibitions until twelve 9
o'clock at noon of the day succeeding the termination thereof, and 10
no longer. 11
oVpoiicTaf Section 16. Upon the application of the president of an in- 1
exhibitions. corporated agricultural or horticultural society to the authorities of 2
a city or town in which an exhibition of such society is to be held, 3
said city or town authorities shall assign for special service at such 4
1892, 180.
Chap. 124.] agricultural and horticultural societies. 1209
5 exhibition as many police officers or constables as may be necessary
6 to preserve the peace and enforce the law at such exhibition.
1 Section 17. The state board of agriculture may prescribe rules Kuiesfor
2 to societies for uniform modes of ascertaining the product of crops amount ofnfre-
3 entered for premium. 1862, 24. p. s. 114, § 16. mmm crops-
1 Section 18. Every such society may offer and pay premiums Premiums for
2 for experiments in the cultivation of crops or in the raising of do- 1*59^23™,!^'
3 mestic animals for farm purposes, and no regulation of the state pfs'. iu, § 17.
4 board of agriculture to the contrary shall be valid.
1 Section 19. Ten or more persons in any county, city or town, Formation of a
2 who by agreement in writing associate for the purpose of eneourag- powerstlon-
3 ing agriculture or horticulture, or for improving and ornamenting g5s.366,'§17.
4 the streets and public squares of any city or town by planting and ^'gf'^ge'f I8'
5 cultivating ornamental trees therein, may form a corporation under
6 the provisions of chapter one hundred and twenty-five, and may hold
7 real and personal estate not exceeding ten thousand dollars in value.
1 Section 20. Farmers' clubs which are organized and are holding Farmers' clubs
2 regular meetings shall, upon application made annually in November ucationlfete1.1''
3 to the secretary of the state board of agriculture, receive copies of Gps'-ee^'us.
4 its report and of its other publications, in proportion to the number p- s. 114, § 19.
5 of their members and to the applications so made. A club which
6 receives such copies shall annually in October make returns to said
7 secretary of its agricultural experiments and of the reports of its
8 committees.
1 Section 21. Every such society or farmers' club may establish ofrpeaceation
2 such regulations, not inconsistent with law, as it may consider nee- ™eh ^>|L
3 essary and expedient for the preservation of peace and. good order or 6 Alien, 588. '
4 for the protection of its interests at its regular or annual meetings,
5 shows, fairs or exhibitions, and shall cause at least five copies of
6 such regulations to be posted in public places on its grounds not
7 less than forty-eight hours before the time of holding each meeting.
1 Section 22. No person shall, during the time of holding a cattle Booths, etc.,
2 show, fair or exhibition or meeting of a farmers' club, without the f^oh^fted0"
3 consent of the authorities having charge of the same, establish Jf^; }§; f f;
4 within one-half mile of the place of holding such show or meeting a p- s- lu> §21-
5 tent, booth or vehicle of any kind for the purpose of vending any
6 goods, wares, merchandise, provisions or refreshments. No person
7 shall engage in gaming or horse racing or exhibit a show or play
8 during the regular or stated time of holding a cattle show, agricult-
9 ural fair or meeting of a farmers' club, or engage in pool selling, at
10 or within half a mile of the place of holding the same ; but any
11 person having his regular place of business within such limits shall
12 not be hereby required to suspend his business.
1 Section 23. Whoever violates any provisions of the preceding Penalty.
2 section, or a regulation established under the provisions of section p. s'. iu', § 22.
3 twenty-one, shall forfeit not more than twenty dollars for such
4 offence.
1210
CHARITABLE AND OTHER CORPORATIONS . [CHAP. 125.
CHAPTEE 125.
OF CORPORATIONS FOR CHARITABLE AND OTHER PURPOSES.
Sections 1-12.'
Sections 13-16.-
Sections 17-19.-
Sections 20-22.
-Purpose and Manner of Organization.
•Labor or Trade Organizations.
•Railroad and Steamboat Relief Corporations.
•Textile Schools.
Formation of
corporation.
1857, 56, § 1.
G. S. 32, § 1.
1869, 276.
PURPOSE AND MANNER OF ORGANIZATION.
Section 1. Seven or more persons, a majority of whom are 1
residents of this commonwealth, may form a corporation for any 2
of the purposes named in the following section. 3
1873, 176.
1874, 375, § 1.
P. S. 115, § 1.
130 Mass. 325.
Purposes of
corporation.
1857, 56, § 1.
G. S. 32, § 1.
1869, 276.
1873, 176.
1874, 375, § 2.
1875, 107, § 2.
1877, 204, § 1.
1878, 153.
P. S. 115, § 2.
Section 2. Such corporation may be formed for any educational, 1
charitable, benevolent or religious purpose ; for the prosecution of 2
any antiquarian, historical, literary, scientific, medical, artistic, 3
monumental or musical purpose ; for establishing and maintaining 4
libraries ; for supporting any missionary enterprise having for its 5
object the dissemination of religious or educational instruction in 6
foreign countries ; for promoting temperance or morality in this 7
commonwealth ; for encouraging athletic exercises or yachting ; for 8
encouraging the raising of choice breeds of domestic animals and 9
poultry ; for the association and accommodation of societies of Free 10
Masons, Odd Fellows, Knights of Pythias or other charitable or 11
social bodies of a like character and purpose ; for the establishment 12
and maintenance of places for reading rooms, libraries or social 13
meetings. 14
Section 3. The corporation shall be formed in the manner pre-
Organization.
1857, 56, § 2.
fm '375 §§f-3-5. scribed in, and subject to the provisions of, sections fifteen to
P-8|'ii5»§§3.4- twenty, inclusive, of chapter one hundred and ten, except as fol-
1890' 191! lows :
The capital stock, if any, shall not exceed five hundred thousand
dollars.
The agreement of association of a corporation which has no capital
stock may omit the statement of the amount of the capital stock and
the par value and number of its shares. The par value of the shares
of its capital stock, if any, may be ten, twenty-five, fifty or one
hundred dollars. The fee to be paid to the secretary of the com-
monwealth upon the filing of the certificate of organization shall be 12
five dollars. 13
1
2
3
4
5
6
7
8
9
10
11
Investigation
of proposed
associates.
1890, 439, § 1.
1893, 226, § 1.
Section 4. Before making and issuing a certificate of incorpora- 1
tion to a corporation formed for any of the purposes described in 2
section two, the secretary of the commonwealth may forward a 3
statement to the mayor and aldermen of the city, except Boston, 4
or to the selectmen of the town, in which such society is to have ,5
its principal oflice or rooms, and, if such office or rooms are to be 6
in Boston, to the board of police for the city of Boston, giving a 7
Chap. 125.] charitable and other corporations. 1211
8 list of the names of the persons who have applied for incorporation,
9 the purpose of the organization as stated by the applicants, the
10 location proposed to be occupied and all other facts which may
11 be stated in the application for incorporation. The mayor and
12 aldermen, selectmen or board of police for the city of Boston, upon
13 the receipt of such statement, shall immediately make an investi-
14 gation and ascertain whether any of the proposed incorporators
15 have been engaged in the illegal selling of intoxicating liquor or
16 in keeping places or tenements used for the purpose of illegal
17 gaming, or whether they have been engaged in any other business
18 or vocation prohibited by law, and shall forthwith report to the
19 secretary of the commonwealth all the facts ascertained. If, in his
20 opinion, it appears from said report or otherwise that the proba-
21 ble purpose of the formation of the proposed organization is to
22 cover an illegal business, he shall refuse to issue a certificate of in-
23 corporation.
1 Section 5. Before making and issuing a certificate for the in- charitable
2 corporation of a charitable corporation or home for the care and or^omes for
3 support of minor children, the secretary of the commonwealth may igoi^os."
4 also forward such statement as is described in the preceding section
5 to the state board of charity, which shall immediately make an
6 investigation as to the persons who have asked to be incorporated
7 and as to the purposes of the incorporation, and any other material
8 facts relative thereto, and shall forthwith report to the secretary of
9 the commonwealth all the facts ascertained by it. If it appears to
10 the secretary of the commonwealth from said report or otherwise
11 that the probable purpose of the formation of the proposed cor-
12 poration is to cover any illegal business, or that the persons ask-
13 ing for incorporation are not suitable persons to have charge of
14 minor children, from lack of financial ability or from any other cause,
15 he shall refuse to issue his certificate. If he refuses to issue his
16 certificate, the persons asking to be incorporated may appeal to the
17 superior court, which shall hear the case and finally determine
18 whether or not the certificate of incorporation shall be issued.
1 Section 6. The corporation may prescribe by its by-laws the By-laws.
2 manner in which, and the officers and agents by whom, the purposes i874?375, § 6.
3 of its incorporation may be accomplished, and, instead of the direct- p.7!'. i?5,§§§'5, 6.
4 ors and other officers to be chosen at the first meeting, it may have
5 a board of other officers with the powers of directors, and presiding,
6 financial and recording officers with the powers of president, treas-
7 urer and clerk ; and its certificate of organization may be made,
8 signed and sworn to by its presiding, financial and recording officers
9 and a majority of its other officers having the powers of directors ;
10 and the certificate issued by the secretary under the provisions of
11 section twenty of chapter one hundred and ten shall be modified to
12 correspond with the facts in each case.
1 Section 7. Such corporation, if organized under general laws, increase of
2 at a meeting called for the purpose may increase the amount of 1888,177.
3 its capital stock and the number of shares therein to an amount not
4 exceeding five hundred thousand dollars.
1212
CHARITABLE AND OTHER CORPORATIONS. [CHAP. 125.
Such corpora-
tions may hold
real and per-
sonal estate,
and gifts, etc.
1857, 56, § 4.
G. S. 32, § 4.
1S74, 375, § 7.
P. S. 115, § 7.
1896, 96.
1897, 97.
1901, 96.
153 Mass. 78.
Change of pur-
pose of incor-
poration.
189S, 504.
Section 8. Any corporation organized under general or special 1
laws for any of the purposes mentioned in section two and under 2
sections thirteen to sixteen, inclusive, may hold real and personal 3
estate to an amount not exceeding one million five hundred thou- 4
sand dollars, which shall be devoted to the purposes set forth in 5
its charter or agreement of association, and it may receive and hold, 6
in trust or otherwise, funds received by gift or bequest to be devoted 7
by it to such purposes. 8
Section 9. Such corporation may, at a meeting duly called for 1
the purpose, by vote of all its members, add to or change the pur- 2
pose for which it was incorporated, if the additional or new purpose 3
is authorized by section two. The presiding, financial and record- 4
ing officers and a majority of its other officers having the powers of 5
directors shall forthwith make, sign and swear to a certificate setting 6
forth such addition to or change of purpose, which, having been 7
submitted to the commissioner of corporations and approved by 8
him, shall thereupon be filed and recorded in the office of the secre- 9
tary of the commonwealth. 10
de^rees^f. Section 10. A corporation organized for medical purposes under 1
etlden' xmleB8' the provisions of this chapter shall not confer degrees, or issue 2
diplomas or certificates conferring or purporting to confer degrees, 3
unless specially authorized thereto by the general court. An 4
officer, agent or servant of such corporation or any other person 5
who confers degrees, or signs, issues or authorizes the signing or 6
issuing of any diploma or certificate purporting to confer any degree 7
of medicine or surgery, in violation of the provisions of this sec- 8
tion, shall be punished by a fine of not less than five hundred nor 9
more than one thousand dollars. 10
etc
1883, 268.
1900, 409
Horse^hreed- Section 11. Corporations which are formed under the provi- 1
tions may hold sions of this chapter for encouraging the raising of choice breeds 2
CMuioitions
of horses may establish and maintain grounds suitable for exhibi- 3
tions and trials of the speed or strength of horses ; may arrange 4
for and advertise such exhibitions and trials upon such grounds, 5
may collect admission fees thereto and may award purses or pre- 6
miums to the participants therein, if such purses or premiums are 7
raised only from voluntary subscriptions to the funds of the cor- 8
poration, admission fees or fees for entering horses in such exhibi- 9
tions or trials. 10
Adoption of
chapter by
corporations
otherwise
organized.
1875, 49, § 2.
P. S. 115, § 13.
130 Mass. 325.
Section 12. A corporation which was formed before the twenty- 1
seventh day of July in the year eighteen hundred and seventy-four 2
under the provisions of any statute for any of the purposes men- 3
tioned in section two may, at a meeting called for the purpose, vote 4
to accept the provisions of the preceding sections of this chapter 5
and present to the commissioner of corporations a certificate signed 6
and sworn to by its presiding, financial and recording officers and a 7
majority of its other officers having the powers of directors, setting 8
forth a copy of its agreement of association and of said vote, the date 9
of the meeting at which the vote was accepted and such further evi- 10
dence as the commissioner may require of its legal existence and 11
of its intention to accept the provisions of said sections. The com- 12
Chap. 125.] charitable and other corporations. 1213
13 missioner shall examine the certificate and evidence of organization,
14 and, if it appears that the provisions of law have been complied
15 with, shall so certify and approve the certificate by his indorsement
16 thereon, and thereupon such corporations shall have the powers
17 and privileges and be subject to the duties and liabilities of corpora-
18 tions formed under said sections. The secretary of the common-
19 wealth, upon payment of a fee of five dollars and upon the deposit
20 in his office of said certificate with the indorsement thereon, shall
21 cause it to be recorded, and shall issue a certificate in the follow-
22 ing form : —
Commonwealth of Massachusetts.
Be it known that whereas [the names of the original subscribers] formerly Form of cer-
associated themselves with the intention of forming a corporation under the name tiflcateof
of [the name of the corporation] , for the purpose [the purpose declared in the to be issued by
articles of agreement] , under the provisions of [the designation of the statute secretary of
under the provisions of which organization was effected] , with a capital of [the wealth,
amount of the capital stock, as it stands fixed by the corporation at the date of
the certificate ; or, if there is no capital stock, this clause shall be omitted] , and
the provisions of the statutes of this commonwealth in such case made and pro-
vided have been complied with, as appears from the certificate of the proper
officers of said corporation, duly approved by the commissioner of corporations,
and recorded in this office : now, therefore, I [the name of the secretary] , secre-
tary of the commonwealth of Massachusetts, do hereby certify that said [the
name of the corporation] is legally organized and established as an existing
corporation, with the powers, rights and privileges, and subject to the limita-
tions, duties and restrictions, which by law appertain thereto.
Witness my official signature hereunto subscribed, and the seal of the com-
monwealth of Massachusetts hereunto affixed, this day of , in the
year . [The day, month and year of execution of the certificate.]
23 The secretary shall sign the same and cause the seal of the com- same to be
24 monwealth to be thereto affixed, and such certificate shall be con- ^corporation.
25 elusive evidence of the existence of such corporation at the date of
26 such certificate. The secretary shall also cause a record of such
27 certificate to be made, and a certified copy of such record may be
28 given in evidence with like effect as the original certificate.
labor or trade organizations.
1 Section 13. Corporations maybe formed in the manner pro- Labor or trade
2 vided in this chapter for the purpose of improving the condition iJCT34*§ i?s*
3 of any employees in any one or more trades or employments, ^8°]p,A,G'
4 either relative to their employment or to the promotion of educa-
5 tion, temperance, morality or social intercourse among them, or for
6 the purpose of paying benefits to sick or unemployed members,
7 or to persons dependent upon deceased members or otherwise.
1 Section 14. The commissioner of corporations shall not indorse indorsement
2 his approval upon the certificate of organization of any such corpo- ?abo£ etc.* e
3 ration, unless he is satisfied that the purpose of the association is i^mmS8,
4 lawful, that its by-laws contain no provision contrary to law and
5 that they conform to the requirements of the following two sections.
1 Section 15. The by-laws shall contain clear and distinct pro- By.iawsof
2 visions relative to the election, admission and expulsion of mem- zfftionsrgan "
3 bers; the titles, duties, powers and tenure of the officers of the 1888>134.§§3.4-
4 corporation and their election and removal ; the number of members
1214
CHARITABLE AND OTHER CORPORATIONS.
[Chap. 125.
Rights of
members.
1888, 134, § 4.
required for a quorum ; the call for special meetings ; the adoption, 5
amendment and repeal of by-laws ; the purposes to which the funds 6
of the corporation may be applied and for which assessments may 7
be laid upon the members ; the conditions upon which a member 8
or persons dependent upon a deceased member shall be entitled to 9
benefits, if any are to be given by the corporation ; the imposition of 10
fines and forfeitures, if any ; the deposit, investment and custody 11
of the funds of the corporation ; the periodical audit of the accounts 12
of the treasurer ; and the method of voting on shares of stock, if 13
any are issued by the corporation. A by-law shall not be repealed 14
or amended, or an additional fry-law adopted, unless notice of such 15
proposed action shall have been given at a previous meeting ; and 16
such repeal, amendment or adoption shall not take effect until it 17
has been approved by the commissioner of corporations as con- 18
formable to the requirements of law. 19
Section 16. No member of such corporation shall be expelled by 1
vote of less than a majority of all the members thereof, nor by vote 2
of less than three-quarters of the members present and voting upon 3
such expulsion. Every member of such corporation and every 4
person who has an interest in its funds shall be entitled to examine 5
its books and records. 6
Railroad, etc.,
relief corpo-
rations.
1882, 244, § 1.
1890, 181, § 1.
RAILROAD AND STEAMBOAT RELIEF CORPORATIONS.
Section 17. Seven or more persons, a majority of whom are 1
residents of this commonwealth, being employees of any railroad, 2
street railway or steamboat corporation organized under the laws 3
of this commonwealth, may, in accordance with the provisions of 4
sections three to six, inclusive, form a corporation for the purpose 5
of receiving, managing and applying such property and funds as 6
it may receive by contribution, assessment or otherwise for the 7
improvement and benefit of its members and for their relief and 8
the relief of their families in case of sickness, injury, inability to 9
labor or other cases of need. 10
approval of. Section 18. The by-laws of such corporation shall be ap- 1
1882, 244, §§ 'i, 3. proved by the board of railroad commissioners, and shall prescribe 2
the manner in which, and the officers and agents by whom, the pur- 3
pose of its incorporation may be carried out and also the manner 4
in which its property may be invested. Such corporation shall 5
annually, and as often as may be required by the board of railroad 6
commissioners, render to the board such statements of its membership 7
and financial transactions and such other information relative thereto 8
as the board may consider necessary for a proper exhibit of its busi- 9
ness and standing. Said board may verify such statement by an 10
examination of the books and papers of the corporation ; and who- 11
ever, having charge or custody of such books and papers, neglects 12
to comply with the provisions of this section shall be punished by 13
a fine of not more than five hundred dollars. 14
company may Section 19. A railroad corporation which operates a railroad 1
associate with or portion thereof in this commonwealth, and a street railway com- 2
employees. 1 , ' . . . *'
1886, 125. pany, may, by vote of its directors, associate itself with seven or 3
1890, 181, §2. f J ' J ' J >
Chap, 125.] charitable and other corporations. 1215
4 more of its employees in forming a corporation under the pro-
5 visions of section seventeen or may, upon the invitation of any such
6 society, become a member thereof, and may from time to time aid
7 such corporation by contributions to its funds or otherwise. The
8 by-laws of such corporation shall provide for the manner in which
9 the railroad corporation and street railway company shall vote and be
10 represented in said corporation. The funds of such corporation shall
11 not be liable to attachment by the trustee process or be liable to be
12 taken on execution or on any other process, legal or equitable,
13 to satisfy any debt or liability of the railroad corporation or street
14 railway company or of any member of the corporation.
TEXTILE SCHOOLS.
1 Section 20. If the mayor of a city files a certificate with the Textile schools
2 commissioner of corporations that in said city there are in opera- is^f^ § i.
3 tion four hundred and fifty thousand or more spindles, not less than lelVassAw.
4 seven nor more than twenty persons, citizens of this commonwealth,
5 may associate themselves by an agreement in writing for the purpose
6 of establishing and maintaining a textile school in such city for instruc-
7 tion in the theory and practical art of textile and kindred branches of
8 industry, with authority to take, by gift or purchase, and hold real
9 and personal property to the amount of three hundred thousand
10 dollars. A copy of said agreement and of the signatures thereto,
11 sworn to by any one of the subscribers, shall be submitted to the
12 governor, and if he certifies his approval of the associates as suitable
13 for the purposes of their association and of this section, and they
14 organize by the adoption of by-laws and the election of officers and
15 file a certificate thereof and the certificate of the approval of the
16 governor with the secretary of the commonwealth, he shall issue to
17 them a certificate of corporation as similar as may be under the
18 circumstances to the forms heretofore provided in this chapter and
19 thereupon said associates shall be a corporation for said purposes,
20 with all the powers and privileges, and subject to all the duties and
21 obligations, of corporations organized for educational purposes
22 under the provisions of this chapter, except as herein otherwise
23 provided. Said corporation shall be known as the Trustees of the
24 Textile School of the city in which it is located and may fill all
25 vacancies in its membership, except as otherwise provided in sec-
26 tion twenty-two. Only one such corporation shall be established
27 under the provisions of this section in any one city.
1 Section 21. A city in which such corporation is established tto^by^ities
2 may appropriate and pay to it not more than twenty-five thousand i|)5, 475, § 2.
3 dollars, and, upon such payment, the mayor and superintendent of
4 schools of such city shall ex officiis be members of said corporation.
1 Section 22. If a city appropriates and pays money to such monweaith0™"
2 corporation, or if the trustees or members thereof pay money into ^l^-.J
3 its treasury for the establishment and maintenance of such schools, 1899! 299,' § 3.
4 the commonwealth shall appropriate and pay to said corporation
5 an amount equal to the total amount so appropriated and paid, not
6 exceeding twenty-five thousand dollars, and, upon such appro pria-
7 tion and payment by the commonwealth, the governor shall, with
1216
FOREIGN CORPORATIONS.
[Chap. 126.
the advice and consent of the council, appoint two trustees of the 8
corporation for two and four years respectively, and at the end 9
of each of said terms a trustee for four years, and such trustees and 10
their successors by like appointment shall be members of said cor- 11
poration. The governor, with the advice and consent of the council, 12
shall fill all vacancies in the membership created by this section. 13
CHAPTEE 126.
Foreign cor-
porations
defined.
168 Mass. 564.
OF FOREIGN CORPORATIONS.
Section 1. The term foreign corporation as used in this chapter 1
shall mean a corporation, association or organization which has 2
been established, organized or chartered under the laws of another 3
state or of a foreign country. 4
Limitation of
business.
1894, 381.
173 Mass. 252.
[1 Op. A. G.
181-1
Section 2. A foreign corporation, except life insurance com- 1
panies as provided in chapter one hundred and eighteen, shall not 2
engage or continue in any kind of business in this commonwealth 3
the transaction of which by domestic corporations is not permitted 4
by the laws of this commonwealth. 5
Foreign
mortgage
corporations.
1895, 311, §§ 1, 2.
Section 3. Foreign corporations engaged in the business of 1
selling or negotiating bonds, mortgages, notes or other choses in 2
action shall be subject to all the general laws relating to foreign 3
corporations which have a usual place of business in this common- 4
wealth, and they shall make an annual return to the commissioner 5
of corporations of their assets and liabilities, and shall make such 6
further statements to him at such times and in such form as he may 7
require. 8
Appointment
of attorney.
1852, 311, §§ 2-5.
1854, 453, § 32.
1856, 252, § 46.
G. S. 58, §§ 68,
69.
1871, 371, § 1.
1872, 325, § 4.
1875, 79.
1878, 36, §§ 1-5.
P. S. 73, § 3;
119, § 202.
1882, 106, § 1.
1884, 330, §§ 1, 2,
1885, 183, § 9.
1887, 214, § 78,
cl. 3.
1888, 429, § 13.
1890, 421, § 17.
1894, 367, § 12;
522, § 78, cl. 3.
1895, 311.
1898, 474, § 15.
1899, 442, § 20.
1901, 238.
12 Gray, 201.
10 Allen, 231.
14 Allen, 336.
105 Mass. 141.
132 Mass. 432.
137 Mass. 252.
139 Mass. 295.
149 Mass. 26.
150 Mass. 556.
Section 4. Every foreign corporation, except foreign insurance 1
corporations, which has a usual place of business in this common- 2
wealth, or which is engaged in this commonwealth, permanently or 3
temporarily, and with or without a usual place of business therein, 4
in the construction, erection, alteration or repair of a building, 5
bridge, railroad, railway or structure of any kind, shall, before 6
doing business in this commonwealth, in writing appoint the com- 7
missioner of corporations and his successor in office to be its true 8
and lawful attorney upon whom all lawful processes in any action 9
or proceeding against it may be served, and in such writing shall 10
agree that any lawful process against it which is served on said 11
attorney shall be of the same legal force and validity as if served on 12
the corporation, and that the authority shall continue in force so 13
long as any liability remains outstanding against the corporation in 14
this commonwealth. Every foreign insurance corporation shall in like 15
manner and with like effect appoint the insurance commissioner or 16
his successor in office to be its attorney. The power of attorney 17
and a copy of the vote authorizing its execution, duly certified and 18
authenticated, shall be filed in the office of the commissioner who 19
has been appointed, and copies certified by him shall be sufficient 20
Chap. 126.] foreign corporations. 1217
21 evidence thereof. Service of such process shall be made by leaving wo Mass. 413.
22 a copy of the process with a fee of two dollars in the hands or in ies Mass.' 569.
23 the office of the commissioner, and such service shall be sufficient gPu^l88^!?4,
24 service upon the principal.
1 Section 5 . When legal process against any such corporation is Notice of
2 served upon the commissioner, he shall immediately give notice to 18^330, §§2,4.
3 the corporation of such service by mail, postage prepaid, directed,
4 in the case of a corporation established in a foreign country, to the
5 resident manager, if any, in the United States ; and shall, within
6 two days after such service, forward in the same manner a copy
7 of the process served upon him to such corporation or manager, or
8 to any other person designated by the corporation by written
9 notice filed in the office of the commissioner. The fee of two
10 dollars paid by the plaintiff to the commissioner at the time of the
11 service shall be taxed in his costs, if he prevails in the suit. The
12 commissioner shall keep a record of all such processes, which shall
13 show the day and hour of service.
1 Section 6. Every such corporation, except insurance corpo- copy of char.
2 rations shall, before transacting business in this commonwealth, i884,033o, §§3^*4.
3 file with the commissioner of corporations a copy of its charter or 1900,' 280!
4 certificate of incorporation, certified under the seal of the state or 155 Mass' 259'
5 country in which such corporation is incorporated by the secretary
6 of state thereof or the officer having charge of the original record
7 therein, and a statement of the amount of its capital stock, of the
8 amount paid in thereon to its treasurer and, if any part of such
9 payment has been made otherwise than in money, of the details of
10 such payment. Said statement shall be subscribed and sworn to by
11 its president, treasurer and by a majority of its directors or officers
12 having the powers usually exercised by directors. Every officer of
13 such a corporation which fails to comply with the requirements of this
14 section and section four and every agent of such corporation who
15 transacts business as such in this commonwealth shall, for such
16 failure, be liable to a fine of not more than five hundred dollars ;
17 but such failure shall not affect the validity of any contract by or
18 with such corporation. The officers and stockholders of foreign
19 corporations which do business in this commonwealth and which
20 are subject to the provisions of this and the preceding two sections
21 shall be subject to the same penalties and liabilities for false and
22 fraudulent statements and returns as officers and stockholders of
23 domestic corporations.
1 Section 7. The commissioner of corporations, the insurance investigation
2 commissioner and any other officer of this commonwealth whose business to°be
3 duty it is to examine and determine whether a corporation is en- ^f^i.
4 titled to file any papers under the provisions. of the preceding three ^^/j'6'
5 sections, of section thirteen of chapter one hundred and nineteen
6 or of chapters one hundred and eighteen or one hundred and twenty,
7 shall refuse to accept or file the charter, financial statement or other
8 papers of, or accept appointment as attorney for service for, any
9 such corporation which does a business in this commonwealth the
10 transaction of which by domestic corporations is not then permitted
11 by the laws of this commonwealth.
1218
FOREIGN CORPORATIONS.
[Chap. 126.
Names of
foreign cor-
porations
regulated.
1S89, 452, §§ 2, 3.
1890, 329.
153 Mass. 271.
Section 8. A foreign corporation which carries on a banking, 1
mortgage, loan and investment or trust business shall indicate in 2
letters equally conspicuous with its name, upon all signs, advertise- 3
ments, circulars, letterheads and other documents which contain its 4
name, the state or country in which it is chartered or incorporated. 5
No such corporation and no person who is engaged in such business 6
shall carry it on in or under a name which, previous to such use, 7
was in lawful use by a corporation which was established under the 8
laws of this commonwealth and was carrying on the same or a similar 9
business or in or under a name so similar thereto as to be liable to 10
be mistaken for it. The supreme judicial court and the superior 11
court shall have jurisdiction in equity to enforce the foregoing pro- 12
visions of this section. Whoever violates the provisions of this sec- 13
tion shall be punished by a fine of not more than one thousand 14
dollars. 15
Foreign cor-
porations may
be sued and
their property
attached.
1839, 158.
G. S. 68, § 15.
P. S. 105, § 28.
10 Mass. 91.
16 Pick. 274.
3 Met. 420.
6 Met. 391.
10 Grav, 164.
15 Gray, 491.
Section 9. Foreign corporations which have property in this 1
commonwealth shall be liable to be sued, and their property to be 2
attached in the same manner as residents of other states who have 3
property in this commonwealth are liable to be sued and their prop- 4
erty to be attached. The service of the writ shall be made in the 5
manner provided in chapters one hundred and sixty-seven and one 6
hundred and seventy, with such further service as the court to which 7
the writ is returnable may order. 8
99 Mass. 267. 150 Mass. 550.
Foreign manu-
facturing cor-
porations may
hold real
estate.
1888, 321.
1S95, 387.
Section 10. Foreign manufacturing corporations which have 1
complied with the provisions of sections four, five and six may pur- 2
chase and hold such real estate in this commonwealth as may be 3
necessary for conducting their business. 4
Issue of stock
on domestic
franchises
regulated.
1S94, 476.
Section 11. If a foreign corporation which owns or controls a 1
majority of the capital stock of a domestic street railway, gas light 2
or electric light corporation issues stock, bonds or other evidences 3
of indebtedness based upon or secured by the property, franchise 4
or stock of such domestic corporation, unless such issue is author- 5
ized by the law of this commonwealth, the supreme judicial court 6
shall have jurisdiction in equity in its discretion to dissolve such 7
domestic corporation. If it appears to the attorney general that 8
such issue has been made, he shall institute proceedings for such 9
dissolution and for the proper disposition of the assets of such cor- 10
poration. The provisions of this section shall not affect the right 11
of foreign corporations, their officers or agents to issue stock and 12
bonds in fulfilment of contracts existing on the fourteenth day of 13
July in the year eighteen hundred and ninety-four. 14
Certificate of
increase of
capital
1891, 341, §§ 1,
3,4.
1895, 311, § 1.
[lOp.A.G.
583.]
Section 12. Foreign corporations which have a usual place of 1
business in this commonwealth, and foreign corporations engaged 2
in the business of selling1 or negotiating; bonds, mortgages, notes 3
or other choses in action, but excluding mining and manufactur- 4
ing companies which are actually conducting their mining and man- 5
ufacturing operations wholly outside this commonwealth, foreign 6
corporations which are required to make annual returns to officers of 7
this commonwealth other than the commissioner of corporations, and 8
Chap. 126.] foreign corporations. 1219
9 railroad corporations, shall, within thirty days after the payment in
10 of an increase of capital stock, file in the office of the secretary of
11 the commonwealth a certificate of the amount of such increase and
12 the fact of such payment, signed and sworn to by its president,
13 treasurer and a majority of its directors. Within thirty days after
14 the vote of such corporation authorizing a reduction of its capital
15 stock, a copy of such vote, signed and sworn to by the clerk of the
16 corporation, shall be filed in the office of the secretary of the com-
17 monwealth.
1 Section 13. A foreign corporation which is subject to the pro- certificate of
2 visions of the preceding section shall annually, in March, make and i89if Mi,n§ i.
3 file in the office of the secretary of the commonwealth a certificate, 1895>311>§i.
4 signed and sworn to by its president, treasurer and a majority of
5 its directors, stating the amount of its capital stock, the amount
6 then paid in and the assets and liabilities of the corporation in such
7 . form as the commissioner of corporations shall require.
1 Section 14. A certificate which is required to be filed by sec- Approval of
2 tions twelve or thirteen shall be accompanied by a written statement mi, 34if§"5.
3 under oath by an auditor, as provided in section fifty-two of chapter 1897«492-
4 one hundred and ten, and shall, before it is filed, be submitted to
5 the commissioner of corporations, who shall examine it, and if it
6 appears to be in compliance with the requirements of said sections
7 twelve or thirteen, he shall indorse his approval thereon.
1 Section 15. A foreign corporation which is subject to the pro- Penalty for not
2 visions of section twelve which omits to file the certificate required catef ceri
3 by section thirteen shall forfeit not less than five nor more than ten ilii* iti) |§ai, 3.
4 dollars for each day for fifteen days after the first day of April, and
5 not less than ten nor more than two hundred dollars for each day
6 thereafter, during which such omission continues. Such forfeiture
7 may be recovered by a proceeding in equity brought in the supreme
8 judicial court in the name of the attorney general at the instance
9 of the commissioner of corporations. Upon such proceeding the
10 court may issue an injunction restraining the further prosecution
11 of the business of the corporation named therein until the amounts
12 so forfeited are paid, with interest and costs, and until the returns
13 required by section thirteen are made, or it may issue an injunction
14 restraining such corporation from the further prosecution of its
15 business within this commonwealth during the pendency of such
16 information.
1 Section 16. The commissioner of corporations upon the failure Notice to de-
2 of any such, corporation to file the certificate required by section corporation.
3 thirteen shall forthwith notify such corporation, and the notice shall 1894>541> §4-
4 contain a copy of this and the preceding four sections.
1 Section 17. The officers and members or stockholders of foreign Liability of
2 corporations which have a usual place of business in this common- stockholders.
3 wealth, except such as had such place of business on the twelfth 1896' 391> § L
4 day of May in the year eighteen hundred and ninety-six, shall be
5 jointly and severally liable for its debts and contracts on the same
6 conditions and in the same manner as is provided for domestic
1220 FOKEIGN CORPOKATIONS. [CHAP. 126.
corporations by sections fifty-eight to sixty-eight, inclusive, of 7
chapter one hundred and ten, except clause four of said section 8
fifty-eight. 9
Jffi^r^and Section 18. If the capital stock of a foreign corporation which 1
stockholders is subject to the provisions of the preceding section has been paid 2
valuation of in by a conveyance to the corporation of property, real or per- 3
ascapuai.a en sonal, at an unfair valuation, the officers, members or stockholders 4
189?; 423'. § 2* who participate in such conveyance or in the taking of such prop- 5
erty at such unfair valuation, or who have purchased or received 6
shares with knowledge of said fact, shall be jointly and severally 7
liable for its debts or contracts. 8
oAiabiiuynt Section 19. The extent, conditions and manner of enforcing 1
1896. 391, §§ i, 2. the liability imposed by the preceding two sections shall be the 2
same as is provided in the case of domestic corporations by sections 3
fifty-eight to sixty-eight, inclusive, of chapter one hundred and ten, 4
except clause four of said section fifty-eight. No officer, member 5
or stockholder shall be liable under the provisions of the preceding 6
two sections for any bonded or mortgage debt of corporations. 7
f8||8-106 §§3 5 Section 20. Foreign corporations shall pay to the officers here- 1
mi' Hi' ! I'' mafter designated the following fees : — 2
i895| 157! For filing a copy of its charter as required by section six, ten 3
dollars to the treasurer and receiver general. 4
For filing the statement required by section six, five dollars to 5
the treasurer and receiver general. 6
For filing the certificate or copy of vote required by section 7
twelve, one dollar to the secretary of the commonwealth. 8
For filing the certificate of condition required by section thirteen, 9
five dollars to the secretary of the commonwealth. 10
1900, 280.
PART II.
OF KEAL AND PERSONAL PROPERTY AND THE
DOMESTIC RELATIONS.
TITLE I.
OF THE TITLE TO REAL PROPERTY.
Chapter 127. — Of the Alienation of Land.
Chapter 128. — Of the Registration and Confirmation of Titles to Land.
Chapter 129. — Of Estates for Years and at Will.
Chapter 130. — Of Easements.
Chapter 131. — Of Homesteads.
Chapter 132. — Of the Rights of a Husband in the Real Property of his De-
ceased Wife, and the Rights of a Wife in that of her
Deceased Husband.
Chapter 133. — Of the Descent of Real Property.
Chapter 134. — General Provisions relative to Real Property.
CHAPTEE 127.
OF THE ALIENATION OF LAND.
Sections 1-6 . — Conveyance by Deed.
Sections 7-23. — Acknowledgment and Recording of Deeds.
Sections 24-27. — Barring of Estates Tail.
Sections 28-32. — Conveyance of Estates subject to Remainders, etc.
Section 33. — Instruments of Defeasance.
Sections 34, 35. — Discharge of Mortgages.
CONVEYANCE BY DEED.
1 Section 1. A deed which is executed and delivered by the per- conveyance of
2 son, or by the attorney of the person, who has authority therefor imi, 2{§i? '
3 shall, subject to the limitations of section four, be sufficient, with- R8|.359,§§4i.
4 out any other act or ceremony, to convey land. u Pick. 224. p.* I.' 126, Vi.
12 Met. 157. 13 Met. 79. 16 Gray, 309. 137 Mass. 584.
[ 1221 ]
1222
ALIENATION OF LAND.
[Chap. 127.
: era
claim deed.
R. S. 59, § 5.
G. 8. 89, § 8.
P. S. 120, § 2.
Section 2. A deed of quit-claim and release shall be sufficient
to convey all the estate which could lawfully be conveyed by a
deed of bargain and sale.
8 Pick. 143.
15 Pick. 82.
131 Mass. 200.
168 Mass. 203.
1
2
3
Estate created
without writ-
ing to have
effect of estate
at will.
C. L. 32, § 1.
1692-3, 15, § 1.
1783, 37, § 1.
R. S. 59, § 29.
Section 3. An estate or interest in land which is created with-
out an instrument in
writing
signed by the
grantor
or
by his
attorney shall have the force and effect of an estate at will only,
and no estate or interest in land shall be assigned, granted or sur-
rendered unless by such writing or by operation of law.
G. S.
P. S.
89, § 2.
120, § 3.
1 Pick. 43.
9 Met. 462.
11 Met. 251.
1 Gray, 571.
4 Allen, 80.
117 Mass. 351.
150 Mass. 19.
171 Mass. 336.
1
2
3
4
5
Effect of un-
recorded
deeds.
C. L. 32, § 4.
1697, 21, § 2.
1783, 37, § 4.
R. S. 59, §§ 1, 28.
G. S. 89, Ǥ 1, 3.
P. S. 120, § 4.
15 Mass. 439.
13 Pick. 460.
22 Pick. 295.
Section 4. A conveyance of an estate in fee simple, fee tail or 1
for life, or a lease for more than seven years from the making there- 2
of, shall not be valid as against any person, except the grantor or 3
lessor, his heirs and devisees and persons having actual notice of it, 4
unless it, or an office copy as provided in section fifteen of chapter 5
twenty-two, is recorded in the registry of deeds for the county or 6
district in which the land to which it relates is situated. 7
23 Pick. 80.
24 Pick. 221.
1 Met. 212.
2 Met. 619.
12 Met. 17, 157.
6 Cush. 163.
9 Gray, 306.
2 Allen, 115.
3 Allen, 487.
7 Allen, 16.
8 Allen, 584.
9 Allen, 80.
12 Allen, 472.
99 Mass. 248.
101 Mass. 444.
103 Mass. 491.
113 Mass. 72.
129 Mass. 210.
130 Mass. 85.
131 Mass. 510.
132 Mass. 320.
140 Mass. 112.
146 Mass. 610.
149 Mass. 310.
162 Mass. 108, 473.
167 Mass. 443.
168 Mass. 118.
Record to be
evidence of
delivery.
1892, 256.
161 Mass. 381.
Section 5. The record of a deed, lease, power of attorney or 1
other instrument, duly acknowledged or proved as hereinafter pro- 2
vided and purporting to affect the title to land, shall be conclusive 3
evidence of the delivery of such instrument, in favor of purchasers 4
for value without notice who claim thereunder. 5
Effect of con-
veyance by
disseisee.
1891, 354.
101 Mass. 179.
172 Mass. 395.
175 Mass. 355.
Section 6. A conveyance of land, if otherwise valid, shall, 1
notwithstanding disseisin or adverse possession, be as effectual to 2
transfer the title as if the grantor were actually seised and possessed 3
of such land, and shall vest in the grantee the rights of entry and 4
of action for recovery of the estate incident to such title. 5
Acknowledg-
ment of deed
before record.
C. L. 32, § 4.
1697, 21, § 1.
1783, 37, § 4.
R. S. 59, § 22.
G. S. 89, § 28.
1869, 167.
P. S. 120, § 5.
4 Mass. 541.
ACKNOWLEDGMENT AND RECORDING OF DEEDS.
Section 7. No deed shall be recorded unless a certificate of its 1
acknowledgment or of the proof of its due execution, made as here- 2
inafter provided, is indorsed upon or annexed to it, and such 3
certificate shall be recorded at length with the deed to which it re- 4
lates ; but the provisions of this section shall not apply to convey- 5
ances from the United States. 6
10 Pick. 72. 22 Pick. 85. 23 Pick. 80. 2 Cush. 494. 174 Mass. 292.
Acknowledg-
ment, how
made.
1783, 37, § 4.
1829, 125, § 1.
R. S. 59, §§ 12,
13, 22.
1856, 253, § 1.
G. S. 89, §§ 18,
19, 28.
1867, 250, § 1.
1875, 142.
P. S. 120, § 6.
Section 8. The acknowledgment of a deed shall be by the 1
grantors or one of them, or by the attorney who executes the deed, 2
and, if made in this commonwealth, shall be made before a justice 3
of the peace or notary public ; if made elsewhere in the United 4
States, before a justice of the peace, notary public, magistrate or 5
commissioner appointed for the purpose by the governor of this 6
commonwealth ; and, if in a foreign country, before such a justice, 7
Chap. 127.] alienation of land. 1223
8 notary, magistrate or commissioner, or before an ambassador, min- 6 Pick. 86.
9 ister or consul of the United States or a consular officer of the i?cush.u7.
10 United States accredited to such country. The officer before uah^ 109.
11 whom an acknowledgment is made shall indorse upon or annex to 165 Mass- 359-
12 the deed a certificate of such acknowledgment.
1 Section 9. The acknowledgment by a married woman may be Acknowiedg-
2 taken in the same form as if she were sole, and without any exami- nmrrieci
3 nation separate and apart from her husband. i89™253, §2.
1 Section 10. If a grantor dies or removes from this common- Proof of execu-
2 wealth without having acknowledged his deed, the due execution is°dead oTnon*
3 thereof may be proved before any court of record in this common- i||7f !?*§ 2.
4 wealth by the testimony of a subscribing witness thereto. e8!' 59 §u
G. S. 89, § 20 P. S. 120, § 7. 1 Mass. 58. 174 Mass. 292.
1 Section 11. If all the subscribing witnesses to the deed are also -if the wit-
2 dead or out of this commonwealth, the due execution thereof may be deadeornon-
3 proved before such court by proving the handwriting of the grantor if|7f §nt"
4 and of a subscribing witness . g. s. 89, § 21. p. s. 120, § 8. 8 Met. 355. R- s- 59, $ 15-
1 Section 12. If a grantor refuses to acknowledge his deed, the —if the
2 grantee or any person who claims under him may apply to a court fuses to ac-
3 of record in the county in which the land lies, or in which the cnLW32?§e4.
4 grantor or a subscribing witness to the deed resides, and such court \^ f^ 1 f
5 shall thereupon issue a summons to the grantor to appear at a certain f7- s- 59> §§ 16»
6 time and place to hear the testimony of the subscribing witnesses, g. s. 89, §§22,
7 Such summons, with a copy of the deed annexed, shall be served p.'s. 120, §9.
8 seven days at least before the time therein assigned for proving the
9 deed, and at such hearing the due execution of the deed may be
10 proved by the testimony of one or more of the subscribing wit-
11 nesses.
1 Section 13. If a grantor refuses to acknowledge his deed and ^sse^are1*"
2 the subscribing witnesses to such deed are all dead or out of this r|s^e0ntnon"
3 commonwealth, the execution thereof may be proved before any g- 1- g>, § is.
4 court of record in this commonwealth by proving the handwriting p.' s.' 126, § 16.
5 of the grantor and of a subscribing witness, the court first summon-
6 ing the grantor for the purpose and in the manner provided in the
7 preceding section.
1 Section 14. A person who is interested in a deed which has not noFacknowK
2 been acknowledged may, before or during proceedings before a edged may be
r. ,>&,»i • . „.° ,r . ° . filed in registry
3 court for proof of the execution thereof, file in the proper registry of deeds.
4 of deeds a copy of such deed, compared with the original by the i697,-2i,'§ 3/
5 register ; and the filing of such copy shall, for thirty days thereafter, r8|. 59,§§§ 19,
6 have the same effect as the recording of the deed, if the deed is g.' s. 89, §§ 25,
7 within that time duly proved and recorded ; or if, at the expiration p6; s< 120i § 11.
8 of said thirty days, such proceedings are pending, the effect of filing
9 such copy shall continue until the expiration of seven days after the
10 termination of such proceedings.
1 Section 15. The execution of a deed shall not be proved in the Deed without
2 manner before provided unless it has at least one subscribing wit- be proved?
3 neSS. G. S.89,§27. P. S. 120, §12. B. S.59,§21.
1224
ALIENATION OF LAND.
[Chap. 127.
Indorsement
of certificate.
1783, 37, § 5.
K. S. 59, §§ 17,
22.
G. S. 89, §§ 23,
28.
P. S. 120, § 13.
Section 16. A certificate of the proof of the execution of a
deed shall be indorsed upon or annexed to the deed by the clerk or
register of the court or by the judge before whom such proof is
made, and the certificate shall state whether the grantor was present
at the hearing.
1
2
3
4
5
Powers of
attorney to
convey real
estate.
1849, 205.
Section 17. The provisions of law relative to the acknowledg- 1
ment and recording of deeds shall apply to letters of attorney for 2
the conveyance of real estate. 3
G. S. 89, § 29.
1S79, 86.
P. S. 120, § 14.
22 Pick. 85.
Forms of ac-
knowledg-
ment.
1894, 253, § 1.
Proof or
acknowledg-
ment of deed,
etc., in other
states or terri-
tories.
1894, 253, § 3.
Certificate of
officer to be
attached to
Section 18. The following forms of acknowledgment of convey- 1
ances or of other written instruments may be used : (Caption speci- 2
fying the state and place where the acknowledgment is taken.) 3
1. Acknowledgment of a natural person acting in his own right: 4
On this dajr of 19 , before me personally appeared 5
A B (or A B and C D), to me known to be the person (or persons) 6
described in and who executed the foregoing instrument, and ac- 7
knowledged that he (or they) executed the same as his (or their) 8
free act and deed. 2. Acknowledgment of a natural person act- 9
ing by attorney : On this day of 19 , before me per- 10
sonally appeared A B, to me known to be the person who executed 11
the foregoing instrument in behalf of C T>, and acknowledged that 12
he executed the same as the free act and deed of said C D. 3. 13
Acknowledgment of a corporation or joint stock association : On 14
this day of 19 , before me appeared A B, to me per- 15
sonally known, who, being by me duly sworn (or affirmed), did say 16
that he is the president (or other officer or agent of the corporation 17
or association) of (describing the corporation or association) and 18
that the seal affixed to said instrument is the corporate seal of said 19
corporation (or association), and that said instrument was signed 20
and sealed in behalf of said corporation (or association) by author- 21
ity of its board of directors (or trustees), and said A B acknowl- 22
edged said instrument to be the free act and deed of said corporation 23
(or association). If the corporation or association has no corpo- 24
rate seal, the words "the seal affixed to said instrument is the 25
corporate seal of said corporation (or association), and that" shall 26
be omitted, and at the end of the affidavit shall be added the words 27
" and that said corporation (or association) has no corporate seal". 28
(Signature and title of the officer taking the acknowledgment.) 29
Section 19. The proof or acknowledgment of a deed or other 1
written instrument which is required to be proved or acknowledged 2
in order to be entitled to be recorded or to be admitted in evidence, 3
if made in another state may be made before any officer of such 4
state who is authorized by the laws thereof to take the proof and 5
acknowledgment of deeds, and, if taken and certified as herein pro- 6
vided, shall be entitled to be recorded in this commonwealth and 7
may be admitted in evidence in the same manner and with like effect 8
as proofs and acknowledgments which are taken before any of the 9
officers named in section eight. 10
Section 20. In order to entitle any conveyance or written in- 1
strument which has been acknowledged or proved under the provi- 2
Chap. 127.] alienation of land. 1225
3 sions of the preceding section to be admitted in evidence or recorded conveyance,
4 in this commonwealth, there shall be subjoined or attached to the 1894, 253, §4-
5 certificate of proof or acknowledgment, signed by such officer, a cer-
6 tificate of the secretary of state of the state in which such officer
7 resides, under the seal of such state, or a certificate of the clerk of
8 a court of record of such state in the county in which said officer
9 resides or in which he took such proof or acknowledgment, under
10 the seal of the court, stating that such officer was, at the time of
11 taking such proof or acknowledgment, duly authorized thereto in
12 said state, and that said secretary of state or clerk of court is
13 well acquainted with his handwriting and verily believes that the
14 signature affixed to such certificate of proof or acknowledgment is
15 genuine.
1 Section 21. The following form of authentication of the proof Form of au-
2 or acknowledgment of a deed or other written instrument, if taken o/deeds 10n
3 in any other state, or any form substantially in compliance with the fn other1 states.
4 provisions of the three preceding sections, may be used : (Caption 1894' 253' § 5-
5 specifying the state, county or place where the authentication is
6 made.) I, , clerk of the in and for said county, which
7 court is a court of record having a seal, (or, I, , the secretary
8 of state of such state or territory) do hereby certify that , by
9 and before whom the foregoing acknowledgment (or proof ) was
10 taken, was, at the time of taking the same, a notary public (or other
11 officer) residing (or authorized to act) in said county, and was duly
12 authorized by the laws of said state (territory or district), to take
13 and certify acknowledgments or proofs of deeds of land in said
14 state (territory or district) , and further that I am well acquainted
15 with the handwriting of said , and that I verily believe that
16 the signature to said certificate of acknowledgment (or proof) is
17 genuine. In testimony whereof, I have hereunto set my hand and
18 affixed the seal of the said court (or state) this day of ,
19 19 .
1 Section 22. The proof or acknowledgment of a deed or other Acknowiedg.
2 instrument which is required to be proved or acknowledged in order without the
3 to be entitled to be recorded or to be admitted in evidence, if made isglSfe68'
4 without the United States, may be made before any officer named
5 in section eight or before any ambassador, minister, consul, vice-
6 consul, charge d'affaires or consular agent of the United States, resi-
7 dent in any foreign country or port, and when certified by him under
8 his seal of office it may be recorded in this commonwealth and
9 admitted in evidence in any court in this commonwealth in the
10 same manner and with like effect as if duly proved or acknowledged
11 within this commonwealth.
1 Section 23. The provisions of the five preceding sections shall *^y*£™"
2 not prevent the acknowledgment of conveyances or other written ^%60
3 instruments in any form and manner heretofore lawfully used, nor
4 the recording thereof if so acknowledged, nor require formalities
5 other than those heretofore required.
1226
ALIENATION OF LAND.
[Chap. 127,
Tenant in tail
may convey in
fee simple.
1791, 60, § 1.
E. S. 59, § 3.
G. S. 89, § 4.
BARRING OF ESTATES TAIL.
Section 24. A person seised of land as tenant in tail may 1
convey such land in fee simple by a deed in common form, as if he 2
were seised thereof in fee simple ; and such conveyance shall bar the 3
estate tail and all remainders and reversions expectant thereon. 4
P. S. 120, § 15.
9 Mass. 161.
15 Pick. 104.
3 Gray, 162.
5 Gray, 523.
4 Allen, 477.
99 Mass. 364.
102 Mass. 262.
138 Mass. 376.
147 Mass. 17.
158 Mass. 74.
159 Mass. 4.
Life tenant
and remainder
man in tail
may convey in
fee simple.
1804, 59.
R. S. 59, § 4.
G. S. 89, § 5.
P. S. 120, § 16.
Barring of
equitable
estates tail.
1851, 14, § 1.
G. S. 89, § 6.
P. S. 120, § 17.
Section 25. If land is held by one person for life with a vested 1
remainder in tail in another, the tenant for life and the remainder 2
man may convey such land in fee simple by their deed or deeds in 3
common form, as if the remainder had been limited in fee simple ; 4
and such deed or deeds shall bar the estate tail and all remainders 5
and reversions expectant thereon. 6
Section 26. Equitable estates tail, in possession or remainder, 1
and all remainders and reversions expectant thereon, may be barred 2
in the same manner as legal estates tail and the remainders and re- 3
versions expectant thereon. 4
be reqeuiredyto Section 27. The person to whom an equitable fee simple is con- 1
estate7 legal veye(i pursuant to the preceding section shall, upon request therefor, 2
i85i, 14, §2. be entitled to a conveyance of the outstanding legal estate from the 3
p.' s.' 120, § is. person in whom such legal estate is then or thereafter vested in trust. 4
Sale of land
subject to con-
tingent re-
mainder, etc.
1868, 287, §§ 1, 2.
1869, 331.
1871, 322, §§ 1-3.
1873, 280, § 2.
P. S. 120, § 19.
122 Mass. 243.
123 Mass. 280.
133 Mass. 308.
CONVEYANCE OF ESTATES SUBJECT TO REMAINDERS, ETC.
Section 28. If land is subject to a contingent remainder, ex- 1
ecutory devise or power of appointment, the probate court for the 2
county in which such land is situated may, upon the petition of any 3
person who has an estate in possession of such land, and after 4
notice and other proceedings as hereinafter required, appoint one 5
or more trustees and authorize him or them to sell and convey 6
such land or any part thereof in fee simple, if such sale and con- 7
veyance appears to the court to be necessary or expedient, or to 8
mortgage the same, either with or without a power of sale, for such 9
an amount, on such terms and for such purposes as may seem to the 10
court judicious or expedient ; and such conveyance or mortgage 11
shall be valid and binding upon all parties. 12
Section 29. If land is subject to a vested remainder or rever- 1
sion, the probate court for the county in which such land is situated 2
may, upon the petition of any person who has either an estate in 3
possession or the remainder or reversion in such land, and after 4
notice and other proceedings as hereinafter required, appoint one 5
or more trustees and authorize him or them to sell and convey such 6
land, or any part thereof, in fee simple, if such sale and conveyance 7
appear to the court to be necessary or expedient ; and such convey- 8
ance shall be valid and binding upon all persons. 9
fuchp^titiln011 Section 30. Notice of a petition under the provisions of the two 1
1I71' III' I i' Preceding sections shall be given, in such manner as the court may 2
P- s. i2o, § 20. order, to all persons who are or who may become interested in 3
i6i Mass. 3i5. the land to which the petition relates, and to all persons whose 4
— of estates
subject to
vested re-
mainder.
1895, 183, § 1.
1897, 136.
Chap. 127.] alienation of land. 1227
5 issue, not in being, may become interested therein ; and the court
6 shall of its own motion in every case appoint a suitable person
7 to appear and act therein as the next friend of all minors, persons
8 not ascertained, and persons not in being, who are or may become
9 interested in such land ; and the provisions of sections twenty-three
10 and twenty -four of chapter one hundred and forty-five, which are
11 not inconsistent herewith, shall apply in the case of such appoint-
12 ment.
1 Section 31. A trustee who is appointed under the provisions Bond, duties,
2 of section twenty-eight or twenty-nine shall give bond in such form ma"^"^!1668
3 and for such amount as the court appointing him may order, and mortgage.
4 he shall receive and hold, invest or apply the proceeds of any sale if^' H^' IV' 3'
5 or mortgage made by him for the benefit of the persons who would ^- s*. 120', § 21.
6 have been entitled to the land if such sale or mortgage had not been
7 made, and the probate court of any county in which any part of
8 such land is situated shall have jurisdiction of all matters thereafter
9 arising; relative to such trust.
'to
etc.
1 Section 32. If land is charged with the payment of money, saieofiand
2 either in fixed amounts or in annuities for a life or lives or for years, chargeVfor
3 the supreme judicial court shall have jurisdiction in equity in the annuitie^et
4 county in which any part of such land is situated, upon the petition ^7| ^ f^%
5 of the persons holding title thereto subject to the charge of such
6 payment, and after notice and a hearing, to authorize them to sell
7 and to convey by private sale or public auction the whole or any
8 portion of such land in fee simple and free from such charges,
9 whether present or future, certain or contingent, and the court shall
10 in such case provide by its decree for the payment of the amounts
11 charged upon such land by placing the whole or any portion of the
12 proceeds of the sale thereof in the hands of a trustee to be appointed
13 by it, by the purchase of annuities for the persons entitled to
14 receive the amounts so charged, or by any other means which shall
15 be considered just and reasonable. Such trustees shall give bond
16 in such sum as the court may order, shall, under the direction of
17 the court, manage and account for the trust fund and shall distrib-
18 ute the income thereof according to its decree.
instruments of defeasance.
1 Section 33. If a deed purports to contain an absolute con- Effect of un-
2 veyance of land, but is made defeasible by a deed, bond or other Instruments
3 instrument, the original deed shall not be thereby affected, as ?8f02,e33.asaiice'
4 against any person other than the maker of the instrument of defeas- g; |; g|; | ^;
5 ance and his heirs and devisees and persons having actual notice of IVfck^bo.23'
6 it, unless such instrument is recorded in the registry of deeds for 7 Pjct we!
7 the countv or district in which the land to which it relates is 6 cush'. 170!
„ ., , , J 5 Gray, 505.
8 Situated. 145 Mass. 3S9.
DISCHARGE OF MORTGAGES.
1 Section 34. A mortgage may be discharged by an entry ac- Mortgages,
2 knowledging the satisfaction thereof, made on the margin of the record charged.
3 of the mortgage in the registry of deeds and signed by the mort- $g; 3}; j \\
1228
REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
R. S. 59, § 33.
G. S. 89, § 30.
1870, 171.
P. 8. 120,
26.
8 Allen, 165.
134 Mass. 580.
gagee, or by his executor, administrator or assignee, and such entry 4
shall have the same effect as a deed of release duly acknowledged 5
241 and recorded. One of two or more joint holders of a mortgage 6
may so discharge it, or he may discharge it by a deed of release 7
duly acknowledged and recorded. 8
liable for
refusing to
discharge.
1697, 21, § 4.
1783, 37, § 6.
R. S. 59, § 34.
G. S. 89, § 31.
P. S. 120, § 25.
Section 35. If a mortgagee, or his executor, administrator or 1
assignee, after full performance of the condition of his mortgage, 2
whether before or after breach of such condition, refuses or neglects 3
for seven days after request therefor and after a tender of his rea- 4
sonable charges, to make such discharge or to execute and acknowl- 5
edge a deed of release of the mortgage, he shall be liable in an action 6
of tort for all damages caused by such neglect or refusal. 7
CHAPTEE 128.
of the registration and confirmation of titles to land.
Sections
1-17
Sections
18-48
Sections
49-55
Sections
56-58
Sections
59-62
Section
63
Sections
64-68
Section
69
Sections
70-78
Sections
79-86
Sections
87,88
Sections
89,90
Sections
91,92
Sections
93-102,
Section
103
Section
104
Section
105,
Section
106
Section
107.
Section
108
Section
109
Section
110,
-Court of Land Registration.
- Original Registration.
- Voluntary Dealing with Land after Original
Registration.
-Conveyance in Fee.
-Mortgages.
-Leases.
-Trusts.
-Legal Incidents of Registered Land.
-Attachments and Other Liens.
-Pending Suits, Judgments, Decrees and Par-
titions.
- Insolvency.
-Eminent Domain.
-Transfer by Descent and Devise.
-Assurance Fund.
-Powers of Attorney,
-Lost Duplicate Certificates.
-Adverse Claims.
-Surrender of Duplicate Certificates.
•Amendment and Alteration of Certificates of
Title.
- Service of Notices after Registration.
-Fees for Registration.
- Penalty.
Court of land
registration.
1898, 562, § 2.
1899, 131, § 1.
1900, 354, § 1.
175 Mass. 71.
179 U. S. 405.
COURT OF LAND REGISTRATION.
Section 1. The court of land registration shall be a court of 1
record and shall have exclusive original jurisdiction of all applica- 2
tions for the registration of title to land within the commonwealth, 3
with power to hear and determine all questions arising upon such 4
applications, and of such other questions as may come before it 5
under the provisions of this chapter, subject to the right of appeal, 6
Chap. 128.] registration, etc., of titles to land. 1229
7 as hereinafter provided. The proceedings upon such applications
8 shall be proceedings in rem against the land, and the decrees shall
9 operate directly on the land and vest and establish title thereto.
10 The court shall hold its sittings in Boston, but may adjourn from
11 time to time to such other places as the public convenience may
12 require. In the county of Suffolk, the board of aldermen of the
13 city of Boston, and in other counties, the county commissioners,
14 shall provide suitable rooms for the sittings of said court in the
15 same building with, or convenient to, the probate court or the
16 registry of deeds, and shall provide all necessary books and such
17 printed blanks and stationery for use in registration proceedings as
18 the court may order.
19 The court shall have jurisdiction throughout the commonwealth,
20 shall always be open, except on Sundays and legal holidays, and
21 shall have a seal with which all orders, processes and papers made
22 by or proceeding from the court and requiring a seal shall be
23 sealed. Notices, orders and processes of said court may run into
24 any county and be returnable as the court directs.
25 The court shall from time to time make general rules and forms
26 for procedure, conforming as nearly as may be to the practice in
27 the probate courts. Such rules and forms, before taking effect,
28 shall be approved by the supreme judicial court or by a justice
29 thereof.
1 Section 2. There shall be two judges of the court, one of whom court of land
2 shall be appointed, commissioned and qualified as judge of land JulgetJotfOB'
3 registration and the other as associate judge of land registration. art 9- 'c." I,' art!
1898, 562, § 3. 1900, 354, § 1. X-
1 Section 3. The court may be held by one judge and simul- ^^^ti.
2 taneous sessions may be held, either in the same county or in
3 different counties, and shall be so arranged as to insure a prompt
4 discharge of the business of the court.
1 Section 4. Processes issuing from the court shall bear teste of ^f^g 5.
2 the judge of land registration, shall be under the seal of the court
3 and be signed by the recorder.
1 Section 5. In case of a vacancy in the office of judge of land ^d|eotatoeact,
2 registration, or of his interest, absence or inability to perform his ^geD562'§ 6
3 duties, the associate judge shall perform them.
1 Section 6. The governor, with the advice and consent of the —recorder of.
2 council, shall appoint a recorder, who shall be clerk of the court ' '
3 and who shall hold his office for the term of five years. He shall
4 attend the sessions of the court and keep a docket of all causes,
5 and shall affix the seal of the court to all processes or papers which
6 require a seal.
1 Section 7. The recorder shall be under the direction of the -duties and
2 court, shall have the custody and control of all papers and docu- FetS^of.
3 ments filed with him under the provisions of this chapter and shall 1898, 56-2' § 8-
1230
REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
carefully number and index them. Said papers and documents shall 4
be kept in Boston in the land registration office, which shall be near 5
the court of land registration. The recorder may, with the sanction 6
of the court, employ such assistants and messengers as may be 7
necessary. 8
s^an^county0.* Section 8. The recorder may act in any county, and after land 1
1898, 562, § 9. nas been registered, he may make all memoranda affecting the title 2
and enter and issue certificates of title as herein provided. 3
Kegister of'
deeds, duties
of.
1898, 562, § 10.
Section 9. The register of deeds in each district in which land 1
has been registered shall have the same authority as the recorder to 2
make all memoranda affecting the title of such land, and to enter 3
and issue new certificates of title as herein provided, and to affix 4
the seal of the court to such certificates and duplicate certificates of 5
title ; but in executing the provisions of this chapter, registers 6
of deeds shall be subject to the general direction of the recorder, 7
in order to secure uniformity throughout the commonwealth ; and, in 8
the performance of their duties under the provisions of this chapter, 9
the official designation of registers of deeds shall be assistant 10
recorders for their respective registry districts. In case of the 11
death or disability of the recorder, the assistant recorder for the 12
Suffolk district shall perform the duties of the recorder. 13
Oath and bond
of recorder.
1898, 562, § 11.
Section 10. The recorder and all assistant recorders shall be 1
sworn before the judge of land registration, and a record thereof 2
shall be made. They shall give bond in a sum to be fixed by the 3
court, for the faithful performance of their official duties, before 4
entering upon the same. They may administer oaths to persons 5
who appear before them in matters pertaining to the registration of 6
land, if an oath is required. They shall keep accurate accounts 7
of all money received as fees or otherwise, which shall be subject 8
to examination by the controller of county accounts, in the same 9
manner as accounts of registers of deeds, and they shall, except as 10
provided in section twelve, pay over such money quarterly to the 11
treasurer and receiver general. In case of the absence of an assist- 12
ant recorder, the assistant register for the district, or if there is 13
no assistant register, the person acting as clerk in the office of the 14
register of deeds, shall perform the duties of the assistant recorder, 15
and the assistant recorder shall be responsible for him.
16
title miners °f Section 11. The judge of land registration may appoint one or 1
1898, 562, § 12. more examiners of title in each county, who shall be attorneys at 2
law and who shall be subject to removal by the supreme judicial 3
court. 4
Salaries and
expenses of
judge, etc.
1898, 562, § 13.
1900, 354, § 2.
Section 12. The salary of the judge of land registration shall 1
be forty-five hundred dollars a year and the salary of the associate 2
judge of land registration shall be four thousand dollars a year. 3
The salaries of the recorder, assistant recorders, examiners of titles 4
and all assistants and messengers shall be fixed by the governor and 5
council. All salaries and expenses of the court shall be paid by the 6
Chap. 128.] registration, etc., of titles to land. 1231
7 commonwealth, except the salaries of the assistant recorders and
8 the expenses incurred by them under the provisions of this chapter,
9 which shall be paid by the respective counties. All fees collected
10 by the assistant recorders, except those received upon the filing of
11 applications, which shall be transmitted with the applications to the
12 recorder, shall be paid to their respective counties.
1 Section 13. Every order, decision and decree of the court shall i^rtor^ourt
2 be subject to appeal to the superior court for the county in which i^. 562, § u.
3 the land lies, to which such order, decision or decree relates. The 175 Mass. 68.
4 appeal shall be claimed and entered within thirty days after the date
5 of such order, decision or decree, and upon the entry of the appeal
6 the appellant shall file in the superior court copies of all material
7 papers in the case, certified by the recorder. Appearances and
8 answers shall be filed in the superior court within thirty days after
9 the appeal has been entered, unless for good cause further time is
10 allowed. Upon the motion of either party, the cause shall be ad-
11 vanced for speedy hearing, and shall be tried by the court, unless
12 either party within the time allowed for entering appearance claims a
13 trial by jury. In such case, issues for the jury shall be framed.
14 Questions of law arising in the superior court may be taken to the
15 supreme judicial court for revision by any party aggrieved b}^ any
16 opinion, ruling, direction or judgment of the court, in the same
17 manner as in proceedings at law in said court.
18 Questions of law arising in the court of land registration on any
19 decision or decree may be taken by any party direct to the supreme
20 judicial court for revision, in the same manner as questions of law
21 are taken to that court from the superior court. The court of land
22 registration, after any decision or decree dependent upon a question
23 of law, may report such decision or decree, with so much of the
24 case as is necessary for understanding such questions of law, for
25 the determination of the supreme judicial court.
1 Section 14. The clerk of the supreme judicial court or of the certification of
2 superior court shall, upon the determination of proceedings pend- peiiate court.
3 ing therein, certify to the court of land registration the final deci- is99| 131', § 3. '
4 sion, and the court of land registration shall enter the final decree
5 in the cause, in accordance with the certificate.
1 Section 15. If the appellant does not duly prosecute his appeal J*£££g
2 within the time limited, the original order, decision or decree shall g3£»B,516#
3 stand as if no appeal had been taken.
1 Section 16. The court of land registration may enforce its Enforcement
2 orders or decrees in all matters over which it has jurisdiction in ms^m^'n.
3 the same manner as decrees are enforced in equity and, upon the
4 request of the judge of land registration, the sheriff of any county
5 shall assign a deputy to attend the sittings of the court in that
6 county.
1 Section 17. Costs shall be taxed and the collection enforced as costs.
2 in the superior court sitting in equity, unless a different provision 1898' 562' § 18,
3 is made.
1232
REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
Application
for registra-
tion.
1898, 562, § 19.
1900, 354, § 3.
Record of
memorandum
of application.
1898, 562, § 20.
1899, 131, § 4.
ORIGINAL REGISTRATION.
Section 18. Application for registration of title may be made 1
by the following persons : — 2
First, The person or persons who claim, singly or collectively, 3
to own the legal estate in fee simple. 4
Second, The person or persons who claim, singly or collectively, 5
to have the power of appointing or disposing of the legal estate in 6
fee simple. 7
Third, Infants and other persons under disability, by their legally 8
appointed guardians ; but the person in whose behalf the application 9
is made shall be named as applicant. 10
Fourth, Corporations, by any officer duly authorized by a vote 11
of the directors. 12
One or more tenants for a term of years, which is regarded as a 13
fee simple in section one of chapter one hundred and twenty-nine, 14
shall not make application except jointly with those who claim the 15
reversionary interest which makes up the fee simple at common 16
law; nor shall a mortgagor, except as hereinafter provided, make 17
application without the consent in writing of the mortgagee ; nor 18
shall a married woman make application without the consent in writ- 19
ing of her husband, unless she holds the land as her separate prop- 20
erty or has a power to appoint the land in fee simple, or is living 21
apart from her husband for a justifiable cause which has been estab- 22
lished by a decree of court ; nor shall one or more tenants who 23
claim undivided shares less than a fee simple in the whole land de- 24
scribed in the application make application for registration. If the 25
holder of a mortgage does not consent to the making of the applica- 2(5
tion, it may be entered nevertheless, and the title registered, sub- 27
ject to the mortgage, which may be dealt with or foreclosed as if 28
the land subject to it had not been registered. The decree of regis- 29
tration in such case shall describe the mortgage, and shall state that 30
it has not been registered and that registration is made subject to 31
it, and shall provide that no subsequent certificate shall be issued 32
and no further papers registered relative to such land after a fore- 33
closure of such mortgage. 34
Section 19. The application may be filed with the recorder, or 1
with the assistant recorder at the registry of deeds for the district 2
in which the land, or any portion thereof, lies. Upon filing his 3
application, the applicant shall forthwith cause to be filed in the reg- 4
istry of deeds for the said district or districts a memorandum stat- 5
ing that application for registration has been filed, the date and 6
place of filing and a copy of the description of the land contained in 7
the application. Such memorandum shall be recorded and indexed 8
by the register with the records of deeds. Each assistant recorder 9
shall also keep an index of all applications in his district, and in 10
every case in which the application is filed with him shall transmit 11
the application, the papers and plans filed therewith and such mem- 12
orandum, when recorded, to the recorder. 13
tenrt?ofappu" Section 20. The application shall be in writing, signed and
^ion. sworn to by the applicant or by a person duly authorized in his
behalf. If there is more than one applicant, the application shall 3
1
2
Chap. 128.] registration, etc., of titles to land. 1233
4 be signed and sworn to by or in behalf of each. It shall contain a
5 description of the land, and shall state whether the applicant is mar-
6 ried ; and if married, the name of the wife or husband ; and if un-
7 married, whether he or she has been married, and if so, when and
8 how the marriage relation terminated ; and if by divorce, when,
9 where and by what court the divorce was granted. It shall also
10 state the name in full and the address of the applicant, and the names
11 and addresses of the adjoining owners and occupants, if known ; and
12 if not known, it shall state what search has been made to find them.
13 It may be in form as follows :
COMMONWEALTH OF MASSACHUSETTS.
To the Honorable the Judge of the Court of Land Registration.
I (or we) the undersigned, hereby apply to have the land hereinafter described
brought under the operation and provisions of chapter one hundred and twenty-
eight of the Revised Laws relative to the registration and confirmation of titles to
land, and to have my (or our) title therein registered and confirmed. And I
(or we) declare: (1) That I am (or we are) the owner (or owners) in fee
simple of a certain parcel of land with the buildings (if any, and if not, strike
out the clause), situate in (here insert accurate description). (2) That said
land at the last assessment for taxation was assessed at dollars ; and the
buildings (if any) at dollars. (3) That I (or we) do not know of any
mortgage or encumbrance affecting said land, or that any other person has any
estate or interest therein, legal or equitable, in possession, remainder, reversion
or expectancy. (If any, add ' ' other than as follows," and set forth each clearly.)
(4) That I (or we) obtained title (if by deed, state name of grantor, date and
place of record, and file the deed or state reason for not filing. If in any other
way, state it). (5) That said land is occupied. (If occupied state name
in full, residence and post office address of occupant and the nature of his oc-
cupancy. If unoccupied, insert "not".) (6) That the names in full and ad-
dresses as far as known to me (or us) of the occupants of all lands adjoining
said land are as follows : (Give street and number if possible. If names not
known, state whether inquiry has been made, and what inquiry.) (7) That the
names and addresses so far as known to me (or us) of the owners of all lands
adjoining the above land are as follows : (Same directions as above.) (8) That
I am (or we are) married. (Follow literally the directions given in section
twenty of chapter one hundred and twenty-eight of the Revised Laws.) (9) That
my (or our) full name (or names) , residence and post office address is (or are)
as follows :
Dated this day of in the year nineteen hundred and
(Schedule of documents.) (Signature.)
COMMONWEALTH OF MASSACHUSETTS.
ss. 19 .
Then personally appeared the above named , known to me to be the
signer (or signers) of the foregoing application, and made oath that the state-
ments made therein, so far as made of his (or their) own knowledge are true,
and so far as made upon information and belief, that he (or they) believe them
to be true, before me,
Justice of the Peace.
1 Section 21. If the applicant is not a resident of the common- Agent for non-
2 wealth, he shall file with his application a paper appointing an agent i^fta*,* § 22.
3 residing in the commonwealth, giving his name in full and post
4 office address, and shall therein agree that the service of any legal
5 process in proceedings under or growing out of the application shall
6 be of the same legal effect if made on said agent as if made on the
7 applicant within the commonwealth. If the agent dies, or removes
8 from the commonwealth, the applicant shall forthwith make another
1234
REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
Amendments
to application.
1898, 562, § 23.
appointment ; and if he fails so to do, the court may dismiss the 9
application. 10
Section 22. Amendments to the application, including joinder,
substitution, or discontinuance as to parties, shall be allowed by
the court at any time upon terms that are just and reasonable ; but
all amendments shall be in writing, signed and sworn to, like the
original.
1
2
3
4
5
Application
may include
several par-
1898', 562, § 24.
1899, 131, § 5.
Section 23. An application may include two or more con- 1
tiguous parcels of land, or two or more parcels which constitute 2
one holding under one and the same title, within the same registry- 3
district. But two or more persons who claim in the same parcels 4
different interests which collectively make up the legal estate in fee 5
simple in each parcel, shall not join in one application for more than 6
one parcel unless their interests are alike in each and every parcel. 7
The court may at any time order an application to be amended by 8
striking out one or more of the parcels, or by a severance of the 9
application. 10
— as to land
bounding on
•way.
1898, 562, § 25.
Section 24. If the application describes the land as bounded 1
on a public or private way, it shall state whether or not the ap- 2
plicant claims any and what land within the limits of the way, and 3
whether the applicant desires to have the line of the way deter- 4
mined. 5
Filing, plans
and muni-
ments.
1898, 562, § 26.
Application
siibject to
mortgage or
lease.
1898, 562, § 27.
1900, 354, § 4.
Section 25. The applicant shall file with the application a plan 1
of the land, and all original muniments of title within his control 2
which are mentioned in the schedule of documents. Such original 3
muniments as affect land not included in the application may be 4
withdrawn upon filing certified copies thereof. If an application is 5 v
dismissed or discontinued, the applicant may, with the consent of 6
the court, withdraw such original muniments of title. 7
Section 26. If an application is made subject to an existing 1
recorded mortgage, the holder of which has consented thereto, or 2
subject to a recorded lease for a term exceeding seven years, or 3
if the registration is to be made subject to such a mortgage or lease 4
executed after the time of the application and before the date of 5
the transcription of the decree, the applicant, before a decree of 6
registration is entered, shall, if required by the court, file a certi- 7
fied copy of such mortgage or lease, and shall cause the original, 8
or, in the discretion of the court, a certified copy thereof, to be 9
presented for registration ; and no registration fee shall be charged 10
for registering such original mortgage or lease or such certified 11
copy. 12
fac<*sitional Section 27. The court may by general rule require additional 1
1898, 562, § 28. facts to be stated in the application and may require the filing of 2
additional papers. 3
ton0srfer°8fpend- Section 28. After the filing of an application, and before regis- 1
ing appiica- tration, the land therein described may be dealt with, and instruments 2
1898,' 562,' § 29. relating thereto shall be recorded in the same manner, as if no such 3
Chap. 128. J registration, etc., of titles to land. 1235
4 application had been filed ; but all instruments left for record which
5 relate to such land shall be indexed in the usual manner in the
6 registry indexes and in the index of applications. As soon as an
7 application is disposed of, the recorder shall make a memorandum
8 stating the disposition of the case, and shall send the same to the
9 register of deeds for the proper district or districts, who shall record
10 and index it with the records of deeds and in the index of appli-
11 cations. If a decree of registration of title is entered the land
12 included in the decree shall, when the decree is transcribed as pro-
13 vided in section forty, become registered land, and thereafter no
14 deeds or other instruments which relate solely to such land shall be
15 recorded with the records of deeds, but shall be registered in the
16 registration book and filed and indexed with the records and docu-
17 ments relating to registered land.
1 Section 29. Immediately after the filing of an application, the Reference to
^ xx 7 examiner
2 court shall enter an order referring it to one of the examiners of 1898, 562, § 30.
3 title, who shall search the records and investigate all facts stated in
4 the application, or otherwise brought to his notice, and shall file in
5 the case a report thereon, concluding with a certificate of his
6 opinion upon the title. The recorder shall give notice to the ap-
7 plicant of the filing of such report. If the opinion of the examiner
8 is adverse to the applicant, he shall be allowed by the court a rea-
9 son able time in which to elect to proceed further or to withdraw his
10 application. The election shall be made in writing and filed with
11 the recorder.
1 Section 30. If, in the opinion of the examiner, the applicant noti^ofT1 °u
2 has a good title as alleged, and proper for registration, or, if the cation.
3 applicant after an adverse opinion of the examiner, elects to pro- 175 Mass. 71.'
4 ceed further, the recorder shall, immediately upon the filing of the 179 "
5 examiner's opinion, or upon the filing of the applicant's election, as
6 the case may be, cause notice of the filing of the application to be
7 published in a newspaper published in the district in which any
8 portion of the land lies. The notice shall be issued by the order
9 of the court, attested by the recorder, and shall be in form substan-
10 tially as follows : —
registration of title.
Suffolk, ss. Court of Land Registration.
To (here insert the names of all persons known to have an adverse interest,
and the adjoining owners and occupants, so far as known), and to all whom it
may concern :
Whereas an application has been presented to said court by (name or names
and address in full) to register and confirm his (or their) title in the following
described land (insert description) .
You are hereby cited to appear at the court of land registration to be held at
, in said county of on the day of . A.D., , at
o'clock in the forenoon, to show cause, if any you have, why the prayer of said
application should not be granted. And unless you appear at said court at the
time and place aforesaid your default will be recorded, and the said application
will be taken as confessed, and you will be forever barred from contesting said
application or any decree entered thereon.
Witness Esquire, judge of said court, this day of in the
year nineteen hundred and
Attest :
Becorder.
1236
REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
Return day of
notice.
1898, 562, § 32.
1900, 354, § 5.
Section 31. The return day of said notice shall be not less 1
than twenty nor more than sixty days after the date of issue. The 2
court shall also, within seven days after publication of said notice 3
in a newspaper, cause a copy thereof to be sent by the recorder by 4
mailing a registered letter to every person named therein whose 5
address is known. The court shall also cause a duly attested copy 6
of the notice to be posted in a conspicuous place on each parcel of 7
land included in the application, by a sheriff or deputy sheriff, 8
fourteen days at least before the return day thereof, and his return 9
shall be conclusive proof of such service. If the applicant requests 10
to have the line of a public way determined, the court shall order 11
notice to be given by the recorder, by mailing a registered letter 12
to the mayor of the city or to one of the selectmen of the town or 13
towns in which the land lies, or, if the way is a highway, to one of 14
the county commissioners of the county or counties in which the 15
land lies. If the land borders on a river, navigable stream or 16
shore, or on an arm of the sea where a river or harbor line has 17
been established, or on a great pond, or if it otherwise appears 18
from the application or the proceedings that the commonwealth may 19
have a claim adverse to that of the applicant, notice shall be given 20
in the same manner to the attorney general. The court may also 21
cause other or further notice of the application to be given. The 22
court shall, so far as it considers it possible, require proof of actual 23
notice to all adjoining owners and to all persons who appear to 24
have any interest in or claim to the land included in the applica- 25
tion. Notice to such person by mail shall be by registered letter. 26
The certificate of the recorder that he has served the notice as 27
directed by the court, by publishing or mailing, shall be filed in 28
the case before the return day, and shall be conclusive proof of 29
such service. 30
Guardian ad
litem.
1898, 562, § 33.
1899, 131, § 6.
Section 32. Upon the return of the notice, and upon proof of 1
service of all orders of notice issued, the court may appoint a 2
disinterested person to act as guardian ad litem for minors, and for 3
all persons not in being, who are unascertained, unknown or out 4
of the commonwealth, and who may have an interest. The com- 5
pensation of the guardian shall be determined by the court and paid 6
as part of the expenses of the court. 7
Answer to ap-
lication.
1898, 562, § 34.
Section 33. Any person who claims an interest, whether named 1
in the notice or not, may appear and file an answer on or before the 2
return day, or within such further time as the court may allow. 3
The answer shall state all objections to the application, shall set 4
forth the interest claimed by the person who files it, and shall be 5
signed and sworn to by him or by a person in his behalf. 6
Order of gen-
eral default;
effect.
1898, 562, § 35.
175 Mass. 71.
Section 34. If no person appears and answers within the time 1
allowed, the court may at once upon motion of the applicant, no 2
reason to the contrary appearing, order a general default to be re- 3
corded and the application to be taken for confessed. By the de- 4
scription in the notice, "to all whom it may concern", all the 5
world are made parties defendant and shall be concluded by the 6
default and order. After such default and order, the court may 7
enter a decree confirming the title of the applicant and ordering 8
Chap. 128.] registration, etc., or titles to land. 1237
9 registration thereof. The court shall not be bound by the report
10 of the examiner of title, but may require other or further proof.
1 Section 35. If, in any case, an appearance is entered and ^^fj ref"
2 answer filed, the cause shall be set down for hearing on the motion Sgl^o ss?
3 of either party, but a default and order shall first be entered against
4 all persons who do not appear and answer, in the manner provided
5 in the preceding section. The court may refer the cause or any
6 part thereof to one of the examiners of title, as master, to hear the
7 parties and their evidence, and make report thereof to the court.
8 His report shall have the same effect as that of a master appointed
9 by the superior court in equity, and he shall proceed according to
10 the rules of said court applicable to masters, except as the same
11 may be modified by the rules of the court of land registration.
12 The court may, in any case before decree, require a survey to be
13 made for the purpose of determining boundaries, and may order
14 durable bounds to be set, and referred to in the application, by
15 amendment. The expense of survey and bounds shall be taxed in
16 the costs of the case and may be apportioned among the parties as
17 justice may require. If no persons appear to oppose the applica-
18 tion, such expense shall be borne by the applicant.
1 Section 36. If the court finds that the applicant has not title Dismissal, etc.,
2 proper for registration, a decree shall be entered dismissing the ms^™^
3 application, and such decree may be ordered to be without preju-
4 dice. The applicant may withdraw his application at any time
5 before final decree, upon terms to be determined by the court.
1 Section 37. If the court after a hearing finds that the applicant fi^^°*™%'
2 has title as stated in his application, and proper for registration, a registration.
3 decree of confirmation and registration shall be entered, which shall 175 Mass. 71.'
4 bind the land and quiet the title thereto, subject only to the excep- 179U-S<405-
5 tions stated in the following section. It shall be conclusive upon
6 and against all persons, including the commonwealth, whether
7 mentioned by name in the application, notice or citation, or in-
8 eluded in the general description "to all whom it may concern".
9 Such decree shall not be opened by reason of the absence, infancy
10 or other disability of any person affected thereby, nor by any pro-
11 ceeding at law or in equity for reversing judgments or decrees ;
12 subject however to the right of any person deprived of land or of
13 any estate or interest therein by a decree of registration obtained by
14 fraud to file a petition for review within one year after the entry of
15 the decree, provided no innocent purchaser for value has acquired an
16 interest. If there is any such purchaser, the decree of registration
17 shall not be opened but shall remain in full force and effect forever,
18 subject only to the right of appeal hereinbefore provided. But
19 any person who is aggrieved by such decree in any case may pursue
20 his remedy by action of tort against the applicant or against any.
21 other person for fraud in procuring the decree.
1 Section 38. Everv applicant who receives a certificate of title Tenure 01
r>. „ ■■ J £ • , a • i i_ 4, -, holder of cer.
2 in pursuance of a decree of registration, and every subsequent pur- tincateof title.
3 chaser of registered land who takes a certificate of title for value Jfjjg; gf; j f9,
4 and in good faith, shall hold the same free from all encumbrances
1238
KEGISTKATION, ETC., OF TITLES TO LAND. [CHAP. 128.
except those noted on the certificate, and any of the following en- 5
cumbrances which may be existing : 6
First, Liens, claims or rights arising or existing under the laws 7
or constitution of the United States which the statutes of this com- 8
mon wealth cannot require to appear of record in the registry. 9
Second, Taxes, within two years after they have been committed 10
to the collector. 11
Third, Any highway, town way, or any private way laid out 12
under the provisions of section sixty-five of chapter forty-eight if 13
the certificate of title does not state that the boundary of such way 14
has been determined. 15
Fourth, Any lease for a term not exceeding seven years. 16
Fifth, Any liability to assessment for betterments, or other 17
statutory liability which may attach to land in this commonwealth 18
as a lien prior to, or independent of, the recording or registering 19
of any paper ; but if there are easements or other rights appurtenant 20
to a parcel of registered land which for any reason have failed to be 21
registered, such easements or rights shall remain so appurtenant 22
notwithstanding such failure, and shall be held to pass with the 23
land until cut off or extinguished by the registration of the servient 24
estate, or in any other manner. 25
Contents of
decree.
1898, 562, § 40.
Section 39. Every decree of registration shall bear date of the 1
year, month, day, hour and minute of its entry and shall be signed 2
by the recorder. It shall state whether the owner of the land regis- 3
tered is married or unmarried, and if married, the name of the hus- 4
band or wife. If such owner is under disability it shall state the 5
nature of the disability, and if a minor, shall state his age. It shall 6
contain a description of the land as finally determined by the court, 7
shall set forth the estate of the owner and also, in such manner as 8
to show their relative priority, all particular estates, mortgages, 9
easements, liens, attachments and other encumbrances, including 10
rights of husband or wife, if any, to which the land or the owner's 11
estate is subject, and may contain any other matter properly to be 12
determined in pursuance of this chapter. The decree shall be stated 13
in a form convenient for transcription upon the certificates of title 14
hereinafter mentioned. 15
Transcription
of decree in
registry.
1898, 562, § 41.
Section 40. Immediately upon the entry of the decree of regis- 1
tration, the recorder shall send a certified copy thereof, under the 2
seal of the court, to the register of deeds for the district or districts 3
in which the land lies, and the register, as assistant recorder, shall 4
transcribe the decree in a book to be called the registration book, 5
in which a leaf or leaves in consecutive order shall be devoted ex- 6
clusively to each title, and note therein the day, hour and minute 7
when said decree is transcribed. The entry made by the assistant 8
recorder in this book in each case shall be the original certificate of 9
title, and shall be signed by him and sealed with the seal of the 10
court. All certificates of title shall be numbered consecutively, be- 11
ginning with number one. The assistant recorder shall in each case 12
make an exact duplicate of the original certificate, including the 13
seal, but putting on it the words "Owner's duplicate certificate", 14
and deliver it to the owner or to his duly authorized attorney. In 15
case of a variance between the owner's duplicate certificate and the 16
Chap. 128.] registration, etc., of titles to land. 1239
17 original certificate, the original shall prevail. The certified copy of
18 the decree of registration shall be filed and numbered by the assist-
19 ant recorder, with a reference noted on it to the place of record of
20 the original certificate of title. If an application includes land
21 lying in more than one district the court shall cause the part lying
22 in each district to be described separately by metes and bounds in
23 the decree of registration, the recorder shall send to the assistant
24 recorder for each registry district a copy of the decree containing a
25 description of the land within that district, the assistant recorder
26 shall register the same and issue an owner's duplicate therefor and
27 thereafter, for all matters pertaining to registration, the portion in
28 each district shall be treated as a separate parcel of land.
*
1 Section 41. The certificate first registered in pursuance of a Transcription,
2 decree of registration in regard to any parcel of land shall, in the elecuv^from
3 registration book, be entitled " Original certificate of title, entered 1^562, §42.
4 pursuant to decree of the court of land registration, dated at" (stat-
5 ing time and place of entry of decree and the number of the case) .
6 The certificate shall take effect from the date of the transcription of
7 the decree. Subsequent certificates relating to the same land shall
8 be in like form, but shall be entitled " Transfer from No. " (the
9 number of the last previous certificate relating to the same land),
10 and also the words " Originally registered " (date, volume and page
11 of registratio n ) .
1 Section 42. If two or more persons are registered owners as Duplicate cer-
2 tenants in common, or otherwise, one owner's duplicate certificate estates in con
3 may be issued for the whole land or a separate duplicate may be Sle,'^, § 43.
4 issued to each for his undivided share.
1 Section 43. A registered owner who holds one duplicate cer- certificate, of
2 tificate for several distinct parcels of land may surrender it, with the ^^f 8Ub_
3 approval of the court, and take out several certificates for portions 1898, 562, § 44.
4 thereof, or if he holds separate duplicate certificates for several dis-
5 tinct parcels, he may surrender them and, with like approval, take
6 out a single duplicate certificate for the whole land, or several cer-
7 tificates for different portions thereof. An owner who subdivides a
8 tract of registered land into lots shall file with the recorder a plan
9 thereof, when applying for a new certificate or certificates, and the
10 court, before issuing the same, shall cause the plan to be verified,
11 and require that all boundaries, streets and passageways shall be
12 distinctly and accurately delineated thereon.
1 Section 44. The obtaining of a decree of registration and the certificate an
2 entry of a certificate of title shall be regarded as an agreement run- nfnjfwith land
3 ning with the land and binding upon the applicant and all his sue- 1898' 562, § 4o'
4 cessors in title that the land shall be and forever remain registered
5 land and subject to the provisions of this chapter and of all acts in
6 amendment hereof.
1 Section 45. No title to registered land in derogation of that of ftaef effect™'.
2 the registered owner shall be acquired by prescription or adverse 18y8> 562> § 4e-
3 possession.
1240
REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
Evidence,
what to be.
1898, 562, § 47.
Contents of
certificate.
1898, 562, § 48.
Indexes,
record books,
1898, 562, § 49.
Section 46. The original certificate in the registration book, 1
any copy thereof duly certified under the signature of the recorder 2
or an assistant recorder and the seal of the court, and also the 3
owner's duplicate certificate, shall be received as evidence in all the 4
courts of the commonwealth, and shall be conclusive as to all mat- 5
ters contained therein, except so far as otherwise provided in this 6
chapter. 7
Section 47. Every certificate of title shall set forth the names 1
of all the persons whose estates make up the estate in fee simple in 2
the whole land, and duplicate certificates may be issued to each per- 3
son, but the recorder or assistant recorder shall note in the registra- 4
tion book and on each duplicate, to whom such duplicate was issued. 5
Section 48. The recorder, under the direction of the court, 1
shall make and keep indexes of all applications and of all decrees 2
of registration, and shall also index and classify all papers and 3
instruments filed in his office which relate to applications and to reg- 4
istered titles. The recorder shall also, under the direction of the 5
court, cause forms of indexes and registration and entry books to be 6
prepared for the use of the assistant recorders. The court shall 7
prepare and adopt convenient forms of certificates of title and shall 8
also adopt general forms of memoranda to be used by the assistant 9
recorders in registering the common forms of conveyance and other 10
instruments to express briefly their effect. 11
Owner of reg-
istered land
may convey,
1898, 562, § 50.
VOLUNTARY DEALING WITH LAND AFTER ORIGINAL REGISTRATION.
Section 49. An owner of registered land may convey, mort- 1
gage, lease, charge or otherwise deal with it as fully as if it had not 2
been registered. He may use forms of deeds, mortgages, leases or 3
other voluntary instruments like those now in use and which are 4
sufficient in law for the purpose intended. But no deed, mortgage 5
or other voluntary instrument, except a will and a lease for a term 6
not exceeding seven years, which purports to convey or affect reg- 7
istered land, shall take effect as a conveyance or bind the land, but 8
shall operate only as a contract between the parties, and as evidence 9
of authority to the recorder or assistant recorder to make registra- 10
tion. The act of registration only shall be the operative act to con- 11
vey or affect the land and in all cases the registration shall be made 12
in the office of the assistant recorder for the district or districts in 13
which the land lies. 14
Notice of en-
cumbrances.
1898, 562, § 51.
Section 50. Every conveyance, lien, attachment, order, decree, 1
instrument or entry affecting registered land, which would under 2
other provisions of law, if recorded, filed or entered in the registry 3
of deeds, affect the land to which it relates, shall, if registered, 4
filed or entered in the office of the assistant recorder of the district 5
in which the land to which such instrument relates lies, be notice to 6
all persons from the time of such registering, filing or entering. 7
Estate less
than fee
simple, how
registered.
1898, 562, § 52.
Section 51. No new certificate shall be entered or issued upon 1
any transfer of registered land which does not divest the title in fee 2
simple from the owner or some one of the registered owners. All 3
Chap. 128.] registration, etc., of titles to land. 1241
4 interests in registered land less than an estate in fee simple shall be
5 registered by filing with an assistant recorder the instrument which
6 creates or transfers or claims such interest and by a brief memo-
7 randum thereof made by an assistant recorder upon the certificate
8 of title, and signed by him. A similar memorandum shall also be
9 made on the owner's duplicate. The cancellation or extinguishment
10 of such interests shall be registered in the same manner.
1 Section 52. If the assistant recorder is in doubt upon any Reference of
2 question, or if any party in interest does not agree as to the proper tions. q
3 memorandum to be made in pursuance of any deed, mortgage or ' ' 9 '
4 other voluntary instrument presented for registration, the question
5 shall be referred to the court for decision, either on the certificate
6 of the assistant recorder stating the question upon which he is in
7 doubt, or upon the suggestion in writing of any party in interest ;
8 and the court, after notice to all parties and a hearing, shall enter
9 an order prescribing the form of memorandum to the assistant
10 recorder, who shall make registration in accordance therewith.
1 Section 53. Every deed or other voluntary instrument which ^ence^etc^1"
2 is presented for registration shall contain or have indorsed upon it &ft!)kd-8 \,
3 the full name, residence and post office address of the grantee or
4 other person who acquires or claims an interest under such instru-
5 ment, and every deed shall also state whether the grantee is married
6 or unmarried, and if married, the name in full of the husband or wife.
7 Any change in the residence or post office address of such person
8 shall be indorsed by an assistant recorder on the original instru-
9 ment, upon receiving a sworn statement of such change. All
10 names and addresses shall also be entered on all certificates. No-
ll tices and processes issued in relation to registered land may be
12 served upon any person in interest by mailing them to the address
13 so given, and shall be binding, whether he resides within or without
14 the commonwealth.
1 Section 54. No new certificate of title shall be entered, and no Presentation of
2 memorandum shall be made upon any certificate of title by the cate on entry '
3 recorder or any assistant recorder, in pursuance of any deed or cate,eetc?ertl '
4 other voluntary instrument, unless the owner's duplicate certificate 1898' m' § 55'
5 is presented with such instrument, except in cases expressly pro-
6 vided for in this chapter or upon the order of the court, for cause
7 shown, and whenever such order is made, a memorandum thereof
8 shall be entered on the new certificate of title and on the owner's
9 duplicate. The production of the owner's duplicate certificate,
10 whenever a voluntary instrument is presented for registration, shall
11 be conclusive authority from the registered owner to the recorder
12 or an assistant recorder to enter a new certificate or to make a
13 memorandum of registration in accordance with such instrument,
14 and the new certificate or memorandum shall be binding upon the
15 registered owner and upon all persons claiming under him, in favor
16 of every purchaser for value and in good faith. In all cases of
17 registration which are procured by fraud, the owner may pursue all
18 his legal and equitable remedies against the parties to such fraud,
19 without prejudice however to the rights of any innocent holder for
1242 REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
value of a certificate of title. After the transcription of the decree 20
of registration on the original application, any subsequent registra- 21
tion which is procured by the presentation of a forged duplicate 22
certificate, or of a forged deed or other instrument, shall be null 23
and void. In case of the loss or theft of an owner's duplicate 24
certificate, notice shall be sent by the owner or by a person in his 25
behalf to the assistant recorder for the district in which the land 26
lies, as soon as the loss or theft is discovered. 27
Eupiicate°skand Section 55. Each assistant recorder shall keep an entry book 1
coptese(i m which he shall enter, in the order of their reception, all deeds 2
1898, 562, § 56. and other voluntary instruments, and all copies of writs or other 3
processes filed with him which relate to registered land. He shall 4
note in such book the year, month, day, hour and minute of recep- 5
tion of all instruments, in the order in which they are received. 6
They shall be regarded as registered from the time they are so 7
noted, and the memorandum of each instrument, when made on the 8
certificate of title to which it refers, shall bear the same date. 9
Every deed or other instrument, voluntary or involuntary, which 10
is so filed with the recorder or assistant recorder, shall be numbered 11
and indexed, and indorsed with a reference to the proper certificate 12
of title. All records and papers relative to registered land in the 13
office of the recorder or of an assistant recorder shall be open to 14
the public in the same manner as probate records, subject to such 15
reasonable regulations as the recorder, under the direction of the 16
court, may make. 17
Duplicates of all deeds and voluntary instruments which are filed 18
and registered may be presented with the originals, shall be attested 19
and sealed by the recorder or an assistant recorder, indorsed with 20
the file number and other memoranda on the originals and may be 21
taken away by the person who presents them. 22
Certified copies of all instruments which are filed and registered 23
may also be obtained at any time, upon payment of the assistant 24
recorder's fees. 25
CONVEYANCE IN FEE.
fee^re^s6 in Section 56. An owner who desires to convey his registered 1
l898d562n§S57 lanc* or any Porti°n thereof in fee shall execute a deed of convey- 2
1899^ 131J § 8. ance, which the grantor or the grantee may present to the assistant 3
recorder in the district in which the land lies. The grantor's dupli- 4
cate certificate shall be produced and presented at the same time. 5
The assistant recorder shall thereupon, in accordance with the rules 6
and instructions of the court, make out in the registration book a 7
new certificate of title to the grantee, and shall prepare and deliver 8
to him an owner's duplicate certificate. The assistant recorder 9
shall note upon the original and duplicate certificates the date of 10
transfer, the volume and page of the registration book in which the 11
new certificate is registered and a reference by number to the last 12
preceding certificate. The grantor's duplicate certificate shall be 13
surrendered and the word " cancelled " shall be stamped upon it. 14
The original certificate shall also be stamped "cancelled". The 15
deed of conveyance shall be filed and indorsed with the number 16
and place of registration of the certificate of title of the land 17
conveyed. 18
Chap. 128.] registration, etc., of titles to land. 1243
1 Section 57. If a deed in fee is for a part only of the land £0^? regis".
2 described in a certificate of title, the assistant recorder shall also, teredfee.
3 in accordance with the rules and instructions of the court, enter a 1900I 354^ § 6. '
4 new certificate and issue an owner's duplicate to the grantor for the
5 part of the land which is not included in the deed. In every case
6 of transfer, the new certificate or certificates shall include all the
7 land described in the original and surrendered certificates ; but no
8 new certificate to a grantee of a part only of the land shall be
9 invalid by reason of the failure of the assistant recorder to enter a
10 new certificate to the grantor for the remaining unconveyed por-
11 tion. If the land which is described in a certificate of title is
12 divided into lots, designated by numbers or letters, with measure-
13 ments of all the bounds, and a plan of said land has been filed with
14 the recorder and verified pursuant to the provisions of section
15 forty-three, and a certified copy thereof is recorded in the registra-
16 tion book with the original certificate when the registered owner
17 makes a deed of transfer in fee of one or more of such lots, the
18 assistant recorder may, instead of cancelling such certificate and
19 entering a new certificate to the grantor for the part of the land
20 not included in the deed of transfer, enter on the original certificate
21 and on the owner's duplicate certificate a memorandum of such
22 deed of transfer, with a reference to the lot or lots thereby con-
23 veyed, as designated on said plan, and that the certificate is
24 cancelled as to such lot or lots. Every certificate with such raemo-
25 randum shall be as effectual for the purpose of showing the grantor's
26 title to the remainder of the land not conveyed as if the old cer-
27 tificate had been cancelled and a new certificate of such land had
28 been entered ; and such process may be repeated so long as there
29 is convenient space upon the original certificate and the owner's
30 duplicate certificate for making such memorandum of sale of lots.
1 Section 58. If, at the time of any transfer, encumbrances or statement of
2 claims adverse to the title of the registered owner appear upon the is^^Yki!8,
3 registration book, they shall be stated in the new certificate or cer-
4 tificates, except so far as they may be simultaneously released or
5 discharged.
MORTGAGES.
1 Section 59. The owner of registered land may mortgage it by Mortgage of
2 executing a mortgage deed. Such deed may be assigned, extended, [aid. ere
3 discharged, released in whole or in part, or otherwise dealt with by 189S' 562' § 60,
4 the mortgagee by any form of deed or instrument which is sufficient
5 in law for the purpose. But such mortgage deed, and all instru-
6 ments which assign, extend, discharge and otherwise deal with the
7 mortgage, shall be registered, and shall take effect upon the title
8 only from the time of registration.
1 Section 60. Registration of a mortgage shall be made in the Kegistration of
&"&*
a mortgage.
2 following manner : — The owner's duplicate certificate shall be pre- isos, «§', | ei.
3 sented to the assistant recorder with the mortgage deed, and he
4 shall enter upon the original certificate of title and also upon the
5 owner's duplicate certificate a memorandum of the purport of the
6 mortgage deed, the time of filing and the file number of the deed,
7 and shall sign the memorandum. He shall also note upon the
1244
REGISTRATION, ETC., OF TITLES TO LAND. [ClIAP. 128.
Assignment,
etc., of mort-
562, § 62.
mortgage deed the time of filing and a reference to the volume and 8
page of the registration book in which it is registered. The assist- 9
ant recorder shall also, at the request of the mortgagee, make out 10
and deliver to him a duplicate of the certificate of title like the 11
owner's duplicate, except that the words "Mortgagee's duplicate" 12
shall be stamped upon it in large letters diagonally across its face. 13
A memorandum of the issue of the mortgagee's duplicate shall be 14
made upon the original certificate of title. 15
Section 61. If a mortgage upon which a mortgagee's duplicate 1
has been issued is assigned, extended or otherwise dealt with, the 2
mortgagee's duplicate shall be presented with the instrument which 3
assigns, extends or otherwise deals with the mortgage, and a memo- 4
randum of the instrument shall be made upon the mortgagee's 5
duplicate certificate. When the mortgage is discharged or other- 6
wise extinguished the mortgagee's duplicate certificate shall be 7
surrendered and stamped "cancelled". The production of the 8
mortgagee's duplicate certificate shall be conclusive authority to 9
register the instrument therewith presented, subject however to all 10
the provisions and exceptions contained in section fifty-five so far 11
as they are applicable. 12
A mortgage on registered land may be discharged by the mort- 13
gagee in person on the registration book in the same manner as a 14
mortgage on unregistered land may be discharged by an entry on 15
the record book in the registry of deeds, and such discharge shall 16
be attested by an assistant recorder. 17
Foreclosure of
mortgages.
1898, 562, § 63.
Section 62. Mortgages of registered land may be foreclosed like 1
mortgages of unregistered land ; but in case of foreclosure by entry 2
and possession, the certificate of entry required by section two of 3
chapter one hundred and eighty-seven shall be filed and registered 4
by an assistant recorder within thirty days after the entry, in lieu 5
of recording. After possession has been obtained by the mortgagee 6
or his assigns, by entry or by action, and has continued for the 7
time required by law to complete the foreclosure, he or his assigns 8
may petition the court of land registration for the entry of a new 9
certificate, and the court, after notice to all parties in interest, shall 10
have jurisdiction to hear the cause, and may order the entry of a 11
new certificate on such terms as equity and justice may require. 12
In case of foreclosure by action as provided in chapter one hun- 13
dred and eighty-seven, and by exercising the power of sale in the 14
mortgage under the direction of the court as provided therein, a cer- 15
tified copy of the final decree of the court confirming the sale may, 16
after the time for appealing therefrom has expired, be filed with the 17
assistant recorder, and the purchaser shall thereupon be entitled to 18
the entry of a new certificate. 19
In case of foreclosure by exercising the power of sale without 20
a previous decree of court, the affidavit required by section fif- 21
teen of chapter one hundred and eighty-seven shall be filed and 22
registered with the assistant recorder, in lieu of recording. The 23
purchaser at the foreclosure sale or his assigns may thereupon at 24
any time present the deed under the power of sale to the assistant 25
recorder for filing and registration, and obtain a new certificate, 26
after the owner's duplicate certificate and the mortgagee's duplicate, 27
Chap. 128.] registration, etc., of titles to land. 1245
28 if any, has been delivered up and cancelled ; but the provisions of
29 this chapter shall not prevent the mortgagor or other person in
30 interest, prior to the entry of a new certificate of title, from
31 directly impeaching, by bill in equity or otherwise, any foreclosure
32 proceedings which affect registered land.
33 After a new certificate of title has been entered, no judgment
34 which may be recovered on the mortgage note for any balance due
35 thereon shall operate to open the foreclosure or affect the title to
36 registered land.
LEASES.
1 Section 63. Leases of registered land for a term of seven years Leases of reg.
2 or more shall be registered, in lieu of recording. A lessee's dupli- ilgs^M 64.
3 cate certificate may be issued to the lessee upon his request, subject
4 to the provisions hereinbefore made relative to a mortgagee's dupli-
5 cate certificate, so far as they are applicable.
TRUSTS.
1 Section 64. If a deed or other instrument is filed for the pur- Trusts m reg-
2 pose of transferring registered land in trust, or upon any equitable il^^M 65.
3 condition or limitation expressed therein, or for the purpose of
4 creating or declaring a trust or other equitable interest in such land
5 without transfer, the particulars of the trust, condition, limitation
6 or other equitable interest shall not be entered on the certificate ;
7 but a memorandum thereof shall be entered by the words " in trust",
8 or "upon condition", or other apt words, and by a reference by
9 number to the instrument which authorizes or creates the same. A
10 similar memorandum shall be made upon the duplicate certificate.
11 The assistant recorder shall note upon the original instrument which
12 creates or declares the trust or other equitable interest a reference
13 by number to the certificate of title to which it relates, and to the
14 volume and page in the registration book in which it is registered.
15 If the instrument which creates or declares a trust or other equitable
16 interest is already recorded in the registry of deeds or of probate,
17 a certified copy may be filed by the assistant recorder and registered.
1 Section 65. If the instrument which creates or declares a trust —with power
OT RH, I P PTf
2 or other equitable interest contains an express power to sell, mort- how expressed.
3 gage or deal with the land in any manner, such power shall be stated
4 in the certificate of title by the words " with power to sell", or
5 " power to mortgage", and by apt words of description in case of
6 other powers. No instrument which transfers, mortgages or in any
7 way deals with registered land held in trust shall be registered,
8 unless the power thereto enabling is expressly conferred in the in-
9 strument of trust, or unless the decree of a court of competent juris-
10 diction on a bill for instructions or other proceeding has construed
11 the instrument in favor of the power. In such case a certified copy
12 of such decree may be filed with the assistant recorder, and he shall
13 make registration in accordance therewith.
1 Section QQ. When a new trustee of registered land is appointed on°aCppoin£s
2 by the supreme judicial court, the superior court or the probate ™ent of new
3 court, a new certificate shall be entered to him upon presentation to i89s, 562, § 67.
1246
KEGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
Implied, etc.,
trusts, how
established.
1898, 562, § 68.
the assistant recorder of a certified copy of the decree and the sur- 4
render of the duplicate certificate. 5
Section 67. Whoever claims an interest in registered land by 1
reason of any implied or constructive trust shall file for registration 2
with the assistant recorder a statement thereof which shall contain 3
a description of the land, and a reference to the number of the cer- 4
tificate of title and the volume and page of the registration book in 5
which it is entered. Such claim shall not affect the title of a pur- 6
chaser for value and in good faith before its registration. 7
Application by
trustee for
Section 68. A trustee may file an application for registration 1
registration of 0f any land held in trust by him, unless expressly prohibited by the 2
i898,'562, § 69. instrument which creates the trust. 3
Incidents of
registered
land.
1898, 562, § 70.
LEGAL INCIDENTS OF REGISTERED LAND.
Section 69. Registered land, and ownership therein, shall in 1
all respects be subject to the same burdens and incidents which 2
attach by law to unregistered land. The provisions of this chapter 3
shall not relieve registered land or the owners thereof from any 4
rights incident to the relation of husband and wife, or from liability 5
to attachment on mesne process or levy on execution, or from lia- 6
bility to any lien of any description established by law on land and 7
the buildings thereon, or the interest of the owner in such land or 8
buildings, or to change the laws of descent, or the rights of parti- 9
tion between co-tenants, or the right to take the same by eminent 10
domain, or to relieve such land from liability to be recovered by an 11
assignee in insolvency under the provisions of law relative to prefer- 12
ences, or to change or affect in any way any other rights or liabilities 13
created by law and applicable to unregistered land, except as other- 14
wise expressly provided in this chapter or any amendment hereof. 15
Attachment of
registered
land.
1898, 562, § 71.
ATTACHMENTS AND OTHER LIENS.
Section 70. If a writing of any description or a copy of any 1
writ is required by law to be filed or recorded in the registry of 2
deeds in order to create or preserve any lien, right or attachment 3
upon unregistered land, such writing or copy, if intended to affect 4
registered land shall, in lieu of recording, be filed and registered in 5
the office of the assistant recorder for the registry district in which 6
the land lies, and, in addition to any particulars required in such 7
papers for recording with records of deeds, shall also, except in 8
the case of attachment on mesne process, contain a reference to the 9
number of the certificate of title of the land to be affected, and the 10
volume and page of the registration book in which the certificate is 11
registered, and also, if the attachment, right or lien is not claimed 12
on all the land, in any certificate of title, a description sufficiently 13
accurate for identification, of the land intended to be affected. 14
™e™™^um Section 71. If an attachment or other lien or adverse claim of 1
oil owiitjr s
duplicate. anv description is registered, and the duplicate certificate is not 2
presented at the time of registration to the assistant recorder, he 3
shall, within twenty-four hours thereafter, send notice by mail to 4
1898, 562, § 72.
Chap. 128.] registration, etc., of titles to land. 1247
5 the registered owner-, stating that such paper has been registered,
6 and requesting him to send or produce his duplicate certificate in
7 order that a memorandum of the attachment or other lien or ad-
8 verse claim may be made thereon. If the owner neglects or refuses
9 to comply within a reasonable time, the assistant recorder shall
10 suggest the fact to the court, and the court, after notice, shall enter
11 an order to the owner to produce his certificate at a time and place
12 to be named therein, and may enforce the order by suitable process.
1 Section 72. Attachments on mesne process and liens of every Dissolution,
2 description upon registered land shall be continued, reduced, dis- mentsfetctach~
3 charged and dissolved by any method which is sufficient in law to 1898' 562, § 73'
4 continue, reduce, discharge or dissolve like liens on unregistered
5 land. All certificates or other instruments which are permitted or
6 required by law to be recorded in the registry of deeds to give
7 effect to the continuance, reduction, discharge or dissolution of at-
8 tachments or other liens upon unregistered lands, or to give notice
9 of such continuance, reduction, discharge or dissolution, shall, in
10 the case of like liens upon registered land, be filed with the as-
11 sistant recorder and registered in the registration book, in lieu of
12 recording.
1 Section 73. All provisions of law relative to attachments of pi^IbieTo8 ap"
2 real estate and leasehold estates on mesne process shall apply to attachments to
3 registered land, except that the duties required to be performed by is98, 562, § 74.
4 the register of deeds shall be performed by the assistant recorder
5 for the registry district in which the land lies, who, in lieu of
6 recording, shall register the facts required to be recorded, and for
7 that purpose shall keep books similar to those required to be kept
8 for attachments by registers of deeds, and the fees for registering
9 attachments shall be the same as are provided for recording.
1 Section 74. The name and address of the plaintiff's attorney indorsement
2 shall, in all cases in which an attachment is made, be indorsed upon attorney upon
3 the writ, and he shall be deemed to be the attorney of the plaintiff lS*^, § 75.
4 until written notice that he has ceased to be such shall have been
5 filed for registration by the plaintiff.
1 Section 75. If an attachment on mesne process is continued, ^rsofcourt*
2 reduced, dissolved or otherwise affected by an order, decision or etc^ ^
3 judgment of the court in which the action or proceeding in which
4 said attachment was made is pending, or by an order of a court
5 having jurisdiction in insolvency or bankruptcy, a certificate of the
6 entry of such order, decision or judgment from the clerk or register
7 and under the seal of the court, shall be entitled to be registered
8 on presentation to the assistant recorder. A like certificate of the
9 allowance by the court of an amendment which a subsequent at-
10 taching creditor or purchaser contends had the effect of dissolving
11 an attachment may be registered as an amendment allowed, but
12 shall not be conclusive of dissolution, unless the court in which the
13 action or suit is pending adjudicates that the amendment dissolved
14 the attachment, in which case a certificate of the order, as soon as
15 it becomes absolute, shall be registered as a dissolution of the at-
16 tachment.
1248
REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
Section 76.
If registered land is included with unregistered
Registration of
1898, 562, § 77. land in the statement required by section six of chapter one hun
dred and ninety-seven to be filed in the registry of deeds, an at-
tested copy of such statement shall be filed with the assistant
recorder and registered.
1
2
3
4
5
Liens on regis-
tered land, how
enforced.
1898, 562, § 78.
Section 77. A lien of any description upon registered land 1
shall be enforced in the same manner as like liens upon unregistered 2
land. If registered land is set off or sold on execution, or taken 3
or sold for taxes or for any assessment, or sold to enforce a lien for 4
labor or materials, or the lien of a mortgagee or co-tenant arising 5
from a payment of taxes, or for an assessment under the provisions 6
of sections twenty-three to twenty-five of chapter fifty, or for costs 7
and charges for taking down dangerous structures under the pro- 8
visions of section seven of chapter one hundred and four, or for 9
erecting fences along the line of a railroad corporation under the 10
provisions of section one hundred and twenty-one of chapter one 11
hundred and eleven or for improving meadows and swamps under 12
the provisions of sections four to seven, inclusive, of chapter one 13
hundred and ninety-five, or for flowing land under the provisions 14
of section fourteen of chapter one hundred and ninety-six, or for 15
any costs and charges incident to such liens, any execution, or 16
copy of the execution, any officer's return, or any deed, demand, 17
certificate or affidavit or other instrument made in the course of 18
proceedings to enforce such liens and required by law to be re- 19
corded in the registry of deeds in the case of unregistered land, 20
shall be filed with the assistant recorder for the district in which 21
the land lies and registered in the registration book, and a memo- 22
randum made upon the proper certificate of title in each case as an 23
adverse claim or encumbrance. 24
Application
for certificate
by execution
creditors, etc.
1898, 562, § 79.
Section 78. Upon the expiration of the time allowed by law 1
for redemption after registered land has been set off or sold on 2
execution, or taken or sold for the enforcement of a lien of any 3
description, the person who claims under an execution, or under a 4
deed or other instrument made in the course of proceedings to levy 5
such execution or enforce any lien, may petition the court for the 6
entry of a new certificate to him, and the application may be 7
granted. Every new certificate entered under the provisions of 8
this section shall contain a memorandum of the nature of the pro- 9
ceedinof on which it is based. A new certificate which is entered 10
in pursuance of any tax title shall contain a memorandum that it is 11
subject to the rights of redemption reserved in sections fifty-eight 12
and seventy-five of chapter thirteen. At any time prior to the 13
entry of a new certificate, the registered owner may pursue all 14
legal and equitable remedies to impeach or annul proceedings under 15
executions or to enforce liens of any description. 16
pending suits, judgments, decrees and partitions.
acffoCns°etc. Section 79. No writ of entry, petition for partition, or other 1
1898 562U§e8o' 3iC^on at law? or any proceeding in equity which affects the title to 2
land or the use and occupation thereof or the buildings thereon, and 3
no judgment or decree, nor any writ of error, bill of review or 4
Chap. 128.] registration, etc., of titles to land. 1249
5 other proceeding to vacate or reverse any judgment or decree, shall
6 have any effect upon registered land as against persons other than
7 the parties thereto, unless a memorandum like that described in
8 section twelve of chapter one hundred and thirty-four containing
9 also a reference to the number of the certificate of title of the land
10 affected, and the volume and page of the registration book in
11 which it is entered, shall be filed and registered. The provisions
12 of this section shall not apply to attachments, levies of execution,
13 or to proceedings for the probate of wills, or for administration, in
14 the probate court. If notice of the pendency of the action has been
15 duly registered, it shall be sufficient to register the judgment or
16 decree in such action within sixty days after the rendition thereof.
1 Section 80. At any time after final judgment or decree in Registration of
2 favor of the defendant, or other disposition in the manner specified judgment, etc.
3 in section thirteen of chapter one hundred and thirty-four, of any 1898' 562> § 81*
4 case in which a memorandum has been registered as provided in the
5 preceding section, a certificate of the clerk, stating the manner of
6 disposal thereof, as provided in said section thirteen, shall be enti-
7 tied to registration.
1 Section 81. If judgment is entered for the plaintiff or demand- ^° de™§ident
2 ant in a real action affecting registered land, except in actions of ant.
3 ejectment and actions under the provisions of chapter one hundred
4 and eighty-one relative to terms of less than seven years, such
5 judgment shall be entitled to registration on presentation of a cer-
6 tificate of the entry thereof from the clerk of the court in which
7 the action is pending to the assistant recorder, who shall enter a
8 memorandum upon the certificate of title of the land to which such
9 judgment relates. If the judgment does not apply to all the land
10 described in the certificate of title, the certificate of the clerk and
11 the memorandum entered by the assistant recorder shall contain a
12 description of the land which is affected by the judgment.
1 Section 82. If an execution or writ of seisin has been issued ^£™l?f
2 upon a writ of entry affecting registered land and served by the ^g^Yk
3 officer, he shall cause an attested copy of the execution, with a
4 return of his doings thereon, to be filed and registered within three
5 months after the service and before the return of the execution
6 into the clerk's office, and the demandant, if the judgment was
7 that he was entitled to an estate in fee simple in the demanded
8 premises, or in any part thereof, and for which execution issued,
9 shall thereupon be entitled to the entry of a new certificate of title ;
10 but, in informations under the provisions of chapter one hundred
11 and eighty-eight, the commonwealth shall be entitled to have the
12 certificate of the registered owner cancelled by the court of land
13 registration as soon as judgment is rendered in its favor.
1 Section 83. If, in a writ of dower, judgment is entered con- ^°/u||^cta^
2 firming the report of the commissioners under the provisions of writ oi dower,
3 section seven of chapter one hundred and eighty, or if, in a writ 1898, 562, § 84.
4 of waste, judgment is entered that the plaintiff recover the place
5 wasted, a certificate of the entry of such judgment may be regis-
6 tered as an encumbrance.
1250 REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
Registration of Section 84. A decree of a court of equity which affects title 1
decrees in .. . v -i -i 1 1 ■ i
equity. or rights in registered land, whether made in the exercise of general 2
1898 562 § 85. '-'...'-'. . . .. *-'
equity jurisdiction, or in the exercise of jurisdiction conferred by 3
statute for the quieting of titles or removing clouds from titles, as 4
provided in chapter one hundred and eighty-two, or for any similar 5
purpose, may be registered in the same manner as a judgment at 6
law. But every court of equity which passes such a decree shall, 7
upon application of the plaintiff or petitioner, order any parties 8
before it to execute for registration any deed or instrument neces- 9
sary to give effect to its decree, and may require the registered 10
owner to deliver his duplicate certificate to the plaintiff or 11
petitioner to be cancelled or to have a memorandum entered upon 12
it by the assistant recorder. If the person who is required to 13
execute any deed or other instrument which may be necessary to 14
give effect to the decree is absent from the commonwealth, or 15
is a minor, or insane, or for any reason is not amenable to the 16
process of the court, the court may appoint a trustee to execute 17
such instrument, which, when executed, shall be registered and 18
shall have full force and effect to bind the land to be affected 19
thereby.
^idgnfenffor011 Section 85. In all proceedings for partition of registered land, 1
^ition, ete. or for ^q assignment in fee of registered land claimed by husband 2
or wife by statutory right, after the entry of the final judgment or 3
decree of partition and the acceptance of the report of the com- 4
missioners, a copy of the judgment or decree and of the return of 5
the commissioners, certified by the clerk or register, as the case 6
may be, shall be filed and registered; and thereupon, if the land 7
is set off' to the owners in severalty, any owner shall be entitled to 8
have a certificate entered of the share set off to him in severalty, 9
and to receive an owner's duplicate therefor. If the land is ordered 10
by the court to be sold, the purchaser or his assigns shall be en- 11
titled to have a certificate of title entered to him or them upon 12
presenting the deed of the commissioners for registration ; but any 13
new certificate entered in pursuance of partition proceedings, 14
whether by way of set-off or of sale, shall contain a reference to 15
the final judgment or decree of partition, and shall be conclusive 16
as to the title to the same extent and against the same persons as 17
such judgment or decree is made conclusive by the statutes ap- 18
plicable thereto. A person who holds such certificate of title or a 19
transfer thereof shall have the right to petition the court at any 20
time to cancel the memorandum relative to such judgment or 21
decree, and the court, after notice and a hearing, may grant the 22
application. Such certificate shall thereafter be conclusive in the 23
same manner and to the same extent as other certificates of title. 24
Sired mortgage Section 86. If a certified copy of a judgment or decree for 1
t0^etagain° partition and of the return of the commissioners is presented for 2
registration of registration, and if a mortgage or lease affecting a specific por- 3
iud°*meiit for r -,
partition. tion or an undivided share of the premises had previously been 4
1898, 562, § 87. regjstered, the tenant who claims under the mortgagor or lessor 5
shall cause the mortgage or lease and any duplicate certificate of 6
title issued to the mortgagee or lessee to be again presented for 7
registration, and the assistant recorder shall indorse on each a 8
Chap. 128.] registration, etc., of titles to land. 1251
9 memorandum of such partition and a description of the land set off
10 in severalty on which such mortgage or lease remains in force. ■
11 Such tenant shall not be entitled to receive his own duplicate cer-
12 tificate of title until such mortgage or lease has been so presented
13 for registration.
INSOLVENCY.
1 Section 87. The messenger shall register notice of the issuing Registration of
2 of a warrant in insolvency or bankruptcy against a debtor who is rantcfninsotr"
3 an owner of registered land, when the same is committed to him, by Ig^ 562, § 88.
4 filing a copy thereof with the assistant recorder.
5 An assignee in insolvency or trustee in bankruptcy shall be
6 entitled to the entry of a new certificate of registered land of the
7 debtor upon presenting and filing a certified copy of the assign-
8 ment with the insolvent's duplicate certificate of title ; but the new
9 certificate shall state that it is entered to him as assignee in insol-
10 vency or trustee in bankruptcy.
1 Section 88. If proceedings in insolvency or bankruptcy against —»f discharge,
2 a registered owner, of which notice has been registered, are vacated 189s, 562, § 89.
3 by decree, or if the court of insolvency or bankruptcy grants a dis-
4 charge in composition proceedings and orders a reconveyance of
5 land to the debtor, a certified copy of the decree, or of such dis-
6 charge and order, may be filed and registered. If a new certificate
7 has been entered in the name of the assignee in insolvency or trustee
8 in bankruptcy as registered owner, the debtor shall be entitled to
9 the entry of a new certificate in his name, and the certificate of the
10 assignee or trustee shall be surrendered.
eminent domain.
1 Section 89. If land of a registered owner, or any right or —of land taken
2 interest therein, is taken by eminent domain, the commonwealth or nminmmen
3 body politic or corporate or other authority which exercises such 1898' 562' § 90'
4 right shall file for registration in the proper registry district a de-
5 scription of the registered land so taken, giving the name of each
6 owner thereof, referring by number and place of registration in the
7 registration book to each certificate of title, and stating what estate
8 or interest in the land is taken, and for what purpose. A memo-
9 randum of the right or interest taken shall be made on each certifi-
10 cate of title by the assistant recorder, and if the fee simple is taken,
11 a new certificate shall be entered to the owner for the land remain^
12 ing to him after such taking. If the owner has a lien upon the land
13 taken for his damages, it shall be so stated in the memorandum of
14 registration. All fees on account of any memorandum of registra-
15 tion or entry of new certificates shall be paid by the commonwealth
16 or body politic or corporate or other authority which takes the
17 land.
1 Section 90. If land which was taken for a public use reverts by New certificate
2 operation of law to the owner from whom it was taken or to his o?°and.vei
3 heirs or assigns, the court, upon the petition of the person entitled xm' 562> § 91*
4 to the benefit of the reversion, after notice and a hearing, may
5 order the entry of a new certificate of title to him.
1252
KEGISTRATION, ETC., OF TITLES TO LAND.
[Chap. 128.
Transfer by
descent or
devise.
1898, 562, § 92.
TRANSFER BY DESCENT AND DEVISE.
Section 91. Upon the death of a registered owner his heirs at 1
law or devisees, upon the expiration of thirty days after the entry 2
of a decree of the probate court granting letters testamentary or of 3
administration, or in case of an appeal from such decree, at any 4
time after the entry of a final decree, may file a certified copy of 5
the final decree of the probate court and of the will, if any, with 6
the assistant recorder, and make application for the entry of a new 7
certificate. The court shall issue notice to the executor or adminis- 8
trator and to all other persons in interest, and may also give notice 9
by publication in such newspaper or newspapers as it may consider 10
proper, to all whom it may concern, and, after a hearing, may direct 11
the entry of a new certificate or certificates to the person or persons 12
entitled as heirs or devisees. Any new certificate so entered before 13
the final settlement of the estate of the deceased owner in the 14
probate court shall state expressly that it is entered by transfer from 15
the last certificate by descent or devise, and that the estate is in 16
process of settlement. After the final settlement of the estate in 17
the probate court, or after the expiration of the time allowed by 18
law for bringing an action against an executor or administrator by 19
creditors of the deceased, the heirs at law or devisees may petition 20
the court for an order to cancel the memorandum upon their certifi- 21
cate, stating that the estate is in course of settlement, and the court, 22
after notice and a hearing, may grant the petition ; but the liability 23
of heirs or devisees of registered land for claims against the estate 24
of the deceased shall not in any way be diminished or changed. 25
Executor's
right to sell,
etc., un-
affected.
1898, 562, § 93.
Section 92. The provisions of this chapter shall not in any way 1
affect or impair the jurisdiction of the probate court to license an 2
executor or administrator or guardian to sell or mortgage registered 3
land for any purpose for which a license may be granted in the case 4
of unregistered land. The purchaser or mortgagee who takes a 5
deed which is executed in pursuance of such license shall be entitled 6
to a new certificate of title, or memorandum of registration. 7
Assurance
fund.
1898, 562, § 94.
ASSURANCE FUND.
Section 93. Upon the original registration of land, and also 1
upon the entry of a certificate showing title as registered owners in 2
heirs or devisees, there shall be paid to the recorder one-tenth of 3
one per cent of the assessed value of the land, on the basis of the 4
last assessment for municipal taxation, as an assurance fund. 5
— custody and
investment of.
1898, 562, § 95.
Section 94. All money received by the recorder under the 1
provisions of the preceding section shall be paid to the treasurer 2
and receiver general, who shall keep it invested, with the advice 3
and approval of the governor and council, and shall report annually 4
to the general court the condition and income thereof. 5
Section 95. A
who, without
negligence
on his part,
1898, 562, § 96.
1
2
4!Sl Section »a. A person _
fro™- sustains loss or damage, or is deprived of land or of any estate or
interest therein after the original registration of land, by the regis- 3
tration of another person as owner of such land or of any estate or 4
Chap. 128.] registration, etc., or titles to land. 1253
5 interest therein, through fraud or in consequence of any error, omis-
6 sion, mistake or misdescription in any certificate of title or in any
7 entry or memorandum in the registration book, may bring an
8 action of contract in the superior court for the recovery of com-
9 pensation for such loss or damage or for such land or estate or
10 interest therein from the assurance fund ; but if the person who is
11 deprived of land or of any estate or interest therein in the manner
12 above stated has a right of action or other remedy for the recovery
13 of the land or of the estate or interest therein, he shall exhaust
14 such remedy before resorting to the action of contract herein pro-
15 vided. The provisions of this section shall not deprive the plaintiff
16 of any action of tort which he may have against any person for
17 such loss or damage, or deprivation of land or of any estate or
18 interest therein. But if the plaintiff elects to pursue his remedy in
19 tort, and also brings an action of contract under the provisions of
20 this chapter, the action of contract shall be continued to await the
21 result of the action of tort.
1 Section 96. If such action of contract is brought to recover for Action against
2 loss or damage or for deprivation of land or of any estate or in- receiver gen-
3 terest therein which arises wholly through any fraud, negligence, tm',m^h.
4 omission, mistake or misfeasance of the recorder, assistant recorder
5 or of any of the examiners of title, in the performance of executive
6 or ministerial duties, or of any of the assistants or clerks of the
7 recorder, in the performance of their respective duties, the action
8 shall be brought against the treasurer and receiver general as sole
9 defendant. If such action is brought to recover for loss or damage
10 or deprivation of land or of any estate or interest therein which
11 arises wholly through any fraud, negligence, omission, mistake or
12 misfeasance of some person or persons other than the recorder, assist-
13 ant recorder or the other officers and assistants above-named, or
14 which arises jointly through the fraud, negligence, omission, mis-
15 take or misfeasance of such other person and the recorder, assistant
16 recorder or other officers and assistants above-named, such action
17 shall be brought against both the treasurer and receiver general and
18 such other person or persons, as joint defendants.
1 Section 97. If there are defendants other than the treasurer Judgments,
2 and receiver general and judgment is entered for the plaintiff 1898, 562, § 98.'
3 against the treasurer and receiver general and against some or all
4 of the other defendants, execution shall issue against the other
5 defendants and be levied upon them. If the execution is returned
6 unsatisfied in whole or in part, and the officer returning the same
7 certifies that the amount due cannot be collected from the land or
8 goods of such other defendants, a justice of the superior court shall
9 direct the clerk to certify the amount due on the execution to the
10 auditor of the commonwealth, who shall thereupon audit and certify
11 the amount of the execution in the same manner as claims against
12 the commonwealth, and the treasurer and receiver general shall
13 pay the amount out of the assurance fund, without any further act
14 or resolve making an appropriation therefor.
15 If judgment in such action cannot for any reason be entered
16 against all or any of the other defendants it may be entered against
17 the treasurer and receiver general alone or against him and such of
1254 REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
the other defendants as are found to be liable, and against whom 18
judgment can lawfully be entered. If judgment is entered against 19
the treasurer and receiver general alone, whether in a case where he 20
is sole defendant or joint defendant with others, the justice of the 21
superior court before whom the action is tried shall direct the clerk 22
to transmit to the auditor a certificate of the entry of judgment and 23
of the amount due, and the treasurer and receiver general shall pay 24
the same upon the certificate of the auditor, as above provided. 25
ass^a^efund Section 98. If the assurance fund at any time is not sufficient 1
1898 8«>f T^*' *° meet the amount called for by such certificate of the auditor the 2
treasurer and receiver general shall make up the deficiency from 3
any funds in the treasury not otherwise appropriated ; and in such 4
case, any amounts thereafter received by the treasurer and receiver 5
general on account of the assurance fund shall be transferred to the 6
general funds of the treasury, until the amount paid on account of 7
the deficiency shall have been made up. 8
commonwealth Section 99. In every case in which payment has been made by 1
riKnteinwnen the treasurer and receiver general under the provisions of sec- 2
1898, 562, § 106. tion ninety-seven, the commonwealth shall be subrogated to all 3
rights of the plaintiff against any other parties or securities, and 4
the treasurer and receiver general shall enforce the same in behalf 5
of the commonwealth. Amounts so recovered by the treasurer and 6
receiver general shall be paid into the treasury of the common- 7
wealth to the account of the assurance fund. 8
ftmc^appiica- Section 100. The income of the assurance fund shall be added 1
1898 662n§ioie' to the principal and invested, until said fund amounts to two hun- 2
dred thousand dollars, and thereafter the income of such fund shall 3
be used to defray, as far as may be, the expenses of the administra- 4
tion of the provisions of this chapter, instead of being added to the 5
fund and accumulated. 6
whe°n.liable' Section 101. The assurance fund shall not be liable to pay for 1
i^,562, §102. any loss, damage or deprivation occasioned by a breach of trust, 2
whether express, implied or constructive, by any registered owner 3
who is a trustee, or by the improper exercise of any power of sale 4
in a mortgage. Nor shall any plaintiff recover as compensation in 5
an action of contract under the provisions of this chapter more than 6
the fair market value of the land at the time when he suffered the 7
loss, damage or deprivation thereof. 8
eic^of^ctioiis. Section 102. Actions of contract for compensation under the 1
1898, 562, § 103. provisions of this chapter by reason of any loss or damage or depri- 2
vation of land or any estate or interest therein shall be begun 3
within six years after the time when the cause of action accrued, 4
and not afterward ; but the plaintiff in an action for the recovery of 5
the land or estate or interest therein in accordance with the pro- 6
visions of section ninety-six may bring the action of contract for 7
compensation within one year after the termination of such action. 8
The action of contract herein provided shall survive to the personal 9
representative of the registered owner, unless barred in his lifetime ; 10
but the proceeds thereof shall be treated as real estate. 11
Chap. 128.] registration, etc., of titles to land. 1255
powers of attorney.
1 Section 103. Any person may, by attorney, procure land to Powers of.
2 be registered and convey or otherwise deal with registered land, i898™!C'§ 104.
3 but the letters of attorney shall be acknowledged and filed with the
4 recorder or the assistant recorder of the proper registry district,
5 and registered. Any instrument revoking such letters shall be
6 acknowledged and registered in like manner.
LOST DUPLICATE CERTIFICATES.
1 Section 104. If a duplicate certificate is lost or destroyed, or Lost duplicate
2 cannot be produced by a grantee, heir, devisee, assignee or other m^mTiios.
3 person who applies for the entry of a new certificate to him or for
4 the registration of any instrument, a suggestion of the fact of such
5 loss or destruction may be filed by the registered owner or other
6 person in interest and registered. The court may thereupon, upon
7 the petition of the registered owner or other person in interest,
8 after notice and a hearing, direct the issue of a new duplicate cer-
9 tificate, which shall contain a memorandum of the fact that it is
10 issued in place of a lost duplicate certificate, but shall in all re-
11 spects be entitled to like faith and credit as the original duplicate,
12 and shall thereafter be regarded as the original duplicate for all the
13 purposes of this chapter.
ADVERSE CLAIMS.
1 Section 105. "Whoever claims any right or interest in registered ^atosSe
2 land adverse to the registered owner which arises subsequent to the 1898> 5&, § 106-
3 date of original registration may, if no other provision is made in
4 this chapter for registering the same, make a statement in writing
5 setting forth fully his alleged right or interest, and how or under
6 whom it was acquired, and a reference to the volume and page of
7 the certificate of title of the registered owner, and a description of
8 the land in which the right or interest is claimed. The statement
9 shall be signed and sworn to, and shall state the adverse claimant's
10 residence, and designate a place at which all notices may be served
11 upon him. This statement shall be entitled to registration as an
12 adverse claim, and the court, upon the petition of any party in in-
13 terest, shall grant a speedy hearing upon the question of the validity
14 of such adverse claim, and shall enter such decree thereon as justice
15 and equity may require. If the claim is adjudged to be invalid,
16 the registration shall be cancelled. If the court, after notice and a
17 hearing, finds that a claim thus registered was frivolous or vexatious,
18 it may tax the adverse claimant double costs.
SURRENDER OF DUPLICATE CERTIFICATES.
1 Section 106. If the recorder or any assistant recorder is re- surrender of
2 quested to enter a new certificate in pursuance of an instrument tiflcates.6 ^
3 which purports to be executed by the registered owner, or by reason 1898* 562> § 107#
4 of any instrument or proceedings which divest the title of the regis-
5 tered owner against his consent, and the outstanding owner's dupli-
6 cate certificate is not presented for cancellation when such request
7 is made, the recorder or assistant recorder shall not enter a new
1256
REGISTRATION, ETC., OF TITLES TO LAND. [CHAP. 128.
certificate, but the person who claims to be entitled thereto may 8
apply by petition to the court. The court, after a hearing, may 9
order the registered owner or any person withholding the duplicate 10
certificate to surrender it, and direct the entry of a new certificate 11
upon such surrender. If the person withholding the duplicate cer- 12
tificate is not amenable to the process of the court, or if for any 13
reason the outstanding owner's duplicate certificate cannot be de- 14
livered up, the court may by decree annul it and order a new certif- 15
icate of title to be entered. Such new certificate and all duplicates 16
thereof shall contain a memorandum of the annulment of the out- 17
standing duplicate. 18
If an outstanding mortgagee's or lessee's duplicate certificate is 19
not produced and surrendered when the mortgage is discharged or 20
extinguished or the lease is terminated, like proceedings may be had 21
to obtain registration as in the case of the non-production of an 22
owner's duplicate. 23
Amendment,
etc., of certifi-
cates.
1898, 562, § 108.
AMENDMENT AND ALTERATION OF CERTIFICATES OF TITLE.
Section 107. No erasure, alteration or amendment shall be 1
made upon the registration book after the entry of a certificate of 2
title or of a memorandum thereon and the attestation of the same 3
by the recorder or an assistant recorder, except by order of the 4
court. A registered owner or other person in interest may at any 5
time apply by petition to the court, upon the ground that registered 6
interests of any description, whether vested, contingent, expectant 7
or inchoate, have terminated and ceased ; or that new interests have 8
arisen or been created which do not appear upon the certificate ; 9
or that any error or omission was made in entering a certificate or 10
any memorandum thereon, or on any duplicate certificate ; or that 11
the name of any person on the certificate has been changed ; or 12
that the registered owner has married, or if registered as married, 13
that the marriage has been terminated ; or that a corporation which 14
owned registered land and has been dissolved has not conveyed the 15
same within three years after its dissolution ; or upon any other 16
reasonable ground ; and the court shall have jurisdiction to hear and 17
determine the petition after notice to all parties in interest, and 18
may order the entry of a new certificate, the entry or cancellation of 19
a memorandum upon a certificate or grant any other relief upon such 20
terms, requiring security if necessary, as it may consider proper ; 21
but the provisions of this section shall not give the court authority 22
to open the original decree of registration, and nothing shall be 23
done or ordered by the court which shall impair the title or other 24
interest of a purchaser who holds a certificate for value and in good 25
faith, or his heirs or assigns, without his or their written consent. 26
Any petition filed under the provisions of this section and all 27
petitions and motions filed under the provisions of this chapter after 28
original registration shall be filed and entitled in the original case 29
in which the decree of registration was entered. 30
Service of
notice after
registration.
1898, 562, § 109.
SERVICE OF NOTICES AFTER REGISTRATION.
Section 108. All notices which are required by, or are given in 1
pursuance of, the provisions of this chapter by the recorder or any 2
assistant recorder, after original registration, shall be sent by mail 3
Chap. 128.] registration, etc., of titles to land. 1257
4 to the person to be notified to his residence and post office address
5 as stated in the certificate of title, or in any registered instrument
6 under which he claims an interest, in the office of the recorder or
7 assistant recorder, relating to the parcel of land in question.
8 All notices and citations directed by special order of the court
9 under the provisions of this chapter, after original registration, may
10 be served in the manner above stated, and the certificate of the
11 recorder shall be conclusive proof of such service; but the court
12 may in any case order different or further service, by publication
13 or otherwise.
FEES FOR REGISTRATION.
1 Section 109. The fees payable under the provisions of this Fees for regis-
2 chapter shall be as follows : — i898!0562, § no.
3 For every application to register land under the provisions of
4 this chapter and indexing, recording and transmitting it to the
5 recorder, when filed with assistant recorder, three dollars.
6 For every plan filed, seventy-five cents.
7 For indexing an instrument recorded while application for regis-
8 tration is pending, twenty-five cents.
9 For examining title, five dollars, and one-tenth of one per cent
10 of the value of the land.
11 For each notice by mail, twenty-five cents and the actual cost of
12 printing.
13 For all services by a sheriff under the provisions of this chapter,
14 the same fees as are now provided by law for like services.
15 For each notice by publication, twenty-five cents and the actual
16 cost of publication.
17 For entry of order dismissing application or decree of registra-
18 tion and sending memorandum to assistant recorder, one dollar.
19 For copy of decree of registration, one dollar.
20 For entry of original certificate of title and issuing one duplicate
21 certificate, three dollars.
22 For making and entering a new certificate of title, including issue
23 of one duplicate certificate, one dollar.
24 For each additional duplicate certificate after the first, fifty
25 cents.
26 For the registration of every instrument, whether single or in
27 duplicate or triplicate, including entering, indexing and filing same
28 and attesting registration thereof, and also making and attesting
29 copy of memorandum on one instrument or on a duplicate certifi-
30 cate when required, one dollar and fifty cents.
31 For making and attesting copy of memorandum on each addi-
32 tional instrument or duplicate certificate if required, fifty cents.
33 For filing and registering an adverse claim, three dollars.
34 For entering statement of change of residence or post office
35 address, including indorsing and attesting same on a duplicate cer-
36 tificate, twenty-five cents.
37 For entering any note in the entry book or in the registration
38 book, twenty-five cents.
39 For the registration of a suggestion of death or notice of issue
40 of a warrant in insolvency, twenty-five cents.
41 For the registration of a discharge or release of mortgage or
42 other instrument creating an encumbrance, fifty cents.
1258 ESTATES FOR YEARS AND AT WILL. [CHAP. 129.
For the registration of a memorandum or certificate of entry for 43
possession or deposition in proof thereof, fifty cents. 44
For the registration of any levy, or of any discharge or dissolu- 45
tion of any attachment or levy, or of any certificate of or receipt 46
for payment of taxes, or of any mechanic's lien or lien for labor or 47
materials, or notice of any pending action or of a judgment or 48
decree, fifty cents. 49
For indorsing on any mortgage, lease or other instrument a 50
memorandum of partition, one dollar. 51
For every petition filed under the provisions of this chapter after 52
original registration, one dollar. 53
For a certified copy of any decree or registered instrument, the 54
same fees as are provided by law for registers of deeds by chapter 55
two hundred and four. 56
In all cases not expressly provided for by law, the fees of all 57
public officers for any official duty or service under the provisions 58
of this chapter shall be at the same rate as those prescribed herein 59"
for like services. 60
PENALTY.
fraudulent Section 110. Whoever, with intent to defraud, sells and con- 1
i898V562noi5 veys registered land, knowing that an undischarged attachment or 2
any other encumbrance exists thereon which is not noted by 3
memorandum on the duplicate certificate of title, without in- 4
forming the grantee of such attachment or other encumbrance 5
before the consideration is paid, shall be punished by imprisonment 6
in the state prison for not more than three years or in jail for not 7
more than one year. 8
CHAPTER 129.
OF ESTATES FOR YEARS AND AT WILL.
certain estates Section 1. If land is demised for the term of one hundred 1
for vears to be
regarded as years or more, the term shall, so long as fifty years thereof remain 2
estates in fee J , ' , , ' : P - • ■, , xi • o
simple. unexpired, be regarded as an estate in tee simple as to every thing 6
r. s. 60,'§§ is, ' concerning the descent and devise thereof upon the decease of the 4
g.' s. 90, §§ 20, owner, the right of dower or of curtesy therein, the sale thereof 5
p.'s. i2i §i. °y executors, administrators, guardians or trustees, the levy of 6
ii2 Mass. 247. execution thereon, and the redemption thereof if mortgaged or 7
taken on execution ; and whoever holds as lessee or assignee under 8
such a lease shall, so long as fifty years of the term remain unex- 9
pired, be regarded as a freeholder for all purposes. 10
when1 dower Section 2. If curtesy or dower is assigned out of such land, 1
is assigned out the husband or widow and his or her assigns shall pay to the owner 2
1834, 162, § 3. ' of the unexpired residue of the term one-third of the rent reserved 3
g. s. 90) § 22) in the lease under which the wife or husband held the term. 4
P. S. 121, § 2.
Sufferance Section 3. Tenants at sufferance in possession of land or tene- 1
Jiawe for rent, ments shall be liable to pay rent therefor for such time as they may 2
P.' S.' 12i, § 3." OCCUpy Or detain the Same . 10 Allen, 260. 105 Mass. 486. 3
115 Mass. 367. 132 Mass. 346. 134 Mass. 238. 156 Mass. 209.
Chap. 129.] estates for years and at will. 1259
1 Section 4. A person who is in possession of land out of which ofe?anddepart
2 rent is due shall be liable for the amount or proportion of rent due mised lia°ie
for rftut
3 from the land in his possession although it is only a part of what r. s. 6o,'§22.
4 was originally demised. p.' s.' i2i, § 4.'
17 Mass. 440. 22 Pick. 565. 2 Met. 505. 8 Gray, 204.
1 Section 5 . Such rent may be recovered in an action of contract, Recovery of
sucll rent
2 and the deed of demise or other instrument in writing, if any, 1825,89, §'5.
3 showing the provisions of the lease, may be used in evidence by g. s. 90', § 26!
4 either party to prove the amount of rent due from the defendant. p' s' 121' § 6"
1 Section 6. Such action may be brought by or against executors Action for
2 and administrators for any arrears of rent accrued in the lifetime of or aga?nstby
3 the deceased parties, respectively, in the same manner as for debts if25™9°r§S5.etc*
4 due from or to the same parties in their lifetime on a personal con- g- 1- ™> § 24.
5 tract. P.'s.'i2i,§6:
1 Section 7. The provisions of the six preceding sections shall ^^^0/°*
2 not deprive landlords of any other legal remedy for the recovery of other remedies.
3 their rents, whether secured to them by lease or by law. g*. s! 90' § w.
J J p. s. 121, § 7.
1 Section 8. If land is held by lease of a person who has an Apportion-
ITlGIlt of l*f tit"
2 estate therein determinable on a life or on a contingency, and such 1869, 368, §§ 1-3.
3 estate determines before the end of a period for which rent is pay- 3 cush21206.8'
4 able, or if an estate which is created by a written lease or an estate 6 Alien,' 215."
5 at will is determined before the end of such period by surrender, \H J^8/ 1^-
6 either express or by operation of law, by notice to quit for non-
7 payment of rent, or by the death of any party, the landlord or his
8 executor or administrator may, in an action of contract, recover a
9 proportional part of such rent according to the portion of the last
10 period for which such rent was growing due which had expired at
11 such determination.
1 Section 9. If, upon the determination of a tenancy, in any Recovery back
2 manner mentioned in the preceding section, before the end of a advance whin
3 period for which rent is payable, the rent for such period has been terminated.
4 paid before such determination, a proportionate part of the rent so pfl'.m'.la.
5 paid, according to the portion of such period then unexpired, may
6 be recovered back in an action of contract.
1 Section 10. Debts for the rent of a dwelling house which is claims torrent
2 occupied by the debtor or his family shall be considered as claims necessaries!
3 for necessaries. 1859,127.
G. S. 90, § 29. P. S. 121, § 10. 8 Gray, 226. 1 Allen, 219.
1 Section 11. Upon the neglect or refusal to pay the rent due Termination of
2 according to the terms of a written lease, fourteen days' notice to toaquit^onr°noT
3 quit, given in writing by the landlord to the tenant, shall be suffi- £entment of
4 cient to determine the lease, unless the tenant, four days at least ^'f^'f^
5 before the return day of the writ, in an action brought by the land- (f5s'5<?6s3o-
6 lord to recover possession of the premises, pays or tenders to the isV, § 3. '
7 landlord or to his attorney all rent then due, with interest thereon scu'sh'.m
8 and with all costs of suit. 137 Mass. 13.
non-
1260
EASEMENTS.
[Chap. 130.
Termination
of tenancy at
will, by notice
to quit.
1825, 89, § 4.
R. S. 60, § 26.
G. S. 90, § 31.
P. S. 121, § 12.
13 Met. 277.
5 Cush. 133.
11 Cush. 93, 191.
11 Gray, 181.
7 Allen, 487.
14 Allen, 43.
103 Mass. 154.
Section 12. Estates at will may be determined by either party 1
by three months' notice in writing for that purpose given to the other 2
party ; and if the rent reserved is payable at periods of less than 3
three months, the time of such notice shall be sufficient if it is equal 4
to the interval between the days of payment ; and in all cases of neg- 5
lect or refusal to pay the rent due from a tenant at will, fourteen 6
days' notice to quit, given in writing by the landlord to the tenant, 7
shall be sufficient to determine the tenancy. 107 Mass. 406. 8
108 Mass. 150, 553. 126 Mass. 143. 137 Mass. 13. 165 Mass. 351.
113 Mass. 531. 136 Mass. 532. 157 Mass. 443. 172 Mass. 145.
CHAPTEE 130.
OF EASEMENTS.
Easements of
light and air
not to be ac-
quired by use.
1852, 144.
G. S. 90, § 32.
P. S. 122, § 1.
Section 1. Whoever erects a house or other building with win- 1
dows which overlook the land of another person shall not, by the 2
mere continuance of such windows, acquire an easement of light or 3
air so as to prevent the erection of a building on such land. 4
115 Mass. 204.
aTufreVbyufe0' Section 2. No person shall acquire by adverse use or enjoyment 1
fess'than1 for a right or privilege of way or other easement from, in, upon or over 2
twenty years, the land of another, unless such use or enjoyment is continued unin- 3
g". s'. 90, § 33*. terruptedly for twenty years, p. s. 122, §2. 2Cush. 191. 10 Alien, 557. 4
Acquirement
of easement by
use may be
prevented by
notice, etc.
1824, 52.
R. S. 60, § 2S.
G. S. 90, § 34.
1867, 302.
P. S. 122, § 3.
156 Mass. 453.
157 Mass. 443.
Such notice to
be a disturb-
ance of the
easement.
R. S. 119, § 14.
G. S. 154, § 14.
P. S. 122, § 4.
Section 3. If a person apprehends that a right of way or other 1
easement in or over his land may be acquired by custom, use or 2
otherwise by any person or class of persons, he may give public 3
notice of his intention to prevent any person from acquiring such 4
easement, by causing a copy of such notice to be posted in a conspic- 5
uous place upon the premises for six successive days, and the post- 6
ing of such copy shall prevent the acquiring of such easement by 7
use for any length of time thereafter ; or he may prevent a particular 8
person or persons from acquiring such easement by causing a copy of 9
such notice to be served upon him or them in the manner provided 10
by law for the service of an original summons in a civil action. Such 11
notice from the agent or guardian of the owner of land shall have 12
the same effect as a notice from the owner himself. A certificate, by 13
an officer qualified to serve civil process, of the fact that such copy 14
has been served or posted by him as above provided, if made upon 15
the original notice and recorded with it, within three months after the 16
service or posting, in the registry of deeds in the county or district 17
in which the land lies, shall be conclusive evidence of the service 18
or posting of such copy. 19
Section 4. A notice given under the provisions of the preced- 1
ing section shall be a disturbance of the easement to which it relates 2
which shall entitle the person who claims such easement to an 3
action for such disturbance for the purpose of trying the right ; 4
and if he prevails in such action, he shall be entitled to full costs 5
although he recovers only nominal damages. 6
Chap. 131.] homesteads. 1261
CHAPTEE 131.
OF HOMESTEADS.
1 Section 1. A householder who has a family shall be entitled ^tS|sstead
2 to an estate of homestead, to the extent in value of eight hundred i|ji> j^o, § i.
3 dollars, in the farm or lot of land and buildings thereon which is lpy! 29s) § i!
4 owned or rightly possessed by lease or otherwise and occupied by p.' s.' 123,' § 1.'
5 him as a residence, and such estate shall be exempt from attachment, i6Gray,4i46.
6 levy on execution and sale for the payment of his debts or legacies f j^tn, lihm'
7 and from the laws of conveyance, descent and devise, except as here- nij}|£' iff;
8 inafter provided. 12 Allen, 30. 13 Allen, 286. 97 Mass. 392.
100 Mass. 234. 101 Mass. 418, 426. 138 Mass. 542. 161 Mass. 276.
1 Section 2. To create such estate of homestead, the fact that it -acquisition
2 is designed to be held as a homestead shall be set forth in the deed issi, 340, § 3.
3 of conveyance by which the property is acquired ; or, after the title g. s. 104, § 2.
4 has been acquired, such design may be declared by a writing duly 6 Alien, if 7?'
5 signed, sealed and acknowledged and recorded in the registry of deeds n AUen' 37,
6 for the county or district in which the property is situated. The
7 acquisition of a new estate of homestead shall defeat and discharge
8 any such previous estate.
1 Section 3. All existing estates of homestead, which have been Former rights
2 acquired under any law heretofore in force, shall continue to be held saved"68*6*
3 and enjoyed notwithstanding the repeal of such law ; and the pro- \H°[ HI, !§7i,
4 visions of the preceding section shall not require the design so to g.'s. 104, §3.
5 hold the same to be declared and recorded anew; but no person Jg"!;^23*^3'
6 shall hold, exempted as a homestead, property to the value of more 6 Aiien/510'.
7 than eight hundred dollars. i6i Mass. 276.
1 Section 4. No property shall, by virtue of the provisions of this Homestead
2 chapter, be exempt from sale for taxes, or from levy for a debt con- !xempt°from
3 tracted for the purchase thereof, or for a debt contracted before the ££7 for taxes>
4 deed or writing required by section two is recorded, or before Jljg' Ijfg' f |-
5 the estates of homestead mentioned in the preceding section were i857| 298^ § 4.
6 acquired ; nor shall buildings on land which is not owned by the p.' s." 123,' § 4.'
7 householder be exempt from sale or levy for the ground rent of the il Gray, 1I2,
8 lot of land whereon they stand. 10 Alien, 146. 11 Alien, 145. 6Aiien, 427.
1 Section 5. No estate of homestead shall affect a mortgage, lien Previous mort
2 or other encumbrance previously existing. unaffected.
1855, 238, § 4. 1857, 298, § 5. G. S. 104, § 6. P. S. 123, § 5. 1851> 340' § 5"
1 Section 6. Property which is subject to a mortgage executed bom^tead*01
2 before an estate of homestead was acquired therein, or executed estate subject
3 afterward and containing a release thereof, shall be subject to an gafe.10rD
4 estate of homestead, except as against the mortgagee and those p.' s." 123,' § t
5 claiming under him, in the same manner as if there were no such
6 mortgage. If the owner of the equity in such property redeems the
7 mortgage, he shall not be allowed to claim under it against the
8 owner of the estate of homestead, his widow, heirs or assigns, but
1262
HOMESTEADS.
[Chap. 131.
if said owner of the estate of homestead, his widow, heirs or assigns 9
offers to redeem the residue above the homestead estate and the 10
mortgage from a sale or set-off on execution and the judgment cred- 11
itor has redeemed the mortgage, the amount paid for such redemp- 12
tion of the mortgage, with interest and expenses, shall be included 13
in the amount to be paid for the redemption of said residue. 14
Release of
homestead
rights.
1S51.340, §§1,6.
1S55, 238, §§1,5.
1857, 298, §§ 1, 3,
6-8, 10, 12, 13.
G. S. 104, §§ 7, S.
P. S. 123, § 7.
11 Gray, 214,
332.
15 Gray, 139.
16 Gray, 146.
2 Allen, 202, 390.
4 Allen, 516.
6 Allen, 401.
14 Allen, 1.
99 Mass. 7.
100 Mass. 234.
101 Mass. 426.
Section 7. No conveyance of property in which an estate of
homestead exists, and no release or waiver of such estate, shall
convey the part so held and exempted, or defeat the right of the
owner or of his wife and children to a homestead therein, unless
such conveyance is by a deed in which the wife of the owner joins
for the purpose of releasing such right in the manner in which she
may release her dower, or unless such right is released as provided
in chapter one hundred and fifty-three ; but a deed duly executed
without such release shall be valid to pass, according to its
terms, any title or interest in the property beyond the estate of
homestead . 121 Mass. 19.
137 Mass. 30. 140 Mass. 64. 156 Mass. 114. 161 Mass. 276.
1
2
3
4
5
6
7
8
9
10
11
Homestead
estate, contin-
uance of, after
death of house-
holder.
1851, 340, § 2.
1855, 238, § 2.
1857, 298, § 2.
G. S. 104, § 12.
P. S. 123, § 8.
5 Allen, 146.
11 Allen, 194.
97 Mass. 136,
392.
lOOMass. 234.
131 Mass. 186,
446.
136 Mass. 2S6.
Section 8. The estate of homestead existing at the death of a 1
householder shall continue for the benefit of his widow and minor 2
children, and shall be held and enjoyed by them, if one of them or a 3
purchaser under the provisions of section ten occupies the premises, 4
until the youngest child is twenty-one years of age and until the 5
marriage or death of the widow. But all the right, title and 6
interest of the deceased in the premises in which such estate exists, 7
except the estate of homestead thus continued, shall be subject to 8
the laws relating to devise, descent, dower and sale for the payment 9
of debts and leo;acieS. 141 Mass. 187. 161 Mass. 276. 10
widow or chu. Section 9. If a widow or minor children are entitled to an 1
dren. estate of homestead as provided in the preceding section, it may 2
g. s. 104, § 13. be set off to them in the same manner as dower. 5 Alien, 77. 3
BAllAn. W7K. 9AiieTi.9a3.a13. 97 Mass. 392. 101 Mass. 418. 131 Mass. 186.
8 Allen, 575.
9 Allen, 239, 242.
— sale of rights
of widow, etc.,
in.
G. S. 104, § 14.
P. S. 123, § 10.
11 Allen, 194.
Section 10. The widow and the guardian of the minor children, 1
if he has obtained a license therefor from the probate court as in 2
the case of sales of land of minors, may join in a sale of an estate 3
of homestead ; or, if there is no widow entitled to rights therein, 4
the guardian may, upon obtaining such license, make sale of such 5
estate ; and the widow may make such sale if there are no minor 6
children. The purchaser shall enjoy and possess the premises for 7
the full time that the widow and children or either of them might 8
have continued to hold and enjoy them if no sale had been made. 9
The probate court may apportion the proceeds of the sale among 10
the parties entitled thereto. 11
property in* Section 11. If an estate of homestead exists in property in 1
which estate which other parties have an interest, the party entitled to the home- 2
of homestead , ' • . -i • i i o
exists. stead, or any other party interested in such property, may have par- 3
g. s. 104, §9.' ti tion thereof like tenants in common. p. s. 123, §n. 4
Set-off of
homestead
estnte of in-
solvent.
Section 12. If the property of a debtor is assigned under the 1
laws relative to insolvent debtors, and such debtor claims, and 2
Chap. 132.] eights of husband and wife. 1263
3 it appears to the court wherein the proceedings in insolvency are 1857, 298, § w.
4 pending, that he is entitled to hold a part thereof as a homestead and p.' I; 123,' 1 12.'
5 that the property in which such estate of homestead exists is of greater 12 Allen' 30"
6 value than eight hundred dollars, the court shall cause the property to
7 be appraised by three disinterested appraisers, one of whom shall be
8 appointed by the insolvent, one by the assignee and the third by the
9 court ; or if either the assignee or insolvent neglects to appoint, the
10 court shall appoint for him. The appraisers shall be sworn faithfully
11 and impartially to appraise the property, and shall appraise and set
12 off an estate of homestead therein to the insolvent debtor in the
13 manner prescribed in the following section in case of a judgment
14 debtor ; and the residue shall vest in and be disposed of by the
15 assignee in the same manner as property which is not exempt by
16 law from levy on execution. The appraisers shall be entitled to the
17 same fees, to be paid out of the estate in insolvency, as are allowed
18 to an appraiser of land seized upon execution.
1 Section 13. If a judgment creditor requires an execution to be Levy of execu.
2 levied on property which is claimed by the debtor to be as a home- propertynin
3 stead exempt from such levy, and if the officer who holds such ^ead^xists"
4 execution is of opinion that the premises are of greater value than Jjjj>i« 340, § 7.
• 1 1 111 11 • 1111 • i • 1 -looo, 23s, § D.
5 eight hundred dollars, appraisers shall be appointed to appraise the i857, 29s, § 15.
6 property in the manner provided by law for an appraisal in the case g. s. 164, § 11.
7 of the levy of an execution on land. If, in the judgment of the ap- 11 GraySr?.3'
8 praisers, the premises are of greater value than eight hundred 99Ma°3'. 70.1'
9 dollars, they shall set off to the judgment debtor so much of the
10 premises, including the dwelling house, in whole or in part, as shall
11 appear to them to be of the value of eight hundred dollars ; and
12 the residue of the property shall be levied upon and disposed of in
13 like manner as land which is not exempt from levy on execution ;
14 and if the property levied on is subject to a mortgage, it may be set
15 off or sold subject to the mortgage and to the estate of homestead,
16 in like manner as land which is subject to a mortgage only.
CHAPTEE 132.
OF THE RIGHTS OF A HUSBAND IN THE REAL PROPERTY OF HIS DE-
CEASED WIFE, AND THE RIGHTS OF A WIFE IN THAT OF HER
DECEASED HUSBAND.
1 Section 1. A husband shall, upon the death of the wife, hold Rights of hus-
,.,„, n ..- t ' • t • J» n 1 in 1 band or widow
2 one-third of ner land lor his lite. Such estate shall be known as mreaiprop-
3 his tenancy by curtesy, and the provisions of law applicable to other0
4 dower shall be applicable to curtesy. A wife shall, upon the death mfcs%*h-
5 of her husband, hold her dower at common law in her deceased isol; 90', §§i4, 5'
6 husband's land. Such estate shall be known as her tenancy by r1!; 60 f/i, 17.
7 dower. But in order to be entitled to such curtesy or dower the ^ |g|- . 4'
8 surviving husband or wife shall file his or her election and claim <| ^ 9o,'§§ i,
9 therefor in the registry of probate within one year after the date isfo, 83.
10 of the approval of the bond of the executor or administrator of the p. s'. 124', §§ i, 3.
11 deceased, and shall thereupon hold instead of the interest in real prop- ill; m] |§2i,2.
12 erty given in section three of chapter one hundred and forty, curtesy ^Gr'ay,0^5*
1264
RIGHTS OF HUSBAND AND WIFE.
[Chap. 132.
2 Allen, 45.
113 Mass. 248.
150 Mass. 84,
289
167Mass. 575.
169 Mass. 213.
171 Mass. 312.
173 Mass. 529.
174 Mass. 582.
or dower, respectively, otherwise such estate shall be held to be 13
waived. Such curtesy and dower may be assigned by the probate 14
court in the same manner as dower is now assigned, and the ten- 15
ant by curtesy or dower shall be entitled to the possession and 16
profits of one undivided third of the real estate of the deceased from 1 7
her or his death until the assignment of curtesy or dower, and to all 18
remedies therefor which the heirs of the deceased have in the resi- 19
due of the estate. Rights of curtesy which exist when this chapter 20
takes effect maybe claimed and held in the manner above provided, 21
but in such case the husband shall take no other interest in the real 22
or personal property of his wife, and, except as preserved herein, 23
curtesy at common law is abolished. 24
Rights of
husband or
widow in
real property
of the other.
1874, 184, § 2.
P. S. 124, § 2.
Section 2. If a deed of land is made to a married woman, who,
at the time of its execution, mortgages such land to the grantor
to secure the payment of the whole or a part of the purchase money,
or to a third person to obtain the whole or a part of such purchase
money, her seisin shall not give her husband an estate by the curtesy
as against such mortgagee.
1
2
3
4
5
6
Wife not dow-
able in wild
land.
R. S. 60, § 12.
1854, 406, § 2.
G. S. 90, §§ 12,
15.
P. S. 124, § 4.
Section 3. A widow shall not be entitled to dower in wild land 1
of which her husband dies seised, except wood lots or other land 2
used with his farm or dwelling house, nor in such land which is 3
conveyed by him although it is afterward cleared. 4
15 Mass. 164. 1 Pick. 21. 7 Pick. 143. 17 Pick. 248.
Dower in hus-
band's right of
redemption.
R. S. 60, § 2.
G. S. 90, § 2.
P. S. 124, § 5.
15 Mass. 278.
12 Cush. 288.
6 Gray, 314.
7 Gray, 148.
100 Mass. 224.
101 Mass. 428.
105 Mass. 119.
Section 4. If, upon a mortgage made by a husband, his wife has
released her right of dower, or if a husband is seised of land subject
to a mortgage which is valid and effectual as against his wife, she
shall nevertheless be entitled to dower in the land mortgaged as
against every person except the mortgagee and those claiming under
him. If the heir or other person who claims under the husband re-
deems the mortgage, the widow shall either repay such part of the
money which was paid by the person so redeeming as shall be equal
to the proportion which her interest in the land mortgaged bears to
the whole value thereof or, at her election, she shall be entitled to
dower according to the value of the estate after deducting the money
paid for redemption.
1
2
3
4
5
6
7
8
9
10
11
12
— how re-
leased.
1697, 21, § 3.
1783, 37, § 5.
1823, 146, § 1.
R. S. 60, § 7.
1856, 169.
G. S. 90, § 8.
P. S. 124, § 6.
7 Mass. 14.
18 Pick. 9.
6 Cush. 196.
Section 5. A married woman may bar her right of dower in 1
land which is conveyed by her husband or by operation of law by 2
joining in the deed conveying the land and therein releasing her 3
right to dower, or by releasing the land by a subsequent deed ex- 4
ecuted either separately or jointly with her husband. Her dower 5
may also be released in the manner provided in chapter one hundred 6
and fifty-three. 7
4 Gray, 600.
107 Mass. 328.
137 Mass. 30.
— how barred
by jointure
before mar-
riage.
R. S. 60, § 8.
G. S. 90, § 9.
P. S. 124, § 7.
7 Mass. 153.
2 Cush. 467.
97 Mass. 195.
Section 6. A woman may also be barred of her dower in all the 1
land of her husband by a jointure settled on her with her assent 2
before her marriage, if such jointure consists of a freehold estate in 3
land for her life at least and is to take effect in possession or profit 4
immediately upon the death of her husband. Her assent to such 5
jointure shall be expressed, if she is of full age, by her becoming a 6
Chap. 132.] rights of husband and wife. 1265
7 party to the conveyance by which it is settled, and, if she is under
8 age, by her joining with her father or guardian in such conveyance.
1 Section 7. A pecuniary provision, made for the benefit of an in- Dower, how
2 tended wife and in lieu of dower, shall, if assented to as provided pecuniary
3 in the preceding section, bar her dower in all the land of her hus- r™s?<5cC§'9.
4 band. 15 Mass. 106. 2Cush. 467. 5 Allen, 187. 9 Allen, 234. P.' f .' 124.V8.'
1 Section 8. Such jointure or pecuniary provision, if made after waiver of
2 marriage, or made before marriage and without the assent of the in- without wife's
3 tended wife, shall bar her dower, unless within six months after the marriage.after
4 death of her husband she makes her election to waive such jointure g. I'. 9o' § n!
5 or provision. If the husband dies while absent from his wife, she K-„^vl24' ^
n • /»-|»-|-|»t»1»l 1 * JMiiSS. lei.
6 shall have six months after notice of his death within which to make
7 such election ; and she shall in all cases have six months after notice
8 of the existence of such jointure or provision within which to make
9 such election.
1 Section 9. If a widow is entitled by the provisions of law, Assignment of
2 by deed of jointure, or under the will of her husband, to an undi- teresunhus-
3 vided interest in his land either for life or during widowhood and ifnot dfspited.
4 her right is not disputed by his heirs or devisees, such interest ^o'm.§3'
5 may be assigned to her, in whatever counties the land lies, by the g5s 9o'««3 17
6 probate court for the county in which the estate of her husband is i87|, sb! '
7 settled. Such assignment may be made upon her petition or, if she 9 Mass. 9.
8 does not petition therefor within one year after the decease of her 4 cush. 257.
9 husband, upon petition by an heir or devisee of her husband, by 121 Mass! 267.
10 any person having an estate in the land subject to such interest or 153Mas8-*6-
11 by the guardian of any such heir, devisee or person.
1 Section 10. Upon such petition, the court shall issue a warrant f^ be sefofft)
2 to three discreet and disinterested persons, who shall be sworn to metes and
3 perform their duty faithfully and impartially and who shall set off of rents.
4 the widow's interest by metes and bounds if it can be so done with- 1733, 40, §3. "
5 out damage to the whole estate. But if the estate out of which a g! ii 90) f f I,' 1'
6 widow's interest is to be assigned consists of a mill or other tene- f j^ss!4^.11'
7 ment which cannot be divided without damage to the whole, such isMass. 164.
8 interest may be assigned out of the rents or profits thereof, to be
9 had and received by the widow as a tenant in common with the
10 other owners of the estate.
1 Section 11. If a woman is entitled to an undivided interest in Provision if
2 land which is owned by her husband as tenant in common, the pro- tenanTin18
3 bate court, upon petition by her or by any person entitled to petition im^73n'
4 for assignment of her interest in her husband's land, after notice as Svl'g^.' §4'
5 in case of other partitions, may empower the commissioners to make p- s- 124> § 12-
6 partition of the land so owned in common, and then to assign to the
7 widow her interest in the portion set off to the estate of her hus-
8 band.
1 Section 12. If a widow is entitled to an interest in land of dai^hemay
2 which her husband died seised, she may, without having her interest o^upyin^n
3 assigned, continue to occupy such land with the heirs or devisees common with
1266
DESCENT OF REAL PROPERTY.
[Chap. 133.
1816, 84.
E. S. 60, § 6.
G. S. 90, § 7.
P. S. 124, § 13.
161 Mass. 140.
170 Mass. 543.
Limitation for
claim of
interest in
realty.
1858, 56.
G. S. 90, § 6.
P. S. 1-24, § 14.
1899, 479, § 4.
1900, 450, § 6.
7 Met. 24.
161 Mass. 140.
Re-endowment
of woman if
evicted.
R. S. 60, § 13.
G. S. 90, § 13.
P. S. 124, § 15.
13 Mass. 162.
1 Met. 66.
of the deceased, or to receive her share of the rents or profits 4
thereof, so long as such heirs or devisees do not object thereto ; and 5
when the heirs or devisees or any of them desire to hold or occupy 6
their share in severalty, the widow may claim her interest and shall 7
have it assigned to her according to law. 8
Section 13. No surviving husband or widow of a deceased per- 1
son shall make claim for an interest in the real estate of such de- 2
ceased or begin an action or other proceeding for the recovery 3
thereof unless such claim or action is made or begun within twenty 4
years after the decease of the wife or husband or after he or she has 5
ceased to occupy, or receive the profits of, his or her share of such 6
real estate, except that if at the time of such decease the surviv- 7
ing husband or widow is absent from the commonwealth, under 8
twenty-one years of age, insane or imprisoned, he or she may make 9
such claim or begin such action or proceeding at any time within 10
twenty years after such disability ceases. 11
Section 14. If a woman is lawfully evicted of land which has 1
been assigned to her as dower or settled upon her as jointure, or is 2
deprived of the provision made for her by will or otherwise in lieu 3
of dower, she may be endowed anew in like manner as if such 4
assignment, jointure or other provision had not been made. 5
CHAPTER 133.
or the descent of real property.
Descent of real
property of in-
testates regu-
lated.
C. L. 158, § 3.
1692-3, 14, § 1.
1710-11, 2, § 1.
1719-20, 10, § 4.
1734-5, 16.
1783, 36, § 1.
1789, '2.
1805, 90, § 1.
R. S. 61, §§ 1, 12.
G.S.91, §§1,11.
1876, 220, §§ 1, 3.
1880, 219.
P. S. 125, § 1.
20 Pick. 514.
3 Met. 1S7.
9 Met. 28.
6 Cush. 156.
1 Gray, 284.
129 Mass. 266.
149 Mass. 39.
167 Mass. 499.
130 Mass. 178.
132 Mass. 528.
Section 1. When a person dies seised of land, tenements or 1
hereditaments, or of any right thereto, or entitled to any interest 2
therein, in fee simple or for the life of another, not having lawfully 3
devised the same, they shall descend, subject to his debts and to the 4
rights of the husband or wife and minor children of the deceased as 5
provided in the two preceding chapters and in chapter one hundred 6
and forty, in manner following : — 7
First, In equal shares to his children and to the issue of any de- 8
ceased child by right of representation ; and, if there is no surviving 9
child of the intestate, then to all his other lineal descendants. If all 10
such descendants are in the same degree of kindred to the intestate, 11
they shall share the estate equally ; otherwise, they shall take 12
according to the right of representation. 13
Second, If he leaves no issue, then in equal shares to his father 14
and mother. 15
Third, If he leaves no issue nor mother, then to his father. 16
Fourth, If he leaves no issue nor father, then to his mother. 17
Fifth, If he leaves.no issue and no father or mother, then to his 18
brothers and sisters and to the issue of any deceased brother or sister 19
by right of representation ; and, if there is no surviving brother or 20
sister of the intestate, then to all the issue of his deceased brothers 21
and sisters. If all such issue are in the same degree of kindred to 22
the intestate, they shall share the estate equally ; otherwise, they 23
shall take according to the right of representation. 24
Chap. 134.] general provisions relative to real property. 1267
25 Sixth, If he leaves no issue, and no father, mother, brother or m Mass. 389.
26 sister, and no issue of any deceased brother or sister, then to his 149 Mass.' 502.'
27 next of kin in equal degree ; but if there are two or more collateral
28 kindred in equal degree claiming through different ancestors, those
29 who claim through the nearest ancestor shall be preferred to those
30 claiming through an ancestor who is more remote.
31 Seventh, If an intestate leaves no kindred and no widow or 16 Pick. 177.
32 husband, his or her estate shall escheat to the commonwealth.
1 Section 2. The degrees of kindred shall be computed according Degrees of
2 to the rules of the civil law ; and the kindred of the half blood shall nss, 36, §1.
3 inherit equally with those of the whole blood in the same degree. R0s.6i, §5.
P. S. 125, § 2. 12 Mass. 489. 5 Cush. 232. 116 Mass. 562. G> S< 91' § 5-
1 Section 3. An illegitimate child shall be heir of his mother and chuft^beheir
2 of any maternal ancestor, and the lawful issue of an illegitimate if2giiy£other-
3 person shall represent such person and take by descent any estate R_s. ei,"§ 2.
4 which such person would have taken if living. g.°s\ 9i,*§ 2.
PS 12^ S 3
11 Met. 294. 108 Mass. 40. 113 Mass. 430. 172 Mass. 473. ' s
1 Section 4. If an illegitimate child dies intestate and without ^eir 0rf of' to
2 issue who may lawfully inherit his estate, such estate shall descend ^2| v®.
3 to his mother or, if she is not living, to the persons who would g! a. aij § s.
4 have been entitled thereto by inheritance through his mother if he 1882,132.'
5 had been a legitimate child. 4 Pick. 93. 149 Mass. 502.
1 Section 5 . An illegitimate child whose parents have intermarried, ^fered leSti.
2 and whose father has acknowledged him as his child, shall be consid- ™a*e',}Ihen-
. . to 1832, 147.
3 ered legitimate. 1853,253. g. s. 91, §4. r. s. 6i, §4.
P. S. 125, § 5. 5 Allen, 257. 8 Allen, 551.
1 Section 6. Inheritance or succession by right of representation construction
2 is the taking by the descendants of a deceased heir of the same r. s.reif § 13.
3 share or right in the estate of another person as their parent would £; |; i^.VI'
4 have taken if living. Posthumous children shall be considered as
5 living at the death of their parent.
CHAPTEE 134.
GENERAL PROVISIONS RELATIVE TO REAL PROPERTY.
1 Section 1. Aliens may take, hold, transmit and convey real 4keTndcon-
2 property, and no title to real property shall be invalid on account vey real prop.
3 of the alienage of a former owner ; but the provisions of this section 1852/29, 86.
4 shall not defeat the title to any real property heretofore released or p.' s." 126, § i."
5 conveyed by the commonwealth or by authority thereof. ioo^Cass3527.
1 Section 2 . If a contingent remainder, executory devise or other contingent
2 estate in expectancy, is so granted or limited to a person that in alienable.
3 case of his death before the happening of the contingency the g". s". 90, § 37.
4 estate would descend to his heirs in fee simple, he may, before the f Me'tite? 2"
1268
GENERAL PROVISIONS RELATIVE TO REAL PROPERTY. [CHAP. 134.
i2?Mas839i98. happening of the contingency, sell, assign or devise the land 5
125 Mass. 356. subject to the Contingency. 126 Mass. 230. 139 Mass. 262. 6
Estates tail
liable for
debts, etc.
1791, 60, § 2.
R. S. 60, § 29.
G. S. 90, § 36.
P. S. 126, § 3.
4 Mass. 189.
3 Gray, 162.
Section 3. Land held in fee tail, except an estate tail in re- 1
mainder, shall be liable for the debts of the tenant in tail, both in 2
his lifetime and after his decease, as if held in fee simple ; and if 3
taken on execution or sold by executors, administrators or guar- 4
dians, the creditor or purchaser shall hold such land in fee simple. 5
eten,vte0yraiite,s' Section 4. If land is granted or devised to a person and after
toitefrSmainder n^s death to his heirs in fee, however the grant or devise is ex-
^°<Sc21o9, pressed, an estate for life only shall vest in such first taker, and a
1/91, 60, § 3. x . . ? . . . . •/ .
r. s. 59, §9. remainder m tee simple in his heirs.
G. S. 89, § 12. 4 Gray, 353. 120 Mass. 106. 157 Mass. 53.
P. S. 126, § 4. 16 Gray, 568. 131 Mass. 323. 163 Mass. 69.
1 Met. 281. 99 Mass. 454. 149 Mass. 200.
1
2
3
4
Effect of words
" die without
issue", etc.
1888, 273.
153 Mass. 374.
Section 5. In a limitation of real or personal property by deed, 1
will or other instrument in writing executed after the thirtieth day 2
of April in the year eighteen hundred and eighty-eight, the words 3
" die without issue ", or " die without leaving issue ", or " have no 4
issue", or "die without heirs of the body", or other words im- 5
porting either a want or failure of issue of any person in his life- 6
time or at the time of his death, or an indefinite failure of his issue, 7
shall, unless a contrary intention clearly appears by the instrument 8
creating such limitation, mean a want or failure of issue in the life- 9
time or at the time of the death of such person, and not an indefi- 10
nite failure of his issue. 11
— of con-
veyances and
devises to two
or more per-
sons.
1785, 62, § 4.
R. S. 59, §§ 10,
11.
G. S. 89, §§ 13,
14.
P. S. 126, §§ 5, 6.
1885, 237.
5 Mass. 343.
7 Mass. 131.
11 Mass. 469.
Section 6. A conveyance or devise of land to two or more 1
persons or to husband and wife, except a mortgage or a devise or 2
conveyance in trust, shall create an estate in common and not in 3
joint tenancy, unless it is expressed in such conveyance or devise 4
that the grantees or devisees shall take jointly, or as joint tenants, 5
or in joint tenancy, or to them and the survivor of them, or unless 6
it manifestly appears from the tenor of the instrument that it was 7
intended to create an estate in joint tenancy. 8
16 Mass. 59.
16 Pick. 491.
4 Cush. 111.
5 Cush. 153.
6 Gray, 428.
8 Gray, 154.
16 Gray, 308.
2 Allen, 115.
110 Mass. 396.
141 Mass. 219.
154 Mass. 537.
158 Mass. 11.
ten°anteforirfe Section 7. A conveyance by a tenant for life or years which 1
r ise59% 6 purports to grant a greater estate than he possesses or can lawfully 2
g. s. 89', § 9! convey shall not work a forfeiture of his estate, but shall pass to the 3
grantee all the estate which such tenant can lawfully convey. 4
Sta^nouo be Section 8. No expectant estate shall be defeated or barred by 1
aefeatedb^ act an alienation or other act of the owner of the precedent estate, nor 2
precedent bv the destruction of such precedent estate by disseisin, forfeiture, 3
estate etc
r. s. 59, §7. surrender or merger. 4
G. S. 89, § 10. P. S. 126, § 8. 1 Allen, 230. 171 Mass. 504.
precedfnglec- Section 9. The provisions of the two preceding sections shall
tions. not prevent the barring of estates tail in the manner provided in
1
2
Chap. 134.] general provisions relative to real property. 1269
3 chapter one hundred and twenty-seven, nor an expectant estate from r. s. 59, § s.
4 being defeated in a manner provided for or authorized by the person p.' s.' 126, § 9.'
5 creating such estate.
1 Section 10. Fixtures annexed to the freehold by a life tenant j^J^^0*^
2 or by his assigns may be removed during the continuance of the life tenant
3 estate or within a reasonable time after its determination; and in p.'s. iW,§§io>
4 determining what are fixtures, the rules of the common law which
5 prevail between a landlord and a tenant for years shall govern.
6 The provisions of this section shall not affect the right of the owner
7 of land to make a different provision by will or otherwise as to the
8 removal of fixtures, nor impair or affect the provisions of any will or
9 other instrument by which an estate for life in land is created or
10 limited.
1 Section 11. If the supreme judicial court or the probate court Provision for
2 for the county in which the land lies finds that wood or tim- ingwood
3 ber, standing on land the use and improvement of which belongs, e"tatefetce
4 for life or otherwise, to a person other than the owner of the fee r1|.96o,§§33-
5 therein, has ceased to improve by growth, or ought for any cause to fJ;Si 90) §§39_
6 be cut, it may appoint a trustee to sell and convey said wood or *|g9 u
7 timber to be cut and carried away within a time to be limited in the p- s. 126, § 12.
8 order of sale, to hold and invest the proceeds thereof after paying
9 therefrom the expenses of such sale, to pay over the income, above
10 the taxes and other expenses of the trust, to the person entitled to
11 such use and improvement while his right thereto continues, and
12 thereafter to pay the principal of the fund to the owner of such
13 land. If wood or timber has been cut as aforesaid, no more thereof
14 shall be cut on such land by the person entitled to such use and im-
15 provement without permission from said court. Such sale if au-
16 thorized by a probate court, shall be made in the manner provided
17 by law for the sale of real property by guardians ; and if such sale
18 is authorized by the supreme judicial court, the trustees shall give
19 to such person as the court shall designate a bond, for the use and
20 benefit of the persons interested in the proceeds of the sale, with
21 condition for the faithful discharge of the trust ; and the court may
22 from time to time remove the trustee, and appoint another in his
23 stead.
1 Section 12. A writ of entry, petition for partition or other pro- Proceedings
2 ceeding, either at law or in equity, which affects the title to real t<freai?y wnd-
3 property or the use and occupation thereof or the buildings thereon, p°fties?when.
4 shall not have any effect except against the parties thereto, their J>87^ f^ l5^3,
5 heirs and devisees and persons having actual notice thereof, until 1897,463.'
6 a memorandum containing the names of the parties to such pro-
7 ceeding, the court in which it is pending, the date of the writ or
8 other commencement thereof, the name of the city or town in which
9 the real property liable to be affected thereby is situated and a de-
10 scription of such real property sufficiently accurate for identification
11 is recorded in the registry of deeds for the county or district in
12 which such real property is situated ; but the provisions of this
13 section shall not apply to attachments, levies of execution or pro-
14 ceedings in the probate courts.
1270 GENERAL PROVISIONS RELATIVE TO REAL PROPERTY. [CHAP. 134.
tm°ate °l final Section 13. At any time after final judgment or a decree in favor 1
disposition oi of the defendant, or after the discontinuance, dismissal or other 2
iotv^.TI.' final disposition, by consent of parties or otherwise, of a proceed- 3
. .126, §i . -ng mentioned in the preceding section, or in case of the non-entry 4
of the writ, petition or bill of complaint, the clerk of the court 5
wherein such judgment, decree, discontinuance, dismissal or other &
final disposition is recorded, or out of which such writ issued or 7
to which such petition or bill of complaint was addressed, shall 8
upon demand give a certificate of the fact of such judgment, decree, 9
discontinuance, dismissal, final disposal or non-entry, and such 10
certificate may be recorded in the registry in which the original 11
record mentioned in said section was made. 12
— of
land.
1892, 289.
mentBaffecting Section 14. A judgment or decree, at law or in equity, ren- 1
dered after the eighth day of June in the year eighteen hundred 2
and ninety-two affecting the title to real property, shall not have any 3
effect except against the parties thereto, their heirs and devisees and 4
persons having actual notice thereof, unless a certified copy of the 5
record thereof has been recorded in the registry of deeds for the 6
county or district in which the land lies, with a memorandum of 7
the city or town in which the land lies and a description thereof suffi- 8
ciently accurate for identification if the record of the judgment or 9
decree does not give those particulars. If a notice of the pendency 10
of the action has been duly recorded in the registry of deeds, the 11
record of the judgment or decree may be made within sixty days 12
after its rendition, and the entry of an ordinary attachment of real 13
property in the registry of deeds shall be considered notice of the 14
pendency of the action. 15
iorbCiddenentr7 Section 15. A person shall not make an entry into land or tene- 1
i784~8 «V1# ments except in cases where his entry is allowed by law, and in 2
r. s. 104, si. such cases he shall not enter by force, but in a peaceable manner. 3
1851,233,§76. J ' r
G. S. 137, § 1. 5 Met. 343. 1 Allen, 215. 121 Mass. 309.
P. S. 126, § 15. 4 Cnsh. 141. 99 Mass. 385. 170 Mass. 29.
breaci/of Section 16. If real property has been conveyed by deed on a 1
i898d5i4n' condition therein expressed, which is not a mortgage, the grantor, 2
his heirs and devisees upon breach of such condition may enter 3
on the granted premises in order to revest the title ; and a certifi- 4
cate of such entry, made and sworn to before a justice of the peace 5
by two competent witnesses and recorded within thirty days after 6
such entry in the registry of deeds for the county or district in which 7
the land is situated, or a duly certified copy of the record of such 8
certificate shall, after the expiration of three years from such entry, 9
be prima facie evidence of such breach and entry. If a grantor, his 10
heirs or devisees made such entry and certificate and filed the cer- 11
tificate as herein required prior to the ninth day of June in the year 12
eighteen hundred and ninety-eight, said certificate or a duly cer- 13
tified copy of the record thereof shall have like force and effect. 14
deffcCtntf Section 17. No descent or discontinuance shall take away or 1
continuance, defeat any right of entry or of action for the recovery of real prop- 2
R. S. 101, §5;,'7& J J a
119, § 13. erty. g. s. 134, s i; 154, s 13. p. s. 126, s 16. o
Chap. 134.] general provisions relative to real property. 1271
1 Section 18. If real property, upon which any encumbrance ex- Grantor to
2 ists, is conveyed by deed or mortgage the grantor, in whatever branceekno^ra
3 capacity he may act, shall before the consideration is paid, by ex- lssffmffs'i.
4 ception in the deed or otherwise, make known to the grantee the p.' I.' i26,Vi7.
5 existence and nature of such prior encumbrance so far as he has
6 knowledge thereof.
1 Section 19. Whoever conveys real property by a deed or mort- — uawe
2 gage which contains a covenant that it is free from all encumbrances inremo^lg8
3 shall, if it appears by a public record that an actual or apparent encumbrance.
4 encumbrance, known or unknown to him, exists thereon, be liable ^s.^sl'ivi.
5 in an action of contract to the grantee, his heirs, executor, admin- ^mIm".^1!'
6 istrator, successors or assigns, for all damages sustained in remov- i*® ^sT m
7 ing the same.
1 Section 20. Conditions or restrictions, unlimited as to time, by Restrictions or
2 which the title or use of real property is affected shall be limited to etSfon^eai
3 the term of thirty years after the date of the deed or other instrument YssFfil'
4 or the date of the probate of the will creating them, except in cases
5 of gifts or devises for public, charitable or religious purposes. The
6 provisions of this section shall not apply to conditions or restrictions
7 existing on the sixteenth day of July in the year eighteen hundred
8 and eighty-seven or to those contained in a deed, gift or grant of
9 the commonwealth.
1272 wills. [Chap. 135.
TITLE II.
OF WILLS, OF THE SETTLEMENT OF THE ESTATES OF DECEASED
PERSONS, OF GUARDIANSHIP, AND OF TRUSTS.
Chapter 135. —Of Wills.
Chapter 136. — Of the Probate of Wills and the Appointment of Executors.
Chapter 137. — Of the Appointment of Administrators.
Chapter 138. — Of Public Administrators.
Chapter 139. — General Provisions relative to Executors and Administrators.
Chapter 140. — Of Allowances to Widows and Children, the Distribution of
the Estates of Intestates and of Advancements.
Chapter 141. — Of the Payment of Debts, Legacies and Distributive Shares.
Chapter 142. — Of Insolvent Estates of Deceased Persons.
Chapter 143. — Of the Settlement of the Estates of Deceased Non-Residents .
Chapter 144. — Of the Settlement of Estates of Absentees.
Chapter 145. — Of Guardianship.
Chapter 146. — Of Sales, Mortgages and Leases of Real Property by Execu-
tors, Administrators and Guardians.
Chapter 147. — Of Trusts.
Chapter 148. — Provisions relative to Sales, Mortgages, etc., by Executors,
etc.
Chapter 149. — Of Bonds of Executors, Administrators, Guardians and
Trustees .
Chapter 150. — Of the Accounts and Settlements of Executors, Administra-
tors, Guardians, Trustees and Receivers.
CHAPTER 135.
OF WILLS.
Sections 1-9. — Making and Revocation.
Sections 10-15. — Custody of Wills, and their Production in Court.
Sections 16-18. — Rights of Husband or Widow.
Sections 19-24. — Provisions for Special Cases.
Sections 25-30. — Contribution among Devisees and Legatees.
MAKING AND REVOCATION.
By whom and Section 1. Every person of full age and sound mind may by 1
how wills may ..,..„. ., . J r . , . , . ° , , . J J a
be made. his last will in writing, signed by mm or by a person in his pres- 2
§5. ence and by his express direction, and attested and subscribed in 3
c." l.' i, § 2. his presence by three or more competent witnesses, dispose of his 4
liftl'14'81' property, real and personal, except an estate tail, and except as is 5
r8|'. 62',§| \',2' provided herein and in chapters one hundred and thirty-one and 6
1842 74 one nundred and thirty-two and in section one of chapter one hun- 7
Chap. 135.] wills. 1273
8 dred and fifty-three. A married woman, in the same manner and ill^; lo2' § 5
9 with the same effect, may make a will. 1357! 249; § 4.
G. S. 92, §§ 1, 1885, 255. 9 Met. 28. 99 Mass. 79.
2, 6; 108, §§9, 10. 1887, 290, §2. 2 Cusb. 433. 110 Mass. 157.
1864, 198, 276. 1899, 479, §§ 8, 9. 12 Cush. 332. 135 Mass. 238.
P. S. 127, § 1; 1900, 450, § 7. 16 Gray, 91. 160 Mass. 140.
147, § 6. 17 Pick, 134, 373. 10 Allen, 153, 155. 169 Mass. 74, 186.
1884, 301. 23 Pick. 10. 11 Allen, 49. 176 Mass. 216.
1 Section 2. If a witness to a will is competent at the time of ^itnllses cy of
2 his attestation, his subsequent incompetency shall not prevent the r8| |42' Isl 8
3 probate and allowance of such will, nor shall a mere charge on the g'. s'. 92', §§ 6', '
4 land of the testator for the payment of his debts prevent a creditor p.'s. 127, §2.
5 from being a competent witness to his will. " ass-3°8-
9 Pick. 350. 10 Allen, 153.
1 Section 3. A beneficial devise or legacy which is made in a will ^|acyetor
2 to a subscribing witness thereto, or to the husband or wife of such ^g^Sc u
3 witness, shall be void unless there are three other competent sub- ^- '
4 scribing witnesses to such will. g. s. 92, §10.
1878, 122. P. S. 127, § 3. 106 Mass. 474. 172 Mass. 425.
1 Section 4. A will which is made and executed in conformity wins made in
2 with the law existing at the time of its execution shall have the withiaw1 at
3 same effect as if it were made pursuant to the provisions of this t!on.°f execu"
4 chapter. 1838, 2. g. s. 92, § 7. p. s. 127, § 4.
1 Section 5. A will which is made out of the commonwealth and ^^con?
2 is valid according to the laws of the state or country in which it was ^?;?^§alth-
3 made may be proved and allowed in this commonwealth, and shall g. s'.92, §8.
4 thereupon have the same effect as if it had been executed according- 5 bush. 245. '
5 to the laws of this commonwealth. 13 Alien, 38. y' *
1 Section 6. A soldier in actual military service or a mariner at — nuncupa-
tlV6.
2 sea may dispose of his personal property by a nuncupative will. 1692-3, 15, § 11.
R. S. 62, §7. G. S. 92, §9. P. S. 127, § 6.
1 Section 7. No will, except as provided in this chapter and in —probate of,
2 chapter one hundred and fifty-three, shall pass any property, real or R.qs.i>2,e§ 32.
3 personal, or charge or in anyway affect the same; and no will p.' !.' i27,§§37.'
4 shall take effect until it has been duly proved and allowed in the i6PYCkSSii4483'
5 probate court. Such probate shall be conclusive as to the due i^cusifsig
6 execution of a Will. 140 Mass. 411. 12 Allen, 1.
1 Section 8. No will shall be revoked except by burning, tear — revocation
2 ing, cancelling or obliterating it with the intention of revoking it 1692-3, 15, §§ 4,
3 by the testator himself or by a person in his presence and by his 1783, 24, §§ 2, 6.
4 direction ; or by some other writing signed, attested and subscribed g! si $1) f 11.
5 in the same manner as a will ; or by subsequent changes in the f pf^2^! 8-
6 condition or circumstances of the testator from which a revocation 5 Pick! 112!
9 Pick. 350.
7 is implied by law. 123 Mass. 102. 138 Mass. 45, 116. 141 Mass. 75. 4 Gray, 162.
x J 114 Mass. 510.
1 Section 9. The marriage of a person shall act as a revocation —revocation
2 of a will made by him previous to such marriage, unless it appears riageymar
3 from the will that it was made in contemplation of such marriage. J8? Vass. 475.
4 If the will is made in the exercise of a power of appointment and ^ j^l; ^;
1274
WILLS.
[Chap. 135.
the real and personal property subject to the appointment would
not, without the appointment, pass to the persons who would have
been entitled to it if it had been the estate and property of the
testator making the appointment if he had died intestate, so much
of the will as makes the appointment shall not be revoked by the
marriage.
5
6
7
8
9
10
Deposit of
will in registry
of probate.
R. S. 62, § 10.
G. S. 92, § 12.
P. S. 127, § 9.
CUSTODY OF WILLS, AND THEIR PRODUCTION IN COURT.
Section 10. A will may be deposited by the testator, or by any 1
person for him, in the registry of probate in the county in which the 2
testator lives, to be safely kept until delivered or disposed of as 3
hereinafter provided ; and the register, upon being paid a fee of 4
one dollar therefor, shall receive and keep such will and give a cer- 5
tinea te of the deposit thereof. 6
Form of
deposit.
R. S. 62, § 11.
G. S. 92, § 13.
P. S. 127, § 10.
Section 11. A will intended to be deposited as aforesaid shall 1
be enclosed in a sealed wrapper, with an indorsement thereon of 2
the name and residence of the testator and of the day when and 3
the person by whom it is deposited, and the wrapper may also have 4
indorsed upon it the name of a person to whom the will is to be 5
delivered after the death of the testator. A will, when so depos- 6
ited, shall not be opened until it is delivered to a person entitled to 7
receive it or is otherwise disposed of as hereinafter provided. 8
Delivery of
will so de-
posited.
R. S. 62, § 12.
G. S. 92, § 14.
P. S. 127, § 11.
Section 12. During the lifetime of the testator such will shall 1
be delivered only to him or in accordance with his order in writing 2
duly proved before the judge of probate by the oath of a sub- 3
scribing witness ; and after his death it shall be delivered to the 4
person named in the indorsement, if such person demands it. 5
WvrHto°btecalled Section 13. If the will is not called for by the person, if any,
opened at first named in the indorsement, it shall be publicly opened at the first
probate court. '. * • i 1
n. s. §2, §13. probate court held alter notice of the testators death, and shall be
G. S. 92, § 15
P. S. 127, § 12
retained in the registry until it is so opened. 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 by
them presented for probate in such other court.
1
2
3
4
5
6
7
Possessor of
will to present
it for probate.
1692-3, 14, § 2.
1783, 24, § 16.
1817, 190, § 32.
R. S. 62, § 14.
G. S. 92, § 16.
1875, 210.
P. S. 127, § 13.
4 Mass. 137.
4 Pick. 33.
Section 14. A person who has the custody of a will, other than 1
a register of probate, shall, within thirty days after notice of the 2
death of the testator, deliver such will into the probate court which 3
has jurisdiction of the probate thereof, or to the executors named 4
in the will, who shall themselves deliver it into such court within 5
said time ; and if a person neglects without reasonable cause so to 6
deliver a will, after being duly cited for that purpose by such court, 7
he may be committed to jail by warrant of the court until he 8
delivers it as above provided ; and he shall be further liable to a 9
person who is aggrieved for the damage sustained by him by reason 10
of such neglect. 11
agafnl^pef8 Section 15. If a person claiming to be interested in the estate 1
of w>nceaunted °^ a Person deceased makes complaint under oath to a probate court 2
wills, etc. against any one suspected of retaining, concealing, or conspiring 3
Chap. 135.] wills. 1275
4 with others to retain or conceal, a will or testamentary instrument q4!1^6-^
5 of the deceased, the court may cite the suspected person to appear is'.
6 before it and be examined on oath upon the matter of the complaint. .'
7 Upon such examination all interrogatories and answers shall be in
8 writing signed by the person examined, and shall be filed in the
9 court. If the person cited refuses to appear and submit to examina-
10 tion or to answer such interrogatories as are lawfully propounded
11 to him, or to obey any lawful order of the court, he may be com-
12 mitted to jail by warrant of the court until he submits to its order.
13 The court may award costs to be paid by either party, and may
14 issue execution therefor.
RIGHTS OF HUSBAND OR WIDOW.
1 Section 16. The surviving husband, except as provided in Rights of
2 section thirty-six of chapter one hundred and fifty-three, or the ^ow.dor
3 widow of a deceased person, at any time within one year after the igfl', lo! § 8"
4 probate of the will of such deceased, may file in the registry of pro- ^| -^ § u-
5 bate a writing signed by him or by her, waiving any provisions that SLf'-S §s^
6 may have been made in it for him or for her, or claiming such por- i87i| 200!
187*5 58
7 tion of the estate of the deceased as he or she would have taken if p. s. 127, § is.
8 the deceased had died intestate, and he or she shall thereupon take 1900, 450; § 7?'
9 the same portion of the property of the deceased, real and personal, 2 AiieS) itss!
10 that he or she would have taken if the deceased had died intestate ; ?.-f "?n> 17„8-
' 101 Mass. 40.
11 except that if he or she would thus take real and personal property 102 Mass. 49.
12 to an amount exceeding ten thousand dollars in value, he or she 173 Mass! 413!
13 shall receive in addition to that amount only the income during his
14 or her life of the excess of his or her share of such estate above that
15 amount, the personal property to be held in trust and the real
16 property vested in him or her for life, from the death of the
17 deceased ; and except that if the deceased leaves no kindred, he or
18 she upon such waiver shall take the interest he or she would have
19 taken if the deceased had died leaving kindred but no issue. If
20 the real and personal property of the deceased which the surviving
21 husband or widow takes under the foregoing provisions exceeds ten
22 thousand dollars in value, the ten thousand dollars above given
23 absolutely shall be paid out of that part of the personal property in
24 which the husband or widow is interested ; and if such part is in-
25 sufficient the deficiency shall, upon the petition of any person
26 interested be paid from the sale or mortgage in fee, in the manner
27 provided for the payment of debts or legacies, of that part of the
28 real property in which he or she is interested. Such sale or mort-
29 gage may be made either before or after such part is set off from
30 the other real property of the deceased for the life of the husband
31 or widow.
32 If, after probate of such will, legal proceedings have been in-
33 stituted wherein its validity or effect is drawn in question, the
34 probate court may, within said one year, on petition and after such
35 notice as it may order, extend the time for filing the aforesaid
36 claim and waiver until the expiration of six months from the ter-
37 mination of such legal proceedings.
1 Section 17. The probate court may upon application of a Appointment
2 person interested appoint one or more trustees, who shall be subject bow husband's
1276
WILLS.
[Chap. 135.
or widow's
share.
1861, 164, « 2.
1870, 262, § 1.
P. S. 127, § 19.
1899, 479, § 11.
1900, 450, § 8.
to the provisions of chapter one hundred and forty-seven so far as 3
applicable, to hold during the life of a husband or widow any 4
personal property to the income of which he or she may be entitled 5
under the provisions of the preceding section. 6
Widow not to
have dower in
addition to
provisions of
will, unless,
etc.
1783, 24, § S.
R. S. 60, § 11.
G. S. 92, § 24.
1861, 164, § 1.
Section 18. A husband shall not be entitled to his tenancy by 1
the curtesy in addition to the provisions of his deceased wife's will, 2
nor a widow to her dower in addition to the provisions of her 3
deceased husband's will, unless such plainly appears by the will to 4
have been the intention of the testator. 5
P. S. 127, § 20.
12 Pick. 146.
5 Met. 277.
4 Cush. 174.
113 Mass. 246.
135 Mass. 326.
140 Mass. 562.
144 Mass. 564.
Child not pro-
vided for in
will.
1700-1, 4, § 2.
1783, 24, § 8.
R. S. 62, § 21.
G. S. 92, § 25.
P. S. 127, § 21.
2 Gray, 535.
S Gray, 367.
PROVISIONS FOR SPECIAL CASES.
Section 19. If a testator omits to provide in his will for any 1
of his children or for the issue of a deceased child, they shall take 2
the same share of his estate which they would have taken if he 3
had died intestate, unless they have been provided for by the testator 4
in his lifetime or unless it appears that the omission was intentional 5
and not occasioned by accident or mistake. 6
11 Allen, 47.
97 Mass. 439.
101 Mass. 125.
106 Mass. 320.
112 Mass. 184.
126 Mass. 135.
132 Mass. 131.
137 Mass. 86.
164 Mass. 38.
170 Mass. 403.
133 U. S. 216.
SeT™ Section 20. If a child of a testator, born after his father's 1
17S324V"1 death, has no provision made for him by his father in his will or 2
g i'n' 1 26 otherwise, he shall take the same share of his father's estate which 3
p.' s.' 127, § 22. he would have taken if his father had died intestate. 137 Mass. 527. 4
ie|ateeedyring Section 21. If a devise or legacy is made to a child or other
i7830r24te«88ator' re^ation of the testator, who dies before the testator, but leaves
r. s. 62, §24. issue surviving the testator, such issue shall, unless a different dis-
G S 92 § 28 ... . .
p.' s.' i-27, §"23. position is made or required by the will, take the same estate which
5 Met 396.' the person whose issue they are would have taken if he had sur-
7 Met. hi. yived the testator. 9 cush. 122.
101 Mass. 36. 108 Mass. 382. 155 Mass. 415. 162 Mass. 448.
1
2
3
4
5
6
Devise to give Section 22. A devise shall convey all the estate which the tes- 1
H'f-glfg tator could lawfully devise in the land mentioned, unless it clearly 2
pis.' 127, §24. appears by the will that he intended to convey a less estate. 3
9S Mass. 75. 108 Mass. 529. 147 Mass. 570. 168 Mass. 144. 170 Mass. 403, 540.
4 Gray, 348.
Land ac-
quired after
Section 23. An estate, right or interest in land acquired by a 1
toapasfbyit.m testator after the making of his will shall pass thereby in like man- 2
ner as if possessed by him at the time when he made his will, unless 3
a different intention manifestly and clearly appears by the will. 4
R. S. 62, § 3
G. S. 92, § 4.
P. S. 127, § 25.
6 Mass. 149.
5 Pick. 112.
7 Met. 141.
12 Met. 262.
1 Cush. 107.
4 Cush. 369.
106 Mass. 578.
170 Mass. 403.
Devise of land
to which
testator has
only right of
entry.
R. S. 62, § 2.
G. S. 92, § 3.
P. S. 127, § 26.
10 Mass. 131.
15 Mass. 115.
15 Pick. 185.
12 Met. 501.
Section 24. If a testator devises land of which he is not seised, 1
but in which he has a right of entry, or if, after making a will, he 2
is disseised of land devised thereby, such land shall nevertheless 3
pass to the devisee in like manner as it would have descended to 4
the testator's heirs if he had died intestate, and the devisee shall 5
have the same remedy for the recovery of such land as such heirs 6
might have had. 7
Chap. 135.] wills. 1277
CONTRIBUTION AMONG DEVISEES AND LEGATEES.
1 Section 25. »If a posthumous child or a child, or the issue of a contribution
2 child, omitted in the will takes under the provisions of section nine- portion ofP
3 teen or twenty a portion of the estate of a testator, such portion or omitted18
4 shall be taken from all the devisees and legatees in proportion to mi%4, § 7.
5 and not exceeding the value of what they respectively receive under §• §• ^|> 1 1|-
6 such will, unless in consequence of a specific devise or legacy or p-„s,v127' L2j-
r, £ \\ • • i xi_ mi j-jt x j.' j. ■ 137 Mass. 527.
7 01 some other provision 01 the will a different apportionment is
8 found necessary to give effect to the testator's intention relative
9 to that part of his estate which passes by his will.
1 Section 26. If property which is given by will is taken from —of devisee or
2 a devisee or legatee for the payment of the debts of the testator, property is
3 all the other devisees and legatees shall, subject to the provisions paymentoi e
4 of the following section, contribute their respective proportions of 175&L9, 37, § 3.
5 the loss to the person from whom such property is taken, so that ^ft. 62 125.
6 the loss may fall on all the devisees and legatees in proportion p"f'j|js«gg
7 to and not exceeding the value of the property received by each. 6 Mass. 149.
& r r J J 1 Oush. 107.
1 Section 27. If the testator, by making a specific devise or special appro-
2 bequest, has virtually exempted a devisee or legatee from liability estate°made by
3 to contribute with the others for the payment of the debts, or if by \ onowed*0 be
4 any other provisions in his will he has prescribed or required an ^ s- 62, §§ 26>
5 appropriation of his estate different from that prescribed in the pre- g- s- 92> §§ 30>
6 ceding section, his property shall be appropriated and applied in p. s. 127, § 29.
7 conformity with the provisions of the will, so far as such appropria- 13 Alien, 252.
J. X X -irje TVTooa "100
8 tion and application can be made without affecting the liability of 122 Mass! 282!
9 his whole estate for the payment of his debts. 127 Mass! I!?'
1 Section 28. If a posthumous child or a child, or the issue of omftteTchnd°r
2 a child, omitted in the will takes under the provisions of section lia^f^n?
3 nineteen or twenty a portion of the estate of a testator, such portion tribution.
X T> C GO g OQ
4 of the estate shall, for the purposes of the two preceding sections, g!s'.92', §32!
5 be considered as if it had been devised or bequeathed to such child p-s-12'>§30-
6 or other descendant ; and he shall contribute with the devisees and
7 legatees, and be entitled to claim contribution from them, as before
8 provided.
1 Section 29. If a person who is liable to contribute according to insolvency of
2 the provisions of the three preceding sections is insolvent or unable legatee.
3 to pay his just proportion of the contribution required, the other g*. s! 92! §33!
4 persons so liable to contribute shall be severally liable for the loss p> s- m' § 3L
5 occasioned by such insolvency, each one in proportion to and not
6 exceeding the value of the property received by him from the estate
7 of the deceased ; and if a person who is so liable dies without
8 having paid his proportion, his executors and administrators shall
9 be liable therefor in like manner as if it had been his own debt and
10 to the extent to which he would have been liable if living,
1 Section 30. If the estate of a devisee under a will" is taken for contribution
II PStfttG 18
2 the tenancy by the curtesy of the husband, or for the dower of the taken from
3 widow, of the testator, all the other devisees and legatees shall con- dower? etc!
4 tribute their respective proportions of the loss to the person from g?s'.992,§§ 36.
1278
PROBATE OF WILLS.
[Chap. 136.
P. S. 127, § 32.
137 Mass. 527.
whom the estate is so taken, so that the loss may fall upon all the 5
devisees and legatees in proportion to and not exceeding the value 6
of property received by them under the will ; but no devisee or 7
legatee shall contribute if exempted therefrom by the provisions of 8
the will. 9
CHAPTEE 136
Petition to be
under oath. "
1891, 414.
OF THE PROBATE OF WILLS AND THE APPOINTMENT OF EXECUTORS.
Section 1. A petition for the probate of a will, letters of 1
administration or letters testamentary shall have annexed an am- 2
davit of the petitioner that the statements therein made are true to 3
the best of his knowledge and belief. 4
Proof of will Section 2. If it appears to the probate court, by the consent in 1
on testimony .. *» j i i • i . ' , „ . i
of one witness, writing oi the heirs, or by other satisiactory evidence, that no 2
1817, 190, § 33. person interested in the estate of a person deceased intends to 3
object to the probate of an instrument purporting to be the will of 4
such deceased person, the court may grant probate thereof upon the 5
testimony of one only of the subscribing witnesses ; and the affidavit 6
of such witness, taken before the register of probate, may be received 7
as evidence. 8
K. S. 62, § 15.
O. S. 92, § 19,
P. S. 129, § 1,
1901, 242.
3 Mass. 236.
Probate of will
conclusive,
wben.
1889, 435.
3 Allen, 87.
144 Mass. 415.
Section 3. A decree allowing a will or adjudicating the intes- 1
tacy of the estate of a deceased person in any court in this com- 2
monwealth having jurisdiction thereof shall, after two years from 3
the rendition of such decree, or, if proceedings for a reversal 4
thereof are had, after two years from the establishment of such 5
decree, be final and conclusive in favor of purchasers for value, in 6
good faith, without notice of any adverse claim, of any property, 7
real or personal, from devisees, legatees, heirs, executors, adminis- 8
trators or guardians ; and in favor of executors, administrators, 9
trustees and guardians, who have settled their accounts in due form 10
and have in good faith disposed of the assets of the estate in accord- 11
ance with law ; and also in favor of persons who have in good faith 12
made payments to executors, administrators, trustees or guardians. 13
If a subsequent decree reverses or qualifies the decree so originally 14
rendered, heirs, devisees, legatees and distributees shall be liable 15
to a subsequent executor, administrator or other person found 16
entitled thereto, for any proceeds or assets of the estate received 17
by them under the former decree, and in such case proceeds of 18
real property shall be treated as real property. The provisions 19
of this section shall not make an adjudication of the fact of death 20
conclusive. 21
Probate court
to issue letters
testamentary
or of adminis-
tration.
R. S. m, § 1.
G. S. 93, § 1.
P. S. 129, § 2.
Section 4. If a will has been duly proved and allowed, the 1
probate court shall issue letters testamentary thereon to the executor 2
named therein, if he is legally competent and accepts the trust and 3
gives bond to discharge the same ; otherwise said court shall grant 4
letters of administration on the estate as provided in the follow- 5
ing chapter. 6
Chap. 136.] probate of wills. 1279
1 Section 5. If a person named as executor in a will has deceased if oneexecutor
/» • i' i • I /> i Q06S OOt) (IC-
2 or refuses to accept the trust, or, after being duly cited for the cept letters
3 purpose, neglects to accept the same or neglects for twenty days to the* others.
4 after the probate of the will to give bond according to law, the r.s.H'.Vs6'
5 court shall grant letters testamentary to the other executors, if Gft.«J'§6.
6 there are any competent and willing to accept the trust. 172 Mass. 496. fijMill'.Hi.
1 Section 6. If a person named as executor in a will is at the if oneexecutor
2 time of the probate thereof under the age of twenty-one years, the otheramay act
3 other executor or executors, if any, shall administer the estate until ^"^l,"0^6'
4 the minor arrives at full age, when, upon giving bond according to §! I'. 93, f 7!
5 law, he may be admitted as a joint executor of such will. p° s- 129> § 4-
1 Section 7. If a judge or register of probate desires to be Appointment
2 appointed executor of the will of his wife, child, father or mother, regS^of"
3 who at the time of their decease were inhabitants of or resident in executortetc.
4 his county, or to be appointed administrator, or administrator with 1898, 69> §1-
5 the will annexed, of the estate of such wife, child, father or mother,
6 such will may be proved and allowed and appointment made and all
7 subsequent proceedings relative to the estate may be had in the
S probate court of any adjoining county.
1 Section 8. The register of probate of the county in which such ^In^me'd
2 will is proved or such appointment is made shall forthwith transmit where."
3 to the register of probate of the county in which the deceased ' '
4 resided, or of which said deceased was an inhabitant, a true and
5 attested copy of the petition, the decree thereon, the will allowed,
6 if any, the bond given and the letters of administration or letters
7 testamentary, and he shall thereafter so transmit an attested copy
8 of any inventory, account, affidavit or other paper that shall be filed
9 and entered on the docket, and of any petition on which a decree
10 shall be made and of the decree thereon, which shall all be recorded
11 by the register to whom they are transmitted.
1 Section 9. The executor of an executor shall not, as such, Executor of
executor.
2 administer on the estate of the first testator. 1783,24, §19.
R. S. 63, § 10. P. S. 129, § 10. 156 Mass. 313.
G. 8. 93, § 9. 131 Mass. 408. 157 Mass. 160.
1 Section 10. A person interested in a will which has been proved f^^^fn0/
2 and allowed in any other of the United States or in a foreign country 1785, 12, §§ 1, 2.
3 according; to the laws of such state or country, or in a will which, is.
4 by the laws of the state or country in which it was made, is valid lsre/aoi.
5 without probate, may produce to the probate court in any county in p.7|. 127, § 15.
6 which there is any property, real or personal, on which such will
7 may operate, a copy of such will and of the probate thereof, duly
8 authenticated, or, if such will is valid without probate as aforesaid,
9 a copy of the will or of the official record thereof duly authenticated
10 by the proper officer having custody of such will or record in such
11 state or country ; and the court shall thereupon assign a time and
12 place for a hearing and cause notice thereof to be given to all per-
13 sons interested by publication in a newspaper three weeks succes-
14 sively, the first publication to be thirty days at least before the time
15 assigned for the hearing.
1280
ADMINISTRATORS .
[Chap. 137.
Allowance of
foreign wills.
17S5, 12, § 2.
R. S. 62, § 19.
G. S. 92, § 22.
1879, 185, § 1.
P. S. 127, § 16.
12 Met. 421.
II Cush. 519.
10 Gray, 162.
13 Gray, 330.
III Mass. 331.
Settlement of
estate in such
cases.
1785, 12, § 1.
R. S. 62, § 20.
G. S. 92, § 23.
P. S. 127, § 17.
10 Cush. 17.
Section 11. If at such hearing the court finds from the copies 1
before it and any additional proof as to the authenticity and execu- 2
tion of the will that the instrument ought to be allowed in this com- 3
monwealth as the last will of the deceased, it shall order the copy to 4
be filed and recorded, and the will shall then have the same effect 5
as if it had been originally proved and allowed in the probate court 6"
in the usual manner ; but the provisions of this section shall not 7
give effect to a will which is made in this commonwealth by an in- 8
habitant but is not executed according to the law thereof. 9
Section 12. After allowing a will under the provisions of the 1
two preceding sections, the probate court shall grant letters testa- 2
mentary on such will or letters of administration with the will 3
annexed, and shall proceed in the settlement of the estate which 4
may be found in this commonwealth in the manner provided in 5
chapter one hundred and forty-three relative to such estates. 6
CHAPTEK 137.
or the appointment of administrators.
Sections 1-5. — Ordinary Administration.
Sections 6, 7. — Administration with the Will annexed.
Section 8. — Administration de Bonis Non.
Sections 9-15. — Special Administration.
Administra-
tion, to whom
granted.
C. L. 158, § 2.
1692-3, 14, § 1.
1783, 36, § 8.
1817, 190, § 14.
1833, 100.
R. S. 64, § 4.
1839, 142, § 1.
1840, 40, § 1.
1853, 419.
G. S. 94, § 1.
P. S. 130, § 1.
1890, 265, § 2.
18 Pick. 24.
19 Pick. 336.
1 Cush. 525.
4 Cush. 408.
— to next of
kin without
notice.
1885, 260.
1890, 265, § 1.
ORDINARY ADMINISTRATION.
Section 1. Administration of the estate of a person deceased 1
intestate shall be granted to one or more of the persons hereinafter 2
mentioned, who shall, subject to the provisions of the following 3
section, be entitled thereto as follows : — 4
First, His widow or his next of kin, or the widow jointly with 5
the next of kin, as the probate court may determine. • 6
Second, If the deceased was a married woman, her husband, 7
if he is competent and willing to undertake the trust, unless it is 8
necessary or proper to appoint some other person. 9
Third, If all said persons are incompetent or evidently unsuit- 10
able for the discharge of the trust, or renounce the administration, 11
or if without sufficient cause they neglect for thirty days after the 12
death of the intestate to take administration of his estate, one or 13
more of the principal creditors, after public notice upon the peti- 14
tion. 15
Fourth, If there is no such creditor willing and competent to 16
undertake the trust, any suitable person. 17
Fifth, If there is no widow, husband or next of kin within this 18
commonwealth, a public administrator in preference to creditors. 19
Section 2. Administration of the estate of an intestate may be 1
granted to one or more of his next of kin or any suitable person, 2
if his widow and all his next of kin resident in the common- 3
wealth, who are of full age and legal capacity, consent in writing 4
Chap. 137.] administrators. 1281
5 thereto. Notice of the petition may be dispensed with as if all
6 parties entitled thereto had signified their assent or waived notice.
1 Section 3. Administration shall not be originally granted after Admmistra-
2 the expiration of twenty years from the death of the testator or granted afte?
3 intestate, except in cases expressly authorized by law. lT^le.^io.8'
B. S. 64, § 13. G. S. 94, § 3. P. S. 130, § 3. 6 Cush. 493. 146 Mass. 155. 1817» 190> § 17-
1 Section 4. If administration has not been taken on the estate —exception.
2 of a testator or intestate within twenty years after his decease, g. s. 94,' §4.
3 and any property or claim or right thereto remains undistributed f^,-^.'^"
4 or thereafter accrues to such estate and remains to be administered, iff&^s. 83.
5 original administration may for cause be granted, but such admin-
6 istration shall affect no other property.
1 Section 5. If, after the granting of letters of administration as —to be
^ TGVOkGQ. oh
2 upon an intestate estate, a will of the person deceased is duly probate of a
3 proved and allowed, such letters shall be revoked; and the exec- lsni 190, § 14.
4 utor or an administrator with the will annexed may demand, collect q. s'.ft, If.'
5 and sue for all the personal property of the deceased which remains p- s> 130, § 5-
6 unadministered.
ADMINISTRATION WITH THE WILL ANNEXED.
1 Section 6. If no executor is named in a will, or if all the exec — with the
2 utors therein named are dead or incompetent or refuse to accept 1692-3, i4,x§ 2.
3 the trust, or if, after being duly cited for the purpose, the executor r. s'. 63, § 5.'
4 neglects to accept the trust, or neglects for twenty days after the (ffl.aj'f e.
5 probate of the will to give bond according to law, the court shall frills' Hi.
6 commit administration of the estate, with the will annexed, to such
7 person as would have been entitled thereto if the deceased had died
8 intestate ; but after the expiration of said twenty days, and before
9 letters of administration with the will annexed have been granted,
10 the court may grant letters testamentary to any person named as
11 executor who gives the bond required by law.
1 Section 7. If a person named as executor is at the time of the — with the wm
2 probate of the will under the age of twenty-one years, administra- be granted 3
when executor
minor.
3 tion with the will annexed may be granted during his minority, is a
4 unless there is another executor who accepts the trust. 1783' u' § 17*
R. S. 63, §6. G. S. 93, §7. P. S. 130, § 7.
ADMINISTRATION DE BONIS NON.
1 Section 8. If a sole or surviving executor or administrator -de bonis
2 dies, resigns or is removed before having fully administered an ini-i, 3.
3 estate, and there is personal property of the deceased not adminis- nl; If; fi^3*
4 tered to the amount of twenty dollars, or debts to that amount fliligb §17.
5 remaining due from the estate, or anything remaining to be per- ^^613^f57,10;
6 formed in execution of the will, or if there is an order of distribu- ^|^jj 551
7 tion in accordance with the provisions of section twentv-six of 2,5.'
P S ISO 8 9
8 chapter one hundred and fifty, the probate court shall grant letters is9o,'4os,'§2.'
9 of administration, with the will annexed, or otherwise as the case \ vu^.'iio.'
10 may require, to a suitable person to administer the goods and estate 3Met-187-
11 of the deceased not already administered. 128 Mass. 590.
1282
ADMINISTRATORS .
[Chap. 137.
Appointment
of special ad-
ministrators.
1834, 174, § 1.
R. S. 64, § 6.
G. S. 94, § 6.
1876, 200, §§ 1, 4
P. S. 130, § 10.
SPECIAL ADMINISTRATION.
Section 9. If for any cause the judge of probate decides that 1
it is necessary or expedient, he may, at any time and place, with or 2
without notice, appoint a special administrator who, in case of an 3
appeal from the decree appointing him, shall nevertheless proceed 4
in the execution of his duties until it is otherwise ordered by the 5
supreme judicial court, and may in like manner discharge him. 6
Such appointment and discharge shall be entered forthwith on the 7
records of the court and notice thereof given to the executor or 8
administrator, if any. 9
Powers and
duties of
special admin-
istrators.
1834, 174, § 2.
R. S. 64, § 8.
1858, 122.
G. S. 94, § 8.
P. S. 130, § 12.
Section 10. A special administrator shall collect all the per- 1
sonal property of the deceased and shall preserve the same for the 2
executor or administrator when appointed, and for that purpose 3
may commence and maintain suits. If he is appointed by reason 4
of delay in granting letters testamentary, the court may authorize 5
him to take charge of the real property of the deceased or of any part 6
thereof, and to collect the rents, make necessary repairs and do all 7
other things which it may consider needful for the preservation of 8
such real property and as a charge thereon. He shall receive such 9
compensation for his services as the court allows. 10
Same subject.
1834, 174, § 2.
R. S. 64, § 8.
1858, 122.
G. S. 94, § 8.
P. S. 130, § 12.
1898, 414.
1899, 301.
Section 11. The probate court may, upon such notice as it con- 1
siders reasonable, authorize or require a special administrator to sell 2
or do such other acts relative to any property or estate in his charge 3
as in the opinion of the court said property or estate may require ; 4
but the provisions of this section shall not give to the special admin- 5
istrator other or greater powers than an administrator, except that 6
he may be authorized to continue the business of the deceased for 7
the benefit of his estate. 8
^dwfdnoCwnoerIlt8 Section 12. Upon the petition of the widow or of any child of 1
cw^ren; the deceased, the probate court may, after notice, make a reasonable 2
1859, 143, §§ 1-5. allowance out of the real or personal property in the hands of a 3
r.'s!i3o, §§'13,' special administrator appointed on account of the pendency of a 4
petition relative to the probate of a will or the appointment of an 5
administrator or of an administrator with the will annexed, as an 6
advancement for the support of such widow or children, not exceed- 7
ing such portion of the estate as they would finally be entitled to. 8
An appeal from a decree relative to such allowance shall not prevent 9
the payment of the allowance, if the petitioner gives bond to the 10
special administrator, with sureties approved by the court and con- 11
ditioned to repay it if the decree is reversed. 12
14
1899, 311.
109 Mass. 146.
160 Mass. 232.
Payment of
certain ex-
penses and
debts.
1859, 143, § 6.
G. S. 94, § 11.
P. S. 130, § 15.
1884, 291.
1897, 199.
Section 13. A special administrator may by leave of the pro- 1
bate court pay from the personal property in his hands the expenses 2
of the last sickness and funeral of the deceased, the expenses in- 3
curred by the executor named in the will of a deceased person in 4
proving the will in the probate court or in sustaining the proof 5
thereof in the supreme judicial court and also, after notice, such 6
debts due from the deceased as the probate court may approve. 7
Chap. 138.] public administrators. 1283
1 Section 14. Upon the granting of letters testamentary or of ^fafadmin.
2 administration, the powers of the special administrator shall cease, istratorto
ox-r i ../•!. <i .,-,.. in cease on ap-
3 Upon the termination oi his powers, the special administrator shall pointmentof
G^CGOllfcor Gtf*
4 forthwith deliver to the executor or administrator or to such person 1834,174, '§3.'
5 as is otherwise lawfully authorized to receive it all the estate of the g'. si 94', § 12.
6 deceased in his hands ; and the executor or administrator may be P- S- ]30' § 16,
7 admitted to prosecute a suit commenced by the special administrator
8 in like manner as an administrator de bonis non may prosecute a
9 suit commenced by a former executor or administrator.
1 Section 15. A special administrator shall not be liable to an Effect of
2 action by a creditor of the deceased ; and the time of limitation for f&ration on™*
3 all actions against the estate shall begin to run only after the grant- creators.
4 ing of letters testamentary or of administration in the usual form r3!'.1^'^'
5 in like manner and subject to the same conditions as if special ad- <*-| -^§i3-
6 ministration had not been granted ; but if an appeal is taken from 175 Mass. 483.'
7 the decree of the probate court appointing an executor or adminis-
8 trator the time shall run in like manner and subject to the same
9 conditions, if the decree is affirmed, from the time of the affirmation
10 if the bond has been filed, and, if not, from the date of the filing of
11 the bond ; if the decree is reversed, from the time when an appoint-
12 ment is finally made or affirmed and the bond is filed.
CHAPTER 138.
OF PUBLIC ADMINISTRATORS.
1 Section 1. There shall be in each county one or more public Appointment
2 administrators, appointed bv the governor with the advice and con- ministrators".
3 sent of the council, who shall hold office during the pleasure of the g. s. 95,' §1.'
4 governor. p.s.i3i,§i.
1 Section 2. Such administrators shall, except as hereinafter pro- Their duties.
2 vided, take out letters of administration and faithfully administer r. s. 64,'§4.
3 upon the estates of persons who die intestate within their county iffo* iof' § L
4 or elsewhere, leaving property in such county to be administered p.' |; i|i(§§22.
5 and not leaving a known husband, widow or heir in this common-
6 wealth.
1 Section 3 . Administration shall not be granted to a public ad- ?uHic admiA-
. . 1 ,t i'i 1 • '/• 1 i i 1sti"ators not to
2 nunistrator when the husband, widow or an heir 01 the deceased, act when heir,
3 in writing, claims the right of administration or requests the ap- right.
4 pointment of some other suitable person to the trust, if such g. s. 95,'§3.
5 husband, widow, heir or other person accepts the trust and gives p-s-131>§3-
6 the bond required.
1 Section 4. If, after the granting of letters of administration to Powers to
2 a public administrator and before the final settlement of the estate, wiinsVoved.
3 the husband, widow or an heir of the deceased, in writing, claims its.^'iit
4 the right of administration or requests the appointment of some g.3s'.962,'§§§4,5.
5 other suitable person to the trust, or if a will of the deceased is p- s- 131> § *■
1284
PUBLIC ADMINISTRATORS.
[Chap. 138.
thereafter proved and allowed, the probate court shall grant letters 6
of administration or letters testamentary accordingly ; and when 7
the person to whom such letters are so granted gives the bond 8
required by law the powers of the public administrator over the 9
estate shall cease. 10
Surrender of
letters od ap-
pointment of
successor.
1817, 190, § H.
R. S. 64, § 16.
1839, 142, § 2.
G. S. 95, § 5.
P. S. 131, § 5.
Section 5. A public administrator shall, upon the appointment 1
and qualification of an executor or administrator as his successor, 2
surrender into the probate court his letters of administration in such 3
case with an account under oath of his doings therein ; and, upon a 4
just settlement of such account, shall pay over and deliver to his 5
successor all money remaining in his hands, and all property, 6
effects and credits of the deceased not then administered. 7
W39,di42, §§ i, 2. Section 6. A public administrator shall give bond payable to
p'i'ifi§§66 ^e Ju(^oe °f ^he prolate court and his successors for the faithful
performance of his duties in like manner as other administrators,
with the further condition to comply with the provisions of the pre-
ceding section.
1
2
3
4
5
General bond.
1S49, 123, §§ 2, 3.
G. S. 95, § 7.
P. S. 131, § 7.
Section 7. Instead of a separate bond for each estate, a public 1
administrator may give a general bond for the faithful administra- 2
tion of all estates on which letters of administration may be granted 3
to him as such public administrator. Such bond shall be given 4
with sufficient surety or sureties, in such sum as the probate court 5
may order, payable to the judge of said court and his successors, 6
and with condition substantially as follows : — 7
First, To make and return to the probate court, within three 8
months from the time of granting to him, as public administrator, 9
letters of administration on the estate of a person deceased, a true 10
inventory of all the real and personal property of such person which 11
at the time of making such inventory shall have come to his posses- 12
sion or knowledge. 13
Second, To administer according to law all personal property 14
of every such person which may come to his possession or of any 15
person for him, and also the proceeds of any of the real property 16
of such person which may be sold by him. 17
Third, To render upon oath a true account of his administration 18
of every such estate at least once a year until the trust is fulfilled, 19
unless he is excused therefrom in any year by the court ; and also 20
to render such account at such other times as the court may order. 21
Fourth, To pay the balance of every such estate remaining in 22
his hands upon the settlement of his accounts to such persons as 23
the court may direct ; and when such estate has been fully admin- 24
istered to deposit with the treasurer and receiver general the whole 25
amount remaining in his hands. 26
Fifth, Upon the appointment and qualification in any case of 27
an executor or administrator as his successor, to surrender into the 28
probate court his letters of administration in such case with an 29
account under oath of his doings therein and, upon a just settle- 30
ment of such account, to pay over and deliver to such successor all 31
money remaining in his hands, and all property, effects and credits 32
of the deceased not then administered. 33
Chap. 138.] public administrators. 1285
1 Section 8. A public administrator who gives such general bond 0^°™^°^
2 shall, at the probate court first held in his county after the first day re^l\ ^d
3 of January in each year, render an account under oath of all bal- is given.
4 ances of estates then remaining in his hands ; and the court may g. s. 95,'§ 8.'
5 at any time require additional sureties to be furnished upon such '
6 administrator's bond or may require a new bond to be given.
1 Section 9. Periods of time which by law run in other cases Limitation of
2 from the time of giving bond by an administrator shall, when such general bond
3 general bond is given, run as to each estate from the date of the isl)^; § 3.
4 letters of administration. g. s. 95, §9. p. s. 131, §9.
1 Section 10. Public administrators may be licensed to sell real Public admin.
f-ii iivi i-i istrators may
2 property tor the payment ot debts and shall, except as herein other- sen real prop-
Grtv for drv-
3 wise provided, administer estates and render their accounts in the ment of debts,
4 same manner as other administrators. 1839, 142, §§ i, 3.
1849, 123, §§ 2, 3. G. S. 95, § 10. P. S. 131, § 10.
1 Section 11. After three years from the date of letters of ad- saieofreai
. property.
2 ministration to a public administrator, the probate court may, if 1839,142, §4.
3 it appears to be for the interest of all concerned, authorize such i88o,'i52.
4 administrator to sell the real property of the deceased, although ' *
5 such sale is not necessary for the payment of debts. In such case
6 the public administrator shall proceed in the same manner as other
7 administrators licensed to sell real property for the payment of
8 debts.
1 Section 12. When an estate has been fully administered by a pubiicadmin-
2 public administrator, he shall deposit the balance of such estate posntSancet
3 remaining in his hands with the treasurer and receiver general, j^treaturer.11
4 who shall receive and hold it for the benefit of those who may have g3s* ss'li^"'4"
5 lawful claims thereon. p. s. 131, §12. 7 Alien, 509.
1 Section 13. The probate courts shall require every public Annual
2 administrator in their respective counties to render an account of l^l^ilf "§§ 4, 5.
3 his proceedings under any letters of administration at least once in p." |; ifi^ii
4 each year until the trust has been fulfilled. And when, upon a
5 final settlement of an estate, it appears that money remains in the
6 hands of such administrator which by law should have been de-
7 posited with the treasurer and receiver general, the court shall
8 certify that fact and a statement of the amount so withheld to said
9 treasurer and receiver general, who, unless such deposit is made
10 within one month after the receipt of such notice, shall cause the
11 bond of the administrator to be prosecuted for the recovery of such
12 money.
1 Section 14. If, at any time within six years after a public ad- Heirs, etc.,
2 ministrator has made deposit with the treasurer and receiver gen- administration
3 1 c i-i -i i a , , .. .-,.■■ ■■ after deposit in
eral 01 tne balance 01 an estate remaining in his hands, any person state treasury.
4 applies to the probate court which granted letters of administration G^s'Af.'lu.
5 on such estate, and makes it appear that he is legally entitled by p-s-131> §14-
6 the will of the deceased or otherwise to the administration thereof,
7 the court shall grant administration thereof, or, upon probate of
1286
PUBLIC ADMINISTRATORS.
[Chap. 138.
such will, shall grant letters testamentary to such applicant or at 8
his request to some other suitable person ; but before granting such 9
administration, the court shall order personal notice of the applica- 10
tion to be served, at least fourteen days before the hearing, upon a 11
public administrator of the county, who shall appear in behalf of 12
the commonwealth. 13
andare?e1ver Section 15. After the expiration of thirty days from the ap-
senrrtoexecay pointment of an executor or administrator as provided in the pre-
utor, etc., if ceding section, if no appeal is claimed by any person interested,
the treasurer and receiver general shall pay over to such executor
or administrator all money deposited in the treasury to the credit
of such estate, to be administered in like manner as the estates of
other deceased persons.
appointed.
1839, 142, § 6.
G. S. 95, § 15.
P. S. 131, § 15.
1
2
3
4
5
6
7
Proceedings on
death, etc., of
public admin-
istrator.
1849, 123, § 1.
G. S. 95, § 16.
P. S. 131, § 16.
Section 16. Upon the death, resignation or removal of a public 1
administrator, the probate court shall issue a warrant to some other 2
public administrator in the same county, upon his application there- 3
for, requiring him to examine the accounts of such late public admin- 4
istrator relative to the estates on which he has taken out letters of 5
administration, and to return into the probate court a statement of 6
all of such estates that are not fully administered and of the balance 7
of each estate which remained in the hands of such public admin- 8
istrator at the time of his death, resignation or removal. And 9
thereupon the court shall issue to the public administrator making 10
the return, upon his giving the requisite bond, letters of adminis- 11
tration upon such of said estates as are not already administered, 12
although the personal property remaining may not amount to 13
twenty dollars. 14
District at-
torneys to
prosecute in
case of neglect,
etc., by public
administrators.
1846, 211.
G. S. 95, § 17.
1874, 105.
P. S. 131, § 17.
Section 17. If a public administrator neglects to return an 1
inventory, to settle an account or to perform any other duty in- 2
cumbent on him in relation to an estate, and there appears to be 3
no heir entitled to such estate, the district attorney for the district 4
within which the administrator received his letters shall, in behalf 5
of the commonwealth, prosecute all suits and do all acts necessary 6
and proper to insure a prompt and faithful administration of the 7
estate and the payment of the proceeds thereof into the treasury 8
of the commomvealth ; and if no heir has, within two years after 9
the granting of letters of administration, appeared and made claim 10
in the probate court for his interest in such estate, it shall be pre- 11
sumed that there is no such heir and the burden of proving his 12
existence shall be upon the public administrator. 13
Estates of less
than twenty
dollars, how
disposed of.
1874, 254, § 1.
P. S. 131, § 18.
1883, 264.
Section 18. If the total property of an intestate which has 1
come into the possession or control of a public administrator is of 2
a value less than twenty dollars, unless the same is the balance of 3
an estate received from a prior public administrator, he shall forth- 4
with reduce all such property into money, not taking administration 5
thereon, and shall deposit such money, first deducting his reason- 6
able expenses and charges, with the treasurer and receiver general, 7
who shall receive and hold it for the benefit of any persons who 8
may have legal claims thereon. Such claims may be presented to 9
Chap. 139.] general provisions relative to executors, etc. 1287
10 the auditor of the commonwealth within one year from such pay-
11 ment to the treasurer and receiver general and the auditor shall
12 examine such claims and allow such as may be proved to his satis-
13 faction and upon the expiration of the year shall forthwith certify
14 the same to the governor and council for payment of the whole of
15 the claims or such proportion thereof as the funds will allow.
1 Section 19. A public administrator, upon making such deposit, ^teoftess
2 shall file with the treasurer and receiver general a true and particu- than twenty
3 lar account, under oath, of all his dealings, receipts, payments and 1374,254, §2.
4 charges on account of the property from which the money so de- '
5 posited proceeds, including the name of the intestate, if known to
6 him, and the treasurer and receiver general shall thereupon deliver
7 to him a receipt for such money. Such deposit shall exempt the
8 public administrator making it from all responsibility for or on ac-
9 count of the money so deposited.
CHAPTER 139.
general provisions relative to executors and administrators.
Sections 1-4. — Notice of Appointment.
Sections 5-7. — Inventories and Appraisals.
Sections 8-10. — Agents of Non-Resident Executors arid Administrators.
Sections 11-13. — Removal and Resignation.
Sections 14, 15. — Executors in Their Own Wrong
NOTICE OF APPOINTMENT.
1 Section 1. An executor or administrator shall, within three Notice of ap.
2 months after giving bond for the performance of his trust, cause e£ecu?or°o°f
3 notice of his appointment to be posted in two or more public places iTO8,i^s§7itor*
4 in the city or town in which the deceased last dwelt ; or he may be ^ I' sr' it i' la*
5 required by the probate court to give notice by publication in a p.' si 132, § i.
6'" ■ i ,■% j i a 1 *** jMjiss. 401.
newspaper, or in such other manner as the court may order.
1 Section 2. An affidavit of the executor or administrator, or of Perpetuation
n inii* • i i • /»-i -i -i -, of evidence of
2 a person employed by him to give such notice, filed and recorded notice.
3 with a copy of the notice in the registry of probate, or such affi- mo, ub.
4 davit made by any person and so filed and recorded with such lsbs.'m52"
5 copy by permission of the court upon satisfactory evidence that the isn,'n'ie!'
6 notice was given as ordered, shall be admitted as evidence of the lssf'ill'l i:
7 time, place and manner in which the notice was given. 380-'
13 Gray, 336. 16 Gray, 363. 104 Mass. 277.
1 Section 3. If by accident or mistake the notice is not given, or Notice may be
2 if the evidence that it was given is not perpetuated as provided proper time,
3 in the preceding section, the probate court may, upon the petition Rh§D66, §25.
4 of the executor or administrator, order such notice to be given at p'f"^^
5 any time afterward. In such case the periods of time limited for
6 the commencement of actions against executors and administrators
7 and for other purposes, which run from the time of their giving
8 bond, shall run from the time of the passing of such order.
1288
GENERAL PROVISIONS RELATIVE TO EXECUTORS, ETC. [CHAP. 139.
Section 4. An order under the provisions of the preceding 1
Liability for
omission to
give notice. section shall not exempt an executor or administrator or his sureties 2
g'. s'. 9?! § t ' from any liability for damages which may be incurred by reason of 3
' the omission to give notice within the three months. e Alien, 498. 4
Inventories.
1703^, 12, § 1.
1719-20, 10, § 1.
1817, 190, § 14.
R. S. 65, § 1.
G. S. 96, § 1.
P. S. 132, § 5.
152 Mass. 412.
INVENTORIES AND APPRAISALS.
Section 5. Every executor, except one who gives bond under 1
the provisions of section two of chapter one hundred and forty- 2
nine, and every administrator shall, within three months after his 3
appointment, make under oath and return to the probate court a 4
true inventory of the real and personal property of the deceased 5
which at the time of making such inventory shall have come to his 6
possession or knowledge. 7
Appraisers.
1719-20, 10, § 1.
1783, 32, § 14.
1817, 190, § 14.
R. S. 65, § 2.
G. S. 96, § 2.
P. S. 132, § 6.
Section 6. The property comprised in the inventory shall be 1
appraised in any county by three suitable, disinterested persons 2
appointed by the probate court or a disinterested justice of the 3
peace may appoint such appraisers of any part of the estate which 4
may be in the county in which such justice resides. The apprais- 5
ers shall be sworn to the faithful performance of their duties. 6
to0™praisertr Section 7. When appraisers are appointed by a justice of the 1
g 1'96'li' peace, he shall issue an order to them, in substance as follows : — 2
p." s.' 132, § 7.
, 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 adminis-
trator, as the case may be) 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.
AGENTS OF NON-RESIDENT EXECUTORS AND ADMINISTRATORS.
Agent of Section 8. An executor or administrator who is appointed in,
non-resident , rlr '
executor or but resides out of, this commonwealth shall not enter upon the
1679, lso, §§i,2, duties of his trust nor be entitled to receive his letter of appoint-
p. s. 132, §§ 8, ment until he shall, by a writing filed in the registry of probate for
i8933'ii8. the county in which he is appointed, have appointed an agent re-
190l) 37.
siding in this commonwealth, and, by such writing, shall have agreed
that the service of any legal process against him as such executor
or administrator, or that the service of any such process against him
in his individual capacity in any action founded upon or arising out
of any of his acts or omissions as such executor or administrator
shall, if made on said agent, have like effect as if made on himself
personally within the commonwealth, and such service shall have
such effect. Said writing and also the notice of appointment of such 13
executor or administrator shall state the name and address of the 14
agent. An executor or administrator who, after his appointment, 15
removes from, and resides without, the commonwealth shall so 16
appoint a like agent. 17
1
2
3
4
5
6
7
8
9
10
11
12
Chap. 139.] general provisions relative to executors, etc. 1289
1 Section 9. If an agent appointed under the provisions of the New appomt-
2 preceding section dies or removes from the commonwealth before Sre, iso, §f m!
3 the final settlement of the accounts of his principal, another appoint- fi'.s' 13^' §§ 10'
4 ment shall be made and filed as above provided, and the powers
5 of an agent appointed under the provisions of this and of the pre-
6 ceding section shall not be revoked prior to the final settlement
7 of the estate unless another appointment shall be made as before
S provided.
1 Section 10. Neglect or refusal by an executor or administrator Failure to
2 to comply with any provision of the two preceding sections shall lmTm^t? '
3 be cause for removal. p. s. 132, §12.
REMOVAL AND RESIGNATION.
1 Section 11. If an executor or administrator becomes insane or Removal of
2 otherwise incapable of performing the trust, or is unsuitable therefor, administrator.
3 or if an executor or administrator who resides out of this common- i808| 98,' § 1. '
4 wealth, having been duly cited by the probate court, neglects to ^f'lf'57'
5 render his accounts and to settle the estate, the probate court may p'f'ijB'f ii
6 remove him ; and thereupon the other executor or administrator, if V-^^p:
7 any, may proceed in performing the trust as if the one removed 10 Alien, 124.
. ■ 137 Mass 547
8 were dead or, if there is no other executor or administrator, the
9 court may appoint an administrator as provided in section eight of
10 chapter one hundred and thirty-seven.
1 Section 12. If an executor or administrator is removed or if ^rs0°rfae|^n.
2 letters of administration are revoked, all previous sales, whether of istrator before
lipnii i removal to be
3 real or personal property, made lawfully by the executor or ad- vaiidv
4 ministrator and with good faith on the part of the purchaser and all g! s'. 101, § 3!
5 other lawful acts done by such executor or administrator shall
6 remain valid and effectual.
1 Section 13. An executor or administrator may resign his trust, l^eclto^or of
2 when it appears to the probate court proper to allow him so to do. administrator.
1843,97. G. S. 101, §5. P. S. 132, § 16. 12 Mass. 358.
EXECUTORS IN THEIR OWN WRONG.
1 Section 14. Whoever injuriously intermeddles with any personal ^^££8 in
2 property of a deceased person, without being thereto authorized by ^p11^.., .„
3 law, shall be liable as an executor in his own wrong to the persons 1783, at, §16.'
A • j ° * R. S. 64, § 11.
4 aggrieved. g. s. 94, §u. p. s. 132, §17. 114 Mass. 420.
ee
1 Section 15. An executor in his own wrong shall be liable to the Liability of
2 rightful executor or administrator for the full value of the per- utorSexec"
3 sonal property of the deceased taken by him and for all damages q\ §; ^ | {|
4 caused by his acts to the estate ; and he shall not be allowed to P7-MaBs2,i7818'
5 retain or deduct any part of such estate, except for funeral expenses losMass. 3si.
6 or debts of the deceased or other charges actually paid by him and
7 which the rightful executor or administrator might have been com-
8 pelled to pay.
1290
ALLOWANCES TO WIDOWS, ETC.
[Chap. 140.
CHAPTER 140.
OF ALLOWANCES TO WIDOWS AND CHILDREN, THE DISTRIBUTION OF
THE ESTATES OF INTESTATES AND OF ADVANCEMENTS.
Sections 1,2. — Allowances to Widows and Children.
Section 3 . — Distribution .
Sections 4-9 . — Advancements .
Apparel of
widow and
children.
Quarantine.
1783, 36, § 3.
1802, 93.
1805, 90, § 2.
1816, 95, § 1.
R. S. 60, § 16;
65, § 4.
Allowance of
necessaries.
1710-11, 2, § 2.
1783, 36, § 3.
1802, 93.
1805, 90, § 2.
1816, 95.
1833, 40.
R. S. 60, §16;
65, §§ 4-6.
1838, 145, § 2.
1842, 15.
G. S. 96, § 5.
P. S. 135, § 2.
1899, 479, § 6.
1900, 450, § 2.
6 Cush. 20.
1 Gray, 518.
5 Gray, 24.
2 Allen, 310.
13 Allen, 120,
207.
110 Mass. 461
117 Mass. 27.
123 Mass. 443.
127 Mass. 111.
130 Mass. 376.
ALLOWANCES TO WIDOWS AND CHILDREN.
Section 1. The articles of apparel and the ornaments of the
widow and minor children of a deceased person shall belong to
them respectively. The widow may remain in the house of her
husband for not more than six months next succeeding his death
without being chargeable for rent.
1838, 145, § 1.
G. S. 90, § 18; 96, § 4.
P. S. 124, §3; 135, §1.
1899, 479, §§ 2, 5.
1900, 450, § 1.
119 Mass. 598.
Section 2. Such parts of the personal property of a deceased
person as the probate court, having regard to all the circumstances
of the case, may allow as necessaries to his widow for herself and
for his family under her care or, if there is no widow, to his minor,
children, not exceeding one hundred dollars to any child, and also
such provisions and other articles as are necessary for the reason-
able sustenance of his family, and the use of his house and of the
furniture therein, for six months next succeeding his death, shall
not be taken as assets for the payment of debts, legacies or charges
of administration. After exhausting the personal property, real
property may be sold to provide the amount of allowance decreed,
in the same manner as it is sold for the payment of debts, if a
decree authorizing such sale is made, upon the petition of any party
in interest, within two years after the approval of the bond of the
executor Or administrator. 139 Mass. 144. 155 Mass. 141, 153. 168 Mass. 228.
I
2
a
4
5
1
2
3
4
5
7
8
9
10
11
12
13
14
15
Distribution
of personal
property of
intestates.
C. L. 158, § 3.
1692-3, 14, § 1.
1710-11, 2, § 1.
1734-5, 16.
1783, 36, § 2.
1789, 2, § 1.
1805, 90, §§ 2, 4.
1&33, 40.
R. S. 64, § 1.
1845, 208, § 7.
1854, 406, § 3.
G. S. 94, § 16.
1876, 220, § 4.
P. S. 135, § 3.
1882, 141.
1885, 276.
1899, 479, § 7.
1900, 450, §§ 3, 4.
1 Met. 204.
5 Allen, 187.
9 Allen, 234.
13 Allen, 277.
101 Mass. 40.
136 Mass. 54.
137 Mass. 156.
DISTRIBUTION.
Section 3. If a person dies possessed of property not lawfully 1
disposed of by will, it shall be distributed as follows : — 2
First, The personal property remaining after said allowances shall 3
be applied to the payment of the debts of the deceased and the 4
charges of his last sickness and funeral and of the settlement of his 5
estate. 130Mass. 178. 139 Mass. 304. 146 Mass. 281. 6
Second, The residue of the personal property shall be distributed 7
among the persons and in the proportions prescribed for the descent 8
of real property in chapter one hundred and thirty-three, except as 9
otherwise provided herein. 149 Mass. 502. 10
Third, If the deceased leaves no issue, the surviving husband 11
or widow shall take five thousand dollars and one-half of the remain- 12
ing personal property and one-half of the remaining real property. 13
If the personal property is insufficient to pay said five thousand 14
dollars, the deficiency shall, upon the petition of any party in 15
interest, be paid from the sale or mortgage, in the manner pro- 16
vided for the payment of debts or legacies, of any interest of the 17
Chap. 140.] allowances to widows, etc. 1291
18 deceased in real property which he could have conveyed at the
19 time of his death.
20 If the deceased leaves issue, a surviving husband or widow
21 shall take one-third of the remaining personal property and one-
22 third of the remaining real property.
23 If the deceased leaves no kindred, a surviving husband or widow
24 shall take the whole of the remaining real and personal property.
25 If the deceased leaves no husband, widow or kindred, the whole
26 of the remaining personal property shall escheat to the common-
27 wealth.
ADVANCEMENTS.
1 Section 4. Property, real or personal, which is given by an in- Advance-
2 testate in his lifetime as an advancement to a child or other lineal aTestatTo!6
3 descendant shall be considered as part of the intestate's estate in whenf16'
.4 the division and distribution of such estate among his issue, and ^fifo"'!.1'
5 shall be taken by such child or other descendant toward his share ^|-261,§§ 6'7;
6 of such estate; but he shall not be required to restore any part G.'s.9i, §6;
7 thereof, although it exceeds his share. The widow shall be entitled p.'s.i28,§§i,6.
8 only to her share in the residue after deducting the value of the 1C ' 157'
9 advancement.
1 Section 5. If such advancement is made in real property, the same subject.
2 value thereof shall be considered as part of the real property to be g'. s*. 9i,' § i'.
3 divided ; if it is in personal property, it shall be considered as part i6Ma6s8'2§oo.'
4 of the personal property ; and if in either case it exceeds the share
5 of real or personal property, respectively, which would have come
6 to the heir so advanced, he shall not restore any part of it, but
7 shall receive so much less out of the other part of the estate as will
8 make his whole share equal to the shares of the other heirs who
9 are in the same degree with him.
1 Section 6 . Gifts and grants shall be held to have been made as p™of of
2 advancements, if they are expressed in the gift or grant to be so 1783, 36, §7.
3 made, or if charged in writing as such by the intestate, or acknowl- r. s. ei, § 9.
4 edged in writing as such by the party receiving them. G" s' 91' § s'
P. S. 128, § 3. 22 Pick. 508. 10 Gray, 104. 103 Mass. 164. »
14 Pick. 318. 1 Gray, 507. 13 Allen, 334. 120 Mass. 553.
1 Section 7. If the value of an advancement is expressed in the vaiueofad-
2 conveyance, in the charge thereof made by the intestate or in the howascer-'
3 acknowledgment by the person receiving it, such value shall be i805,e9o, § 3.
4 adopted in the division and distribution of the estate ; otherwise & 1 91', § 90'
5 it shall be determined according to the value when the property *• wsUf'ist
6 Was given. 120 Mass. 559.
1 Section 8. If a child, or other lineal descendant who has re- Death of per-
2 ceived an advancement dies before the intestate, leaving issue, the advancement
3 advancement shall be considered as part of the intestate's estate in tate°re mteB"
4 the division and distribution of such estate, and the value thereof g'. !'. 91' ! 10.
5 shall be taken by the representative of the heir to whom the ad- p> s- 128> § 5-
6 vancement was made toward his share of the estate, as if the
7 advancement had been made directly to him.
1292
PAYMENT OF DEBTS, ETC.
[Chap. 141.
?t?qeu™tkfn80n Section 9. The probate court in which the estate of a deceased 1
mentsance" person is settled may hear and determine all questions of advance- 2
r. s. io3, §§ 62, ments arising relative to such estate, or such questions may be 3
g.' s. 136, § 66. heard and determined upon a petition for partition either in the 4
superior court or the probate court; but if such question arises 5
upon a petition for partition, the court may suspend proceedings 6
until the question has been decided in the probate court in which 7
the estate of the deceased is settled. 8
P. S. 128, § 7.
16 Mass. 167,
200.
102 Mass. 355
CHAPTEE 141.
OF THE PAYMENT OF DEBTS, LEGACIES AND DISTRIBUTIVE SHARES.
Sections 1-8. — Payment of Debts. >
Sections 9-18. — Limitation of Actions by Creditors.
Sections 19-25. — Payment of Legacies and Distributive Shares.
Sections 26-32. — Liability of Heirs, etc., after Settlement by
Executor, etc.
Executor, etc.,
not liable to
action for a
year after
giving bond.
1788, 66, § 2.
R. S. 66, § 10.
G. S. 97, § 16.
P. S. 136, § 1.
116 Mass. 436.
134 Mass. 155.
PAYMENT OF DEBTS.
Section 1. An executor or administrator shall not be held to 1
answer to an action by a creditor of the deceased which is com- 2
menced within one year after his giving bond for the performance 3
of his trust, unless such action is brought for the recovery of a 4
demand which would not be affected by the insolvency of the estate 5
or, after the estate has been represented insolvent, for the purpose 6
of ascertaining a contested claim. 7
— may pay
creditors, if
assets suffi-
cient for all
claims pre-
sented within
the year.
1823, 144, § 2.
R. S. 66, § 11.
G. S. 97, § 17.
P. S. 136, § 2.
Section 2. Kan executor or administrator who has given due 1
notice of his appointment does not within one year thereafter have 2
notice of demands against the estate of the deceased which authorize 3
him to represent such estate to be insolvent, he may, after the 4
expiration of said year, pay the debts due from the estate and shall 5
not be personally liable to any creditor in consequence of such pay- 6
ments made before notice of such creditor's demand. 7
defence14 a Section 3. If an executor or administrator pays, under the
against further provisions of the preceding section, before notice of the demand of
claims, when, * * & > in,
1823, 144, §2 any other creditor, the whole of the estate and effects ot the de-
g. s. 97', § is', ceased, he shall not be required in consequence of such notice to
9 ivie't. 180. ' represent the estate insolvent, but in an action against him he shall
be discharged upon proving such payments.
1
2
3
4
5
6
Extent of lia-
bility if residue
is insufficient
to meet new
claims.
1823, 144, § 3.
R. S. 66, § 13.
G. S. 97, § 19.
P. S. 136, § 4.
11 Met. 238.
4 Gray, 514.
7 Gray, 167.
9 Allen, 149.
130 Mass. 385.
Section 4. If an executor or administrator pays, under the 1
provisions of section two, so much of the estate and effects of the 2
deceased that the remainder is insufficient to satisfy a demand of 3
which he afterward has notice, he shall be liable on such last- 4
mentioned demand for only so much as may then remain. If 5
two or more such demands are exhibited, which together exceed 6
the amount of assets remaining in his hands, he may represent the 7
estate insolvent, and shall, pursuant to a decree of the probate court, 8
Chap. 141.] payment of debts, etc. 1293
9 divide and pay over what remains in his hands among the creditors
10 who prove their debts under the commission of insolvency ; but the
11 creditors of the deceased who have been previously paid shall not
12 be liable to repay any part of the amount received by them.
1 Section 5. If it appears, upon the settlement of the account of 1^™^°*
2 an executor or administrator in the probate court, that the whole claims to bar
3 estate and effects which have come to his hands have been exhausted mon creditors,"
4 in paying the charges of administration and debts or claims entitled is^W, § i.
5 by law to a preference over the common creditors of the deceased, g. s. 97', 1 20'.
6 such settlement shall be a bar to an action brought against him by u'2 Mass. 227.
7 a creditor who is not entitled to such preference, although the ^2Hassf?2-
■,.-,* ' o 173 Mass. 113.
8 estate has not been represented insolvent.
1 Section 6. If a debt claimed by an executor or administrator as settlement 01
2 due to him from the deceased is disputed by any person interested dweas'eVtohis
3 in the estate, the claimant shall file in the probate court a statement rfsMi^sf i.te*
4 of his claim in writing, setting forth distinctly and fully the nature g. 1- ^ § ^j-
5 and grounds thereof ; and the same may then be submitted under an p. s.' 136, § 6.'
o > ... 9 Met 329
6 order of the court to one or more arbitrators, if the claimant and the 149 Mass. 520.
7 party objecting agree upon the arbitrators to be appointed. The 536.Ma8S' 160'
8 court shall have the powers of courts of common law to discharge
9 the rule by which the claim is referred, to reject and disallow the
10 award or to recommit it to the arbitrators. The award of such arbi-
11 trators, if accepted by the probate court, shall be final and conclusive.
1 Section 7. If the parties do not agree upon the arbitrators, or same subject.
2 if the award is not confirmed by the probate court, the court shall g! s! 97! 1 27!
3 decide upon the claim. Upon appeal to the supreme judicial court, f Met 32a 7'
4 upon motion of either party or by order of the court, an issue shall
5 be framed and tried by a jury as other issues in civil actions are
6 tried ; and the verdict thereon, when duly allowed and recorded,
7 shall be conclusive.
1 Section 8. If one of two or more persons who are indebted ^ta^eof de-
2 upon a joint contract, or upon a judgment founded on such contract, J^absjed 3°intly
3 dies, his estate shall be liable therefor as if the contract had been 1799,57.
4 joint and several or as if the judgment had been against him alone, g". si 97', § 28*.
P. S. 136, § 8. 4 Met. 537. 7 Allen, 112. 120 Mass. 137.
2 Mass. 572. 11 Cush. 152. 119 Mass. 361. 124 Mass. 219, 367.
LIMITATION OF ACTIONS BY CREDITORS.
1 Section 9. An executor or administrator, after having given —of executor,
2 due notice of his appointment, shall not be held to answer to an by creditors.118
3 action by a creditor of the deceased which is not commenced within J^; fsj § I
4 two years from the time of his giving bond, for the performance of ^f^',!3!.
5 his trust, except as hereinafter provided. p. s. 136, §9. g5!297*s5
15 Mass. 6. 12 Allen, 330. 117 Mass. 222. 149 Mass. 62. " ' ' * "
20 Pick. 2. 104 Mass. 277. 121 Mass. 222. 161 Mass. 418.
4 Allen, 359. 112 Mass. 27. 124 Mass. 240. 172 Mass. 356.
8 Allen, 532. 115 Mass. 508. 134 Mass. 115. 173 Mass. 233.
11 Allen, 101. 116 Mass. 447. 142 Mass. 248. 175 Mass. 483.
1 Section 10. If the supreme judicial court, upon a bill in equity supreme judi-
2 filed by a creditor whose claim has not been prosecuted within the reheveUaftera7
claim barred.
1294
PAYMENT OF DEBTS, ETC.
[Chap. 141.
1861, 174, § 2.
P. S. 136, § 10.
123 Mass. 489.
127 Mass. 268.
149 Mass. 253.
160 Mass. 580.
169 Mass. 97.
time limited by the preceding section, is of opinion that justice and 3
equity require it and that such creditor is not chargeable with cul- 4
pable neglect in not prosecuting his claim within the time so limited, 5
it may give him judgment for the amount of his claim against the 6
estate of the deceased person ; but such judgment shall not affect 7
any payment or distribution made before the filing of such bill. 8
Extension of
time for cred-
itors' actions
by receipt of
new assets.
R. S. 66, § 4.
1852, 294, § 1.
G. S. 97, § 6.
P. S. 136, § 11.
3 Pick. 365.
6 Allen, 372.
9 Allen, 365.
99 Mass. 616.
105 Mass. 229.
117 Mass. 222.
137 Mass. 547.
157 Mass. 358.
163 Mass. 491.
Section 11. If new assets come to the hands of an executor or 1
administrator after the expiration of two years from the time of his 2
giving bond, he shall account for and apply the same in like manner 3
as if they had been received within said two years, and shall be 4
liable, on account of such new assets, to an action at law or to a 5
proceeding in the probate court by or for the benefit of a creditor, 6
in like manner as if such assets had been received within the two 7
years, if such action or proceeding is commenced within one year 8
after the creditor has notice of the receipt of such assets, and within 9
two years after they are actually received. 167 Mass. 536. 10
— if action
fails from de-
fect in form,
etc.
1855, 157, § 1.
G. S. 97, §7.
P. S. 136, § 12.
174 Mass. 171.
Section 12. If an action commenced against an executor or 1
administrator before the expiration of two years from the time of 2
his giving bond fails of a sufficient service or return by an unavoid- 3
able accident ; if the writ in such action is abated or defeated in con- 4
sequence of a defect in the form thereof or of a mistake in the form 5
of the proceeding ; if, after a verdict for the plaintiff, the judgment 6
is arrested ; or, if a judgment for the plaintiff is reversed on a writ 7
of error ; the plaintiff may commence a new action for the same 8
cause at any time within one year after the abatement or other 9
determination of the original action, or after the reversal of the 10
judgment therein. 11
Provision for
creditor whose
right of action
accrues alter
the two years.
1788, 66, § 4.
R. S. 66, § 5.
G. S. 97, § 8.
1879, 71, 243.
P. S. 136, $ 13.
104 Mass. 577.
131 Mass. 351.
146 Mass. 366.
151 Mass. 601.
154 Mass. 266.
158 Mass. 418.
171 Mass. 386.
172 Mass. 356.
176 Mass. 141.
Section 13. A creditor of the deceased, whose right of action 1
does not accrue within two years after the giving of the administra- 2
tion bond, may present his claim to the probate court at any time 3
before the estate is fully administered ; and if, upon examination 4
thereof, the court finds that such claim is or may become justly 5
due from the estate, it shall order the executor or administrator 6
to retain in his hands sufficient assets to satisfy the same. But 7
if a person interested in the estate offers to give bond to the alleged 8
creditor with sufficient surety or sureties for the payment of his 9
claim if it is proved to be due, the court may order such bond to 10
be taken, instead of requiring assets to be retained as aforesaid. 11
This section, so far as it relates to claims to become due, shall 12
not apply to an estate which was in process of settlement on the 13
twenty-eighth day of February in the year eighteen hundred and 14
seventy-nine. 15
Same subject.
R. S. 66, § 6.
G. S. 97, § 9.
1871, 238.
P. S. 136, § 14.
Section 14. The decision of the probate court upon the claim 1
of such creditor shall not be conclusive against the executor or 2
administrator or other person interested to oppose the allowance 3
thereof, and he shall not be compelled to pay the same unless it 4
is proved to be due in an action commenced by the claimant within 5
one year after his claim becomes payable, or, if an appeal is taken 6
from the decision of the probate court, in an action commenced 7
Chap. 141.] payment of debts, etc. 1295
8 within one year after the final determination of the proceedings on
9 such appeal.
1 Section 15. The action referred to in the preceding section Provision for
2 shall be brought against the executor or administrator, if he has right of action
3 been required to retain assets therefor; otherwise, upon the bond thertwo years.
4 given under the provisions of section thirteen.
R. S. 66, § 7. G. S. 97, § 10. P. S. 136, § 15. 127 Mass. 268.
1 Section 16. If the action is brought on such bond, the plaintiff l*™?^^
2 shall set forth his original cause of action against the deceased, in p-f-^A
3 like manner as would be required in a declaration for the same
4 demand against the executor or administrator, and may allege the
5 non-payment of the claim as a breach of the condition of the bond ;
6 and the defendant may answer any matter of defence which would
7 be available in law against the claim if prosecuted in the usual
8 manner against the executor or administrator.
1 Section 17. If an executor or administrator dies, resigns or Limitation of
2 is removed, without having fully administered the estate of the administrator
3 deceased, and a new administrator is appointed, such new adminis- Kes°6M§°2o-
4 trator shall be liable to the action of a creditor for two years after ^|:2 294 § 2
5 he has given bond for the performance of his trust, unless such g- s- 97> §§ 12>
6 action had been barred prior to the termination of the previous ad- ?'■&■ fi36, § 17.
7 ministration; but after the expiration of said two years, he shall,
8 if he has given due notice of his appointment, have the benefit of
9 the limitations provided for original administration.
1 Section 18. If new assets come to the hands of such new Liability upon
2 administrator after the time before limited for the commencement assets*0 neY
3 of actions against him, he shall account for such new assets, and g. I'. 97, f u.
4 shall be liable on account thereof to an action at law and to pro- p- s- 136' § 18>
5 ceedings in the probate court by or in behalf of a creditor, in like
6 manner as is provided in this chapter relative to an original executor
7 or administrator.
PAYMENT OF LEGACIES AND DISTRIBUTIVE SHARES.
1 Section 19. A legatee may recover his legacy in an action at i^ateeaJany
2 law ; and the provisions of this chapter shall not bar an action time
3 brought at any time against an executor or administrator with the rro3U,'i2,§5.
4 will annexed for the recovery of a legacy. p. s. 136, § 19. ms, 6n', § 5.'
11 Pick. 503. 6 Allen, 500. 112 Mass. 110. 140 Mass. 502. *t. §• 66, § 16.
13 Pick. 393. 7 Allen, 64. 121 Mass. 249. 156 Mass. 313. G. S. 97, § 22.
5 Gray, 67. 106 Mass. 586. 136 Mass. 142. 163 Mass. 381.
1 Section 20. If an executor or administrator, within two years indemnity for
.2 after having given bond for the performance of his trust, is required Fegacy,netcf, if
3 by a legatee or next of kin to make payment, in whole or in part, twoUy™arirthia
4 of a legacy or distributive share, the probate court may require ^ ^'Af •
5 that such legatee or next of kin shall first give bond to the exec- g! s'. 97', § 21'.
6 utor or administrator, with surety or sureties to be approved by 144 Mass. m
7 the court, and conditioned to repay the amount so to be paid or a8S-595'
8 so much thereof as may be necessary to satisfy any demands which
9 may be thereafter recovered against the estate of the deceased, and
1296
PAYMENT OF DEBTS, ETC.
[Chap. 141.
Partial distri-
bution at any
time.
1873, 224, § 2.
P. S. 136, § 21.
151 Mass. 595.
152 Mass. 74.
153 Mass. 233.
to indemnify the executor or administrator against all loss and 10
damage on account of such payment. 11
Section 21. If the probate court finds that a partial distribution 1
of the personal property of an estate in process of settlement therein 2
can, without detriment to such estate, be made to the persons en- 3
titled thereto, the court may, subject to the rights of creditors and 4
after notice, order such partial distribution to be made. 5
Payment of
legacv.
1895, 134.
Set-off of debts
due from
legatees, etc.
1879, 225, §§ 1, 2,
4.
P. S. 136, §§ 22,
23.
114 Mass. 24.
136 Mass. 138.
169 Mass. 430.
Annuities, etc.,
Payable from
eatli of tes-
tator.
184S, 310, § 1.
G. S. 97, § 23.
P. S. 136, § 24.
102 Mass. 55.
103 Mass. 297,
345.
121Mass. 178.
128 Mass. 575.
— apportion-
ment of, etc.
1848, 310, § 2.
G. S. 97, § 24.
P. S. 136, § 25.
9 Allen, 246.
98 Mass. 462.
103 Mass. 297.
121 Mass. 17S,
220.
139 Mass. 449.
Section 22. If by the provisions of a will a legacy is to be 1
distributed in whole or in part among the heirs or next of kin of any 2
person, or among persons of a certain class, the probate court, upon 3
the application of any person interested, after notice, may order 4
distribution to be made among such persons as according to the will 5
seem to be entitled to the legacy. 6
Section 23 . A debt due to the estate of a deceased person from 1
a legatee or distributee of such estate shall be set off against and 2
deducted from the legacy to such legatee or from the distributive 3
share of such distributee ; and the probate court shall hear and de- 4
termine the validity and amount of any such debt, and may make 5
all necessary or proper decrees and orders to effect such set-off 6
or deduction ; but the provisions of this section shall not prej- 7
udice any remedy of an executor or administrator for the recovery 8
of such debt nor affect the liability of the legatee or distributee for 9
the excess of his indebtedness over the amount of his share in or 10
claim upon the estate to Avhich he is indebted. 11
Section 24. If an annuity, or the use, rent, income or interest 1
of property, real or personal, is given by will, deed or other instru- 2
ment to or in trust for the benefit of a person for life or until the 3
happening of a contingency, such person shall be entitled to receive 4
and enjoy the same from and after the decease of the testator, unless 5
it is otherwise provided in such will or instrument. 6
131 Mass. 20. 137 Mass. 21. 13S Mass. 303. 163 Mass. 510.
Section 25. A person entitled to such annuity, rent, interest 1
or income, or his representative, shall have the same apportioned if 2
his right or estate therein terminates between the days upon which 3
it is payable, unless otherwise provided in said will or instrument ; 4
but no action shall be brought therefor until the expiration of the 5
period for which the apportionment is made. 6
146 Mass. 424. 171 Mass. 42.
Liability of
heirs, etc.,
after settle-
ment by execu-
tor, etc.
1788, 66, § 5.
E. S. 70, § 13.
G. S. 101, § 31.
P. S. 136, § 26.
13 Mass. 384.
17 Pick. 14.
20 Pick. 2.
6 Cush. 235.
8 Allen, 259.
LIABILITY OF HEIRS, ETC., AFTER SETTLEMENT BY EXECUTOR, ETC.
Section 26. After the settlement of an estate by an executor or 1
administrator, and after the expiration of the time limited for the 2
commencement of actions against him bv the creditors of the de- 3
ceased, the heirs, next of kin, devisees and legatees of the deceased 4
shall be liable in the manner provided in the following sections for 5
all debts for which actions could not have been brought against the 6
executor or administrator, and for which provision is not made in 7
the preceding sections of this chapter. 8
118 Mass. 369.
127 Mass. 268.
128 Mass. 555.
137 Mass. 195.
144 Mass. 138.
146 Mass. 366.
158 Mass. 418.
171 Mass. 386.
Chap. 141.] payment of debts, etc. 1297
1 Section 27. A creditor whose right of action accrues after the Mode of en-
2 expiration of said time of limitation, and whose claim could not liawiuy6110
3 legally be presented to the probate court, or whose claim, if pre- r. s'. 70', § u. •
4 sented, has not been allowed, may, by action commenced within one p.* f ." las * § 27 *
5 year next after the time when such right of action accrues, recover 20Pick32J5'
6 such claim against the heirs and next of kin of the deceased or ^g Mass' 2-7*
7 against the devisees and legatees under his will, each of whom shall 137 Mass! 195!
o © » 14g Mass 366
8 be liable to the creditor to an amount not exceeding the value of the 176 Mass.' mo.'
9 real or personal property which he has received from the deceased.
10 But if by the will of the deceased any part of his estate or any one
11 or more of the devisees or legatees is made exclusively liable for the
12 debt in exoneration of the residue of the estate or of other devisees or
13 legatees, such provisions of the will shall be complied with, and the
14 persons and estate so exempted shall be liable for only so much of
15 the debt as cannot be recovered from those who are first chargeable
16 therewith.
1 Section 28. If an heir, next of kin, devisee or legatee dies with- hi^e^hiB1
2 out having paid his just proportion of such debt, his executor or tobe^ab'ie*0''
3 administrator shall be liable therefor, as for his own debt, to the ^8|> 6760> § ^
4 extent to which he would have been liable if living. g. s. 101, § 33.
P. S. 136, § 28. 1 Met. 387.
1 Section 29. If, under the provisions of the two preceding sec- sun inequity
2 tions, more than one person is liable for the debt, the creditor may one heir, etc.,
3 recover such debt by a suit in equity in the supreme judicial court r.ss. to, §ei6.
4 or the superior court against all persons so liable or against such f>] |; j^; f 29.'
5 of them as are within reach of process. The court shall determine, f Metis's?03'
6 by the verdict of a jury if either party requires it, what amount is J? Qrav4<596
7 due to the plaintiff, and shall decide how much each of the defend- jJL^y' 12*;
8 ants is liable to pay toward the debt.
1 Section 30. Such suit shall not be dismissed or barred for not -r. not to be
•ii "-i-i-i-ifi dismissed for
2 making all the persons who might have been so included defendants ; want of proper
o a o ? defendants.
3 but in any stage of the cause the court may, upon terms, award R. s. 70, §ik
4 proper process to bring in other parties, and may allow amendments p.' s.' 136,' § 30.'
5 in order to charge them as defendants.
1 Section 31. If an heir, devisee or other person who is liable when one heir,
2 for the debt is insolvent, unable to pay his proportion thereof or to pay, the
• • others to be
3 beyond reach of process, the others shall be liable to the creditor nabie for
4 for the whole amount of his debt ; but no one shall be compelled to T^ 2^Tis.nt*
5 pay more than the amount which he has received from the estate of r8!'.™, § 17.
6 the deceased. p. s. 136, §31. g.s. 101, §35.
1 Section 32. If, in consequence of insolvency or bankruptcy, ILon??fir!
2 absence or other cause, a person who is liable for such debt fails to pay his just
3 pay his just proportion thereof to the creditor, he shall be liable shaS°benabiee
4 to indemnify all who, by reason of such failure on his part, pay r. g^ro* §ei9."
5 more than their just proportion of the same. Such indemnity may p.' |.' 136,' I II'
6 be recovered, at their election, by all of them jointly, or in separate 10 Ma8B- *50-
7 actions by one or more of them for his or their parts respectively.
1298
INSOLVENT ESTATES OF DECEASED PERSONS. [CHAP. 142.
CHAPTBE 142.
OF INSOLVENT ESTATES OF DECEASED PERSONS.
Section 1 . — Order of Payment of Debts.
Sections 2-10. — Proof of Claims.
Sections 11-17. — Appeals .
Sections 18-26. — Payment of Dividends to Creditors.
Sections 27-29. — Contingent Claims.
Sections 30-32. — Actions by Creditors during Pendency of
Insolvency Proceedings .
Order of pay-
ment of debts.
C L. 250, § 4.
1692-3, 16, § 1.
1696, 8, § 1.
1784, 2.
R. S. 68, § 1.
G. S. 99, § 1.
1881, 159.
P. S. 137, § 1.
1884, 293.
U. S. Rev. Sts.,
§ 3466.
6 Pick. 481.
16 Pick. 255.
4 Met. 325.
15 Gray, 471.
4 Alien, 141.
127 Mass. 242.
137 Mass. 412.
139 Mass. 304.
143 Mass. 326.
ORDER OF PAYMENT OF DEBTS.
Section 1. If the estate of a person deceased is insufficient to 1
pay all his debts, it shall, after discharging the necessary expenses 2
of his funeral and last sickness and the charges of administration, 3
be applied to the payment of his debts, which shall include equitable 4
liabilities, in the following order : — 5
First, Debts entitled to a preference under the laws of the United 6
States. 7
Second, Public rates, taxes and excise duties. 8
Third, Wages or compensation, to an amount not exceeding one 9
hundred dollars, due to a clerk, servant or operative for labor per- 10
formed within one year last preceding the death of such deceased 11
person or for such labor so performed for the recovery of payment 12
for which a judgment has been rendered. 13
Fourth, Debts due to all other persons. 14
If there is not enough to pay all the debts of any class, the cred- 15
itors of that class shall be paid ratably upon their respective debts ; 16
and no payment shall be made to creditors of any class until all those 17
of the preceding class or classes, of whose claims the executor or 18
administrator has notice, have been fully paid. 19
Commissioners
to examine
claims of
creditors.
C. L. 250, § 4.
1692-3, 16, § 1.
1696, 8, § 1.
1784, 2.
R. S. 68, § 2.
G. S. 99, § 2.
P. S. 137, § 2.
PROOF OF CLAIMS.
Section 2. If the probate court finds from the representation 1
of an executor or administrator that the estate of the deceased will 2
probably be insufficient for the payment of his debts, it may ap- 3
point two or more commissioners to receive and examine all claims 4
of creditors against such estate, and to return a list of all claims 5
presented to them, with the amount allowed on each claim. 6
149 Mass. 520.
2 Mass. 498.
120 Mass. 516.
127 Mass. 242.
139 Mass. 360.
140 Mass. 596.
143 Mass. 326.
— duties of.
C. L. 250, $ 4.
1692-3, 16, § 1.
1696, 8, § 1.
1752-3, 12, § 3.
1784, 2.
R. S. 68, §§ 2-4.
1854, 92.
G. S. 99, §§ 2-4.
P. S. 137, § 3.
139 Mass. 360.
Section 3. The commissioners shall be sworn before entering 1
upon the performance of their official duties ; they shall appoint 2
convenient times and places for their meetings to receive and ex- 3
amine claims ; and shall by mail or otherwise give to all known 4
creditors at least seven days' written notice of the time and place 5
of each meeting, and also such other notice thereof as the court 6
shall order ; and the executor or administrator shall, fourteen days 7
at least before the first meeting, furnish to the commissioners the 8
names and residences of all known creditors. At the expiration of 9
Chap. 142.] insolvent estates of deceased persons. 1299
10 the time allowed for the proof of claims, the commissioners shall
11 make their return to the court.
1 Section 4. If the court does not appoint commissioners accord- am^ciarms
2 ing to the provisions of section two, it shall itself receive and ex- ^?|n2-52 „14
3 amine the claims of creditors, allow such as should legally be p- s. 137, § 4.'
° 141 Mass 509
4 allowed and cause a list of all claims presented for proof, with the
5 amount allowed or disallowed on each claim, to be made and cer-
6 tified by the register of said court.
1 Section 5. The court shall in such cases order the executor Notice to
2 or administrator to give to creditors notice of the times when and StV'^m 2.
3 places where their claims will be examined, in the same manner as PS137>§5-
4 is required of commissioners by the provisions of section three.
1 Section 6. If a commissioner appointed under the provisions Appointment
2 of section two dies or resigns before his duties are fully performed, missloner"1"
3 or, if for unreasonable neglect to make the return required by iHI; 32?; f ?!
4 law or for any other cause he is removed, the probate court may fill ^2 Mass 456
5 the vacancy.
1 Section 7. The commissioners or the court may require a claimants to
2 claimant to make true answers under oath to all questions relative oath!er under
3 to his claim ; and if he refuses to take such oath or to answer fully r.8|. 68, §§ 15,
4 all questions, his claim may be disallowed. Any one of the commis- Jf s 99 §§ 15
5 sioners may administer the oath to claimants and witnesses. ^- ' '
.1 Section 8. The probate court may, except while an appeal w probate011
2 under the provisions of section eleven is pending, upon the applica- ^Z1^,
3 tion of the executor or administrator, examine upon oath any person
4 whose claim has been allowed as aforesaid unless such allowance
5 has been made by the supreme judicial court or the superior court
6 on appeal, may summon any person to give evidence relative to
7 such claim and, upon notice, alter or expunge a claim which it finds
8 is founded wholly or partially in fraud, illegality or mistake.
1 Section 9. Six months after the appointment of the commis- Limit of time
2 sioners or after the order of the court under the provisions of sec- daim™010*
3 tion five shall be allowed for the creditors to present and prove ?692^fi6,§i'.
4 their claims ; and if a new commissioner is appointed under the \^ f § L
5 provisions of section six, the time shall be extended until the ex- S|'S'|i-
6 piration of six months from his appointment. The court may i863,'2i7, § 1.
7 allow further time, not exceeding eighteen months from the original 18731252! §4!
8 appointment or order; and, upon an appeal as hereinafter provided, 6Pick.458. "
9 it may extend the time to a date not more than one month after ofet^'n55'
10 the final decision of such appeal. iib mUm 447
1 Section 10. A creditor who does not present his claim for claims not
2 allowance in the manner herein provided shall be barred from barred, Unless,
3 recovering the same ; but if further assets of the deceased come to ctCL_ 250> § 4
4 the hands of the executor or administrator after the decree of distri- ^9jj-| V^§1-
5 bution, the claim may be proved, allowed and paid as provided in i?8||8 S20
6 this chapter for contingent claims. g. s! 99', § 21!
P. S. 137, §10. 15 Mass. 140. lCush. 461. 104 Mass. 277.
1300
INSOLVENT ESTATES OF DECEASED PERSONS. [CHAP. 142.
Appeal from
decision of
commission-
ers.
1696, 8, § 1.
1784, 2.
B. S. 68, § 8.
G. S. 99, § 8.
1865, 258.
1873, 252, § 4.
P. S. 137, § 11.
1884, 293.
8 Met. 132.
116 Mass. 125.
127 Mass. 242.
143 Mass. 326.
APPEALS.
Section 11. A person whose claim is disallowed in whole or in 1
part, and an executor, administrator, heir, legatee, devisee or cred- 2
itor who is dissatisfied with the allowance of a claim, may appeal 3
from the decision of the commissioners or of the court, and the claim 4
shall thereupon be determined at common law in the county in which 5
the probate or administration was granted. If the demand exceeds 6
four thousand dollars in the county of Suffolk, or one thousand 7
dollars in any other county, the appeal shall be either to the 8
supreme judicial court, or the superior court ; otherwise, to the 9
superior court, and it shall be tried and determined in like manner 10
as if an action had been brought therefor by the supposed creditor 11
against the executor or administrator. 12
— time for
claiming.
1784, 2.
R. S. 68, § 9.
G. S. 99, § 9.
1873, 252, § 3.
P. S. 137, § 12.
1885, 384, § 5.
110 Mass. 229.
Section 12. Such appeal shall be claimed and notice thereof 1
given at the registry of probate within thirty days after the return 2
of the commissioners ; or, when the court receives and examines 3
the claims, within thirty days after the allowance or rejection of the 4
claim. If the appeal is by an executor or administrator, he shall 5
give notice thereof to the creditor within said thirty days. The 6
appeal shall be entered on the first Monday of the calendar month 7
next succeeding the expiration of said thirty days. 8
— proceedings
on.
1784, 2.
B. S. 68, §§ 10,
15.
G. S. 99, §§ 10,
15.
1873, 252, § 4.
P. S. 137, § 13.
162 Mass. 450.
Section 13. Upon the entry of the appeal, the supposed 1
creditor shall file a statement in writing of his claim, setting forth 2
briefly and distinctly all the material facts which would be necessary 3
in a declaration for the same cause of action ; and like proceedings 4
shall thereupon be had in the pleadings, trial, and determination 5
of the cause as in an action at law ; but no execution shall be 6
awarded against the executor or administrator for a debt found due 7
to the claimant. The appellate court shall have the same power as 8
the probate court or the commissioners to examine the claimant. 9
The final judgment shall be conclusive and the list of debts allowed 10
shall be altered, if necessary, to conform thereto. 11
Section 14. After claiming such appeal, the parties may waive
— waiver of,
and submis- ~~~."~~. --^. . ™.^vj«. «.g
sion to arbitra- a trial at law and submit the claim to the determination ot arbitrators
1784,2. agreed on by the parties and appointed by the probate court and
g'. s'. 99, §ii". thereupon the appeal shall not be entered. The award of such arbi-
ricusn^lo1.4' trators, if accepted by the court, shall be as conclusive as a judg-
ment in a court of common law.
1
2
3
4
5
6
B.cs.S68U§pi2n' Section 15. The party who prevails upon such appeal shall be 1
p'i'mVw entitled to costs, which, if recovered against the executor or ad- 2
ministrator, may be allowed to him in his administration account. 3
— after the
time limit,
may be beard,
how.
1816, 62.
B. S. 68, ? 13.
G. S. 99. § 13.
P. S. 137, § 16.
7 Met. 211.
121 Mass. 565.
Section 16. If a person whose claim has been disallowed by the 1
commissioners or by the probate court omits, for cause other than 2
his own neglect, to claim or prosecute his appeal as before pro- 3
vided, the supreme judicial court in any county, may, upon his 4
petition filed within two years after the return of the commissioners 5
and within four years after the date of the administration bond, 6
allow him upon terms to enter and prosecute his appeal. 7
Chap. 142.] insolvent estates of deceased persons. 1301
1 Section 17. The allowance of such appeal and the judgment Effect of aiiow-
2 thereon shall not affect any distribution ordered before notice of 1816, 62.
3 the petition or of the intention to present the same has been given g'. s'. 99', § u.
4 in writing at the registry of probate or to the executor or adminis- ' ' ' 8
5 trator ; but any debt thus proved and allowed shall be paid only out
6 of such assets as remain in or come to the hands of the executor or
7 administrator after payment of the amounts payable on such prior
8 decree of distribution.
PAYMENT OF DIVIDENDS TO CREDITORS.
1 Section 18. After the expiration of the time allowed by the Distribution of
2 provisions of section twelve for claiming appeals from the allow- creditor™01^
3 ance or disallowance of a claim, the probate court shall make a approve™8
4 decree for the distribution of the estate among the creditors accord- ^8|> 268 . 17
5 ing to the provisions of this chapter. If, before making the decree, S-f-^iMJo
6 the court has notice of an appeal then claimed or pending, the 1 bush. 353.
7 decree may be suspended until the determination of the appeal, or
8 a distribution may be ordered among the creditors whose debts are
9 allowed, leaving in the hands of the executor or administrator an
10 amount sufficient to pay to the claimant whose demand is disputed
11 a proportion equal to that of the other creditors.
1 Section 19. The court may, at any time before the expiration same subject.
2 of the time allowed for claiming appeals, in its discretion order p. s. 137, § 19.
3 dividends to be paid to creditors whose claims have been proved
4 and allowed, if there is left in the hands of the executor or admin-
5 istrator an amount sufficient to pay upon claims that may probably
6 be proved afterward a proportion equal to what is so paid to such
7 creditors. Such amount shall remain unappropriated in the hands
8 of the executor or administrator until the final dividend is declared,
9 or until a distribution is ordered.
1 Section 20. If the whole assets are not distributed upon the same subject.
2 first decree, or if further assets come to the hands of the executor or !l ii 99) 1 19!
3 administrator, the court shall make further decrees for distribution. p- s- 137> § 20-
1 Section 21. If the deceased had been a member of a partner- Provision for
2 ship, and partnership and individual claims are proved against his deceased co-
3 estate, separate lists of said claims shall be made, and in making Garsn99,' § is.
4 dividends the court shall order the joint and the separate estate to ^Met^ol21'
5 be distributed in the same manner and among the same classes of f2A^en' 15il\
6 creditors as is provided in the case of insolvent debtors under the
7 provisions of chapter one hundred and sixty-three.
1 Section 22. If, after the completion of the list of allowed claims, Proceedings
2 the assets prove sufficient to pay all such claims, the executor or sxifflcfenuo
3 administrator shall pay them in full ; and if any other debt is after- anowed?laim8
4 ward recovered against him, he shall be liable therefor only to the r3!.1^9"^!
5 extent of the assets then remaining. If there are two or more such g-
6 creditors, the assets, if insufficient to pay their demands in full, 23*. ' '
7 shall be divided among them in proportion to their debts. 23. ' '
1302
INSOLVENT ESTATES OF DECEASED PERSONS. [CHAP. 142.
Proceedings
if assets are
sufficient to
pay all claims
allowed.
1833, 189.
R. S. 68, § 23.
G. S. 99, § 24.
P. S. 137, § 24.
Section 23. The executor or administrator, in an action 1
brought against him on such demand, may prove the amount of 2
assets in his hands, and thereupon judgment shall be rendered in 3
the usual form ; but execution shall not issue for more than the 4
amount of such assets ; and if there are two or more judgments, the 5
court shall apportion the amount between them. 6
Disposition of
unclaimed
dividends.
1844, 115, § 1.
G. S. 99, § 27.
P. S. 137, § 25.
Section 24. After twenty years from the decree of distribution 1
of an insolvent estate, the probate court, upon application by a 2
creditor whose claim was proved and allowed, and after notice of 3
such application published in one or more newspapers of the county 4
for not less than two years on such days as the court shall direct, 5
may order any unclaimed dividends, with the interest received 6
thereon, after deducting all expenses and charges of administration 7
since the decree of distribution, to be distributed anew among the 8
creditors who have received their dividends. If there is a surplus 9
after satisfying the claims of such creditors with interest, it shall be 10
distributed to the persons legally entitled thereto. 11
Same subject.
1844, 115, § 2.
G. S. 99, § 28.
P. S. 137, § 26.
Section 25. If a creditor who has failed to receive his dividend 1
as aforesaid has deceased, the probate court for the county in which 2
administration on his estate might have been granted shall, at any 3
time before a decree to distribute the unclaimed dividends is passed, 4
grant administration upon his estate, although more than twenty 5
years may have elapsed since his death, and the administrator may 6
receive and administer such dividend. 7
Removal of
executor, etc.,
neglecting to
account.
1794, 5.
R. S. 68, § 25.
G. S. 99, § 26.
P. S. 137, § 27.
3 Met. 109.
129 Mass. 226.
Section 26. If an executor or administrator neglects to render 1
and settle his accounts in the probate court within six months after 2
the final determination of the claims of creditors of an insolvent 3
estate, or within such further time as the court may allow, and 4
thereby delays a decree of distribution, such neglect shall be un- 5
faithful administration and he may be removed. 6
Contingent
claims not
payable.
1821, 72.
R. S. 68, § 5.
G. S. 99, § 5.
P. S. 137, § 28.
7 Met. 132.
16 Gray, 512.
7 Allen, 430.
123 Mass. 489.
CONTINGENT CLAIMS.
Section 27. If, at the expiration of the time allowed for the 1
proof of claims, a person is liable as a surety for the deceased, or has 2
a contingent claim against his estate which could not be proved 3
as a debt within said time, the court upon proof of such facts shall, 4
in ordering a dividend, leave in the hands of the executor or admin- 5
istrator an amount sufficient to pay to such contingent creditor a 6
proportion equal to what is then to be paid to the other creditors. 7
Same subject.
1821, 72.
R. S. 68, § 6.
G. S. 99, § 6.
P. S. 137, § 29.
Section 28. If such contingent debt becomes absolute within 1
four years after the time of the giving of the executor's or adminis- 2
trator's bond, it may be proved before the probate court, before the 3
commissioners already appointed, or before others to be appointed 4
for the purpose by the court. 5
Same subject.
1821, 72.
R. S. 68, § 7.
G. S. 99, § 7.
P. S. 137, § 30.
Section 29. Upon the allowance of such claim the creditor shall 1
be entitled to a dividend thereon equal to what has been paid to the 2
other creditors, so far as the same can be paid without disturbing 3
the former dividend ; and if the claim is not finally established, or if 4
149 Mass. 185.
Chap. 143.] settlement or estates of non-residents. 1303
5 the dividend upon it does not exhaust the assets in the hands of the
6 executor or administrator, the residue of the assets shall be divided
7 among all creditors who have proved their debts. If there is a
8 surplus after satisfying the claims of such creditors, with interest,
9 it shall be distributed to the persons legally entitled thereto.
ACTIONS BY CREDITORS DURING PENDENCY OF INSOLVENCY PRO-
CEEDINGS.
1 Section 30. Except as provided in the following section, no Actions
2 action shall be maintained against an executor or administrator after elecutor^etc.,
3 an estate has been represented insolvent, unless for a claim entitled SnofS611'
4 to a preference which would not be affected by the insolvency of f^e^Ti.
5 the estate or unless the assets prove more than sufficient to pay all ^8| |g lg
6 the debts allowed by the commissioners. If the estate is repre- g. s. 99', § 20*.
PS 137 § 31
7 sented insolvent while an action is pending for a claim which is 1 Mass. 502.
8 not entitled to such preference, the action may be discontinued 116 Mass. 447.
9 without costs; or, if it is disputed, the action may be tried and {fl Mass! 227!
10 determined and judgment rendered thereon in the same manner and
11 with the same effect as is provided in the case of an appeal from the
12 allowance or disallowance of the claim of a creditor ; or the action
13 may be continued without costs until it appears whether the estate
14 is insolvent, and, if it is not insolvent, the plaintiff may prosecute
15 the action as if no such representation had been made.
1 Section 31. If it is not ascertained at the end of eighteen —to be com.
2 months after the granting of letters testamentary or of administra- SlinW. w en*
3 tion whether an estate represented insolvent is or is not so in fact, q\ |; 99) 1 f£;
4 any creditor whose claim has not been presented for proof may com- fails' L?"
5 mence an action therefor against the executor or administrator, and
6 such action may be continued without costs for the defendant until
7 it appears whether the estate is insolvent ; and if it is not insolvent,
8 the plaintiff may prosecute the action as if no such representation
9 had been made.
1 Section 32. If judgment has been rendered against the estate Proceedings
2 of a deceased person which has been represented insolvent, and a men^asieen
3 certified copy from the probate court, showing such representation, a|afnst an m-
4 has been filed in the clerk's office of the court in which the judgment fggo6^68**1*"
5 was rendered, no execution shall be issued on such iudgnient ; but ?■ C137, L33-
jo7 236 IVItiss. 294.
6 such judgment may be presented for allowance in the same manner
7 as other claims of creditors, and otherwise the proceedings relative
8 to such judgment shall be the same as those relative to judgments
9 rendered on appeal under the provisions of section thirteen.
CHAPTER 143.
OF THE SETTLEMENT OF THE ESTATES OF DECEASED NON-RESIDENTS.
1 Section 1. If administration is taken in this commonwealth Administra.
, , tion of estates
2 on the estate of a person who was an inhabitant of anv other state of deceased
DOD-rGSiClGDtfi
3 or country, his estate found here shall, after payment of his debts, r. s. 70, §21. *
1304
SETTLEMENT OF ESTATES OF ABSENTEES. [CHAP. 144.
1843, 92.
G. S. 101, § 38.
P. S. 138, § 1.
9 Mass. 337.
11 Mass. 256.
6 Pick. 481.
3 Met. 109.
147 Mass. 204.
165 Mass. 240.
be disposed of according to his last will, if he left any duly ex- 4
ecuted according to law ; otherwise his real property shall descend 5
according to the laws of this commonwealth, and his personal prop- 6
erty shall be distributed and disposed of according to the laws of 7
the state or country of which he was an inhabitant. 8
Administra-
tion of estates
ot deceased
non-residents.
R. S. 70, § 22.
G. S. 101, § 39.
P. S. 138, § 2.
151 Mass. 601.
152 Mass. 74.
Section 2. After the payment of all debts for which such estate 1
is liable in this commonwealth, the residue of the personal property 2
may be distributed and disposed of, as provided in the preceding 3
section, by the probate court ; or, in the discretion of the court, it 4
may be transmitted to the executor or administrator, if any, in the 5
state or country of which the deceased was an inhabitant, to be 6
there disposed of according to the laws thereof. 7
Settlement of
such estate
when insol-
vent.
R. S. 70, § 23.
G. S. 101, § 40.
P. S. 13S, § 3.
Section 3. If such person dies insolvent, his estate found in 1
this commonwealth shall, as far as practicable, be so disposed of that 2
all his creditors here and elsewhere may each receive an equal pro- 3
portion of their respective debts. 3 Pick. 128. 8 Pick. 475. 4
Same subject.
R. S. 70, §§ 24,
25.
G. S. 101, § 41.
P. S. 138, § 4.
Section 4. The estate shall not be transmitted to the foreign 1
executor or administrator until all the creditors who are citizens 2
of this commonwealth have received the proportion which would 3
be due to them if the whole estate of the deceased, wherever 4
found, which is applicable to the payment of common creditors 5
were divided without preference among all the creditors in pro- 6
portion to their respective debts ; and no creditor who is not a 7
citizen of this commonwealth shall be paid out of the assets found 8
here, until all those who are such citizens have received the propor- 9
tion provided in the preceding section. 10
Same subject.
R. S. 70, § 26.
G. S. 101, § 42.
P. S. 138, § 5.
Section 5. If there is a residue after such payment to the 1
citizens of this commonwealth, it may be paid to any other creditors 2
who have duly proved their debts here, in proportion to the amount 3
due to each of them, but no one shall receive more than would be 4
due to him if the whole estate were divided ratably among all the 5
creditors as before provided. The balance may be transmitted to 6
the foreign executor or administrator ; or if there is none, it shall, 7
after the expiration of four years from the appointment of the ad- 8
ministrator, be distributed ratably among all creditors, both citizens 9
and others, who have proved their debts in this commonwealth. 10
CHAPTER 144.
of the settlement of estates of absentees.
Petition for
appointment
of receiver.
1894, 203.
1897, 447, § 1.
Section 1 . If a resident of the commonwealth having property 1
therein has disappeared, absconded or is absent therefrom and has 2
left no agent therein and his whereabouts are unknown ; or if such 3
resident, who has a wife or minor child dependent upon him wholly 4
or partly for support, has disappeared without making sufficient 5
provision for such support and his whereabouts are unknown, or if 6
Chap. 144.] settlement or estates of absentees. 1305
7 it is known that they are without the commonwealth, a person who
8 would be entitled to administer upon his estate if he were dead, or
9 such wife, or a person in behalf of such wife or minor child, may
10 file a petition, under oath, in the probate court for the county in
11 which any such property is located or found, stating the name, age,
12 occupation and last known residence or address of such absentee,
13 the date and circumstances of his disappearance, and the names
14 and residence of the family of such absentee and of other persons
15 of whom inquiry may be made and containing a schedule of his
16 property, real and personal, so far as known, and its location within
17 the commonwealth, and praying that such property may be taken
18 possession of and a receiver thereof appointed under the provisions
19 of this chapter.
1 Section 2 . The court may thereupon issue a warrant directed ^rr^t-§ x
2 to the sheriff or his deputy, which may run into and be served in
3 any county, commanding him to take possession of the property,
4 named in said schedule and hold the same subject to the order of
5 the court and make return of said warrant as soon as may be with his
6 doings thereon with a schedule of the property taken possession of
7 by virtue thereof. The officer shall post a copy of the warrant
8 upon each parcel of land named in the schedule and cause so much
9 of the warrant as relates to land to be recorded in the registry of
10 deeds for the county and district in which the land is located. He
11 shall receive such fees for serving the warrant as the court allows
12 but not more than those established by law for similar service upon
13 a writ of attachment. If the petition is dismissed, said fees and
14 the cost of publishing and serving the notice hereinafter provided
15 shall be paid by the petitioner. If a receiver is appointed said fees
16 and cost shall be paid by the receiver and allowed in his account.
1 Section 3. Upon the return of such warrant, the court may Notice.
2 issue a notice which shall recite the substance of the petition, war- 189'>M7'§L
3 rant and officer's return and shall be addressed to such absentee and
4 to all persons who claim an interest in said property, and to all
5 whom it may concern, citing them to appear at a time and place
6 named and show cause why a receiver of the property named in the
7 officer's schedule should not be appointed and said property held
8 and disposed of under the provisions of this chapter.
1 Section 4. The return day of said notice shall be not less than same subject.
2 thirty nor more than sixty days after its date. The court shall m,u7,%i.
3 cause said notice to be published in one or more newspapers within
4 the commonwealth, once in each of three successive weeks and to
5 be posted in two or more conspicuous places in the city or town in
6 which the absentee last resided or was known to have been either
7 temporarily or permanently and upon each parcel of land named in
8 the officer's schedule, and a copy to be mailed to the last known
9 address of such absentee. The court may order other and further
10 notice to be given within or without the commonwealth. The
11 certificate of the register of the court that he has served the notice
12 as directed by the court shall be filed before the return day and
13 shall be conclusive proof of such service.
1306
SETTLEMENT OF ESTATES OF ABSENTEES. [CHAP. 144.
Appointmen
of receiver.
Bond.
1897, 447, §§1,2.
Transfer of
property, etc.
Possession of
additional
property.
Debts.
Section 5. The absentee and any person who claims an interest 1
in any of the property may appear and show cause why the prayer 2
of the petition should not be granted. The court may after hearing 3
dismiss the petition and order the property in possession of the 4
officer to be returned to the person entitled thereto, or it may 5
appoint a receiver of the property which is in the possession of the 6
officer and named in his schedule. If a receiver is appointed the 7
court shall find and record the date of the disappearance or abscond- 8
ing of the absentee ; and such receiver shall give bond to the judge 9
of probate and his successors in office in such sum and with such 10
condition as the court orders, with a company named in section 11
sixty-one of chapter one hundred and eighteen and approved by 12
the court as surety thereon. 13
Section 6. After the filing and approval of such bond the 1
court may order the sheriff or his deputy to transfer and deliver to 2
such receiver the possession of the property under the aforesaid 3
warrant, and the receiver shall file in the registry of probate a 4
schedule of the property received by him. 5
Section 7. Such receiver upon petition filed by him may be 1
authorized and directed to take possession of any additional prop- 2
erty within the commonwealth which belongs to such absentee and 3
to demand and collect all debts due such absentee from any person 4
within the commonwealth, and hold the same as if it had been 5
transferred and delivered to him by the officer. 6
Management
and sale of
property.
1897, 447, § 3.
Allowance to
widow and
children.
1897, 447, § 3.
Compensation
of receiver;
accounts ;
barring of
suits.
1897, 447, § 6.
Section 8. The court may make orders for the care, custody, 1
leasing and investing of said property and its proceeds. If any of 2
said property consists of live animals or is perishable or cannot be 3
kept without great or disproportionate expense, the court may, at 4
any time after the return of the warrant, order such property to be 5
sold at public or private sale. After the appointment of a receiver, 6
upon his petition and after notice, the court may order all or part of 7
said property, including the rights of the absentee in land, to be 8
sold at public or private sale to supply money for payments author- 9
ized by this chapter or for re-investment approved by the court. 10
Section 9. The court may order said property or its proceeds 1
acquired by mortgage, lease or sale to be applied in payment of 2
charges incurred or that may be incurred in the support and main- 3
tenance of the absentee's wife and minor children, and to the dis- 4
charge of such debts as may be proved against said absentee. 5
Section 10. The receiver shall be allowed such compensation 1
and such disbursements as the court orders to be paid out of said 2
property or its proceeds. If such absentee appears within fourteen 3
years after the date of the disappearance and absconding as found 4
and recorded by the court, the receiver shall account to him for, 5
deliver and pay over the unexpended balance of said property. 6
If, within said fourteen years, an administrator, executor, assignee 7
in insolvency or trustee in bankruptcy of said absentee is appointed, 8
such receiver shall account for, deliver and pay over to him the 9
unexpended balance of said property. If said absentee does not 10
Chap. 145.] - guardianship. , 1307
11 appear and claim said property within said fourteen years, all
12 the right, title and interest of said absentee in said property, real
13 or personal, or the proceeds thereof shall be barred and no action,
14 suit or petition in any form shall be commenced by said absentee
15 after the expiration of said fourteen years for or on account of said
16 property or its proceeds.
1 Section 11. If, at the expiration of said fourteen years, said ^tabution of
2 property has not been accounted for, delivered or paid over under 1897,447, §§4, 5.
3 the provisions of the preceding section, the court shall order the
4 distribution of the unexpended balance thereof to the persons to
5 whom, and in the shares and proportions in which, it would have
6 been distributed if said absentee had died intestate on the day four-
7 teen years after the date of the disappearance or absconding as
8 found and recorded by the court.
1 Section 12. If such receiver is not appointed within thirteen Limitation if
2 years after the date found by the court under the provisions of anointed n
3 section five, the time limited for accounting for, or fixed for dis- years* thllteen
4 tributing, said property or its proceeds, or for barring actions
5 relative thereto, shall be one year after the date of the appointment
6 of the receiver instead of the fourteen years provided in the two
7 preceding sections.
CHAPTEE 145.
OF GUARDIANSHIP.
Section 1 . — Jurisdiction .
Sections 2-5. — Of Minors.
Sections 6-11. — Of Insane Persons and Spendthrifts.
Sections 12-15. — Of Married Women.
Sections 16-19. — Of Persons out of the Commonwealth.
Sections 20, 21. — Temporary Guardians.
Section 22. — Removals, Resignations, etc.
Sections 23, 24. — Guardians ad Litem and Next Friend.
Sections 25-39. — General Powers and Duties of Guardians.
Sections 40, 41. — Conservators of the Property of Aged Persons.
Section 42. — Agents of Non-resident Guardians and Conservators.
JURISDICTION.
1 Section 1. The probate court may, if it appears necessary Appointment
2 or convenient, appoint guardians of minors and others who are a E?T§ 2?8'
3 inhabitants of or residents in the county or who reside out of this mt^\ to. § 2"
4 commonwealth and have estate within the county. lsn'ilWi
R. S. 79, §1. G. S. 109, §1. P. S. 139, § 1. 5 Pick. 370. 128 Mass. 587.
OF MINORS.
1 Section 2. If a minor is under the age of fourteen vears, the same subject
2 probate court may nominate and appoint his guardian. If he is nss, 3's, §i. "
3 above that age, he may nominate his own guardian, who, if approved g. i'. io&f§22.
1308
GUARDIANSHIP.
[Chap. 145.
p. S. 139, § 2.
154 Mass. 378.
Appointment
of guardians.
175-2-3, 12, § 7.
1783, 38, § 1.
R. S. 79, § 3.
1837, 171, § 2.
G. S. 109, § 3.
by the court, shall be appointed accordingly. If the person nomi- 4
nated is not approved by the court, or if the minor resides out of the 5
commonwealth, or, after being cited, neglects to nominate a suitable 6
person, the court may nominate and appoint his guardian in the 7
same manner as if he were under the age of fourteen years. 8
Section 3. The nomination of a guardian by a minor above the 1
age of fourteen years may be made before a justice of the peace, 2
special commissioner or a city or town clerk, who shall certify the 3
fact to the probate court. p. s. 139, §3. 1899, 178, §2. 4
Power of
guardian of
minor.
C L. 211, § 4.
R. S. 79, § 4.
G. S. 109, § 4.
1871, 116.
1S73, 367.
1880, 66.
P. S. 139, § 4.
149 Mass. 57.
Section 4. The guardian of a minor, unless sooner discharged 1
according to law, shall continue in office until the minor arrives at 2
the age of twenty-one years, and he shall have the custody and tui- 3
tion of his ward and the care and management of all his estate, except 4
that the father of the minor, if living, and in case of his death, the 5
mother, they being, respectively, competent to transact their own 6
business, shall be entitled to the custody of the person of the minor 7
and to the care of his education ; but the probate court may order 8
that the guardian shall have such custody, if, upon a hearing and after 9
such notice to the parents or surviving parent as it may order, it 10
finds such parents or parent to be unfit to have such custody, or if 11
it finds one of them unfit therefor, and the other files' in such court 12
his or her consent in writing to such order. 13
Appointment
of testamen-
tary guardian.
R. S. 79, § 6.
G. S. 109, § 5.
1877, 128.
P. S. 139, § 5.
1898, 138.
8 Met. 127.
9 Allen, 518.
Section 5. A father, or, if he has died without exercising the 1
power, a mother may by his or her last will in writing appoint, 2
subject to the approval of the probate court, a guardian for his or 3
her child, whether born at the time of making the will or after- 4
ward, to continue during the minority of the child or for a less 5
time. Such testamentary guardian shall have the same powers and 6
perform the same duties, relative to the person and estate of the 7
ward, as a guardian appointed by the probate court. 8
— of guardian
of insane per-
son.
1693-4, 18.
1726-7, 12, § 1.
1731-2, 14, § 1.
1737-8, 9, § 1.
1783, 38, § 2.
R. S. 79, § 9.
G. S. 109, § 8.
P. S. 139, § 7.
8 Mass. 129.
12 Mass. 505.
5 Pick. 490.
— of guardian
of spend-
thrift.
1783, 38, § 7.
R. S. 79, §§ 11,
12.
1846, 249.
ii. S. 109, § 9.
P. S. 139, § 8.
1897, 173.
12 Pick. 152.
106 Mass. 501.
OF INSANE PERSONS AND SPENDTHRIFTS.
Section 6. If the relations or friends of an insane person, or 1
the mayor and aldermen or selectmen of a city or town of which 2
an insane person is an inhabitant or resident, apply to the probate 3
court to have a guardian appointed for him, the court shall cause 4
not less than fourteen days' notice of the time and place appointed 5
for the hearing to be given to him ; and if after a hearing the court 6
finds that he is incapable of taking care of himself, it shall appoint 7
a guardian of his person and estate. 8
7 Met. 388. 4 Gray, 63. 102 Mass. 14. 154 Mass. 378.
Section 7. If a person, by excessive drinking, gaming, idle- 1
ness, or debauchery of any kind, so spends, wastes or lessens his 2
estate as to expose himself or his family to want or suffering, or 3
any city or town to charge or expense for his support or for the 4
support of his family, the overseers of the poor of the city or town 5
of which he is an inhabitant or resident, or upon which he is or may 6
become chargeable, or a relation or relations of such spendthrift, 7
may file a petition in the probate court, stating the facts and cir- 8
Chap. 145.] . guardianship. 1309
9 cumstances of the case and praying to have a guardian appointed.
10 In towns in which overseers of the poor are not chosen and in which
11 selectmen act as such, the selectmen may file such petition. Upon
12 the filing of such petition, the court shall cause not less than four-
13 teen days' notice of the time and place appointed for the hearing
14 to be given to the supposed spendthrift *, and if, after a hearing, it
15 finds that he comes within the above description, it shall appoint a
16 guardian of his person and estate.
1 Section 8. Such petitioners may cause a copy of the petition, Effect on con.
2 with the order of notice thereon, to be recorded in the registry of recording com-
3 deeds for the county and district in which any land of the supposed ms%s, § 7.
4 spendthrift is located ; and if a guardian is appointed upon such Jf.^; |j; § L
5 petition, all contracts, except for necessaries or relative to land, and g- I'i^Yio
6 all gifts, sales or transfers of personal property made by the spend- f^shS!!'
7 thrift after an order of notice upon the petition has been issued by 97 Mass! sos.'
8 the probate court, and all contracts relative to and sales and con- 130 Mass! 458.
9 veyances of land made by the spendthrift after such record in the \i \ Mall'. 354!
10 registry of deeds for the county and district in which the land is
11 located, and before the termination of the guardianship, shall be void.
1 Section 9. If a guardian is appointed for an insane person Allowance for
2 or spendthrift, the court shall make an allowance, to be paid by the fnsaneperson.
3 guardian, for all reasonable expenses incurred by the ward in de- r2|.739,§§2i'4.
4 fending himself against the petition. p. s. 139, §10. g. s.109, §11.
1 Section 10. The guardian of an insane person or spendthrift lowers, etc.,
2 shall have the care and custody of the person of his ward and the insane person
3 management of all his estate, and shall give- the bond prescribed in lTslfls, §§2*
4 section one of chapter one hundred and forty-nine, except that the kJs. 79, §§ io,
5 conditions relative to the education of the ward shall be omitted. g.' s. 109, § 12.
P. S. 139, § 11. 5 Mass. 427. 162 Mass. 582.
1 Section 11. The guardian of an insane person or spendthrift Termination of
2 may be discharged by the probate court, upon the application of the R. s. 79, § 23. '
• • • •• GS 109 $ 26
3 ward or otherwise, when it appears that the guardianship is no p.' s." 139,' § 12.'
4 longer necessary.
OP MARRIED WOMEN.
1 Section 12. If a married woman owns property, real or per- Appointment
2 sonal, a guardian may be appointed for her for the same causes, in °f married11
3 the same manner and with the same powers and duties, as if she G?s!aio8 §16.
4 were sole, except as hereinafter provided. But a guardian shall p- s- 139> § 13-
5 not be so appointed without such notice to the husband as the court
6 may order.
1 Section 13. Such guardian shall not have the care, custody or such guardian
2 education of his ward, except in case of the insanity of her hus- custodyfetc.,
3 band, or of his abandoning her by absenting himself from this exceptfetc.
4 commonwealth and making no sufficient provision for her. ^- f • ^|> | JJ-
1 Section 14. Such guardian shall not apply the property of his —not to apply
2 ward to the maintenance of herself and her family while she is mar- ?upportywith.er
3 ried, unless he is thereto authorized by the probate court on account probatecourt.
1310 GUARDIANSHIP. [CHAP. 145.
g. s. 108, §18. of the inability of her husband suitably to maintain her or them, or 4
' ' for other cause which the court considers sufficient. 5
Ssan^married Section 15. If a married woman is by reason of insanity or 1
woman having infancy incompetent to release her right of dower or of homestead, 2
ri°'iit oi dower, • ^
et?\ , ^ guardian may be appointed for her in the same manner as if she 3
im', 29s! ?§ s, 9. were sole, with the powers and duties given to guardians of mar- 4
p.' s." 139,' § 16." ried women who own property, and the husband or any suitable 5
1890,259. person may be appointed such guardian. 6
OF PERSONS OUT OF THE COMMONWEALTH.
oV^uaro?annof Section 16. If a person who is liable to be put under guardian- 1
npj-resident. snip according to the provisions of this chapter resides out of the 2
r. s. 79, §28. commonwealth and has any estate therein, a friend of such person 3
G S 109 § 13 ♦
p.' s! m § 17.* or any one interested in his estate, in expectancy or otherwise, may 4
A AllAr, ACH ^ - •I'll • 1
apply to the probate court for a county in which there is such estate, 5
which, after notice to all persons interested and a hearing and 6
examination, may appoint a guardian for him. 7
of0such' etc'' Section 17. Such guardian shall have the same powers and 1
guardian. duties relative to any estate of the ward found within the common- 2
g. s! io9, § ii. wealth and also relative to the person of the ward, if he comes to 3
P S 139 § 18 .
13 Met. so, ^ reside therein, as other guardians who are appointed under the 4
provisions of this chapter. 4 Alien, 321. 5
4 Allen, 466.
2 Allen, 206.
to0™<r0ivenby Section 18. Such guardian shall give the bond prescribed in 1
it's' 79 §30 section one of chapter one hundred and forty-nine, except that the 2
g'. s'. io9, § io. conditions relative to the inventory, the disposal of the estate and 3
1879 184 •
p. s. 139, § 19. efi'ects and the account to be rendered by him shall be confined to 4
such estate and effects as come to his hands in this commonwealth. 5
forr°nondreff- Section 19. If a person who is a resident in another state is 1
dent guardian entitled to real or personal property of any description in this 2
of non-resident \ -iiti-/» ■,
ward to receive commonwealth, and is under the guardianship oi a person who is o
here. also resident in such other state, who produces to the probate court 4
1880 154- °f the county in which such property or the principal part thereof 5
moo,' 232.' § 2°' ig situated a full and complete and duly exemplified or authenticated 6
transcript from the records of a court of competent jurisdiction in 7
such other state, showing that he has there been appointed such 8
guardian, and has given a bond and security in double the value 9
of the property of such ward, then such transcript may be recorded 10
in such probate court, and such guardian shall be entitled to receive 11
from such court letters of guardianship of the estate of such ward 12
in this commonwealth which shall authorize him to care for and 13
manage the real and personal property of such ward, to collect the 14
rents and profits therefrom and to demand, sue for and recover any 15
such property, and to remove any of the movable property or 16
estate of such ward out of this commonwealth, if such removal will 17
not conflict with the terms and limitations attending the right by 18
which the ward holds the same. Such probate court may also 19
order any resident guardian, executor or administrator who has any 20
of the estate of such ward to deliver the same to any person who 21
has taken out letters of guardianship as aforesaid. 22
Chap. 145.] guardianship. 1311
temporary guardians.
1 Section 20. Upon the petition of the mayor of a city, the select- Temporary
i> j. j.i j? iL r -4. j. 4.x. guardian, ap-
2 men of a town, the overseers ot the poor ot a city or town or other pomtment of .
3 person in interest, the judge of the probate court may, after giving p.'s'. 139, § 6.
4 due notice according to the rules of the probate court, appoint a lgoolijtlfVi.s.
5 temporary guardian of a minor, insane person or spendthrift and 1901> 213> 523-
6 may, with or without notice, remove or discharge him or terminate
7 the trust. If the court finds that the welfare of such minor requires
8 the immediate appointment of a temporary guardian of his person,
9 such appointment maybe made without notice. A temporary guar-
10 dian shall proceed and continue in the execution of his duties, not-
11 withstanding an appeal from the decree appointing him, until it is
12 otherwise ordered by the supreme judicial court, or until the ap-
13 pointment of a permanent guardian, or until his trust is otherwise
14 legally terminated.
1 Section 21. Such temporary guardian shall, until otherwise —powers and
2 ordered, or until his removal or the appointment of a permanent lsrefm'
3 guardian, have the same powers and perform the same duties re la- ^97,' 135,' § 2 ."
4 tive to the person and estate of the ward as permanent guardians, 1900' U5> §§ 2> 5-
5 and may be decreed the custody of the persons of minors, if the court
6 finds the parent or parents unfit therefor or if it finds one of them
7 unfit therefor and the other consents to such custody by the tempo-
8 rary guardian or if a temporary guardian is serving or appointed to
9 serve in place of a temporary guardian removed. If such temporary
10 guardian of a minor is appointed pending proceedings for an order
11 for custody under the provisions of section four or for the removal
12 of a guardian of a minor, he shall have the sole custody and control
13 of the ward during the pendency of such proceedings. Upon the
14 termination of his powers, a temporary guardian shall deliver to
15 the guardian or such person as is otherwise lawfully authorized to
16 receive it the estate of the ward in his hands. A guardian may
17 be admitted to prosecute an action commenced by a temporary
18 guardian.
REMOVALS, RESIGNATIONS, ETC.
1 Section 22. If a guardian who has been appointed either by a Removal, etc.,
2 testator or by the court becomes insane or otherwise incapable of anlappoTnt-
3 performing his trust or is unsuitable therefor, the probate court, Jlelsor.1' 8UC~
4 after notice to him and to all other persons interested, may remove Jqit"* 1S0 §36
5 him. Upon the request of a guardian, the probate court may in its S" f* io9§s2|i
6 discretion allow him to resign his trust. Upon such removal or p.' s.' 139,' § 21."
© 1 4 Pick 283
7 resignation, and upon the death of a guardian, another may be ap- 8 Pick! 143."
a • 4- A • i- *. A 4 Gray, 63.
8 pointed in hlS Stead. 105 Mass. 501. 128 Mass. 587. 155 Mass. 433.
GUARDIANS AD LITEM AND NEXT FRIEND.
1 Section 23. If, under the terms of a written instrument or Appointment
2 otherwise, a minor or person under disability, or a person or per- adfuem.ian
3 sons not ascertained or not in being, may be or may become inter- 1896, 456' § lm
4 ested in any property real or personal, the court in which any action,
5 petition or proceeding of any kind relative to or affecting any
6 such estate is pending, except the court of land registration, may,
1312
GUARDIANSHIP.
[Chap. 145.
Cost of appear-
ance.
1896, 456, § 2.
upon the representation of any party thereto, or of any person inter- 7
ested, appoint a suitable person to appear and act therein as guar- 8
dian ad litem or next friend of such minor or person or persons 9
under disability or not ascertained or not in being ; and a judgment, 10
order or decree in such proceedings, made after such appointment, 11
shall be conclusive upon all persons for whom such guardian ad 12
litem or next friend was appointed. IS
Section 24. The reasonable expenses of such guardian ad litem 1
or next friend, including his compensation and that of his counsel, 2
shall be determined by the court and paid as it may order, either 3
out of the estate or by the plaintiff or petitioner. If such expenses 4
are to be paid by the plaintiff or petitioner execution therefor may 5
issue in the name of the guardian ad litem or next friend. &
Powers and
duties of
guardians.
1726-7, 12, § 5.
1731-2, 14, § 5.
1737-8, 9, § 3.
1783, 38, § 4.
1806, 102.
R. S. 79, § 17.
G. S. 109, § 18.
P. S. 139, § 29.
13 Mass. 237.
1 Pick. 314.
5 Pick. 431.
19 Pick. 346,
506.
8 Cush. 587.
12 Cush. 324.
Same subject.
1726-7, 12, § 4.
1731-2, 14, § 4.
1737-8, 9, § 3.
1783, 38, § 4.
1806, 102.
R. S. 79, § 18.
G. S. 109, § 19.
P. S. 139, § 30.
20 Pick. 116.
4 Allen, 426.
8 Allen, 427.
10 Allen, 59.
109 Mass. 252.
Same subject.
1727, 5.
1783, 41, § 1.
R. S. 79, § 19.
1852, 248.
G. S. 109, § 20.
P. S. 139, § 31.
1 Pick. 221, 314.
GENERAL POWERS AND DUTIES OF GUARDIANS.
Section 25. A guardian shall pay all just debts which are due
from his ward out of the personal property, if sufficient, and, if not,
out of the real property, upon obtaining a license for the sale thereof
as provided in chapter one hundred and forty-six. He shall settle
all accounts of his ward and demand, sue for and receive all debts
due to him or, with the approval of the probate court, may com-
promise the same and give a discharge to the debtor. He shall
appear for and represent his ward in all actions, suits and proceed-
ings, unless another person is appointed for that purpose as guar-
dian ad litem or next friend.
9 Gray, 84, 255.
5 Allen, 464.
10 Allen, 463.
97 Mass. 508.
100 Mass. 239.
101 Mass. 60.
106 Mass. 501.
HI Mass. 265.
133 Mass. 531.
155 Mass. 136.
168 Mass. 215, 573.
170 Mass. 499.
Support of
minor child by
parents.
1891, 358.
Section 26. He shall manage the estate of his ward frugally
and without waste, and shall apply the income and profits thereof,
so far as may be necessary, to the comfortable and suitable mainte-
nance and support of the ward and his family. If the income and
profits are insufficient for that purpose, the guardian may sell the real
property upon obtaining a license therefor, and shall apply the pro-
ceeds of such sale, so far as may be necessary, for the maintenance
and support of the ward and his family. 120 Mass. 487. ieo Mass. 233.
Section 27. A guardian may, except when he has an interest
adverse to that of the ward in the estate to be divided, make parti-
tion of his ward's real property if lying in common and undivided,
either upon petition for partition or otherwise, as fully and in like
manner as the ward could do if he were under no disability, may
assign and set out dower in his ward's estate to any widow entitled
thereto, and may appoint an appraiser of real property on an execu-
tion either against or in favor of his ward.
Section 28. The probate court may, upon the petition of a
guardian entitled to the custody of his minor ward, during the life-
time of either or both of his parents, and after notice to all parties
interested, order and require said parents or either of them to con-
tribute to the support and maintenance of such minor in such
amounts and at such times as it determines are just and reasonable.
Such parent or parents may be required to give a bond conditioned
1
2
3
4
5
6
7
8
9
10
1
2
3
4
5
6
7
8
1
2
3
4
5
6
7
8
1
2
3
4
5
6
7
Chap. 145.] guardianship. 1313
8 to comply with such order and payable to the judge of said court
9 and his successors in such sum and "with such sureties as the court
10 orders. The court may from time to time, upon application of
11 either party, revise or alter such order or make such new order or
12 decree as the circumstances of the parents or the benefit of the
13 minor may require.
1 Section 29. If a minor, who has a father living, has property Application of
2 sufficient for his maintenance and education in a manner more ex- CTtyTo8hPs°p"
3 pensive than the father can reasonably afford, regard being had to ratPhPr^fe.mg
4 the situation of the father's family and to all the circumstances of f^^; §2-
5 the case, the probate court may order that such expenses of the p-f-j^'ffl-
6 maintenance and education of such child as it determines are rea- 2 Mass. 415.
4 JVIfiss 97 '
7 sonable may be defrayed out of his own property ; and if necessary, 8 cush! 587.
8 his real property upon obtaining license therefor may be sold for that
9 purpose by the guardian.
1 Section 30. The probate court may, upon the application of the support of
2 guardian of an insane person or of a child or the guardian of a in sane person
3 child of an insane person, after notice to all other persons inter- dTa^hfp.8*"
4 ested, authorize and require the guardian of such insane person to ^fs'.^g §33.
5 apply to the maintenance and education of any child or children of
6 said ward such portion as the court orders of the income of the
7 ward, which is not required for his maintenance and support.
1 Section 31. The probate court for the county in which a guar- —of wife of
2 dian of an insane person has been appointed may make an allowance undCTgua8-011
3 out of the estate of such insane person for the support of his wife, ^ 45^'
4 to be paid to her by the guardian during the continuance of the (ffs'.ws § 26.
5 guardianship in such manner as the court orders. 160 Mass. 233. p6! 139 $34
1 Section 32. The probate court may, after notice to all persons Guardiansmay
2 interested, authorize guardians to obtain by purchase the release of dower, etc6,8
3 and conveyance of a right of dower or of curtesy, homestead, life property8 real
4 estate, estate for years or other interest, vested or contingent, held p36!.2^ I35
5 or owned by any person in or to any real property of their wards,
6 and to make any contract relative to such rights or interests which
7 may be necessary to effect such purchase.
1 Section 33. If property, rights or benefits given by will or Election or
2 by provision of law depend upon the election, waiver or other guardian!'
3 act of a person incompetent by reason of insanity or minority to p.'s.9i39, § 36.
4 exercise or perform the same, his guardian may make such election i{| Mass' 137"
5 or waiver or perform such act.
1 Section 34. Upon taking an inventory, the estate and effects Appraisal of
2 comprised therein shall be appraised by three appraisers, who shall 1817, 190, § 34.
3 be appointed and sworn as is required by law relative to the in- q\ §; io'9)§§2n.
4 ventory of the estate of a deceased person. p. s. 139, §37.
1 Section 35. The probate court may, upon the application of a saieofper.
2 guardian or of any person interested in the estate of a ward, after oTward°pert7
3 notice to all other persons interested, authorize or require the ^20! 54°§§335'
4 guardian to sell and transfer any personal property held by him as §. l'.io9§§222.
13H
GUARDIANSHIP.
[Chap. 145.
P. S. 139, § 38.
2 Pick. 243.
8 Allen, 15.
120 Mass. 102.
149 Mass. 375.
168 Mass. 576.
guardian and to invest the proceeds thereof and all other money 5
in his hands in such manner as may be most for the interest of all 6
concerned. Said court may make such further order and give such 7
directions as the case may require for the management, investment 8
and disposition of the estate in the hands of the guardian. 9
Transfer of
estate of ward
who lias no
guardian in
this state.
1866, 122, § 2.
1877, 127.
P. S. 139, § 40.
Section 36. An executor, administrator or trustee who has in 1
his hands personal property belonging to a person under guardian- 2
ship residing out of this commonwealth and having no guardian ap- 3
pointed therein may pay over and transfer the whole or any part 4
of such personal property to a guardian, trustee, or committee ap- 5
pointed by competent authority in the state or country in which 6
such person resides, upon the terms and in the manner required 7
by the provisions of section twenty-five of chapter one hundred and 8
fort}r-six. 9
riagfof^emaie Section 37. The marriage of a female under guardianship as a 1
ward. minor shall deprive her guardian of all right to her custody and 2
Gls!io9, §26. education, but not of his right to the possession of her property. 3
P. S. 139, § 41. 15 Gray, 445.
Recovery of
property of
ward which
has been
embezzled, etc.
1726-7, 12, §§2, 3.
1731-2, 14, §§2, 3.
1737-S, 9, § 2.
1783, 3S, § 3.
R. S. 79, § 27.
1857, 71, § 2.
G. S. 109, § 30.
P. S. 139, § 42.
11 Gray, 210.
Section 38. Upon complaint to the probate court by a guardian, 1
ward, creditor or other person interested in the estate of a ward 2
or by a person having claims thereto in expectancy as heir or other- 3
wise, against any one suspected of having fraudulently received, 4
concealed, embezzled or conveyed away any of the property, real 5
or personal, of the ward, the court may cite and examine such sus- 6
pected person, although he is the guardian, in the manner and 7
subject to the penalties provided relative to persons suspected of 8
fraudulently receiving, concealing or embezzling the estate of a de- 9
ceased person. 10
Provisions of
this chapter
not to prevent
appointment
of guardian
ad litem or
next friend.
R. S. 79, § 8.
G. S. 109, § 7.
P. S. 139, § 43.
1896, 456, § 3.
8 Cush. 507.
Section 39. The provisions of this chapter shall not affect the 1
power of a court or trial justice to appoint a guardian to defend 2
the interests of a minor impleaded in such court or before such 3
trial justice, or interested in a suit or matter there pending, nor 4
the power of such court or justice to appoint or allow a person, as 5
next friend for a minor, to commence, prosecute or defend a suit 6
in his behalf. Ill Mass. 265. 116 Mass. 377. 7
Conservators
of the property
of aged per-
sons.
1898, 527, § 1.
1901, 125.
CONSERVATORS OF THE PROPERTY OF AGED PERSONS.
Section 40. If a person by reason of advanced age or mental 1
weakness is unable to properly care for his property the probate 2
court of the county in which he resides may, upon his petition or 3
of one or more of his friends, appoint a conservator of his property. 4
Upon the filing of such petition, the court shall appoint a time and 5
place for a hearing, and shall cause at least fourteen days' notice 6
thereof to be given to the person for whom a conservator is to be 7
appointed if he is not the petitioner. If at the hearing it appears 8
that such person is incapable of properly caring for his property a 9
conservator shall be appointed who shall have the charge and man- 10
agement of such property subject to the direction of the court. 11
Such conservator may be discharged by the probate court upon the 12
Chap. 146.] sales, etc., by executors, etc. 1315
13 application of the ward, or otherwise, when it appears that the con-
14 servatorship is no longer necessary.
1 Section 41. Such conservator shall give such bond as is re- Bondofcon-
2 quired of guardians of insane persons, and all provisions of law i898,a52-f,8§ 2.
3 relative to the management, sale or mortgage of the property of
4 insane persons shall apply to such conservator.
AGENTS OF NON-RESIDENT GUARDIANS AND CONSERVATORS.
1 Section 42. The provisions of sections eight, nine and ten of President
2 chapter one hundred and thirty-nine shall apply to non-resident guardian or
•r1. - J rr j conservator.
3 guardians and conservators. 1893, us. 1889, 462.
CHAPTEE 146.
OF SALES, MORTGAGES AND LEASES OF REAL PROPERTY BY EXECU-
TORS, ADMINISTRATORS AND GUARDIANS.
Sections 1-18. — Sales.
Sections 19-24. — Sales by Guardian for Maintenance or Investment.
Section 25. — Sales by Guardian of Non-Resident Ward.
Sections 26-28 . — Mortgages .
Section 29. — Leases.
Sections 30-33. — By Foreign Executors, etc.
SALES.
1 Section 1. If the personal property of a deceased person is in- saieofreai
2 sufficient to pay his debts and legacies with the charges of admin- payPIetits!0etc.
3 istration, his executor or administrator shall, for the purpose of 17I; 32,' § 1."
4 making such payment, sell his real property in the manner herein- ^l ^'A3- 9.
5 after provided, and the proceeds of such sale shall be assets in the o'l^g^-'g!
6 hands of the executor or administrator in like manner as if they had 102, §§ i', 19. '
PS 134 $ 1
7 originally been part of the personal property of the deceased.
18 Pick. 285. 3 Gray, 205. 105 Mass. 33. 125 Mass. 363.
6 Cush. 493. 4 Allen, 359. 122 Mass. 282. 140 Mass. 351.
1 Section 2 . The real property so liable to be sold shall include Real property
2 all land of the depeased, all rights of entry and of action and all Soid!e t0 be
3 other rights and interests in land, which by law would descend to r°|, n^n.
4 his heirs or which would have been liable to attachment or execution §8f •1\°2%§i.L
5 by a creditor of the deceased in his lifetime ; but the title passed by fg7s^a38*' |^
6 any such sale shall be subject to the right of dower of the wife or to
7 the right of curtesy of the husband of the deceased, and no claim by
8 entry or by action to land fraudulently conveyed by the deceased
9 shall be made unless within five years after the decease of the
10 grantor.
1 Section 3. Real property not devised shall be first chargeable undevised
2 with the payment of debts or legacies in exoneration of the real Eabfe toyber8t
3 property devised. If a different intention appears by the will, it r.1!. 62, § 30.
4 shall Control. P. S. 134, § 3. 6 Mass. 149. 8 Pick. 478. 7 Cush. 161. G" S< 92' § u-
1316
SALES, ETC., BY EXECUTORS, ETC.
[Chap. 146.
Sale of real
property of
ward.
1783, 38, § 4.
1806, 102.
1818, 112, § 1.
1830, HO, § 1.
B. S. 71, § 26.
G. S. 102, § 24.
P. S. 140, § 1.
1899, 147.
Section 4. If the personal property in the hands of a guardian 1
is insufficient to pay all the debts of the ward, with the charges of 2
managing his property, the guardian may be licensed to sell the 3
ward's real property for that purpose or for the purpose of raising 4
money with which to pay, in whole or in part, any incumbrance 5
existing on real property when the title thereto came to his ward, 6
in like manner and upon like terms, except as hereinafter provided, 7
as are provided for a sale of real property by an executor or admin- 8
istrator. 9
What court
may grant
license to sell.
1696, 10, § 2.
1769-70, 20.
1783, 32, § 1.
1806, 102.
1817, 190, § 10.
1818, 112, §§1,3.
Section 5. A license to an executor or administrator to sell the 1
real property of a deceased person or to a guardian to sell the real 2
property of his ward may be granted by the probate court from which 3
the letters testamentary or of administration or of guardianship 4
issued . .1830, 45; 140, § i. 5
R. S. 71, §§ 2, 30; 72, § 6. G. S. 102, §§ 2, 37. P. S. 134, § 4; 140, § 13.
Form of
petition for
license to sell.
1783, 32, § 1.
R. S. 71, § 3.
G. S. 102, § 3.
P. S. 134, §5;
140, § 4.
7 Met. 454.
8 Met. 51.
5 Cush. 524.
14 Gray, 500.
Section 6. To obtain such license, the executor, administrator 1
or guardian shall file a petition stating the value of the personal prop- 2
erty in his hands, the amount of the charges of administration or 3
management, the amount of debts due from the deceased or ward, as 4
nearly as they can be ascertained, and, if a person dies testate, the 5
amount of any legacies given in his will. If it is necessary to sell 6
a part only of the real property, the value, description and con- 7
dition of the part which it is proposed to sell may also be set forth, 8
and the court may direct what specific part shall be sold. 9
Whole may be
sold if partial
sale would in-
jure residue.
1783, 32, § 2.
1818, 112, § 1.
1829, 110, § 1.
1830, 140, § 1.
R.S.71, §§4,27.
G. S. 102, §§ 4,
25.
Section 7. If it is represented in such petition and appears to 1
the court to be necessary to sell a part of the real property, and 2
that by such partial sale the residue of the property or of a specific 3
part or piece thereof would be greatly injured, the court may license 4
a sale of the whole of the property or of such part thereof as may 5
appear best. isso, 152, § 2. 6
P. S. 134, §6; 140, §2. 6 Gray, 535. 14 Gray, 500. 102 Mass. 262.
Marshalling of
assets accord-
ing to will.
R. S. 71, § 7.
G. S. 102, § 7.
P. S. 134, § 8.
6 Mass. 149.
18 Pick. 285.
Section 8. If a will contains a provision for the payment of 1
debts, or which may require or induce the court to marshal the 2
assets in a manner different from that which the law would other- 3
wise provide, the executor shall set forth in the petition a copy of 4
the will and the court shall marshal the assets accordingly, so far as 5
can be done consistently with the rights of the creditors. 6
Public or pri-
vate sale of
land.
1783, 32, §§ 1,2;
38, § 4.
1806, 102.
1817, 182, § 1.
1818, 112, § 1.
1830, 140, § 1.
R. S. 71, §§ 10,
17, 26.
G. S. 102, §§ 10,
17, 24.
1872, 278.
P. S. 134, §11;
140, §§ 1, 18.
1885, 258.
1886, 137, § 1.
1899, 147.
4 Cush. 54.
Section 9. Upon the petition of an executor or administrator 1
for a license to sell the real property of the deceased or of a guar- 2
dian to sell the real property of his ward, the court may, if the 3
petitioner so requests, authorize him to sell such property at public 4
auction and to convey to the purchaser all the estate, right, title 5
and interest which the deceased had therein at the time of his death 6
and which was then chargeable with the payment of his debts or 7
which the ward has at the time of the sale. If the petitioner re- 8
quests that such property may be sold by private sale and the court, 9
upon a hearing, finds that an advantageous offer for the purchase 10
thereof has been made to the petitioner, and that the interests of 11
Chap. 146.] sales, etc., by executors, etc. 1317
12 all parties will be promoted by an acceptance of such offer, it may 2 Gray, 154.
13 authorize a conveyance by private sale in accordance with such l^Mas's^m
14 offer or upon other terms ; but such petitioner so authorized may
15 nevertheless sell such property by public auction in accordance with
16 the provisions of this chapter.
1 Section 10. A license shall not be granted until notice of the Notice of peti.
2 petition and of the time and place appointed for hearing the same to°seii>rllcen8e
3 has been given by serving such notice personally on all persons isifl llb.Vio.
4 interested in the estate at least fourteen days before the time jj3|' f^ § s
5 appointed for the hearing, or by publication once in each of three g- f ■ J.??. § §•
n • i 1 .Li i p. s. 134, §9.
b successive weeks in such newspaper as the court orders. 1886,137, §2.
r r 1 Mass. 256.
8 Met. 51, 355. 9 Cush. 223. 13 Gray, 513.
1 Section 11. A license to sell real property shall not be granted ^^1 only3
2 to a guardian until notice, by public advertisement or otherwise ?™|rM>f j6,
3 as the court orders, has been given to the next of kin of the ward, isu,n.
4 to all his heirs apparent or presumptive and to all persons interested i83ol 45.'
5 in the estate. g. s. 102, §§ 39, 40. p. s. 140, §§ 15, 16. 72, §'s. '
1 Section 12. A license shall not be granted to an executor or No license
2 administrator, if any of the persons interested in the estate give bond to paydlbts?
3 to him in a sum and with sureties approved by the court, condi- r"'.^'/™'
4 tioned to pay, so far as the personal property of the deceased shall £• f • ™|> | ^
5 be insufficient therefor, all legacies mentioned in the petition, all l£^> H?-
6 debts therein mentioned which shall eventually be found due from
7 the estate and the charges of administering the estate.
1 Section 13. A license to sell shall not be granted to the guar- License to
2 dian of an insane person or spendthrift who resides in this common- f^sa^1 person,
3 wealth, unless seven days' notice of the petition therefor has been notice to oaverr
4 given to the overseers of the poor of the city or town in which the f|o6SioI poor'
5 ward is an inhabitant or resides. Such notice may be served upon }U$ii2, §1.
J r 1826, 64.
6 any one ot such overseers. 1830, 140, §1.
R. S. 71, § 28; 72, § 9. G. S. 102, § 38. 1874, 202. P. S. 140, § 14.
1 Section 14. The executor, administrator or guardian shall give Notice of sale
2 notice of the time and place of the sale by auction by causing notices nw-loTiM 2.
3 thereof to be posted, thirty days at least before the sale, in a public 1ISI* If; s 1*
4 place in the city or town in which the land lies, and in two adjoin- ^2| if'A2^
5 ing cities or towns, if there are so many in the county, or, if the q'£\J$ of.',1!5-
6 court granting the license so orders, by publishing the notice once *i.
7 in each of three successive weeks in a newspaper.
1877, 158, §1. P. S. 134, §12; 140, § 17.
1 Section 15. An affidavit of the executor, administrator or guar- Perpetuation
2 dian or of the person employed by him to give such notice, filed and tLfg^fng of
3 recorded with a copy of the notice in the registry of probate, or such msl%, §§ e, i.
4 affidavit made by any person and filed and recorded with such copy r1'!^ §§ 16>
5 by permission of the court upon satisfactory evidence that the notice f|g373'9|§ 12' 15-
6 was given as ordered, shall be admitted as evidence of the time, g. s. ioi, §§ ie,
7 place and manner in which the notice was given.
1876, 71, 76. P. S. 134, § 13; 140, § 17. 1888, 148, § 2; 380. 8 Met. 355,
1318 SALES, ETC., BY EXECUTORS, ETC. [CHAP. 146.
^fdsaiemmeilt Section 16. If at the time appointed for such sale the executor, 1
Ian, wo, § i 13. administrator or guardian considers it for the interest of all persons 2
18,35; 72, §15. concerned that the sale should be postponed, he may adjourn it for 3
is, d. ' not more than fourteen days, and notice of such adjournment shall 4
140, §17. ' be given by a public declaration at the time and place first ap- 5
15 Mass. 175. pointed for the sale. If the adjournment is for more than one day, 6
further notice of the sale shall be given by posting or publishing, 7
as time and circumstances may admit. 8
posseTssionof Section 17. If an executor or administrator is licensed to sell 1
ien«fcondu" ^anc^ which has been fraudulently conveyed by the deceased or is 2
veyed. fraudulently held by another person for him, or land to which the 3
13. ' ' ' deceased had a right of entry or of action or of which he had a right 4
13*. ' to a conveyance, he may, within one year after such license, sell 5
Fcusti3^!.15" the land without first obtaining possession thereof by entry or 6
g^fgY'gg00, action, or he may without a formal entry bring an action to obtain 7
105 Mass' I2' possession by virtue of such license, demanding the land as executor 8
132 Mass. 462. or administrator, and may sell the same within one year after pos- 9
147 JM3.SS. 4yi. • • i j • i -i/\
session is obtained. 10
mlnistrator for Section 18. The probate court may, upon the petition of an ad- 1
i89ori266tion' ministrator, with the consent of all parties interested or after notice, 2
license him to sell the real property or any undivided interest 3
therein belonging to the estate of the intestate, unless the appraisal 4
shows that it exceeds fifteen hundred dollars in value, in such 5
manner and upon such notice as the court orders, for the purpose 6
of distribution ; and the net proceeds of such sale, after deducting 7
the expenses thereof and such amount as may be required for the 8
payment of debts in consequence of a deficiency in the personal 9
property, shall, after two years from the time of the filing of the 10
administrator's bond, be distributed to the persons who would have 11
been entitled to said real property and in the proportions to which 12
they would have been entitled had it not been sold. 13
SALES BY GUARDIAN FOR MAINTENANCE OR INVESTMENT.
d!aJlbrar" Section 19. If the income of the estate of a ward is insufficient 1
OTainvl"tment *° mamtain him and his family or if it appears that it would be for 2
ifi93-4,is,§§3,4. his benefit that his real property or any part thereof or any standing 3
§4. '' ' or growing wood thereon should be sold and the proceeds placed on 4
i8is' ii2,' § i. interest or invested in a productive security, his guardian may sell 5
ill, ili. such real property or wood upon obtaining a license therefor and 6
r3sA52',Y§°i!2'. proceeding as hereinafter provided. If standing or growing wood 7
lm 'in' § 26' ^s so s°ld> the guardian may grant to the purchaser the privilege of 8
p. s'. ho', § 3. entering upon the land and cutting and carrying away such wood 9
within such time as the guardian may allow. 10
petmonfand Section 20. To obtain such license, the guardian shall file a 1
r sC728!'7 petition setting forth the condition of the estate and the facts and 2
g. s". 102, § 27. circumstances on which the petition is founded. If after an ex- 3
animation, on the oath of the petitioner or otherwise, the court 4=
finds that it would be for the benefit of the ward that the sale peti- 5
tioned for should be made, it may grant a license therefor, specify- 6
ing therein whether the sale is to be made for the maintenance of 7
P. S. 140, § 4.
Chap. 146.] sales, etc., by executors, etc. 1319
8 the ward and his family, or in order that the proceeds may be
9 placed on interest or invested as aforesaid.
1 Section 21. If the sale is made for the maintenance of the ward proceeds of
2 and his family, the guardian shall apply the proceeds, so far as sale it made for
3 necessary, to that purpose, and shall place the residue on interest R. s. 72, § 3. '
4 or invest it according to his best judgment until the capital is p.' s." 140,' § 5. '
5 wanted for such maintenance ; in such case, the capital may be
6 used for that purpose as if it had been personal property.
1 Section 22. If the property is sold in order to place on interest —if made for
2 or invest the proceeds, the guardian shall make the investment ac- r. s. 72, §4.
3 cording to his best judgment, or in pursuance of any order of the p." s." 140,' § 6. "
4 court relative thereto.
1 Section 23. A sale of the property of a minor for the purpose Property of
2 of investment may be made upon the petition of the guardian or soiTby^erson
3 any friend of the minor, and the court may authorize the guardian guardian!1 the
4 or another person to sell and convey the property. The provisions ^3| ^ l1^
5 of this chapter relative to licenses and sales upon the petitions of p- s- 140» § ?•
6 guardians shall, except as provided in the following section, apply
7 to licenses and sales under the provisions of this section.
1 Section 24. If the sale is made by a person other than the Disposal of
2 guardian, the proceeds shall be forthwith paid to the guardian saiTfnlsucn
3 upon his giving to the judge of probate a bond with sufficient isll,' jgo, § 2.
4 sureties conditioned to account for such proceeds. If there is no Jf5!45^ §32
5 guardian, the proceeds shall be placed on interest or invested by P-s. i4o,'§8.
6 the person authorized to sell the property, in like manner as is
7 required of a guardian.
SALES BY GUARDIAN OF NON-RESIDENT WARD.
1 Section 25. A guardian appointed within the commonwealth, vfovertyot
2 whose ward removes from or resides out of this commonwealth, may non-resident
3 sell the real property of his ward, and transfer and pay over, the resident guar-
4 whole or any part of the proceeds and the whole or any part of the isss/iit."
5 ward's personal property to a guardian, trustee, or committee ap- 1861/130. "
6 pointed by competent authority in the state or country in which the \^'t \H' § 2>
7 ward resides, upon such terms and in such manner as the probate ^ ^Ia|| || 9-
8 court by which he was appointed may, after notice to all parties
9 interested, decree upon petition filed therefor.
MORTGAGES.
1 Section 26. The probate court may, upon petition and after Executor or
2 notice to all persons interested, if upon a hearing it appears to be may'mortgage,
3 for the benefit of the estate, authorize an executor, administrator with Ysurin, §§ 1,2.
4 the will annexed, or administrator to mortgage any of the real JgTe'ra1'?!.
5 property for the purpose of paying debts, legacies or charges of fggf'-^' § 19-
6 administration or for the purpose of paying an existing lien or
7 mortgage on the estate of the deceased ; or it may authorize such
8 executor or administrator to make an agreement for the extension
9 or renewal of such existing mortgage.
1320
SALES, ETC., BY EXECUTORS, ETC.
[Chap. 146.
mortgage. may Section 27. The probate court may, upon petition of a guardian, 1
i8n' II' 1 1 ^' a^er n°tice and a hearing, it appears to be necessary or expe- 2
1873! 28o; § i! dient, authorize him to mortgage any real property of his ward. 3
P. S. 140, § 11.
Form of
petition and
decree.
1864, 212, §§ 1,
1871, 282, § 2.
1876, 79, § 2.
P. S. 134, § 20
140, § 12.
2.
Section 28. The petition under the provisions of the two pre- 1
ceding sections shall set forth a description of the estate to be mort- 2
gaged, the amount of money necessary to be raised and the purposes 3
for which such money is required ; and the decree of the court upon 4
such petition shall fix the amount for which the mortgage may be 5
given and the rate of interest which may be paid thereon, and may 6
order the whole or any part of the money secured by the mortgage 7
to be paid from time to time out of the income of the property 8
mortgaged. 9
Lease of real
property of
ward.
1894, 128.
Foreign exec-
utor, etc., may
be licensed to
sell real
property.
1817, 182, § 2.
R. S. 71, § 21.
G. S. 102, § 20.
P. S. 134, § 16.
1901, 315.
LEASES.
Section 29. The probate court may, upon the petition of a 1
guardian setting forth a description of the real property of his ward, 2
the reason why it is necessary or expedient to give a written lease 3
thereof and the length of the term, if, after notice and a hearing it 4
appears to be necessary or expedient, authorize such guardian to 5
give a written lease of the real property of his ward, and the decree 6
of the court shall fix the term and the amount for which it may be 7
leased. 8
BY FOREIGN EXECUTORS, ETC.
Section 30. An executor or administrator appointed in another 1
state or country upon the estate of a person who was not at the 2
time of his death a resident of this commonwealth and upon whose 3
estate administration has not been granted in this commonwealth, 4
duly qualified and acting, may file an authenticated copy of the 5
record of his appointment and of his bond in the probate court for 6
any county in which there is real property of the deceased ; and 7
such executor or administrator, after such notice to the treasurer 8
and receiver general, creditors and all persons interested as the 9
court may order, may be licensed to sell said real property or an un- 10
divided interest in real property in such manner and upon such notice 11
as the court orders. But such license shall not be granted unless 12
the court finds that the whole of the real property of the deceased 13
in this commonwealth does not exceed fifteen hundred dollars in 14
value, that six months have expired since the death of the deceased, 15
that the executor or administrator has given a sufficient bond and 16
will be liable to account for the proceeds of the sale in the state or 17
country in which he was appointed, and that no creditor or other 18
person interested will be prejudiced thereby. The net proceeds of 19
such sale, after deducting the expenses thereof and after the payment 20
and satisfaction of all claims against said estate in this common- 21
wealth, may be taken by said foreign executor or administrator out 22
of this commonwealth to be accounted for in the court in which he 23
received his appointment. 24
dfarnmaybtr' Section 31. If a minor, insane person or spendthrift, who 1
licensed to sen resides out of this commonwealth, is under guardianship in the state 2
real property . . ' o * . . ,
of ward. or country in which he resides and has no guardian appointed in this 5
Chap. 147.] trusts. 1321
4 commonwealth, the foreign guardian may file an authenticated copy isi7, 182, § l.
5 of his appointment in the probate court for any county in which 72', §'il!'§81,
6 there is real property of the ward ; after which upon petition he £; f ; ^ f If '
7 may be licensed to sell, mortgage or lease the real property of the
•8 ward in any county, for the purposes, in the manner and upon the
9 terms provided in this chapter for a guardian appointed in this
10 commonwealth, except as hereinafter provided.
1 Section 32. If the court finds that such foreign guardian has Bond in certain
2 given bond with sufficient surety or sureties, in the state or coun- isi7,sis2, § 2.
3 try in which he was appointed, to account for the proceeds of such al';8^!!.82'
4 sale, mortgage or lease, and if an authenticated copy of such bond g. s. 102, §§ 34-
5 is filed in said court, no further bond shall be required ; otherwise, be- p- s-uo> § 10-
6 fore such license is granted, he shall give bond payable to the judge
7 of said court and his successors with sufficient surety or sureties and
8 with condition to account for and dispose of said proceeds according
9 to law.
«
1 Section 33. A foreign executor, administrator or guardian who Notice of sale,
2 has been licensed to sell real property shall, except as otherwise Wm
3 provided, give notice of the time and place of sale, and otherwise g. I'. lo-if^.
4 proceed as is provided for an executor, administrator or guardian pjg'^ \\8i
5 appointed in this commonwealth ; and the evidence of such notice 1901> 315> § *■
6 may be perpetuated in the same manner.
CHAPTER 147.
OF TRUSTS.
Sections 1-3 . — Creation of Trusts .
Sections 4-13 . — Appointment and Removal of Trustees.
Section 14. — Agents of Non-resident Trustees.
Sections 15-17. — Sale of Trust Estate.
Sections 18, 19. — Mortgage of Trust Estate.
Section 20. — Distribution of Trust Estate.
Sections 21-23. — Trusts for the Benefit of Creditors.
CREATION OF TRUSTS.
1 Section 1. No trust concerning land, except such as may arise creation of
2 or result by implication of law, shall be created or declared unless in^and!cern"
3 by an instrument in writing signed by the party or by the attorney |9_car. 11. c. 3,
4 of the party creating or declaring the trust. 1783^ 371 §' 1 5"
R. S. 59, § 30. 10 Cush. 458. 109 Mass. 581. 118 Mass. 108.
G. S. 100, § 19. 10 Allen, 15. 110 Mass. 392. ' 137 Mass. 184.
P. S. 141, § 1. 11 Allen, 15, 542. 112 Mass. 171. 158 Mass. 146.
12 Pick. 240. 103 Mass. 484. 113 Mass. 372. 160 Mass. 195, 538.
1 Section 2. If a trust concerning land is created or declared by Record to be
2 such instrument, the recording of the instrument in the registry of ETssja*
3 deeds for the county or district in which the land lies shall be p.' |.' i4i,' 1 1.1'
4 equivalent to actual notice to every person who claims under a
5 conveyance, attachment or execution thereafter made or levied.
1322
TRUSTS.
[Chap. 147.
Purchasers,
etc., without
notice.
R. S. 59, § 31.
G. S. 100, § 20.
P. S. 141, § 3.
Ill Mass. 270.
168 Mass. 118.
173 Mass. 378.
Section 3. No trust concerning land, whether implied by law 1
or created or declared by the parties, shall defeat the title of a pur- 2
chaser for a valuable consideration and without notice of the trust, 3
nor prevent a creditor who has no notice of the trust from attaching 4
the land or from taking it on execution in like manner as if no 5
such trust existed. 6
Appointment
of testamen-
tary trustee.
1845, 158.
1855, 307, § 1.
G. S. 100, § 7.
P. S. 141, § 4.
APPOINTMENT AND REMOVAL OF TRUSTEES.
Section 4. If a testator has omitted in his will to appoint a 1
trustee in this commonwealth and such appointment is necessary to 2
carry into effect the provisions of the will, the probate court may, 3
after notice to all persons interested, appoint a trustee who shall 4
have the same powers, rights and duties and the same title to the 5
estate as if he had been originally appointed by the testator. 6
Appointment
to fill vacancy.
1817, 190, §§ 40,
41.
R. S. 69, §§ 7, 8.
1843, 19.
1852, 212.
G. S. 100, § 9.
1877, 31.
P. S. 141, § 5.
4 Met. 330.
12 Cush. 41.
1 Gray, 220.
Section 5. If a trustee under a written instrument declines, 1
resigns, dies or is removed before the objects of the trust are ac- 2
complished and such instrument makes no adequate provision for 3
supplying the vacancy, the supreme judicial court, the superior 4
court or the probate court shall, after notice to all persons in- 5
terested, appoint a new trustee to act solely or jointly with the 6
others as the case may be. 102 Mass. 11. 7
115 Mass. 424.
117 Mass. 219.
120 Mass. 412.
121 Mass. 568.
128 Mass. 398.
129 Mass. 339, 513.
148 Ma6S. 431.
149 Mass. 92.
Trust estate to
vest in new
trustee on his
giving bond,
etc.
1S17, 190, § 40.
R. S. 69, § 8.
1843, 19.
1852, 212.
G. S. 100, §§ 9,
10.
1878, 254, § 1.
P. S. 141, § 6.
5 Gray, 336.
5 Allen, 540.
115 Mass. 424.
132 Mass. 405.
134 Mass. 426.
Section 6 . A new trustee appointed under the provisions of the 1
preceding section, or appointed in the place of a former trustee in 2
conformity with a written instrument creating a trust, shall, upon 3
giving such bond as may be required, have the same powers, rights 4
and duties and the same title to the estate, whether as a sole or a 5
joint trustee, as if he had been originally appointed ; and the court 6
may order any conveyances to be made by the former trustee or his 7
representatives or by the other remaining trustees which it may find 8
proper or convenient to vest the trust estate in the new trustee 9
either solely or jointly with the others. 159 Mass. 484. 10
Return of in-
ventory may
be dispensed
with, when.
1S17, 190, § 41.
R. S. 69, § 9.
G. S. 100, § 11.
P. S. 141, § 14.
Section 7. If a trustee is appointed by the probate court as 1
the successor of a prior trustee, the court may dispense with the 2
making and return of an inventory if it appears to be unnecessary, 3
and in such case the condition of the bond shall be altered accord- 4
ingly. 5
required017 Section 8. If an inventory is required to be returned by a 1
estate to 'be trustee, the estate and effects shall be appraised by three suitable 2
r. s. 69, §10. persons, who shall be appointed and sworn as is required by law 3
p.' s.' in,' § 15! relative to the inventory of the estate of a deceased person. 4
P. S. 141, § 7.
trusteelotaL Section 9. If a trustee who derives his appointment or author- 1
letters of trust, ity from a court which has no jurisdiction within this commonwealth 2
i87i, 327, §1. holds land in this commonwealth in trust for persons resident here 3
he shall, upon petition to the probate court in the county in which 4
the land lies, and after notice, be required to take out letters of 5
trust from said court; and upon his neglect or refusal so to do, the 6
court shall declare such trust vacant, and shall appoint a new 7
Chap. 147.] trusts. 1323
8 trustee, in "whom the trust estate shall vest in like manner as if he
9 had been originally appointed or authorized by said court.
1 Section 10. The notice to the trustee required by the provisions Non-resident
2 of the preceding section may be given by serving on him a copy of letterTof trust,
3 the petition, and of the citation of the court issued thereon, four- iki,1^, §2.
4 teen days at least before the time fixed for the return of such cita- p- s- 141> § 8-
5 tion, or by such other notice as the court may order.
1 Section 11. The supreme judicial court, the superior court or Removal of
2 the probate court may, upon petition of a party beneficially inter- lsn^b, § 41.
3 ested in the trust and after notice to the trustee and all persons in- H^f/^f/ § 7"
4 terested, remove a trustee under a written instrument if it finds that g5| ^ g
5 such removal is for the interests of the beneficiaries of the trust or *"• s- i*ij § 9-
6 if the trustee has become insane or otherwise incapable of perform- no Mass. 225.
_ • ■■ . , , 1, 1 1 ,1 « 114 Mass. 356.
7 ing hlS trust Or IS Unsuitable thereior. 121 Mass. 568. Wo Mass. 490. 118 Mass. 215.
I
1 Section 12. A trustee may upon his own request resign his Resignation of
2 trust, if the court which is authorized to appoint him finds it proper ^17*190, § 39.
3 to allow such resignation. r. s. 69, §5.
G. S. 100, § 5. 1874, 352, § 1. P. S. 141, § 10. 6 Gray, 428.
1 Section 13. A person who succeeds to a trust as executor or Executor, etc.,
2 administrator of a former trustee shall not be required to accept truste™er
3 SUCh trust. 1817, 190, § 39. R. S. 69, § 6. G. s. 100, § 6. P. S. 141, § 11.
AGENTS OF NON-RESIDENT TRUSTEES.
1 Section 14. The provisions of sections eight, nine and ten of President
2 chapter one hundred and thirty-nine shall apply to non-resident trustee.
3 trustees, except that said waiting shall be filed in the clerk's office 1893^118!
4 of the court which appointed him if he is appointed by a court
5 other than the probate court.
SALE OF TRUST ESTATE.
1 Section 15. If the sale and conveyance, transfer or exchange order for sale
2 of any real or personal property held in trust or the partition of any fitruttfhow
3 such real property held in common and undivided appears to be i^1^" 3.
4 necessary or expedient, the supreme judicial court, the superior court f^ \J| § n-
5 or the probate court may, upon petition of a trustee or other person <|. s. 106, §§ 14,
6 interested, after notice and other proceedings as hereinafter required, 1864, 168, § 1.
7 order such sale and conveyance, transfer, exchange or partition to p. s. 141, §20.
8 be made, and the investment, reinvestment and application of the 14 AHen',245*
9 proceeds of such sale in such manner as will best effect the objects 109 Mass. 1?'
10 of the trust. 119 Mass. 1, 52. 125 Mass. 138. 168 Mass. 576.
1 Section 16. If the court, upon proceedings under the provi- on°pceetwo^nfor
2 sions of the preceding section, finds that the estate which is the sub- ^|\f*le-
3 ject of the petition may be held in trust for, or that a remainder mi, m, § 2.
4 or contingent interest therein may be limited over to, persons not u'e Mass. 100.'
5 ascertained or not in being, notice shall be given in such manner
6 as the court may order to all persons who are or may become in-
1324
TRUSTS.
[Chap. 147.
Property held
in trust by
minors, etc.,
may be sold
and conveyed
in certain
cases.
1845, 64.
G. S. 100, § 15.
1869, 331.
P. S. 141, § 22.
116 Mass. 377.
163 Mass. 503.
terested in such estate, and to all persons whose issue, not then 7
in being, may become so interested ; and the court shall of its own 8
motion in every such case appoint a suitable person to appear and 9
act therein as the next friend of all persons not ascertained or not 10
in being, who are or may become interested in such estate, and 11
the provisions of sections twenty-three and twenty-four of chapter 12
one hundred and forty-five which are not inconsistent herewith 13
shall apply to such appointment. A conveyance or transfer made 14
after such notice and proceeding shall be conclusive upon all per- 15
sons for whom such guardian ad litem or next friend was appointed. 16
Section 17. If a person who is seised or possessed of real or 1
personal property or of an interest therein upon a trust, express or 2
implied, is under the age of twenty-one years, insane, out of the 3
commonwealth or not amenable to the process of any court therein 4
which has equity powers, and in the opinion of the supreme judicial 5
court, the superior court or the probate court it is fit that a sale 6
should be made of such property or of an interest therein, or that a 7
conveyance or transfer should be made thereof in order to carry 8
into effect the objects of the trust, the court may order such sale, 9
conveyance or transfer to be made and may appoint a suitable 10
person in the place of such trustee to sell, convey or transfer the 11
same in such manner as it may require. If a person so seised or 12
possessed of an estate or entitled thereto upon a trust is within the 13
jurisdiction of the court, he or his guardian may be ordered to make 14
such conveyances as the court orders. 15
Trustees may
be authorized
to mortgage,
1869, 451, § 1.
1872, 370, § 1.
1876, 199, § 1.
P. S. 141, § 23.
1889, 66.
Form of peti-
tion and
decree.
1872, 370, §§ 1,
1876, 199, § 2.
P. S. 141, § 24
2.
MORTGAGE OF TRUST ESTATE.
Section 18. The court which has jurisdiction of a trust created 1
by a written instrument may, upon petition and after notice to all 2
persons interested, if upon a hearing it appears to be for the benefit 3
of the trust estate, authorize trustees to mortgage any real property 4
held by them in trust for the purpose of paying assessments upon 5
their trust estate for betterments or for the expense of repairs and 6
improvements on such estate made necessary by such betterments or 7
by the lawful taking of such estate or of a part thereof by a city or 8
town ; for the purpose of paying the expense of erecting, altering, 9
completing, repairing or improving a building on such estate ; or for 10
the purpose of paying the expense of other improvements of a per- 11
manent nature made or to be made upon such estate ; or for the 12
purpose of paying an existing lien or mortgage on such trust estate 13
or on a part thereof; or it may authorize such trustees to make an 14
agreement for the extension or renewal of such existing mortgage. 15
Section 19. Such petition shall set forth a description of the 1
estate to be mortgaged, the amount of money necessary to be 2
raised and the purposes for which such money is required, and, 3
if made to a probate court, shall be made in the county in which 4
the trustees were appointed, if the trust was created by will, or, 5
if it was not so created, then in the county in which the estate or a 6
part of the estate which is the subject of the petition is situated. 7
The decree of the court upon such petition shall fix the amount for 8
which the mortgage may be given and the rate of interest which may 9
Chap. 147.] trusts. 1325
10 be paid thereon, and may order the interest and the whole or any
11 part of the money secured by the mortgage to be paid from time to
12 time out of the income of the property mortgaged.
DISTRIBUTION OF TRUST ESTATE.
1 Section 20. If, by the provisions of a written instrument, a trust Distribution of
2 estate is to be distributed in whole or in part, the probate court i898, 65, § i.'
3 may, upon the petition of a person interested, after such notice
4 as it may direct, order the trustee to convert the said estate, both
5 real and personal, or either, into cash and to distribute it among
6 such persons as, according to such instrument, are entitled thereto.
TRUSTS FOR THE BENEFIT OF CREDITORS.
1 Section 21. If a debtor who resides in this commonwealth has protection of
2 made an assignment to a trustee for the benefit of his creditors, the l^llo, § i.
3 acts of the trustee thereunder in protecting and caring for the prop-
4 erty and converting it into money, if done in good faith and with
5 reasonable judgment and discretion, shall, subject to the provisions
6 of the following section, be valid notwithstanding subsequent pro-
7 ceedings in insolvency by or against the debtor, and the assignee in
8 insolvency shall, if such assignment is avoided by him, recover the
9 net amount of money received for, or the price of, the property
10 sold and converted by such trustee instead of the property itself.
1 Section 22. The provisions of the preceding section shall not ^.^J0118
2 applv to the acts of such trustee unless the assignment conveys all 1887, 346, §§ i, 2.
1897 326
3 the property and estate of the debtor wherever situated, either
4 within or without this commonwealth, not exempt from attachment
5 by the laws of this commonwealth, and provides for its distribution
6 in substantial conformity with the provisions of chapter one hun-
7 dred and sixty -three ; nor unless a majority in number and value
8 of the creditors, whose claims are neither secured nor preferred by
9 said chapter, have assented in writing to the assignment ; nor un-
10 less the trustee, before proceeding to act and immediately on the
11 acceptance of his trust, gives notice in writing by mail or otherwise
12 to all known creditors of the debtor of such assignment and his
13 acceptance thereof, and deposits with the clerk of the city or town
14 in which the principal business of the debtor is carried on a copy
15 of such assignment, which shall be filed and indexed by said clerk
16 upon receiving a fee of one dollar therefor.
1 Section 23. If, upon petition or otherwise, the probate court 0^™^}°°
2 of the county in which letters testamentary or of administration benefit of
3 have been granted on the estate of a person deceased, finds that such ated by per- "
4 person in his lifetime made a conveyance of. real property in this i85o^ 24i^§§Bi, 3.
5 commonwealth intrust for the benefit of his creditors, and the f^ s' 100' §§ 17'
6 trustee certifies that all the debts secured by such conveyance and ?• s. 141, §§ 25,
7 due to persons other than himself have been paid or otherwise
8 adjusted to the satisfaction of the creditors so far as known and
9 that he desires to settle his trust account and to terminate the trust,
10 the court shall appoint a time and place for hearing all persons
11 interested in such trust, of which notice shall be given by adver-
1326
PROVISIONS AS TO CERTAIN SALES, ETC.
[Chap. 148.
tisement in a newspaper published in the county, or otherwise, 12
as the court orders. Upon such hearing the court may terminate 13
the trust so far as the creditors and persons claiming under them 14
are concerned, may discharge such real property from the trust, 15
may settle the trust account, and make any further order as to the 16
disposition, distribution or partition of the remaining trust estate, 17
not inconsistent with the provisions of the original instrument 18
creating the trust. The provisions of this section shall not apply 19
to any case in which the instrument creating the trust does not 20
bear date more than six years previous to the time appointed for 21
the hearing ; nor shall they affect the operation of the insolvent 22
laws of this commonwealth. 23
CHAPTER 148.
PROVISIONS RELATIVE TO SALES, MORTGAGES, ETC., BY EXECUTORS,
ETC.
Sections 1-1 2 . — General Provisions .
Sections 13-18. — Compromises, etc.
Sections 19-26. — Irregular and Invalid Sales, etc.,
by Executors, etc.
Executor, etc.,
to convey real
property,
which testator,
etc., had
agreed to con-
vey.
C L. 296, § 3.
1783, 32, § 4.
R.S.74,§§ 8-13.
1855, 374.
1859, 36.
G.S.117, §§5,6.
P. S. 142, § 1.
1883, 223.
8 Gray, 542.
108 Mass. 552.
119 Mass. 482.
GENERAL PROVISIONS.
Section 1. If a person who has entered into a written agree- 1
ment for the conveyance of real property dies or is put under guar- 2
dianship before making such conveyance, the probate court shall 3
have jurisdiction concurrent with the supreme judicial court and 4
the superior court to enforce a specific performance of such agree- 5
ment, and, upon a petition therefor by any person interested in 6
the conveyance, shall, after notice, if upon the hearing it appears 7
that the deceased, were he living or the ward, were he not under 8
guardianship, would be required to make the conveyance, order the 9
executor or administrator or the guardian to make the same, which 10
conveyance shall have like force and effect as if made by the person 11
who agreed to convey. 12
propertyede- Section 2. If, under the provisions of a will, the sale of real
pendent upon property bv a trustee or executor is dependent upon the consent of
a deceased a person who has deceased, the probate court having jurisdiction of
i37i!0329. the settlement of the estate may, in its discretion and if all parties
interested assent, authorize the sale and conveyance of such real
property in like manner as if no such consent had been required.
1
2
3
4
5
6
fore^nexec- Section 3. An executor, administrator, guardian or trustee duly 1
utor, etc., to appointed in another state or in a foreign country and duly qualified 2
rgcgivg unci ^
dispose of per. and acting, who may be entitled to any personal property, situated 3
sonal property •/ -^ ir l j 7
'" in this commonwealth, may file an authenticated copy of his ap- 4
pointment in the probate court for any county in which there is 5
real property of his trust or, if there is no such real property, in 6
any county in which there is personal property of his trust, and 7
may upon petition to said court, after such notice to the treasurer 8
1880, 220.
P. S. 142, § 3
Chap. 148.] provisions as to certain sales, etc. 1327
9 and receiver general, creditors and all persons interested as the
10 court may order, be licensed to receive or to sell by public or
11 private sale, upon such terms and to such person or persons as
12 he shall think fit, or otherwise to dispose of, and to transfer and
13 convey, shares in a corporation or other personal property, if the
14 court finds that there is no executor, administrator, guardian or
15 trustee appointed in this commonwealth who is authorized so to re-
16 ceive and dispose of such shares or estate, and that such foreign ex-
17 ecutor, administrator, guardian or trustee will be liable, upon and
18 after such receipt or sale, to account for such shares or estate, or
19 for the proceeds thereof, in the state or country in which he was
20 appointed ; and that no person resident in this commonwealth and
21 interested as a creditor or otherwise objects to the granting of such
22 license or appears to be prejudiced thereby ; but no such license
23 shall be granted to a foreign executor or administrator until the ex-
24 piration of six months after the death of his testator or intestate.
1 Section 4. An executor, administrator, guardian or trustee vested or con.
2 may, after the notice required upon a petition by him for a license terfsts, how
3 to sell real property, be authorized by the probate court to release executorfetc.
4 and discharge, upon such terms and conditions as may appear to be g5s.3ioi Vn.
5 proper, a vested, contingent or possible right or interest, if such ^| ^o-'
6 release or discharge appears to be for the benefit of the persons or
7 estates which he represents.
1 Section 5. An executor, administrator, guardian or trustee sale or release
2 may be authorized by the probate court, after notice to all persons cemeteries.
3 interested or upon their assent thereto, to sell and convey or release, p3?!*. ^2, § 5.
4 upon such terms and in such manner as said courts may order, lots
5 in cemeteries which belong to the persons or estates by them
6 represented.
1 Section 6. A mortgage which is given by an executor, ad- mort-a°es8ale
2 ministrator, guardian or trustee, by license of court, mav contain a may Wgiven
" v * %j [)y executor
3 power of sale, and every such mortgage shall state that it is made etc., V license
4 under license of court and the date of such license. 1864, 212,' § 4.
1869, 219, § 2; 451, § 2. 1872, 370, § 3. 1876, 79, §§ 3, 4; P. S. 142, § 6.
1871, 282, § 3. 1873, 280, § 2. 199, § 3. 11 Gray, 492.
1 Section 7. All proceedings in probate courts relative to sales Petitions for
2 by a foreign executor, administrator, guardian or trustee shall be in foreig/exec-
3 the county in which an authenticated copy of his appointment is first brought'
4 filed. R. S. 71, § 25; 72, § 16. ' G. S. 102, § 42. P. S. 142, § 7. ^17^182, § 1.
1 Section 8. No license for a sale by an executor, administrator, License for
2 guardian or trustee shall be in force for more than one year after the fn force foram
3 granting thereof, except as provided in section seventeen of chapter isn yf^"§ 12.
4 one hundred and forty-six. g. s. 102, §43. p. s. 142, §s. 72 § '131' § 19;
TO.
es
1 Section 9. In every sale of the real property of a deceased cells' of °sa&
2 person or of a ward by an executor, administrator or guardian, the to be treated
3 surplus of the proceeds remaining on the final settlement of the erty.
]? ft 71 R 94. •
4 accounts shall be considered as real property and shall be disposed 72, §§ 5/17.
5 of to the same persons and in the same proportions to whom and p.' I.' 142,' § If '
6 in which the real property if not sold would have descended or
7 have been disposed of by the laws of this commonwealth.
1328
PROVISIONS AS TO CERTAIN SALES, ETC.
[Chap. 148.
oi9objectioneto Section 10. If a person appears and objects to the granting of a 1
the granting of license to sell real property and the court finds that either the 2
1-83, 32, §6. petition or the objection thereto is unreasonable, it may award costs 3
72, §"i8.' to the prevailing party. g. s. 102, §45. p. s. 142, §10. 4
ofXpe?6ons0n Section 11. A person who is authorized to make sale of land by 1
land sed t0 seU lieense of court shall be required, upon petition to the probate court 2
r. s.7i,§39; by an heir, creditor, ward or other person interested in the estate, 3
to make answer upon oath as to all matters relative to his exercise 4
and fulfilment of said license, as fully as he is liable to account 5
and be examined relative to personal property. If, in relation to 6
the exercise of such license or to a sale under it, there is any neglect 7
or misconduct in the proceedings of such person by which a person 8
interested in the estate suffers damage, such interested person may 9
recover compensation therefor on the probate bond or otherwise as 10
the case may require. 11
72, § 21
1857, 71, § 1.
G. S. 102, § 49.
P. S. 142, § 11.
Sale of prop-
erty held for
churches, etc.
1897, 462.
Section 12. The supreme judicial court, upon petition of a 1
party interested and after notice, may order the sale or transfer of 2
any real or personal property which is held for churches, cemeteries 3
or other like trusts and the investment or disposition of the pro- 4
ceeds, and may make orders and decrees necessary to secure the 5
rights of owners of, or of other persons claiming an interest in, 6
pews or in tombs or lots in cemeteries. 7
Compromises
by executor,
etc., under au-
thority of pro-
bate court.
1817, 190, § 21.
1826, 136.
compromises, etc.
Section 13. The probate court may authorize an executor, 1
administrator, guardian or trustee to adjust by arbitration or com- 2
promise any demand in favor of or against the estate by him repre- 3
sented. 4
1835, 93.
1838, 92.
R. S. 65, § 10; 79, § 17.
1855, 37, 432.
G. S. 101, § 10.
P. S. 142, § 12.
9 Allen, 173.
137 Mass. 94.
Executor,
etc., may, un-
der authority
of supreme
court, compro-
mise, etc.,
controversies
between claim-
ants to estate.
1861, 174, § 1.
P. S. 142, § 13.
170 Mass. 330.
Section 14. The supreme judicial court may authorize an execu- 1
tor, administrator, guardian or trustee to adjust by arbitration or 2
compromise any controversy that may arise between different claim- 3
ants to the estate in his hands, to which arbitration or compromise 4
such executor, administrator, guardian or trustee, and all other 5
parties in being who claim an interest in such estate, shall be parties. 6
An award or compromise made in writing in such case shall, if found 7
by the court to be just and reasonable in its effects upon any future 8
contingent interests in said estate, be valid and binding upon such 9
interests as well as upon the interests of parties in being ; and if the 10
court finds that such future contingent interests may be affected, it 11
may appoint some person or persons to represent such interests 12
in such controversy, upon such conditions as to costs as it may 13
order. 14
Arbitration of
controversies
as to wills.
1864, 173, § 1.
P. S. 142, § 14.
1889, 266.
Section 15. The supreme judicial court shall have jurisdiction 1
in equity to authorize the persons named as executors in an instru- 2
ment purporting to be the last will of a person deceased, or the 3
administrators with such will annexed, to adjust by arbitration or 4
compromise any controversy between the persons who claim as 5
devisees or legatees under such will and the persons entitled to the 6
Chap. 148.] provisions as to certain sales, etc. 1329
7 estate of the deceased under the statutes regulating the descent and
8 distribution of intestate estates, to which arbitration or compromise
9 the persons named as executors, or the administrators with the will
10 annexed, as the case may be, those claiming as devisees or legatees
11 whose interests will in the opinion of the court be affected by the
12 proposed arbitration or compromise, and those claiming the estate as
13 intestate, shall be parties.
1 Section 16. If the court finds that any future contingent inter- contingent in.
2 ests, which would arise under said will if admitted to probate, protected0^
3 would be affected by the arbitration or compromise, it shall ap- verges ntr°"
4 point some person or persons to represent such interests in such pft'.Yi^lis.
5 controversy, and the court shall have like power as to any bequests
6 made in the will for charitable purposes, if no trustees have been
7 appointed in such will ; in both cases with such conditions as to
8 costs as the court orders.
1 Section 17. An award or compromise made in writing in any Effect of com.
2 such case shall, if found by the court to be just and reasonable in l^ira,' §§3, 4
3 relation to the parties in being and in its effect upon any future con- 12s Mats'. 2036.'
4 tingent interests that might arise under such will and upon any be-
5 quests to charities made in the same, be valid and binding upon such
6 interests and upon such bequests, as well as upon the interests of all
7 persons in being, but it shall not impair the claims of creditors.
1 Section 18. If a minor or a person under guardianship is a Minor, etc., to
2 necessary party to an arbitration or compromise under the provi- by guarlfanf*1
3 sions of section fifteen, he shall be represented in the proceedings i^m
4 by his guardian, or by a guardian ad litem appointed by the court, PS- U2> §17-
5 who shall in the name and in behalf of the party he represents make
6 and receive all proper conveyances and payments necessary to carry
7 into effect any award or compromise sanctioned by the court.
IRREGULAR AND INVALID SALES, ETC., BY EXECUTORS, ETC.
1 Section 19. No sale of real property made by an executor, ad- g^ff^rea?0"'
2 ministrator, guardian, trustee or other person by license of court, property by
3 and no title under such sale, shall be avoided for the reason that the effect of.'
4 deed was not delivered within one year after the license, or on 72, §20.'
5 account of any irregularity in the proceedings, if it appears, efs'. W2,§«.
6 First, That the license was granted by a court of competent juris- il^; f^
7 rliVtinn • P. S. 142, § 18.
' alcU°n > .15 Mass. 326.
8 Second, That the person licensed gave a bond which was approved 9 £"*• ?f5-
9 by the judge ot the probate court, 11 a bond was required upon the 2 cusn. is4.
10 granting of the license ; 3 Alien' 25.'
11 Third, That the notice of the time and place of sale was given looiaTs'AY.'
12 according to the order of the court ; and, 106 Mast! 347.
13 Fourth, That the property was sold by public auction in accord- iisMass. 50,
14 ance with the notice, and is held by one who purchased it in good ue Mass- 10°-
15 faith. 153 Mass. 325. 161 Mass. 315.
1 Section 20. If the validity of a sale is drawn in question by a validity of
2 person who claims adversely to the title of the deceased or of the contested"136
3 ward, or who claims under a title which is not derived from or unle8B-
1330
PROVISIONS AS TO CERTAIN SALES, ETC. [CHAP. 148.
R. S. 71, § 40;
72, § 22.
G. S. 102, § 48.
P. S. 142, § 19.
through the deceased or the ward, the sale shall not be void by 4
reason of any irregularity in the proceedings, if the executor, ad- 5
ministrator, guardian or trustee was licensed to make the sale by a 6
court of competent jurisdiction and executed and acknowledged in 7
legal form a deed for the conveyance of the property. 8
Adjudication
as to debts
final, when.
1874, 346, § 2.
P. S. 142, § 20.
Section 21. If a license is granted by a probate court for a sale 1
or mortgage of real property to pay the debts and charges of a de- 2
ceased person or of a person under guardianship, the adjudication 3
of said court as to the existence of such debts and charges shall be 4
final, so far as the same may affect any title acquired by virtue 5
of such license, but shall not affect the right of the executor, ad- 6
ministrator or guardian to contest the validity of such debts and 7
charges. 8
Action or entry
for recovery of
land sold by
executor, etc.
1817, 190, § 12.
R. S. 71, § 37;
72, § 19.
G. S. 102, § 48.
P. S. 142, § 21.
9 Cush. 223.
10 Gray, 31.
Section 22. No action for the recovery of property sold by an 1
executor or administrator under the provisions of chapter one hun- 2
dred and forty-six shall be maintained by an heir or other person 3
who claims under the deceased, unless it is commenced within five 4
years next after the sale ; and no action for property sold by a 5
guardian under the provisions of said chapter shall be maintained 6
by the ward or by any person who claims under him, unless it is 7
commenced within five years next after the termination of the 8
guardianship ; except that persons out of this commonwealth and 9
minors and others under legal disability to sue when their right of 10
action first accrues, may commence such action at any time within 11
five years after the removal of the disability, or after their return to 12
the commonwealth. No entry, unless by judgment of law, shall be 13
made upon land so sold, with a view to avoid the sale, unless within 14
the times of limitation before prescribed for the commencement of 15
an action. 16
Confirmation,
etc., of void
acts of exec-
utor, etc.
1873, 253, § 3.
P. S. 142, § 22.
142 Mass. 479.
150 Mass. 381.
Section 23. If an act or proceeding of a person acting as exec- 1
utor, administrator, guardian or trustee under an appointment or 2
license of a probate court is void or voidable by reason of an irregu- 3
larity or of want of jurisdiction or authority in the court which made 4
the appointment or granted the license, any person interested in or 5
affected by such act or proceeding may have the matter heard and 6
determined by the supreme judicial court in equity, which may 7
confirm or set aside, in whole or in part, the act or proceeding. 8
Ratification of
doubtful acts
of executor,
1874, 346, § 1.
P. S. 142, § 23.
1888, 420.
ing
Section 24. If the authority or validity of an act or proceed-
of the probate court or of a person acting as executor,
administrator, guardian or trustee is drawn in question by reason
of an alleged irregularity, defective notice or want of authority,
any party interested in or affected by such act or proceeding
may apply to the probate court which has jurisdiction of the sub-
ject-matter relative to which the act or proceeding has been had,
and the court, after notice to all parties interested, and to the
persons who may be the parents of such parties not in being,
with power to appoint a guardian or next friend to represent the
interests of any person unborn or unascertained, may hear and 11
determine the matter and confirm the act or proceeding, in whole 12
1
2
3
4
5
6
7
8
9
10
Chap. 149.] bonds of executors, etc. 1331
13 or in part, and may authorize and empower the executor, admin-
14 istrator, guardian or trustee, or any successor or other person
15 who may be legally appointed to act in the same capacity, to ratify
16 and confirm such act or proceeding and to execute and deliver
17 such deeds, releases, conveyances and other instruments as may be
18 found necessary for that purpose ; but no act or proceeding shall be
19 ratified or confirmed which the court might not have passed or au-
20 thorized in the first instance upon due proceedings.
1 Section 25. An executor, administrator, guardian or trustee Liability of
2 whose appointment is invalid by reason of an irregularity or of want appointe/ex-
3 of jurisdiction or authority in the court which made it, shall account account6*0-' t0
4 for all money, property or assets which have come to his hands as p.?s'. 142' |§24.2"
5 such executor, administrator, guardian or trustee, or by reason of 126 Mass- 105-
6 such appointment, as if the appointment had been regular and valid ;
7 and any bond given in pursuance of such appointment shall be valid
8 and binding on the principals and sureties, and payments to or by
9 a person so appointed, if in other respects properly made, may with
10 the approval of the probate court be ratified and confirmed by the
11 executor, administrator, guardian or trustee who is afterward legally
12 appointed.
1 Section 26. If an executor, administrator, guardian or trustee, Failure of
c. i i i i • j. • x- j* ••' j. j. proof of notice
2 or a person employed by him to give notice 01 an appointment or of appoint-
3 notice of sale of real property, has failed to file an affidavit of such how remedfed.
4 notice in the probate court and such affidavit cannot be obtained, 1889>315-
5 the probate court may, upon petition of any person interested in
6 real property the title to which may be affected thereby, stating the
7 particular failure complained of and averring that the affidavit can-
8 not be obtained, order notice by publication to creditors of, and
9 others interested in, the estate in the settlement of which the failure
10 complained of occurred. If, upon return of such notice and after a
11 hearing, the court is satisfied that such notice was in fact given, it
12 may make a decree that such notice was in fact given.
CHAPTEE 149.
of bonds of executors, administrators, guardians and trustees.
Sections 1, 2. — Form and Conditions of Probate Bonds.
Sections 3-5. — Exemption from Giving Sureties on Bonds.
Section 6. — Exemption from Giving Bond.
Sections 7, 8. — Effect of Neglect to give Bond.
Sections 9-19 . — General Provisions .
Sections 20-35. — Remedy upon Bonds.
FORM AND CONDITIONS OF PROBATE BONDS.
1 Section 1. An executor, administrator, administrator with the Bonds of exec-
2 will annexed, special administrator, receiver of an absentee, tern- p^l.'iM.'fs;
3 porary guardian and, unless otherwise expressly provided, a guar- HE; 1 22 ; ^ti1 :
4 dian or trustee under a will or appointed by the probate court, §§ 12, 13!
1332
BONDS OF EXECUTOKS, ETC.
[Chap. 149.
1897, 135, § 3;
447, § 2.
1900, 345, § 4.
Conditions of
bond of execu-
tor.
1783, 24, § 17.
1816, 94, § 1.
1817, 190, § 14.
R. S. 63, §§ 2, 8.
G. S. 93, §§ 2, 8.
1870, 285.
1878, 154, § 1.
1880, 152, § 1.
P. S. 129, § 5;
130, § 8.
13 Pick. 328.
7 Cush. 207.
lOCush. 1.
5 Gray, 342.
14 Gray, 114.
8 Allen, 532.
106 Mass. 15.
—of adminis-
trator.
1692-3, 14, § 1.
1783, 36, § 8.
1616, 94, § 1.
1817, 190, § 14.
R. S. 64, § 5.
G. S. 94, § 2.
1878, 154, § 1.
1880, 152, § 1.
P. S. 130, § 2.
126 Mass. 450.
134 Mass. 120.
136 Mass. 297.
133 Mass. 111.
136 Mass. 54.
151 MaB6. 596.
— of special
administrator.
1834, 174, § 5.
R. S. 64, § 7.
G. S. 94, § 7.
1876, 200, § 2.
P. 8. 130, § 11.
— of receiver
of absentee.
1897, 447, § 2.
—of temporary
f:uardian.
897, 135, § 3.
1900, 345, § 4.
before entering upon the duties of his trust, shall give bond with 5
sufficient sureties, in such sum as the probate court may order, 6
payable to the judge of said court and his successors, and with con- 7
dition substantially as follows : — 8
1. In the case of an executor or administrator with the will 9
annexed : 10
First, To make and return to the probate court within three 11
months a true inventory of all the testator's real and personal prop- 12
erty which at the time of making such inventory shall have come to 13
his possession or knowledge ; 152 Mass. 412. 14
Second, To administer according to law and to the will of the 15
testator all personal property of the testator which may come into his 16
possession or into the possession of any person for him, and also the 17
proceeds of any of the real property of the testator which may be 18
sold or mortgaged by him; 140 Mass. 351. 143 Mass. 326. 19
Third, To render upon oath a true account of his administration 20
at least once a year until his trust is fulfilled, unless he is excused 21
therefrom in any year by the court, and also to render such account 22
at such other times as the court may order. 23
2. In the case of an administrator : 24
First, To make and return to the probate court within three 25
months a true inventory of all the intestate's real and personal prop- 26
erty which at the time of making such inventory shall have come to 27
his possession or knowledge ; 28
Second, To administer according to law all the personal property 29
of the deceased which may come into his possession or into the pos- 30
session of any person for him, and also the proceeds of any of the 31
real property of the deceased which may be sold or mortgaged by 32
him ; 33
Third, To render upon oath a true account of his administration 34
at least once a year until his trust is fulfilled, unless he is excused 35
therefrom in any year by the court, and also to render such account 36
at such other times as the court orders ; 37
Fourth, To pay to such persons as the court orders any balance 38
remaining in his hands upon the settlement of his accounts ; 39
Fifth, To deliver his letters of administration into the court if 40
a will of the deceased is thereafter duly proved and allowed. 41
3. In the case of a special administrator: 42
That he will make and return to the probate court within such 43
time as it orders a true inventory of all the personal property of 44
the deceased which at the time of making such inventory shall have 45
come to his possession or knowledge, and that he will, whenever 46
required by the probate court, truly account on oath for all the 47
property of the deceased which may be received by him as such 48
special administrator, and will deliver the same to any person who 49
may be appointed executor or administrator of the deceased, or 50
may be otherwise lawfully authorized to receive the same. 51
4. In the case of a receiver of an absentee appointed under 52
the provisions of chapter one hundred and forty-four : 53
With condition substantially as provided for the bond of an exec- 54
utor or administrator, and with the further condition to obey all 55
orders and decrees made by the probate court. 56
5. In the case of a temporary guardian appointed under the pro- 57
visions of section twenty of chapter one hundred and forty-five : 58
Chap. 149.] bonds of executors, etc. 1333
59 That he will make and return to the probate court within such
60 time as it shall order a true inventory of all the personal property
61 of the ward which at the time of making such inventory shall have
62 come to his possession or knowledge, and that he will, whenever
63 required by the probate court, truly account on oath for all the
64 property of the ward which may be received by him as such tem-
65 porary guardian, and will deliver it to any person who may be
6d> appointed guardian or may be otherwise lawfully authorized to
67 receive it.
68 6. In the case of a guardian : conditions of
69 First, To make and return to the probate court at such time as it guardian.
70 orders a true inventory of all the real and personal property of the ^26~7, 12> §§ 6>
71 ward which at the time of making such inventory shall have come 1^1-2, 14, §§ 6,
72 to his possession or knowledge ; rrel'ts9 §§| 3' 4'
73 Second, To manage and dispose of all such property according to gn! 190, § k
74 law and for the best interests of the ward, and faithfully to perform 1855/280. '
75 his trust in relation to such property and to the custody, education W. '
76 and maintenance of the ward ; isso; 152,' § 1!
77 Third, To render upon oath at least once a year until his trust is fMa'sl39io§6.22'
78 fulfilled, unless he is excused therefrom in any year by the court, a * |j*. 19s, 206.
79 true account of the property in his hands, including the proceeds of ffp\5<f-
80 all real property sold or mortgaged by him and of the management 21 Pick! 36.
81 and disposition thereof, and also to render such account at such ucusn. 20!
32 other times as said court may order ; and l^Grly^iu.
S3 Fourth, At the expiration of his trust to settle his account in the ^m^s's!?^.
84 probate court or with the ward or his legal representatives, and to J|o Mass. 141.
85 pay over and deliver all the property remaining in his hands or due 154 Mass! 269!
S6 from him on such settlement, to the person or persons lawfully
87 entitled thereto.
88 7. In the case of a trustee under a will or appointed by the pro — of trustee.
CO 1 , , 1.1. j ± 1810, 86, §1.
89 bate court : mi, 106, §§ 37,
90 First, To make and return to the probate court at such time as it r.s. 69> §§ 1) 9-
91 orders a true inventory of all the real and personal property belong- g-s- 100' §§ *»
92 ing to him as trustee which at the time of the making of such in- if2|» fK- * 0
93 ventory shall have come to his possession or knowledge ; p. s'. 141, §§ 12,
94 Second, To manage and dispose of all such property, and faith- 22'pick. 215.
95 fully to perform his trust relative thereto according to law and to 153 Mass.1^.
96 the will of the testator ;
97 Third, To render upon oath at least once a year until his trust is
98 fulfilled, unless he is excused therefrom in any year by the court, a
99 true account of the property in his hands and of the management
100 and disposition thereof, and also to render such account at such
101 other times as said court orders ; and
102 Fourth, At the expiration of his trust to settle his account in the
103 probate court, and to pay over and deliver all the property remain-
104 ing in his hands, or due from him on such settlement, to the person
105 or persons entitled thereto.
1 Section 2. If the executor of a will or an administrator with f™^* i*ecu
2 the will annexed is residuary legatee thereunder, and it appears f^uarjr
3 that the bond required of him in the preceding section is not neces- nss, 24! § 17.
4 sary for the protection of any person interested in the estate, the i857,*88.'
5 court may permit such executor or administrator with the will i87o,'285.
6 annexed, instead of giving such bond, to give bond in a sum and Sbfi1!.9,556'7'
1334
BONDS OF EXECUTORS, ETC.
[Chap. 149.
3 Mass. 523.
16 Mass. 172.
5 Pick. 337.
5 Met. 247.
6 Cush. 235.
2 Gray, 404.
5 Gray, 67.
133 Mass. 447.
134 Mass. 115.
140 Mass. 66,
502.
with sureties to the satisfaction of the court, and with condition to 7
pay all debts and legacies of the testator and such amounts as may be 8
allowed by the court to the widow or minor children for necessaries. 9
In such case he shall not be required to return an inventory. The 10
giving of such bond shall not discharge the lien on the real prop- 11
erty of the testator for the payment of his debts, except on such 12
part as may be sold by the executor or administrator with the will IS
annexed to a purchaser in good faith and for a valuable considera- 14
tion ; and all property not so sold may be taken on execution by 15
a creditor not otherwise satisfied, in like manner as if a bond had 16
been given in the other form. 17
Exemption of
executor, etc.,
from giving
sureties, when.
1858, 72.
G. S. 93, § 5.
P. S. 129, § 8.
1885, 274, § 1.
8 Allen, 532.
12 Allen, 330.
— of guardians
and trustees.
1817, 190, § 37.
R. S. 69, §2; 79,
§7.
G. S. 100, §2;
109, § 6.
1869, 357.
1873, 122, § 1.
1874, 352, § 2.
1880, 34.
P. S. 139, §§ 23,
24; 141, §§16,17.
1891, 339.
22 Pick. 215.
149 Mass. 92.
Bond without
surety of guar-
dian having
custody of
ward.
1881, 237.
P. S. 139, § 25.
EXEMPTION FROM GIVING SURETIES ON BONDS.
Section 3. An executor shall be exempt from giving a surety 1
on his bond if the testator has ordered or requested such exemption 2
or that no bond should be taken, and an executor, administrator 3
or an administrator with the will annexed, shall be so exempt if all 4
the persons interested in the estate who are of full age and legal 5
capacity, other than creditors, certify to the probate court their con- 6
sent thereto ; but not until all creditors of the estate, and the guar- 7
dian of any minor interested therein, have been notified and have had 8
opportunity to show cause against the same. The probate court may 9
however upon or after the granting of letters testamentary or letters 10
of administration require bond, with sufficient surety or sureties. 11
Section 4. A testamentary guardian and a trustee under a will 1
shall be exempt from giving surety or sureties on his bond, if 2
the testator has ordered or requested such exemption, or that no ' 3
bond should be required, or in the case of a trustee, if all the per- 4
sons beneficially interested in the trust, who are of full age and 5
legal capacity, other than creditors, request such exemption ; but 6
not until the guardian of any minor interested therein and such 7
other persons as the court orders, have been notified and have had 8
opportunity to show cause against the same. The probate court 9
majr however at any time require such guardian, trustee or trustee 10
appointed by the probate court to give a bond with surety or sureties. 11
Section 5. If the custody of a minor is given to a guardian, 1
pursuant to the provisions of section four of chapter one hundred 2
and forty-five, for the reason that one or both of his parents are 3
unfit to have such custody, such guardian may in the discretion of 4
the court give a bond without a surety ; but the court in such case 5
may, at any time if it finds that the protection of the ward's interests 6
renders it necessary, require such guardian to give a bond with 7
surety or sureties. 8
Guardians and
trustees ex-
empt from
giving bond,
when.
1810, 86, § 1.
1817, 190, § 37.
R. S. 69, § 3.
G. S. 100, § 3.
1873, 122, § 2.
EXEMPTION FROM GIVING BOND.
Section 6. A guardian or trustee who was not required to give 1
bond by the laws in force at the time of his appointment shall not 2
be required to give bond under the provisions of the preceding sec- 3
tions of this chapter, except by special order of the court under the 4
provisions of section four. , 5
1880, 34, § 2. P. S. 139, § 27; 141, § 19. 117 Mass. 513.
Chap. 149.] bonds or exeoutoes, etc. 1335
EFFECT OF NEGLECT TO GIVE BOND.
1 Section 7. A person required by the provisions of the preced- ^l1 bona a
2 ing sections to give a bond who, for thirty days after his appoint- iff^gj1^-
3 ment or after the entry of the decree requiring him to give bond, isi7| 190, § 38.
4 fails to file the bond, duly approved, may be found to have declined Glsiioo, §i.
5 or resigned the trust. 1869,357. 1873,122, §2. 1880,34, §2.
P. S. 139, § 26; 141, § 18. 1898,458. 110 Mass. 298.
1 Section 8. An executor, administrator or administrator with fs^u^i!"
2 the will annexed who neglects to give bond, with surety or sureties,
3 when required by the probate court within such time as it orders, in
4 accordance with the provisions of section three, shall be found to
5 have declined or resigned the trust.
GENERAL PROVISIONS.
1 Section 9. The sureties on every bond given to a judge of pro- sureties on
2 bate shall, except as provided in section sixty-one of chapter one inhabitants
3 hundred and eighteen, be inhabitants of this commonwealth, and wealth™011'
4 satisfactory to such judge or to the register. isi7, 190, § 23. 1782> 25' § i-
R. S.70, §2. G. S. 101, §12. P. S. 143, § 1. 1901,463. 7 Allen, 425.
1 Section 10. No bond required to be given to a judge of probate Bonds to be
2 or to be filed in a registry of probate shall be sufficient, unless it has ^geordl>7
3 been examined and approved by the judge or by the register, and prlbate.°f
4 his approval over his official signature written thereon. isi7, 190, § 23.
R. S. 83, § 32. P. S. 143, § 2. 3 Cush. 465. 113 Mass. 472.
G. S. 101, § 12. 1901, 463. 12 Allen, 330. 126 Mass. 105.
1 Section 11. Two or more persons acting jointly as executors, Joint or sepa.
2 administrators, trustees or otherwise, who are required to give jotatlexecu-by
3 bonds, may give either separate or joint bonds. is34,' 174,' § 6.
R. S. 70, § 2. G. S. 101, § 14. 1874, 366. P. S. 143, § 3.
1 Section 12. If two or more persons are appointed executors, Executor not
2 none shall intermeddle or act as such but those who give bond as noYt<Finte*
3 before provided. r. s. 63, § 2. g. s. 93, § 2. p. s. 129, § 9. ™83,^4,' § 17.
1 Section 13. If a license or authority for the sale or mortgage special bond
2 of real property has been granted to an executor, administrator, executorirefc.01
3 guardian or trustee, no special bond shall be required ; but if the uniesSse,detc. '
4 court finds that the bond given by him upon his appointment is xll'm5^
5 insufficient, it shall, before granting such license or authority, R.s'.7i,'§6;72,
6 require an additional bond containing the same conditions as are isso, 196.
7 required in the bond to be given upon the appointment of such 102, §§6,28. '
8 executor, administrator, guardian or trustee.
1880, 152, § 2. P. S. 143, § 4. 139 Mass. 358. 153 Mass. 329.
1 Section 14. If the sureties or the penal sum in a bond given New bond
2 to a judge of probate are insufficient, the supreme judicial court or etc.^nsuffi-68'
3 the probate court may, after notice to the principal in such bond, isi^k, § 3.
4 require a new bond with such surety or sureties and in such penal 1817> 190> § 42-
5 sum as the court orders. r. s. 70, § 27; 79, § 24. i85i, 31, § 1.
G. S. 101, § 15;
1877, 134.
3 Cush. 465.
142 Mass. 399.
109, § 27.
P. S. 143, § 5.
116 Mass. 435.
171 Mass. 386.
1336
BONDS OF EXECUTORS, ETC.
[Chap. 149.
?uretbiesfeof Section 15. A surety on a bond given to a judge of probate 1
e.1!'. 79o0,'§§28; ma7' upon his petition to the supreme judicial court or the probate 2
llil lei's i court, be discharged from all further responsibility, if the court, 3
g. s. ioi, § 16; after notice to all persons interested, finds such discharge reasonable 4
p. s. 143, § 6. and proper ; and the principal shall thereupon give a new bond with 5
139 Mass. 356. i 4 ,. ,f < j n
such surety or sureties as the court orders. 6
Susteelf new Section 16. If, in the cases specified in the two preceding sec- 1
isi^So* fl^11" ti°ns' the principal does not give such new bond within such time 2
e. s. 7o,'§29.' as is ordered by the court, he shall be removed from his trust, and 3
i85i| 3i| § i! another person appointed in his stead. 4
G. S. 101, § 17
P. S. 143, § 7.
Sureties on
prior bond
liable until
new bond
approved.
1S17, 190, § 42.
E. S. 70, § 30.
Eeduction of
penal sum of
bond.
1899, 278.
Section 17. If a new bond is required as above provided, the 1
sureties on the prior bond shall be liable for all breaches of the 2
condition thereof which are committed before the new bond is 3
approved by the judge. 4
1843, 56, § 3.
G. S. 101, § 18.
P. S. 143, § 8.
116 Mass. 552.
130 Mass. 404.
132 Mass. 343.
142 Mass. 399.
171 Mass. 386.
Section 18. If a surety company becomes surety on a bond
given to a judge of probate,. the court may, upon the petition of
any party in interest and after notice, reduce the penal sum in
which the principal and surety shall be liable for a violation there-
after of the conditions thereof.
1
2
3
4
5
Eelease of
sureties by
marriage of
executrix.
1869, 409, § 2.
P. S. 143, § 9.
Section 19. In case of the marriage of a woman who is an 1
executrix, administratrix, guardian or trustee, her sureties shall 2
have the right, upon petition to the probate court in which her bond 3
is filed, to be released from any further liability on such bond, 4
beyond accounting for and paying over the money and property 5
already in her hands by virtue of such trust ; and if her sureties are 6
so released, she shall be required to furnish a new bond to the satis- 7
faction of said court, or shall be discharged from said trust. 8
Suit by cred-
itor on bond of
executor, etc.
1786, 55, § 2.
E. S. 70, § 3.
G. S. 101, § 19.
P. S. 143, § 10.
15 Mass. 6.
16 Mass. 524.
20 Pick. 53.
9 Met. 525.
2 Gray, 154.
REMEDY UPON BONDS.
Section 20. Bonds given by executors or administrators for the 1
performance of their trust may be put in suit by a creditor of the 2
deceased for his own benefit, when such creditor has recovered judg- 3
ment for his debt against the executors or administrators and they 4
have neglected upon demand made by him to pay the same or to 5
show sufficient goods or estate of the deceased to be taken on exe- 6
CUtion for that purpose. 117 Mass. 222. 138 Mass. 336. 142 Mass. 227. 7
i786ie55U§',2^ct" Section 21. A creditor of an estate which has been represented 1
g !' ioi§«42o insolvent may bring such action if the amount due to him has been 2
p.'s.'i43,jn.' ascertained by the decree of distribution, and the executor or ad- , 3
ministrator neglects upon demand to pay such amount. 4
21 Pick. 58.
suit by next of Section 22 . Such action may be brought by a person who is next 1
e8! 70 1^' °^ ^m ^° recover his share of the personal property after a decree of 2
g". a. loi, § 2i. the probate court ascertaining the amount due to him, if the execu- 3
j> g 143 6 12 • ■
126 Mass. 450.' tor or administrator neglects upon demand to pay such amount. 4
144 Mass. 138.
Chap. 149.] bonds of executors, etc. 1337
1 Section 23. If the probate court, upon the representation of fggr^||bSyn
2 any person interested in an estate, finds that the executor or majadminis-
i . . i i' -i t • L t± i • j.i l\ tration of
3 administrator has tailed in any manner not specified in the three executor, etc.
4 preceding sections to perform the conditions of his bond, it r. s. to, § 6.
5 may authorize any creditor, next of kin, legatee or other person p.' s." 143' § 13.'
6 aggrieved by such maladministration to bring an action on the TMush546T.
7 bond. 15 Gray, 5T. 13 Allen, 109. 116 Mass. 518. 133 Mass. 44T. lrl*I'v%'
9 Allen, 244. 110 Mass. 195. 129 Mass. To. 136 Mass. 104. ^ uray, i,o.
1 Section 24. If a judge of probate is obligor, either as prin- —how brought
2 cipal or as surety, in a bond given to a former judge of the court, WaunobTi!or.ge
3 any action authorized by the provisions of this chapter may be g?!.ioi,§§23,
4 brought upon such bond in the name of the judge mentioned |*s 143 §14
5 therein or in the name of his executor or administrator, and the
6 register of probate for the county in which such bond was given
7 may authorize an action thereon in like manner and upon the same
8 conditions as may be done in other cases by the court.
1 Section 25. The wife of a iudge of probate may be a defendant —against wife
2 in an action upon a bond given to him or to his predecessor in such judge.
0 rn ° 1896,208.
3 office.
1 Section 26. In every action on a bond under the provisions of indorsement of
2 sections twenty, twenty-one and twenty-two, the writ shall be in- ^8| s?. §2-
3 dorsed by the persons for whose benefit or at whose request the action g. a. ioi, §25.
4 is brought or by their attorney, and the indorsers shall be liable for 2 Mass. 149.
5 the costs of suit, and execution therefor shall be issued against 2Aiien,653T.
6 them and not against the judge. If the action is brought for the
7 benefit of creditors or next of kin, there shall be a further indorse-
8 ment on the writ specifying that it is brought for the benefit of
9 such creditors or next of kin.
1 Section 27. If the principal in the bond is a resident of this owigormaybe
2 commonwealth at the commencement of the action, and is not made when""163'
3 a defendant therein or is not served with process, the court may, at b.8|. 70, § !'.
4 the request of any of the sureties, continue or postpone the action £• f- ™h f %> •
K 1 U 4. u • • iL ■ • l R- S. 143, § 16.
5 so long as may be necessary to summon or bring in the principal as
6 provided in the following section.
1 Section 28. The sureties may take out a writ, in such form as same subject.
2 the court may prescribe, to arrest the principal or to attach his r8|.to',|29.
3 goods or estate, and to summon him to appear and answer as de- p.'f.'i^'f n."
4 fendant in the original action. If, after being served with such
5 process fourteen days at least before the time appointed for him to
6 appear and answer to the action, he neglects so to do, and if judg-
7 ment is for the plaintiff, such judgment shall be rendered against the
8 principal obligor with the other defendants in the same manner as
9 if he had been originally a party to the action. An attachment or
10 bail on such process shall be liable to respond to the judgment in
11 like manner as if made or taken in the original action.
o
1 Section 29. Bonds given by guardians or trustees may be put Actions upon
bonds of guar.
2 in suit by order of the probate court for the benefit of any person dians or trus- *
tees.
3 interested in the estate, and the proceedings in such actions shall be 1T86J55
1338
BONDS OF EXECUTORS, ETC.
[Chap. 149.
i8io, 86, §3. conducted in like manner as is provided relative to actions on
k. s'.69% 13; bonds given by executors or administrators. g. s. ioo, § 12; 109, § 28.
79, § 25. p. s. 143, § 18. 19 Pick. 403. 21 Pick. 36. 140 Mass. 357.
4
5
IceuOTs°upon Section 30. An action on a bond payable to a judge of probate 1
Trellis 3 shall be brought in the superior court held for the county in which 2
i8io| 86| § 3. the bond was taken. isn, 190, § 43. r. s. 69, § 13; 70, § 10; 79, § 25. 3
G. S. 100, § 12; 101, § 28; 109, § 28. P. S. 143, § 19. 1897, 131.
Form of execu-
tion in action
on bond.
1786, 55.
1816, 94, § 2.
R. S. 70, § 10.
G. S. 101, § 128.
P. S. 143, § 20.
16 Gray, 267.
107 Mass. 474.
110 Mass. 195.
116 Mass. 552.
155 Mass. 203.
Section 31. If the court finds that there has been a breach of 1
the condition of the bond of an executor or administrator, it shall, 2
upon a hearing in equity, award execution in the name of the plain- 3
tiff as follows : — 4
First, If the action is brought for the benefit of a creditor, execu- 5
tion shall be awarded for the use of the creditor for the amount due 6
to him upon the judgment which he has recovered, or upon the 7
decree of distribution in his favor. 8
Second, If the action is brought for the benefit of a person who 9
is next of kin, execution shall be awarded for the use of such per- 10
son for the amount due to him according to the decree of the probate 11
court. 12
Third, If the action is brought for a breach of the condition in 13
not accounting for the estate as required by law, execution shall be 14
awarded, without expressing that it is for the use of any person, for 15
the full value of all the estate of the deceased which has come to the 16
hands of the executor or administrator and for which he does not 17
satisfactorily account, and for all damages caused by his neglect or 18
maladministration. 19
Fourth, If the action is brought for any other breach of the con- 20
dition of the bond, execution shall be awarded for such amount and 21
for the use of such person or persons, or without expressing it to be 22
for the use of any particular person, as the court determines. 23
Fifth, If there are two or more persons for whose use execution 24
is to be awarded as provided in this section, a separate execution 25
shall be issued for the amount due to each of them. 26
Sixth, The execution shall include the costs of suit, as well as 27
the debt or damages ; and if there is more than one execution, the 28
costs shall be divided between them as the court orders. 29
Proceedings if
execution is
awarded for
the use of a
particular
person.
1786, 55, § 1.
R. S. 70, § 10,
cl. 7.
G. S. 101, § 28,
cl. 7.
Section 32. If an execution which is awarded under the pro- 1
visions of the preceding section is expressed to be for the use of a 2
particular person, such person shall be considered as the judgment 3
creditor, and may cause the execution to be levied in his name and 4
for his benefit, as if the action had been brought and the judgment 5
recovered in his name. p. s. 143, §21. 8Cush.289. 6
— if awarded
without ex-
pressing for
whose use.
R. S. 70, § 11.
G. S. 101, § 29.
P. S. 143, § 22.
9 Met. 525.
Section 33. If such execution is awarded without expressing 1
it to be for the use of any particular person, all money received 2
thereon shall be paid to the co-executor or co-administrator, if any, 3
or to the person who is then the rightful executor or administrator, 4
and shall be assets in his hands to be administered according to law. 5
newVbreach0r Section 34. If, after execution has once been awarded in an 1
after execution action upon a bond, the executor or administrator commits a new 2
awarded. * '
Chap. 150.] accounts and settlements of executoes, etc. 1339
3 breach of the condition of the bond, or if a creditor, next of kin, r. s. 70, §12.
4 legatee or other person interested in the estate has a claim for further p.' f ; 1^; f 23.*
5 damages on account of any neglect or maladministration of the
6 executor or administrator, a writ of scire facias on the original judg-
7 ment may be sued out in like manner as is provided for the com-
8 mencement of the original action ; and the court shall thereupon
9 award a new execution in like manner as might have been done in
10 the original action.
1 Section 35. No action shall be maintained against the sureties Limitation of
2 on a bond given by a guardian , unless commenced within four years Sureties a0^f 1DSt
3 from the time of the discharge of the guardian ; but if at the time i^ffi 113.
4 of such discharge the person entitled to bring such action is out of g- 1- ^§,22g
5 this commonwealth, it may be commenced within four years after p- s- 139,' § 28.'
6 hlS return. 13 Gray, 561. 141 Mass. 507.
CHAPTER 150.
OP THE ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ADMINISTRATORS,
GUARDIANS, TRUSTEES AND RECEIVERS.
1 Section 1. An executor, administrator or guardian, or a trus- when accounts
2 tee who is required by law to give bond to a judge of probate, deredberen"
3 shall render an account relative to the estate in his hands at least b.5s^6712§ \}'
4 once a year and at such other times as shall be required by the f^ -ffy § 9-
5 court, until his trust is fulfilled ; but the court may upon his applica- p-s' w*. § i.
6 tion excuse him from rendering an account in any year, if satisfied 144 Mass. 587.
7 that it is not necessary or expedient that it should be rendered.
1 Section 2. Accounts rendered to the probate court by an execu- Forms of ac-
2 tor, administrator, trustee or guardian shall be for a period dis- 189^210.
3 tinctly stated therein, and shall consist of three schedules, of which 146Mass-373.
4 the first shall show the amount of personal property according to
5 the inventory, or, instead thereof, the amount of the balance of the
6 previous account rendered, as the case may be, and all income and
7 other property received and all gains from the sale of any property
8 or otherwise; the second shall show payments, charges, losses and
9 distributions, and the third shall show the investment of the balance
10 of such account, if any, and changes of investment. A trustee
11 shall state in his accounts the receipts of principal and income sep-
12 arately and also the payments and charges on account of such prin-
13 cipal and income separately.
1 Section 3. An executor, administrator, guardian or trustee may Examination
2 be examined on oath before the court upon any matters relative to RQsa67,'§7.
3 his accounts. p. s. 144, §2. g. s. 98,§9.
1 Section 4. An executor, administrator, guardian or trustee Personal prop-
2 shall account for the personal property at its appraised value, but accounted for
3 he shall make no profit by the increase, nor sustain any loss by the vakwfexcept,
4 decrease or destruction without his fault of any part thereof. If he ^ 190 §. 19
5 sells any of the personal property for more than its appraised value, 34. '
1340
ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ETC. [CHAP. 150,
f: |y 6§7:2-p L 2> he shall account for the excess ; and if he sells any for less than its
g- s'98, §§ 1, 2, appraised value, he shall be allowed for the loss, if the court finds
p. s. 144, §'3. that the sale was expedient and for the interest of all concerned ;
and he shall not be accountable for a debt inventoried as due to
the estate, if the court finds that it remains uncollected without his
fault.
6
7
8
9
10
11
which'account- Section 5 . An executor, administrator, guardian or trustee shall
l^ito8^16' ^e chargeable in his account with all the personal property of the
r.s'.67,'§5; 79, deceased which comes to his hands and which is by law to be admin-
§ 20. ... J
o. s. 98, §7; istered, although not included in the inventory; also with all pro-
p.'s. 144, §4. ceeds of real property which is sold or mortgaged and with all
interest, profit and income that come to his hands from the personal
property of the deceased.
30
<>
Income de-
rived from real
property to be
accounted for.
1789, 11, § 2.
R. S. 67, § 6.
G. S. 98, § 8.
P. S. 144, § 5.
1 Allen, 132.
100 Mass. 218.
125 Mass
311.
136 Mass. 297.
145 Mass. 522.
Mortgage of
real property
to be personal
assets.
1786, 5, § 1.
1788, 51, § 1.
R. S. 65, § 11.
G. S. 96, § 9.
P. S. 133, § 6.
16 Mass. 18.
14 Pick. 399.
8 Gush. 225.
11 Cush. 147.
In case of
redemption,
executor, etc.,
to release.
1786, 5, §§ 2, 4.
1788, 51, §§ 2, 4.
R. S. 65, § 12.
G. S. 96, § 10.
P. S. 133, § 7.
Land taken
on execution
by executor,
etc., to be per-
sonal assets.
1766, 5, § 3.
178S, 51, § 3.
R. S. 65, § 13.
G. S. 96, § 11.
P. S. 133, § S.
4 Mass. 598.
17 Pick. 477.
3 Gray, 302.
How mort-
gages held by
executor, etc.,
may be sold.
1786, 5, § 3.
1788, 51, § 3.
E. S. 65, § 14.
1849, 47.
1851, 288.
Section 6. If the real property has been used or occupied by an
executor or administrator, he shall account for the income thereof as
ordered by the probate court with the assent of the executor or ad-
ministrator and of such other parties interested as appear upon the
filing of the account. If the parties do not agree on the amount to
be allowed, it shall be determined by three disinterested persons,
who shall be appointed by the probate court and whose award,
when accepted by the court, shall be final. 149 Mass. 262.
Section 7. If a mortgagee of real property, or an assignee of
such mortgagee, dies without having foreclosed the right of re-
demption, the mortgaged property and the debt secured thereby
shall be personal assets in the hands of his executor or adminis-
trator, and shall be administered and accounted for as such ; and
the executor or administrator shall have the same rights of entry
and of action under said mortgage as the mortgagee or his assignee.
3 Gray, 504.
10 Allen, 430.
108 Mass. 379.
128 Mass. 284.
Section 8. Upon the redemption of such mortgage the money
paid thereon shall be received by the executor or administrator, and
he shall thereupon release and discharge the mortgage ; and until
such redemption the executor or administrator, if possession has
been taken either by himself or by the deceased, shall be seised of
the mortgaged property in trust for the persons who would be en-
titled to the money if the property had been redeemed.
Section 9. If an executor or administrator recovers judgment
for a debt due to the deceased, and levies the execution on real
property, he shall be seised of such real property in trust for the
persons 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 personal assets in his hands ; and if redeemed,
the money shall be received by the executor or administrator, who
shall thereupon release the estate.
Section 10. Real property which is held by an executor or ad-
ministrator in mortgage, or taken on execution by him, may, at any
time before the right of redemption is foreclosed, be sold subject to
such right, in the same manner as personal property of a person
deceased ; and after such right has been foreclosed, it may be sold
1
2
3
4
5
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7
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Chap. 150.] accounts and settlements of executors, etc. 1341
6 in the same manner as real property of which the deceased died q5| ^ §§ 12
7 Seised. P. S. 133, §9. 17 Pick. 477. 12 Met. 421. 6 Allen, 77. 13; 98, §5.
1 Pick. 81. 10 Met. 403. 3 Gray, 302.
1 Section 11. If land so held by an executor or administrator in How disposed
2 mortgage or on execution is not redeemed or sold as before pro- i786,f.°§t3!°ld*
3 vided, it shall be assigned and distributed to the same persons and r8!'.5^!3^.
4 in the same proportions as if it had been part of the personal property ^; |- ^ § ^
5 of the deceased ; and if upon such distribution the property comes
6 to two or more persons, the probate court may cause partition
7 thereof to be made between them, in like manner as if it had been
8 real property held by the deceased in his lifetime.
1 Section 12. A reasonable amount expended for a burial lot and bilriW1ottndr
2 a monument may be allowed by the court as part of the funeral ex- ^S°u2^18ent-
3 penses of a testator or intestate and the court may at any time, p. s. 144, §6.
1900 147
4 upon petition of an executor or administrator, after notice, deter- 139 Mass. 304.
5 mine the amount which may be expended. 167 Mass. 307, 577.
1 Section 13. An executor or administrator may pay to a cem- cost of Per-
2 etery corporation or to a city or town which has a burial place i89V32ifre°
3 therein a reasonable amount for the perpetual care of the lot in
4 which the body of his testate or intestate is buried. The probate
5 court shall determine, after notice, to whom the same shall be paid
6 and the amount thereof, and such amount shall be allowed to the
7 executor or administrator in his final account.
1 Section 14. An executor, administrator, guardian or trustee compensation
2 shall be allowed his reasonable expenses incurred in the execution 0? executor?8
3 of his trust, and shall have such compensation for his services as 79* §'32!' § 8;
4 the court in which his accounts are settled may allow. g^'.^'sio-
P. S. 144, §7. 101 Mass. 592. 121 Mass. 220. 130 Mass. 262. 109, § 3l'.
19 Pick. 473. 109 Mass. 252, 541. 125 Mass. 307. 146 Mass. 373.
6 Allen, 494. 117 Mass. 41. 128 Mass. 140. 149 Mass. 375.
1 Section 15. Money paid with the approval of the judge of ^5go1
2 probate to a corporation duly organized or authorized to act in this surety charge-
»/ O &D16 on 6stat6.
3 commonwealth in guaranteeing the fidelity of persons and in acting 1886, 233.
4 as surety on bonds, or to any person for acting as surety on any
5 official bond given to such probate court, may be allowed as a charge
6 against the estate.
1 Section 16. If an executor or administrator, after being duly Executor, etc.,
2 cited by the probate court, neglects to render an account of his ad- ntgilcuo
3 ministration, his bond may be put in suit as provided in the preced- rc.csU67,'§9.
4 ing chapter ; and if he persists in such neglect, judgment shall be ^; |; ^ y|;
5 rendered against him, and he shall be liable in like manner and to
6 the same extent as an executor in his own wrong.
1 Section 17. If an account of au executor, administrator or opening of set
2 trustee is settled in the absence of a person adversely interested and rg s.^Tiof'
3 without notice to him, it may be opened upon his application at any ^o.'a^.5 12'
4 time within six months after such settlement. Upon the settlement fpf,^' § 9*
5 of an account, all former accounts of the same accountant may be so l0™'^- i10-
6 far opened as to correct a mistake or error therein ; but a matter in 98 Mass. 462.
1342
ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ETC. [CHAP. 150.
109 Mass! 5«. dispute, which has been previously heard and determined by the
court, shall not without leave of the court be again brought in ques-
ts Mass. 532
134 Mass. 120.
144 Mass. 415, tion by any of the parties to such dispute.
148 Mass. 434.
7
8
9
Section 18. Probate courts may allow the account of two or 1
Allowance of
account of
tor^etc^on more joint executors, administrators, guardians or trustees, upon 2
oath of one. the Oath of One Of them. B. S. 70, § SI; 79, § 33. g. s. 101, § 6. p. s. 144, § 11. 3
Distribution.
Section 19. If the estate of a deceased person is to be dis- 1
tributed in whole or in part, the probate court, upon the petition 2
of any person interested, after such notice as it may order, may 3
order the executor or administrator to convert the personal prop- 4
erty, into cash and to distribute it among the persons entitled 5
thereto. 6
Final dis-
charge of exec-
utor, etc.
B. S. 70, § 32.
G. S. 101, § 7.
P. S. 144, § 12.
Section 20. If an executor, administrator, guardian or trustee 1
has paid or delivered over to the persons entitled thereto the money 2
or other property in his hands, as required by a decree of a pro- 3
bate court, he may perpetuate the evidence thereof by presenting 4
to said court, within one year after the decree is made, an account 5
of such payments or of the delivery over of such property ; which 6
account being proved to the satisfaction of the court, and veri- 7
fied by the oath of the accountant, shall be allowed as his final 8
discharge and ordered to be recorded. Such discharge shall forever 9
exonerate the accountant and his sureties from all liability under 10
such decree unless his account is impeached for fraud or manifest 11
error. 12
i8a9?,e303.b3ect' Section 21. If without an order of court an administrator pays
or delivers to a widow, husband or other person any money or other
property in his hands, and thereafter renders an account upon oath
with a full and detailed statement thereof, and after notice it appears
that the persons to whom such money has been paid or property
delivered would have been entitled to an order of court for such
payment or delivery and that such account ought to be allowed,
the probate court may make a decree, which shall have the same
effect to discharge and exonerate the accountant and his sureties
from further liability as if such payment or delivery had been made
under a previous order of the probate court.
Appointment
of next friend
for persons un-
born, etc., on
settlement of
accounts.
1877, 199, §§ 1, 2.
1879, 161, §§ 1, 2.
P. S. 144, § 13.
1889, 466.
1895, 288.
136 Mass. 67.
Section 22. If an account has been filed in the probate court
and if the court finds that the items of said account should be
finally determined and adjudicated, or if the accountant after two
years from a former adjudication or from his appointment desires
such determination and adjudication, notice of such proposed action
on such account shall be given to all parties as it may order. If the
interest of a person unborn, unascertained, or legally incompetent
to act in his own behalf, is not represented except by the ac-
countant, the court shall appoint a competent and disinterested
person to act as guardian ad litem or next friend for such person,
and to represent his interest in the case. The person so appointed
shall make oath to perform his duty faithfully and impartially, and
shall be entitled to such reasonable compensation for his services
as the court allows.
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8
9
10
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12
13
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Chap. 150.] accounts and settlements of executors, etc. 1343
1 Section 23. If money which a decree of a probate court has unclaimed
2 ordered to be paid over remains for six months unclaimed, the ex- deposited in
3 ecutor, administrator, guardian or trustee, who was ordered to pay ^insst)ank'
4 over the same, may deposit it in a savings bank or other like fl s' 70, §§ 33'
5 institution, or invest it in bank stock or other stocks, as the pro- p1; 1; i^' |8i6.
6 bate court orders, to accumulate for the benefit of the person entitled i53Mass. u.
7 thereto. Such deposit or investment shall be made in the name of
8 the judge of probate for the time being, and shall be subject to the
9 order of the judge and of his successors in office as hereinafter pro-
10 vided. The person who makes such deposit or investment shall
11 file in the probate court a memorandum thereof, with the original
12 certificates or other evidences of title thereto, which shall be allowed
13 as a sufficient voucher for such payment. When the person entitled
14 to the money deposited satisfies the judge of his right to receive
15 it, the judge shall cause it to be paid over and transferred to him.
1 Section 24. If the residence of a legatee under the provisions Deposit of
2 of a will which has been duly proved or of a person entitled to a of unknown'
3 portion of a trust fund under an order of distribution provided by list, 376.
4 section twenty of chapter one hundred and forty-seven is unknown \Hl't H°t\ 2.
5 or if he is a minor without a legal guardian, the court may, if satis- U5 Mass- 517-
6 fied of such fact, order that the legacy or the share of the trust fund
7 due to him be deposited or invested as provided in and subject to
8 the provisions of the preceding section.
1 Section 25. If an executor, administrator, guardian or trustee —of other
' o funds.
2 has money which he considers it advisable to deposit in a savings bank 1899, 90.
3 in the name of the judge of probate for the benefit of such person, he
4 may apply to the probate court by which he was appointed for leave
5 so to do, and the court may in its discretion, without notice, direct
6 such money so to be deposited. When the deposit is made the
7 deposit book of the bank shall be filed in said court. When the per-
8 son entitled to such money satisfies the court of his right to receive
9 it, the court shall by decree direct it to be transferred to him.
1 Section 26. The probate court may, upon the petition of any Final disposi-
2 person interested and after public notice, order all money or the posits.
3 proceeds thereof deposited or invested by its authority and which 1890'*08'§1-
4 shall have remained unclaimed for twenty years from the date of
5 such deposit or investment to be paid to the residuary legatee, if
6 any, of the testator to whose estate the money belonged, or, if such
7 residuary legatee is dead, to his heirs who are living at the time of
8 such distribution ; and if no such residuary legatee or any of his
9 heirs be then living, or if the deceased person died intestate, said
10 money and the proceeds thereof shall be disposed of and distrib-
11 uted among the persons who are entitled thereto and in the man-
12 ner provided by chapter one hundred and forty. The court shall
13 first require from the person or persons to whom such money shall
14 be ordered to be paid, a sufficient bond of indemnity with two suffi-
15 cient sureties to be approved by him, with condition to repay to
16 the person or persons for whose benefit such deposit or investment
17 was originally made or to the personal representatives of such per-
18 son or persons, all money paid over by the order of the court under
19 the provisions of this section.
1344
ACCOUNTS AND SETTLEMENTS OF EXECUTORS, ETC. [CHAP. 150.
If beneficiaries
live out of com-
monwealth
courts may
order trust
fund paid over
to trustee in
another state.
1879, 176, § 1.
P. S. 144, § 17.
Same subject.
1879, 176, § 2.
P. S. 144, § 18.
Section 27. If all living parties who are interested as bene- 1
ficiaries in a trust created by a will which is proved and allowed in 2
this commonwealth reside out of this commonwealth, the probate 3
court which has jurisdiction of the trust may, upon petition of the 4
parties in interest, or of the executor, administrator or trustee, if it 5
considers it just and expedient, authorize the executor, adminis- 6
trator or trustee to pay over the fund to a trustee appointed by the 7
proper court in any other state or country, if all the beneficiaries 8
who are living and the executor, administrator or trustee signify 9
their consent, and the court is satisfied that the laws of such other 10
state or country secure the due performance of said trust ; and upon 11
such payment, shown to the satisfaction of said probate court, the 12
executor, administrator or trustee appointed here may be dis- 13
charged from further responsibility by decree of said court. 14
Section 28. If there are contingent interests in such trust fund, 1
whether the persons who may be entitled thereto are in being or 2
not, or if any of the beneficiaries are minors, the court, before 3
making an order or decree, shall cause such interests and minors to 4
be properly represented by guardians ad litem or otherwise at its 5
discretion. 6
Settlements by
receivers.
1897, 400.
171 Mass. 22.
176 Mass. 283.
Section 29. The following claims shall, in the settlement of 1
estates by receivers, be entitled to priority in the order named : 2
First, Debts due to the United States or debts due to, or taxes 3
assessed by, this commonwealth or a county, city or town herein. 4
Second, Wages to an amount of not more than one hundred dol- 5
lars due to an operative, clerk or servant for labor, either performed 6
within one year last preceding the appointment of the receiver or 7
for the payment for which a suit, which was commenced within one 8
year after the performance of the labor, is pending or was termi- 9
nated within one year after said appointment. 10
Third, Debts to an amount of not more than fifty dollars due to 11
physicians for medical attendance on the debtor or his family, which 12
were rendered within six months prior to said appointment. 13
*..
TITLE III.
OF THE DOMESTIC RELATIONS.
Chapter 151. — Of Marriage .
Chapter 152. — Of Divorce.
Chapter 153. — Of Certain Rights and Liabilities of Husband and Wife.
Chapter 154. — Of the Adoption of Children and Change of Names.
Chapter 155. — Of Masters, Apprentices and Servants.
CHAPTEE 151.
OF MARRIAGE.
Sections 1-11. — Certain Marriages Prohibited.
Sections 12-15. — Legitimacy and Care of Issue of Void Marriages.
Sections 16-29. — Notice of Intention of Marriage.
Sections 30-36. — Solemnization of Marriage.
Sections 37-39. — Evidence of Marriage.
Sections 40—44. — Penalties.
CERTAIN MARRIAGES PROHIBITED.
1 Section 1. No man shall marry his mother, grandmother, daugh- Marriage be-
2 ter, granddaughter, sister, stepmother, grandfather's wife, son's reiatfonfpr™
3 wife, grandson's wife, wife's mother, wife's grandmother, wife's c.bLtew2, § 5.
4 daughter, wife's granddaughter, brother's daughter, sister's daugh- itI^'A5!1'
5 ter, father's sister or mother's sister. g. s. 106, § 1. p. s. 145, § 1. R. s'. 75, § 1.
1 Section 2. No woman shall marry her father, grandfather, son, same subject.
2 grandson, brother, stepfather, grandmother's husband, daughter's r.8!'.6?!', §2.
3 husband, granddaughter's husband, husband's father, husband's p'f;i4°56'f22*
4 grandfather, husband's son, husband's grandson, brother's son, 10 Met- 4'51-
5 sister's son, father's brother or mother's brother.
1 Section 3. The prohibition of the two preceding sections shall ^s^s^fs0*'
2 continue notwithstanding the dissolution, by death or divorce, of p'f'^f'ff'
3 the marriage by which the affinity was created, unless the divorce
4 was granted because such marriage was originally unlawful or void.
1 Section 4. A marriage contracted while either party thereto has P^g*my for-
2 a former wife or husband living, except as provided in section six 1784, 40, § 2.
3 and in chapter one hundred and fifty-two, shall be void. r. s'. 75, §4.
P. S. 145, §4. 113 Mass. 458. 170 Mass. 150. 171 Mass. 560. G. S. 106,§4.
[1345]
1346
MARRIAGE.
[Chap. 151.
Insane persons
incapable of
marrying.
R. S. 75, § 5.
1843, 5.
1845, 222.
G. S. 106, § 5;
107, § 2.
Section 5. An insane person or an idiot shall not be capable 1
of contracting marriage. The validity of a marriage shall not be 2
questioned by reason of the insanity or idiocy of either party in the 3
trial of a collateral issue, but shall be raised only in a process in- 4
stituted in the lifetime of both parties to test such validity. 5
P. S. 145, §§ 5, 9.
12 Mass. 363.
4 Pick. 32.
4 Allen, 458.
^^xiftence" Section 6. If a person, during the lifetime of a husband or wife
oi0formermar- with whoni the marriage is in force, enters into a subsequent mar-
riage valid, . .iTii ii -i
riage contract with due legal ceremony and the parties thereto live
when
1895, 427.
1896, 499.
170 Mass. 150
171 Mass. 560
together thereafter as husband and wife, and such subsequent mar-
riage contract was entered into by one of the parties in good faith,
in the full belief that the former husband or wife was dead, that the
former marriage had been annulled by a divorce, or without knowl-
edge of such former marriage, they shall, after the impediment to
their marriage has been removed by the death or divorce of the other
party to the former marriage, if they continue to live together as
husband and wife in good faith on the part of one of them, be held
to have been legally married from and after the removal of such
impediment, and the issue of such subsequent marriage shall be con-
sidered as the legitimate issue of both parents.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Minora not to
be married
without con-
sent of parents,
etc.
1692-3, 25, § 1.
1695-6, 2, § 4.
1786, 3, § 3.
1834, 177, § 2.
R. S. 75, § 15.
G. S. 106, § 13.
Marriages
■void without
decree, when.
1695-6, 2, § 1.
1785, 69, § 2.
R. S. 76, § 1.
G. S. 107, § 1.
P. S. 115, § 7.
Section 7. A magistrate or minister shall not solemnize a mar- 1
riage if he has reasonable cause to believe that the male is under the 2
age of twenty-one years or the female is under the age of eighteen 3
years, except with the consent of the parent or guardian having the 4
custody of the minor, if there is any such parent or guardian in this 5
commonwealth competent to act. p. s. 145, § 6. 127 Mass. 468. 6
Section 8. A marriage solemnized within this commonwealth
which is prohibited by reason of consanguinity or affinity between
the parties, or of either of them having a former wife or husband
living, shall be void without a decree of divorce or other legal
process.
1
2
3
4
5
mineoraevoid Section 9. A marriage solemnized when either party is under 1
tionretepara' *ne aoe °f consent shall be void without a decree of divorce or other 2
r. s' 76,j 2. legal process if the parties separate during such nonage and do not 3
G. S. 107, § 3
P. S. 145, § 8.
afterward cohabit.
1 Gray, 119.
— foreign,
void, when.
R. S. 75, § 6.
G. S. 106, § 6.
P. S. 145, § 10.
157 Mass. 73.
170 Mass. 150.
171 Mass. 560.
Section 10. A marriage shall be void in this commonwealth if 1
the parties, both being resident here and intending to return and 2
reside here, in order to evade any of the provisions of the first five 3
sections of this chapter go into another state or country and there 4
have their marriage solemnized, and return and reside here. 5
Determination
of validity of
marriage.
R. S. 76, §§ 3, 4.
1846, 197.
1855, 27.
G. S. 107, §§ 4, 5.
P. S. 145, § 11.
1886, 36.
114 Mass. 563,
566.
149 Mass. 223.
156 Mass. 578.
161 Mass. 115.
Section 11. If the validity of a marriage is doubted, either 1
party may file a libel for annulling such marriage, or if it is denied 2
or doubted by either party, the other party may file a libel for 3
affirming the marriage. Such libel shall be filed in the same man- 4
ner as a libel for divorce, and all the provisions of chapter one 5
hundred and fifty-two relative to libels for divorce shall, so far as 6
appropriate, apply to libels under the provisions of this section. 7
Upon proof of the validity or nullity of the marriage, it shall be 8
Chap. 151.] marriage. 1347
9 affirmed or declared void by a decree of the court, and such decree m Mass. 404.
175 Mass 157
10 of nullity may be made although the marriage was solemnized out of 383.
11 the commonwealth, if at that time and also when the libel was filed
12 the libellant had his domicil in the commonwealth or has resided in
13 this commonwealth for five years last preceding the filing of said
14 libel, unless the court finds that he has removed into this common-
15 wealth for the purpose of obtaining said decree.
LEGITIMACY AND CARE OF ISSUE OF VOID MARRIAGES.
1 Section 12. The issue of a marriage which is declared void by issue of void
marriages
2 reason of consanguinity or affinity between the parties shall be illegitimate.
3 illegitimate." k. s. 76, § 21. g. s. 107, § 28. p. s. 145, § 12.
1 Section 13. The issue of a marriage which is declared void by —of marriage
2 reason of the nonage, insanity or idiocy of either party shall be the of nonage,
3 legitimate issue of the parent who was capable of contracting the R8|n76s'§e22.'
4 marriage. p. s. 145, §13. g. s. 107, §29.
1 Section 14. If a marriage is declared void by reason of a prior —of marriage
void fov reason.
2 marriage of either party, and it appears that the second marriage of prior
3 was contracted in good faith and with the full belief of the parties E.a™f§ 23.
4 that the former husband or wife was dead, that fact shall be stated p." |; i«; 1 14."
5 in the decree, and the issue of the second marriage, born or begotten ^Mass! 57!
6 before the commencement of the suit, shall be the legitimate issue
7 of the parent capable of contracting the marriage.
1 Section 15. Upon or after a decree of nullity, the court shall tenanceof™"11"
2 have similar power to make orders relative to the care, custody children of
■■• , -1 void marriage.
3 and maintenance of the minor children of the parties as upon a de- 1820, 56, § 1.
. t. j. r r R. S. 76, §26.
4 ere e 01 divorce. g. s. 107, §33. p. s. 145, §15.
NOTICE OF INTENTION OF MARRIAGE.
1 Section 16. Persons who intend to be joined in marriage in this Notice of inten
2 commonwealth shall before their marriage cause notice of their in- riage°tonber
3 tention to be entered in the office of the clerk or registrar of the city cn i,!eioi, § 2.
4 or town in which they respectively dwell, or, if they do not dwell il^J'ii54'
5 within the commonwealth, in the office of the clerk or registrar of V^\S\»
6 the city or town in which they propose to have the marriage solem- R. s. 75,' § 7.'
_ . j J J r l to 1850 121 § L
7 nrzed. g. s. 106, §7. 1867,58, §1. p. s. 145, §16.
1 Section 17. The clerk or registrar may require notice of inten- —form of.
2 tion of marriage to be given to him in writing, on blanks to be ' 's '
3 furnished by him, by one of the parties to such intended marriage,
4 or by his or her parent or legal guardian, and may require the
5 party who gives such notice to make oath before him to the truth
6 of all the statements therein, whereof he or she could have knowl-
7 edge. No fee shall be charged for administering such oath.
1 Section 18. The clerk or registrar shall not be required to— where and
2 receive notices of intention of marriage on the Lord's day nor on receivable.
3 legal holidays nor at any place except his office. 894, 409, §
1348
MARRIAGE.
[Chap. 151.
tentton°offimar- Section 19. The clerk or registrar shall not, except as provided
riagenotre- jn the following section, receive a notice of the intention of mar-
ceivablefrom » 1 ' . . „ _
certain minors, nage oi anv male under the age of eighteen years, nor of any female
1894 401 § 1 •
under the age of sixteen years.
1
2
3
4
Marriage of
minors, how
authorized.
1894, 401, § 2.
1899, 197.
Section 20. The judge of probate for the county in which a 1
minor under the age specified in the preceding section resides may, 2
after a hearing, make an order allowing the marriage of such minor, 3
if the father of such minor or, if he is not living, the mother or, if 4
neither parent is alive and resident in this commonwealth, a legal 5
guardian duly appointed has consented to such order. Said judge 6
of probate may also after a hearing make such order in the case 7
of a person whose age is alleged to exceed that specified in the pre- 8
ceding section, but who is unable to produce an official record of 9
birth, whereby the reasonable doubt of the clerk or registrar, as 10
exercised under the provisions of section twenty-eight, may be re- 11
moved. Upon the receipt of a certified copy of such order by 12
the clerk or registrar of the city or town in which such minor 13
resides, he shall receive the notice required by law and issue a 14
certificate as in other cases. 15
Notice of in-
tention not to
he given with-
out consent of
parties.
1894, 409, § 6.
Cancellation of
notice of in-
tention.
1894, 409, § 7.
Section 21. Whoever, without the consent of both parties to 1
an intended marriage, gives the notice of their intention of marriage 2
which is required by law shall be liable in damages to either of such 3
parties whose name was so used without such consent. The superior 4
court may, upon petition of either party who is alleged to intend 5
marriage in a notice of intention of marriage given without the con- 6
sent of both parties, and which is not followed by their inter- 7
marriage, after notice and a hearing, order that such notice of 8
intention of marriage be cancelled in the records of the city or town 9
in which it was recorded. 10
Notice of in-
tention of
marriage of
adopted per-
sons.
1897, 424, § 4.
Section 22. A party to an intended marriage who has been 1
legally adopted shall, upon the notice of intention of such marriage, 2
give the names of his or her parents by adoption ; and the names of 3
his or her parents may also be added. The consent of a parent 4
by adoption to the marriage of a minor shall be sufficient if the 5
consent of a parent of a minor is required by law as a preliminary 6
to marriage. If the natural parents of a minor have been divorced 7
and the consent of one of them is required by law, preliminary to 8
the marriage of such minor, the consent of the parent who has the 9
custody of such minor shall be sufficient. 10
Certificate of
intention of
marriage.
1727-8, 11.
1786, 3, § 3.
1834, 177, § 2.
R. S. 75, § 9.
1850, 121, § 2.
G. S. 106, § 8.
1867, 58, § 1.
P. S. 145, § 17.
Section 23. The clerk or registrar shall deliver to the parties 1
a certificate signed by him, specifying the time when notice of the 2
intention of marriage was entered with him and all facts relative 3
to the marriage which are required by law to be ascertained and 4
recorded, except those relative to the person by whom the marriage 5
is to be solemnized. Such certificate shall be delivered to the min- 6
ister or magistrate before whom the marriage is to be contracted, 7
before he proceeds to solemnize the same. 8
Alteration of
certificate of
intention pro-
hibited.
1897, 424, § 1.
Section 24. No alteration or erasure shall be made by any 1
person on such certificate, until it has been returned to the posses- 2
7'W
Chap. 151.] marriage. 1349
3 sion of such clerk or registrar, and then only in such form and to
4 such extent as said clerk or registrar may prescribe. Any such cer-
5 tificate may be recorded after correction in accordance herewith.
1 Section 25. If the clerk or registrar issues such certificate to a Penalty for
2 male under the age of twenty-one years, or to a female under the cate'Sfcertein
3 age of eighteen years, when he has reasonable cause to believe the ^"j^ § i.
4 person to be under such age, except upon the application or con- p" f " i2|' I is
5 sent in writing of the parent, master or guardian of such person,
6 he shall forfeit not more than one hundred dollars ; but if there is
7 no parent, master or guardian in this commonwealth competent to
8 act, a certificate may be issued without such application or consent.
1 Section 26. If it is necessary to give notice in two cities or Duplicate
2 towns of the intention of marriage of a minor, the clerk or registrar tic^of inten-
3 who first takes the consent of the parent or guardian shall take it in ^.en f mmor9•
4 duplicate, retaining one copy and delivering the other duly attested 1894> 409>§4-
5 by him to the person who obtains the certificate, to be given to the
6 clerk or registrar issuing the second certificate ; and no fee shall be
7 charged for such consent or copy.
1 Section 27. The clerk or registrar may require of an applicant Affidavit of
2 for such certificate an affidavit setting forth the age of the parties. 1853,335, §2.
3 Such affidavit shall be sworn to before a justice of the peace, and p.' I; lit', f 19.'
4 shall be sufficient proof of age to authorize the issuing of the
5 certificate.
1 Section 28. The clerk or registrar may refuse to issue a cer- Refusal of cer-
2 tificate if he has reasonable cause to believe that any of the state- 1894, 409,^§ 2.
3 ments contained in the notice of intention of marriage are incorrect ;
4 but he may, in his discretion, accept depositions under oath, made
5 before him, which shall be sufficient proof of the facts therein stated
6 to authorize the issuing of a certificate. He may also dispense with
7 the statement of any facts required by law to be given in a notice of
8 intention of marriage, if they do not relate to or affect the identifi-
9 cation or age of the parties, if he is satisfied that the same cannot
10 with reasonable effort be obtained.
1 Section 29. K a marriage is solemnized in another state be- citizens mar.
2 tween parties living in this commonwealth, who return to dwell commonwealth
3 here, they shall, within seven days after their return, file with the cat^nere.^"
4 clerk or registrar of the city or town in which either of them lived ^5| ^ |312
5 at the time of their marriage a certificate or declaration of their mar- p- s- u^l § 21.
6 riage, including the facts relative to marriages which are required
7 by law, and for neglect thereof shall forfeit ten dollars.
SOLEMNIZATION OF MARRIAGE.
1 Section 30. A marriage may be solemnized in any place within solemnization
2 this commonwealth by a minister of the gospel, ordained according c. "floats.
3 to the usage of his denomination, who resides in this commonwealth illi^l,' lf§ 4.1"
4 and continues to perform the functions of his office ; by a rabbi of netl^s6, § L
5 the Israelitish faith, duly licensed by a congregation of said faith 1772-3, 31, §§ 1,
1350
MAERIAGE.
[Chap. 151.
1786, 3, §§ 1, 2, 8.
1817, 141.
1820, 55.
1834, 177, §§ 1, 6.
R. S. 75, §§ 16,
22.
1850, 121, § 5.
G. S. 106, §§ 14,
15.
1867, 58, § 2.
P. S. 145, §§ 22,
23
1893, 461, § 1.
1894, 409, § 5.
1896, 306, § 4.
1899, 387, § 1.
1 Pick. 234.
127 Mftss. 459.
[1 Op. A. G.
445.]
established in this commonwealth, who has filed with the clerk or 6
registrar of the city or town in which he resides a certificate of the 7
establishment of the synagogue, the date of his appointment thereto 8
and of the term of his engagement ; by a justice of the peace if he 9
is also clerk or assistant clerk of a city or town, or a registrar or assist- 10
ant registrar, in the city or town in which he holds such oflice, or if 11
he is also clerk or assistant clerk of a court, in the city or town in 12
■which the court is authorized to be held, or if he has been desig- IS
nated as provided in the following section and has received a cer- 14
tificate of designation and has qualified thereunder, in the city or 15
town in which he resides ; and it may be solemnized among Friends 16
or Quakers according to the usage of their societies ; but no person 17
shall solemnize a marriage in this commonwealth unless he is able 18
to read and write the English language. 19
Sttifesaof°thef Section 31. The governor may in his discretion designate a
peace to soiem- justice of the peace in each city and town and such further number,
1899, 387, §§ 2, 3. not exceeding one for every five thousand inhabitants of a city or
town, as he considers expedient, to solemnize marriages, and may
for cause at any time revoke such designation. The secretary of
the commonwealth shall, upon payment of five dollars to him by a
justice of the peace so designated, issue to him a certificate of such
designation.
Persons solem-
nizing mar-
riages to keep
records and
make returns.
C. L. 130, $ 2.
1692-3, 25, § 3.
1695-6, 2, §§ 4, 6.
1716-17, 16, § 3.
1786, 3, §§ 6, 8.
1795, 7.
1817, 61.
1834, 177, §§ 5, 6.
R. S. 75, §§■ 17,
18, 23.
1844, 159, § 3.
G. S. 106, §§ 16,
1879, 116.
1881, 11, § 1.
P. S. 145, § 24.
1887, 202, § 3.
1892, 300.
1897, 424, § 5.
Section 32. Every justice of the peace, minister, rabbi and
clerk or keeper of the records of a meeting wherein marriages among
Friends or Quakers are solemnized shall make and keep a record of
each marriage solemnized by him, or in such meeting, and of all facts
relative to the marriage which are required to be recorded by the
provisions of section one of chapter twenty-nine. He shall also,
between the first and tenth days of the month following each mar-
riage solemnized by him, return each certificate issued under the
provisions of section twenty-three to the clerk or registrar who
issued the same ; and if the marriage was solemnized in a city
or town other than the place or places in which the parties to the
marriage resided, return a copy of the certificate, or of either certifi-
cate if two were issued, to the clerk or registrar of the city or town
in which the marriage was solemnized. Each certificate and copy
so returned shall contain a statement giving the place and date of
marriage, attested by the signature of the person who solemnized
the same or of said clerk or keeper of the records of a Friends or
Quaker meeting. The person who solemnized the marriage shall
add the title of the oflice by virtue of which the marriage was solem-
nized, as "justice of the peace ", ' ' minister of the gospel ", ' ' clergy-
man", "priest" or "rabbi", and his residence. All certificates or
copies so returned shall be recorded by the clerk or registrar who
receives them. Whoever neglects to make the record and returns
required by the provisions of this section shall for each neglect
forfeit not less than twenty nor more than one hundred dollars.
1
2
3
4
5
6
7
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
im^rtec^cer- Section 33. If a certificate of marriage is found, upon its re- 1
tincatesof turn to the clerk or registrar, to have been incorrectly filled out 2
marriage. o 7 «/
i897,42i, §2. by the person who solemnized a marriage under it, the clerk or 3
registrar shall have it corrected and shall enforce the penalties, if 4
Chap. 151.] marriage. 1351
5 any, provided by law relative thereto. Such imperfect certificates
6 shall be recorded and indexed by the clerk or registrar.
1 Section 34. A marriage which is solemnized by a person who Marriages
2 professes to be a justice of the peace, a minister of the gospel or a irregularly811
3 rabbi or which is solemnized among Friends or Quakers according f^f™-^-.
4 to their usages shall not be void, nor shall the validity thereof be g'1'io6§§21o
5 in any way affected by want of authority in such person or society, p8!'1^!"^
6 or by an omission or by informality in the manner of entering the i893,'46i,'§2. "
7 intention of marriage, if the marriage is in other respects lawful and 127 Mass.' 46s!
8 is consummated with a full belief of either of the persons so married 55 ass' 534-
9 that they have been lawfully married.
1 Section 35. Marriages which are solemnized in a foreign coun- Marriage by
2 try by a consul or diplomatic agent of the United States shall be g^iom^.
3 valid in this commonwealth. p. s. 145, § 2s. 5 Alien, 257.
1 Section 36. A city by ordinance and a town by vote may Fees by cities
2 authorize its clerk or registrar to pay on demand, in his office, persrasnst0
3 twenty-five cents to any person who has legally solemnized a mar- marSagesng
4 riage in this commonwealth, after the receipt by such clerk or 1897« 424« § 3-
5 registrar of the certificate in legal form of the solemnization of such
6 marriage. A city or town which passes such ordinance or vote
7 shall annually appropriate the money necessary therefor, and the
8 clerk or registrar thereof shall file quarterly with the treasurer or
9 other proper financial officer of said city or town proper vouchers
10 for all payments so made by him.
EVIDENCE OF MARRIAGE.
1 Section 37. The record of a marriage made and kept as pro- Record.
2 vided by law by the person by whom the marriage was solemnized, g! saofe, § 21.
3 or by the clerk or registrar of a city or town, or a copy of such ™iiira,'i6i9'
4 record duly certified, shall be prima facie evidence of such marriage. ill Mass' Ps'
1 Section 38. A copy of the record of a marriage solemnized by certificate,
2 a consul or diplomatic agent of the United States or a certificate Itci' ° cons '
3 from such consul or agent shall be prima facie evidence of such p; |.' 145,' f 30.'
4 marriage.
1 Section 39. Marriage may be proved by evidence of an admis- Admissions
2 sion thereof by an adverse party, by evidence of general repute or repufe,netc.
3 of cohabitation of the parties as married persons, or of any other iffjj lo!
4 fact from which the fact may be inferred, g. s. 106, § 22. p. s. 145, § 31.
3 Pick. 293. 5 Allen, 257. 99 Mass. 444. 120 Mass. 387.
14 Gray, 411. 10 Allen, 196. 110 Mass. 314. 163 Mass. 453.
PENALTIES.
1 Section 40. Whoever, not being duly authorized by the stat- Penalty for
c. /? i • i 1 11 • • • • solemnizing
I utes or this commonwealth, undertakes to join persons in marriage marriage with.
3 in this commonwealth shall be punished by a fine of not more than 1786^3, §5"
4 five hundred dollars or by imprisonment for not more than one year, Rfs'.75!'§§20.
5 or by both such fine and imprisonment.
G. S. 106, § 19. P. S. 145, § 26. 1896, 306, § 2.
1352
DIVORCE.
[Chap. 152.
Penalty
for joining
persons in
marriage with-
out certificate.
1695-6, 2, § 4.
1772-3, 31, § 3.
1786, 3, § 5.
1834, 177, §§ 4, 9.
Section 41. Whoever, being duly authorized to solemnize 1
marriages in this commonwealth, joins in marriage persons who have 2
not complied with the statutes relative to procuring certificates of 3
notice of intention of marriage shall be punished by a fine of not 4
more than five hundred dollars. r. s.75,§i9. 5
G. S. 106, §18. 1867, 58, §3. P. S. 145, § 25. 1896, 306, § 1.
— for illegal
alteration of
certificate of
intention.
1897, 424, § 1.
Section 42. Whoever makes an illegal alteration or erasure on 1
a certificate of intention of marriage shall be punished by a fine of 2
not more than one hundred dollars. 3
olcertlin'pro0 Section 43. Whoever violates any of the provisions of sections 1
chapter of tWs seven» seventeen, twenty-one or twenty-six shall, upon conviction 2
1894,409, §8. thereof within one year after such violation, be punished as pro- 3
vided in section forty. 4
— for false
statement.
1857, 34.
G. S. 106, § 11.
P. S. 145, § 20.
Section 44. Whoever, when applying for the certificate de- 1
scribed in section twenty-three, wilfully makes a false statement rel- 2
ative to the age, residence, parent, master or guardian of either of 3
the parties intending marriage shall forfeit not more than two hun- 4
dred dollars. 5
CHAPTEE 152.
OF DIVORCE.
Sections 1-5. — Causes for Divorce.
Sections 6-19. — Libels for Divorce.
Section 20. — Resumption of Former Name by Wife.
Section 21. — Right to Marry Again.
Section 22. — Effect of Divorce on Legitimacy of Children.
Sections 23, 24. — Effect of Divorce on Rights to Property.
Sections 25-28. — Care and Support of Children.
Sections 29-34. — General Powers of Court.
Section 35. — Foreign Divorces.
Sections 36-41. — Criminal Provisions.
Sections 42,43. — Statistics of Divorce.
Causes for
divorce.
17S5, 69, § 3.
1810, 119.
R. S. 76, §§ 5, 6.
1S38, 126, § 1.
1857, 228, § 2.
G. S. 107, §§ 6,
7,9.
1870, 404, § 2.
1S73, 371, §§ 2, 6.
P. S. 146, § 1.
1889, 447.
1 Mass. 240,
346.
4 Mass. 586.
7 Mass. 474.
CAUSES FOR DIVORCE.
Section 1. A divorce from the bond of matrimony may be 1
decreed for adultery, impotency, utter desertion continued for three 2
consecutive years next prior to the filing of the libel, gross and 3
confirmed habits of intoxication caused by the voluntary and ex- 4
cessive use of intoxicating liquor, opium or other drugs, cruel and 5
abusive treatment or, on the libel of the wife, if the husband, 6
being of sufficient ability, grossly or wantonly and cruelly refuses 7
or neglects to provide suitable maintenance for her. v' 8
7 Gray, 279.
99 Mass. 493.
112 Mass. 298.
117 Mass. 202.
126 Mass. 205.
140 Mass. 528.
142 Mass. 361.
143 Mass. 577.
150 Mass. HI.
154 Mass. 515.
157 Mass. 506.
159 Mass. 281.
160 Mass. 216.
168 Mass. 50, 204, 456.
171 Mass. 146.
175 Mass. 7.
S^f' Section 2. A divorce may also be decreed if either party has 1
1850, iod, § i. been sentenced to confinement at hard labor for life or for five years 2
Chap. 152.] divorce. 1353
3 or more in the state prison or in a jail or house of correction ; and, p.'f.'i^'f !.'
4 after a divorce for such cause, no pardon granted to the party so i|i Mass. 394.
5 sentenced shall restore such party to his or her conjugal rights. 169 Mass! 592!
1 Section 3. A divorce may be decreed for any of the causes Divorce after
2 allowed by the provisions of the two preceding sections although abp8resCumption8
3 the libellee has been continuously absent for such time and under il^ffw.'
4 such circumstances as would raise a presumption of death.
113 Mass. 314. 147 Mass. 294.
1 Section 4. A divorce shall not, except as provided in the fol- raryey8have
2 lowing section, be decreed if the parties have never lived together fived together
o 7 -■- o in common-
3 as husband and wife in this commonwealth : nor for a cause which oc- wealth.
4 curred in- another state or country, unless before such cause occurred, g! s'. ioV, § 12. '
T* Q 1 Ad R A
5 the parties had lived together as husband and wife in this common- gsVass. iss.'
6 wealth, and one of them lived in this commonwealth at the time 115 Mass! tit
7 when the cause occurred. 135 Mass. 83. 143 Mass. 274.
1 Section 5. If the libellant has lived in the commonwealth for Exception.
2 five years last preceding the filing of the libel, or if the parties g4!'. 107, §11.
3 were inhabitants of this commonwealth at the time of their marriage pJs. 146', § 5.
4 and the libellant has lived in this commonwealth for three years last ^mlk^m
5 preceding such filing, a divorce may be decreed for any cause wiMass. 508.
6 allowed by law, whether it occurred in this commonwealth or else-
7 where, unless it appears that the libellant has removed into this
8 commonwealth for the purpose of obtaining a divorce.
libels for divorce.
1 Section 6 . Libels for divorce shall be filed, heard and determined 76|^e °5f ^el-
2 in the superior court held for the county in which one of the parties 1785, 69, §' 7.
3t lives, except that, if the libellant has left the county in which the r. s. 76, §§ 7, 8.
4 parties lived together and the libellee still lives therein, the libel g. s'. 107, §§ 13,
5 shall be heard and determined in the court held for that county. p.'s. 146, §6.
1887, 332, § 1. HI Mass. 158. 150 Mass. 280.
1 Section 7. The libel shall be signed by the libellant, if of sound ^gneedtobe
2 mind and of legal age to consent to marriage ; otherwise, it may be S-i-T^y?-
3 signed by the guardian of the libellant or by a person admitted by p- s." 146,' § i. '
4 the court to prosecute the libel as his or her next friend. lMetfm
8 Allen, 311. 139 Mass. 377.
1 Section 8. The court or clerk may order the libellee to be Notice to
2 summoned to appear and answer at the court having jurisdiction of itsI, 69,'§8.
3 the cause, by the publication of the libel or of the substance thereof, ]*• s-76> §§ 15_
4 with the order thereon, in one or more newspapers which shall be g. s. 107, §§ 19,
5 designated in the order, or by delivering to the libellee an attested J8^, 90.
6 copy of the libel and a summons, or in such other manner as it or p. s. 146, §§ 9,
10.
370.
7 he may require. If such order is made by the clerk, the court may 1890,
8 order an additional notice. If the libellee does not appear and the llVass. 191.
9 court considers the notice defective or insufficient, it may order * ! :
10 further notice.
1354
DIVORCE.
[Chap. 152.
Who may
contest.
1890, 370.
1898, 487.
Section 9. A person with whom the libellee is alleged in a libel 1
for divorce for adultery to have committed adultery may appear and 2
contest the libel. 3
Attachment
of husband's
property.
1855, 137, § 1.
G. S. 107, § 50.
1866, 148, § 2.
P. S. 146, § 11.
107 Mass. 428.
Section 10. Upon a libel by a wife for a divorce for a cause 1
which accrued after marriage, the real and personal property of the 2
husband may be attached to secure a suitable support and main- 3
tenance to her and to such children as may be committed to her care 4
and CUStody. 150 Mass. 92. 163 Mass. 530. 5
— how made.
1855, 137, §§ 2, 3,
5.
G. S. 107, § 51.
1866, 148, § 3.
P. S. 146, § 12.
Section 11. The attachment may be made upon the summons 1
issued upon the libel, in the same manner as attachments are made 2
upon writs in actions at law, for an amount which shall be expressed 3
in the summons or order of notice. The attachment may be made 4
by trustee process, in which case there shall be inserted in the sum- 5
mons or order of notice a direction to attach the goods, effects and 6
credits of the libellee in the hands of the alleged trustee, and service 7
shall be made upon the trustee by copy. If attachment is made 8
by the trustee process, the libel shall be filed as provided in section 9
six notwithstanding the provisions of section two of chapter one 10
hundred and eighty-nine. The court may in such cases make all 11
necessary orders to secure to the trustee his costs. 12
i8a5mei37b§e4Ct' Section 12. The laws relative to attachments of real or personal 1
<?• s. 107, § 52. property shall apply to attachments herein provided for, so far as such 2
laws are not inconsistent with the provisions of the two preceding 3
sections. 4
P. S. 146, § 13.
in^aMiibenee. Section 13. If during the pendency of a libel the libellee be-
g 1' ioW!i comes insane, the court shall appoint a suitable guardian to appear
p. s. 146,' § 14. and answer in like manner as a guardian for an infant defendant in
13 Gray 264. . "
114 Mass. 379. an action at la w may be appointed.
1
2
3
4
Costs or ali-
mony during
pendency of
libel.
1851, 82, § 1.
1855,65; 137, §6.
G. S. 107, § 22.
P. S. 146, § 15.
Section 14. The court may require the husband to pay into 1
court for the use of the wife during the pendency of the libel an 2
amount which may enable her to maintain or defend the libel, 3
although exceeding the taxable costs ; and may require him to pay 4
to the wife alimony during the pendency of the libel. 5
6 Gray, 341.
147 Mass. 159.
161 Mass. HI.
pers^naUiber. Section 15. The court sitting in any county may, upon the 1
tyofwifedur. petition of the wife, prohibit the husband from imposing any re- 2
1820, 56, § i. ' straint upon her personal liberty during the pendency of the libel. 3
Custody of
children dur-
ing pendency.
1820, 56, § 1.
R. S. 76, § 25.
G. S. 107, § 32.
P. S. 146, § 17.
B. S. 76, § 24.
G. S. 107, ^31.
P. S. 146, § 16.
Section 16. The court may in like manner, upon the applica-
tion of either party, make such order relative to the care and cus-
tody of the minor children of the parties during the pendency of
the libel as it may consider expedient and for the benefit of the
children.
1
2
3
4
5
Sbei^and^r-0* Section 17. The court may, without entering a decree of di- 1
ders'f or tempo- yorce, cause the libel to be continued upon the docket from time to 2
won, etc. ' time, and during such continuance may make orders and decrees 3
Chap. 152.] divorce. 1355
4 relative to a temporary separation of the parties, the separate 1881,234, §3.
5 maintenance of the wife and the custody and support of minor 160 Mass. 232.'
6 children. Such orders and decrees may be changed or annulled as
7 the court may determine, and shall, while they are in force, super-
8 sede any order or decree of the probate court under the provisions
9 of section thirty-three of chapter one hundred and fifty -three, and
10 may suspend the right of said court to act under the provisions of
11 said section.
1 Section 18. Decrees of divorce shall in the first instance be Decrees of di-
2 decrees nisi, and shall become absolute after the expiration of six Interedmli.
3 months from the entry thereof, unless the court before the expira- \l%[ fol; 1 3'.
4 tion of said period, for sufficient cause, upon application of any ipf; 397; 1 2!
5 party interested, otherwise orders. p8s'i46'li9
1882,223. 1S93, 194, 280. 157 Mass. 503. 168 Mass. 228.
1 Section 19. A libel for divorce for desertion shall not be de- Libeifordeser-
2 feated by a temporary return or other act of the libellee if the court defeateVby e
3 finds that such return or other act was not made or done in good ^an.**7
4 faith, but with the intent to defeat such libel. p. s. 146, § 20. J?55,. 137, §8.
' , vir. ft. Ill/, § 8.
RESUMPTION OF FORMER NAME BY WIFE.
1 Section 20. The court upon granting a divorce to a woman Resumption of
2 may allow her to resume her maiden name or the name of a byrwffename
3 former husband. g. s. 107, §23. p. s. 146, §21. 1&49, 141.
RIGHT TO MARRY AGAIN.
1 Section 21. After a decree of divorce has become absolute, Remarriage of
2 either party may marry again as if the other were dead, except that tiev8orced par"
3 the party from whom the divorce was granted shall not marry within ^ fj9-
4 two years after the decree has become absolute. 1855,137, §9;
1864,216. 1881, 234, §4. 11.3 Mass. 458. 126 Mass. 34. G. S. 107, § 25.
1873, 371, § 4. P. S. 146, § 22. 122 Mass. 3. 152 Mass. 533.
EFFECT OF DIVORCE ON LEGITIMACY OF CHILDREN.
1 Section 22. A divorce for adultery committed by the wife shall f^f^ ^ r
2 not affect the legitimacy of the issue of the marriage, but such legit- wife not to at
#o «/ o 7 ^ o feet legitimacy
3 imacy, if questioned, shall be tried and determined according to the of issue.
a e A. i 1785> 69> § 6-
4 course of the common law. g. s. 107, §27. p. s. 146, §23. r. s. 76, §20.
EFFECT OF DIVORCE ON RIGHTS TO PROPERTY.
1 Section 23. Upon a divorce for adultery committed by the Effect of
2 wife, her title to her separate real and personal property during her adutterV1 of
3 life shall not be affected, except that the court may decree to the ^parlteprop-
4 husband so much of such property as it considers necessary for the ?j$p178 §5
5 support of the minor children of the marriage who may have been p- s- ^ § 27.
6 decreed to the husband's custody ; and if the wife afterward con-
7 tracts a lawful marriage, the interest of the divorced husband in
8 the wife's separate real and personal property, after her death, shall
9 cease, except in so much thereof as may have been decreed to him
10 as herein provided.
1356
DIVORCE.
[Chap. 152.
No dower to
wife after
divorce, ex-
cept, etc.
1785, 69, § 5.
K. S. 76, § 32;
102, § 9.
6. S. 107, §38;
135, § 29.
1870, 404, § 4.
P. S. 146, § 28;
174, § 13.
Section 24. After a divorce, a wife shall not be entitled to 1
dower in the land of her husband, unless, after a decree of divorce 2
nisi granted upon the libel of the wife, the husband dies before 3
such decree is made absolute, except that, if the divorce was for the 4
cause of adultery committed by the husband or because of his sen- 5
tence to confinement at hard labor, she shall be entitled to her 6
dower in the same manner as if he were dead. 7
13 Mass. 230. 14 Mass. 219. 2 Allen, 45. 110 Mass. 463.
CARE AND SUPPORT OF CHILDREN.
tenraencedofiam" Section 25. Upon a decree of divorce, or upon petition at any
™2o°56,h§Lien' time after such decree, the court may make such decree as it con-
i853'2736,|i6" siders expedient relative to the care, custody and maintenance
g. s. 107, §§ 33, of the minor children of the parties, and may determine with which
1873, 371, §7. of the parents the children or any of them shall remain ; and after-
ward may from time to time, upon the petition of either parent,
revise and alter such decree or make a new decree, as the cir-
cumstances of the parents and the benefit of the children may
require.
P. S. 146, § 29.
152 Mass. 16.
1
2
3
4
5
6
7
8
9
— when
divorce ob-
tained out
of common-
wealth.
1842, 83, § 1.
G. S. 107, § 34.
P. S. 146, § 30.
156 Mass. 27.
Section 26. If, after a divorce has been decreed in another 1
state or country, minor children of the marriage are inhabitants 2
of this commonwealth, the superior court, upon the petition of either 3
parent or of a next friend in behalf of the children, after notice to 4
both parents, may make like decrees relative to their care, custody, 5
education and maintenance as if the divorce had been decreed in 6
this commonwealth. 7
Children not
to be removed
from common-
wealth.
1842, 83, § 2.
G. S. 107, § 35.
P. S. 146, § 31.
Section 27. A minor child of divorced parents who is a native 1
of or has resided five years within this commonwealth and over 2
whose custody and maintenance the superior court has jurisdiction 3
shall not, if of suitable age to signify his consent, be removed 4
out of this commonwealth without such consent, or, if under that 5
age, without the consent of both parents, unless the court upon cause 6
shown otherwise orders. The court, upon application of any person 7
in behalf of such child, may require security and may issue writs 8
and processes to effect the purposes of this and the two preced- 9
ing sections. 10
Custody of
children.
1855, 137, § 7.
G. S. 107, § 37.
P. S. 146, § 32.
151 Mass. 349.
Section 28. In making an order or decree relative to the 1
custody of children pending a controversy between their parents, 2
or relative to their final possession, the rights of the parents shall, 3
in the absence of misconduct, be held to be equal, and the happi- 4
ness and welfare of the children shall determine their custody or 5
possession. 6
GENERAL POWERS OF COURT.
Proceedings
under this
chapter.
1785, 69, § 8.
1820, 56, § 1.
K. S. 76, § 38.
G. S. 107, § 53.
P. S. 146, § 33.
1887, 332, § 1.
107 Mass. 428.
109 Mass. 306.
Section 29. The superior court may, if the course of proceed- 1
ing is not specially prescribed, hear and determine all matters 2
coming within the purview of this chapter according to the course 3
of proceeding in ecclesiastical courts or in courts of equity, and may 4
issue process of attachment and of execution and all other proper 5
and necessary processes. i50Mass.57. i6iMass. m. 6
Chap. 152.] divorce. 1357
1 Section 30. Upon a divorce, or upon petition at any time after Alimony.
2 a divorce, the superior court may decree alimony to the wife, or a iso5,'57!
3 part of her estate, in the nature of alimony, to the husband. 1I28J55?'
1844,129. G.S. 107, §§43, 44, 48. 100 Mass. 365. 147 Mass. 159. Ruf '7h i3}'
1850, 100, § 3. 1873, 371, § 7. 107 Mass. 428. 150 Mass. 92. 1&J8' la>' s *"
1853, 23, § 1. P. S. 146, § 36. 108 Mass. 314. 161 Mass. 111.
1857, 228, § 3. 1887, 332, § 1. 120 Mass. 390. 168 Mass. 511.
1 Section 31. The court may enforce decrees made for allowance, —enforcement
2 for alimony or for allowance in the nature of alimony, in the same is58,e47.ee8 lor*
3 manner as it may enforce decrees in equity. p.' I.' 146,' 1 37.'
105 Mass. 385. 106 Mass. 499. 130 Mass. 163, 189. 134 Mass. 353. 166 Mass. 226.
1 Section 32. When alimony or an annual allowance is decreed ^^"V01*
2 for the wife or children, the court may require sufficient security to ^-^s^
3 be given for its payment according to the terms of the decree. p.' s.' 146,' § 38.'
1 Section 33. After a decree for alimony or an annual allow — revision of
2 ance for the wife or children, and also after a decree for the appoint- l^eV? 5.etc'
3 ment of trustees to receive and hold property in trust for the use of b.2!'.^^.
4 the wife or children as before provided, the court may, from time to (f.5s. k>7§ §*§' 47
5 time, upon the petition of either party, revise and alter its decree |8S 146'539
6 relative to the amount of such alimony or annual allowance and the 134 Mass. 353.'
7 payment thereof and also relative to the appropriation and payment 168 Mass! 511!
8 of the principal and income of the property so held in trust, and
9 may make any decree relative to said matters which it might have
10 made in the original suit.
1 Section 34. In all proceedings under the provisions of this -costs on peti-
2 chapter, the court may award costs in its discretion. 1820, 56, §2.
R. S. 76, § 37. 1853, 23, § 2. G. S. 107, § 49. P. S. 146, § 40. 161 Mass. 111.
FOREIGN DIVORCES.
1 Section 35. A divorce decreed in another state or country validity of for-
2 according to the laws thereof by a court having jurisdiction of Kfs.76™§C39,'
3 the cause and of both the parties, shall be valid and effectual in g.' s. 107, §§ 54,
4 this commonwealth; but if an inhabitant of this commonwealth ^-s 146 §41
5 goes into another state or country to obtain a divorce for a cause ^%ay'Hh
6 which occurred here while the parties resided here, or for a cause 115 Mass. 438,
7 which would not authorize a divorce by the laws of this common- 122'Mass. 3, 156.
8 wealth, a divorce so obtained shall be of no force or effect in this \H mITs. lik
9 Commonwealth. 157 Mass. 42. 167 Mass. 474. 176 Mass. 92. 154 Mass. 290.
CRIMINAL PROVISIONS.
1 Section 36. If persons who have been divorced from each other cohabitation
2 cohabit as husband and wife or live together in the same house, they beadnitery**0
3 shall be held to be guilty of adultery. g. s. 107, § 24. p. s. 146, § 42. e.8|. 76,1 19.
1 Section 37. Whoever falsely personates another or wilfully and pronation
2 fraudulently procures a person to personate another, or fraudulently etc-> in divorce
3 procures false testimony to be given, or makes a false or fraudulent 1873,371, §1.
4 return of service of process upon a libel for divorce or in any pro- ' '
5 ceeding connected therewith, shall be punished by a fine of not
1358
DIVORCE.
[Chap. 152.
Penalty for
procuring
unlawful
divorce.
1886, 342.
more than one thousand dollars or by imprisonment for not more 6
than two years. 7
Section 38. Whoever knowingly procures or obtains or assists 1
another to procure or obtain any false, counterfeit or fraudulent 2
divorce or decree of divorce, or any divorce or decree of divorce 3
from a court of another state for or in favor of a person who at the 4
time of making application therefor was a resident of this common- 5
wealth, such court not having jurisdiction to grant such decree, 6
shall be punished by a fine of not more than two hundred dollars 7
or by imprisonment for not more than six months. 8
— for adver-
tising to pro-
cure divorces.
1887, 320.
— for unlaw-
fully issuing
certificates of
divorce.
1891, 59.
Notice to dis-
trict attorney
of criminal
offences.
1881, 234, § 1.
P. S. 146, § 44.
Section 39. Whoever, not being duly admitted as an attorney- 1
at-law in this commonwealth, writes, prints or publishes, or solicits 2
another to write, print or publish, any notice, circular or advertise- 3
ment soliciting employment in the business of procuring divorces 4
or offering inducements for the purpose of procuring such employ- 5
ment shall be punished as provided in the preceding section. 6
Section 40. Whoever, except in compliance with an order of a 1
court of competent jurisdiction, gives, signs or issues any writing 2
which purports to grant a divorce to persons who are husband and 3
wife according to the laws of this commonwealth or which purports 4
to be a certificate that a divorce has been granted to such persons 5
shall be punished by a fine of not more than one thousand dollars 6
or by imprisonment in the jail for not more than three years, or by 7
both such fine and imprisonment. 8
Section 41. If a divorce is granted for a cause which con- 1
stitutes a crime, committed within this commonwealth and within 2
the time provided by law for making complaints and finding indict- 3
ments therefor, the court which grants the divorce may in its dis- 4
cretion cause notice of such facts to be given by the clerk of the 5
court to the district attorney for the county in which such crime 6
was committed, with a list of the witnesses proving such crime 7
and any other information which the court may consider proper, 8
and thereupon the district attorney shall cause complaint therefor 9
to be made before a magistrate having jurisdiction thereof, or 10
shall present the evidence thereof to the grand jury. 11
Returns of
statistics of
divorce.
1882, 194, §§ 1, 2.
STATISTICS OF DIVORCE.
Section 42. The clerks of the courts and the clerk of the supe- 1
rior court for civil business in the county of Suffolk shall annually, 2
in February, make returns for the last "preceding calendar year to 3
the secretary of the commonwealth, upon suitable blank forms which 4
shall be provided by him, of the number of libels pending at the 5
beginning of the year, the number of libels filed within the year, 6
the number of divorces granted, the number of divorces refused, the 7
number of libels contested, the number of libels uncontested, 8
the alleged cause for divorce in each case, the sex of the libellant 9
and the length of time the parties have been married, and the 10
number of cases in which notice has been given to the district 11
attorney for prosecution under the provisions of the preceding 12
Chap. 153.] eights and liabilities of husband and wife. 1359
13 section and the crime for which divorce has been granted in such
14 cases.
1 Section 43. The secretary shall annually prepare from said Slitaiioteot0*
2 returns abstracts and tabular statements of the facts relative to ™turns . 9
, _ 1002, J.94, s o.
3 divorces for each county, and embody them, with necessary analyses,
4 in his annual report to the general court relative to the registry of
5 births, marriages and deaths.
CHAPTEE 153.
OF certain rights and liabilities of husband and wife.
Sections 1-14 . — General Provisions .
Sections 15-25. — Provisions if Husband or Wife is under Disability.
Sections 26-28.- — Marriage Contracts.
Sections 29, 30. — Married Women Coming from other States, etc.
Sections 31-37. — Married Women Abandoned by their Husbands, etc.
GENERAL PROVISIONS.
1 Section 1. The real and personal property of a woman shall Married
-*- . x x r J , woman may
2 upon her marriage remain her separate property, and a married control sepa-
• • . /» ill Ti* n rat6 property.
3 woman may receive, receipt for, hold, manage and dispose of 1845, 208, §3.
4 property, real and personal, in the same manner as if she were sole. i855|304;§§i,s.
5 But no conveyance by a married woman of real property shall, ex- g?s'. n?8,§§§ i',2'
6 cept as provided in section thirty-six, extinguish or impair her hus- f^W
7 band's tenancy by the curtesy by statute or his rights to ourtesy p7|'\^ \\
8 which existed at the time this chapter takes effect in such property ^?9M204-' „0
9 unless he joins in the conveyance or otherwise releases his said 117 Mass! 62,'
10 rights. 128 Mass. 169, 269. 167 Mass. 390.
1 Section 2. A married woman may make contracts, oral and ^amtaycon"
2 written, sealed and unsealed, in the same manner as if she were ^,^,||-
3 sole, except that she shall not be authorized hereby to make con- g. s'.'ios, § 3.
4 tracts with her husband. i869|304!
P. S. 147, § 2. 99 Mass. 562. 130 Mass. 407. 145 Mass. 339. 1874, 184, § 1-
10 Gush. 550. 114 Mass. 520. 135 Mass. 87. 146 Mass. 517.
8 Gray, 542. 124 Mass. 108. 139 Mass. 202. 150 Mass. 578.
8 Allen, 581. 125 Mass. 28. 140 Mass. 63, 202, 521. 158 Mass. 388.
11 Allen, 345. 126 Mass. 297. 141 Mass. 283. 168 Mass. 471.
1 Section 3. The provisions of the two preceding sections shall j^enfhusband
2 not authorize a husband or a wife to transfer property one to the and wife
rorDicicl6D.
3 other, except that a wife may by gift from her husband acquire as 1857, 249, §'5.
^ c^ ^ ins & in
4 her separate property wearing apparel, articles of personal orna- i874,'i84,'§ 1. '
5 ment and articles necessary for her personal use, to a value of not p.'i'.ilt, §3.
6 more than two thousand dollars ; but this exception shall not make il^'nln, 107,
7 valid a gift by a husband in fraud of his creditors. 116-
114 Mass. 167. 119 Mass. 596. 128 Mass. 169. 146 Mass. 25.
116 Mass. 490. 126 Mass. 113. 134 Mass. 138. 158 Mass. 342.
1 Section 4. Work and labor performed by a married woman Labor of mar.
2 for a person other than her husband and children shall, unless there \m, 2o°9man'
3 is an express agreement on her part to the contrary, be presumed g?s'.io8,!§73,6.
4 to be performed on her separate account. p7si47§§4
14 Gray, 389. 1 Allen, 258. 131 Mass. 533. 165 Mass. 100.
1360
EIGHTS AND LIABILITIES OF HUSBAND AND WIFE. [CHAP. 153.
womirfmay be Section 5. A married woman may be an executrix, adminis-
is$7C1m X6 f°* Matrix, guardian or trustee, and may bind herself and the estate
g. s. 109, § 25. which she represents without any act or assent on the part of her
1869 409.
i874| 184," § 4. husband . p. s. 147, § 5.
1
2
3
4
Section 6. A married woman may sue and be sued in the same
— may sue and
be sued.
1I55' fof' ls52 4 manner as *f sne were sole ; but the provisions of this section shall
i857|249', §3.' ' not authorize suits between husband and wife. 1374, 184, §3.
f" ^ ins 6ft
1871," 312.' P- S. 147, § 7. 10 Allen, 512. 118 Mass. 58. 155 Mass. 136.
6 Gray, 562. 115 Mass. 115. 120 Mass. 89. 173 Mass. 214.
1
2
3
Section 7. A married woman shall not be liable for the debts
— not liable
for husband's
is55tS304 §§i,6. °f t_er husband, nor shall her property be liable to be taken on an
g.s'.io8',§§i,'7. execution against him, except as provided in section ten.
P. S. 147, § 8.
1
2
3
babied or not Section 8. A husband shall not be liable upon a cause of action 1
wife's debts, which originated against his wife prior to their marriage, nor to pay 2
P.-S-A0.8'. § 8- a judgment recovered against her, except as provided in section ten. 3
P. S. 147, § 9. 10 Allen, 238. 118 Mass. 58. 120 Mass. 89.
1871, 312.
— or on certain
contracts of
wife after
marriage.
1855, 304, § 7.
1857, 249, § 6.
G. S. 108, § 5.
P. S. 147, § 10.
Section 9. Contracts made by a married woman relative to her 1
separate property, trade, business, labor or services shall not, ex- 2
cept as provided in the following section, bind her husband nor 3
render him or his property liable therefor ; but she and her separate 4
property shall be liable on such contracts in the same manner as 5
if she were sole. (>
Separate busi-
ness certificate.
1862, 198.
1881, 64, §§ 1, 3.
P. S. 147, § 11.
1898, 416.
1 Allen, 258.
108 Mas3. 50.
109 Mass. 289.
112 Mass. 250.
114 Mass. 77.
126 Mass. 332,
411.
129 Mass. 296.
138 Mass. 83,
194.
150 Mass. 82,
275.
163 Mass. 255.
170 Mass. 142.
173 Mass. 90.
Record of
certificates.
1881, 64, § 2.
P. S. 147, § 12.
150 Mass. 75.
Section 10. If a married woman does or proposes to do business 1
on her separate account, she shall cause to be recorded in the clerk's 2
office of the city or town in which she does or proposes to do such 3
business a certificate stating her name and that of her husband, the 4
nature of the business and the place where it is or is proposed to 5
be carried on, giving, if practicable, the street and the number on 6
the street, and the name, which shall not be her husband's, under 7
which she proposes to carry on business ; and if the nature of the 8
business or the place where or the name under which it is carried 9
on is changed, a new certificate shall be recorded accordingly. If 10
she fails to cause such certificates to be recorded her husband may 1 1
cause them to be recorded ; but if such certificates are not so re- 12
corded by either husband or wife, the personal property employed 13
in such business shall be liable to be attached as the property of 14
the husband and to be taken on execution against him, and the 15
husband shall be liable upon all contracts lawfully made in the prose- 16
cution of such business in the same manner and to the same extent 17
as if such contracts had been made by himself. The provisions of 18
this section shall not, however, affect the rights of any person under 19
any certificate filed or recorded prior to the first day of August in 20
the year eighteen hundred and ninety-eight. 21
Section 11. A city or town clerk shall, upon payment of twenty- 1
five cents, record in a book kept for the purpose the certificate 2
required by the provisions of the preceding section, noting in such 3
book and on the certificate itself the time when it is received, and 4
a certificate shall be considered as recorded at the time when it is 5
Chap. 153.] eights and liabilities of husband and wife. 1361
6 left for record. The clerk shall keep an index of all certificates so
7 recorded.
1 Section 12. The probate court may, upon the petition of a Trustee for
2 married woman who has separate property, appoint a trustee to woman's sepa-
3 hold the same in trust for her, to whom she may thereupon convey i845,208*§8.
4 it upon such trusts and to such uses as she may declare. The p.' |; uf; § 13.
5 trustee may prosecute and defend all actions relative to such prop- l^I'iien, 1J7.
6 erty brought by or against her ; and the property in his hands shall 133 Mass- 175-
7 be liable to be attached or taken on execution in any such action.
1 Section 13. If real property of a married woman is taken for Disposition of
2 a railroad, a way or any other public use, or is damaged by the lay- iandao?mar-
3 ing out of a railroad, way or by any other public works, the dam- taken^'raii-
4 ages or compensation awarded therefor may be so invested and dis- l^'-^'
5 posed of as to secure to her the same rights in the amount so g- 1- ^c1^
6 awarded and the income thereof as she would have had in the real E-f^'JL14,
7 property and the income thereof if such real property had not been
8 so taken or damaged. The probate court shall have concurrent
9 jurisdiction in equity, upon the petition of such woman, to hear and
10 determine it and to enforce and secure her rights.
&*
1 Section 14. The provisions of the thirteen preceding sections Marriage
„ i it , . -i.j , • ,j_n , j. j. settlements not
2 shall not invalidate a marriage settlement or contract. affected.
G. S. 108, § 10. 1874, 184, § 6. P. S. 147, § 15. 136 Mass. 342. 1855, 304' § 9-
PROVISIONS IF HUSBAND OR WIFE IS UNDER DISABHITY.
1 Section 15. If the guardian of a married man is licensed to Release of
2 sell real property of his ward, the wife of the ward may join with of ward.7 %"
3 the guardian in the conveyance, and thereby release her right of r2!'.1-^'/]!.
4 dower and the estate or right of homestead in the granted property, p; |; H*' f H;
5 in like manner as she might have done by joining in a conveyance
6 thereof made by her husband if he had been under no legal disability.
1 Section 16. If such guardian is licensed to sell the interest of ^property
2 the ward in any real property of his wife, the wife may join with the i§2| i*?> S1.-
3 guardian in the conveyance, and thereby convey all her estate and g! s! ios, § 12.
I* S 147 $ 17
4 interest in the granted property, in like manner as she might have
5 done by a conveyance thereof made jointly with her husband, if
6 he had been under no legal disability.
1 Section 17. If the wife so releases her right of dower or an Disposition of
2 estate of homestead, or so conveys her own estate, the proceeds of such^ails0/
3 the sale may be so invested and disposed of as to secure to her, and r2!.^'/^'.
4 to the minor children of the owner if it is an estate of homestead, p" f " 147' | if'
5 the same rights in the principal and the income thereof as she or
6 they would have had therein if it had not been sold. An agree-
7 ment made between her and the guardian for securing and dispos-
8 ing of the proceeds or of any part thereof for the purpose aforesaid,
9 if approved by the probate court for the county in which the
10 guardian was appointed or by the supreme court of probate upon
11 appeal or, in default of an agreement between her and the guardian
12 approved as aforesaid, an order therefor made by the probate court
13 shall be valid and binding on all persons interested in the granted
1362 EIGHTS AND LIABILITIES OF HUSBAND AND WIFE. [CHAP. 153.
property or in said proceeds, and may be enforced by the court or 14
by an action at law. 15
or^usba^dof6 Section 18. The wife of a man who is under guardianship may 1
ward with i0in with his guardian, and the guardian of a woman may join with 2
making parti- her husband, in making partition of her real property which is held 3
1830,' 54. in joint tenancy or in common, and they may make any release or 4
g. I*. ios.Vis. other conveyance necessary or proper for that purpose, in like 5
p. s. it:, § 19. manner as the parties might do if neither of them were under legal 6
disability. 7
dower or* Section 19. The husband or wife of an insane person who de- 1
curtesy of sires to convey his or her real property absolutely or by mortgage 2
insane person. _ Y . ., -,1 J ., . J ,J i
1856, 169, § 3. may me a petition in the probate court describing such real prop- 3
1S57 99S 5 10
g! s'. 108, § 2d. erty and praying that the dower of the wife or an estate of home- 4
1886," 245,' § 1,°' stead or a tenancy by the curtesy at common law or by statute of 5
1899; 2slj § l. the husband therein may be released and stating the facts and rea- 6
sons why the prayer of the petition should be granted. The court 7
may, after notice and a hearing, by a decree authorize the guardian 8
of the insane person to make the release by joining in any deed or 9
deeds, mortgage or mortgages of the whole or a part of said real 10
property which is or are made within five years after said decree by 11
the husband or wife of the insane person or by a trustee for such 12
husband or wife. 13
foerShuVsband of Section 20. If the guardian of an insane husband is authorized 1
portion of under the provisions of the preceding section to release such ten- 2
1886, 245, §2. ancy by the curtesy and the probate court finds that a portion of 3
1899 284 S 2
mo, 450" § 5. the proceeds of such real property, or of an amount loaned on 4
mortgage thereof, should be reserved for the use of such ward, it 5
may order that a certain portion, not exceeding one-third of the 6
net amount if it is in respect of the tenancy by the curtesy by 7
statute, of the proceeds or amount actually realized from such sale 8
or mortgage, exclusive of any encumbrance then existing on the 9
property, shall be set aside and paid over to such guardian who 10
shall invest and hold it for the benefit of the husband during his life 11
if he survives his wife. The income of such portion shall be re- 12
ceived and enjoyed by the wife during the life of her husband, or 13
until otherwise ordered by the court for cause. If she survives 14
him the principal shall upon his decease be paid over to her, but if 15
she does not survive him, to her heirs, executors or administrators. 16
— fw wife of Section 21. If the guardian of an insane wife is authorized 1
proceeds upon under the provisions of section nineteen to release the dower of his 2
dower. ward, and the probate court finds that a portion of the proceeds of 3
-j ~~r? ic(\ St A
g. s'. io8, § 2*i. such real property, or of an amount loaned on mortgage thereof, 4
p. s. 147, §21. gho^ci i^e reserved for the use of such ward, it may order that a 5
certain portion, not exceeding one-third of the net amount of the 6
proceeds or amount actually realized from such sale or mortgage, 7
exclusive of any encumbrance then existing on the property, shall 8
be set aside and paid over to such guardian, who shall invest and 9
hold it for the benefit of the wife during her life if she survives her 10
husband. The income of such portion shall be received and enjoyed 11
by the husband during the life of his wife, or until otherwise or- 12
Chap. 153.] eights and liabilities of husband and wife. 1363
13 dered by the court for cause. If he survives her the principal shall
14 upon her decease be paid over to him, but if he does not survive
15 her, to his heirs, executors or administrators.
1 Section 22. If the guardian of an insane wife is authorized ^/^l"™
2 under the provisions of section nineteen to release an estate of release of
r«i iiii z?iji ■ f i homestead.
3 homestead, and the probate court rinds that a portion ot the pro- 1857, 298, §n.
4 ceeds of the real property sold, or of an amount loaned on mort- p.' s.' 147,' § 22.'
5 gage thereof, should be reserved for the use of the ward, it may
6 order that a certain portion, not exceeding eight hundred dollars,
7 shall be set aside and paid over to such guardian to be invested in a
8 homestead, and held by him for the benefit of his ward, if she sur-
9 vives her husband ; the rent or use thereof to be received and
10 enjoyed by the husband during the life of his wife, or until other-
11 wise ordered by the court for cause ; and the homestead to be his,
12 and to be conveyed to him by said guardian, if he survives her.
1 Section 23. If the husband or wife of an insane person conveys conveyance if
2 real property in trust without a power of revocation and makes a Reuof 'curtesy
3 provision therein for the insane husband or wife, respectively, which i856,°i69,r§ 5.
4 the probate court, upon petition, after notice and a hearing, finds ^" I" 147' I II"
5 is sufficient in lieu of curtesy or dower, the trustee may convey
6 such real property free from all right of curtesy or dower.
1 Section 24. The court, under the provisions of the preceding same subject.
2 section, may find that the provision for the husband or wife is suffi- g. s. ios, § 24.
3 cient in lieu of curtesy or dower either in the whole or in particular p* s< 147, § u'
4 portions of the real property of the husband or wife and thereupon
5 the guardian of such insane husband or wife may be authorized to
6 release the curtesy or dower in the whole or in particular portions
7 thereof.
1 Section 25. Proceedings under the provisions of the six pre- venue of
2 ceding sections shall, if the husband or wife of such insane person i^Tg^Tt*-'
3 is an inhabitant of this commonwealth, be in the county in which he p.' |; 147; 1 1|;
4 or she resides ; otherwise, in a county in which any of his or her real 1886> 245» §3-
5 property is situated ; and a certified copy of all final orders or de-
6 crees in such proceedings shall be recorded in the registry of deeds
7 in every county or district in which such real property is situated.
MARRIAGE CONTRACTS.
1 Section 26. At any time before a marriage, the parties may en- Ante-nuptiai
2 ter into a contract in writing, agreeing and providing that, after the tractsage con"
3 marriage is solemnized, the whole or any designated part of the real g.4s. ioI, §27.
4 or personal property or any right of action, of which either party jfGray4754226'
5 may be seised or possessed at the time of the marriage, shall remain i?f jja^8' 132
6 or become the property of the husband or wife, according to the
7 terms of the contract. Such contract may limit to the husband or
8 wife an estate in fee or for life in the whole or in any part of the
9 property, and may designate any other lawful limitations. All such
10 limitations shall take effect at the time of the marriage in like man-
11 ner as if they had been contained in a deed conveying the property
12 limited.
1364
RIGHTS AND LIABILITIES OF HUSBAND AND WIFE. [CHAP. 153.
Record of
contract and
description of
property.
1845. 208, § 2.
G. S. 108, § 28.
1867, 248.
P. S. 147, § 27.
4 Allen, 412.
100 Mass. 337.
169 Mass. 189.
175 Mass. 349.
Section 27. There shall be annexed to such contract a schedule 1
of the property intended to be affected thereby, which shall contain 2
a sufficiently clear description of the property to enable a creditor of 3
the husband or wife to distinguish it from all other property ; and 4
such contract and schedule shall, either before the marriage or within 5
ninety days thereafter, be recorded in the registry of deeds for the 6
county or district in which the husband resides at the time of the rec- 7
ord, or, if he is not a resident of this commonwealth, then in the 8
registry of deeds for the county or district in which the wife resides 9
at the time of the record, if it is made before the marriage, or in 10
which she last resided, if made after the marriage. If the contract 11
is not so recorded, it shall be void except as between the parties 12
thereto and their heirs and personal representatives. It shall also 13
be recorded in the registry of deeds for every county or district in 14
which there is land to which it relates. 15
Marriage con-
tract of female
minor ward.
1869, 292.
P. S. 147, § 28.
Section 28.. A female minor who has attained the age of 1
eighteen years may join with her guardian in making such mar- 2
riage contract, and for such purpose the guardian and ward may 3
convey her real and personal property to trustees approved by the 4
probate court having jurisdiction over said minor, to be held upon 5
the trusts declared in such contract, and such conveyance shall 6
have like effect as if said minor was of full age, and the guardian in 7
the settlement of his accounts shall be allowed by the probate court 8
for all property so conveyed to said trustees ; and said court may 9
require said trustees to give bond with sufficient sureties for the 10
faithful performance of their trust. 11
Rights of
woman coming
into common,
wealth without
her husband.
R. S. 77, § 18.
G. S. 108, § 29.
P. S. 147, § 29.
15 Mass. 31.
MARRIED WOMEN COMING FROM OTHER STATES, ETC.
Section 29. If a married woman comes from another state 1
or country into this commonwealth without her husband, who has 2
never lived with her in this commonwealth, she shall have all the 3
rights and powers which are given to married women by the pre- 4
ceding provisions of this chapter, and may transact business, make 5
contracts, sue and be sued in her own name, and dispose of her 6
property which may be found here, in like manner as if she were 7
sole. 8
— of parties
married out of
common-
wealth, and
coming here
to reside.
R. S. 77, § 19.
1855, 304, § 8.
G. S. 108, § 30.
P. S. 147, § 30.
Section 30. If a husband and his wife, married in another 1
state or country, come into this commonwealth, either at the same 2
time or at different times, and reside here as husband and wife, she 3
shall retain all property which she had acquired by the laws of any 4
other state or country, or by a marriage contract or settlement made 5
out of this commonwealth. Such residence together here shall 6
have the same effect, relative to their subsequent rights and lia- 7
bilities, as if they had married in this commonwealth at the begin- 8
ning of such residence. 9
Conveyance,
etc., of prop-
erty by mar-
ried woman
abandoned,
etc.
MARRIED WOMEN ABANDONED BY THEIR HUSBANDS, ETC.
Section 31. The probate court, upon the petition of a married 1
woman whose husband abandoning and not sufficiently maintaining 2
her has absented himself from this commonwealth, or has been 3
Chap. 153.] eights and liabilities of husband and wife. 1365
4 sentenced to confinement in the state prison, may authorize her to 1787,32, §i.
5 sell, convey, receive and receipt for her real and personal property, r. s. 77,'§§ 1-3,
6 any personal property which may have come to her husband by G\\1ib83§§ 31,
7 reason of the marriage and remains in this commonwealth undis- p-g 147 §31
8 posed of by him or any personal property to which he is entitled ifX'iifn'133
9 in her right, and to use and dispose of the same or the proceeds
10 thereof, during his absence or imprisonment, as if she were sole ;
11 and the authority so granted shall continue until the husband re-
12 turns to this commonwealth and claims his marital rights, or is
13 discharged from prison.
1 Section 32. A petition mentioned in the preceding section may Proceedings to
2 be filed, heard and determined in the probate court in any county, authority-
3 and notice thereon shall be given in the manner provided for E.8s'.77,f il3"
4 giving notice of libels for divorce when the libellee is out of this p- f ; \ffi 1 1|-
5 commonwealth. 1887> 332> § 2-
1 Section 33. If a husband fails, without just cause, to provide orders for
2 suitable support for his wife, or deserts her, or if the wife, for justi- 0rwife'e *'
3 fiable cause, is actually living apart from her husband, the probate itjufm.'
4 court may, upon her petition or, if she is insane, upon the petition \f^ ^ ffl-
5 of her guardian or next friend, prohibit the husband from imposing ff0^f7' y3-
6 any restraint on her personal liberty during such time as the court 130 Mass! lea!
7 shall by its order direct or until the further order of the court 138 Mass! 106!
8 thereon ; and, upon the application of the husband or wife or of her 144 Mass! 27s!
9 guardian, the court may make further orders relative to the support 150 Mass! ni.
10 of the wife and the care, custody and maintenance of the minor Jjjt Mass.' 9i2 *
11 children of the parties, may determine with which of their parents feoiass 232
12 the children or any of them shall remain and may, from time to ™J™aS8-58-
13 time, upon a similar application, revise and alter such order or
14 make a new order or decree, as the circumstances of the parents or
15 the benefit of the children may require.
1 Section 34. A petition under the provisions of the preceding venue of
2 section may be brought in the county in which either of the parties iIsi^'
3 lives, except that if the petitioner has left the county in which the p' s' U1' § u'
4 parties have lived together and the respondent still lives therein,
5 the petition shall be brought in that county.
1 Section 35. Upon such petition, an attachment of the husband's Attachment of
2 property may be made as upon a libel for divorce ; and the pro- property'in
3 visions of sections fourteen, twenty -nine and thirty-one of chapter f ^ i^9s(ej 2.
4 one hundred and fifty-two shall apply to proceedings upon such p7!3^ *35
5 petition, so far as appropriate. 141 Mass. 432.
150 Mass. 92. 153 Mass. 38. 163 Mass. 530.
1 Section 36. If a court having jurisdiction has entered a decree conveyance
2 that a married woman has been deserted by her husband or is living married1 of
3 apart from him for justifiable cause, she may convey her real prop- ^?tan living
4 erty in the same manner and with the same effect as if she were ^fi' 255*61
5 sole ; and the surviving husband shall not be entitled under the pro-
6 visions of section sixteen of chapter one hundred and thirty-five to
7 waive the provisions of a will made by her.
1366
ADOPTION OF CHILDREN.
[Chap. 154.
Support, etc.,
of children of
Section 37. If the parents of minor children live separately, 1
sep^ateiy.ing *ne Pr°bate court shall have the same power, upon the petition 2
of either parent, to make decrees relative to their care, custody, 3
education and maintenance, as relative to children whose parents 4
are divorced ; and shall determine which of the parents of such 5
children shall be entitled to such custody in accordance with the 6
law relative to the custody of children whose parents have been 7
divorced. 8
1856, 24
G. S. 107, §§ 36,
37.
P. S. 147, § 36.
1887, 332, § 2.
CHAPTEE 154.
OF THE ADOPTION OF CHILDREN AND CHANGE OF NAMES.
Sections 1-1 1 . — Adoption of Children.
Sections 12-14. — Change of Names.
Who may peti-
tion for leave to
adopt a child.
1851, 324, §§1,4.
G. S. 110, § 1.
1871, 310, § 1.
1876, 213, §§ 1,
10, 11.
P. S. 148, § 1.
124 Mass. 592.
137 Mass. 346.
171 Mass. 99.
ADOPTION OF CHILDREN.
Section 1. A person of full age may petition the probate court 1
in the county in which he resides for leave to adopt as his child 2
another person younger than himself, unless such other person is 3
his or her wife or husband, or brother, sister, uncle or aunt, of the 4
whole or half blood. If the petitioner has a husband or wife living, 5
who is competent to join in the petition, such husband or wife shall 6
join therein, and upon adoption the child shall in law be the child 7
of both. If a person who is not an inhabitant of this commonwealth 8
desires to adopt a child who resides here, the petition may be made 9
to the probate court in the county in which the child resides. 10
Written con-
sent of certain
persons re-
quired.
1851, 324, §§ 2, 3.
1852, 262.
1853, 31.
G. S. 110, §§2, 5.
1871, 310, §§2, 4.
1876, 213, § 2.
P. S. 148, § 2.
154 Mass. 378.
Section 2. A decree for such adoption shall not be made, ex- 1
cept as hereinafter provided, without the written consent of the 2
child, if it is above the age of fourteen years ; of her husband, if she 3
is a married woman ; of the lawful parents, or surviving parent ; 4
of the parent having the lawful custody of the child, if the parents 5
are divorced or are living separately ; of the guardian of the child, if 6
any ; of the mother only of the child, if illegitimate ; or of the per- 7
son substituted for any of the above named by the provisions of 8
this chapter. The fact of illegitimacy shall in no case appear upon 9
the record. A person whose consent is hereby required shall not 10
thereby be debarred from being the adopting parent. If the child 11
has been previously adopted, the consent of the previous adopting 12
parent shall also be required. 13
Consent not
required,
when.
1853, 402.
1859, 61, § 1.
G. S. 110, § 3.
1871, 310, §§ 3, 6.
1872, 311, § 1.
1876, 213, §§ 3, 4.
P. S. 148, § 3.
1886, 101, § 4.
1898, 433, § 24.
137 Mass. 346.
Section 3. The consent of the persons named in the preceding 1
section, other than the child or her husband, if any, shall not be 2
required if the person to be adopted is of full age, nor shall the 3
consent of any such person other than the child be required if such 4
person is adjudged by the court hearing the petition to be hopelessly 5
insane, or is imprisoned in the state prison or in a house of correc- 6
tion in this commonwealth under sentence for a term of which more 7
than three years remain unexpired at the date of the petition ; or if 8
he has wilfully deserted and neglected to provide proper care and 9
maintenance for such child for two years last preceding the date of 10
Chap. 154.] adoption of children. 1367
11 the petition ; or if he has suffered such child to be supported for
12 more than two years continuously, prior to the petition, by an in-
13 corporated charitable institution or as a pauper by a city or town
14 or by the commonwealth ; or if he has been sentenced to imprison-
15 ment for drunkenness upon a third conviction within one year and
16 neglects to provide proper care and maintenance for such child ; or
17 if such person has been convicted of being a common night walker
18 or a lewd, wanton and lascivious person, and neglects to provide
19 . proper care and maintenance for such child. A giving up in writing
20 of a child, for the purpose of adoption, to an incorporated charitable
21 institution shall operate as a consent to any adoption subsequently
22 approved by such institution. Notice of the petition shall be given
23 to the state board of charity, if the child is supported as a pauper
24 by a city or town or by the commonwealth.
1 Section 4. If the written consent required by the provisions of g\°en?when.
2 the two preceding sections is not submitted to the court with the ^5| 6n^ |4
3 petition, the court shall order notice by personal service on the i864,2i3,'§i.'
4 parties of a copy of the petition and order thereon, or, if they are 1872,' 311! § 3!
5 not found within this commonwealth, by publication of the petition p. s'. us, § 4.
6 and order once in each of three successive weeks in such newspaper 346.Mass' ^
7 as the court orders, the last publication to be seven days at least
8 before the time appointed for the hearing, and the court may require
9 additional notice and consent.
1 Section 5. If, after such notice, a person whose consent is re- Persons not ap.
2 quired does not appear and object to the adoption, the court may Eefdto consent.
3 act upon the petition without his consent, subject to his right of i||$; li4' § 2'
4 appeal, or it may appoint a guardian ad litem with power to give fm'm'lt
5 Or Withhold Consent. P. S. U8, § 5. 115 Mass. 262. 137 Mass. 346. 1S76> 213> § 6-
1 Section 6. If the court is satisfied of the identity and relations Decree of court
2 of the persons, and that the petitioner is of sufficient ability to bring issi,^, §§V-7.
3 up the child and provide suitable support and education for it, and Sn^o.'ffv);
4 that the child should be adopted, it shall make a decree, by which, \fe' 213' §§ 7'
5 except as regards succession to property, all rights, duties and other ^ ^ass Us
6 legal consequences of the natural relation of child and parent shall
7 thereafter exist between the child and the petitioner and his kin-
8 dred, and shall, except as regards marriage, incest or cohabitation,
9 terminate between the child so adopted and his natural parents and
10 kindred or any previous adopting parent ; but such decree shall not
11 place the adopting parent or adopted child in any relation to any
12 person, except each other, different from that before existing as
13 regards marriage, rape, incest or other sexual crime committed by
14 either or both. The court may also decree such change of name as
15 the petitioner may request. If the person so adopted is of full age,
16 he shall not be freed by such decree from the obligations imposed
17 by the provisions of section ten of chapter eighty-one.
1 Section 7 . A person who is adopted in accordance with the pro- Rights of
-2 visions of this chapter shall take the same share of the property which as to raccesld
3 the adopting parent could dispose of by will as he would have taken |rty.t0 prop"
4 if born to such parent in lawful wedlock, and he shall stand in re- 1851> 324> § 6-
1368
CHANGE OF NAMES.
[Chap. 154.
G. S. 110, § 7.
1871, 310, § 8.
1876, 213, § 8.
P. S. 148, § 7.
144 Mass. 441.
148 Mass. 619.
153 Mass. 525.
gard to the legal descendants, but to no other of the kindred of such 5
adopting parent, in the same position as if so born to him. If the 6
person adopted dies intestate, his property acquired by himself or 7
by gift or inheritance from his adopting parent or from the kindred 8
of such parent shall be distributed according to the provisions of 9
chapters one hundred and thirty-three and one hundred and forty 10
among the persons who would have been his kindred if he had been 11
born to his adopting parent in lawful wedlock ; and property re- 12
ceived by gift or inheritance from his natural parents or kindred 13
shall be distributed in the same manner as if no act of adoption had 14
taken place. The apportionment and distribution shall be ascer- 15
tained by the court. A person shall not by adoption lose his right 16
to inherit from his natural parents or kindred. 17
adopted child Section 8. The word "child", or its equivalent, in a grant, trust-
under wins, settlement, entail, devise or bequest shall include a child adopted
1876, 213, § 9. by the settlor, grantor or testator, unless the contrary plainly ap-
iii> Mass. 262. pears by the terms of the instrument ; but if the settlor, grantor or
144 Mass. 441. fcestator js not himself the adopting parent, the child by adoption
shall not have, under such instrument, the rights of a child born in
lawful wedlock to the adopting parent, unless it plainly appears to
have been the intention of the settlor, grantor or testator to include
an adopted child.
monweaith°ofa Section 9. An inhabitant of another state, adopted as a child
in anotherted m accordance with the laws thereof, shall upon proof of such fact
state. be entitled in this commonwealth to the same rights of succession
p. s. 148, § 9.' to property as he would have had in the state in which he was
adopted, except so far as such rights are in conflict with the pro-
visions of this chapter.
Effect of
second adop-
tion.
1876, 213, § 13.
P. S. 148, § 10.
Section 10. If the child has been previously adopted, all the
legal consequences of the former decree shall, upon a subsequent
adoption, determine, except so far as any interest in property may
have vested in the adopted child, and a decree to that effect shall
be entered on the records of the court.
1
2
3
4
5
6
7
8
9
1
2
3
4
5
6
1
2
3
4
5
Appeals.
1851, 324, § 8.
1859, 61, § 2.
G. S. 110, §§ 9,
10.
1871, 310, § 10.
1876, 213, § 12.
P. S. 148, § 11.
154 Mass. 574.
Section 11. The supreme judicial court may allow a parent, 1
who, upon a petition for adoption, had no personal notice of the 2
proceedings before the decree, to appeal therefrom within one year 3
after actual notice thereof, if he first makes oath that he was not, at 4
the time of filing such petition, undergoing imprisonment as speci- 5
fied in section three or that, if so imprisoned, he has since been 6
pardoned on the ground of innocence or has had his sentence re- 7
versed. 8
Petitions for
change of
name.
1851, 256, § 1.
1854, 24.
G. S. 110, §§ 11,
13.
P. S. 148, § 12.
CHANGE OF NAMES.
Section 12. A petition for the change of name of a person may 1
be heard by the probate court in the county in which the petitioner 2
resides. No change of the name of a person, except upon the adop- 3
tion of a child under the provisions of this chapter or upon the 4
marriage or divorce of a woman, shall be lawful unless made by 5
said court for a sufficient reason consistent with public interests and 6
satisfactory to it. 7
Chap. 155.] masters, apprentices and servants. 1369
1 Section 13. The court shall, before decreeing a change of name, Notice and
. • -i certificate
2 require public notice of the petition to be given, and any person issi, 256, §'2.
3 may be heard thereon. It shall also require public notice to be p." I.' lis,' 1 13.'
4 given of the change decreed, and on return of proof thereof may
5 grant a certificate, under the seal of the court, of the name which
6 the person is to bear and which shall thereafter be his legal name.
1 Section 14. Each register of probate shall annually, in Decern- Annual return
2 ber, make a return to the secretary of the commonwealth of all changes lssi, f^ffi.
f of names made in the court of which he is register. G' s' 110, § 14'
P. S. 148, § 14. 1897, 89.
CHAPTEK 155.
OF MASTERS, APPRENTICES AND SERVANTS.
1 Section 1. A child under the age of fourteen years may be Minors may
2 bound as an apprentice or servant until that age ; and a minor apprentices8
3 above said age may be bound as an apprentice or servant, a female 1794? 64,a§ l'
4 to the age of eighteen years or to the time of her marriage within *f- 1- f^h
5 that age, and a male to the age of twenty-one years. p- 8- 149.' § 1.
1 Section 2. A child under the age of fourteen years may be —how bound
2 bound by the father, or, in case of his death or incompetency, by fourteenyears.
3 the mother or legal guardian. If illegitimate, he or she may be r9!'.^'.!^^;
4 bound by the mother during the lifetime of the putative father as ^?> 1 2jn § 2
5 well as after his decease. If such children have no parent compe- p. s. 149,' § 2.
6 tent to act and no guardian, they may, with the approval of the
7 selectmen of the town in which they reside, bind themselves. The
8 power of a mother to bind her children shall cease upon her subse-
9 quent marriage, and shall not be exercised by herself or by her
10 husband during the continuance of such marriage.
1 Section 3. A minor above the age of fourteen years may be —how bound
2 bound in the same manner, but, if bound by his parent or guardian, fourteen/'
3 the indenture shall recite his consent and shall be signed by him. r9|. so, §3-
G. S. Ill, § 3. P. S. 149, § 3. 5 Gush. 417.
1 Section 4. A minor child who is, or either of whose parents is, certain minors
2 chargeable to a town as having a lawful settlement therein or sup- by overseers'1
3 ported there at the expense of the commonwealth may, whether ilg^&^V.
4 under or above the age of fourteen years, be so bound by the over- lyiolfi1!' 1 1"
5 seers of the poor, a female to the age of eighteen years or to the J2?H' 17> § *■
6 time of her marriage within that age, and a male to the age of 1793, 59, §4.
R S 80 S8 fi 7
7 twenty-one years ; and provision shall be made in the contract for g'. s.' 111, §§ 4', 5!
8 teaching such minor reading, writing and arithmetic, and for such fpfck.^bo.4'
9 other instruction, benefit and allowance, either within or at the end }6G^yim.
10 of the term, as the overseers may require. 107 Mass. 419. 152 Mass. 438. 9 Alien, 207.
1 Section 5. A minor shall not be bound as an apprentice or ser- indenture to be
2 vant except by an indenture of two parts sealed and delivered by i?94,e64, § 1.
1370
MASTERS, APPRENTICES AND SERVANTS.
[Chap. 155.
G'l'iVte'8' ^°^ Parties ; and if a minor is bound with the approval of the 3
f\s.'i49;§5.* selectmen, they shall certify such approval in writing upon each 4
part of the indenture. 5
9 Gray, 377
one part of Section 6. One part of the indenture shall be kept for the use
indenture to be . . r -.. , *
kept for minor, of the minor by the parent or guardian who executes it, and, 11
e. s. 80, §§'5,8. made with the approval of the selectmen or by the overseers of the
I"1 Q 111 C H
p.' s.' 149,' § e! poor, shall be deposited with the town clerk for the use of the
minor.
1
2
3
4
5
Money, etc., Section 7. All considerations of money or other things paid or 1
paid by master J & ■ • i •
to be for use of allowed by the master upon a contract 01 service or apprenticeship 2
lraMa/H". made in pursuance of this chapter shall be paid or secured to the 3
g! si ni,§§98. sole use of the minor who is bound thereby. p. s. 149, § 7. 4
Bonds to be
given.
1865, 270, § 1.
P. S. 149, § S.
See c. 106, § 45.
Section 8. No minor shall be bound as an apprentice or ser- 1
vant unless his parent or guardian or a responsible person in his 2
behalf gives a bond in the sum of two hundred dollars to the 3
master, with condition that the minor shall serve him for the full 4
term of his apprenticeship or service, and that the master shall be 5
held harmless from any loss or damage from the breach of such 6
condition ; but if the parents are unable to give such bond a bond 7
in such sum as may be agreed upon by and between the master and 8
the parents or guardian of such child may be given. The master 9
shall also give bond to the minor in a like sum, with condition that 10
the master shall comply with the conditions of the indenture, shall 11
not be guilty of any misconduct towards the apprentice or servant 12
and shall hold the apprentice or servant harmless from any loss or 13
damage by reason of any failure on his part to comply with the 14
terms of the indenture. If minors are bound by state, town or 15
municipal authorities or authorized agents, the bond required to be 16
given to the master may be waived by the parties. 17
Bond given by Section 9. The bond given bv the master shall be kept for the 1
master, how , © J , . ,. . r .
tept. use of the minor bv his parent or guardian ; and it there is no 2
1865 270 § 2. . © '
p. s'.iw, §9. parent or guardian, it shall be deposited with the clerk of the town 3
in which the master resides for the use of the minor. 4
Parents, select-
men, etc., to
inquire into
treatment of
children.
1703-4, 14, § 1.
1710-11, 6, § 1.
1793, 59, § 5.
1794, 64, § 2.
Section 10. Parents, guardians, selectmen and overseers shall 1
inquire into the treatment of all children bound by them or with 2
their approval, or by their predecessors in office or with their 3
approval, and shall defend all such children from cruelty, neglect 4
or breach of contract on the part of their masters. 5
R. S. 80, § 10. G. S. HI, § 9. P. S. 149, § 10.
Complaint for
misconduct of
master or ser-
vant to probate
court, etc.
1710-11, 6, § 2.
1758-9, 17, § 2.
1793, 59, § 5.
1794, 64, §§ 2, 4.
R. S. 80, §§ 11,
12, 22, 23.
Section 11. Complaints by parents, guardians, selectmen or 1
overseers for misconduct or neglect of the master, and by the 2
master for gross misbehavior of the apprentice or servant or his 3
refusal or wilful neglect to do his duty may be filed in the probate 4
court in the county in which the master resides and shall state 5
the facts and circumstances of the case. The court shall order 6
Chap. 155.] mastees, apprentices and servants. 1371
7 notice to the adverse party, and, if the complaint is made by the g. s. hi, §§ 10,
8 master, to all persons who have covenanted in behalf of the appren- p.' g. 149, §§ n,
9 tice or servant and to the selectmen who approved the indenture 12"
10 or to their successors in office, and it shall have jurisdiction in
11 equity to hear and determine such complaint. It may enter a
12 decree that the minor be discharged from his apprenticeship or
13 service, or that the master be discharged from his contract. A
14 minor who has been so discharged may be bound out anew.
1 Section 12. Costs may be awarded to the prevailing party, court may
2 and execution issued therefor ; but no costs shall be awarded i793,r59?§ 5.8'
3 against selectmen or overseers, unless it appears that the complaint r9^ soAu'st'
4 was made without just and reasonable cause. Costs in favor of the q.' s. m, § 12.
5 master may be recovered of the parent or guardian who executed p- s- 149> § 13-
6 the indenture, or, if there is no parent or guardian liable therefor,
7 such costs may be recovered in an action against the minor when
8 he arrives at full age.
1 Section 13. All damages recovered from a master in an action Damages re-
2 on the indenture for the breach of a covenant on his part shall, after mZsteAn0™
3 deducting 'the necessary charges in prosecuting such action, be the denture.D m"
4 property of the minor and may be applied and appropriated to ^9| 5890' § ^
5 his use by the person who recovers the same, and the residue shall p-f-Ho'lJ?-
6 be paid to the minor, if a male, at the age of twenty-one years, or,
7 if a female, at the age of eighteen years or at the time of her mar-
8 riage within that age.
1 Section 14. Such action may be brought by the parent of the By whom such
2 minor or his executor or administrator, by the guardian of the broughmaybe
3 minor or his successor or by the overseers of the poor or their sue- R9|'.5s90',§§5i5.
4 cessors ; or it may be brought in the name of the minor by his £■ f • ™> | **•
5 guardian or next friend, as the case may require, or by himself
6 after the expiration of the term of apprenticeship or service.
1 Section 15. If the action is brought by the overseers, it shall J^onfs88'
2 not abate bv the death of anv of them, or by their being; succeeded brought by
3 in office, but shall proceed in the names of the original plaintiffs or 1793, 59, §5.
4 of the survivor of them, or of the executor or administrator of the g. s". 111, § 15.
5 survivor ; and the money recovered in such action shall be depos- ' * ' 8 '
6 ited in the city or town treasury, to be applied and disposed of as
7 provided in section thirteen.
1 Section 16. No such action shall be maintained, unless com- Limitation of
2 menced during the term of apprenticeship or service or within two prentice^ ap
3 years after its expiration . g. s. 111, § 16. p. s. 149, § 17. uo Mass. 186. p^s. f0't | %4
1 Section 17. If judgment in such action is rendered for the Discharge of
2 plaintiff, the court may, upon his motion, discharge the minor from courtentlce by
3 his apprenticeship or service, if it has not already been done as R9|'.5890',§§i8.
4 before provided, and the minor may be bound out anew. p.* !; 1I9; f is!
1372
MASTERS, APPRENTICES AND SERVANTS.
[Chap. 155.
Discharge of
apprentice
by death of
master.
1794, 64, § 5.
R. S. 80, § 24.
G. S. Ill, § 21.
Section 18. No indenture of apprenticeship or of service made 1
in pursuance of this chapter shall bind the minor after the death 2
of his master, but the apprenticeship or service shall be thereby 3
discharged, and the minor may be bound out anew. 4
P. S. 149, § 19.
Chapter to
apply to mis-
tresses.
E. S. 80, § 25.
Section 19. The foregoing provisions of this chapter shall 1
apply as well to mistresses as to masters. 2
G. S. Ill, § 22. P. S. 149, § 20.
kfcftie™^06' Section 20. The provisions of this chapter relative to the 1
tionedinetni8 selectmen or overseers of the poor of a town shall apply to the 2
Raspt8o' 27 mayor and aldermen and overseers of the poor of a city or to such 3
g. si lii, § 24. other officers as have charge of the poor therein. p. s. 149, § 21. 4
PART III.
OF COUKTS AND JUDICIAL OFFICERS AND PRO-
CEEDINGS IN CIVIL CASES.
TITLE I.
OF COURTS AND JUDICIAL OFFICERS.
Chapter 156. — Of the Supreme Judicial Court.
Chapter 157. — Of the Superior Court.
Chapter 158. — Provisions Common to the Supreme Judicial Court and the
Superior Court.
Chapter 159. — Of the Equity Jurisdiction and Procedure of the Supreme
Judicial Court and the Superior Court.
Chapter 160. — Of Police, District and Municipal Courts.
Chapter 161. — Of Justices of the Peace and Trial Justices.
Chapter 162. — Of Probate Courts.
Chapter 163. — Of Courts of Insolvency.
Chapter 164. — Of Judges and Registers of Probate and Insolvency.
Chapter 165. — Of Clerks, Attorneys and other Officers of Judicial Courts.
Chapter 166. — Of Provisions relative to Courts and of Naturalization.
CHAPTEK 156.
OF THE SUPREME JUDICIAL COURT.
1 Section 1 . The supreme mdicial court shall consist of one chief Number of
x . , . • a • ' j.- justices.
2 justice and six associate justices. 1699-1700, 3, § 1. 1780,17. Dcci. of Rights,
1782,9, §1. 1823,98. 1840, 87, § 6. G. S. 112, § 1. art. 29.
1799, 82, § 1. R. S. 81, § 1. 1848, 9. 1873, 40.
1804, 105, §1. 1837,78. 1852, 127, § 1. P. S. 150, § 1.
1 Section 2. The full court shall be the supreme judicial court ^f^- 3 §1
2 in banc, and four justices shall constitute a quorum to decide all "so, 17. '
3 matters which are required to be heard by it. 1852, 127, § 2. isoo; 71, § i.
1859, 196, § 39. G. S. 112, § 2. P. S. 150, § 2. 1883, 223, § 2. R. S. 81, § 11.
1 Section 3. The supreme judicial court shall have general super- superintend
2 intendence of all courts of inferior jurisdiction to correct and prevent courts.1" enor
3 errors and abuses therein if no other remedy is expressly provided ; E.8|.8if§2§ 4,5.
[ 1373 ]
1374
SUPREME JUDICIAL COURT.
[Chap. 156.
1859, 196, § 38.
G. S. 112, § 3.
P. S. 150, § 3.
3 Cush. 212.
8 Cush. 529.
2 Allen, 463.
123 Mass. 420,
471.
and it may issue writs of error, certiorari, mandamus, prohibi- 4
tion, quo warranto and all other writs and processes to such courts 5
and to corporations and individuals which may be necessary to the 6
furtherance of justice and to the regular execution of the laws. 7
127 Mass. 59, 60, 257. 163 Mass. 446. 167 Mass. 123.
Removal
of certain
officers.
1356, 173, § 7.
G. S. 112, § 4.
1876, 209.
P. S. 150, § 4.
1897, 224.
11 Gray, 206.
1 Allen, 358.
Section 4. A majority of the justices may, if in their judg- 1
ment the public good so requires, remove from office the clerks of 2
the courts or of their own court ; and if sufficient cause is shown 3
therefor and it appears that the public good so requires, may, upon 4
a bill, petition or other process, upon a summary hearing or other- 5
wise, remove a clerk of the superior court, or of a police, district or 6
municipal court, a county commissioner, sheriff, register of probate 7
and insolvency or district attorney. 8
Jurisdiction,
general.
1699-1700, 3, § 1.
1780, 17.
1782, 9, § 2.
R. S. 81, § 2.
1840, 87, § 1.
1S59, 196, § 30.
G. S. 112, § 6.
1S79, 183.
1880, 28.
P. S. 127, § 34;
150, § 5.
11 Met. 293.
13 Gray, 536.
99 Mass. 468.
127 Mass. 316.
138 Mass. 328.
153 Mass. 197.
163 Mass. 270.
167 Mass. 424.
Section 5. The court shall have original and concurrent juris- 1
diction with the superior court of actions of contract or replevin in 2
which the damages demanded or property claimed, if the actions 3
are brought in the county of Suffolk, exceed in amount or value 4
four thousand dollars or, if brought in any other county, exceed 5
one thousand dollars, if the plaintiff, or a person in his behalf, 6
before service of the writ, makes oath before a justice of the peace 7
that he believes the matter sought to be recovered actually equals 8
in amount or value said amounts, respectively. A certificate of such 9
oath shall be indorsed on or annexed to the writ. The court may 10
also on petition hear and determine all matters and questions aris- 11
ing under wills. 12
law to beheard Section 6. Questions of law arising upon exceptions or report, 1
by fun court, upon appeals from the superior court, upon cases stated or upon 2
r. s. si,' § 13. special verdicts and all issues in law, except as otherwise provided, 3
p.' s." 150,' § 7.' shall be heard and determined by the full court. 4
' 120 Mass. 87. 134 Mass. 338. 137 Mass. 536. 168 Mass. 297. 170 Mass. 152.
Reservation of
questions of
law.
R. S. 81, § 26.
G. S. 112, § 10.
P. S. 150, § 8.
6 Allen, 150.
9 Allen, 166.
128 Mass. 349.
144 Mass. 260.
Section 7. Questions of law arising upon a trial or other pro- 1
ceeding or upon a motion for a new trial by reason of an opinion, 2
direction, order or refusal of one justice in matter of law may be 3
reserved for the consideration of the full court, and so much of 4
the case as is necessary for understanding the question shall be 5
reported. 161 Mass. 46. 6
Law questions,
when argued.
1859, 196, § 45.
G. S. 112, § 34.
1864, 111, § 1.
P. S. 150, § 9.
115 Mass. 335.
Section 8. Questions of law which are entered upon the docket 1
of the full court shall, when reached, be argued in their order, if 2
either party is ready, unless the court for good cause shown post- 3
pones the argument. But no party shall be compelled to be ready 4
for argument within ten days after the question has been duly 5
reserved of record in the court in which the case is pending. 6
nai'docketlt11" Section 9. Questions arising upon appeals and exceptions in 1
Boston. the superior court in criminal cases, and all processes and other pro- 2
g. s. 112, § § 35, ceedings in such cases which may lawfully come before the court 3
p.'s. 150, §io. for the commonwealth at Boston, shall be entered upon the criminal 4
docket, and be in order and have precedence for argument on such 5
Chap. 156.] supreme judicial court. 1375
6 day in every month in which the court may be in session as the
7 court may designate ; and the arguments shall be continued until
8 such cases are disposed of, and shall not be postponed except for
9 good cause shown.
1 Section 10. If, when a question is reached in the order of the Hearings ex
2 docket, only one party is ready for argument, the court may hear cfsiont^ithout
3 it, ex parte ; or, if, upon exceptions, neither party is ready, the iJf9UIf9e6n § 47
4 exceptions may be passed upon by the court without argument, or, p*- |- *j.i | 3j-
5 for cause shown, the argument may be postponed ; but no case the
6 argument of which has been postponed shall be again in order for
7 argument until all the other cases ready for argument have been
8 argued, postponed or otherwise disposed of.
1 Section 11. The full court shall, as soon as may be after the judgment or
2 decision of the questions submitted to it, make and enter a proper decision after
3 order, direction, judgment or decree for the further disposition G^'.m.ln.
4 of the case, or cause a rescript, containing a brief statement of the p6!22^- Uo
5 grounds and reasons of the decision, to be filed therein ; or it mav 12 Alien,' 205.
109 .Mass 248
6 by a writ of certiorari or other proper process remove the record of 123 Mass! 4is!
7 the case, or order it to be removed, into the supreme judicial court, 130 Mass! 201!
8 there enter judgment, and remand the record to the court from 133Ma88-536-
9 which it was removed to carry such judgment into effect, or instead
10 thereof, the full court may order a new trial or further proceedings
11 at the bar of the supreme judicial court, or order sentence to be
12 awarded or execution issued in said court.
1 Section 12. The records and rescripts which are made after the contents of
2 decision of questions of law shall contain a brief statement of the is^i^hs.'
3 reasons therefor ; and if no further opinion is written within sixty p; f ; HI' f Jf;
4 days, the reporter shall publish the case with the opinion contained
5 in such record or rescript.
1 Section 13. If, upon the hearing of an appeal or exceptions in Frivolous ex.
2 an action at law, a suit in equity or other proceeding, it appears that iIIo^to,^ 5.
3 the appeal or exceptions are frivolous, immaterial or intended for §• § "le^' § 31;
4 delay, the court may, either upon motion of a party or of its own p" f" i|f' | if"
5 motion, award against the appellant or excepting party double costs ffL223''^ v'
6 from the time when the appeal was taken or the exceptions were 121 Mass! 586!
7 allowed, and also interest from the same time at the rate of twelve 130 Mass! 265.
8 per cent a year on any amount which has been .found due for debt 158 Mas8' 590'
9 and damages, or which he has been ordered to pay, or for which
10 judgment has been recovered against him, or may award any part
11 of such additional costs and interest.
1 Section 14. If, by mistake or accident, an appeal from the Late entry of
2 superior court or a bill of exceptions which has been allowed by iWi%\ § 1.
3 the supreme judicial court or the superior court is not duly entered k-s-81>§§34-
4 in the full court, that court, upon petition filed within one year after p1- f • J^> | }![•
5 the appeal or bill of exceptions should have been entered, and upon ^fjjjg1,™
6 terms, may allow the appellant to enter his appeal or the excepting i6i Mass! 593!
7 party to enter his bill of exceptions. But no security by bond,
8 attachment or otherwise, which has been discharged by the omission
1376
SUPREME JUDICIAL COURT.
[Chap. 156.
to enter an appeal or bill of exceptions shall be revived or continued 9
in force by the entry thereof. 10
Law sitting for
the common-
wealth.
1859, 196, § 36.
G. S. 112, §26;
115, § 13.
P. S. 150, §30;
153, § 16.
103 Mass. 535.
Section 15. A law sitting of the court for the commonwealth 1
shall be held annually at Boston on the first Wednesday of January 2
and may be adjourned from time to time to places and times most 3
conducive to the despatch of business and to the interests of the 4
public. At such sitting, questions of law arising in the counties 5
of Barnstable, Middlesex, Norfolk and Suffolk and, by consent of 6
the parties filed in the case, such questions arising in other counties, 7
and such questions for which no other provision is made, shall be 8
entered and determined. 9
Other law
sittings.
1782, 9, § 1.
1799, 82, §§ 2, 3.
1800, 71, § 2.
Berkshire.
1861, 99, § 1.
1868, 325, § 1.
Franklin and
Hampshire.
1861, 99, § 2.
Hampden.
Worcester.
1885, 48.
Plymouth.
1S62, 215, §§ 1, 2.
Bristol, Dukes
County and
Nantucket.
Essex.
1868, 168.
1870, 351.
Section 16. For hearing questions of law arising in the follow-
ing counties, law sittings shall be held as follows : —
1802, 39.
1804, 105, §§ 2, 3.
1820, 14,
1828, 2.
1,6.
R. S. 81, § 50.
1859, 196, § 36.
G. S. 112, § 27.
P. S. 150, § 31.
For the county of Berkshire, at Pittsfield, on the second Tuesday
of September.
For the counties of Franklin and Hampshire, alternately at Green-
field and Northampton, on the first Monday after the second Tues-
day of September, the sittings at Northampton being in the even
years.
For the county of Hampden, at Springfield, on the second Mon-
day after the second Tuesday of September.
For the county of Worcester, at Worcester, on the third Monday
after the second Tuesday of September.
For the county of Plymouth, at Plymouth, on the third Tuesday
of October.
For the counties of Bristol, Dukes County and Nantucket, at
Taunton, on the fourth Monday of October.
1S61, 206.
1877, 178, § 3.
1891, 287, § 1.
For the county of Essex, at Salem, on the first Tuesday of
November.
Such sittings may be held for the trial of causes and for the
despatch of business for which a court may be held by one justice
in the county in or for which the court is held ; but no jury shall
be summoned for such sittings, except in the county of Essex, unless
an order therefor is issued by the justices of said court, or one of
them, directed to the clerk of the courts of said county.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Transfer of
cases by full
court.
1892, 127.
162 Mass. 90.
Section 17. The full court sitting in any county, or for the 1
commonwealth, shall have jurisdiction of all questions of law and of 2
all cases and matters at law or in equity, civil or criminal, which 3
arise in any county other than that in or for which it is sitting, 4
and which might properly be heard and determined by it sitting for 5
such county ; and, upon the application of a party, the full court 6
may, in its discretion, order any such questions of law, or case or 7
matter, to be entered and determined by the full court sitting in any 8
county, or for the commonwealth. 9
capital cases. Section 18. Exceptions which are alleged at the trial of a 1
p7| lfd V20 capital case in any county may be entered and determined either at 2
1891,* 379,' § 2. ' the law sitting of the supreme judicial court held for the county in 3
Chap. 156.] supkeme judicial court. 1377
4 which they arise, or, upon the order of the justices presiding at the 1894,204.
5 trial, at the sitting of the court for the commonwealth.
1 Section 19. If the justice before whom an action or proceeding Hearings in
2 is tried in the supreme judicial court or the superior court in questions ans-
3 counties other than Barnstable, Middlesex, Norfolk or Suffolk con- colntiesher
4 siders that a question of law which arises for the determination of If?!. usA3^.
5 the full court is immaterial, frivolous, or intended merely for delay, f62Mafs lof'
6 or that the interests of the parties or of the public require a more
7 speedy determination thereof than can be reached in the sitting
8 established for the county in which the action or proceeding is tried,
9 he shall so certify and order the question of law to be entered
10 and heard at the sitting of the court for the commonwealth ; and
1 1 all the other proceedings shall be the same as if the question had
12 arisen in one of the above-named counties.
1 Section 20. Questions of law arising at the October sitting of ^aE8!e!8ti<m8
2 the superior court for civil business for the county of Essex may, i896,4i2,'§i.
3 if so ordered by the presiding justice, unless otherwise agreed by
4 the counsel, be entered and determined at the sitting of the court
5 for the commonwealth.
1 Section 21. Jury sittings of the court shall be held by one Jury sittings.
1782 9 5 1
2 iustice and he shall there have and exercise all the powers not ex- 1799' 82, §§' 2, 3.
3 pressly reserved to the full court. 1S20, 14, §§ 1, 6. 1828, 2. 1802', 39!
R. S. 81, § 59. 1859, 196, § 56. G. S. 112, § 28. P. S. 150, § 32. 1804, 105, §§ 2, 3.
4 Such sittings shall be held as follows : —
5 For the county of Barnstable, at Barnstable, on the first Tuesday Barnstable.
6 of May.
7 For the county of Berkshire, at Pittsfield, on the second Tuesday Berkshire.
8 of May. \ 'W,L
9 For the counties of Bristol, Dukes County and Nantucket, at Bristol, Dukes
10 Taunton, on the third Tuesday of April, and at New Bedford, on the Nantucket.
11 second Tuesday of November. 1877, ns, §3. 1878, 151, §1. i86o;2io!§L
12 For the county of Essex, at Salem, on the third Tuesday of April ^e:|i0
13 and the first Tuesday of November. i87o| 351!
14 For the county of Franklin, at Greenfield, on the second Tuesday rrankiin.
15 of April. 1860'57'§1-
16 For the county of Hampden, at Springfield, on the fourth Tues- Hampden.
17 day of April.
18 For the county of Hampshire, at Northampton, on the third HampsMre.
19 Tuesday of April.
20 For the county of Middlesex, at Lowell, on the third Tuesday of ^275? §'1.
21 April, and at Cambridge, on the third Tuesday of October. i837;89,'§2.
I860, 57, § 2; 210, § 1.
22 For the county of Norfolk, at Dedham, on the third Tuesday of ^oTtoi*.
23 February.
24 For the county of Plymouth, at Plymouth, on the second Tues- Plymouth.
25 day of May. 1860,57, §3.
26 For the county of Suffolk, at Boston, on the first Tuesday of f^0^.
27 April, and the second Tuesday of September.
28 For the county of Worcester, at Worcester, on the second Tues- Worcester.
29 day of April. 1859'274-
1378
SUPERIOR COURT.
[Chap. 157.
Sittings at Fall
River.
1878, 107, § 1.
P. S. 150, § 34.
Section 22. If the public business so requires, the court may 1
adjourn an established sitting within and for the county of Bristol 2
from either Taunton or New Bedford to Fall River, in the manner 3
and with the effect of an adjournment to another shire town ; and 4
such adjournment shall be subject to all the provisions of law rela- 5
tive to adjournments to another shire town. 6
Dukes County
or Nantucket
cases to be
tried in Bristol.
R. S. 81, § 56.
G. S. 112, § 30.
1877, 178, § 3.
1878, 151, § 1.
P. S. 150, § 35.
Section 23. An action, suit or proceeding arising or pending 1
in the county of Dukes County or Nantucket, which is cognizable 2
by the supreme judicial court and which is to be heard before one 3
justice, shall be entered, heard, tried and determined at the court 4
held in the county of Bristol, in all respects as if the same court 5
were held in the county of Dukes County or Nantucket, as the case 6
may be ; and all matters cognizable by the full court arising or 7
pending in the county of Dukes County or Nantucket shall be heard 8
and determined as if arising in the county of Bristol. 9
^sticelatjury Section 24. Four or more justices present at a jury sitting 1
and law sit- shall have and exercise the powers of a full court. One justice 2
ti n & s
r.I.'si, §38. present at a law sitting shall have and exercise the same authority 3
1859 196 § 39 *
g. s. 112, § is", as at a jury sitting. p. s. 150, § 36. 4
aSnfs, etc. SECTION ^ ■ -~ — . —6.
r'f'i5o'f Is' examme an(i audit all accounts for services and expenses incident to
said court, and they shall be paid by the commonwealth.
The full court, sitting for the commonwealth, shall 1
2
3
Salaries.
Decl. of Rights,
art. 29.
1780, 9.
1789, 44.
1806, 3.
1S09, 13.
R. S. 81, § 61.
1843, 9.
1844, 24.
1856, 10.
Section 26. The chief justice of the court shall receive an 1
annual salary of eight thousand five hundred dollars, and each of the 2
associate justices an annual salary of eight thousand dollars, and the 3
chief justice and each of the associate justices shall annually receive 4
five hundred dollars in full compensation for travelling expenses, to 5
be paid by the commonwealth. g. s. 112, § 40. 1866, 46, § i. 6
1872, 160. P. S. 150, § 39. 1888, 274, § 1. 1892, 104. 1900, 385, § 1.
ance'.0*1 as8i8t" Section 27. The justices of the court shall be allowed annually 1
i89i, 89. not more than twenty-five hundred dollars for clerical assistance, 2
which shall be paid by the commonwealth upon the certificate of the 3
chief justice. 4
CHAPTER 157.
of the superior court.
Number of
justices.
1799, 81, § 1.
Section 1. The superior court shall consist of one chief justice 1
and seventeen associate justices. 2
1820, 79, § 2.
R. S. 82, § 1;
86, § 1.
1843, 7, § 4.
1845, 155.
1851, 330, § 1.
1855, 449, § 1.
1859, 196, § 7.
G. S. 114, § 1.
1888, 58.
1875, 230.
1892, 271.
P. S. 152, § 1.
1896, 526,
1886, 31.
Court, how
held.
1820, 79, § 1.
R. S. 82, § 32.
G. S. 114, § 2.
P. S. 152, § 2.
Section 2. The court may be held by one or more of the jus- 1
tices, and when so held shall have and exercise all the power and 2
jurisdiction committed to said court, except as provided in section 3
two of chapter two hundred and one and sections five and eight of 4
this chapter. 5
Chap. 157.] superior court. 1379
1 Section 3. The court shall have exclusive original jurisdiction Exclave
2 of actions of tort except those of which other courts or trial justices i82oS79?§10i?'
3 have concurrent original jurisdiction, of libels for divorce or for lsko.'I2!52'
4 affirming or annulling marriage, of writs of entry for the foreclosure Hf^ ubf§k
5 of mortgages and other real actions, of complaints for flowing lands ^5|> J^'fA 4
6 and of claims against the commonwealth, and original jurisdiction JiSo'2^5'51''
7 of all civil actions except those of which other courts or trial justices p. s'. m, §§ 3, 4.
8 have exclusive original jurisdiction. ' ,§L
1 Section 4. The court shall have original and concurrent juris- concurrent
2 diction with the supreme judicial court of actions of contract or i82o^79f§°°'
3 replevin in which the amount demanded or property claimed ex- i^f'ffg^s2'4'
4 ceeds in amount or value four thousand dollars if brought in the ^5| ®$ |^ 9
5" countv of Suffolk, and one thousand dollars if brought in anv p' s! 152) §§ 4! 9*
O »/ log "Magg 328
6 other county; and original and concurrent jurisdiction with police,
7 district and municipal courts and trial justices of personal actions in
8 which the amount demanded or the value of the property claimed
9 exceeds one hundred dollars, except actions of replevin of beasts
10 distrained for the recovery of a penalty or forfeiture, or to obtain
11 satisfaction for damages. No action shall be commenced in the
12 court wherein the debt or damages demanded do not exceed one
13 hundred dollars.
1 Section 5 . Actions in which the amount demanded or property Trials by three
2 claimed exceeds in amount or value ten thousand dollars if brought iHi^, § 1.
3 in the county of Suffolk, and five thousand dollars if brought in
4 any other county, and in which the plaintiff or a person in his
5 behalf files in the court, with, or subsequent to, the agreement of
6 reference, an affidavit sworn to by him before a justice of the peace
7 that he believes the matter sought to be recovered actually equals
8 in amount or value said amounts, respectively, may, by agreement
9 of the parties, be heard and determined by three justices, sitting
10 without a jury, a majority of whom shall, except as provided in
11 section ninety-six of chapter one hundred and seventy-three, deter-
12 mine all questions of law and fact arising therein.
1 Section 6. The court shall have jurisdiction of all civil actions Appellate civil
2 and proceedings which are legally brought before it by appeal or ls2os reflT'
3 removal.
R. S. 82, § 3. G. S. 114, § 5. 1887, 332, § 3. 1898, 562, § 14.
1859, 196, §5. P. S. 152, §5. 1890, 127, § 1. 1899, 131, § 2.
1 Section 7. The court shall have original jurisdiction of all dictfin8,1^18"
2 crimes, and appellate jurisdiction of crimes which are tried and HiS'S*!*'
3 determined before a police, district or municipal court or a trial I812J 133.
4 justice.
1830, 113, § 1. 1843, 7, § 1. G. S. 112, § 5; 114, § 6.
1832, 130, § 1. 1855, 449, § 3. P. S. 150, § 5; 152, § 6.
R. S. 81, § 17; 82, § 25; 86, § 4. 1859, 196, § 1. 1891, 379, § 1.
1 Section 8. In capital cases, all proceedings, except the trial ^capltai^8
2 of the indictment, may be before one justice. Such trial shall be ?gqfso79 62
3 held before two or more justices, either at a regular or special sit- i894,'204!
4 ting. Upon the death or disability of one of the justices sitting at
h such trial, any other justice of said court may sit in his place.
1380
SUPERIOR COURT.
[Chap. 157.
After a decision upon exceptions, judgment may be entered and 6
sentence awarded or a new trial granted by one justice. 7
Transmission
of indictment.
1869, 433, § 2.
P. S. 150, § 18.
1891, 379, § 3.
Section 9. The clerk of the courts for the county in which an 1
indictment for a capital crime has been entered, or, if it has been 2
entered in the county of Suffolk, the clerk of the superior court for 3
criminal business, shall forthwith send notice thereof, with a copy 4
of the indictment, to the chief or first justice of the court and to 5
the attorney general. Any justice of said court may thereupon 6
appoint a time for the arraignment of the prisoner, which shall 7
take place either at a regular sitting or on a day specially assigned 8
therefor. 9
Arraignment.
1820, 14, § 8.
1832, 130, § 6.
R. S. 81, §§ 15,
16.
G. S. 112, §§8, 9,
20.
P. S. 150, § 19.
1891, 379, § 4.
1893, 365.
Section 10. If the prisoner pleads guilty, the court shall award 1
sentence against him ; if he does not plead guilty, the court may 2
assign him counsel and take all other measures preparatory to a 3
trial, which shall, subject to the provisions of section sixty-one 4
of chapter two hundred and eighteen, be held as soon after the 5
finding of the indictment as the other official duties of the justices (>
will admit and the circumstances of the case require. 7
Dukesceounty Section 11. An indictment for a capital crime found in the 1
and Nantucket, county of Dukes County or Nantucket shall be tried in the county 2
r. s. si,'§ 46. of Bristol ; and the court for that purpose shall be convened and 3
held, and all proceedings relative thereto conducted, as when held in 4
the county in which an indictment is found. The court may in such 5
case, from time to time while the indictment is pending, make 6
orders relative to the place of confinement of the prisoner, and the 7
expense of his keeping shall in all cases be paid by the county in 8
which the indictment is found. 9
G. S. 112, § 24
1878, 151.
P. S. 150, § 24.
1891, 379, § 5.
Change of
venue.
1871, 240, § 1.
P. S. 150, § 26.
1891, 379, § 6.
Transmission
of papers.
1871, 240, § 2.
P. S. 150, § 27.
1891, 379, § 7.
District attor-
ney to conduct
case in new
venue.
Section 12. Upon the petition of a person indicted for a capital 1
crime, the court may, if in its opinion an impartial trial cannot be 2
had in the county in which the case is pending, order a change of 3
venue to any county adjoining the county in which the indictment 4
was found ; and on such order, the court shall have jurisdiction in the 5
county to which such change may be made. All other proceed- 6
ings in such case shall be the same, as nearly as may be, as if the 7
indictment had been originally entered in such adjoining county. 8
Section 13. The clerk of the courts in the county in which 1
the indictment is pending, or, if the indictment is pending in the 2
county of Suffolk, the clerk of the superior court for criminal 3
business, shall forthwith, upon the entry of such order upon the 4
docket, transmit the original indictment, with the papers in the 5
case and a duly certified copy of said order, to the clerk of the courts (>
for the county to which the venue has been changed, or, if the last 7
named county is the county of Suffolk, to the clerk of the superior 8
court for criminal business ; and the clerk, upon receiving the in- 9
dictment so transmitted, shall make immediate entry of the case 10
upon the docket of the superior court for such county. 11
Section 14. After the venue has been changed under the pro- 1
visions of the two preceding sections, the district attorney for the 2
Chap. 157.] superior court. 1B81
3 county in which the indictment was found shall continue to have i87i, 240, § 3.
4 the same authority and duty in the case as if the venue had not i89i,'379,'§ s~. "
5 been changed.
1 Section 15. If a change of venue is ordered, the sheriff who custody of
2 has custody of the prisoner shall forthwith deliver him to the sheriff i8™i°24o*'§ 4.
3 of the county to which the venue has been changed, who shall mt^m'Jg9'
4 receive and safely keep him as if the indictment had been found
5 in such county.
1 Section 16. A justice of the court, sitting at the trial or compensation
2 other proceedings upon an indictment for murder, may allow reason- prisoner6
3 able compensation for the services of counsel assigned to defend the 1893' 394' § 2'
4 prisoner if he is otherwise unable to procure counsel, and such com-
5 pensation shall be paid by the county in which the indictment is
6 found.
1 Section 17. The reasonable expenses incurred and paid by the Expenses of
2 counsel assigned by the court for the defence of a person indicted prisoner0
3 for murder, who is otherwise unable to procure counsel, shall be paid 1893' 394' § 1#
4 by the county in which the indictment is found after approval by a
5 justice sitting at the trial or other proceedings of the case.
1 Section 18. If an appeal or a bill of exceptions in a case, civil security to
ii 1-1 • -1 • • -1 stand upon ap-
2 or criminal, has been duly entered in the supreme judicial court, peai.
3 any security which has been taken in the case, by bond, attachment i859,'i96, § 31.
4 or otherwise, shall stand as if no judgment had been rendered or p.' s.' 152,' § 12.'
5 exception taken in the superior court, until final judgment shall be
6 entered, unless, in the case of a bill of exceptions, execution is
7 awarded because the exceptions are immaterial, frivolous or in-
8 tended for delay.
1 Section 19. Orders or decrees of the supreme judicial court ^ep™mse°-udi
2 upon questions which arise in a case pending; in the superior court ciai c°ui-t to be
-*■ o J. recorded.
3 shall be entered of record in the superior court, and such case shall g. s. iu," § 12.
4 be disposed of as law and justice require, conformably to the re- 103 Mass. 4*6."
5 script or order of the supreme judicial court. 124 Mass. 353.
1 Section 20. Parties to an action which is submitted to the de- judgment final
2 termination of the court may agree that the judgment therein shall el sfsl.Ti"*'
3 be final. g. s. ii4,§i3. p. s. 152, §14.
1 Section 21. The clerk shall, at the expense of the appellant or Transmission
2 excepting party, or of the plaintiff upon a case reserved or reported, i85?,ai^B§§ 33,
3 or of the commonwealth in criminal cases, prepare and transmit to g.' s. 114, § 14.
4 the supreme judicial court for the proper county one copy of every ^Mas^"^?'
5 paper on file in the case, except papers used in evidence only, and
6 of all papers made part of the case or referred to in the bill of ex-
7 ceptions or report, or so much thereof as is necessary fully to pre-
8 sent the question of law, for the use of the chief justice, and a like
9 copy for the clerk of the supreme judicial court, which shall be kept
10 on file in said court; and one copy of the bill of exceptions, report
11 or papers upon which the question of law arises on appeal for each
1382
SUPERIOR COURT.
[Chap. 157.
associate justice, for each party and for the reporter of decisions. 12
Original papers used in the trial, which are needed in the supreme IS
judicial court, shall be transmitted to its clerk to be by him kept on 14
file until the rescript in such action is sent. The expense of such 15
copies and transmission shall be taxed in the bill of costs of the 16
prevailing party, if he has paid it. 17
Affirmation of
judgment of
district, etc.,
court upon
non-entry of
appeal.
1783, 42, § 6.
R. S. 85, § 15.
G. S. 120, § 27.
P. S. 155, § 34.
1893, 396, § 30.
117 Mass. 279.
118 Mass. 418.
171 Mass. 444.
Section 22. If, upon an appeal in a civil action or proceeding 1
from a judgment of a police, district or municipal court or trial 2
justice, the appellant fails to enter and prosecute his appeal, or if, 3
upon such appeal from a trial justice, the appellant fails to produce 4
the copies or papers mentioned in section one hundred and three 5
of chapter one hundred and seventy- three, the court may, upon 6
complaint of the appellee, affirm the former judgment or render 7
such other judgment as law and justice require. 8
Late entry of
appeal.
1791, 17.
R. S. 82, §§ 21-
24.
G. S. 114, § 15.
P. S. 152, § 16.
117 Mass. 280.
Section 23. If, by mistake or accident, an appeal to the supe- 1
rior court is not duly entered therein, or if, for a like reason, a 2
complaint founded on an omission to enter an appeal has not been 3
entered by the appellee, the court, upon petition filed within one 4
year after the appeal or complaint should have been entered, and 5
upon terms, may allow the appellant to enter his appeal or the 6
appellee to enter his complaint. Attachments made and security 7
given in the original action shall not be revived or continued in 8
force by the entry of such appeal or complaint. 9
Sittings of
court.
Barnstable.
1833, 51.
1869, 354.
Berkshire.
1850, 258.
1868, 325, § 1.
1871, 84.
Bristol.
1827, 135, § 2.
1878, 95.
1888, 314, §§ 1, 3.
1891, 287, § 2.
1899, 140.
Dukes County.
1825, 107, § 2.
1827, 18.
Essex.
1839, 150.
1849, 39.
1852, 288.
1860, 62.
1870, 315.
1885, 191, § 1.
1889, 461.
1896, 412.
Franklin.
1831, 44.
1889, 327.
Hampden.
1830, 40.
1844, 171.
1845, 253.
1849, 53.
1868, 250.
1885, 27.
Section 24.
Sittings of the court shall be held as follows: —
1799, 81, § 1.
R. S. 82, §§ 40, 41; 86, § 1.
1855, 449, § 7.
1859, 196, § 10.
G. S 114, § 16.
P. S. 152, § 17.
For the county of Barnstable, at Barnstable, on the first Tuesday 2
of April and on the second Tuesday of October. i89i, 175. 1899, 271. 3
For the county of Berkshire, at Pittsfield, for civil business, on 4
the fourth Mondays of February, June and October ; for criminal 5
business, on the second Mondays of January and July. 6
For the county of Bristol, for civil business, at Taunton, on the 7
first Monday of March and the second Monday of September, and 8
at New Bedford, on the first Mondays of May and December ; for 9
criminal business, at Taunton, on the first Monday of February, at 10
New Bedford, on the first Monday of June, and at Fall River, on 11
the first Monday of November. 12
For the county of Dukes County, at Edgartown, on the last Tues- 13
days of April and September. 1833, 51. 1874, 34. 1889, 308. 14
For the county of Essex, for civil business, at Salem, on the first 15
Mondays of June and December ; at Lawrence, on the first Monday 16
of March ; and at Newburyport, on the first Monday of October ; for 17
criminal business, at Salem, on the second Monday of January ; at 18
Newburyport, on the second Monday of May ; and at Lawrence, on 19
the second Monday of September. 20
For the county of Franklin, at Greenfield, on the second Mondays 21
of March, July and November. 1898, 355. 22
For the county of Hampden, at Springfield, for civil business, on 23
the second Mondays of March and June and the fourth Monday of 24
October ; for criminal business, on the first Monday of May, the 25
fourth Monday of September and the third Monday of December. 2(>
Chap. 157.] supekior court. 1383
27 For the county of Hampshire, at Northampton, for civil business, Hampshire.
• 1846 193
28 on the third Monday of February, the first Monday of June and the 1852J 114!
29 third Monday of October ; for criminal business, on the second Mon-
30 day of June and the third Monday of December.
31 For the county of Middlesex, for civil business, at Lowell, on the Middlesex.
1836 275
32 first Mondays of April and October, and at Cambridge, on the first 1837I 89A § 2.
33 Monday of January; for criminal business, at Cambridge, on the l&uliii!
34 second Mondaj^ of February and the first Monday of June, and at lfef) 226, § 2.
35 Lowell, on the third Monday of October. 1892,391. 1901,162. 1878> 9-
36 For the county of Nantucket, at Nantucket, on the first Tuesdays Nantucket.
37 of July and October. 1833, 51. 1878, 100. 1825, 107' § L
38 For the county of Norfolk, at Dedham, for civil business, on the Sg^S;-
39 first Mondays of January, May and October ; for criminal business, i889;287i
40 on the first Mondays of April, September and December.
41 For the county of Plymouth, at Plymouth, on the second Mondays fg1^™11*11-
42 of February and June and the fourth Monday of October. 1862^ 215, § 3.
43 For the county of Suffolk, at Boston, for civil business, on the f$f$}^ 209
44 first Tuesdays of January, April, July and October ; for criminal
45 business, on the first Monday of every month.
46 For the county of Worcester, for civil business, at Worcester, on Worcester.
1835 116
47 the first Monday of March and the second Monday of December, and 1894; m
48 at Fitchburg, on the first Mondays of June and November ; for
49 criminal business, at Worcester, on the third Monday of January,
50 the second Monday of May and the third Monday of October, and
51 at Fitchburg, on the third Monday of August.
1 Section 25. The court shall, except in July, August and Sep- speedy trials
2 tember, hold a separate and continuous session , so far as is practicable, i894"283, 547.
3 in the county of Suffolk for the speedy trial of causes which have 1897, 381-
4 been advanced for speedy trial according to law, of causes which
5 have been entered in said court on appeal, of actions of contract orig-
6 inally commenced in the superior court in which the amount de-
7 manded or property claimed does not exceed in amount or value two
8 thousand dollars, of petitions to enforce liens under the provisions
9 of chapter one hundred and ninety-seven, and, upon the application
10 of either party, of actions in which a new trial by jury has been
11 granted or an auditor's report has been filed, and of all other cases
12 in which, in the opinion of a justice of said court, substantial jus-
13 tice and relief require a speedy trial. A trial list of such cases shall
14 be made every month.
1 Section 26. The court shall not be required to sit for the trial f1£eefuB<tfce8.
2 of actions described in section five, except in Boston, Worcester i89i, 227, §§ 3, 4.
3 and Springfield, and the justices shall, from time to time, make pro-
4 vision for such sittings in said cities, and may make provision for such
5 sittings in any county, at times which are most convenient. Such
6 actions shall be tried in such one of said cities as the parties may
7 agree upon or as the court orders.
1 Section 27. The court may adjourn any established sitting in Adjournment
2 and for the county of Bristol from Taunton or New Bedford to Fall Fan River.
3 Kiver, or in and for the county of Plymouth from Plymouth to issoUs!
4 Brockton, in the manner and with the effect of an adjournment ^"8f ,' ill.' § 18"
1888| 314, § 4.
1384
SUPERIOR, COURT.
[Chap. 157.
to another shire town ; and such adjournment shall be subject to all 5
the provisions of law relative to adjournments to another shire 6
town. 7
Return day in
criminal cases.
1841, 111, § 3.
1859, 196, § 12.
G. S. 114, § 18.
P. S. 152, § 23.
1897, 490, § 3.
11 Gray, 205.
Section 28. The first Monday of every month shall be a return 1
day for the entry of appeals from police, district and municipal courts 2
and trial justices and of suits upon recognizances and bonds in crim- 3
inal cases. Such appeals shall be entered on the return day next 4
after the appeal is taken. Such suits may be made returnable at the 5
election of the district attorney at any such return day within three 6
months after the date of the writ. Trials by jury of such suits shall 7
take place at criminal sittings ; and such suits shall be filed, dock- 8
eted and recorded as criminal cases. 9
Criminal busi-
ness, only at
sittings for
criminal busi-
ness.
1835, 116, § 3.
R. S. 82, § 42.
Section 29. In the counties in which separate sittings of the su- 1
perior court are established for civil and criminal business, criminal 2
cases only shall be tried by jury at the criminal sittings, and civil 3
cases only at the civil sittings. 4
1859, 196, § 11. G. S. 114, §17. P. S. 152, § 22. 1897, 490, § 4.
— special sit-
tings lor.
1874, 200.
P. S. 152, § 19.
1897, 490, § 5.
Section 30. The chief justice of the court may, by an order in 1
writing directed to the sheriff, order a special jury for a sitting for 2
criminal business to be held in any county at such time and place as 3
may be appointed in such order. The sheriff shall give notice thereof 4
as directed in the order therefor ; but no person under recognizance 5
to answer to an indictment or to a criminal complaint shall be held 6
to appear at such special sitting or at any time and place other than 7
the regular sittings of the court, unless duly notified by written 8
summons from the clerk. 9
gri^Jurrf °f Section 31. The chief justice of the court may, by an order in 1
1897, 490, § 6. writing, directed to the sheriff, cause the grand jury in any county 2
to be assembled at such time and place as may be appointed in such 3
order. 4
Precedence of
certain prose-
cutions.
1855, 215, § 35.
1859, 196, § 54.
G. S. 86, § 58;
114, § 20.
P. S. 152, § 25.
Section 32. At a sitting of the court at which criminal busi- 1
ness may be transacted, cases arising under the provisions of chap- 2
ters one hundred and ninety-one, one hundred and one hundred and 3
one shall have precedence in the order in which said chapters are 4
herein named, next after the cases of persons who are actually con- 5
fined in prison and awaiting trial. 6
Extension of
sitting.
1863, 33.
P. S. 152, § 26.
121 Mass. 31.
Section 33. If a criminal case is on trial at the end of a sitting, 1
such sitting may be continued, and the jurors serving in such case 2
may be required to serve until the case is finished. 3
Custody of
records.
1859, 196, § 4.
G. S. 114, § 21.
P. S. 152, § 27.
Section 34. The records of courts which are transferred to the 1
superior court shall remain in custody of its clerks. In the county 2
of Suffolk, the clerk of said court for civil business shall have the 3
custody of said records in civil cases, and the clerk for criminal 4
business shall have the custody of said records in criminal cases. 5
Copies of said records may be certified by said clerks respectively. 6
Judicial writs and processes which are founded upon such records 7
Chap. 158.] supreme judicial and superior courts. 1385
8 shall issue under the seal of the superior court, in like manner and
9 with the same effect as similar writs and processes which are
10 founded upon its own records.
1 Section 35. The chief iustice of the court shall receive an salaries.
1 8^9 1 Qfi S 1 7
2 annual salary of seven thousand dollars, and each associate justice g. s. ui, § 22.
3 an annual salary of six thousand five hundred dollars, and the chief 1872; 279!
4 justice and each associate justice shall annually receive five hundred pJI.^52, § 28.
5 dollars in full compensation for travelling expenses, to be paid by iffi'l^
6 the commonwealth. m$ jBjj".
CHAPTER 158.
provisions common to the supreme judicial court and the
superior court.
1 Section 1. In case of a vacancy in the office of chief justice vacancies, etc.
2 of the supreme judicial court or the superior court, or of the illness §".!'. 115? §4i.
3 or absence of the chief justice, his duties shall be performed by p-s-153> §L
4 the senior justice of such court who is present and qualified to act.
1 Section 2. If, in the opinion of a justice of either court, it is issue of proc
2 important that a writ or other process should be speedily issued in countyany
3 a cause pending in the court of which he is a justice, he may order 1886>223-
4 it to be issued by the clerk of the courts in the county in which he
5 is sitting ; and such clerk shall transmit the order to the clerk of the
6 courts of the county in which the cause is pending, to be filed and
7 recorded with the other papers in the case.
1 Section 3. The courts shall, respectively, from time to time Rules.
2 make and promulgate uniform codes of rules, not inconsistent with 1820; 79, § 7.
3 law, for regulating the practice and conducting the business of such il'.f's?!'510'
4 courts in cases not expressly provided for by law ; for the purpose of, ]Jfj[' ||' l?-u
5 First, Simplifying and shortening pleadings and procedure. j-^
6 Second, Prescribing the terms upon which amendments will be 76. '
7 allowed or unnecessary counts and statements stricken from the 1857', m, § 3.
8 record ; discouraging negligence and deceit ; preventing delay ; se- 49. ' '
9 curing parties from being misled ; placing the party not in fault as n5,S§413'§26;
10 nearly as possible in the condition in which he would have been if pj|'. wi', § 33;
11 no mistake had been made ; distinguishing* between form and sub- }§§■££• K1Q
,.'o-o> pit "" Mass. 518.
12 stance ; and substituting fixed and certain requirements for the dis-
13 cretion of the court.
14 Third, Conducting trials.
15 Fourth, Presenting distinctly the questions to be tried by the
16 Jm7-
17 Fifth, Giving a party such notice of the evidence which is in-
18 tended to be offered by the adverse party as will prevent surprise
19 and enable him to prepare for trial.
20 Sixth, Prescribing such forms of verdicts as will place upon
21 record the finding of the jury.
22 Seventh, The entry of judgment by the clerk under a general 1885« 384» § 12-
23 order in all cases ripe for judgment.
1386
1894, 283, § 2.
1897, 472.
1896, 401.
SUPREME JUDICIAL AND SUPERIOR COURTS. [CHAP. 158.
Eighth, Expediting the decision of causes and securing the speedy 24
trial thereof. 25
Ninth, Remedying abuses and imperfections in practice and 26
diminishing costs. 27
Tenth, Filing and hearing motions to set aside verdicts and 28
notifying adverse parties thereof. 29
Eleventh, The superior court may also from time to time make 30
and promulgate such rules for the regulation of the printing, publi- 31
cation and distribution of trial lists and for notifying attorneys of 32
trials in civil causes as the public convenience in the several coun- 33
ties requires. 34
The rules of the superior court shall not conflict with those of the 35
supreme judicial court. 36
Courts always
open.
1885, 384, § 2.
1897, 490, § 1.
153 Mass. 361.
175 Mass. 37.
Section 4. The courts shall be always open in every county and 1
the business thereof, or of the justices thereof, may be transacted at 2
any time ; but such business shall not, except as provided in section 3
five of chapter one hundred and sixty-six, be transacted on the 4
Lord's day or on a legal holiday unless it relates to an application 5
which, in the opinion of the justice to whom it is made, is of 6
pressing necessity. 7
busSfe^inVy Section 5. The courts and the justices thereof, respectively, may 1
issTEi 3 m any ■county transact any business of such courts and direct the 2
entry of any order, judgment or decree in an action, suit or proceed- 3
ing pending in the same court in another county.
Duration of
sittings.
1885, 384, § 4.
1897, 490.
Section 6. Regular sittings of the courts for the transaction of 1
civil or criminal business shall commence on the day appointed by 2
law therefor, and shall end on the day preceding the day next ap- 3
pointed by law for a sitting in such county for the transaction of the 4
same kind of business. Such regular sittings may at any time be 5
adjourned from time to time or without day, and such adjournment 6
shall excuse the attendance during the adjournment of all persons 7
who are required to attend at the sitting, unless expressly notified 8
to attend, but shall not otherwise terminate the sitting. 9
ses^ionsneous Section 7. Two or more simultaneous sessions of the court may 1
18591 196', 1 13. be held m ^e same county, if the public convenience so requires ; 2
p* i' 153' 111' an<^ ^ne business may be so divided as to secure its speedy and con- 3
venient disposal. 4
accounts?6 of Section 8. The courts shall, respectively, receive, examine and 1
r°I '!>' 46 aU°w accounts for services and expenses incident to their sittings 2
1859, 196, § 20*. in the several counties and order payment thereof out of the respec- 3
G. S. 115, §17
p. s. 153,' § 23.' tive county treasuries.
104 Mass. 537.
justtcesanQe of Section 9. The justices of said courts, respectively, or a
r?s'.82 §§ 38 majority of them, shall from time to time make such arrangements
S-f-n^'fi?- for the attendance of a iustice at the several times and places
appointed for holding the courts as will be most convenient and
as will insure the prompt performance of their duties.
P. 8. 153, § 24.
1
2
3
4
5
Chap. 159.] equity jurisdiction. 1387
1 Section 10. A justice of either court who, having attained the Retirement of
2 age of seventy years and having served in either or both of said ige*.1068' ±or
3 courts for at least ten consecutive years, resigns his office shall, lllf) iio/
4 during the remainder of his life, receive an amount equal to three- 1899, 310Ȥ1-
5 fourths of the salary which is by law payable to him at the time of
6 his resignation, to be paid by the commonwealth in the same manner
7 as the salaries of justices of said courts are paid.
1 Section 11. A justice of either court who, having attained the —for
2 age of sixty years and having served in either or both of said courts im, 3io;§ 2.
3 for at least fifteen consecutive years, shall have become disabled for
4 the full performance of his duties as such justice by reason of ill-
5 ness or otherwise may, with the approval of the governor and
6 council, resign his office under the provisions of this section, and
7 shall thereafter, during the remainder of his life, receive the same
8 amount, and in the manner provided, in the preceding section.
1 Section 12. If the public business so requires, either court may Adjournment
2 adjourn an established sitting in one shire town to another in the Sbire°town.
3 same county. Persons, recognizances and processes required to isil; 275!
4 appear at or to be returned to the established sitting shall appear at, p- f • H^> | ^;
5 be returnable to and have day in, the adjourned sitting.
1 Section 13. If no justice is present at the time and place ap — in absence
2 pointed for holding a court at the beginning of a sitting or at an Jre^Vis.
3 adjournment thereof, the sheriff of the county or any of his deputies \^\ i!tf '§^'79,
4 may adjourn the court from day to day or from time to time, as fg|0 113 §9
5 circumstances require, or as ordered by any of the justices, and shall ^- 1- *p> § 39;
6 give notice of such adjournment by making public proclamation in isfo, m, § 19.
7 the court house, and by a notice posted on the door of the court p." s.' 153,' § 26!
ox, u- i j • 97 Mass. 214.
8 house or published in a newspaper.
1 Section 14. In such case, any justice may by a written order same subject.
2 require the sheriff or his deputy to adjourn the court without day r81'.8i?§40.
3 or to the time expressed in the order; and the officer shall adjourn p.' f; 153,' f 27.*
4 the court accordingly by public proclamation in the court house.
1 Section 15. Each court may establish a seal and appoint all seal, and ofa-
„ . J _ . rr cers of court.
2 officers necessary for the transaction of its business. isoe, 196, § 16.
G. S. 115, § 22. P. S. 153, § 28.
CHAPTER 159.
of the equity jurisdiction and procedure of the supreme
judicial court and the superior court.
1 Section 1. The supreme iudicial court and the superior court General equity
lun 8(11 efcion
2 shall have original and concurrent iurisdiction in equity of all cases concurrent.'
i • • 1857 °14
3 and matters of equity which are cognizable under the general prin- g. s'. lis, § 2.
4 ciples of equity jurisprudence and, with reference thereto, shall be p.7s'.i58i',§§4.
5 courts of general equity jurisdiction. looVa^s.^K.2,
140 Mass. 459. 159 Mass. 356. 166 Mass. 294. 172 Mass. 53. 135 Mass. 140.
141 Mass. 545. 165 Mass. 123. 168 Mass. 76. 177 Mass. 230.
1388
EQUITY JURISDICTION.
[Chap. 159.
Statutory
equity juris-
diction.
G. S. 113, § 1.
P. S. 151, § 1.
1883, 223, § 1.
150 Mass. 73.
155 Mass. 417.
Section 2. The supreme judicial court shall have original and 1
exclusive jurisdiction in equity of all cases and matters of equity 2
which are cognizable under the provisions of any statute and are not 3
within the jurisdiction conferred by the provisions of the preceding 4
section, unless a different provision is made ; and the superior court 5
shall have like original and exclusive, or like original and concur- 6
rent, jurisdiction only if the statute so provides. 7
Special juris-
diction.
E. S. 81, § 8.
G. S. 113, § 2.
Re-delivery,
1823, 140, § 1.
1S53, 371, § 4.
20 Pick. 28.
Contribution.
1839, 96, § 2.
1853, 371, § 4.
Multiplicity of
interests.
13 Gray, 5.
5 Allen, 380.
100 Mass. 357.
Joint owners,
etc.
1891, 383.
Joint trustees,
etc.
1832, 162.
Accounts.
R. S. 118, § 43.
106 Mass. 50.
110 Mass. 32.
114 Mass. 122.
Creditors' bills.
1851, 206.
185S, 34.
1884, 285.
1 Allen, 566.
105 Mass. 423.
118 Mass. 273.
127 Mass. 206.
128 Mass. 478.
132 Mass. 164,
408.
136 Mass. 73.
137 Mass. 523.
140 Mass. 271,
494.
147 Mass. SI.
148 Mass. 76,
411.
149 Mass. 24,
487.
150 Mass. 211,
289.
151 Mass. 266,
481, 515.
152 Mass. 64.
154 Mass. 302.
159 Mass. 259,
4S4.
161 Mass. 58.
163 Mass. 127.
164 Mass. 85,
274.
lowing cases : -
Clause
Section 3. The supreme judicial court and the superior court 1
shall have original and concurrent jurisdiction in equity of the fol- 2
P. S. 151, § 2. 1883, 223, § 2. 12 Met. 316. 3
1. Suits to compel the re-delivery of goods or chattels 4
which have been taken or detained from the owner, and are so 5
secreted or withheld that they cannot be replevied. 6
23 Pick. 228. 16 Gray, 219. 134 Mass. 181.
7 Cush. 530. 131 Mass. 319.
Clause 2. Suits for contribution by or between devisees, lega- 7
tees or heirs liable for the debts of a deceased testator or intestate, 8
and by or between other persons respectively liable for the same 9
debt or demand, if there are two or more such persons liable at the 10
same time to make such contribution. 11
Clause 3. Other cases in which three or more parties have dis- 12
tinct rights or interests which cannot be justly and definitely de- 13
cided and adjusted in one action at law. 14
105 Mass. 543. 110 Mass. 54. 113 Mass. 502. 120 Mass. 481.
Clause 4. Suits between joint owners of personal property, 15
and their legal representatives, relative to such property, with 16
authority to determine their respective rights and interests therein, 17
to order a division or sale thereof and make and order a proper 18
distribution of the proceeds of a sale, and to do all other things 19
relative to a determination of the ownership, division and distribu- 20
tion of such property or the proceeds thereof. 21
Clause 5. Suits between joint trustees, co-executors and co- 22
administrators, and their legal representatives. R. s. 70, §35. 1853,371, §4. 23
Clause 6. Suits upon accounts, the nature of which is such 24
that they cannot be conveniently and properly adjusted and settled 25
in an action at law. 123 Mass. 117. 145 Mass. 59. 26
Clause 7. Suits by creditors to reach and apply, in payment of 27
a debt, any property, right, title or interest, legal or equitable, of a 28
debtor, within or without this commonwealth, which cannot be reached 29
to be attached or taken on execution in an action at law, although the 30
amount of the debt is less than one hundred dollars or the property 31
sought to be reached and applied is in the hands, possession or control 32
of the debtor independently of any other person or cannot be reached 33
and applied until a future time or is of uncertain value, if the value 34
can be ascertained by sale, appraisal or by any means within the ordi- 35
nary procedure of the court. In such suit, the interest of a partner 36
of the defendant in the partnership property may be reached and 37
applied in payment of the plaintiffs debt ; but unless it is a judg- 38
ment debt, the business of the partnership shall not be enjoined or 39
otherwise interrupted further than to restrain the withdrawal of any 40
portion of the debtor's share or interest therein until the plaintiffs 41
debt is established ; and if either partner gives to the plaintiff a 42
sufficient bond with sureties approved by the clerk, conditioned to 43
Chap. 159.] equity jurisdiction. 1389
44 pay to the plaintiff the amount of his debt and costs within thirty 165 Mass. 389.
45 days after it is established, the court shall proceed no further therein 6oo.
46 than to establish the debt ; and upon the filing of such bond, any in-
47 junction previously issued in such suit shall be dissolved.
48 Clause 8. Suits to reach and apply in payment of a debt any Fraudulent
49 property, right, title or interest, real or personal, of a debtor, liable im,%5nc,(iB'
50 to be attached or taken on execution in an action at law against him w'J,' 223' f I.'
51 and fraudulently conveyed by him with intent to defeat, delay or 141 Mass! 601!
52 defraud his creditors, or purchased, or directly or indirectly paid for, iH^ass'lio"
53 by him, the record or other title to which is retained in the vendor
54 or is conveyed to a third person with intent to defeat, delay or de-
55 fraud the creditors of the debtor.
1 Section 4. Each court may, if it is necessary to secure justice issue of proc
2 and equity, issue to courts of inferior jurisdiction, corporations and 1782,9, §2.
3 persons all general and special writs and processes required in pro- r^s'.si.II.
4 ceedings in equity. p. s. 151, § 1. 1883, 223, § 1. G- s- 113> § *■
1 Section 5. Suits in equity in said courts may be brought in venue.
• • 1883 223 S 13
2 any county in which a transitory action between the same parties 158 Mass. 376!
3 might be brought, as well as in counties in which it is elsewhere
4 provided that such suits may be brought.
1 Section 6. No suit in equity in said courts shall be defeated on Amendments.
1883 223 6 17
2 the ground that there is an adequate remedy at law, nor shall any i68Mass. 74.'
3 action at law be defeated on the ground that the relief sought can
4 be obtained only by a suit in equity, but such proceedings shall, at
5 any time before a final judgment or decree, be amendable at the dis-
6 cretion of the court upon terms.
1 Section 7. Procedure, process and practice in equity causes in Procedure in
2 the superior court shall, as nearly as may be, conform to that of the is^"^ § 3?r
3 supreme judicial court, the general rules of which for the regulation
4 of practice in equity shall, so far as applicable and except as herein-
5 after provided, be the rules of the superior court for the regulation
6 of practice in equity.
1 Section 8. Suits in equity may be commenced by bill or peti- mentTfnsCuits
2 tion, with a writ of subpoena according; to the usual course of proceed- iw^,
n • •, 1 • ■ 1 •, f » 1798, 77, § 1.
0 mgs in equity, or by an original writ 01 summons or 01 summons r. s. 90, §117;
4 and attachment or by the trustee process, or maybe commenced 1853, 371, §§ 1, 2.
5 by a declaration in an action of contract or tort, as the case may be, of I. hi, §3.
6 with or without an order for the attachment of the property or ^gf,"^,'!^,
7 arrest of the defendant, and shall be returnable on the return days \\Ueji 572.
8 prescribed by section twenty-four of chapter one hundred and 13" Mass- *03-
9 sixty-seven or on the rule days established by the court.
1 Section 9 . If a suit in equity is commenced by bill or petition Bin not re-
2 inserted in an original writ of summons or of summons and attach- mons.
3 ment, or in a writ of trustee process, or by a declaration m an action p. gf. 151, § 6.
4 of contract or tort, the bill, petition or declaration need not be in- 1883> 2'23> § 2.
5 serted in the separate summons, in the copy of the original writ to
6 be served on the defendant nor in the copy of the writ to be deposited
1390
EQUITY JURISDICTION.
[Chap. 159.
or left with or in the office of a register of deeds or officer of a cor- 7
poration or other person, for the purpose of making an attachment. 8
Notice in ques-
tions under
wills.
1S99, 373.
Section 10. Upon petitions for the construction of wills, or for 1
instruction relative to wills, the court, instead of the notice now re- 2
quired by law, may order notice of the petition and of the time and 3
place for hearing to be served on such number of the parties in 4
interest representing all possible interests as the court shall direct, 5
and to be published for three weeks successively in such newspaper 6
as it directs. If it appears that any possible interest is not repre- 7
sented, further service may be ordered until all possible interests 8
are represented before the court or until a guardian ad litem has 9
been appointed. If all possible interests are represented by persons 10
before the court, it shall not be necessary to make other persons 11
having similar interests parties defendant. 12
Docket entry
of equity suits.
1833, 223, § 5.
1884, 316.
1892, 440.
Section 11. Suits in equity in the superior court shall be entered 1
on the same docket as other cases, except in the counties of Suffolk 2
and Middlesex, where they shall be entered upon a separate equity 3
docket. All processes shall be returnable at the return day oc- 4
curring next after fourteen days from the date of the process, if 5
required to be served fourteen days before the return day, or at 6
the return day occurring next after thirty days from such date if 7
required to be served thirty days before the return day, or at any 8
rule day within three months after the date of the process. 9
F855mi9°4f §§"' 3. Section 12. The material facts and circumstances which are 1
p* s' i5i t5'-8'4' re^e(^ on Dy the plaintiff shall be stated with brevity, and immaterial 2
1883,' 223,' §§ 2, and irrelevant matters shall be omitted. The bill, unless actually 3
inserted in a writ, shall be entitled in the proper court, with the full 4
title of the cause containing the names and descriptions of all the 5
parties. It shall not be required to contain any address to the court, 6
or the usual commencement, or any prayer for an answer, for general 7
relief or for process. Discovery may be sought by inserting a prayer 8
therefor in the bill, petition or declaration, or by interrogatories. 9
Section 13. A defence to a suit in equity shall be made by 1
demurrer, plea or answer. A demurrer or plea need not contain a 2
protestation or concluding prayer ; but a demurrer shall be accom- 3
panied by a certificate that it is not intended for delay. An answer, 4
except to a bill for discovery only, shall not be made under oath or 5
under seal, and it need not contain any saving of exceptions to the 6
bill, or a prayer to be dismissed or for costs. Answers to inter- 7
rogatories in a bill for discovery shall be made within such time as 8
the court orders, and questions arising thereon shall be determined 9
by the rules applicable to bills for discovery. 10
pifadings.t0 Section 14. Bills, answers, petitions and other pleadings may 1
1883, 223, § io. ke signed by the party or his attorney, and shall not require any 2
other signature. 3
tories.oga" Section 15. Either party may, at any time after the filing of 1
p.6i'A°5i? §8. tne answer in a suit in equity, file interrogatories in the clerk's office 2
1883, 223, § 2. for the discovery of facts and documents which are material to the 3
Demurrer,
answer and
plea.
1855, 194, §§ 3,
G. S. 113, §§ 4,
P. S. 151, §§ 7,
10.
1883, 223, §§ 2,
10.
9 Allen, 101.
Ill Mass. 300.
Chap. 159.] equity jurisdiction. 1391
4 support or defence of the suit, to be answered upon oath by the
5 adverse party in the manner and subject to the provisions of chapter
6 one hundred and seventy-three relative to interrogatories in actions
7 at law.
1 Section 16. If a party neglects or refuses to expunge, amend ^f^etc
2 or answer according to the requirements of chapter one hundred and i«62, 4o,'§2.
3 seventy-three, the bill shall be dismissed or taken as confessed, or i883,-223,'§2.'
4 such other order or decree may be entered as the case may require.
1 Section 17. Suits in equity, and motions and other applications Hearing by
2 therein, whether interlocutory or final, shall in the first instance be ll^^Ti-
3 heard and determined by one justice of the court. r .' I.' is!; § li.
1883, 223, §2. 120 Mass. 87. 137 Mass. 487.
1 Section 18. For hearings, and for making, entering and modi- court always
2 fying orders and decrees in equity causes, by one justice, and for Ruiedays.
3 issuing writs in such causes, the courts shall always be open in every 1827J 26.
4 county, except on legal holidays ; and all such proceedings shall be ^ s- 81> §§ 20>
5 considered as taking place in court and not in chambers. The asA3i73 \7j.
6 supreme judicial court shall establish rule days for the transaction fsss'^'ll2'
7 of business pertaining to jurisdiction in equity. 5 Alien, 'si.
1 Section 19. A party who is aggrieved by a final decree of a Appeal from
2 justice of the supreme judicial court or a final decree of the superior f^ 237?? 2.
-3 court may, within thirty days after the entry thereof, appeal there- j>; §; }gf • | f3_
4 from. An appeal from a final decree of a justice of the supreme {ff M2a2g^ §222
5 iudicial court shall be entered on the docket of that court, and an 115 Mass. 119.
116 Mass. 230.
■6 appeal from a final decree of the superior court shall forthwith be 120 Mass! 392!
7 entered in the supreme judicial court. The copies and papers in 125 Mass! iso!
8 the cause shall be prepared by the clerk of the court and transmitted I2? Mass! 487.
9 to the supreme judicial court and entered on the docket of the full ^ ulll'. Is.
10 court. When such appeals have been entered as aforesaid, all pro- ™o Mass. 444.
11 ceedings under such decree shall be stayed, and the cause shall 171 Mass. 568.
12 thereupon be pending before the full court, which shall hear and
13 determine the same, and affirm, reverse or modify the decree appealed
14 from. Upon the reversal of a final decree, the court may remand
15 the cause to a justice of the supreme judicial court or to the superior
16 court, with such directions as are necessary and proper further to
17 proceed therein, or the court may refer it to a master or take such
18 other order relative to future proceedings therein as equity and the
19 just and speedy determination of the case require.
1 Section 20. The clerk of the court for the commonwealth shall e\X™quityk"
2 enter appeals in equity and probate matters on a separate equity *nde^|°"ate
3 and probate docket, g. s. 113, § 14. p. s. 151, § 14. 1883, 223, § 2. 150 Mass. 56. 1859, 196, § 53.
1 Section 21. Upon an appeal from a final decree, the justice of Jece^er^end-
2 either court by whom it was made may make such orders for the j5f9a^e*13
3 appointment of receivers, and of injunction or prohibition, or for g. s. 113, § 9.
4 continuing the same in force, as are needful for the protection of the i883,'223,'§2. '
5 rights of parties, until the appeal shall be heard by the full court ;
6 subject, however, to be modified or annulled by the order of the
7 full court upon motion, after the appeal is taken.
1392
EQUITY JURISDICTION.
[Chap. 159.
Modification of
decree of supe-
rior court.
1883, 223, § 6.
1901. 244.
Section 22. After an appeal has been taken from a decree of 1
the superior court, the full court may, by an order, on terms or 2
otherwise, suspend the execution or operation of the decree ap- 3
pealed from, pending the appeal, and may modify or annul any 4
order made for the protection of the rights of the parties pending 5
the appeal ; but, until such order has been modified or annulled, 6
the justice of the superior court by whom the order or decree 7
appealed from was made, or any other justice of said court, may 8
make any proper interlocutory orders, pending such appeal, in- 9
eluding orders for the appointment of receivers, of injunction, of 10
prohibition, and orders for continuing in force such orders pre- 11
viously made, or for modifying or dissolving them. The justice 12
who makes any such interlocutory orders may enforce them by ap- 13
propriate proceedings, pending the appeal. 14
Report of
facts.
1883, 223, § 7.
1893, 61.
173 Mass. 170.
174 Mass. 299.
Section 23. Upon an appeal from a decree of either court, the 1
justice by whom the decree was made shall report the material facts 2
found by him, if so requested by the appellant within four days 3
after the appellant has been notified of the entry of the decree ; 4
otherwise, such report shall be in the discretion of the justice. 5
— of testimony
upon appeal.
1859, 237, § 6.
G. S. 113, § 21.
P. S. 151, § 26.
1883, 223, § 2.
13 Allen, 209.
115 Mass. 336.
116 Mass. 230.
117 Mass. 403.
130 Mass. 20.
Section 24. Upon an appeal, the testimony of witnesses who 1
have been examined orally before a justice of either court shall, at 2
the request of any party made before any evidence is offered, be 3
reported to the full court. The courts shall provide by general rules 4
for some convenient and effectual means of having the same reported 5
by the justice by whom the case is heard or by a person designated 6
by him for that purpose. No oral evidence shall be exhibited to 7
the full court, but the cause shall be heard on appeal upon the same 8
evidence as on the original hearing. In cases of accident or mis- 9
take, the full court may grant leave to parties to exhibit further 10
evidence, and may provide by general rules or special order for the 11
conditions under and modes by which such evidence shall be taken. 12
Interlocutory-
decree, appeal
from.
1859, 237, § 4.
G. S. 113, § 10.
P. S. 151, § 16.
1883, 223, § 2.
103 Mass. 499.
115 Mass. 119.
125 Mass. 24.
165 Mass. 1.
Section 25. A party who is aggrieved by an interlocutory 1
decree of a justice of either court may, in like manner, appeal to the 2
full court ; but the appeal shall not suspend the execution of such 3
decree, except as provided in section twenty- two, nor transfer to the 4
full court the entire cause or any matter therein except the question 5
whether the interlocutory decree appealed from shall be affirmed, 6
reversed or modified. 7
wwJm'Uzi*' Section 26. Interlocutory decrees which are not appealed from 1
p' I' is?' § 17.' snaU De open to revision upon appeals from final decrees, so far only 2
l^Mafi 28* as ** aPPears to the full court that such final decrees are erroneously 3
169 Mass! 417. affected thereby. 4
— report of, to
full court.
G. S. 113, § 12.
P. S. 151, §18.
1883, 223, § 2.
115 Mass. 119.
120 Mass. 281.
165 Mass. 1.
Section 27. If, upon making an interlocutory decree or order,
the justice is of opinion that it so affects the merits of the con-
troversy that the matter ought, before further proceedings, to be
determined by the full court, he may report the question for that
purpose, and stay all further proceedings except such as are neces-
sary to preserve the rights of the parties.
1
2
3
4
5
6
Chap. 159.] equity jurisdiction. 1393
1 Section 28. A party who has by accident or mistake omitted Petition for
J J leave to appe
1859, 237, § 10
G. S. 113, § 13.
2 to claim an appeal from a final decree within the time prescribed is59, 237, § 10.
3 therefor may, within one year after the entry of the decree from p." s.' 151,' § 19
4 which he desires to appeal, petition the fall court for leave to ap- llfMafsAt
5 peal, which may be granted upon terms
568.
1 Section 29. A justice of either court by whom a case is heard fo/f^fcmfrt.
2 for final decree may reserve and report the evidence and all ques- *f5| ^ § ^
3 tions of law therein for the consideration of the full court; and ^JK1.51'.520-
4 thereupon like proceedings shall be had as upon appeals from final ui Mass. 15b.
5 decrees.
1 Section 30. If the defendant in a suit in equity in the superior Removal of
2 court, or a person in his behalf, within thirty days after the day for ri"r coxirtsupe"
3 appearance, makes affidavit of his belief that the matter involved in 1883>223>§8-
4 the suit equals four thousand dollars in value, that his interest alone
5 or with the interest of any other defendant having a joint or common
6 interest with him equals said value and that he has a substantial
7 defence, and of his intention to bring the cause to a hearing, the
8 case, with the papers therein shall, upon his request and at his ex-
9 pense, be forthwith removed to the supreme judicial court where
10 it shall proceed as if originally commenced therein. Before such
11 removal, the superior court may make such orders for the appoint-
12 ment of receivers, and of injunction or prohibition, or for continu-
13 ing the same in force, as are necessary for the protection of the
14 rights of the parties until the case shall be heard by the supreme
15 judicial court ; subject, however, to be modified or annulled by the
16 order of that court upon motion after the case has been removed.
1 Section 31. A justice of the supreme judicial court may, if upon —for hearing
2 motion it appears that a suit in equity pending in the superior court ik^^I I!"*'
3 ought to be heard with a suit or cross suit in equity pending in the
4 supreme judicial court, order the suit to be removed at the expense
5 of the applicant from the superior court to the supreme judicial
6 court, where it shall proceed as if originally commenced therein.
1 Section 32. A justice of either of said courts shall not dissolve control of case
2 an injunction which has been issued by the other court, or by a ing^urisdic?"
3 justice thereof, or interpose in any proceeding in the equity jurisdic- igss," 223, § 12.
4 tion of the other court, except as provided in sections twenty-two,
5 thirty and thirty-one.
1 Section 33. Every order and decree shall bear date of the day Decree, etc., to
bfitir d(it)6 of
2 when it is actually entered by the clerk, and, at the time of the entry.
3 entry, he shall note such date upon the order or decree and upon g. s'. 113, § ie.
4 the docket. 1883, 223, § 2. 5 Allen, 81. p> s' 151' § 21'
1 Section 34. No process for the execution of a final decree of fnafdecree"11
2 either court shall issue until the expiration of thirty days after the J|5| ^ §§917
3 entry thereof, unless all parties against whom such decree is made r. s.' 151,' § 22.
■ 10 t 1883 223 6 2.
4 waive an appeal by a writing filed with the clerk or by causing an 138 Mass. 209.
5 entry thereof to be made on the docket.
1394:
EQUITY JURISDICTION.
[Chap. 159.
Hearing cases
pending- in an-
other county.
1826, 109, §§ 1, 2.
R. S. 81, §§ 22-
24.
G. S. 113, §§ 18-
20.
P. S. 151, §§ 23-
25.
1883, 223, § 2.
5 Allen, 81.
162 Mass. 450.
Section 35. A justice of either court or the full court may,
if necessary, hear and determine cases pending in a county other
than that in which such justice or court is sitting, or any motion
therein ; but a motion shall not be so heard nor a decree or order so
made until reasonable notice thereof has been given to the adverse
party or his counsel ; and either party may transmit his reasons in
writing for or against the application to the court or justice, who
shall examine the same and proceed thereon as if the parties were
present. All orders and decrees made on such hearings shall be
transmitted to the clerk in the proper county, and be entered by
him.
1
2
3
4
5
6
7
8
9
10
11
Jury issues.
1823, 24.
E. S. 83, § 46.
1859, 237, § 13.
G. S. 113, § 22.
P. S. 151, § 27.
1895, 116, § 1.
123 Mass. 590.
137 Mass. 492.
Section 36. The supreme judicial court, upon request of a party 1
to an equity cause pending therein, may, in its discretion, frame is- 2
sues of fact to be tried by a jury and order the same to be tried in 3
that court or in the superior court in the county in which such cause 4
is pending, or upon the request of all parties in any other county. 5
142 Mass. 161. 143 Mass. 543.
Jury may tie
summoned.
1874, 339, § 3.
P. S. 151, § 28.
Section 37. If there is no regular sitting of the supreme judi- 1
cial court within three months after the framing of such issues, a 2
justice thereof may order the clerk of the courts for the county in 3
which the cause is pending to summon a jury to try such issues, and 4
the proceedings at such trial shall be in all respects the same as in 5
a trial at a regular sitting. 6
superior168 ln Section38. The superior court may, upon request of a party to 1
court. an equity cause pending therein, frame issues of fact to be tried by 2
a jury and order them to be tried in the county in which such cause 3
is pending. 4
Sd^x'ecution1! Section 39. The courts may issue writs of seisin and execution 1
K-gS.74, §12; jn common form if such process is appropriate for the enforcement 2
g. 's. 113, § 23. of a decree in equity. p. s. i5i, § 29. 1883, 223, § 2. 106 Mass. 500. 3
Sttin^n^os- Section 40. A justice of the supreme judicial court and a jus- 1
1859 196 50 ^ce °^ ^e suPeri°r court shall, at all convenient times, sit in Boston 2
g. s. ii3, § 24. for the purpose of hearing and determining suits in equity arising in 3
any county. 4
P. S. 151, § 30.
Hearings at
chambers for
western coun-
ties.
1874, 339, § 1.
P. S. 151, § 31.
Section 41. A justice of the supreme judicial court shall sit at 1
Springfield, on the first Monday of February, June, August and 2
December, for the purpose of hearing such matters in equity as may 3
be heard and determined at chambers, which arise in the counties 4
of Berkshire, Franklin, Hampshire and Hampden. 5
Taking papers
from files.
1859, 196, § 50.
G. S. 113, § 25.
P. S. 151, § 32.
1883, 223, § 2.
Section 42. The original papers in a suit in equity pending in 1
either court may be taken from the files in any county by the counsel 2
of record of either party, for use before the court, upon leaving a 3
memorandum and receipt on such files, containing a short descrip- 4
tion of the papers so taken. 5
Chap. 160.] police, district and municipal courts. 1395
CHAPTEE 160.
OF POLICE, DISTRICT AND MUNICIPAL COURTS.
Sections 1-5. — Police, District and Municipal Courts.
Sections 6-17. — 'Justices and Clerks.
Sections 18-23. — Civil Jurisdiction.
Sections 24-38. — Criminal Jurisdiction.
Sections 39-48. — Sessions and Proceedings.
Sections 49-54. — Municipal Courts.
Sections 55-61. — Municipal Court of the City of Boston.
Sections 62-66. — Constables and Court Officers
Sections 67-71. — Salaries.
POLICE, DISTRICT AND MUNICIPAL COURTS.
1
Section 1. The cities and towns of Chicopee, Fitchburg, Hoi- |^3<^c«u1rts-
2 yoke, Lawrence, Lee, Lowell, Lynn, Marlborough, Newton, Somer- R- s. 87, § 29.
3 ville and Williamstown shall each continue to be a judicial district im, 86, '§ 1. '
4 under the jurisdiction of the police court thereof. fif'Ji',1 l312'
G. S. 116, § 1. 1871, 173, § 1. 1876, 195, § 1. 1882, 233, § 3.
1868, 124, § 1. 1872, 233, § 1. P. S. 154, § 1. 1893, 396, § 69.
1 Section 2. The judicial districts of the remaining police courts poitceand dis-
2 and of the several district courts shall continue to comprise the fol- p7s.ci54*§2.
3 lowing cities and towns, respectively: — 1893, 396, § 69.
4 The police court of Brockton, held at Brockton ; Brockton, Bridge- Brockton.
5 water, East Bridge water and West Bridge water. \f7^ l§6, § L
1885, 155, § 1. 1887, 322.
6 The police court of Chelsea, held at Chelsea ; Chelsea and Revere, cheisea.
G. S. 116, § 1. 1874, 201, § 1. 1855> 26> § L
7 The police court of Newburyport, held at Newburyport ; New- Newburyport.
8 buryport and Newbury. g. s. 116, §1. 1379,234, §5. rs^'M'.
9 The police court of Springfield, held at Springfield ; Springfield, springneia.
10 Agawam, Longmeadow, East Longmeadow, Hampden, "West Spring- g. s. n'e, § 1.
11 field and Wilbraham. 1S74, iso, §2. 1878, 88, §7.
12 The first district court of Barnstable, held at Barnstable and f^*eBarn"
13 Bourne; Barnstable, Bourne, Yarmouth, Sandwich, Falmouth and isso, 177, §1.
14 Mashpee.
15 The second district court of Barnstable, held at Harwich and ftkwe1 Barn-
16 Provincetown ; Provincetown, Truro, Wellfleet, Eastham, Orleans, 1890, 177, §2.
17 Brewster, Chatham, Harwich and Dennis.
18 The district court of central Berkshire, held at Pittsfield ; Pitts- central Berk.
19 field, Hancock, Lanesborough, Peru, Hinsdale, Dalton, Washing- l^ofho, § 1.
20 ton and Richmond. i869,4i6,§i. lssi, 105. g. s. lie, §1.
21 The district court of northern Berkshire, held at North Adams ; Northern
22 North Adams, Clarksburg and Florida. S^w'l'i.
G. S. 116, § 1. 1870, 201, § 1. 1878, 143 § 6.
23 The district court of southern Berkshire, held at Great Barring- southern
24 ton ; Sheffield, Great Barrington, Egremont, Alford, Mount Wash- f^ffi'i.
25 ington, Monterey and New Marlborough.
26 The fourth district court of Berkshire, held at Adams ; Adams, Fourth
27 Cheshire, Savoy and Windsor. ia»,i7e,§i. Berkshire. ;
1396
POLICE, DISTRICT AND MUNICIPAL COURTS. [CHAP. 160.
First Bristol.
1858, 84, § 1.
G. S. 116, § 1.
1874, 293, § 1.
1877, 189.
Second Bristol.
185-2, 304, § 1.
G. S. 116, § 1.
Third Bristol.
1834, 33.
G. S. 116, § 1.
1878, 152.
Dukes County.
1898, 287, § 1.
First Essex.
1874, 224, § 1.
Second Essex.
1888, 193, § 1.
Central north-
ern Essex.
1854, 34, § 1.
Eastern Essex.
1858, 136, § 1.
G. S. 116, § 1.
Franklin.
1896, 353, § 1.
Eastern
Franklin.
1899, 391, § 1.
Eastern
Hampden.
1872, 277, § 1.
Western
Hampden.
1886, 190, §§ 1, 3.
Hampshire.
1882, 227, §§1,3.
Central
Middlesex.
1874, 315, § 1.
First northern
Middlesex.
1872, 269, § 1.
First eastern
Middlesex.
1874, 392, § 1.
1893, 350.
Second eastern
Middlesex.
1881, 128, § 1.
Third eastern
Middlesex.
1854, 335, § 1.
Fourth eastern
Middlesex.
1882, 233, § 2.
1888, 59.
1889, 312.
First southern
Middlesex.
1874, 35, § 1.
1881, 223.
1882, 169.
The first district court of Bristol, held at Taunton and Attlebor-
ough ; Taunton, Rehoboth, Berkley, Dighton, Seekonk, Attlebor-
ough, Norton, Mansfield, Easton, Raynham and North Attleborough.
28
29
30
The second district court of Bristol, held at Fall River; Fall 31
32
33
34
35
36
River, Freetown, Somerset and Swansea. 1874,293, §1.
The third district court of Bristol, held at New Bedford ; New
Bedford, Fairhaven, Acushnet, Dartmouth and Westport. 1874, 293, §1.
The second and third district courts of Bristol shall have con-
current jurisdiction in Westport and Freetown.
The district court of Dukes County, held at Cottage City, Edgar- 37
town and Tisbury; Edgartown, Cottage City, Tisbury, West Tis- 38
bury, Chilmark, Gay Head and Gosnold. 39
The first district court of Essex, held at Salem ; Salem, Beverly, 40
Dan vers, Hamilton, Middleton, Topsfield and Wenham. 41
The second district court of Essex, held at Amesbury ; Ames- 42
bury and Merrimac. 43
The central district court of northern Essex, held at Haverhill ; 44
Haverhill, Groveland, Georgetown and Boxford. 45
G. S. 116, § 1.
1861, 207, § 1.
1866, 296.
1867, 316.
1896, 365.
1899, 255.
The district court of eastern Essex, held at Gloucester ; Glouces- 46
ter, Rockport and Essex. p.s.i54,§i. 1888,249. 1897,403. 1900,400. 47
The district court of Franklin, held at Greenfield, at Turner's Falls 48
in the town of Montague, and at Shelburne Falls in the towns of 49
Shelburne and Buckland ; the county of Franklin except the towns 50
of Orange, Erving, Warwick, Wendell and New Salem. 51
The district court of eastern Franklin, held at Orange; Orange, 52
Erving, Warwick, Wendell and New Salem. 53
The district court of eastern Hampden, held at Palmer; Palmer, 54
Brimfield, Monson, Holland and Wales. 1874, 180, §1. 55
The district court of western Hampden, held at Westfield and 56
Chester ; Westfield, Chester, Granville, Southwick, Russell, Bland- 57
ford, Tolland and Montgomery. 58
The district court of Hampshire, held at Northampton, Amherst, 59
Cummington, Belchertown, Huntington, Ware and Easthampton ; 60
the county of Hampshire. 61
The district court of central Middlesex, held at Concord ; Acton, 62
Bedford, Carlisle, Concord, Lincoln, Maynard, Stow and Lexington. 63
The first district court of northern Middlesex, held at Ayer ; 64
Ayer, Groton, Pepperell, Townsend, Ashby, Shirley, Westford, 65
Littleton and Boxborougrh. QQ
The first district court of eastern Middlesex, held at Maiden ; 67
North Reading, Wakefield, Melrose, Maiden, Everett and Med- 68
ford. 69
The second district court of eastern Middlesex, held at Waltham ; 70
Watertown, Weston and Waltham. 71
The third district court of eastern Middlesex, held at Cambridge ; 72
Cambridge, Arlington and Belmont. 73
G. S. 116, § 1. P. S. 154, § 1. 1882, 233, § 1.
The fourth district court of eastern Middlesex, held at Woburn ; 74
Woburn, Winchester, Burlington, Wilmington, Stoneham and 75
Reading. is98, 250. 76
The first district court of southern Middlesex, held at Framing- 77
ham ; Ashland, Framingham, Holliston, Sherborn, Sudbury and 78
Way land. 79
Chap. 160.] police, district and municipal courts. 1397
80 The district court of northern Norfolk, held at Dedham ; Dedham, Northern
81 Hyde Park, Dover, Norwood, Westwood, Medfield, Needham and im*°m.
82 Wellesley.
83 The district court of East Norfolk, held at Quincy ; Eandolph, East Norfolk.
84 Braintree, Cohasset, Weymouth, Quincy, Holbrook and Milton. mb',e.
85 The district court of southern Norfolk, held at Stoughton and lo^f™
86 Canton; Stoughton, Canton, Avon and Sharon. ism, 273; §§ i, 3.
87 The district court of western Norfolk, held at Franklin and Wal- S*,rkn
£8 pole ; Bellingham, Foxborough, Franklin, Med way, Millis, Norfolk, isss, 497', § 1.
89 Walpole and Wrentham.
90 The second district court of Plymouth, held at Abington and ^oduth
91 Hino-ham; Abington, Whitman, Rockland, Hingham, Hull, Han- J874, 350, §'1.
^ • o7 ' " o " " 1875 36 § 10.
92 over, Scituate, Norwell and Hanson. 1879', us, § 3'.
93 The third district court of Plymouth, held at Plymouth ; Plymouth, Third
94 Kingston, Plympton, Pembroke, Duxbury and Marshfield. i874™°50, §'1.
95 The fourth district court of Plymouth, held at Middleborough and f0^8' § 4'
96 Wareham ; Middleborough, Wareham, Lakeville, Marion, Mattapoi- P£mouth-
97 sett and Rochester. i88o|8o.'
98 The East Boston district court, held at East Boston; Winthrop East Boston.
99 and the district and territory included in wards one and two of 1I77; lSl § 14'
100 the city of Boston as such wards existed on the first day of March ill^ ilf § 2.
101 in the year eighteen hundred and eighty-six.
102 The central district court of Worcester, held at Worcester ; central
103 Worcester, Millbury, Sutton, Auburn, Leicester, Paxton, West i87°2™i99,e§i-
104 Boylston, Holden and Shrewsbury.
105 The first district court of northern Worcester, held at Athol and First northern
106 Gardner; Athol, Petersham, Phillipston, Royalston, Temple ton, 1884,215, §1.
107 Gardner and Hubbardston.
108 The first district court of eastern Worcester, held at Westborough First eastern
109 and Grafton; Southborough, Westborough and Grafton. istCIwo, § 1.
110 The second district court of eastern Worcester, held at Clinton; second eastern
111 Clinton, Berlin, Bolton, Boylston, Harvard, Lancaster, North- i87M37,e§'i-
112 borough and Sterling. wt,m. 1896,m
113 The first district court of southern Worcester, held at Southbridge First southern
114 and Webster ; Sturbridge, Southbridge, Charlton, Dudley, Oxford i87°i!C39i,e§i .
115 and Webster.
116 The second district court of southern Worcester, held at Black- second south-
117 stone and Uxbridge ; Blackstone, Uxbridge, Douglas and North- 1872, 201, § 1.
118 bridge.
119 The third district court of southern Worcester, held at Milford ; worcUterthern
120 Milford, Mendon, Upton and Hopedale. G.s.ii6,§i. i872,i52,§i. is54,6o,§i.
1 Section 3. No police court shall hereafter be established in a Police courts,
less than ten thousand inhabitants.
G. S. 116, § 2. P. S. 154, § 3.
2 town which has less than ten thousand inhabitants. be established.
1 Section 4. The judicial districts of the . municipal courts of courts1?* *
2 Boston shall continue as heretofore provided by law, and shall, g°f^
3 respectively, embrace the districts and territory included in the i86<|79, §1.
4 following named wards of said city as such wards existed on the first ms, 286, § 4.
5 day of February in the year eighteen hundred and eighty-two : — i875!24M4."
6 The municipal court, ¥!%.utffk
7 Of the city of Boston ; wards six, seven, eight, nine, ten, eleven, 154 Mass. 128.
8 twelve, sixteen, seventeen and eighteen :
1398 POLICE, DISTRICT AND MUNICIPAL COURTS. [CHAP. 160.
Of the Charlestown district ; wards three, four and five : 9
Of the South Boston district ; wards thirteen, fourteen and fifteen : 10
Of the Koxbury district ; wards nineteen, twenty, twenty-one and 11
twenty-two : 12
Of the Brighton district ; ward twenty-five : 13
Of the "West Roxbury district ; ward twenty-three : 14
Of the Dorchester district ; ward twenty-four. 15
courto? Brook. Section 5. The town of Brookline shall continue to be a judi- 1
line. cial district under the jurisdiction of the municipal court thereof. 2
1882, 233, § 4. 1898, 214.
JUSTICES AND CLERKS.
cwrrts^To^be* Section 6. Police, district and municipal courts shall be courts 1
courts of of record, and, except the municipal court of the city of Boston, shall .2
r. s. si, §30.' consist of one justice and two special justices. Each of said courts 3
-loco fTO g Q v A *'
i855|27o!§5! shall have a seal, which shall be in the custody of its clerk, or of 4
2^; ' ss ' the justice if it has no clerk, and which shall be affixed to all proc- 5
!o.S"154'-§§4' esses issued by said courts which require a seal. 6
1893, 396, §§ 2, 58. 3 Cush. 584. 168 Mass. 234.
13 Met. 251. 134 Mass. 313. 172 Mass. 430.
«o™o? oaths Section 7. Justices and special justices of said courts may, 1
g 1" Po§«349 m or 0U^ °^ C0ur^» administer oaths in all cases in which an oath 2
p.' s." 154,' § u; is required, unless otherwise expressly provided. 3
155, § 2.
1893, 396, § 60. 145 Mass. 225.
contempts^ Section 8. They may punish such disorderly conduct as inter- 1
g. 8.120, §50. rupts any judicial proceedings before them or is a contempt of their 2
155, §68.' ' authority or persons, by a fine of not more than fifty dollars or by 3
2 Gray, 123. ' imprisonment in jail for not more than fifteen days ; and processes 4
issued in such cases may be served by any officer qualified to serve 5
criminal process. 6
Cotntmen^'and Section 9. Clerks of police, district and municipal courts 1
termre. shall, except as provided in the three following sections, be ap- 2
r. s. 87,' § 18. pointed by the governor, with the advice and consent of the council, 3
1866,' 169.' *' for the term of five years. 4
1877, 210, § 1. P. S. 154, §§ 5, 58. 1893, 396, § 3.
Justice to act
or appoint.
Section 10. The justice of a police or district court for which 1
1854' 335' !i2 no cleI"k is required by law shall keep a record of its proceedings 2
g. s'. U6, §§ 5, and perform all other duties of a clerk, or he may appoint a clerk, 3
p." s. 154, §§ 6, who shall be paid by him, for whose official acts he shall be re- 4
1893, 396, §§ 4, 8. sponsible and who shall hold his office during the pleasure of such 5
9 Gray, 4. justiCe. &
o\Pas0sista1nete! Section 11. The clerk of a police, district or municipal court 1
r2s 8°7%\ 23 maJ' suDJect to the approval of the justice, from time to time ap- 2
g' s ill point one or more assistant clerks, who shall be removable at his 3
1874,' 36, §§ ii, pleasure or at the pleasure of the court, for whose official acts the 4
1876,227, §3. clerk shall be responsible and who shall be paid by him unless 5
lm^m'JI' they receive salaries which may be allowed and fixed by law. 6
111 Mass. 420, 422, 153 Mass. 159.
Chap. 160.] police, district and municipal courts. 1399
1 Section 12. In case of the absence, death or removal of a clerk ^mporef0
2 of a police, district or municipal court, the court may appoint a g- 1- ^'A1?/
3 clerk pro tempore, who shall act until the clerk resumes his duties p.' s.' 154,' § 8.'
4 or until the vacancy is filled.
16 Gray, 88. 9 Allen, 488. 153 Mass. 211.
1 Section 13. The clerks, assistant clerks and clerks pro tempore cierkstobe
2 of said courts shall be sworn. They or one of them shall attend all record's, etc!
3 sessions of the court, unless otherwise expressly provided, and shall illl; i29' § 5"
4 keep a record of all its proceedings. If the office of clerk is estab- ^- f:87> §§ 19>
5 lished by law, the clerk may make and issue warrants, writs and 1II5' Po' 1 1"-
6 processes, shall make all returns of the court, tax all bills of costs and 321, '§§*,' 5. '
7 receive all fines, forfeitures, fees and costs accruing from the business isstI 264' § 3.
8 of the court in civil and criminal cases, including fees for blanks and 23', 28. '
9 Copies. P. S. 154, §§ 9, 33. 1893, 396, § 8. 153 Mass. 218.
1 Section 14. Justices of police, district and municipal courts office hours of
2 shall prescribe reasonable daily office hours for the clerks of their 1893, 396, § 8.
3 respective courts during which the offices of the clerks shall be re- 1900' 281"
4 quired to be open. Such hours shall be fixed with reference to the
5 business of said courts and with reference to the convenience of the
6 public and of attorneys. The office hours as fixed shall be posted
7 in a conspicuous place in each of said offices, and shall be set forth
8 in the printed rules of said courts. Clerks shall also keep their
9 offices open whenever the court so orders.
1 Section 15. The clerk of any of said courts or, if no clerk is Bondofcierk
2 required by law, the justice, before entering upon the performance l^io^i 5.
3 of his official duties, shall give bond in the sum of one thousand k.2|.87, §19.
4 dollars to the treasurer of the county, with sufficient sureties to be J|5| 3u*j § 4g-
5 approved by a justice of the superior court, conditioned to account if"*. ^VH'a
6 for and pay over as and when required by law all fines, forfeitures, i893,"396,'§7. '
7 fees and other money received by him in the exercise of his office.
8 A failure so to account or pay over shall be a breach of the con-
9 dition of his bond, and a failure to give such bond shall be a suffi-
10 cient cause for his removal from office.
1 Section 16. A justice, clerk or assistant clerk of any of said e£8tinottoeact
2 courts shall not be retained or employed as attorney in an action, as attorney.
3 complaint or proceeding pending in his court, or which has been isai) 109, § 5.
4 examined or tried therein ; and a special iustice shall not be so 44. ' '
5 retained or employed in any case in which he acts or has acted as 1357; 264', § 4. '
6 justice. G. S. 116, §9. P. S. 154, §10. 1893, 396, § 10.
1 Section 17. A iustice, special iustice acting in the place of the —nor to
• . i receive ad
2 justice, clerk or assistant clerk of any of said courts shall not ditionai tees,
3 receive any fee or compensation to his own use, other than his 1852,159.
4 regular salary or allowance, for making complaints or issuing in G?t\\°i36',§§34.
5 any capacity warrants, subpoenas or other criminal processes which ifj-7,' oj^' §§ 2' T"
6 he is authorized by law to issue, or for any official services per- p. s. 154, §§65,
7 formed by him in court. A clerk or assistant clerk shall not receive, 1893, 396, § 11.
8 in addition to his salary, any fee or compensation for making out
9 bail papers, or for admitting a prisoner to bail while the court is in
10 session or during the hours when his office is required to be open.
1400
POLICE, DISTRICT AND MUNICIPAL COURTS. [CHAP. 160.
ill,
Original exclu-
sive jurisdic-
tion.
1821, 109.
R. S. 87, <
34.
1352, 46.
1S57, 51.
G. S. 116, §§ 10,
18.
1877, 210, § 4.
P. S. 154, § 11;
155, § 12,
1893, 396, § 12.
1894, 431.
CIVIL JURISDICTION.
Section 18. Police, district and municipal courts shall have 1
original jurisdiction, exclusive of the superior court, of actions of 2
contract, tort or replevin, in which the debt or damages demanded 3
or the value of the property alleged to be detained does not exceed 4
one hundred dollars ; of actions of replevin for beasts distrained or 5
impounded in order to recover a penalty or forfeiture supposed to 6
have been incurred by their going at large, or to obtain satisfaction 7
for damages alleged to have been done by them ; and of summary 8
process under the provisions of chapter one hundred and eighty-one. 9
Original and
concurrent
jurisdiction.
1871, 144.
1877, 210, § 4.
P. S. 154, §11;
155, § 13.
1893, 396, § 12.
1894, 431.
164 Mass. 145.
Section 19. Police, district and municipal courts, except the 1
municipal court of the city of Boston, shall have original and con- 2
current jurisdiction with the superior court of actions of contract, 3
tort or replevin in which the debt or damages demanded or the value 4
of the property alleged to be detained is more than one hundred and 5
does not exceed one thousand dollars ; and of petitions to enforce 6
liens under the provisions of chapter one hundred and ninety-seven, 7
if the amount of the claim does not exceed one thousand dollars. 8
Jurisdiction
exclusive in
district, when.
K. S. 87, § 34.
G. S. 116, § 18.
P. S. 151, § 13.
1893, 39G, § 13.
1894, 398, § 1.
lfil Mass. 440.
164 Mass. 144.
Section 20. The jurisdiction of a police, district or municipal 1
court shall exclude the jurisdiction of a trial justice, if any of the 2
parties lives or has his usual place of business in its district or if, 3
in an action of summary process under the provisions of chapter 4
one hundred and eighty-one, the land in controversy is situated in 5
its district. 6
Scire facias
against bail.
1753-4, 18, § 3.
1783, 32, § 9; 42,
§4-
1803, 132, § 1.
R. S. 85, § 16.
G. S. 120, § 3.
Section 21. Said courts may issue writs of scire facias against
executors and administrators upon a suggestion of waste after a
judgment against them and also against bail taken in a civil action
before them, and proceed to judgment and execution as the superior
court might do in like cases.
P. S. 154, §11; 155, §14.
1
2
3
4
5
1893, 396, § 14.
1S94, 431.
TOchrwrUs°£ Section 22. Such writs shall be served not less than seven days 1
r°I 85%§i7 before the return day, which shall be not more than sixty days after 2
g. s. 120, § 4. the date thereof, and they may run into any county in which the 3
defendant may be found. 4
P. S. 154, §11; 155, §15.
1893, 396, § 15.
1894, 431.
Limit of juris-
diction in such
cass.
1803, 132, § 1.
R. S. 85, § 18.
G. S. 120, § 5.
P. S. 154, § 11;
155, § 16.
1893, 396, § 16.
1894, 431.
Section 23. Said courts shall have jurisdiction of actions upon 1
such writs although the debt and costs on the original judgment 2
together exceed one thousand dollars or, in the municipal court of 3
the city of Boston , exceed two thousand dollars ; and judgment and 4
execution may be awarded by the court for the whole amount due 5
to the plaintiff with costs of the new action. 6
CRIMINAL JURISDICTION.
Criminal
jurisdiction.
1821, 109.
P. S. 87, §§ 3, 32.
1848, 331, § 4.
1854, 277, § 2.
1855, 448, § 1.
Section 24. Police, district and municipal courts shall have 1
original jurisdiction, concurrent with the superior court, of misde- 2
meanors committed within their respective counties, except conspir- 3
acies and libels, and unless otherwise expressly provided, they 4
Chap. 160.] police, district and municipal courts. 1401
5 may impose the same penalties as the superior court in like cases, isss, 45, §1.
6 Their jurisdiction of crimes committed in their respective judicial ri s' 116' §§ 12,
7 districts shall, except as provided in section forty-six of chapter Jiff; ia| 1 1
8 two hundred and eighteen, exclude the jurisdiction of other police, ^'|o1&i'§§17'
9 district and municipal courts and trial justices. JoSH2,2,
1893, 396, § 34.
1894, 431. 144 Mass. 170. 151 Mass. 62.
138 Mass. 489. 150 Mass. 63. 156 Mass. 489.
1 Section 25. They shall have jurisdiction, as aforesaid, of fel- j^n^B by1 0l
2 onies which are not punishable by death or imprisonment for life Juvenile
m~ %/ j. offenders
3 committed by juvenile offenders under seventeen years of ag-e ; and, 1872,358. '
4 upon their conviction may sentence them to any punishment author- isso! 183!
5 ized by law for such crime, except imprisonment in the state prison, 155, §49.' '
6 or may commit them to any institution established by law for the ifgf; f^; § 35,
7 reformation of juvenile offenders, or may bind them over for trial in m Mass- 4m-
8 the superior court.
1 Section 26. They shall have jurisdiction, as aforesaid, of the — ofassarJt
2 crime of assault and battery ; including assault and battery with a 1692-3*18?? 6.
3 weapon dangerous to life if no intent to commit a felony is shown, 3794) lei 1 2]
4 unless it is committed in the commission or attempted commis- Isf;^^2!4'
5 sion of a felony, or unless the person assaulted is maimed or his j|5|> ^'A2-
6 life is endangered; and, upon conviction of the defendant, may g. ■&• n^> § 13-
7 punish him by a fine of not more than one hundred dollars or bv p- 8- 154> § ls-
• 1887 293 6 1
8 imprisonment for not more than one year. If the defendant is a 1393' 396', § 36.
9 female above the age of seventeen years, the imprisonment may be lllli 21I.'
10 in the reformatory prison for women for one year. ill will'. I49"
150 Mass. 502. 165 Mass. 447.
1 Section 27. They shall have jurisdiction, as aforesaid, of the —of breaches
2 crime of disturbing the peace to the great damage and common lW-faslTe.
3 nuisance of persons in the place in which the disturbance occurs ; 1794; 26, 1 2!
4 of affrays and riots ; of going armed offensively to the terror of the i854,'38258.§ U'
5 people ; of uttering menaces or threatening speeches and of being ^f'^l0' § 38,
6 a dangerous and disorderly person; and, upon conviction of the p7!1^' sn-
7 defendant, may punish him by a fine of not more than fifty dollars 155, § 46.'
• • 1893 396 § 37
8 or by imprisonment for not more than six months. i894| 431!
1 Section 28. They shall have jurisdiction, as aforesaid, of the — ofiar-
2 crime of larceny ; of fraudulently obtaining property by any game, r. s.iae, §23.
3 device, sleight of hand or pretended fortune telling or by any trick Hsfu.5' §2,
4 or other means by the use of cards or other implements or instru- ofs'.^iM7 il.1"
5 ments ; and of buying, receiving or aiding in the concealment of ^gf/^'lsl;
6 stolen property, if the property alleged to have been stolen or to Jg9^!^- 552
7 have been so obtained, bought, received, or the concealment of
8 which is so aided, is not alleged to exceed the value of one hundred
9 dollars ; and may punish persons found guilty of any of said crimes
10 by a fine of not more than one hundred dollars or by imprison-
11 ment for not more than two years.
1 Section 29. They shall have jurisdiction, as aforesaid, of the —of indecent
2 crime of indecent exposure of the person ; of the violation of the 1846, 52, §'1.
f1 SI 1('1 K 81
3 provisions of section one hundred and sixteen of chapter two hundred p; s.' 203,' § 103.
4 and eight, if the value of the property destroyed or the amount of ilii; liwll^'.2*
5 the injury done is not alleged to exceed one hundred dollars ; of 1894> 43L
1402
POLICE, DISTRICT AND MUNICIPAL COURTS. [CHAP. 160.
1897, 180.
Ill Mass. 427.
157 Mass. 14.
165 Mass. 594.
nuisances at common law ; of the common law crime of keeping and
maintaining a common, ill-governed and disorderly house ; and,
upon conviction of the defendant, may punish him by a fine of not
more than one hundred dollars or by imprisonment for not more
than one year ; but if the value of the property so destroyed or in-
jured or the amount of injury done is not alleged to exceed fifteen
dollars, the fine shall not exceed fifteen dollars or the imprisonment
exceed thirty days.
6
8
9
10
11
12
13
Jurisdiction
of violation
of milk and
dairy laws.
1885, 149.
1897, 349.
Section 30. They shall have jurisdiction, as aforesaid, of viola- 1
tions of the laws relative to inspection and sale of milk or of dairy 2
products and imitations thereof, and may impose the same penalties 3
as the superior court in like cases. 4
— of violation
of city and
town by-laws,
etc.
1801, 62.
R. S. 15, § 13.
1849, 211, § 7.
G. S. 120, § 40.
Section 31. They shall have jurisdiction, as aforesaid, of the 1
violation of city and town by-laws, orders and ordinances, and of 2
the violation of the laws and regulations relative to the public health 3
and of complaints for defective highways. 4
1876, 227, § 1.
P. S. 154, §§ 11, 20; 155, § 48.
1893, 396, § 40.
1894, 431.
Recognizance
to keep the
peace, etc.
R. S. 85, § 25.
G. S. 120, § 39.
P. S. 154, §11;
155, § 47.
1893, 396, § 41.
1894, 431.
Section 32. They may require persons who are found guilty of 1
any crime within their final jurisdiction, except a crime named in the 2
preceding section, in addition to the punishment prescribed bylaw, 3
to recognize with sureties, in a reasonable sum, to keep the peace 4
or be of good behavior, or both, for not more than one year, and 5
to stand committed until they so recognize. The provisions of sec- 6
tions thirteen, sixteen and seventeen of chapter two hundred and 7
sixteen shall apply te recognizances so taken. 8
Complaints,
warrants, com-
mitments, etc.
R. S. 87, § 33.
1858, 138, § 1.
G. S. 120, §§ 32,
36.
1877, 211, § 4.
P. S. 154, § 11;
155, §§ 43, 44.
1893, 396, § 42.
1894, 431.
165 Mass. 144.
Section 33. They may receive complaints and issue warrants 1
and other processes for the apprehension of persons charged with 2
crime and found within their county, or who after committing crime 3
therein escape therefrom, returnable before a court or trial justice of 4
the county having jurisdiction of the trial or examination of the 5
person charged with the crime. They shall commit or bind over for 6
trial in the superior court persons brought before them who appear 7
to be guilty of crimes which are not within their final jurisdiction. 8
Final jurisdic-
tion may be
declined.
1S53, 196, § 2.
1855, 448, § 2.
1857, 157, § 2.
G. S. 116, § 15.
Section 34. In any criminal case of which they have final 1
jurisdiction, they may in their discretion commit or bind over the 2
defendant for trial in the superior court, if he appears to be guilty 3
of the crime charged . p. s. 154, § 21. is93, 396, § 42. 116 Mass. 349. 4
General
powers of jus-
tices and spe-
cial justices.
1852, 94, § 25.
1855, 312, § 5.
G. S. 116, § 16.
P. S. 154, § 22.
1893, 396, § 43.
Section 35. Justices and special justices of said courts may 1
at any time receive complaints and issue warrants and search war- 2
rants, under their own hands and seals, returnable before a court 3
or trial justice having jurisdiction of the trial or examination of the 4
person charged with the crime. 5
Clerk may
receive com-
plaints, etc.
1858, 138, § 1.
G. S. 120, § 36.
1877, 211, § 1.
P. S. 155, § 6.
1893, 396, § 44.
1894, 431.
Section 36. The clerk of a police, district or municipal court, 1
if his office is created by law, may receive complaints, administer to 2
complainants the oath required thereto, and issue warrants, search 3
warrants and summonses, returnable as required when such processes 4
are issued by said courts. 153 Mass-. m>.- 5
Chap. 160.] police, district and municipal courts. 1403
1 . Section 37. Said courts may dispense with the issuing of a warrant dis-
2 warrant if the person charged with a crime has been arrested with- when. wl '
3 out a warrant and has been brought before the court or admitted to 1394; 431! '
4 bail ; but in such case, the officer who makes the arrest shall indorse
5 upon the complaint a statement of his doings.
1 Section 38. Warrants and other criminal processes may be warrants, etc.,
2 directed to and served by a court officer or to and by a constable or anTservedfetc.
3 police officer of any city or town in the county in which the court gPLum^.
4 by which they are issued has jurisdiction, or to and by any officer p87|^ §§28)
5 qualified to serve criminal process in any county. Said courts, |i. ''
6 iustices, special iustices and clerks may issue summonses or other 1886)247!
7 processes for witnesses in criminal cases, to run throughout the 1894)431!
8 commonwealth and to be served by the sheriff, his deputy, or by a ill Mass! 210!
9 constable or police officer, in his own county, city or town, or in any
10 other county, city or town, in which any witness may be found.
SESSIONS AND PROCEEDINGS.
1 Section 39. Police, district and municipal courts shall always sessions of
court
2 be open and business may be transacted at any time, except as pro- r. s. 87, §§42,
3 vided in section five of chapter one hundred and sixty-six. Sittings g.'s. 116, §20.
4 of the courts shall be held in the court houses or other places pro- HH] lf5[
5 vided therefor by the county, at the times and in the cities and issi'MtiH'
6 towns established by law ; but if the times are not established by 1^97! 431!
7 law they shall be fixed by the courts by general rule. Sittings may 123 Mass. 411.
. . «/o o J j3g Mass 61
8 be adjourned from time to time as occasion requires, and cases, 152 Mass! 566.
9 civil or criminal, may be continued to any future day fixed for the
10 sitting of the court, and, except as provided in section fifty-five of
11 chapter one hundred, complaints in criminal cases may be placed
12 on file.
1 Section 40. The justices and clerks of police, district and mu- Books and
2 nicipal courts, except the municipal court of the city of Boston, may a^nl', § 21.
3 procure all law books relating to the laws of the commonwealth, p6s. 154, § 24..
4 including the reports of the supreme judicial court, the Massachu- \^> |^- § u
5 setts digests, all blank books, blanks, stationery and other inci- i||i> |^'
6 dentals which may be required by said courts. The expenses 1897,' 245!
7 thereof shall be certified by the justices monthly, and shall be trans-
8 mitted to the county commissioners who shall audit the bills therefor
9 and order payment thereof by the county.
1 Section 41. Police, district and municipal courts, except the courts, by
2 municipal court of the city of Boston, shall be held by the respec- r. sn87,e§ 31.
3 tive justices thereof; and, upon request of the justice, either special J^; l^io';
4 justice may hold the court and perform the duties of the justice, or \^f^ §8<
5 hold a second or third session thereof, and two or more simultane- jf^'fg S2.
6 ous sessions may be held. In case of a vacancy in the office of 294, §2.'
7 iustice, and in case of the illness, absence or other disability of p! s! 154,' § 25!
8 the justice, the special justice who holds the senior commission shall, 1893! 396) § 55.
9 if no request has been made as aforesaid, have the powers and i4CGrayf it', is,
10 perform the duties of the justice. When a special justice holds the 79Anen, 349.
11 court or a session thereof or an inquest, or certifies a bill of costs to ^ $Ja8's •&£■
\ I,-. i> i • 143 Mass. 18/.
12 a county, city or town treasurer, tiiat fact, and the tact which gave 151 Mass. 380.
L/
1404
POLICE, DISTRICT AND MUNICIPAL COURTS. [CHAP. 160.
155 Mass. 134.
15S Mass. 168.
him jurisdiction, shall be entered upon the general records of the 13
court, but need not be stated in the record of the case heard by him. 14
Trial before
standing and
special jus-
tices.
1894, 173, § 1.
1896, 220.
Section 42. If all the parties to an action in a police, district 1
or municipal court, except in the municipal court of the city of Bos- 2
ton, file a written waiver of the right of appeal, they may, upon de- 3
mand, have the action tried before the justice and special justices 4
sitting together ; and there shall be no right of appeal from a judg- 5
ment of such justices or of a majority thereof sitting together. 6
Adjournment.
1884, 188.
1893, 396, § 56.
Section 43. If no justice or special justice is present at the 1
time and place appointed for holding a session of a police, district 2
or municipal court, the sheriff or any of his deputies or the clerk 3
may adjourn the court from day to day or from time to time, giv- 4
ing notice thereof as circumstances may require. 5
Interchange
of services.
1885, 132.
1893, 396, § 63.
Rules.
G. S. 116, § 23.
P. S. 154, § 27.
1890, 359.
1893, 396, § 59.
Section 44. Justices of police, district or municipal courts, ex- 1
cept the municipal court of the city of Boston, may perform each 2
other's duties when they find it necessary or convenient. 3
Section 45. The justices, or a majority of them, of the several 1
police, district and municipal courts, except the municipal court of 2
the city of Boston, shall from time to time make and promulgate 3
uniform rules regulating the time for the entry of writs, processes 4
and appearances, the filing of answers and for holding trials in civil 5
actions, and the practice and manner of conducting business in cases 6
which are not expressly provided for by law, and shall submit a copy 7
thereof to the superior court or a justice thereof, for approval, 8
amendment or alteration. 9
Processes to be
under seal,
bear teste, etc.
1822, 12.
R. S. 87, § 12.
1855, 270, §5;
42S, § 7.
1857, 264, § 8.
O. S. 116, § 26.
P. S. 154, § 30.
1888, 415.
1893, 396, § 64.
13 Gray, 74.
Section 46. Processes issuing from such of said courts as have 1
a clerk shall be under the seal of the court, signed by the clerk or an 2
assistant clerk, and shall bear teste of the justice, or, in the muni- 3
cipal court of the city of Boston, the chief justice, unless he is a 4
party or unless his office is vacant, and in such cases, they shall 5
bear teste of the special justice who holds the senior commission or 6
the senior associate justice. 7
14 Gray, 19. 135 Mass. 519. 145 Mass. 118. 158 Mass. 168.
i877,°2ii!T5- Section 47. Police, district and municipal courts shall have the
i55,S§704'§11; same authority to issue commissions to take depositions in cases
1893, 396, § 65. pending before them as the superior court has in cases pending 3
1
2
therein .
Disposition of
fees, fines, etc.
R. S. 87, §§ 38,
39.
1853, 57, § 7.
1855, 26, § 4.
1856, 158, § 2.
G. S. 116, §§ 29-
31.
1877, 210, § 3.
1878, 142.
P. S. 154, §§ 34-
3o, 53.
1887, 438, § 5.
1888, 180.
1890, 204; 216,
§2; 440, §§6, 8.
1891, 392.
Section 48. Clerks of police, district and municipal courts, ex- 1
cept the municipal court of the city of Boston, and justices of such 2
courts as have no clerk shall, on or before the tenth day of Janu- 3
ary, April, July and October, in each year, account for and pay 4
over to the county treasurer all money received by them from civil 5
business, including fees for blanks and copies, and to city and town 6
treasurers all fines and forfeitures received by them which are pay- 7
able to said cities or towns and render to said treasurers a detailed 8
account on oath of the same. Such payments shall include the 9
balances due and payable at the end of the quarter last preceding 10
Chap. 160.] police, district and municipal courts. 1405
11 the day of payment. They shall, at the end of a criminal case, pay Jfjjf » |!i5' I ?■
12 the fees and expenses of officers who are entitled thereto from the 1901J126!
13 funds in their hands which are payable to the city or town liable
14 for the payment of such fees and expenses, if they have sufficient
15 funds therefor, and all such fees and expenses which are not so
16 paid shall be certified at the end of each month to the treasurer
17 of the city or town liable therefor, who shall pay them to the
18 parties entitled thereto. They shall, at the end of a criminal case
19 or inquest, pay the fees of witnesses for the commonwealth and
20 the fees and expenses of officers at inquests who are entitled to
21 such by law, from the funds furnished them by the county treasurer
22 for that purpose, or out of any funds which may be paid into court
23 and are payable to the county, except naturalization fees. They
24 shall be allowed for the amounts so paid in their settlement with the
25 county, city and town treasurers. If they do not have sufficient
26 funds in their hands which are returnable to counties with which to
27 pay such fees as herein provided, they may make, written requisition
28 therefor upon the county treasurer, who shall pay to them not more
29 than one hundred dollars each in any one month ; but if it appears
30 necessary to the controller of county accounts, he may approve a
31 requisition for not more than two hundred dollars in any one month,
32 and, upon receipt of a requisition so approved, the county treasurer
33 may pay to them such amount as may be called for. They shall
34 account therefor in their regular settlements with the county treasurer
35 and shall be liable therefor on their official bonds. A clerk or jus-
36 tice who violates the foregoing provisions of this section shall be pun-
37 ished by a fine of not more than one hundred dollars for each offence.
MUNICIPAL COURTS.
1 Section 49. The provisions of this chapter which relate to provisions
2 police and district courts, to their justices and clerks and to the l^f^Mi i,
3 rights, duties and liabilities of parties to proceedings therein shall, f §74 " 271 §§14
4 so far as appropriate, apply to municipal courts, to their justices and *&5 106
5 clerks and to the parties to proceedings therein, except as herein im',vn',§3;
6 otherwise provided. 1880,20. p. s. 154, §43. 1894,431, §1.
1 Section 50. Upon the death, resignation, absence or disability substitute
2 of the justice and special justices of any of the municipal courts, Isf^8."
3 except the municipal court of the city of Boston, the duties of jus-
4 tice thereof may, at the request of the clerk, be performed for the
5 time being by a justice or special justice of any other of said mu-
6 nicipal courts.
1 Section 51. The municipal courts in the city of Boston shall ^^"5°*
2 have concurrent jurisdiction over all waters, islands and places which ^74, 271, §ii
3 are not included in the district of any one of said courts or of the
4 police court of Chelsea and which are within the jurisdiction of
5 the superior court for the county of Suffolk, except as provided in
6 the following section.
1 Section 52. The municipal court of the city of Boston, of the concurrent
2 Charlestown district and of the South Boston district, and the East dictionV-e"6'
3 Boston district court, shall have and exercise, concurrently with «£tamislandB>
1406
POLICE, DISTRICT AND MUNICIPAL COURTS. [CHAP. 160.
1878, 53.
P. S. 154, § 45.
1886, 15, § 3.
Sentences to
Deer Island.
1881, 10.
P. S. 154, § 51.
1886, 15, §§ 3, 5.
1895, 224.
1896, 536, § 9.
Payment of
fees and ex-
penses.
1891, 392.
1898, 204, § 1.
each other, the same criminal jurisdiction as said courts have within 4
their respective districts over all islands, except East Boston, and 5
waters within the criminal jurisdiction of the superior court for the 6
county of Suffolk. 7
Section 53. In cases in which municipal courts or the East 1
Boston district court are authorized to sentence to imprisonment 2
in the house of correction or county jail, or to commit thereto for 3
non-payment of fine or expenses of prosecution, they may sentence 4
to imprisonment in the house of correction at Deer Island or commit 5
thereto. 6
Section 54. In the municipal courts in the county of Suffolk, 1
except the municipal court of the city of Boston, and in the East 2
Boston district court, witness fees and the fees and expenses of 3
officers named in section forty-two of chapter two hundred and four 4
and of all other persons shall, at the end of a criminal case or inquest 5
in which such fees or expenses accrue, be paid by the clerks to the 6
persons who are entitled thereto. If they do not have sufficient 7
funds in their hands with which to make such payments they may 8
make written requisition upon the auditor of the city of Boston, 9
and thereupon the treasurer of said city shall advance to them not 10
more than one hundred dollars each in any one month, for which 11
they shall, before the tenth day of each month, account to said 12
city and for which they shall be liable on their official bonds. 13
Justices.
1821, 109.
R. S. 87, §1.
G. S. 116, § 35.
1866, 279, § 4.
Allowance of
costs, etc.
1866, 279, § 8.
P. S. 154, § 56.
Special jus-
tices.
1870, 330, § 1.
1879, 265, § 9.
1881, 256.
P. S. 154, § 57.
1885, 42, § 1.
1896, 234.
1897, 360.
1899, 313.
MUNICIPAL COURT OF THE CITY OF BOSTON.
Section 55. The municipal court of the city of Boston shall 1
consist of one chief justice, seven associate justices and two special 2
justices. P. S. 154, §55. 1SS2, 41. 1888, 419, § 11. 1894,308. 1899,313. 3
Section 56. The justices shall meet quarterly, and as much 1
oftener as may be necessary, to allow bills of costs, accounts, 2
charges and expenses which arise in said court, and shall certify to 3
the public officer by whom they are payable such amounts as are 4
allowed by them. 5
Section 57. The special justices of said court, at the request 1
of the justice whose duty it may be in rotation to hold a session of 2
said court, may and, in case of the illness or absence of a justice 3
or of a vacancy, at the request of the other justices of said court 4
or any of them, shall hold any sessions thereof. The chief jus- 5
tice or, in case of his death, illness, absence or incapacity, the senior 6
associate justice, if in his opinion the public business so requires, 7
may also request the special justices to hold additional sessions of 8
the court, and the clerk shall enter said request of record. During 9
the continuance of such requests, or during the time of such illness, 10
absence or vacancy, a special justice shall have and exercise all 11
the powers and duties of a justice of said court. His compensation 12
shall be fifteen dollars for each day's service ; and, except when 13
holding an additional session as above provided, the compensation 14
for service in excess of thirty days in any one year which may be 15
rendered to or for any one justice shall be deducted by the treasurer 16
of the county of Suffolk from the salary of such justice. 17
Chap. 160.] police, district and municipal courts. 1407
1 Section 58. There shall be a clerk and five assistant clerks of cierksaM
2 said court for criminal business, and a clerk and four assistant clerks 1866, 279, §'c.
3 of said court for civil business. The assistant clerks shall be ap- 1879,'257,'fi;'
4 pointed by the clerks, respectively, subject to the approval of the m\, 62.
5 justices or of a majority of them, and the clerks shall be respon- ^M^tf8'
6 sible for the doings of their assistants, and may remove them at Jgg^o
7 pleasure. mY,m.
1 Section 59. In addition to the jurisdiction otherwise conferred, c^n jurisdic.
2 said court shall have original and concurrent jurisdiction with the 1866,' 279, § 9.
3 superior court of actions of contract, tort or replevin in which the 1*74! 211, § 6.
4 debt or damages demanded or the value of the property alleged to 1877! i87!
5 be detained exceeds one hundred and does not exceed two thousand imim,'i£?'
6 dollars, if one or more of the defendants, or, in actions by the i^Massiloi!
7 trustee process, if one or more of the persons named in the writ as
8 trustees, live or have their usual place of business in the county
9 of Suffolk, and of petitions to enforce liens under the provisions of
10 chapter one hundred and ninety-seven, if the amount of the claim
11 does not exceed two thousand dollars.
1 Section 60. The court shall be held for criminal business daily, sittings of
2 except on Sundays and legal holidays, at nine o'clock in the fore- lsSf^g, § 11.
3 noon and, if it appears expedient to any of the justices, at three p.6|.^§'6.2.
4 o'clock in the afternoon, or at some hour thereafter ; and it shall be
5 held weekly for civil business. Each sitting shall commence on
6 Saturday, and actions therein may be continued to a future day.
7 Simultaneous sessions may be held for the trial of civil or criminal
8 cases.
1 Section 61. The clerks shall, on or before the tenth day of each £eS^etc!ionof
2 month, account for and pay over to the collector of the city of Bos- ^90' He'55'
3 ton, or to any other officer who is authorized by law to receive the
4 same, the balance due and payable at the end of the preceding month
5 of all money received by them which is payable by law to the county
6 of Suffolk, and shall render to said collector or other officer a de-
7 tailed account thereof under oath. Whoever violates the provisions
8 of this section shall be punished by a fine of not more than one hun-
9 dred dollars for each offence.
constables and court officers.
1 Section 62. The justice of each police and district court, except ^g8^1^
2 the East Boston district court, may designate a constable to attend
3 the sessions thereof, to preserve order and to serve such warrants,
4 mittimuses, precepts, orders and processes as may be committed
5 to him by said court. Said constable shall receive such compensa-
6 tion from the county in which the court for which he is appointed
7 is established as shall be determined and allowed by the justice,
8 subject to the approval of the county commissioners ; and it shall
9 be paid upon vouchers approved by the justice and by the county
10 commissioners.
1 Section 63. The justice of the municipal court for the Dorches- court officers
2 ter district, for the West Roxbury district and for the Brighton courts?10""'
3 district, and the justice of the East Boston district court, may each mi', aei! '
1408
POLICE, DISTRICT AND MUNICIPAL COURTS. [CHAP. 160.
P. S. 154, § 54.
1886, 15, § 5.
1900, 433, §§ 1, 2.
appoint one officer for attendance upon the sessions of said courts, 4
and the justice of the municipal court for the South Boston district, 5
for the Charlestown district and for the Roxbury district may each 6
appoint two such officers. Each of said justices may remove an 7
officer who has been appointed by him for any cause which he con- 8
siders to be sufficient, and shall fill any vacancy which is caused by 9
removal or otherwise. Each of said officers may serve the war- 10
rants, mittimuses, precepts, orders and processes of the court for 11
which he is appointed. 12
Officers in
municipal
court of city
of Boston.
1873, 310, § 1.
1S74, 169.
1879, 257, § 3.
P. S. 154, § 63.
1895, 457, §§ 1,
2 5.
1898, 254.
Section 64. The justices of the municipal court of the city of 1
Boston, or a majority of them, shall appoint officers for attendance 2
upon the sessions of the court, not exceeding six for criminal busi- 3
ness and three for civil business, and may at any time remove said 4
officers for a cause which is considered by the justices to be suffi- 5
cient, and shall fill any vacancy which is caused by removal or other- 6
wise. Such officers may serve the warrants, mittimuses, precepts, 7
orders and processes of said court. 8
Bond.
1895, 457, § 4.
1900, 433, § 1.
Section 65. Each officer who is appointed under the provisions 1
of the two preceding sections shall give bond for the faithful per- 2
formance of his duties in the sum of one thousand dollars payable 3
to the treasurer of the county of Suffolk, with sufficient sureties, 4
who shall be approved by the chief justice or the standing justice of 5
the court, as the case may be. 6
Temporary
constables or
officers.
1900, 179.
Section 6Q. In police, district and municipal courts which have 1
only one constable or officer the justice may, in case of the absence 2
of the constable or officer, appoint a constable or an officer pro tern- 3
pore, who shall have the powers and perform the duties of the con- 4
stable or officer, and shall receive for each day's service an amount 5
equal to the rate by the day of the salary of the constable or officer ; 6
but the amount so paid to a constable or officer pro tempore for 7
service in excess of fourteen days in any one calendar year shall be 8
deducted by the county treasurer from the salary of the constable or 9
officer. 10
Salaries of
justices and
clerks.
G. S. 116, § 33.
1877, 210, § 2.
P. S. 154, § 64.
Police courts.
Brockton.
1874, 316, §§ 3, 6.
1879, 248, §§ 1, 2.
Chelsea.
1864, 256.
1869, 359.
Chicopee.
1869, 359.
1879, 232, § 2.
Fitchburg.
1868, 124, § 3.
1871, 86, § 2.
SALARIES.
Section 67. The justices, clerks, assistant clerks, constables and 1
officers of the following courts shall receive from the counties in 2
which said courts are established annual salaries and allowances, as 3
follows : — 4
The police court, 5
Of Brockton, the justice, two thousand dollars ; the clerk, thir- 6
teen hundred dollars : i88i, 247. 1883, 57. 7
1885, 155, § 3. 1895, 500. 1899, 339. 1900, 419, § 1.
Of Chelsea, the justice, eighteen hundred dollars ; the clerk, 8
twelve hundred dollars : 1874, 201, §§ 2, 5. 1879, 265, § 6. 9
1882, 176, § 3. 1884, 197, § 1. 1887, 117. 1894, 470.
Of Chicopee, the justice, one thousand dollars ; the clerk, five 10
hundred dollars: is9i, 78. 11
Of Fitchburg, the justice, eighteen hundred dollars ; the clerk, 12
twelve hundred dollars : 1874,75. 1879,233, §2. 13
1882, 245. 1889, 97, 289. 1891, 71. 1899, 315.
Chap. 160.] police, district and municipal courts. 1409
14 Of Holyoke, the justice, eighteen hundred dollars ; the clerk, Hoiyoke.
15 thirteen hundred dollars : 1879) 232* § 2.
1881, 148, §§ 1, 3. 1884,65. 1886,151. 1887,318.
16 Of Lawrence, the justice, twenty-five hundred dollars; the clerk, f^J^ce-
17 fourteen hundred dollars : 1879) 234,' § 3.
1887, 208.
1888, 110. 1893, 479. 1900, 268.
18 Of Lee, the justice, one thousand dollars ; the clerk, five hun- Lee.
19 dred dollars: 1874, 171.
1879, 219, § 1. 1881, 246. 1894, 373. 1900, 138, § 2.
20 Of Lowell, the justice, twenty-seven hundred dollars ; the clerk, ^2™^
21 two thousand dollars; the assistant clerk, twelve hundred dol- 1079! 2*7) §1.
1882,63.
22 lars : 1886,307. 1889,152, §2. 1893,479. 1899,234.
23 Of Lynn, the justice, twenty-five hundred dollars; the clerk, ^n2-98 §9
24 fifteen hundred dollars : 1869,' 359!
1872, 141. 1881, 290. 1891, 162. 1900, 265.
1879, 234, § 2. 1886, 154. 1893, 479. 1901, 418.
25 Of Marlborough, the justice, fifteen hundred dollars ; the clerk, ^{g^11-
26 eight hundred dollars: 1892,93. isso.is.'
27 Of Newburyport, the justice, twelve hundred dollars ; the clerk, ^^>yport'
28 one thousand dollars : 1879, 234, § 4. 1882, 245, § 1. 1889, 277. 1901, 415. 1877) us!
29 Of Newton, the justice, eighteen hundred dollars ; the clerk, nine Newton.
30 hundred dollars : issi, 251. 1879) 247! f 4!
1886, 158. 1890, 93. 1893, 479. 1898, 362.
31 Of Somerville, the justice, two thousand dollars ; the clerk, one somerviiie.
32 thousand dollars : 1879,247, §2. 1874)235!
1882, 245. 1887, 180, 265. 1891, 161. 1897, 318.
33 Of Springfield, the justice, twenty-five hundred dollars ; the clerk, Springfield.
34 fourteen hundred dollars ; the assistant clerk, six hundred dol- 1S72) i63," § 3.
35 lars: 1874, iso, §4. 1879, 232, §1. 1886,155. 1887, 171.
1889, 28. 1897, 359. 1898, 372. 1899, 204.
36 Of Williamstown, the iustice, eight hundred and fifty dollars. wniiamstown.
1879 21 cl SI
1897, 325. 1900, 229. 18/y' 1J' S 1'
37 The district COUrt, District courts.
38 First of Barnstable, the justice, one thousand dollars : i89o, 177, §3. First Bam.
39 Second of Barnstable, the justice, one thousand dollars : 1890, 177, § 3. second Bam-
40 Of central Berkshire, the justice, two thousand dollars ; the clerk, central Berk-
41 one thousand dollars : 1874,123. 1879,219. iskTW 416
1882, 245. 1887, 190. 1893, 479. 1899, 314. § 6. ' ' '
42 Of northern Berkshire, the justice, eighteen hundred dollars ; the Northern Berk.
43 clerk, one thousand dollars : i87i, 326. 1879,219. lsrofkii, § 6.
1887, 61. 1888, 89. 1898, 216. 1899, 217.
44 Of southern Berkshire, the justice, twelve hundred dollars; the southern Berk-
45 clerk, seven hundred dollars : 1870, 202, § 2.
1871, 349, § 1. 1879, 219. 1886, 333, § 2. 1894, 374.
1874, 126. 1884, 231. 1887, 227. 1897, 322.
46 Fourth of Berkshire, the justice, fourteen hundred dollars; the Fourth Berk-
47 clerk, six hundred dollars : 1895,176. i898,4eo.
48 First of Bristol, the justice, eighteen hundred dollars ; the special fsV^l^fso!
49 justice who holds court at Attleborough, at the rate of eight hundred \ffij }J®> | \-
50 dollars, as provided in chapter one hundred and eighty-nine of the J^M^'
51 acts of the year eighteen hundred and seventy-seven ; the clerk, 1889)261!
1901 362
52 thirteen hundred dollars :
53 Second of Bristol, the justice, three thousand dollars; the clerk, second Bristol.
54 eighteen hundred dollars : 1m, 359, § 2.
1872, 77. 1876, 198, § 1. 1879, 201, § 8.
1874, 293, § 20. 1877, 188. 1891, 108.
1110
POLICE, DISTRICT AND MUNICIPAL COURTS. |_ChAP. 160.
Third Bristol.
1874, 293, § 20.
1879, 201, § 2.
Dukes County.
First Essex.
1874,224, §§5,7.
1879, 234, § 1.
Second Essex.
Central
northern
Essex.
Eastern Essex,
1864, 127.
1S69, 359.
Franklin.
1896, 353, § 2.
Eastern
Franklin.
1899, 391, § 2.
Eastern Hamp-
den.
1872, 277, § 5.
Western
Hampden.
1886, 190, § 2.
Hampshire.
1882, 227, § 2.
1883, 75, 80.
Central
Middlesex.
Northern
Middlesex.
1872, 269, § 5.
First eastern
Middlesex.
1874, 392, § 6.
1879, 247, § 2.
1882, 87, 245.
Second
eastern
Middlesex.
Third eastern
Middlesex.
1866, 298, § 9.
1S69, 359.
1879, 247, § 1.
Fourth eastern
Middlesex.
1882, 233, § 6.
Southern
Middlesex.
1874, 35, §§2, 4.
Northern
Norfolk.
1898, 478, § 2.
East Norfolk.
1872, 289, §§2,4.
1873, 18.
Southern
Norfolk.
1891, 273, § 2.
Western
Norfolk.
1898, 497, § 3.
Second
Plymouth.
1874, 350, § 18.
Third of Bristol, the justice, twenty-five hundred dollars ; the 55
clerk, thirteen hundred dollars : 1889, 41, 54. 1893,479. 1898, 429. 1900, 384. 56
Of Dukes County, the justice, five hundred dollars : 1898,287, §2. 57
First of Essex, the justice, eighteen hundred dollars ; the clerk, 58
thirteen hundred dollars : 1882, 245, §1. 59
Second of Essex, the justice, twelve hundred dollars: 1888,193, §4. 60
Central of northern Essex, the justice, eighteen hundred dollars ; 61
the clerk, one thousand dollars : 62
1867, 316, § 6.
1871, 314.
1874, 207.
1879, 234, § 2.
1882, 245, § 1.
1888, 55.
Of eastern Essex, the justice, eighteen hundred dollars
clerk, one thousand dollars : 1877,212, §3. 1879,234, §2.
1883, 53. 1888, 234, 235. 1897, 324. 1900, 400, § 6.
the 63
64
Of Franklin, the justice, fifteen hundred dollars ; the clerk, seven 65
hundred dollars : 66
Of eastern Franklin, the justice, five hundred dollars ; the clerk, 67
two hundred dollars : 68
Of eastern Hampden, the justice, twelve hundred dollars; the 69
clerk, five hundred dollars : 1879,232, §2. 1889, 130. 1896,337. 70
Of western Hampden, the justice, twelve hundred dollars ; the 71
clerk, six hundred dollars : 1888, ss. 1893,479. 72
Of Hampshire, the justice, twenty-three hundred dollars ; the 73
clerk, thirteen hundred dollars : 1886, 106. 1893, 479. 74
Of central Middlesex, the justice, eight hundred dollars : 75
1874, 315, § 5. 1879, 247, § 3. 1890, 238.
First of northern Middlesex, the justice, one thousand dollars ; 76
the clerk, six hundred dollars : 77
1874, 281, §§ 1, 2. 1879, 247, §§ 2, 3. 1888, 214. 1889, 198.
First of eastern Middlesex, the justice, twenty-five hundred dollars ; 78
the clerk, sixteen hundred dollars ; the assistant clerk, one thousand 79
dollars : 1886, 166, 167. 1893, 479. 1894, 65, § 2. 80
1897, 422. 1900, 332. 1901, 457.
Second of eastern Middlesex, the justice, eighteen hundred dol- 81
lars ; the clerk, one thousand dollars : 82
1881, 128, § 4.
1883, 97.
1885, 180.
1886, 123.
1888, 233.
1891, 107.
1894, 336.
1897, 390.
Third of eastern Middlesex, the justice, twenty-seven hundred
dollars ; the clerk, sixteen hundred dollars ; the assistant clerk, one
thousand dollars : 1882, 233, § 6. 1886, 165. 1393, 370.
1897, 260, § 2. 1898, 358. 1899, 297.
Fourth of eastern Middlesex, the justice, eighteen hundred dollars ;
the clerk, one thousand dollars : 1887, 174. 1393, 479. 1897, 358. 1901, 392.
the clerk, eiffht hundred dollars
1879, 247, § 2.
1886, 156.
1889, 12.
83
84
85
86
87
First of southern Middlesex, the justice, fifteen hundred dollars ; 88
89
Of northern Norfolk, the justice, fifteen hundred dollars ; the 90
clerk, eight hundred dollars : 91
Of East Norfolk, the justice, fifteen hundred dollars ; the clerk, 92
one thousand dollars : 1874, 364. 93
1879,220. 1888,54. 1889,263. 1893,479.
Of southern Norfolk, the justice, one thousand dollars ; the clerk, 94
five hundred dollars : .95
Of western Norfolk, the justice, one thousand dollars ; the clerk, 96
five hundred dollars : 97
Second of Plymouth, the justice, twelve hundred and fifty dol- 98
lars; the clerk, six hundred and fifty dollars : 1879, 248, §§1,2. 1880,226. 99
Chap. 160.] police, district and municipal courts. 1411
100 Third of Plymouth, the justice, eight hundred dollars ; the clerk, p]^^
101 five hundred dollars : i879, 248, §§ i, 2. 1889,137. 1894,321. im> 35°. § 18-
102 Fourth of Plymouth, the justice, one thousand dollars ; the clerk, p^^th'
103 five hundred dollars and his travelling expenses which are necessarily xl?!' lis' s^1! ' 2
104 incurred in the performance of his official duties, not exceeding: one ^u, 204.
-1AK 1 J J J 11 1889,281.
105 hundred dollars a year : i89i, 190.
106 Of East Boston, the justice, twenty-two hundred dollars; the East Boston.
107 clerk, fourteen hundred dollars; the officer, eleven hundred 1379,' 265,' §5?"
108 dollars: i882,245,§i. 1886,15. 1392,100. 1881, 250, 26L
109 Central of Worcester, the justice, three thousand dollars ; the central
110 clerk, twenty-two hundred and fifty dollars; the assistant clerk, i^™^1^^.
111 twelve hundred dollars : I8S2, 245, §1. 1888, 50. 1889, 83. 1893,479. if^^li'si
112 First of northern Worcester, the justice, fourteen hundred dol- Northern
113 lars ; the clerk, eight hundred dollars ; for the travelling expenses imfrntw.
114 which are necessarily incurred and paid by the justice and the clerk ill; 479!
115 in the performance of their official duties, one hundred and fifty 1898>256-
116 dollars each :
117 First of eastern Worcester, the justice, one thousand dollars : First eastern
1872, 200, § 5. 1879, 233, § 2. 1881, 245. 1884, 208. Worcester.
118 Second of eastern Worcester, the justice, twelve hundred dollars ; second eastern
119 the clerk, six hundred dollars. Until the first day of January in lsu^^'6.
120 the year nineteen hundred and three, in addition to his salary the ilis' IS'fi2,8*
121 justice shall receive annually three hundred dollars and the clerk, i||l* 3II' |||*
122 four hundred dollars :
123 First of southern Worcester, the justice, fifteen hundred dollars ; First southern
124 the clerk, eight hundred dollars : ^°S«.
1881, 245. 1890, 131. 1898, 369. 1899, 154. 1879' 233> § 2-
125 Second of southern Worcester, the iustice, fourteen hundred Sec™d
J southern
126 dollars: 1872,201, §5. Worcester.
1874, 85, § 2. 1879, 233, § 2. 1881, 245. 1888, 173.
127 Third of southern Worcester, the justice, sixteen hundred dollars ; Third southern
128 the clerk, five hundred dollars. lsn^m^'5.
1879, 233, § 2. 1882, 245, § 1. 1900, 326.
129 The municipal court, courts!pal
130 Of the city of Boston, the chief iustice, forty-three hundred Boston.
131 dollars; the associate justices, four thousand dollars each; the 1867)355; §6;
132 clerks, three thousand dollars each; the first, second, third and 1872,43.
133 fourth assistant clerks of the court for civil business, twenty-five 1I79 I57' lei?'
134 hundred dollars, two thousand dollars, fifteen hundred dollars and iH'INg. 245
135 fifteen hundred dollars, respectively; the first, second, third, fourth f1-' '
136 and fifth assistant clerks of the court for criminal business, twenty- 137, §§1,2. '
137 five hundred dollars, eighteen hundred dollars, sixteen hundred i887;i63i
138 dollars, fourteen hundred dollars and fourteen hundred dollars, re- ill; lf,'m, '
139 spectively ; the three officers in the civil sessions, twelve hundred fm m.
140 dollars each; and the six officers in the criminal sessions, fifteen ilgf* ^f ' § 3
141 hundred dollars each : 1897, 183. 1898, 254.
142 Of the Charlestown district, the justice, twenty-two hundred j^}rjgj£own-
143 dollars ; the clerk, fifteen hundred dollars ; the officers, one thou- wv> ios.
144 sand dollars each : issiJ 259,' 261.
1886,136. 1887,175. 1889,227. 1891,160. 1901,372.
145 Of the South Boston district, the justice, twenty-five hundred f^L?08*011-
146 dollars; the clerk, fourteen hundred dollars; the assistant clerk, isn'^m.
147 eight hundred dollars; the officers, eleven hundred dollars each: 19. ' '
1 07K "1 QO
1879, 265, § 4. 1881, 261. 1882, 245, § 1. 1887, 327. 1889, 242. 1894, 379. '
1412
POLICE, DISTRICT AND MUNICIPAL COURTS. [CHAP. 160.
Roxbury.
1879, 265, § 3.
1881, 249, 261.
1882, 245, § 1.
1889, 174, 217,
239.
Brighton.
1874, 271, §§ 17,
19.
1879, 265, § 5.
"West Roxbury.
1874, 271, §§ 17,
19.
1879, 265, § 5.
1881, 261.
Dorchester.
1870, 333, § 3.
1873, 363, § 3.
1874, 338.
1879, 265, § 5.
Brookline.
1882, 233, § 6.
1884, 211.
Clerical
assistance.
1888, 184, 246.
1889, 62.
1895, 260.
1897, 263.
1898, 286, 331.
1900, 419, § 2.
1901, 295, 336.
— in police
courts.
— in district
courts.
Of the Roxbury district, the justice, three thousand dollars; the 148
clerk, eighteen hundred dollars ; the assistant clerk, twelve hundred 149
dollars ; the officers, twelve hundred dollars each : 150
1893, 479. 1897, 356. 1900, 330, 331.
Of the Brighton district, the justice, sixteen hundred dollars ; the 151
clerk, nine hundred dollars ; the officer, one thousand dollars : 152
1881,261. 1885,49. 1886,148. 1894,363.
Of the West Roxbury district, the justice, sixteen hundred dol- 153
lars ; the clerk, one thousand dollars ; the officer, one thousand 154
dollars: 1883, m. 1886, 148. 1887,274, §2. 1889,92. 1893,479. 155
Of the Dorchester district, the justice, sixteen hundred dollars ; 156
the clerk, one thousand dollars : the officer eiffht hundred dollars : ' ^
— in municipal
court of the
city of Boston.
1879, 257, §§ 1, 2.
P. S. 154, § 58.
1883, 47.
1888, 419, § 13.
1893, 371.
1895, 125.
1899, 353.
— in municipal
courts.
1889, 206.
1897, 397, § 1.
1881, 261.
1885, 79.
1886, 124.
1893, 479.
Of Brookline, the justice, one thousand dollars ; the clerk, five 158
hundred dollars : 1888, 60. 1898, 214. 159
Justices, clerks and officers whose yearly salaries are stated in 160
this section, shall be paid at the same rate for any part of a year. 161
Clerks of the following police and district courts shall be allowed 162
for extra clerical assistance, upon the certificate of the justice and the 163
clerk that the work was actually performed and was necessary, with 164
the time occupied in its performance and the names of the persons by 165
whom it was performed, and subject to the approval in writing of 166
the county commissioners, the following amounts, payable monthly 167
to the persons who are so employed : 168
The police court, 169
Of Brockton, not more than two hundred dollars ; 170
Of Lawrence, Lowell and Lynn, not more than five hundred dol- 171
lars each ; 172
The district court, 173
Second of Bristol, not more than five hundred dollars ; 174
Third of Bristol, not more than five hundred dollars ; 175
Central of northern Essex, not more than four hundred dollars ; 176
Central of Worcester, not more than twelve hundred dollars. 177
The clerk of the municipal court of the city of Boston for criminal 178
business, an amount not exceeding nineteen hundred dollars a year, 179
and the clerk of said court for civil business, an amount not exceed- 180
ing fifty-two hundred dollars a year, which shall be expended by 181
them, respectively, for extra clerical assistance ; but no more than 182
forty-two hundred dollars a year shall be paid to the clerk of the 183
court for civil business without the approval of the justices of said 184
court or of a majority of them. 185
The clerk of the municipal court for the Dorchester district, not 186
more than two hundred dollars annually for clerical assistance ; and 187
the clerk of the municipal court for the Charlestown district, if it is 188
considered necessary by the justice, not more than five hundred dol- 189
lars in any one year for clerical assistance actually performed, which 190
shall be paid to the person who actually performs the work upon his 191
certificate stating the amount of work done, to which certificate the 192
approval of the justice shall be affixed. 193
Travelling
expenses.
1884, 205.
1896, 353, § 2.
1899, 110.
Section 68. The special justice of the first district court of 1
Bristol who holds the session of said court at Attleborough shall be 2
allowed fifty dollars a year by the county for travelling expenses 3
which may be incurred by him in the transaction of the business 4
Chap. 161.] justices of the peace and trial justices. 1413
5 of the court. The special justices of the district court of Hamp-
6 shire shall each be 'allowed not more than one hundred dollars by
7 the county for their travelling expenses which may be necessarily
8 incurred when holding sessions of said court out of the places
9 where they respectively reside, which shall be audited by the county
10 commissioners. The justice, special justices and clerk of the district
11 court of Franklin shall each be allowed by the count}^ their travel-
12 ling expenses which may be necessarily incurred when holding
13 sessions of said court out of the towns where they severally reside,
14 which shall be audited by the county commissioners.
1 Section 69. Unless otherwise provided, special justices of police, compensation
2 district and municipal courts, except the municipal court of the city justices.
3 of Boston, shall be paid compensation by the county for each day's i877,'2id,§§2,7.
4 service at the same rate as the rate by the day of the salary of the ifgfj f^;
5 justice of the same court; but compensation so paid for service in Ys^m'iiei
6 excess of thirty days in any one calendar year, except for services ^M/3, § 2;
7 in holding a simultaneous session or a session under the provisions
8 of section forty-two, shall be deducted by the county treasurer from
9 the salary of the justice.
1 Section 70. Clerks pro tempore of police, district and municipal temporerk8 pro
2 courts shall receive from the county as compensation for each day's <j. |- 1||> | ?•
3 service an amount equal to the rate by the day of the salary of the i888,352,'§i.
4 clerk ; but compensation so paid to a clerk pro tempore for service, 189^245!
5 in excess of thirty days in any one calendar year, shall be deducted
6 by the county treasurer from the salary of the clerk.
1 Section 71. In computing the rate by the day of the compen- computation
2 sation of justices and clerks of said courts, Sundays and legal hoi- tion.
3 idays shall not be included in the days in which the courts are open
4 for business.
CHAPTEE 161.
OF justices of the peace and trial justices.
Sections 1-5. — Justices of the Peace.
Sections 6-10 . — Trial Justices .
Sections 11-27. — Jurisdiction and Proceedings in Civil Matters.
Sections 28-47. — Jurisdiction and Proceedings in Criminal Matters.
Sections 48-63. — General Provisions.
JUSTICES OF THE PEACE.
1 Section 1. Justices of the peace shall be appointed, and their Justices of the
2 commissions shall be issued, for the commonwealth, and they shall meent%atcp01
3 have jurisdiction throughout the commonwealth except as provided \t%] \%[ § "
4 in sections three and four. p. s. 155, § 5. 1880' 132,
1 Section 2. Justices of the peace and special commissioners may —.™y ad-
2 administer oaths or affirmations in all cases in which an oath is re- etc.
3 quired, unless otherwise expressly provided. g'. s". 12b, § 49.
P. S. 155, § 2. 1899, 178, § 3. , 145 Mass. 225.
1414
JUSTICES OF THE PEACE AND TRIAL JUSTICES. [CHAP. 161.
Justices desig-
nated to issue
warrants and
take bail.
1879, 254.
P. S. 155, § 4.
1884, 286.
1897, 461.
136 Mass. 155.
155 Mass. 5.
[1 Op. A. G.
318.]
Same subject.
1898, 381.
Limitation of
powers of
justices of the
peace.
1858, 138, § 1.
1859, 193.
G. S. 120, § 36.
1877, 211, § 1.
P. S. 155, § 6.
126 Mass. 235.
Section 3. The governor, with the advice and consent of the 1
council, may from time to time, upon the petition of the mayor and 2
aldermen of a city or the selectmen of a town which is included 3
within the judicial district of a police or district court, and in which 4
neither a justice nor the clerk of such court resides, designate and 5
commission a justice of the peace who resides in said city or town 6
to issue warrants returnable to said, court and to take bail in crim- 7
inal cases arising within such judicial district. 8
Section 4. The governor, with the advice and consent of the 1
council, may from time to time designate and commission a justice 2
of the peace who resides in the city of Quincy to issue warrants 3
returnable to the district court of East Norfolk and to take bail in 4
criminal cases arising within the judicial district of said court. 5
Section 5. A justice of the peace who is not designated and 1
commissioned as a trial justice shall not have or exercise power, 2
authority or jurisdiction to try cases, civil or criminal, receive com- 3
plaints or issue warrants, except as provided in sections three and 4
four ; but a justice of the peace who is also a clerk or assistant clerk 5
of a police, district or municipal court may receive complaints and 6
issue warrants, returnable before the police, district or municipal 7
court or trial justice which has jurisdiction of the trial or examina- 8
tion of the person charged with the offence. 9
Trial justices.
1858, 138, § 1.
1859, 193.
1860, 187, § 1.
G. S. 120, § 33.
P. S. 155, § 7.
134 Mass. 226.
Term of office.
1860, 187, § 2.
1877, 211, § 7.
P. S. 155, § 9.
134 Mass. 226.
TEIAL JUSTICES.
Section 6. The governor, with the advice and consent of the 1
council, shall, from time to time, designate and commission in the 2
several counties a suitable number of justices of the peace as trial 3
justices, and may at any time revoke such designation. 168 Mass. 234. 4
Section 7. A trial justice shall hold his office for the term of 1
three years from the time of his designation, unless during that 2
period he ceases to hold a commission as justice of the peace or 3
unless such designation and commission as trial justice is revoked. 4
Bond.
1874, 394, § 3.
P. S. 155, § 76.
Section 8. A trial justice, before entering upon the duties of his 1
office, shall give bond for one thousand dollars payable to the treas- 2
urer of the county, with sufficient sureties who shall be approved by 3
the superior court or by a justice thereof, conditioned to account for 4
and pay over all fines, costs, forfeitures, fees and money which he 5
shall receive in the exercise of his office. A failure so to account 6
or pay over shall be a breach of his bond. A failure to give 7
such bond shall be a sufficient cause for the revocation of his com- 8
mission. 9
Number.
1858, 138, § 2.
G. S. 120, § 34.
1869, 254.
P. S. 155, § 10.
1892, 408.
Section 9. Such trial justices shall be distributed as the con- 1
venience of the several counties requires, and the number in com- 2
mission shall not exceed nine in Barnstable, twelve in Berkshire, 3
thirteen in Bristol, three in Dukes County, nineteen in Essex, ten 4
in Franklin, ten in Hampden, ten in Hampshire, thirty in Middle- 5
sex, two in Nantucket, seventeen in Norfolk, fifteen in Plymouth, 6
one in Suffolk, twenty-six in Worcester. 7
Chap. 161.] justices of the peace and trial justices. 1415
1 Section 10. If a trial justice changes his domicil to a place Authority to
2 within the district and jurisdiction of a police, district or municipal changed
3 court, his authority to try civil or criminal cases, receive complaints i^Ss,*^;
4 and issue warrants shall cease, and another trial justice may be fsif'iu'ii5'
5 designated and appointed in his place. 12b Mass 242'
jurisdiction and proceedings in civil matters.
1 Section 11. Trial justices may hold courts within the counties Exclusive
2 for which they are appointed, and shall, subject to the provisions diction. ;|UTlf
3 of section twenty of chapter one hundred and sixty, have original itc^-Imsj § i.
4 jurisdiction, exclusive of the superior court, of actions of contract, ml',26, f i!
5 tort or replevin in which the debt or damages demanded or value of ^ *Jg § L
6 the property alleged to be detained does not exceed one hundred jPfUVf.
7 dollars ; of actions of replevin for beasts distrained or impounded 104, § 4;' 113,'
8 in order to recover a penalty or forfeiture supposed to have been g. s. 120, § 1.
1S7T 911 K 3
9 incurred by their going at large, or to obtain satisfaction for damages p. s. 155, § 12.
10 alleged to have been done by them ; and of summary process under il wilt 290!
11 the provisions of chapter one hundred and eighty-one. ies Mass. 234.
1 Section 12. They shall, subject to the provisions of section original and
2 twenty of chapter one hundred and sixty, have original and concur- jurisdiction.
3 rent jurisdiction with the superior court of actions of contract, tort f|'5f,"3i4,§§2i.
4 or replevin in which the debt or damages demanded or value of ^f"^'^2'
5 property alleged to be detained is more than one hundred and does **• s'- 155, §13.
6 not exceed three hundred dollars.
1 Section 13. They may issue writs of scire facias against execu- scire facias
2 tors and administrators upon a suggestion of waste after judgment utorsfetc?60'
3 against them, and also against the bail taken in a civil action before iT^t/fl;3'
4 themselves, and proceed therein to judgment and execution as the *|5|^2 §1
5 superior court might do in like cases. p. s. 155, § 14. R- 1'- *>.'§ w.
1 Section 14. Such writs shall be served not less than seven days service.
2 before the return day, which shall be not less than sixty days after r°|. 835%§iV.
3 the date thereof, and they may run into any county in which the £; f ; ^ f f^
4 defendant may be found.
1 Section 15. They shall have jurisdiction of actions upon such Limit of juris-
2 writs although the debt and costs on the original judgment to- case°ninsuch
3 gether exceed three hundred dollars ; but judgment and execution p^t.^'lis.
4 may be awarded by the trial justice for the whole amount due to f- 1- J|g> | ^
5 the plaintiff, with the costs of the new action.
1 Section 16. Actions before trial justices may be heard and where causes
2 determined at their dwelling houses or at any other convenient and i§28, 64.
R S 85 § 31
3 suitable place; and writs and processes may be made returnable m^w!
4 accordingly, but not earlier than nine o'clock in the forenoon nor p.' s.' 155,' § 26.
5 later than five o'clock in the afternoon. 147 Mass. 70. 4Cush. 455.
1 Section 17. The reasonable and necessary expenses, not ex- office rent.
2 ceeding ten dollars a month, actually incurred by a trial justice for 1901! 246."
3 the rent of an office which is used by him for court purposes, shall 166Ma88-303-
4 be paid by the county in which the office is located, in the same
5 manner as the expenses for rent of police and district courts.
1416
JUSTICES OF THE PEACE AND TRIAL JUSTICES. [CHAP. 161.
tice^o attend" Section 18. If a trial justice fails to attend at the time and 1
i848Vi93roces8' place ^° which a civil process is returnable or continued before him, 2
g. s. 126, § 10. any other trial justice for the same county or a justice of the peace 3
may attend and continue the process for not more than thirty days, 4
without costs, and saving the rights of all parties ; and he shall 5
make a certificate thereof, which shall be filed with the papers in the 6
case and entered upon the record by the justice before whom the 7
process was returnable. 8
1878, 49.
1880, 132.
P. S. 155, § 21.
Removal of
cases concern-
ing land.
1698, 7, § 4.
1783, 42, § 2.
1825, 89, § 3.
R. S. 85, §3;
104, § 9.
G. S. 120, § 13.
1863, 125, § 2.
P. S. 155, § 24.
1885, 384, § 5.
19 Pick. 419.
8 Met. 166.
10 Met. 248.
115 Mass. 558.
Section 19. K, in an action pending before a trial justice, 1
it appears by the pleadings or otherwise that the title to land is 2
drawn in question, the fact, unless it appears by the pleadings, shall 3
be stated on the record, and the case shall, at the request of either 4
party, be removed to and entered in the superior court for the same 5
county at the return day next after the removal is requested, and 6
shall be there tried and determined as if it had been originally com- 7
menced, or, if it is a writ of scire facias, as if the original judgment 8
had been obtained, in that court. 123 Mass. 85. 128 Mass. 192. 151 Mass. 543. 9
Plaintiff
removing to
recognize.
1698, 7, § 4.
1783, 42, § 2.
R. S. 85, § 4.
G. S. 120, § 14.
P. S. 155, § 25.
1885, 384, § 5.
Section 20. The party who requires the case to be so removed 1
shall, except as provided in section one hundred and one of chapter 2
one hundred and seventy-three, recognize to the other party in a 3
reasonable sum with sufficient surety or sureties, with condition to 4
enter the action at the superior court for the same county at the 5
return day next after the removal is requested ; and if he fails so to 6
recognize, the trial justice shall hear and determine the case as if no 7
removal had been requested. 8
Proceedings
on removal.
1698, 7, § 4.
1783, 42, § 2.
E. S. 85, § 5.
G. S. 120, § 15.
P. S. 155, § 26.
Section 21. The recognizor shall produce at the superior court 1
a copy of the record and all papers required to be produced by an 2
appellant, and if he fails so to do, or so to enter the action, he shall, 3
upon complaint of the adverse party, be there defaulted or non- 4
suited, as the case may be, and such judgment shall be thereupon 5
rendered as law and justice may require. 6
Death of
justice before
entry.
1862, 141, § 1.
P. S. 155, § 37.
Section 22. If a trial justice before whom a civil action has 1
been commenced dies after the service of the writ either by attach- 2
ment of property or by personal service on the defendant and 3
before the entry thereof, the plaintiff may enter the action before 4
any other trial justice for the same county, who may proceed in the 5
case as if the writ had been originally issued with his signature, 6
except as provided in section twenty-four. 7
— after entry
and before
judgment.
1862, 141, § 2.
P. S. 155, § 38.
Notice to the
parties, etc.
1862, 141, § 3.
P. S. 155, § 39.
Section 23. If a trial justice before whom a civil action has 1
been entered and is pending dies before the final judgment in the 2
case has been rendered by him, any other trial justice for the same 3
county may, upon the application of any one of the parties to the 4
action, cause the papers in the case to be brought and entered before 5
him, and he may thereupon proceed in the action in the same man- 6
ner as if it had been originally entered before him, except as provided 7
in the following section. 8
Section 24. If an action is entered as provided in section 1
twenty-two or if the papers in a case are brought and entered as 2
Chap. 161.] justices of the peace and trial justices. 1417
3 provided in the preceding section, the trial justice before whom the
4 case is so entered shall issue notice to the other party or parties to
5 the action, that they may appear before him. Such notice shall be
6 served in the manner provided for the service of writs returnable
7 before trial justices, and no further proceedings shall be had in the
8 case until such notice has been given.
1 Section 25. If a trial justice dies while a judgment rendered P^ath of
2 by him remains unsatisfied, any other trial justice for the same judgment
3 county may, upon the application of the creditor, cause the record 1753-4, 17, §'1.
4 of the judgment to be brought before him, and shall thereupon tran- r. s. 85, § 19.
5 scribe the same upon his own book of records, note on the original p f ; 155,' f fo.'
6 that he has so transcribed it and deliver it to the person who pro-
7 duced it.
1 Section 26. The trial justice who is applied to under the pro- Production of
2 visions of section twenty-three or twenty-five shall, unless the pro- leased justice.
3 visions of section sixty-one have been complied with, if necessary itI^I^'I.1,
4 issue a summons to the executor or administrator of the deceased o". ll ilb§§230.
5 justice, or to any other person who is supposed to have the custody ^6|> ^» '§4-
6 of the papers or records, requiring him to produce the same or to
7 submit to an examination on oath as to the place where they may
8 be found ; and may commit such person as for contempt until he
9 submits to such examination, if required, and produces the papers
10 and records, if they are within his custody or control.
1 Section 27. After the record of a judgment has been duly tran- Execution,
2 scribed by a trial justice, he may issue execution on the judgment r^-l8 ivf §1.
3 as if it had been rendered by himself, changing the form as the cir- R8l'.f5,§§32i.
4 cumstances require ; and a copy of the record, certified by him, shall p.'f.'ifs'f fl.*
5 have the same effect as an authenticated copy of the original.
JURISDICTION AND PROCEEDINGS IN CRIMINAL MATTERS.
1 Section 28. Trial justices may, within the counties for which may\ssueice8
2 they are appointed, receive complaints and issue warrants against ^"'fog^
3 persons charged with crime unless the crime was committed within 1859! 193!
4 the judicial district of a police, district or municipal court. se.
1877, 211. P. S. 155, § 43. 126 Mass. 235.
1 Section 29. Warrants and other criminal processes which are warrants, etc.,
2 issued by a trial justice may be directed to and served by a con- and served, etc.
3 stable of any city or town in the county in which such trial justice Jin,' m, § 4.
4 has jurisdiction, and such warrants shall be made returnable before ^"7 Mass. 233.'
5 a trial justice or a police, district or municipal court which has juris- i^Mass. 209.
6 diction of the trial or examination of the person charged with the
7 crime.
1 Section 30. Trial justices shall have jurisdiction, concurrent £fct™J°aljlnri8'
2 with the superior court, of all crimes which may be subject to the erai.
3 penalties of a fine or forfeiture of not more than fifty dollars or of g. s. 120, § 37.
4 imprisonment for not more than six months, or to both of said uiray-SI45"
5 penalties. 108 Mass. 483.
1418
JUSTICES OF THE PEACE AND TRIAL JUSTICES. [CHAP. 161.
Criminal
jurisdiction
of breaches
of the peace.
1692-3, 18, §6;
28, § 7.
17S3, 51.
1794, 26.
R. S. 85, § 24.
1854, 328.
G. S. 120, § 38.
1871, 115.
1876, 174.
P. S. 155, § 46.
11 Cush. 262.
Section 31. They shall have jurisdiction, as aforesaid, of the 1
crimes of assault and battery and of other breaches of the peace 2
which are not of a high and aggravated nature ; of disturbing the 3
peace to the great damage and common nuisance of the inhabitants 4
of the place in which the disturbance occurs ; of affrays and riots ; 5
of going armed offensively to the terror of the people ; of uttering 6
menaces or threatening speeches ; and of being a dangerous and dis- 7
orderly person ; and, upon conviction of the defendant, may punish 8
him by a fine of not more than thirty dollars or by imprisonment 9
for not more than ninety days. 10
— to hind over
to superior
court.
R. S. 85, § 25.
6. S. 120, § 39.
P. S. 155, § 47.
Section 32. "Whoever is arrested for any of the crimes named 1
in the preceding section shall be examined by the trial justice before 2
whom he is brought, and may be tried before him, and, if convicted, 3
may be required to find sureties to keep the peace and be pun- 4
ished by fine or imprisonment as before provided ; or, if the offence 5
is of a high and aggravated nature, he may be committed or bound 6
over for trial before the superior court. 7
— of violations
of by-laws, etc.
1692-3, 28, § 5.
1801, 62.
R. S. 15, § 13.
1849, 211, § 7.
1852, 299.
1857, 194, § 5.
G. S. 120, § 40.
P. S. 155, § 48.
Section 33. Trial justices shall have jurisdiction, as aforesaid, 1
of violations of city and town ordinances, by-laws and orders ; of 2
offences of keeping billiard tables or bowling alleys contrary to the 3
provisions of section one hundred and sixty-nine of chapter one hun- 4
dred and two ; of violations of the laws relative to the public health ; 5
and of offences against property in cemeteries ; but no single penalty 6
imposed for offences against property in cemeteries shall exceed 7
fifty dollars. 8
— of violations
of milk and
dairy laws.
1885, 149.
1897, 349.
Section 34. They shall have jurisdiction, as aforesaid, of cases 1
arising under the laws relative to the inspection and sale of dairy 2
products and imitations thereof, and of cases arising under the pro- 3
visions of chapter fifty-six relative to the inspection and sale of 4
milk, and may impose the penalties therein prescribed. 5
— of felonies
by juvenile
offenders.
1872, 358.
1877, 211, § 6.
1880, 183.
P. S. 155, § 49.
127 Mass. 450.
Section 35. They shall have jurisdiction, as aforesaid, of felo- 1
nies which are not punishable by death or imprisonment for life and 2
which are committed by juvenile offenders under seventeen years 3
of age, and, upon their conviction, may sentence them to any pun- 4
ishment authorized by law for such crime, except imprisonment in 5
the state prison, or they may commit them to any institution estab- 6
lished by law for the reformation of juvenile offenders, or may bind 7
them over for trial in the superior court. 8
— of larcenies;
buying, etc.,
stolen goods.
1804, 143, § 2.
R. S. 126, §§ 18,
23.
1851, 156, § 4.
1852, 4.
1855, 135, § 2.
1857, 80.
G. S. 120, §§ 41,
44.
P. S. 155, §§ 50,
55.
9 Gray, 114.
Section 36. They shall have jurisdiction, as aforesaid, of the 1
crime of larceny ; of the crime of buying, receiving or aiding in the 2
concealment of stolen property ; and of the crime of fraudulently 3
obtaining property by any game, device, sleight of hand, pretended 4
fortune telling, or by any trick or other means by the use of cards or 5
other implements or instruments ; if the value of the property in re- 6
spect of which the crime is committed is not alleged to exceed ten 7
dollars. In all such cases the defendant, upon a first conviction, 8
shall be punished by a fine of not more than fifteen dollars or by 9
imprisonment for not more than six months ; and upon a second 10
conviction of the like offence, committed after a former conviction, 11
Chap. 161.] justices of the peace and trial justices. 1419
12 he shall be punished by a fine of not more than twenty dollars or
13 by imprisonment for not more than one year ; but if the person who
14 is convicted of buying, receiving or aiding in the concealment of
15 such stolen goods or property makes satisfaction to the person in-
16 jured to the full value of the property stolen and not restored, the
17 punishment may be mitigated as justice may require.
1 Section 37. They shall have jurisdiction, as aforesaid, of all &c™0i£a01f:iuris'
2 the crimes mentioned in sections ninety-nine, one hundred, one malicious
3 hundred and five, one hundred and six and one hundred and six- 1693-4, 26, § 15.
4 teen of chapter two hundred and eight, if the value of the trees, 17S5' 2s,' § i.
5 fruit, flowers or other property injured, destroyed, taken or carried b. s. 12!, § 46.
6 away, or the injury occasioned by the trespass, is not alleged to g4!.5^^ §'42.
7 exceed one hundred dollars ; and may punish the same by a fine of p6f 1I5 Ifi
8 not more than one hundred dollars or by imprisonment for not wi Mass. 241.
9 more than six months, or by both such fine and imprisonment ; but
10 if the value of the property so destroyed or injured or the amount
11 of injury done is not alleged to exceed fifteen dollars, the fine im-
12 posed for a violation of said section one hundred and sixteen shall
13 not exceed fifteen dollars or the imprisonment exceed thirty days.
1 Section 38. They shall have jurisdiction, as aforesaid, of of- ^k/n™ofWful
2 fences under the provisions of section fifty-four of chapter two ^eT1|l%e^c•
3 hundred and eight ; but they shall not impose a greater penalty «• s. rio, §'43.
4 than is authorized by section thirty of this chapter. p. s. 155, § 52.
1 Section 39. They shall have jurisdiction, as aforesaid, of viola — of violations
2 tions of the laws regulating the taking of fish and game, the penalty game laws.
3 for which does not exceed a fine of fifty dollars or imprisonment for
4 more than six months.
1 Section 40. They shall have jurisdiction, as aforesaid, of of- ^cof nances
2 fences under the provisions of sections six and seven of chapter one ^63, 78.
3 hundred and one ; and, upon conviction of the defendant, may i866| 28o| § 3;
4 punish him by a fine of not more than one hundred dollars and by p. s. 155, § 53.
5 imprisonment for not more than one year. 147 Mass. 29. 157 Mass. 14.
1 Section 41. They shall have jurisdiction, as aforesaid, of the -of disorderly
2 common law offence of keeping and maintaining a common, ill- im,fs.
3 governed and disorderly house ; and, upon conviction of the defend- Jf|!; US; §3.
4 ant, may punish him by a fine of not more than one hundred ^87|^|)§53
5 dollars or by imprisonment for not more than one year.
1 Section 42. They shall have jurisdiction, as aforesaid, of vio — of intoxicat-
2 lations of the provisions of chapter one hundred, and of the pro- trampsTetc.
3 visions in chapter two hundred and twelve relative to tramps, i^l^ts!
4 vagrants and vagabonds and to cruelty to animals. 187I' 203§§aI]
1880, 239, § 7; 257, § 4. P. S. 155, § 54.
1 Section 43. They shall have jurisdiction, as aforesaid, of all ~°sf drunken"
2 cases of drunkenness arising under the provisions of chapter two isas.ieo.
3 hundred and twelve, and may impose the penalties prescribed by
4 said chapter.
1420
JUSTICES OF THE PEACE AND TRIAL JUSTICES. [CHAP. 161.
Criminal
jurisdiction
of peddling
contrary to
law.
— of selling
obscene
literature.
1894, 433, § 2.
Section 44. They may in their discretion take jurisdiction of 1
offences described in section thirteen of chapter sixty-five, and in 2
such cases may impose a fine of not more than fifty dollars. 3
1868, 12. P. S. 155, § 56.
Section 45. They shall have jurisdiction, as aforesaid, of of- 1
fences under the provisions of section twenty of chapter two hun- 2
dred and twelve, and for a violation thereof may impose the 3
penalties prescribed by said section. 4
Failure of jus-
tice to attend
in criminal
process.
1S83, 175.
156 Mass. 270.
Section 46. If a trial justice fails to attend at the time and 1
place to which an examination or trial has been adjourned by him 2
under the provisions of section thirty-four of chapter two hundred 3
and seventeen, any other trial justice for the same county may 4
attend and hear or try said case, and may further adjourn such 5
examination or trial in the same manner as the justice before whom 6
the case was first pending. The justice who so takes cognizance 7
of the case shall make a minute of the proceedings before himself 8
on the complaint and certify the same, and it shall be entered on 9
the records of the justice who makes the final order, sentence or 10
decree in the case. Any recognizance taken by the justice before 11
whom the case was originally pending shall continue in full force 12
and effect. The same costs shall be taxed in any case which is 13
continued or transferred from one trial justice to another as if all 14
the proceedings had been before one justice. 15
Proceedings
upon deatu of
justice.
1871, 386.
P. S. 155, § 66.
Section 47. If a trial justice before whom any criminal pro- 1
ceeding is pending dies before final judgment has been rendered 2
therein, any other trial justice or any police, district or municipal 3
court in the same county may cause and allow the papers in the 4
case to be brought and entered before him or it, and may thereupon 5
proceed as if the case had been originally commenced before him 6
or it. 7
Contempt.
1784, 28, § 6.
B. S. 85, § 33.
G. S. 120, § 50.
P. S. 155, § 68.
2 Gray, 123.
120 Mass. 121.
GENERAL PROVISIONS.
Section 48. Trial justices may punish such disorderly conduct 1
as interrupts any judicial proceedings before them, or as is a con- 2
tempt of their authority or persons, by a fine of not more than ten 3
dollars or by imprisonment for not more than fifteen days. 4
168 Mass. 234.
Records.
1783, 42, § 3.
R. S. 85, § 35.
G. S. 120, § 51.
P. S. 155, § 69.
1888, 211, § 1.
12 Met. 9.
2 Gray, 117.
3 Gray, 574.
4 Gray, 29.
168 Mass. 234.
Section 49. They shall keep a record of all their judicial pro- 1
ceedings, both in civil and criminal cases. They shall safely pre- 2
serve all dockets and records of their judicial proceedings and 3
other official papers in their custody, shall keep them open, under 4
proper regulations, to public inspection and examination and shall 5
furnish copies thereof upon request and payment of such fees as are 6
allowed in similar cases to clerks of courts. 7
Depositions.
1877, 211, § 5.
P. S. 155, § 70.
Section 50. They shall have the same authority to issue com- 1
missions to take depositions in cases pending before them as the 2
superior court has in cases pending therein. 3
Adjournment
of courts.
1733, 42, § 2.
Section 51. They may adjourn their courts in all cases on trial 1
before them, civil or criminal, to any other time or place as occasion 2
Chap. 161.] justices of the peace and teial justices. 1421
3 may require, except as provided in section thirty-four of chapter r. s. 85, § 32.
4 two hundred and seventeen. 145 Mass. 208. p." I.' 155,' f 71.'
1 Section 52. They shall not commence or be concerned in the Trial justices
2 commencement of civil actions returnable before themselves. menceTcTions
1851,273. G. S. 120, §53. P. S. 155, § 72. 103 Mass. 555. sehres them-
1 Section 53. They shall not be retained or employed as attor- —not to be
2 neys before any court, upon appeal or otherwise, in any suit or Ittorneys, etc.
3 action previously determined before themselves ; nor shall they try Ysll' %\ § 2'
4 any civil action commenced by themselves or by their order or direc- §• |- ^A3^
5 tion ; and every civil action so commenced shall be dismissed with ?• s. 155,' § 73.*
n i. £ ii. j j? j ±. 6Cush. 331.
D COStS IOr tne deiendant. 9 Gray, 366. 1 Allen, 210. 102 Mass. 372. llCush. 315.
1 Section 54. At the end of the trial of a criminal case before a Payment of
2 trial justice, he shall pay the fees and expenses of all officers who officers8.68 and
3 are entitled thereto and which accrue in such case from the funds in H^' Jfo §§ 6 &
4 his hands and which are payable to the city or town liable for the if^' 204' I i"'
5 payment of such fees and expenses ; and all such expenses and fees 19°i| 126'
6 which are not so paid shall be certified at the end of each month
7 to the treasurer of the city or town liable therefor, who shall pay
8 them to the persons entitled thereto. At the termination of an
9 inquest or a criminal proceeding, he shall also pay their fees to the
10 witnesses for the commonwealth, except those named in section
11 forty-two of chapter two hundred and four, and the fees and ex-
12 penses of officers at inquests out of any funds in his hands which
13 are returnable to the county, and shall take receipts therefor. The
14 amounts so paid and receipted for shall be allowed in the settlement
15 with the county, city and town treasurers, respectively. A trial
16 justice who does not have sufficient funds in his hands which are
17 returnable to the county with which to pay witnesses and officers
18 at inquests as herein provided may make written requisition therefor
19 upon the county treasurer, who shall advance to him not more than
20 one hundred dollars in any one month ; but if it appears necessary
21 to the controller of county accounts, he may approve a requisition
22 for not more than two hundred dollars in any one month, and, upon
23 receipt of a requisition so approved, the county treasurer may pay
24 to the trial justice such amount as may be called for. The trial
25 justice shall account for such amounts in his regular settlements
2Q with the county treasurer and shall be liable therefor upon his
27 official bond.
1 Section 55. If the commission of a trial justice expires while a Effect of
2 judgment rendered by him remains unsatisfied, he may issue execu- commission0.
3 tion thereon with the same effect as if it had not expired, p. s. 155, §74. q. 1'. libffls.
1 Section 56. If the commission of a trial justice expires without unnmshed1 °f
2 renewal, or is terminated by resignation, change of domicil or rev- business.
" . ® . ' O 1860 187 5 1
3 ocation, he may finish any business which has been commenced or p. s. 155, §8.
4 is pending before him and certify copies of his records and papers ; '
5 or any party to a civil action which has been commenced or is
6 pending before him may enter or tran.sfer such action for proceed-
7 ings before any other trial justice for the same county, in the
8 manner provided in sections twenty-five and twenty-seven.
1422
JUSTICES OF THE PEACE AND TRIAL JUSTICES. [CHAP. 161.
Completion of
unfinished
business when
commission is
renewed.
1788, 19, § 2.
U. S. 85, § 23.
1852, 283, § 4.
G. 8. 120, § 56.
P. S. 155, § 75.
Section 57. If a trial justice is commissioned and qualified 1
anew at or before the expiration of his former commission, his au- 2
thority shall continue ; and all business which has been commenced 3
by or before him under the former commission may be prosecuted 4
and completed in the same manner as if that commission had con- 5
tinued in force. 6
Costs to be
entered in a
record book.
1860, 191, § 7.
P. S. 155, § 77.
Section 58. Trial justices shall enter all costs which are taxed 1
and allowed by them in a record book which they shall keep for 2
that purpose, and shall specify the case in which, and the person 3
to whom, they were allowed and the several items of charge specifi- 4
cally ; and the receipt of the person who is entitled thereto shall be 5
entered upon the book when the amount so allowed is paid. 6
Accounts for
fines, etc.
1700-1, 21, § 2.
1783, 52, § 8.
1791, 53, § 4.
R. S. 85, § 37.
G. S. 120, § 57.
P. S. 155, ? 78.
1S87, 438, § 5.
1890, 204, 216.
Section 59. They shall, on or before the tenth day of January, 1
April, July and October, in each year, account for and pay over to 2
the county, city or town treasurers, or to such other officer as is 3
authorized by law to receive the same, all money received by them 4
which by law is payable to counties, cities and towns, and shall 5
render to said treasurers or other officer a detailed account thereof 6
under oath. Said payments shall include the balances due and 7
payable at the end of the quarter last preceding the day of pay- 8
ment. A trial justice who violates the provisions of this section 9
shall be punished by a fine of not more than one hundred dollars for 10
each offence. 11
tons to county Section 60. They shall annually, on the first day of January,
is47,S274,r§'i. return to the county treasurers of their respective counties all fees
§76 '4120' § 58' °^ sneriffs> deputy sheriffs, constables and witnesses which have
J- s. .155, § 79. been taxed and allowed during the preceding year and which then
remain in their hands, and a schedule thereof.
1
2
3
4
5
records with Section 61. Upon the death, resignation or removal from office 1
is88k2ii c§°2rt8' °f a ^r12^ justice, all his dockets, records of his judicial proceedings 2
and other official papers in his custody shall be deposited in the 3
office of the clerk of the courts in the county for which he was des- 4
ignated, or, if he was designated for the county of Suffolk, in the 5
office of the clerk of the superior court for civil business. 6
Penalty for
neglect to
deposit.
1888, 211, §§ 3, 4.
Section 62. A trial justice who neglects for three months after 1
his resignation or removal from office so to deposit his dockets, rec- 2
ords and other official papers shall forfeit not more than five hun- 3
dred dollars, and the executor or administrator of a deceased trial 4
justice who neglects for three months after the filing of his bond so 5
to deposit in the clerk's office the dockets, records and other official 6
papers of the deceased which come into his hands shall forfeit a like 7
amount. 8
mefntrodferec-e" Section 63. Whoever knowingly and wilfully destroys, defaces 1
is888'2ii §5 or conceals the dockets, records or other official papers of a trial 2
justice shall forfeit not more than one thousand dollars, and shall 3
be liable in damages to any person who is injured thereby. 4
Chap. 162.] probate courts. 1423
CHAPTEE 162.
OF PROBATE COURTS.
Sections 1-7. — Courts and Jurisdiction.
Sections 8-28. — Appeals.
Sections 29-54. — General Provisions.
Sections 55-60. — Sessions of the Courts.
COURTS AND JURISDICTION.
1 Section 1. Probate courts shall be courts of record, and the courts of
2 judge and register of probate and insolvency for each county shall be rra^lu. 2.
3 the judge and register of the probate court of such county. b^s'. smI^o!
1858, 93, § 1. G. S. 117, § 1. 1862, 68, § 3. P. S. 156, § 1.
1 Section 2. The probate courts shall be courts of superior and Superior
2 general jurisdiction with reference to all cases and matters in which i89i, us, §4.*
3 they have jurisdiction, and it shall not be necessary for any order,
4 decree, sentence, warrant, writ or process which may be made,
5 issued or pronounced by them to set out any adjudication or cir-
6 cumstances with greater particularity than would be required in
7 other courts of superior and general jurisdiction, and the like pre-
8 sumption shall be made in favor of proceedings of the probate
9 court as would be made in favor of proceedings of other courts of '
10 superior and general jurisdiction.
1 Section 3. The probate court shall have iurisdiction of the pro- Jurisdiction.
2 bate of wills, of granting administration of the estates of persons isit| 196, § i.
3 who, at the time of their decease, were inhabitants of or resident i',§§f%!3;
4 in the county, and of persons who die out of this commonwealth 3HV16, § 1;
5 leaving estate to be administered within the county ; of the appoint- <j. 1- ii?> 1 1-
6 ment of guardians to minors and others ; of all matters relative to 5 pick. 20, 65,
7 the estates of such deceased persons and wards ; of petitions for the 10 cush. 17.
8 adoption of children, and for the change of names ; and of such other 4 Alien, 410.
9 matters as have been or may be placed within their jurisdiction. 131 Mass! 477!
1 Section 4. The probate court shall have exclusive original iuris- same subject.
2 diction of petitions of married women relative to their separate '
3 estate, and of petitions or applications relative to the care, custody,
4 education and maintenance of minor children which is provided for
5 by sections thirty-one, thirty-two and thirty-seven of chapter one
§ hundred and fifty-three.
1 Section 5. The probate court shall have jurisdiction in equity, Equity juris.
2 concurrent with the supreme judicial court and with the superior r.cs.°69, § 12.
3 court, of all cases and matters relative to the administration of the ^'go/aes0' § 22'
4 estates of deceased persons, to wills or to trusts which are created f^f'^'li7'
5 by will or other written instrument. Such jurisdiction may be exer- J??2!11^' . '
6 cised upon petition according to the usual course of proceedings in 166 Mass! 294!
#r AV v. a _*, 175 Mass. 199,
7 the probate court. 265.
1424
PROBATE COURTS.
fCHAP. 162.
Court first
taking juris-
diction to
retain it.
1785, 12, § 1.
1817, 190, §§1,16.
R. S. 62, §20;
64, §3; 79, §31;
83, § 14.
G. S. 117, § 3.
P. S. 156, § 3.
Section 6. If a case is within the jurisdiction of the probate 1
courts in two or more counties, the court which first takes cogni- 2
zance thereof by the commencement of proceedings therein shall re- 3
tain jurisdiction thereof, and shall exclude the jurisdiction of the 4
probate courts of all other counties ; and the administration or guar- 5
dianship which is first granted shall extend to all the estate of the 6
deceased or ward in the commonwealth. 7
Jurisdiction of
trusts.
1874, 352, § 3.
P. S. 141, § 28.
Section 7. All matters of trust of which probate courts have 1
jurisdiction, except those arising under wills, shall be within the 2
jurisdiction of the probate court of any county in which any of the 3
parties interested in the trust reside, or in Avhich any of the land 4
held in trust is situated ; but such jurisdiction, when once assumed, 5
shall exclude the probate court of any other county from taking 6
jurisdiction of any matter subsequently arising in relation to the 7
same trust. 8
APPEALS.
Supreme court
of probate.
1783, 46, § 3.
1817, 190, § 6.
R. S. 83, § 33.
G. S. 117, § 7.
P. S. 156, § 5.
Section 8. The supreme judicial court shall be the supreme 1
court of probate, and it shall have appellate jurisdiction of all 2
matters which are determinable by the probate courts and by the 3
judges thereof, except as otherwise expressly provided. 4
Appeal.
1692-3, 14, § 1;
46, § 1.
1696, 8, § 2.
1700-1, 5.
1783, 46, § 4.
1817, 190, § 7.
Section 9. A person who is aggrieved by an order, sentence, 1
decree or denial of a probate court or of a judge of such court may, 2
except as otherwise provided, appeal therefrom to the supreme judi- 3
Cial COUrt. R. S. 83, § 34. G. S. 117, § 8. P. S. 156, § 6. 4
4 Pick. 41.
18 Pick. 285.
11 Met. 390.
4 Cush. 408.
1 Gray, 518.
3 Allen, 556.
Ill Mass. 346.
128 Mass. 592.
129 Mass. 527.
140 Mass. 596.
143 Mass. 234.
144 Mass. 135, 415.
148 Mass. 421.
154 Mass. 574.
170 Mass. 93.
175 Mass. 483.
Entry of
appeal.
1719-20, 10, § 5.
1783, 46, § 4.
1817, 190, § 7.
R. S. 83, § 36.
G. S. 117, § 9.
P. S. 156, § 7.
1888, 290, § 1.
118 Mass. 508.
153 Mass. 439.
165 Mass. 240.
Section 10. Notice of the appeal shall be filed in the registry of 1
probate and the appeal shall be entered in the supreme judicial court 2
within thirty days after the act appealed from. Upon the entry of 3
the appeal, the appellant shall file a statement of his objections to 4
the act appealed from. A copy of such notice, and of so much 5
of the record of the probate court as relates to the appeal, shall be &
filed in the supreme judicial court upon the entry of the appeal, or 7
as soon as may be thereafter. 8
Notice of
entry.
1719-20, 10, § 5.
1783, 46, § 4.
1817, 190, § 7.
R. S. 83, § 37.
G. S. 117, § 10.
P. S. 156, § 8.
1888, 290, § 2.
Section 11. Notice of the entry of the appeal shall be given to
all parties adversely interested who shall have entered appearances
in the probate court, and it may be served in the manner provided
by the rules of court for the service of notices ; but the court may
order further notice to be given.
1
2
3
4
5
Consolidation
of appeals by
appellant.
1888, 290, § 4.
Section 12. An appellant from decrees of the probate court 1
settling different accounts of an executor, administrator, guardian 2
or trustee may unite his appeals in one notice of appeal and enter 3
them as one appeal in the supreme judicial court ; and an appeal 4
taken by another appellant from any of the same decrees, or from 5
another decree made at the same time or earlier, settling any other &
account of such executor, administrator, guardian or trustee, may be 7
entered in the supreme judicial court as part of the matter com- 8
Chap. 162.] probate courts. 1425
9 prised in the appeal previously entered. The court may, upon
10 appeal, deal with such different accounts as if they formed one con-
11 tinuous account, and may give effect to any alterations which it may
12 make in any account by altering the balance of the last account
13 without altering the balance of any previous account.
1 Section 13. If a person who is aggrieved omits,- without default aattaintiyof
2 on his part, to claim or prosecute his appeal and it appears that J812,. 29'-
3 justice requires a revision of the case, the supreme court of pro- r. s'. 83,'§ 39.
4 bate or the superior court, in cases in which appeals may be taken p.' s." m, f 9*'
5 thereto, may, upon his petition and upon terms, allow an appeal to for'ay^is2'
6 be entered and prosecuted. Such petition may be entered in the ^Anel'ui'
7 clerk's office at any time and the order of notice thereon may be ^9^*' 2i%'
8 made returnable at a rule day. 145 Mass. 287. 153 Mass. 8
1 Section 14. Such appeal shall not be allowed without due same subject.
2 notice to the party adversely interested, nor unless the petition 1783, 46,§4.§6'
3 therefor is filed within one year after the passing of the decree or ilif* 196, §§ 7, a.
4 order complained of, except that, if the petitioner was out of the ^•s-83> §§40>
5 United States at the time of the passing of the decree or order, he f3- s- 117> §§ 12»
6 may file his petition at any time within three months after his re- p- s- ise, § 10.
7 turn and within two years after the act complained of.
1 Section 15. Appeals and petitions for appeals shall be entered Q0|kj*-7 ,14
2 on the same docket with cases in equity, and shall have the same p. s. 156,' § 11.
Q.i, , ! . i i x • j.- 1 162 Mass. 450.
0 rights as to hearing and determination as such cases.
1 Section 16. After an appeal has been claimed and notice has stay of pro-
2 been given at the registry of probate, all proceedings in pursuance of appeal?8 up011
3 the act appealed from shall, except as otherwise expressly provided, jgff; j| §§59.
4 be stayed until the determination thereof by the supreme court of §; |; |f7§§4fg
5 probate ; but if, upon such appeal, such act is affirmed, it shall there- ^ i89- 12
6 after be of full force and validity. If the appellant in writing; waives 4 cush. 46.
° 16 Gray 577
7 his appeal before the entry thereof, the probate court may proceed as 12s Mass.' 57k
Q •+• 1 V, J u + 1 136 Mass. 297.
0 11 no appeal had been taken. 175 Mass. 483. 144 Mass. 415.
1 Section 17. An appeal from a final or interlocutory order or Appeals m
2 decree in equity of a probate court which is made in the exercise of tm, lis, § 3.
3 any jurisdiction in equity conferred upon it shall not suspend or stay
4 proceedings under such order or decree, pending the appeal. But
5 the probate court, or a justice of the supreme judicial court in case of
6 such appeal, may stay all proceedings under such order or decree
7 and make the necessary or proper orders to protect the rights of
8 persons interested, pending the appeal, and any such order of the
9 probate court for a stay of proceedings, or for protection of any
10 such rights, may be varied or discharged by a justice of the supreme
11 judicial court upon motion, and shall not be otherwise subject to an
12 appeal to that court.
1 Section 18. A person who is aggrieved by an order, sentence, —to superior
2 decree or denial of a probate court upon a petition for separate sup- 188^332, § a
3 port under the provisions of section thirty-three of chapter one 1890>261>§3-
4 hundred and fifty-three, or upon the petition of a married woman
1426
PROBATE COURTS.
[Chap. 162.
relative to her separate estate, or upon a petition or application rela- 5
tive to the care, custody, education and maintenance of minor 6
children provided for by sections thirty-one, thirty-two and thirty- 7
seven of said chapter, may appeal therefrom to the superior court in 8
the manner provided in sections ten and eleven of this chapter, 9
and all proceedings thereon shall, so far as practicable, be the same 10
as on appeals to the supreme judicial court. 11
Except a
decree f or
separate main-
tenance, etc.
1380, 64, § 2.
P. S. 156, § 13.
1890, 261, § 1.
144 Mass. 278.
Section 19. A decree or order of a probate court made in pro- 1
ceedings under the provisions of section thirty-three of chapter 2
one hundred and fifty-three shall have effect, notwithstanding an 3
appeal, until otherwise ordered by a justice of the superior court, 4
who may, in any county, suspend or modify such decree or order 5
during the pendency of the appeal. 6
— or for re-
moval of
executor, etc.
1880, 186, §§ 1-3.
1881, 296.
P. S. 156, § 14.
155 Mass. 437.
Section 20. A decree of a probate court removing an executor, 1
administrator, guardian or trustee, shall have effect, notwithstand- 2
ing an appeal therefrom, until otherwise ordered by a justice of 3
the supreme court of probate, and a decree of a justice of the supreme 4
court of probate upon appeal affirming such decree, or ordering such 5
removal when the same has been refused by the probate court, shall 6
have effect, notwithstanding an appeal therefrom to the full court 7
until otherwise ordered by the full court. The probate court may, 8
in either such case, appoint a successor to the person removed, to 9
whom the person removed shall thereupon deliver all the property 10
held by him as such executor, administrator, guardian or trustee and 11
who shall proceed in the performance of his duties in like manner 12
as if no appeal had been taken ; but if the decree of removal is 13
reversed by a final decree of the supreme judicial court, the powers 14
of such successor shall thereupon cease and he shall forthwith deliver 15
to his predecessor in the trust, or to such person as the court may 16
order, all property of the estate in his hands. 17
iIm^I^m0*" Section 21. A decree of a probate court made in pursuance of 1
p. s. 156, § 15. the provisions of the preceding section shall have effect, notwith- 2
standing an appeal therefrom, until otherwise finally determined by 3
the appellate court. 4
Modification of
decree ap-
pealed from.
1880, 186, § 5.
P. S. 156, § 16.
Section 22. After an appeal has been claimed from an order or 1
decree referred to in the two preceding sections, and before such 2
appeal has been finally determined, a justice of the supreme court 3
of probate may suspend or modify such order or decree during the 4
pendency of such appeal. 5
Reversal or
affirmance of
decree.
R. S. 83, § 44.
O. S. 117, § 16.
P. S. 156, § 17.
146 Mass. 377.
177 Mass. 238.
Section 23. The supreme judicial court may, upon appeal, 1
reverse or affirm, in whole or in part, any decree or order of the 2
probate court, and may enter such decree thereon as the probate 3
court ought to have entered, may remand the case for further pro- 4
ceedings, or make any other order therein, as law and justice may 5
require. 6
Failure to
prosecute
appeal.
Section 24. If an appellant fails to enter and prosecute his ap- 1
peal, the supreme court of probate may, upon the complaint of any 2
OHAP. 162.] PKOBATE COURTS. 1427
3 person interested, affirm the former decree or order, or make such 1719-20, 10, § 5.
4 other order as law and justice may require, or, if the appellant fails ien', 190, § 7.
5 to enter his appeal within the time allowed by law, the probate court g. I'. ii7,Yi7.
6 from which the appeal was taken may, upon petition of any person p8s\i56,§i8.
7 interested, and upon such notice to the appellant as the court shall 153Mass-8.
8 order, dismiss the appeal and affirm the decree or order appealed
9 from, and further proceed as if no appeal had "been taken.
1 Section 25. The supreme judicial court, upon request of a Jury issues.
2 party to a probate matter pending therein, may in its discretion I8i7|i90,§7.
3 frame issues of fact to be tried by a jury and direct them to be tried Is', f^.' § 16;
4 in the supreme judicial court or in the superior eourt in the county ^s§ f| § 20;
5 in which the matter is pending, or, upon the request of all parties, in ^ -£j®> § 19-
6 any Other COUnty. 123 Mass. 590. 157 Mass. 90. 167 Mass. 524. 120 Mass. 281.
1 Section 26. If there is no regular sitting for such trial within special jury
2 three months after such issues have been framed, a jury may be p.'s.3i56',§§20.
3 summoned as provided in equity cases by section thirty-seven of
4 chapter one hundred and fifty-nine.
1 Section 27. The supreme judicial court or the superior court consolidation
2 may at any time, in its discretion and upon terms, consolidate any courtp
3 separate appeals from the probate court pending therein, respec- ilio) Hi, § 1'
4 tively, and may thereafter deal with such consolidated appeals to-
5 gether or otherwise, as justice requires.
»
1 Section 28. Probate appeals in the counties of Berkshire, Appeals in
2 Franklin, Hampden and Hampshire may be heard and determined at counties.
3 Springfield at the same times and in the same manner as is provided p.7|. il96, f 21"
4 in section forty-one of chapter one hundred and fifty-nine relative to
5 the hearing and determination of equity cases in said counties ; and
6 a probate appeal pending in any of said counties shall be considered
7 ready for a hearing at any time after the rule day at which it is en-
8 tered in the supreme court of probate, and it may be heard before
9 the justice sitting at Springfield, unless there is an order for a jury.
GENERAL PROVISIONS.
1 Section 29. The judges of the probate courts or a majority of gujf8g3 §8
2 them shall from time to time make rules for regulating the practice g. s. in, § ip.
3 and for conducting the business in their courts in all cases not ex- i893,-372,'§ 1. '
4 pressly provided for by law and shall prescribe forms, and, as soon
5 as convenient after making or prescribing them, shall submit a copy
6 of their rules, forms and course of proceedings to the supreme
7 judicial court, which may alter and amend them and, from time to
8 time, make such other rules and forms for regulating the proceedings
9 in the probate courts as it considers necessary in order to secure
10 regularity and uniformity.
1 Section 30. The supreme judicial court and the probate courts —as tonotice-
2 shall make rules requiring notice of any hearing, motion or other
3 proceeding before said courts to be given to parties interested or to
4 the attorney who has entered his appearance for them.
1428
PROBATE COURTS.
[Chap. 162.
Business out of
court.
1869, 424.
1870, 275.
P. S. 156, § 24.
Section 31. Judges of the probate courts may transact business 1
out of court at any time and place, if all parties who are entitled to 2
notice assent thereto in writing or voluntarily appear ; and in such 3
cases, their decrees shall be entered as of such sessions of the court 4
as the convenience of the parties may require. 5
notice8 etc. Section 32. Orders of notice and other official acts which are 1
g I' in5 l*o3 Passed as of course, and which do not require a previous notice to 2
p. s. m, § 25! an adverse party, may be issued and performed at any time. 3
Enforcement
of orders in
equity.
1891, 415, § 2.
Section 33. Probate courts shall have like power to enforce all 1
orders, decrees and sentences made by them in the exercise of any 2
authority or jurisdiction which may be conferred upon them, and to 3
punish contempts of their authority, as the supreme judicial court 4
has in like cases. 5
Revocation of
warrants and
commissions.
R. S. 83, § 31.
G. S. 117, § 24.
P. S. 156, § 26.
Section 34. A warrant or commission for the appraisal of an
estate, for examining the claims on insolvent estates, for the par-
tition of land or for the assignment of dower or curtesy or other
interests in land may be revoked by the court for sufficient cause,
and a new commission may be issued or other appropriate proceed-
ings taken.
1
2
3
4
5
6
in writing and, Section 35. Decrees and orders of the probate courts and of 1
to1 be recorded' *"ne Ju(^oes thereof shall be made in writing, and the registers shall 2
Gsii-Vin record in books which they shall keep for the purpose all such 3
p.' s.' 156,' § 27.' decrees and orders, all wills proved in the court, with the probate *&
thereof, all letters testamentary and of administration, all warrants, 5
returns, reports, accounts and bonds, and all other acts and proceed- 6
ings, which are required to be recorded by the rules of the court or 7
by the order of the judge. 8
Docket and
index.
1881, 215, § 3.
P. S. 156, § 28.
Section 36. Each register shall keep a docket of all cases and 1
matters in the probate court of his county, and shall enter therein 2
every case or matter by its appropriate title and number, brief 3
memoranda of all proceedings had and papers filed therein, the dates 4
of such proceedings or filing of such papers, and references to the 5
places in which the proceedings or papers are recorded, if there is a 6
record thereof. He shall also keep a separate alphabetical index of 7
all such cases and matters, which shall refer both to said docket 8
and to the files of the court. Such docket and index shall at all 9
reasonable times be open to public inspection. 10
Oaths.
R. S. 83, § 30.
1852, 241.
G. S. 117, § 28.
1871, 122, § 1.
P. S. 156, § 30.
Section 37. Oaths which may be required in proceedings in 1
probate courts may be administered by the judge or register in or 2
out of court or by a justice of the peace, and, when administered 3
out of court, a certificate thereof shall be returned and filed or 4
recorded with the proceedings ; but the judge may require any such 5
oath to be taken before him in open court. 6
Section 38.
If an executor, administrator, guardian or trustee
neglects or refuses to deliver to his successor
1
2
Enforcement
of delivery of
property by resigns his trust and
executors etc* ^^
i88i uo8'a' ' a^ ^ne ProPerty held by him under his trust, the probate court may, 3
p. s. 156, § 31. upon the application of such successor or of any person beneficially 4
OhAP. 162.] PEOBATE COUETS. 1429
5 interested, order such delivery to be made, and shall have like
6 powers for enforcing such order as are given to it by the provisions
7 of section thirty-three.
1 Section 39. A probate court may, upon application of a person Temporary in-
2 interested in an estate in process of settlement in such court, direct m^^Mi.
3 the temporary investment of any money belonging to such estate in Pf s< 156> § 32,
4 securities to be approved by the judge ; or it may authorize the
5 money to be deposited in any bank or institution in this common-
6 wealth which is empowered to receive such deposits, upon such
7 interest as such bank or institution may agree to pay.
1 Section 40. A duly authorized attorney-at-law may enter his Appearances.
2 appearance as attorney for the party represented by him in any pro- 1890' 420, § '
3 ceeding in a probate court, and all processes and notices which may
4 be served upon him shall have the same force and effect as if served
5 upon the party whom he represents.
1 Section 41. In proceedings in probate courts, the petitioner or interroga.
2 the respondent may, at any time after the filing of the petition, file Ss79?i86,§i.
3 interrogatories in the register's office for the discovery of facts and P- s> 156> § ^
4 documents material to the support or defence of the proceeding.
5 Such interrogatories shall be answered under oath by the adverse
6 party in the same manner and subject to the same restrictions and
7 regulations as are provided by chapter one hundred and seventy-
5 three relative to interrogatories in civil actions.
1 Section 42. If a party neglects or refuses to expunge, amend °e^or
2 or answer according to the provisions of said chapter one hundred p7| \|£'||,
3 and seventy-three, the petition shall be dismissed or its prayer
4 granted, or such other order or decree entered as may be required.
1 Section 43. Upon complaint to a probate court by a person in- Persons sus-
2 terested in the estate of a person deceased against a person who is ceaifng0propn"
3 suspected of having fraudulently received, concealed, embezzled or exam?nedbe
4 conveyed away any property, real or personal, of the deceased, the {^if^i^'a.
■5 court may cite such suspected person, although he is executor or S^'-jf^2"
6 administrator, to appear and be examined under oath upon the rrooU's.
7 matter of the complaint. If the person so cited refuses to appear 1783, 32, § 11. '
8 and submit to examination, or to answer such interrogatories as may isot," 71,9a."
9 be lawfully propounded to him, the court may commit him to jail p; |; ff^/i.
10 until he submits to the order of the court. The interrogatories and ^p^i9'^18"
11 answers shall be in writing, signed by the party examined, and shall f/^-^-
12 be filed in the COUrt. 4Cush. 46. 99 Mass. 470. 175 Mass. 4.
1 Section 44. In cases which are contested before a probate court £7°|ts46 §4
2 or before the supreme court of probate, costs and expenses in the lstf 19&. §§7,
3 discretion of the court may be awarded to either party, to be paid it.' s. 83, §§ 47,
4 by the other party, or they may be awarded to either or both parties, g." s. 117, §§ 25,
5 to be paid out of the estate which is the subject of the controversy, p.' s. 156, §§ 35,
6 as justice and equity may require. If costs are awarded to be paid ^4 131
7 by one party to the other, execution may issue. 5 Alien ot7'
112 Mass. 269. 134 Mass. 249. 139 Mass. 59. 147 Mass. 15.
1430
PROBATE COURTS.
[Chap. 162.
Waiver of
notice.
1874, 346, § 3.
P. S. 156, § 37.
151 Mass. 595.
Section 45. The notice which may be required by law in any 1
proceeding in a probate court may be dispensed with if all parties 2
who are entitled thereto assent in writing to such proceedings or 3
waive notice. 4
register
oVone"1?1611* Section 46. In appraisals of property, the judge or
praiser. may appoint only one appraiser if in his opinion the nature of the
1897U47! property makes it advisable so to do. 3
1
2
Selection of
newspapers
for notices.
1851, 138.
G. S. 117, § 29.
P. S. 156, § 38.
Section 47. Parties to probate proceedings may select the 1
newspapers in which the notices which may be ordered upon their 2
petitions shall be published ; but the court may order the notice to 3
be published in one other newspaper. 4
Receipts, etc.,
to executors,
etc., may be
recorded.
1864, 93.
P. S. 156, § 39.
Section 48. A paper or instrument, discharging a claim or pur- 1
porting to acknowledge the performance of a duty or the payment 2
of money for which an executor, administrator, guardian or trustee 3
is chargeable or accountable in a probate court, shall, upon the 4
request of a party interested, be recorded in the registry of said 5
court ; and the registers of probate in their respective counties shall 6
enter, record, index and certify any original paper or instrument 7
offered as aforesaid, and shall receive for such services the like com- 8
pensation as registers of deeds would be entitled to demand for like 9
services. Such compensation shall be paid by the person who leaves 10
such paper or instrument for record, at the time of leaving it. 11
Copy of certain
papers without
charge.
1823, 141, § 3.
R. S. 83, § 53.
G. S. 117, § 30.
P. S. 156, § 40.
Section 49. The register of probate shall make without charge 1
one certified copy of all wills proved, of inventories returned, of 2
accounts settled, of partitions of land, of assignments of dower or 3
curtesy, and of all orders and decrees of the court, and shall deliver 4
such copies upon demand to the executor, administrator, guardian, 5
widow, heir or other person Avho is principally interested. 6
Original will
may be taken
from registry.
1876, 165.
P. S. 156, § 41.
Section 50. The probate court in which a will has been duly 1
proved, allowed and recorded may, after the expiration of the thirty 2
days within which an appeal may be taken from the decree admitting 3
such will to probate, upon the petition of the executor or of a legatee 4
named in such will, or of any person interested in the estate of the 5
testator, and after notice and a hearing, permit the original will, if 6
it appears to be necessary for the purpose, to be taken from the files 7
of such court for the purpose of establishing the right or title of such 8
executor, legatee or person to the estate of the testator in any 9
foreign country. 10
Court rooms,
rooms for
record, etc., to
be provided.
1823, 141, § 4.
R. S. 83, § 54.
G. S. 117, § 31.
1872, 125.
1876, 234, § 1.
P. S. 156, § 42.
Section 51. County commissioners shall provide and maintain 1
suitable rooms for the use of the probate courts, ample fireproof 2
rooms and suitable alcoves, cases and boxes for the safe keeping of 3
all records, files, papers and documents which belong to the several 4
registries of probate, and shall also provide all books which may be 5
necessary for keeping the records, and all printed blanks and 6
stationery which are used in probate proceedings. 7
i8a76!e234,b§e2Ct" Section 52. If in the opinion of a justice of the supreme judicial 1
p. s. 156, § 43. court the fireproof rooms provided under the preceding section are 2
Chap. 162.] probate courts. 1431
3 insufficient, he shall, upon application of the judge or register of
4 probate of the county, certify the need of additional accommodations
5 to the county commissioners of such county, and they shall forth-
6 with provide such additional fireproof rooms and other accommoda-
7 tions as may be necessary.
1 Section 53. If, in the judgment of the county commissioners, Preservation
2 public convenience so requires, they may, at the expense of the i89i(02^!t8' etc'
3 county, cause the files and records of the probate courts, except in il30]P*A'G"
4 the county of Suffolk, to be rearranged, indexed and docketed, the
5 dockets which are worn or defaced to be renewed and the indexes
6 to be consolidated, under the direction and supervision of the regis-
7 ters of said courts.
1 Section 54. The expense of recording probate proceedings in Expense of
2 the county of Suffolk, not exceeding forty-five hundred dollars in bateVoteed?"
3 any one year, shall be paid by said county, upon the official certifi- isfs,1^^^'
4 cate of the register, countersigned by a judge of the probate court is'sfiis.' § 44"
5 for said county, in the amounts and to the persons who are named ij||> ™-
6 in such certificate.
SESSIONS OE THE COURTS.
1 Section 55. The judge of a probate court may keep order in contempt of
2 court, and may punish any contempt of his authority. i7S3^46, §i.
1S17, 190, § 1. R. S. 83, § 10. G. S. 117, § 33. P. S. 156, § 45.
1 Section 56. The probate court in each county shall always be courts always
2 open, except on the Lord's day and legal holidays, for all hearings, m^'215.
3 for matters in equity, for proceedings in contempt and for making 1901' 61,
4 orders and decrees in all matters before them ; but the times of all
5 hearings shall be discretionary with the judges of said courts.
1 Section 57. The judge of a probate court may adjourn the court ^°iJ9nment
2 as occasion requires ; and if he is absent at the time appointed for ^29! 110, § 2.
3 holding a court, the register shall adiourn it as he may consider i836,'4i.'
4 necessary or as the judge may order. The register may also p.* s.' 156, § 46."
5 adjourn the court when there is a vacancy in the office of judge.
1 Section 58. If the regular time for holding a probate court No courts on
2 occurs on a legal holiday or on the day of an annual state election, eiectionSdays.
3 the court shall be held on the next secular day thereafter ; on which 1884' Ulm
4 day all notices, citations, orders and other papers made returnable
5 at said regular time shall be returnable. The proceedings thereon
6 shall be of the same validity as if the notices, citations, orders and
7 other papers had been made so returnable.
1 Section 59. No court shall be held by adjournment or other- court not to be
a • -1.L1 -x • a. a » j. ' j. • a. held without
2 wise unless the register, assistant register or a temporary register is register, etc.
3 present. p.s.i56,§47. Q.s.SvJfw.
1 Section 60. Probate courts shall be held in each year at the —when and
2 times and within the cities and towns hereinafter mentioned, in such const., c. iii.,
3 places therein as the judges shall from time to time appoint. Suffi- 1719-20,10, §8.
4 cient notice of such appointments shall be given by the judges, as jf1^1^;^
55-57.
1432
PROBATE COURTS.
[Chap. 162.
G. S. 117, § 36.
P. S. 156, § 48.
Barnstable.
1857, 113.
1867, 307.
1868, 196.
1869, 277.
1877, 94.
1893, 343.
Berkshire.
1849, 41.
1857, 16.
1868, 325, § 2;
329.
1869, 60, § 1.
1872, 202.
Bristol.
1842, 88.
1S57, 159, § 1.
1862, 5, § 1.
1878, 121.
1898, 199.
Dukes County.
1856, 265.
1859, 56.
1862, 114.
Essex.
1848, 234.
1853, 407.
1874, 273.
Franklin.
1850, 244.
1867, 249.
1887, 46.
1898, 218.
1901, 259.
Hampden.
1836, 256.
1843, 29.
1850, 287.
1865, 123.
1874, 157.
1884, 294.
Hampshire.
1836, 256.
1843, 40.
1866, 60.
1874, 146.
1886, 145.
often as changes -take place, by advertisement in a newspaper or by 5
posting the notice in public places : 6
For the county of Barnstable, at Barnstable, on the second Tues- 7
day of January, February, March, May, June, July, August, Sep- 8
tember, November and December, and on the first Tuesday of April 9
and October. 10
For the county of Berkshire, at Pittsfield, on the first Tuesday of 11
January, February, March, April, May, June, September, October 12
and December, on the third Tuesday of July, and on the Wednesday 13
next after the first Monday of November ; at Lee, on the Wednesday 14
next after the first Tuesday of January, April and October, and on 15
the Wednesday next after the third Tuesday of July ; at Adams, on 16
the Thursday next after the first Tuesday of January and October, 17
on the Wednesday next after the first Tuesday of March, and on the 18
Thursday next after the third Tuesday of July ; and at Great Bar- 19
rington, on the Wednesday next after the first Tuesday of February, 20
May, September and December. 21
For the county of Bristol, at Fall River, on the first Friday of 22
January, April, July and October, on the third Friday of February, 23
May and November, and on the second Friday of September ; at 24
New Bedford, on the first Friday of February, May, August and 25
November, and on the third Friday of March, June and September ; 26
and at Taunton, on the first Friday of March, June, September and 27
December, and on the third Friday of January, April, October and 28
December. 29
For the county of Dukes County, at Edgartown, on the third Mon- 30
day of January and July, and on the first Monday of March and 31
December ; at Vineyard Haven, on the third Monday of April, and 32
on the first Monday of September ; and at West Tisbury, on the first 33
Monday of June, and on the third Monday of October. 34
For the county of Essex, at Salem, on the first Monday of each 35
month and on the third Monday of each month except August ; at 36
Lawrence, on the second Monday of January, March, May, June, 37
July, September and November ; at Haverhill, on the second Mon- 38
day of April and October ; at Newburyport, on the fourth Monday 39
of January, March, May, June, July, September and November ; 40
and at Gloucester, on the fourth Monday of April and October. 41
For the county of Franklin, at Greenfield, on the first Tuesday 42
of each month except November, and on the third Tuesday of 43
February, March and December; at Orange, on the third Tuesday 44
of January, April, July and October; at Shelburne Falls, on the 45
third Tuesday of May and November ; at Northfield, on the third 46
Tuesday of September ; and at Conway, on the third Tuesday of 47
June. 48
For the county of Hampden, at Springfield, on the first Wednes- 49
day of each month except August ; at Holyoke, on the third 50
Wednesday of January, March, June and October; at Palmer, on 51
the second Wednesday of February, May and September, and the 52
fourth Wednesday of November ; and at Westfield, on the third 53
Wednesday of February, May, September and December. 54
For the county of Hampshire, at Northampton, on the first Tues- 55
day of each month ; at Amherst, on the second Tuesday of January, 56
March, June, August and November ; at Belchertown, on the second 57
Tuesday of May and October; at Williamsburg, on the third 58
Chap. 163.] courts of insolvency. 1433
59 Tuesday of May and October ; and at Ware, on the second Tuesday
60 of February, September and December and on the third Tuesday
61 of June.
62 For the county of Middlesex, at Cambridge, on the first, second ig^i^-
63 and fourth Tuesday of each month, except August, and at Lowell, ^'l?g
64 on the third Tuesday of each month, except August.
1867, 220, § 2. 1S68, 213. 1889, 182.
65 For the county of Nantucket, at Nantucket, on the Thursday next ^t££ket
6Q after the second Tuesday of each month. 1S59, ici. 1863, 146. is43,'4.'
67 For the county of Norfolk, at Dedham, on the first and third j^ii?'
68 Wednesday, at Quincy, on the second Wednesday, and at Brook- ip«! 2i*-
69 line, on the fourth Wednesday of each month except August. The 1898)201!
1900 319
70 county commissioners of the county of Norfolk may provide, fur-
71 nish and maintain suitable rooms and accommodations in the city
72 of Boston for the use of the probate court for the county of Nor-
73 folk, for the hearing and trial of such contested cases in said court
74 as the parties thereto or their counsel may desire to have heard and
75 tried in the city of Boston.
76 For the county of Plymouth, at Plymouth, on the second Mon- Plymouth.
77 day of each month except August, and at Brockton, on the fourth 1881)203!
78 Monday of each month except July. 1889,237,269. 1887' 63"
79 For the county of Suffolk, at Boston, on each Thursday, except f^f0^-
80 the first, second, fourth and fifth Thursdays of August. is73,'375.
1878, 127. 1381, 115. 1892, 202.
81 For the county of Worcester, at Worcester, on the first, second, ^ff.9***"
82 third and fifth Tuesday of each month except August, and at Fitch- Jlp'lu
83 burg on the fourth Tuesday of each month except August. 1846) 12a!
1854, 318. 1869, 253. 1878, 128. 1S93, 348.
CHAPTER 163.
OF COURTS OF INSOLVENCY.
c^
Sections 1-19 . — General Provisions .
Sections 20-30. — Petition by Debtor. First Meeting.
Sections 31-48. — Debts and Proof of Claims.
Sections 49-81. — Assignment and Assignee.
Sections 82-87. — Examination of Debtor.
Sections 88-105. — Second and Third Meetings. Oath and Discharge.
Sections 106-109. — Matters Avoiding Discharge.
Sections 110-112. — Preferences.
Sections 113-115. — Allowance and Surplus.
Sections 116-128. — Accounts and Dividends.
Sections 129-132. — Petition by Creditors.
Sections 133-135. — Petition by Creditors of Insane Persons.
Section 136. — Concealment of Property.
Sections 137-142. — Partnerships.
Sections 143-149. — Corporations.
Sections 150-169. — Composition.
Sections 170-175. — Fees and Costs.
Section 176. — Vacating Proceedings.
Section 177 . — Keturns .
1434
COURTS OF INSOLVENCY.
[Chap. 163.
GENEEAL PROVISIONS.
Courts of
record, etc.
1856, 284, § 1.
1858, 93.
G. S. 118, § 1.
P. S. 157, § 1.
Section 1. The courts of insolvency shall be courts of record, 1
and the judge and register of probate and insolvency for each county 2
shall be the judge and register of the court of insolvency for such 3
county. 4
Superior
jurisdiction.
1894, 164, § 3.
Section 2 . The courts of insolvency shall be courts of superior 1
and general jurisdiction with reference to all cases and matters in 2
which they have jurisdiction, and it shall not be necessary for any 3
order, decree, sentence, warrant, writ or process which may be 4
made, issued or pronounced by them, to set out any adjudication or 5
circumstances with greater particularity than would be required in 6
other courts of superior and general jurisdiction, and the like pre- 7
sumption shall be made in favor of proceedings of the probate court 8
as would be made in favor of proceedings of other courts of superior 9
and general jurisdiction. 10
Jurisdiction.
1856, 284, § 2.
1858, 93, § 10.
G. S. 118, § 2.
P. S. 157, § 2.
Section 3. Courts of insolvency shall have original jurisdiction 1
in their respective counties of cases of insolvency under the pro- 2
visions of this chapter. 3
Petitions filed
in more than
one county.
1893, 405, § 5.
Section 4. If a petition in insolvency is within the jurisdiction 1
of more than one court of insolvency, the court in which it is first 2
filed shall have exclusive jurisdiction thereof if a warrant is issued, 3
and proceedings upon a petition filed in another county shall be 4
stayed until the court in which the petition was first filed determines 5
whether a warrant shall be issued. 6
Equity juris-
diction.
1894, 164, § 1.
167 Mass. 10.
Section 5. Courts of insolvency shall have jurisdiction in 1
equity, concurrent with the supreme judicial court and the superior 2
court, of all cases and matters pending in said courts of insolvency, 3
and such jurisdiction may be exercised upon petition, according to 4
the usual course of proceedings in courts of insolvency. 5
Enforcement
of orders in
equity.
1894, 164, § 2.
Section 6. Courts of insolvency shall have like power to en- 1
force all orders, decrees and sentences made by them in the exercise 2
of any authority or jurisdiction conferred upon them and to punish 3
contempts of their authority as the supreme judicial court has in 4
like cases. 5
Courts, where
held.
1838, 163, § 15.
1844, 178, § 16.
1846, 168, § 2.
1856, 284, §§ 3,
13.
1858, 93, § 11.
G. S. 118, §§3, 8.
P. S. 157, '§§3, 8.
1895, 215.
1901, 61.
7 Met. 431.
4 Cush. 584.
8 Gray, 193.
Section 7. Courts of insolvency shall be held at the shire towns 1
of the county at times appointed by the court, and may be held at 2
such other places as will best promote the convenience of the public. 3
They shall always be open, except on the Lord's day and legal holi- 4
days, for all hearings, for matters in equity, for proceedings in con- 5
tempt and for making orders and decrees in all matters before them ; 6
but the times of all hearings shall be discretionary with the judges 7
of said courts. The judge or, in his absence or in case of a vacancy 8
in that office, the register may adjourn any court or meeting from 9
time to time as occasion requires, and all acts lawfully done at an 10
adjourned meeting shall have like effect as if done at the original 11
meeting. 12
Chap. 163.] courts of insolvency. 1435
1 Section 8. The judge may at anytime approve compositions Approval of
2 and assignees' bonds, approve or order sales, receive petitions, issue £°cmP°sltlons>
3 orders of notice and warrants and do such other official acts as are ^ Hft f \\
4 done as matters of course and do not require notice. p" f " 157' 1 1"
1 Section 9. The judge may keep order in his court and punish admhiTste'rmg
2 any contempt of his authority, administer oaths, issue commissions, ?££*]!»' f?L-
3 compel the attendance of witnesses and the giving of evidence in 1856)284', §§7,*9.
4 like manner as the superior court ; and may appoint such officers to p.' s.' 157,' § 5.'
5 attend upon the court as are necessary to keep order therein and to
6 transact its business.
1 Section 10. Proceedings in courts of insolvency shall be matters proceedings
2 of record, and the assignment and certificate of discharge shall be'reco?d.80Evi.
3 recorded in full. Other proceedings need not be so recorded, but 1^^.63 §14.
4 shall be carefully numbered, filed and kept in the office of the regis- q5!3^ §6
5 ter. Copies of all parts of the records and of records of prior Fvf t1!]^6'
6 proceedings in insolvency deposited in his office, certified by the 5Cusn.6i5.
7 register, shall be prima facie evidence of the facts therein stated. 3 Gray", 255'.
i Allen, 77. 99 Mass. 64. 130 Mass. 368.
1 Section 11. Each register shall keep a docket with an alpha- Docket; duties
2 betical index of all cases in the court of his county, in which he il^m^s-
3 shall enter every case by its appropriate title and number with brief igll) fff *ili^3§ 5.
4 memoranda of all proceedings and papers filed therein. The docket, f-^- 118> §§ 7>
5 and all books, records, documents and papers in his office relative to if eg, 259, § 2.
6 insolvency shall at all reasonable times be open to the inspection of
7 the public. He shall make computations of dividends and orders
8 of distribution, and shall furnish to the assignee a certified copy of
9 the schedules of creditors and assets filed in each case, and of the
10 orders of distribution, and with each copy of an order of distribu-
11 tion a dividend sheet, without charge therefor. He may administer
12 all oaths required in proceedings before the court, except the oath
13 named in section eighty-eight.
1 Section 12. Assignments, warrants, orders of notice and other warrants, etc.,
2 processes issued by the court shall be under the seal thereof, and awe?ertc!urn"
3 shall be executed and obeyed throughout the commonwealth ; and ^ f^; 1 1[
4 any officer or other person to whom they are legally directed may ^; §; \lf I ^;
5 serve them in any county. Warrants shall be returnable not less
6 than ten nor more than sixty days from the date of their issue.
1 Section 13. Parties to insolvency proceedings may select the selection of
2 newspapers in which notices which may be ordered upon their peti- fo^notlces.8
3 tions shall be published, but the court may order the notice to be efknl, §12.
4 published in one other newspaper. p. s. 157, §11.
1 Section 14. Each county shall provide suitable court rooms counties to
2 and, in the city or town in which the registry of probate and insol- roomlet?.111*
3 vency is situated, a suitable fireproof room in which the records, G?!.nV§3i3.
4 books, documents and papers relative to the business of the court P-s.i57, §12.
5 and the records in cases in insolvency shall be kept.
1436
COURTS OF INSOLVENCY.
[Chap. 163.
Expenses.
1856, 284, § 23.
G. S. 118, § 14.
P. S. 157, § 13.
Section 15. Expenses attending the sessions of the courts and 1
the transaction of business therein, for blank books for records and 2
for blank forms and stationery necessary for the business of the 3
courts shall be paid by the commonwealth. 4
Rules, etc.
1838, 163, § 18.
1851, 327, § 16.
1856, 284, § 10.
Section 16. The judges or a majority of them shall, as pro- 1
vided in section twenty-nine of chapter one hundred and sixty-two, 2
from time to time make rules and prescribe forms for their courts. 3
G. S. 118, §§ 15, 16.
P. S. 157, §§ 14, 15.
1893, 372, § 1.
Jurisdiction
of supreme
judicial court.
1838, 163, § 18.
1851, 327, § 16.
G. S. 118, § 16.
P. S. 157, § 15.
1894, 164, § 4.
4 Met. 504.
2 Cush. 294.
4 Cush. 270.
7 Cush. 183.
Section 17. The supreme judicial court shall have general 1
superintendence and jurisdiction of cases arising under the provi- 2
sions of this chapter ; and, except as otherwise provided, may, upon 3
the bill, petition or other proper process of a party aggrieved, hear 4
and determine the case as a court of equity. 5
8 Gray, 316.
9 Gray, 355.
16 Gray, 137.
5 Allen, 530.
6 Allen, 118, 560.
7 Allen, 112.
107 Mass. 79.
132 Mass. 466.
139 Mass. 84.
145 Mass. 444.
150 Mass. 574.
157 Mass. 252.
165 Mass. 5S2.
166 Mass. 379.
168 Mass. 100, 103.
171 Mass. 239.
Rules as to
notice.
1890, 420, § 2.
Section 18. The supreme judicial court and the courts of in- 1
solvency shall make rules requiring notice to be given to the parties 2
interested or their attorney who has entered his appearance of any 3
motion, hearing or other proceeding before said courts. 4
Appearance
by attorney.
1838, 163, § 15.
G. S. 118, § 33.
P. S. 157, § 34.
1890, 420, § 1.
Section 19. A duly authorized attorney at law may enter his 1
appearance as attorney for the party represented by him in any 2
proceeding in a court of insolvency and may act for him at all 3
meetings. Processes and notices served upon such attorney shall 4
have like effect as if served upon the party whom he represents. 5
Petition.
1838, 163, § 1.
1855, 363.
1858, 93, § 10.
G. S. 118, §17.
1881, 233.
P. S. 157, § 16.
1893, 405, § 1.
1 Cush. 531.
4 Allen, 170.
6 Allen, 118.
138 Mass. 372.
petition by debtor, first meeting.
Section 20. An inhabitant of this commonwealth owing debts, 1
contracted while such inhabitant, may file a petition in the court 2
of insolvency for the county, if any, in which he has last resided or 3
had a usual place of business for three consecutive months, other- 4
wise in the court for the county in which he resides or has a usual 5
place of business, stating his inability to pay his debts and his 6
willingness to assign his property for the benefit of his creditors, 7
and praying that such proceedings may be had as are provided in 8
this chapter. 9
Warrant to
messenger.
1838, 163, §§ 1, 2.
1841, 124, § 1.
1844, 178, § 10.
1846, 168, § 4.
1848, 304, § 6.
1850, 319.
1854, 329, § 4.
G. S. 118, § 18.
1879, 107.
P. S. 157, § 17.
7 Cush. 136.
165 Mass. 317.
Section 21. If it appears to the satisfaction of the judge that the 1
debts due from the petitioner amount to two hundred dollars or 2
more, he shall forthwith sign and issue a warrant to the sheriff of 3
the county or one of his deputies ordering him forthwith as mes- 4
senger to take possession of all the property of the debtor not ex- 5
empt from attachment, and of all his deeds, books of account and 6
papers , and keep the same safely until the appointment of an assignee ; 7
to publish notice in such newspaper or newspapers as the warrant 8
specifies, send written notice by mail or otherwise to all creditors 9
upon the schedule furnished him by the debtor and to give such per- 10
sonal or other notice to any persons concerned as the warrant orders. 11
Such notice shall state that a warrant has issued against the prop- 12
Chap. 163.] courts of insolvency. 1437
13 erty of the debtor ; that the payment of any debts and the delivery
14 of any property belonging to such debtor, to him or for his use, and
15 the transfer of any property by him are forbidden by law ; that a
16 meeting of the creditors of the debtor to prove their debts and choose
17 one or more assignees of his property will be held at a court of in-
18 solvency to be held at a time and place designated in the warrant, not
19 less than ten nor more than sixty days after the date of its issue.
1 Section 22. The messenger shall forthwith demand and receive Messenger to
2 from the debtor and other persons all the property in his or their property.
3 possession, which is herein ordered to be assigned, with all the G3|A6i88,§§6i9.
4 deeds, books of account and papers of the debtor relative thereto. ^|Iet5^| 18#
2Cush. 48. 8 Allen, 134. 148 Mass. 69.
1 Section 23. Upon demand by the messenger under the pro- Delivery of
2 visions of the preceding section, the debtor shall forthwith deliver schelSe byd
3 to him such of the property and other things demanded as is in his ^toi6'3 § 6.
4 possession or power, and shall disclose the situation of such portion *|4|> ^ § "^
5 thereof as is in the possession of any other person. The debtor 1862,179,' § i. '
6 shall also, except as provided in the following section, within three a Met. 75'. '
7 days after the date of the warrant make on oath and deliver to the 137 a88' & '
8 messenger a schedule, containing a full and true account of his
9 creditors, with the residence of each, if known to the debtor, and
10 the amount due to each, and the nature of each debt, whether
11 founded on written security, account or otherwise, and also the
12 true cause and consideration thereof, and a statement of any exist-
13 ing mortgage, pledge or other collateral security given for the pay-
14 ment of the same.
1 Section 24. If by accident or mistake such schedule is not Late schedule.
2 delivered to the messenger within said three days it shall be so de- '
3 livered within such time thereafter as will enable the messenger to
4 comply with the terms of the warrant, and such delay shall not
5 affect the granting of a certificate of discharge unless caused by the
6 default of the debtor.
1 Section 25. If the court finds that the property of the debtor sale of perish.
2 or any part thereof is perishable or likely to deteriorate in value i848,304,p§ei5T*
3 before an assignee can be appointed, it may order the same to be p.' |; J57' | |o.'
4 sold in such manner as it orders under the direction of the messen-
5 ger who shall hold the funds received in place of the property sold.
1 Section 26. After a warrant has issued against the estate of an Messenger to
2 insolvent debtor and before the appointment of an assignee, the acS^yordei
3 judge may at any time order the messenger to commence an action il^ng,' § 2.
4 for the recovery of a debt due to the debtor or do any other act p- s- 157» § 21-
5 which might be done by an assignee. The messenger shall there-
6 upon in his own name commence and prosecute such action or do
7 any other act so ordered as if he were assignee. If, upon the ap-
8 pointment of the assignee, an action or proceeding commenced by
9 the messenger has not been determined, the assignee may in his own
10 name or in the name of the messenger with his consent prosecute it
11 or otherwise proceed.
1438
COURTS OF INSOLVENCY.
[Chap. 163.
Delivery of
schedule of
creditors, etc.,
by debtor to
register.
1838, 163, § 6.
1841, 124, § 2.
1S54, 32J, § 3.
G. S. 118, § 22.
1862, 179, § 1.
P. S. 157, § 22.
Section 27. The debtor shall, except as provided in the follow- 1
ing section, within five days after the date of the warrant make on 2
oath and deliver to the register a schedule of his creditors as 3
provided in section twentj^-three, and a schedule of all his property, 4
with a description thereof, stating where it is situated, and all 5
encumbrances thereon, with the date of each and the consideration 6
thereof. 7
Late
schedules.
1863, 71.
P. S. 157, § 23.
Section 28. If by accident or mistake such schedules are not 1
delivered to the register within said five days they shall be so 2
delivered before or at the first meeting of the creditors and such 3
delay shall not affect the granting of a certificate of discharge unless 4
caused by the default of the debtor. 5
First meeting.
1838, 163, § 6.
1841, 124, § 2.
1848, 304, § 8.
1854, 329, § 3.
G. S. 118, §§ 22,
23.
P. S. 157, § 24.
Section 29. At the meeting held in pursuance of the notice, 1
the messenger shall make return of the warrant and his doings 2
thereon, and deliver to the register the schedule of creditors re- 3
ceived from the debtor. If the court finds that the notice to the 4
creditors required by the provisions of section twenty-one has not 5
been given, it shall forthwith adjourn the meeting and order such 6
notice. 7
debtor.0* Section 30. If the debtor dies after the warrant has been
g3| nl §« 24 issuea\ the proceedings shall be concluded in like manner and with
p.' s.' 157,' § -is.' like effect as if he had lived. 3
1
2
Claims
provable.
1838, 163, §§ 2,
3, 7, 12, 13.
G. S. 118, § 25.
P. S. 157, § 26.
7 Met. 348, 424.
6 Cush. 537.
7 Cush. 592.
5 Gray, 574.
10 Gray, 600.
15 Gray, 274.
3 Allen, 22, 64.
5 Allen, 163.
13 Allen, 294.
134 Mass. 69.
138 Mass. 111.
144 Mass. 109.
152 Mass. 596.
156 Mass. 515.
157 Mass. 33.
166 Mass. 379.
174 Mass. 475.
177 Mass. 224.
DEBTS AND PEOOF OF CLAIMS.
Section 31. Debts due and payable from the debtor at the time 1
of the first publication of the notice of issuing the warrant may be 2
proved and allowed against his estate at any meeting ; and debts at 3
that time absolutely due, although not payable, may be proved and 4
allowed as if pa}rable, with a discount or rebate of interest if no in- 5
terest is payable by the contract. Money due on a bottomry or 6
respondentia bond or policy of insurance may be proved and al- 7
lowed, if the contingency or loss happens before the making of the 8
first dividend, in like manner as if the same had happened before 9
the first publication of the notice. If the debtor is liable for a debt 10
in consequence of having made or indorsed a bill of exchange or 11
promissory note before said first publication, or in consequence of 12
the payment by a party to a bill or note of a part of the money 13
secured thereby, or of the payment of an amount by a surety of the 14
debtor in a contract, if the payment is made before the making of 15
the first dividend, such debt may be proved and allowed as if it had 16
been due and payable by the debtor before the first publication. All 17
demands against the debtor for or on account of goods or chattels 18
wrongfully obtained, taken or withheld by him, may be proved and 19
allowed as debts, to the amount of the value thereof. 20
Equitable
claims.
1884, 293.
8 Allen, 581.
141 Mass. 283.
Section 32. An equitable liability of an insolvent debtor may 1
be proved and allowed against his estate in like manner and subject 2
3
to like conditions as a legal claim.
143 Mass. 326.
158 Mass. 38S.
177 Mass. 224.
Chap. 163.] courts or insolvency. 1439
1 Section 33. If any of the property of a debtor consists of a Leases, etc.
2 lease or agreement in writing, whereby he is liable for the rent p.7!'. 157, §26.
3 therein reserved or for the use and occupation of premises as therein \H ^lll'. lot'.
4 stipulated, the assignee at any time may, and upon request in writ-
5 ing by the debtor, or by the lessor or those having his estate in the
6 premises shall, within twenty days after such request, by a writing
7 filed in the case, elect to accept and hold under said lease or agree-
8 ment or to disclaim it. If he elects to disclaim, such lease or
9 agreement in writing shall thereupon be considered to have been
10 surrendered as of the day on which said disclaimer was so filed. If
11 the debtor obtains his discharge in insolvency, he shall be discharged
12 from all liability under or by reason of said lease or agreement,
13 whether the assignee does or does not disclaim the same as afore-
14 said ; and the lessor or those having his estate in the premises may
15 prove such damages, if any, as are caused by such surrender, as a
16 debt against the estate of the debtor ; but the provisions of this
17 section shall not apply to leases or agreements in writing as afore-
18 said in force on the twenty-second day of April in the year eighteen
19 hundred and seventy-nine.
1 Section 34. Mutual credit or mutual debts between the debtor set-off.
2 and a creditor shall be set off one against the other and the balance g8|'.\?8,§§326.
3 allowed Or paid. 5Cush. 194. 4 Gray, 284. 7 Gray, 425. ^Met*!^ 27'
3 Allen, 111. 4 Allen, 368. 131 Mass. 14. 138 Mass. 330. 10 Met. 194.
1 Section 35. The assignee, by an assignment in writing of a proof of claim
2 non-negotiable legal chose in action, may prove a claim in insol- tiiereoi?nee
3 vency, in his own name, subject to all defences and rights of counter- 1897> 402#
4 claim, recoupment or set-off to which the debtor would have been
5 entitled if the claim had been proved in the name of the assignor.
1 Section 36. A creditor who has a mortgage or pledge of prop- Mortgage,
2 erty of the debtor, or a lien thereon, to secure the payment of a ^i^m^f!1'
3 debt claimed by him, may require such property to be sold, and p; |.' 157,' f fl'
4 the proceeds applied toward the payment of his debt, and he shall lcnsh'999'
5 be admitted as a creditor for the residue. The sale shall be made 6 Gray, 523.
6 in such manner as the court orders and the creditor and assignee 261.
7 shall execute necessary and proper deeds and papers. If the cred- 130 Mass. 132.
8 itor does not require such sale and join in the conveyance, he may i|[ Mass- 71>
9 release and deliver to the assignee the property held as security, J37 Mass! 412!
10 and be admitted as a creditor for the whole of his debt. If the J?2 5J*88- SI!?-
143 Mass. 3/6,
11 property is not so sold or released and delivered the creditor shall 455.
12 not prove any part of his debt. 150 Mass. 317. 175 Mass. 547.
1 Section 37. A mortgage of land recorded more than four Mortgage
2 months after its date shall not be valid against an assignee of the tnanrfourmore
3 estate of the mortgagor if proceedings in insolvency are commenced ^^ths after
4 within one year from the recording of such mortgage. 1888,393.
163 Mass. 85. 172 Mass. 384.
1 Section 38. A mortgage or pledge of property, or payment of w^e^ces*
2 money given or made by an insolvent debtor for legal services ren- }jS9M420- „,„
3 dered or to be rendered in, or in contemplation of, insolvency
4 proceedings, shall be valid for such amount as the court allows.
1440
COURTS OF INSOLVENCY.
[Chap. 163.
An appeal from the decision of said court shall be allowed in the 5
manner provided in section forty-five. 6
Claims to be
proved on
oath.
1838, 163, § 4.
1848, 304, § 14.
1851, 189, §1;
349, § 1.
1852, 189, §§ 1, 2.
1856, 284, § 35.
G. S. 118, § 28.
P. S. 157, § 29.
8 Allen, 581.
147 Maes. 122.
Section 39. No debt shall be proved or allowed unless the
creditor, or, if he resides in a foreign country and the debt is
founded on a contract made by the debtor with the consignee or
agent of the creditor residing in the United States, such consignee
or agent makes oath in substance as follows : —
I, , do swear that , of , by (or against) whom proceedings
in insolvency have been instituted, at and before the date 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 belief, received any security or satisfaction whatever, beyond
what has been disposed of agreeably to law. And I do further swear that said
claim was not procured by me for the pui'pose of influencing 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 whatsoever to my-
self, or to any person or persons to my use or benefit, under or with any under-
standing or agreement, express or implied, whereby my vote for assignee or my
assent to the debtor's discharge is or shall be in any way affected, influenced, or
controlled, or whereby the proceedings in this case are or shall be affected,
influenced or controlled.
1
2
3
4
5
No claim shall be allowed unless all the statements set forth in 6
the oath are true. 7
attorney. Section 40. If the creditor is disabled by absence from the 1
1852, 189, §§i,2. commonwealth, illness or other cause from proving; his claim, the 2
hr. b. lis, § Z9. A ^ a .
p. s. 157, § so. above oath may be made by his agent or attorney testifying to 3
the best of his knowledge and belief; but the court may require 4
further proof of the truth of the statements therein. 5
Before whom
oath may be
made.
1838, 163, § 4.
1858, 93, § 9.
G. S. 118, § 30.
1879, 245, § 2.
1880, 246, § 1.
P. S. 157, § 31.
1899, 178, § 4.
3 Gray, 113.
Section 41. The oath may be made within the commonwealth 1
before a justice of the peace, notary public or special commissioner 2
and, without the commonwealth, before a justice of the peace, 3
notary public or commissioner for Massachusetts, and, if the cred- 4
itor is in a foreign country, before an ambassador, minister, consul 5
or vice-consul of the United States. But the court may at any 6
time require the affiant to appear personally before it to be further 7
interrogated on oath. The debtor and any party proving a debt 8
may be examined on oath in presence of the judge on all matters 9
relative thereto. 10
Postponement
of claims.
1856, 284, § 33.
G. S. 118, § 31.
P. S. 157, §32.
165 Mass. 582.
Section 42. If a claim is presented for proof before the election
of an assignee, and the court is of opinion that the validity or right
of such claim ought to be investigated by the assignee, it may
postpone the proof of the claim till after the assignee is chosen.
1
2
3
4
Claims not to
be allowed.
1838, 163, § 10.
1856, 284, § 32.
G.S. 118, '§32.
P. S. 157, § 33.
172 Mass. 227.
177 Mass. 257.
Section 43. A person who has accepted a preference, having 1
reasonable cause to believe that it was made or given by the debtor 2
contrary to any provision of this chapter, shall not prove the debt 3
or claim on account of which such preference was made or given, 4
nor receive a dividend thereon. 5
Chap. 163.] courts of insolvency. 1441
1 Section 44. The court shall allow all debts proved and shall Allowance and
* expunging of
2 cause a list thereof to be made and certified by the register. It f*LmB-
3 may upon application by the assignee, a creditor, or the debtor, g.s. us, § 33.
4 examine upon oath any person who has made proof of a claim and p.s'.i57,|§k,
5 may summon any person to give evidence relative to such proof, ffs Mass. 592,
6 and may alter or expunge such claim if the evidence shows that it ^5 Mass! 587!
7 is founded in whole or in part in fraud, illegality or mistake.
1 Section 45. A supposed creditor whose claim is wholly or in Appeal.
2 part rejected or an assignee who is dissatisfied with the allowance G?f.1ii8,§§»*.
3 of a claim may appeal from the decision to the superior court; but fg'gf,' Ifl.'ff.6'
4 no appeal shall be allowed unless it is claimed and notice thereof f g^- |7J-
5 given to the register, to be entered with the record of the proceed- •> gush. 615.
6 ings, and also to the assignee or creditor, as the case may be, within 11 Gray, ik.
7 ten days after the decision appealed from. The appeal shall be 33s Mass. 592.
8 entered at the return day of the superior court for the county next 163 Mass! 2^"
9 after the expiration of fourteen days from the time of claiming i^Mass. 587.
10 it. If the appellant in writing waives his appeal before the entry
11 thereof, proceedings may be had in the court of insolvency as if no
12 appeal had been taken.
1 Section 46. Upon the entry of an appeal the appellant shall ^g^g^f8,
2 file in court a statement of his claim substantially as in a declara- £• |. lis, § 3*5.
3 tion at law. The subsequent pleadings and proceedings shall be 168 Mass. 514.'
4 substantially as in an action at law, except that no execution shall
5 be awarded agai
6 to the creditor.
5 be awarded against the assignee for the amount of a debt found due
1 Section 47. The final judgment of the court shall be conclusive, Judgment on
2 and the lists of debts shall, if necessary, be altered to conform i83sf i63, §4.sts*
3 thereto. The prevailing party shall be entitled to costs, to be p.'i.'isf'fff;
4 taxed and recovered as in an action at law ; if recovered against 7 Met- 85-
5 the assignee, they shall be allowed out of the estate.
1 Section 48. A bill of exchange, promissory note or other in- Evidence of
2 strument used as evidence upon the proof of a claim and left in oY^ahn!™1
3 court or deposited in the registry may be delivered by the register G^l'.nsAar.
4 to the person who used it, upon his filing a copy thereof attested p- s- 157> § 39-
5 by the register, who shall also indorse upon it the name of the
6 party against whose estate it has been proved and the date and
7 amount of any dividend declared thereon.
ASSIGNMENT AND ASSIGNEE.
1 Section 49. The creditors shall, subject to the approval of the choice of
2 court, choose one or more assignees of the estate of the debtor in i838fi«f,'§ 3.
3 the presence of the court at the first meeting. The choice shall be g?I.iiV§§ 38,
4 made by a majority in value of the creditors who have proved their |^2 179 § 3
5 debts ; but if the number of creditors present amounts to five and ™ 7| 9J%,'§ 2-
6 less than ten, the votes of two at least, and, if the number of cred- 41.
7 itors amounts to ten or more, the votes of three at least, shall be
8 necessary for a choice, and no creditor having a preferred claim
9 shall vote thereon, except on so much of said claim as exceeds the
10 amount preferred by law. If no choice is made by the creditors at
1442
COURTS OF INSOLVENCY.
[Chap. 163.
said meeting, the court shall appoint one or more assignees. If an
assignee so chosen or appointed fails within four days to accept in
writing the trust, the court may fill the vacancy. The court may
appoint additional assignees or order a new election, or it may at
the first meeting without an election appoint one or more disin-
terested assignees.
11
12
13
14
15
16
Section
by
writing
50. The court at any time may, and, upon request in
one-fourth in number and value of the creditors who
Bond of
assignee.
1844, 178, § 11
g. s. 118, §§ 40, have proved their claims, shall, require the assignee to file a bond,
approved by the judge, to the judge and his successors in office,
conditioned for the faithful performance of his duties, which shall
inure to the benefit of all creditors proving their claims and may be
prosecuted in like manner as an administration bond. An assignee
who fails to give a bond within such time as the court orders, not
exceeding ten days after notice to him of such order, shall be re-
moved and another appointed by the court.
41
1862, 179, § 4.
1879, 245, § 9.
P. S. 157, §§ 42,
43.
4 Gray, 286.
6 Gray, 364.
1
2
3
4
5
6
7
8
9
10
4d^fnmentby Section 51. The judge shall, by an instrument under his hand, 1
G3f nl' §« 42 assign and convey to the assignee all the property of the debtor, 2
p." s." 157,' § 44." not exempt from attachment, and all his deeds, books and papers 3
97 Mass. 253. , ,. ,, l , r r .
153 Mass. 311. relative thereto. 4
Record of as-
signment and
notice.
1838, 163, § 11.
G. S. 118, § 43.
P. S. 157, § 45.
5 Allen, 126.
130 Mass. 368.
Section 52. The assignee shall forthwith cause the assignment 1
to be recorded in the registry of deeds in each county or district in 2
which there is land of the debtor upon which it may operate ; and 3
shall give such public notice of his appointment as the judge may 4
order. 5
Agent of non-
resident as-
signee.
1889, 313.
1893, 118.
Section 53. An assignee appointed in, but residing out of, this 1
commonwealth shall not receive the instrument of assignment until 2
he shall have appointed an agent as provided in sections eight to 3
ten, inclusive, of chapter one hundred and thirty-nine, and the pro- 4
visions of said sections shall apply to such appointment except that 5
said writing shall be filed in the registry of insolvency. Notice of 6
a new appointment of an agent, with his name and address, shall 7
be given in the next notice required to be given by the assignee, or 8
as the court may order. 9
Effect of
assignment.
1838, 163, § 5.
1851, 327, § 20.
G. S. 118, §§ 44,
123
1862, 179, 5 7.
1879, 245, § 3.
1380, 246, § 7.
P. S. 157, § 46.
4 Met. 346, 537.
8 Met. 19.
9 Met. 23.
4Cush. 357.
3 Gray, 247.
7 Gray, 539.
9 Gray, 42.
1 Allen, 373.
5 Allen, 126,
382, 582.
8 Allen, 20, 598.
10 Allen, 258,
460.
12 Allen, 345.
98 Mass. 305.
in the assignee all the
Section 54. The assignment shall vest
property of the debtor, not exempt from being taken on execution,
which he could have lawfully sold, assigned or conveyed at the time
of the first publication of the notice of issuing the warrant in case
of voluntary proceedings, and at the time of the first publication of
notice of the filing of the petition in case of involuntary proceed-
ings, and shall, subject to the provisions of the following section,
dissolve any attachment on mesne process made not more than four
months prior to the. time of said first publication. The assignment
shall vest in the assignee all debts due to the debtor or a person for
his use, and all liens and securities therefor, and all his rights of
action for, and of redeeming, property. The assignee may redeem
all mortgages, conditional contracts, pledges and liens of or upon
any property of the debtor, or sell it subject to such mortgage or
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Chap. 163.] courts of insolvency. 1443
15 other encumbrance, and if a mortgage is foreclosed pending pro- 100 Mass. 446,
16 ceedings in insolvency and before, or within sixty days after, the ap- 102 Mass. 475.
17 pointment of an assignee the assignee may redeem the same within 1I9 Matsllfjk.
18 sixty days after his appointment, with remedies similar to those pro- ^Mass! lei'
19 vided for the redemption of mortgages before foreclosure. 147'Ma1'
149 Mass. 158, 310. 154 Mass. 302. 163 Mass. 350, 530. 146 U. S. 303.
153 Mass. 311. 159 Mass. 420. 172 Mass. 384. 175 U. S. 396.
1 Section 55. If a debtor whose property is attached conveys Attachments,
2 before judgment in the action any part of such property, and sub- im, i24,8|I5.ed'
3 sequently thereto and before execution issues, proceedings are com- \^\ j^7.
4 menced by or against him as an insolvent debtor, or if a dissolution p- f ; J^> | jj>-
5 of an attachment under the provisions of the preceding section 435jfgt4|jj0
6 might prevent the property attached from passing to the assignee, 2 cush'. 124.
7 the court in which proceedings in insolvency are pending or to 6 Gray, 523'.
8 which the writ of attachment is returnable, may, upon application mMaisf'ik,
9 on or before the day of the third meeting of creditors by a person if^Mass. 399,
10 interested, for cause, order the lien created by the attachment to f||Ma88 147>
11 continue. The action may be continued or execution stayed until
12 the assignee is chosen and takes charge of the action. The assignee
13 may proceed with the action and levy the execution at the expense
14 of the estate ; and the amount recovered, exclusive of costs due to
15 the original plaintiff, shall vest in the assignee.
1 Section 56. The assignee shall demand and receive from the Assignee to
2 messenger and all other persons all the property in his or their recefwprop-
3 possession assigned or intended to be assigned under the provisions accounts.keep
4 of this chapter ; and shall keep a regular account of all money re- J|3| ^ § ^
5 ceived by him as assignee, to which every creditor shall at reason- r. s. 157,' § 48.
6 able times have free access.
1 Section 57. The assignee shall, unless the court otherwise inventory.
2 orders, at or before the second meeting of the creditors, make and p. s. 157, § 49.
3 return upon oath to the court of insolvency a true inventory of all
4 the property of the debtor, of all debts due to the debtor or an-
5 other person for his use, of all his rights of action for and of redeem-
6 ing property, which the assignment has vested in such assignee
7 and which have come to his possession or knowledge. The property
8 included in such inventory shall be appraised in like manner as
9 the estate of a deceased person, and the appraisal returned at or be-
10 fore said meeting.
1 Section 58. The assignee shall account for the property of the Assignee to
2 debtor which has vested in him by the assignment, at the appraised property at ap
3 value, except as herein provided. He shall make no profit by the i86i,sio4,v§ 2^e"
4 increase and sustain no loss by the decrease or destruction, with- K>cush!r7350'
5 out his fault, of any part of the property ; if he sells any thereof ix6^ass359o.
6 for more than the appraised value, he shall account for the excess, 154 Mass. 51.
7 but if he sells for less, the court may, if it appears that the sale
8 was expedient and for the interest of all concerned in the estate,
9 allow him for the loss. In either case the assignee shall return to
10 the court a true account of sales, and shall sell the property at
11 public auction unless the court, upon petition therefor, otherwise
12 orders.
1444
COURTS OF INSOLVENCY.
[Chap. 163.
Assignee
to commence
and prosecute
actions, etc.
183S, 163, § 5.
G. S. 118, § 47.
P. S. 157, § 51.
1 Gray, 416.
10 Gray, 329.
5 Allen, 582.
10 Allen, 36, 460.
130 Mass. 368.
148 Mass. 299.
157 Mass. 468.
163 Mass. 350.
Section 59. He may recover all the property and debts, in his 1
own name, as the debtor might have done had no assignment been 2
made. If at the date of the assignment an action is pending in the 3
name of the debtor for the recovery of a debt or other thing which 4
might or ought to pass to the assignee by the assignment, the 5
assignee shall, if he so requires, be admitted to prosecute the action 6
in his own name, in like manner and with like effect as if com- 7
menced by him. No action pending in the name of the assignee 8
shall be abated by his death or removal ; but the surviving, remain- 9
ing or new assignee, as the case may be, shall be admitted to prose- 10
cute the action. The assignment by the judge shall be conclusive 11
evidence of the authority of an assignee to sue. 12
Limitation of
actions.
1895, 432.
7 Met. 348.
Section 60. An assignee shall not commence or be made a 1
party to an action or other proceeding at law or in equity relative 2
to any property or rights thereto unless the same is commenced 3
within six years from the time when the right accrued to or against 4
the insolvent. The provisions of section nine of chapter two hun- 5
dred and two shall apply to such actions and proceedings. 6
G. S. 118, §48
P. S. 157, § 52,
8 Gray, 572.
signed' within8' Section 61. A draft, bill of exchange, promissory note, claim, 1
six months, not demand or other cause of action, which within six months before 2
to be offset. , . ' . .
1856, 284, § 28. the filing of the petition by or against a debtor has been assigned, 3
transferred, conveyed or delivered to a person indebted or liable to 4
the debtor shall not be set off or pleaded in defence in an action 5
by the assignee to recover such debt or liability ; but the assignee 6
may recover the same, notwithstanding such draft, bill of exchange, 7
promissory note, claim, demand or cause of action, if the person to 8
whom it has been so assigned, transferred, conveyed or delivered 9
had at the time of such assignment, transfer, conveyance or delivery 10
reasonable cause to believe the debtor insolvent. 11
Property to be
kept separate
by assignee.
1838, 163, § 11.
G. S. 118, § 49.
P. S. 157, § 53.
Section 62. The assignee shall, as soon as may be after receiv- 1
ing any money belonging to the estate, deposit it in a bank in his 2
name as assignee, or otherwise keep it distinct and apart from 3
all other money in his possession ; and shall as far as practicable 4
keep all other property of the estate separate and apart from all 5
other property in his possession, or designated by appropriate 6
marks, so that it may be easily and clearly distinguished and not 7
be exposed or liable to be taken as his property or for the payment 8
of his debts. 9
Temporary
investment of
property,
when.
1859, 119.
G. S. 118, § 50.
P. S. 157, § 54.
Section 63. If the court finds that the distribution of the estate 1
may be delayed by litigation or other cause it may order the tern- 2
porary investment of the money of such estate in securities approved 3
by the judge, or may authorize its deposit in a bank in this common- 4
wealth upon such interest as the bank may contract with the assignee 5
to pay thereon. 6
Carrying on
of business.
1897, 120.
Section 64. The court may for cause order the messenger or 1
assignee to carry on the business of the debtor or any part thereof 2
under its direction. 3
Chap. 163.] courts or insolvency. 1445
1 Section 65. The assignee shall give written notice to all known Notice of divi-
2 creditors by mail or otherwise of all dividends, and such notice of me'etmls!1
3 meetings after the first as the judge orders, g. s. us, § 51. p. s. 157, § 55. if^; Hl\ § 4-
1 Section 66. He shall be allowed by the court from the money compensation
2 in his hands the necessary disbursements made by him in the per- lsV^iSITii-
3 formance of his duty, and a reasonable compensation for his services, p.' f." 157' I II'
1 Section 67. He may, under the direction of the court submit submission to
2 anv controversy which arises in the settlement of claims bv or 1838, 163, § ii.
f1 S IIS fi ^^
3 against the estate to the determination of arbitrators who shall be p.' s.' 157,' §57."
4 chosen by him and the adverse party ; and may under such direc- n Cush* 582'
5 tion compromise and settle any such controversy if in his judgment
6 it is proper and for the interest of the creditors.
1 Section 68. If the court finds that the title to any property of fbil °ro?ferth"
2 the estate which has come into possession of the assignee is in pendingdis-
3 dispute and that the property is perishable or liable to deteriorate isss, 73.
i™1 ^ n ft k ka
4 in value, it may, upon petition by the assignee and notice to the p.' s." 157,' §58.'
5 claimant, his agent or attorney, order it to be sold under the direc-
6 tion of the assignee, who shall hold the proceeds in place of the
7 property sold ; and such proceeds shall be the measure of the value
8 of the property in an action or controversy between the parties.
9 But the provisions of this section shall not prevent the recovery of
10 the property from the possession of the assignee by action of re-
11 plevin commenced at any time before the court orders the sale.
1 Section 69. When an assignee has received from the estate Accounts.
2 assets sufficient to pay fifty per cent of the debts and claims proved (Ifs.nl.Vss.
3 against it, he shall certify the fact and render his accounts therefor P- S- 157> § 59-
4 to the court ; and when he has received twenty-five per cent more
5 from the assets, he shall in like manner certify and render his ae-
6 counts therefor. He shall also certify and render his accounts when
7 required by the court.
1 Section 70. At a meeting called by order of the judge in his Removal of
2 discretion for the purpose, and which shall be called upon the creditors. 7
3 petition of a majority of the creditors in number or value, the ill; 69?' § U"
4 creditors may, with the consent of the court, remove an assignee by p; f ; 157* | |oI
5 such vote as is provided in section forty-nine for the choice of 9 cash. 382.
6 assignee.
1 Section 71. If the court, upon complaint of any person inter — by court
2 ested in the estate, after notice and a hearing, finds that an assignee pFa°int?om"
3 has fraudulently received, concealed, embezzled or conveyed away Gft.3u8,§§67.
4 any of the money or other property of the estate or has been inter- ^'Iray^ill.1'
5 ested in an action at law relative to said estate for the purpose of
6 securing to himself a preference or priority over the other creditors,
7 or has in his possession or control any part of the estate with intent
8 to appropriate the same unlawfully to his own use, or has been
9 guilty of a fraudulent act relative thereto it may remove him.
1 Section 72. The court may also remove an assignee who, having other grounds
2 removed from the commonwealth, unreasonably refuses or neglects 1851^9^2.
1446
COURTS OF INSOLVENCY.
[Chap. 163.
If5! nsVss *° °bey a lawful order for calling meetings of the creditors, to 3
p. s. 157,' § 62. settle his accounts, or otherwise to perform his duties ; and for any 4
other sufficient cause. 5
Besignation of
assignee.
1858, 141, § 3.
G. S. 118, § 59.
Section 73. An assignee, may with the consent of the court 1
resign his trust and be discharged therefrom. p. s. 157, §63. 2
Fining of Section 74. Vacancies caused by death or otherwise in the office
vacancies. * ,
1838, 163, §§ 2, of assignee may be filled by the court or in its discretion by an
1858, hi, §§ 2, 3. election by the creditors as provided in section forty-nine at a
r"1 s lis s fin *
p.' s." 157,' § 64.' regular meeting or at a meeting called for the purpose, after notice
9gAiien, 197, thereof in writing to all known creditors by such person as the
court orders.
1
2
3
4
5
6
Section 75.
The resignation or removal of an assignee shall J
Effect of resig-
nation, etc.
Wk ns §63'i no^ release him fr°m performing all things required of him for the 2
p.' s.' 157,' § 65.' proper closing up of his trust and the transmission thereof to his 3
successors, nor affect his liability or that of his surety on his bond. 4
Vesting of
estate upon
death, etc.
1838, 163, § 11.
1848, 304, § 12.
1851, 349, § 2.
G. S. 118, § 62.
P. S. 157, § 66.
Section 76. If by death or otherwise the number of assignees 1
is reduced, the estate of the debtor not lawfully disposed of shall 2
vest in the remaining assignee or assignees and the persons selected 3
to fill vacancies, with the same powers and duties relative thereto 4
as if they had been originally chosen. 5
FiS'^lfL^ Section 77. A former assignee, his executor or administrator, 1
execute deeds, upon request and at the expense of the estate, shall make and exe- 2
1838, 163, § 11. cute to the new assignee all deeds, conveyances and assurances, and 3
do all other lawful acts, necessary to enable him to recover and 4
receive all the estate ; and the court may pass orders to secure per- 5
formance of the duties of a former assignee, and the rights and 6
interests of all persons interested in the estate. 7
1851, 349, § 2
1858, 141, § 4
G. S. 118, § 63.
P. S. 157, § 67.
uorsenot(tored' Section 78. No person ivho has received a preference contrary 1
1856 284 534 ^° *ne Provisi°ns °f this chapter shall vote or be eligible as assignee ; 2
g. s'. us, § 64. but no title to property, sold, transferred or conveyed by an as- 3
signee shall be affected by reason of his ineligibility. 4
P. S. 157, § 68.
Penalty for
neglect, etc.
1838, 163, § 23.
G. S. 118, § 65.
P. S. 157, § 69.
Appointment
upon death of
assignee with
accounts un-
settled.
1891, 400, § 1.
Section 79. An assignee refusing or unreasonably neglecting 1
to execute an instrument when lawfully required by the court, or 2
disobeying a lawful order or decree of the court, may be committed 3
to jail in the county in which he is found or in which he resided 4
when appointed, until he obeys such order or decree. 5
Section 80. If an assignee has died and it does not appear of 1
record that his accounts have been settled or that the property of 2
the estate has been disposed of or distributed by him, and the court 3
in which proceedings in insolvency were commenced, upon petition 4
by a creditor or the insolvent or a person who claims under either of 5
them, after public notice and a hearing, finds as alleged in such 6
petition that there is property to which the assignee would be en- 7
titled if living and which, if real estate, does not appear of record 8
to have been convej^ed by him or his heirs, representatives or 9
devisees, it shall, unless cause is shown to the contrary, although 10
Chap. 163.] couets of insolvency. 1447
11 there may be no record of the proceedings in the case, appoint an
12 assignee who may be required to give bond in such form and with
13 such surety or sureties as it may order. Such property shall there-
14 upon vest in said assignee, shall be sold at public or private sale by
15 him and the net proceeds disposed of as hereinafter provided.
1 Section 81. The assignee shall give notice of his appointment Distribution.
~ ~ *■ 1891 400 §§2 3
2 in a daily newspaper published in Boston and in one published in
3 the county of his appointment, once in each of five successive
4 weeks, calling upon creditors to file their claims in said court
5 within three months from a date stated in the notice subsequent to
6 the first publication of said notice. The court shall hear and decide
7 all claims so filed within said period, subject to appeal in like man-
8 ner as other claims in insolvency, and all other claims shall be
9 barred. When the amount due on such claims finally allowed has
10 been ascertained or upon the expiration of said period without
11 claim, the assignee shall apply for a decree of distribution, which
12 shall be made after public notice, shall designate the claimants, to
13 whom and in what proportions the amount in his hands shall be
14 paid, and shall bind all parties. But the provisions of this and the
15 preceding section shall not divest any title held by a bona fide pur-
16 chaser who claims directly or indirectly under the insolvent.
EXAMINATION OF DEBTOR.
1 Section 82. The debtor shall, if required by the court at any Examination
2 time before the granting of his certificate, upon reasonable notice, otner^persons.
3 attend and submit to an examination on oath before the court, by g3I\ n38,§§66.
4 the assignee or by a creditor, relative to his trade and dealings, his p88^ f^ i]:0
5 property and debts, and all matters which may aifect the settlement qHeHI|-
6 of his estate; and upon cause shown by affidavit of any person 3 Gray, 115,250.
7 interested in the estate, the court may summon any person sus- 9 AUen, 573.
8 pected of having fraudulently received, concealed, embezzled or i52Mass.OT7.
9 conveyed away property of the debtor, or of having assets of the 159 Ma88, 193,
10 debtor in his possession, or having knowledge of any thing material
11 relative to the assets or dealings of the debtor, to appear and sub-
12 mit to an examination in like manner. If the person summoned
13 fails after notice to appear and submit to such examination, or
14 to answer such interrogatories as are lawfully propounded to
15 him, the court may commit him to the jail of the county until
16 he submits to the order of the court. The judge may require such
17 examinations to be in writing, signed by the person examined, and
18 filed in court.
1 Section 83. If the debtor is in jail on an action or proceeding Examination
2 for or on account of a debt or claim provable against his estate, at prison.ori
3 any time before the granting of his certificate and if his attendance g3|\ n38,§§967.
4 is required before the court or the assignee, or at a meeting of his p- s- 157> § 71-
5 creditors, the judge may, by a writ, require the jailer to produce
6 the debtor for said purposes, at a time and place specified in the
7 writ.
1 Section 84. If the debtor, by reason of imprisonment, illness, — ifinorun.
2 or other sufficient cause, is unable to attend before the court or the 1838,163, §9.
1448
COURTS OF INSOLVENCY.
[Chap. 163.
G. S. US, § 68.
P. S. 157, § 72.
assignee or at a meeting of his creditors, the court or a person ap- 3
pointed by it and the assignee, or a person appointed by him, shall 4
conduct the examination of the debtor in jail or elsewhere, if he is 5
within this commonwealth. 6
Examination
of debtor
if out of the
common-
wealth.
183S, 163, § 9.
G. S. 118, § 69.
P. S. 157, § 73.
Section 85. If the debtor is without this commonwealth and 1
unable to return and personally attend at any of the times and for 2
the purposes specified in this chapter, and if the court finds that 3
such absence was not caused by his wilful default, and as soon as 4
may be after the removal of such impediment he offers to attend 5
and submit to an examination on oath before the court and the as- 6
signee as herein provided and to do all things required by the pro- 7
visions of this chapter for the purpose of obtaining his certificate, he 8
shall be entitled thereto in like manner as if he had done the same 9
things at the times herein provided. 10
Debtor to do
all necessary
acts.
1838, 163, § 5.
G. S. 118, § 70.
P. S. 157, § 74.
157 Mass. 468.
133 U. S. 107.
Section 86. The debtor shall, at the expense of the estate, 1
make and execute such deeds and writings and indorse such bills, 2
notes and other negotiable papers, draw such checks and orders for 3
money deposited in banks or elsewhere and do such other lawful 4
acts as the assignee reasonably requires and as are necessary or 5
useful to confirm the assignment, and enable the assignee to demand, 6
recover and receive all the property so assigned, especially any 7
part thereof which is without this commonwealth. 8
Failure to exe-
cute instru-
ments, etc.
1838, 163, § 23.
G. S. 118, §71.
P. S. 157, § 75.
2 Met. 573.
157 Mass. 468.
Section 87. If the debtor refuses or unreasonably neglects to 1
execute an instrument lawfully required by the court or disobeys a 2
lawful order or decree, the court shall issue its warrant to a civil 3
officer, commanding him to arrest and commit the debtor to the 4
jail in the county in which he may be found, or in which he dwelt 5
at the time of his insolvency until he obeys such order or decree. 6
Second meet-
ing. Oath.
1838, 163, § 7.
1854, 329, § 3.
G. S. 118, § 72.
P. S. 157, § 76.
11 Cush. 164.
SECOND AND THIRD MEETINGS. OATH AND DISCHARGE.
Section 88. The judge shall appoint a second meeting of the 1
creditors, to be held at a court not more than three months after 2
the date of the warrant. The debtor may then amend and correct 3
his schedule of creditors, and shall take and subscribe an oath before 4
the court, Avhich shall be certified by him and filed in the case, in 5
substance as follows : — 6
I,
-, do swear that the account of my creditors contained in the sched-
ule 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, not exempt from at-
tachment, except such as has been necessarily expended for the support of my-
self and my family, and all my books of account and papers, relative 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 such of my said
estate, books and papers as has since come to my possession ; and that if any
other estate, books of account or papers, which shall or ought to be assigned
and delivered to the assignee, shall hereafter come to my knowledge or pos-
session, I will forthwith disclose or deliver them to him. And I do further swear
that there is not any part of my property made over or disposed of in any man-
ner for the future benefit of myself or my family, or in order to defraud my
creditors.
Chap. 163.] courts of insolvency. 1449
1 Section 89. If a debtor or assignee who is required to make oatnsoutof
2 oath before the judge is unable by reason of illness or other cause im%, § i.
3 to attend personally in court, the oath may be administered out of p- s- 157» § 77.
4 court by the judge or by a person to whom a commission is issued
5 therefor.
1 Section 90. If by reason of proceedings in the supreme judicial i^w°cf0Stet
2 court or for other cause, a failure to call or hold a second or third *p| 3^9, §i.
3 meeting within the time provided occurs, the court may, upon peti- i862,'i79,'§8.
4 tion by an interested party, order such meeting to be held at a sub-
5 sequent date.
1 Section 91. Upon the death, resignation or neglect of the —by register
2 assignee, or his absence from the county, whereby a meeting to be court. erof
3 notified by him is liable to be defeated, it may be notified by the G?s'.3nV§274.
4 register on the order of the judge upon petition by an interested p-s- 157Ȥ79-
5 party, with notice at the discretion of the judge to the assignee if
6 living.
1 Section 92. The judge shall appoint a third meeting of the Third meeting.
2 creditors to be held within six months after the appointment of the discharge6 °
3 assignee. If at such meeting or a meeting thereafter, the court Jiff; ]fg|| \\
4 finds that the debtor has made a full disclosure and delivery of all ^f4| ^ §§975
5 his property as herein required, and that he has conformed to the £-^-1{f'3L80'
6 provisions of law relative to insolvent debtors, the iud^e shall grant 442.
. . ~ ~ 7 Allen 112
7 him a certificate which shall state all fiduciary debts exempt from
8 discharge, and be in substance as follows : —
Commonwealth of Massachusetts.
, ss. Court of Insolvency.
To all people to whom these presents shall come, I, A. B., judge of the court Form of cer-
of insolvency for said county of , send greeting. discharge
Whereas it has been made to appear to me that C. D., of B., in said county 139 Mass. 84.
of , whose estate has been assigned for the benefit of his creditors accord-
ing to law, has made a full disclosure and delivery of all his estate, and that he
has conformed to the provisions of law in that behalf made and provided, I do
certify that said C. D. is absolutely and wholly discharged from all his debts
which have been or shall be proved against his estate assigned as aforesaid, and
from all debts which are provable against his estate, and which are founded on
any contract made by him within this commonwealth or to be performed within
the same, and from all debts which are provable as aforesaid, and which are
founded on any contract made by him, and due to any persons who were resi-
dent 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. — or in involuntary proceedings — of the first publication of
the notice of the filing of the petition against said C. D.) ; and from all claims
against him for or on account of any goods or chattels wrongfully obtained,
taken or withheld by him, according to the provisions of chapter one hundred
and sixty-three of the Revised Laws. And I do further certify that said CD.
is by force of said chapter forever discharged and exempted from arrest or im-
prisonment in an action or upon any proceeding, for or on account of any debt or
demand 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
1 Section 93. The debtor shall thereupon, except as provided in Effect of
2 sections ninety-six and ninety-seven, be discharged from debts how pleaded.
3 proved against his estate and from all debts provable under the pro- af s^ii^Vre.
1450
COURTS OF INSOLVENCY.
[Chap. 163.
1879, 245, § 4.
P. S. 157, § 81.
10 Met. 332.
6 Cush. 225.
8 Cush. 375.
11 Cush. 29, 355.
13 Gray, 203.
1 Allen, 456,512.
5 Allen, 10.
8 Allen, 315.
Ill Mass. 77.
130 Mass. 503.
132 Mass. 186,
466.
133 Mass. 557.
134 Mass. 488.
139 Mass. 84.
150 Mass. 353.
151 Mass. 589.
156 Mass. 515.
165 Mass. 76.
166 Mass. 577.
168 Mass. 28.
172 Mass. 154.
173 Mass. 258.
visions of this chapter and founded on any contract made by him 4
while an inhabitant of this commonwealth, if made within this com- 5
monwealth, to be performed therein or due to any person resident 6
therein at the time of the first publication of the notice of the issu- 7
ing of the warrant in voluntary proceedings or of the first publi- 8
cation of the notice of the filing of the petition in involuntary 9
proceedings, and from all demands for or on account of any prop- 10
erty wrongfully obtained, taken or withheld by him, as provided in 11
section thirty-one, while such inhabitant. Such discharge may be 12
pleaded by a simple averment that on the day of its date it was 13
granted to the debtor, setting forth a copy thereof, as a full and 14
complete bar to all actions brought on such debts or claims. The 15
certificate shall be conclusive evidence of the fact and regularity of 16
such discharge. 177 Mass. 224. 17
fromtaprison- Section 94. If the debtor at the time of obtaining his certificate 1
merit. is in jail on an action or proceeding for or on account of a claim 2
g. s. ii8, § 77. provable against his estate, he shall be discharged from such im- 3
150 Ma°ss. 415." prisonment, upon producing to the jailer his certificate granted 4
under the provisions of this chapter. . 5
— from arrest
and property-
exempt from
attachment,
etc.
1838, 163, § 7.
1850, 97.
G. S. 118, § 78.
P. S. 157, § 83.
7 Met. 257.
12 Allen, 365.
136 Mass. 73.
150 Mass. 411.
164 Mass. 155.
166 Mass. 126,
128.
170 Mass. 405.
172 Mass. 519.
Section 95. The debtor shall also be forever thereafter dis- 1
charged and exempt from arrest or imprisonment in any action or 2
proceeding for or on account of a debt or demand provable against 3
his estate. And the property of the debtor acquired by him sub- 4
sequently to the time of the first publication of the notice of the 5
issuing of the warrant in voluntary proceedings or of the first pub- 6
lication of the notice of the filing of the petition in involuntary 7
proceedings shall not be subject to attachment by trustee process 8
or otherwise in any action to recover a debt which may have been 9
so provable and due to any person not resident in this common- 10
wealth at the time of such first publication, or founded on a con- 11
tract existing at the time of said first publication and made or to be 12
performed out of this commonwealth. 13
Debts not
discharged.
1844, 178, § 3.
1848, 304, § 10.
G. S. 118, § 79.
1879, 245, § 5.
1881, 257, § 2.
P. S. 157, § 84.
18S5, 353, § 6.
9 Gray, 211.
15 Gray, 547.
1 Allen, 219,
456.
5 Allen, 210.
7 Allen, 264.
12 Allen, 366.
100 Mass. 498.
132 Mass. 283.
158 Mass. 250.
176 Mass. 460.
Section 96. No debt created by the debtor's defalcation as a 1
public officer, executor, administrator, guardian, receiver, trustee 2
or assignee of an insolvent estate, or by the fraud or embezzlement 3
of the debtor, nor claim for goods attached on mesne process or 4
taken on execution by the debtor as an officer or for misfeasance in 5
office, nor debt or claim against a pledgee created by his sale of 6
collateral securities in a manner not authorized by his contract with 7
the pledgor or by the provisions of sections eight and nine of chap- 8
ter one hundred and ninety-eight shall be discharged under the 9
provisions of this chapter, but the dividend declared thereon shall 10
be payment of so much of said debt or claim. A claim for neces- 11
saries furnished to the debtor or his family shall not be so discharged 12
unless the claim has been proved against his estate.
13
Action on
claim omitted
from schedule.
1897, 427.
Section 97. A creditor having a claim against an insolvent 1
debtor which was omitted from the schedule of creditors as filed 2
by said debtor, and who has not proved his claim, may, subject to 3
the provisions of the preceding section, recover from the debtor in 4
an action at law, notwithstanding a discharge in insolvency, the 5
Chap. 163.] courts or insolvency. 1451
6 same amount that the other creditors received who proved their
7 claims.
1 Section 98. A discharge shall not release a person liable for the Persons jointly
2 same debt as a partner, joint contractor, indorser, surety or other- ^ased?0* re"
3 wise for or with the debtor. g. s. us, § so. p. s. 157, § 85. 1838' 163' § 7*
1 Gray, 623. 10 Gray, 333. 168 Mass. 102. 170 Mass. 179.
1 Section 99. A discharge shall not be granted to a debtor whose Discharge by
2 assets do not pay fifty per cent of the claims proved against his ftors?to cred"
3 estate, unless the assent in writing of a majority in number and illl; if |; 1 1;
4 value of his creditors who have proved their claims has been filed Jf4| ^ ^A
5 within six months after the date of the assignment. p. s. 157,' § 86.
3 Gray, 254. 9 Gray, 364. 5 Allen, 10. 11 Allen, 566.
1 Section 100. A discharge shall not be granted to a debtor a— uponsubse-
2 second time insolvent whose assets do not pay fifty per cent of the vency.anso1"
3 claims proved against his estate, unless the assent in writing of is^ 257'. §§ 5' 6'
4 three-fourths in value of his creditors who have proved their claims p*- f • Hf 1 1|-
5 has been filed within six months after the date of the assignment. ^sb-%^
■xt t i in i i • • i 10 Gray, 327.
6 No discharge shall be granted to a debtor a third time insolvent, 106 Mass. 224.
7 unless he has paid all the debts owed by him at the time of his pre-
8 vious insolvency or has been voluntarily released therefrom by his
9 creditors.
1 Section 101. A creditor may assent to the debtor's discharge Assent of cred.
2 under the provisions of the two preceding sections, although an standing101"
3 appeal from the allowance of his claim is pending, and such assent f^ 293.
4 shall be valid if the claim is finally allowed. 3 Gray, 255. p.' I.' 157' § II.'
1 Section 102. In determining the requisite assent of creditors, Preferred cred.
2 no preferred claim which is paid in full, and, if not paid in full, no vote8130"0
3 part thereof which is paid, shall be regarded. pfs'.if/.lib.
1 Section 103. If a discharge has been refused a debtor for the Discharge of
2 sole reason that the assent of the requisite majority of his creditors byaccident^
3 has not been seasonably obtained or filed, or for the reason that he oaCtn.to take
4 has not taken the oath required by the provisions of section eighty- *|5| ^ H
5 eight, the judge, upon petition by the debtor within two years after isso, 246,'§4. '
6 the date of the assignment and with the written assent of a majority, 168 Mass. 232.'
7 or, in case of his second insolvency, of three-fourths in number and
8 value of the creditors who have proved their claims, may, if the
9 debtor takes the oath and obeys all lawful orders of the court, grant
10 his discharge, if after notice and a hearing, he finds that the failure to
11 obtain or file the assent was caused by accident or mistake or other
12 sufficient cause and by no fault of his own, or that the omission to
13 take the oath was owing to his inability by reason of illness, acci-
14 dent or mistake to attend and take such oath.
1 Section 104. The debtor or the assignee may, within ten days Appeal on
2 after the decision of the judge upon the question of granting the ^charge!
3 certificate of discharge to a debtor, upon notice to the register to ^ 304; | ii.
4 be entered with the record of proceedings, appeal from such decision ^ .' I.' 157' 1 91."
5 to the superior court. The appeal shall be entered at the return 1885,384,' §5.
1452
COURTS OF INSOLVENCY.
[Chap. 163.
11 Gray, 184.
7 Allen, 112.
132 Mass. 466.
177 Mass. 580.
Proceedings.
1838, 163, § 8.
G. S. 118, § 86.
1864, 254.
P. S. 157, § 92.
day next after the expiration of fourteen days from the time of 6
claiming it. If the appellant in writing waives his appeal before 7
the entry thereof, proceedings may be had in the court of insolvency 8
as if no appeal had been taken. 9
Section 105. The superior court shall, upon demand in writing 1
filed with the clerk by the debtor, the assignee or a creditor, frame 2
issues of fact for trial by jury, which shall be tried as nearly as may 3
be as an action at law ; otherwise the appeal shall be heard and de- 4
termined by the court. The assignee or a creditor may appear and 5
object to the allowance of the certificate. If upon a hearing the 6
court finds that the debtor has made a full disclosure and delivery 7
of all his estate as herein required, and that he has conformed to the 8
provisions of this chapter, it shall cause a certificate thereof sub- 9
stantially as provided in section ninety-two to be made under its 10
seal, signed by the clerk and delivered to the debtor. 11
Forfeiture of
discharge by
fraud of cred-
itor.
1838, 163, § 10.
1841, 124, § 3.
1844, 178, § 8.
1848, 304, § 9.
1856, 284, § 31.
185S, 54.
G. S. 118, § 87.
1881, 235, § 2.
P. S. 157, § 93.
1886, 322.
1898, 465.
8 Met. 490.
8 Cush. 103, 377
12 Cush. 596.
5 Allen, 124.
6 Allen, 327.
11 Allen, 555.
13 Allen, 182.
128 Mass. 124.
132 Mass. 233.
136 Mass. 38,
340.
166 Mass. 379.
MATTERS AVOIDING DISCHARGE.
Section 106. A discharge shall not be granted or be valid, if 1
the debtor has wilfully sworn falsely to a material fact in the pro- 2
ceedings, or if he has fraudulently concealed any part of his prop- 3
erty or any books or writings relative thereto ; or has made a 4
fraudulent payment, gift, transfer, conveyance or assignment of 5
any part of his property, or spent any part thereof in gaming ; or 6
if, within six months before the filing of the petition by or against 7
him, he has obtained on credit from a person any property or other 8
thing of value, with intent not to pay therefor ; or has procured his 9
property to be attached, sequestered or seized on execution ; or has 10
destroyed, altered, mutilated or falsified any of his books, docu- 11
ments, papers, writings or securities or has made or been privy to 12
the making of any false or fraudulent entry in a book of account 13
or other document with intent to defraud his creditors ; or with in- 14
tent to defraud his creditors has expended, invested or used any 15
part of his property in the erection, alteration, repair or location of 16
a building, portion of a building, structure or other object, on land 17
owned or leased wholly or in part by another so that it cannot be 18
lawfully removed ; or has removed himself or removed or caused to 19
be removed any part of his property from the commonwealth with 20
intent to defraud his creditors ; or if, having knowledge that a per- 21
son has proved a false claim against his estate, he has not disclosed 22
the same to his assignee within one month after such knowledge ; 23
or, except as provided in the following section, if, being a merchant 24
or tradesman, he has not kept proper books of account. A dis- 25
charge shall be void if the debtor or a person in his behalf has 26
procured the assent of a creditor thereto by a pecuniary consider- 27
ation. 28
Discharge
when books of
account not
kept.
1894, 496.
11 Allen, 562.
Section 107. If the sole reason for not granting a discharge to 1
a debtor is that he has not kept proper books of account and if no 2
fraud is proved and the debtor has never been discharged in insol- 3
vency, the judge may after the expiration of six months from the 4
date of the assignment grant his discharge if the total amount of the 5
claims proved do not exceed five thousand dollars and two-thirds in 6
Chap. 163.] courts of insolvency. 1453
7 number and a majority in value of the creditors who have proved
8 their claims assent thereto in writing.
1 Section 108. If a person, in contemplation of becoming insol- avoided^6
2 vent and of obtaining a discharge in insolvency, makes a payment, fraudulent
3 pledge, assignment, transfer or conveyance of any part of his prop- 1838, 163, § io.
4 erty, directly or indirectly, absolutely or conditionally, for the lssel zu, § 25.
5 purpose of preferring a creditor or person who has a claim against p.' f ; 157; f gf;
6 him, or is or may be under any liability for him, or for the purpose 8 Met 62> 3T7,
7 of preventing the property from coming to the hands of his assignee
8 in insolvency, or from being distributed under the laws relative to
9 insolvency in satisfaction of his debts, he shall not be entitled to a
10 discharge, and a discharge, if received by him, shall be void.
1 Section 109. A creditor whose debt was proved or provable —how con.
2 against an estate may, within two years after the date of a certificate llra^ks, §4.
3 of discharge, apply by petition to the court which granted it to annul 173 m^s. Hi.'
4 the same, on the ground that it was fraudulently obtained, specify-
5 ing all acts mentioned in section one hundred and six relied on
6 in avoidance, and no evidence shall be admitted as to any other of
7 such acts ; but the petition may be amended in the discretion of
8 the court. If after notice to the debtor and a hearing the fraudu-
9 lent acts charged or any of them are proved and the court finds that
10 the creditor had no knowledge thereof until after the granting of
11 the discharge, it shall be annulled ; otherwise it shall not be affected
12 thereby.
PREFERENCES.
1 Section 110. If a person who is insolvent or in contemplation Fraudulent
2 of insolvency, within six months before the filing of the petition by is1t8™i63,8§io.
3 or against him, for the purpose of preferring a creditor or person \^'t ^ |§325>
4 who has a claim against him or who is under any liability for him, ^-g 118 §89
5 procures any part of his property to be attached, sequestered or ^v1^,5 96-
6 seized on execution, or makes a payment, pledge, assignment, 2Cush. w'o.
7 transfer or other conveyance of any part of his property, either 3 Gray', 595'.
8 directly or indirectly, absolutely or conditionally, the person re- 6 Gray) 100!
9 ceiving such payment, pledge, assignment, transfer or conveyance, id^AUen^i.
10 or to be benefited thereby, having reasonable cause to believe such ^Mass.'5935
11 person is insolvent or in contemplation of insolvency and that such i°J™ass-™£-
10 .lij • j. • i • f i *■ 128 Mass. 120.
12 payment, pledge, assignment, or conveyance is made in fraud 01 131 Mass. 504.
13 the laws relative to insolvency, it shall be void ; and the assignees 135 Mass! 299!
14 may recover the property or the value thereof from the person so 142 Mass! if.'
15 receiving it or so to be benefited. 151 Mass. 142. ill Mass! elf'
152 Mass. 249. 159 Mass. 365. 166 Mass. 323. 171 Mass. 74, 341. 507.
153 Mass. 242. 161 Mass. 274. 168 Mass. 401. 177 Mass. 257.
156 Mass. 114. 164 Mass. 182. 169 Mass. 291. 164 U. S. 347.
1 Section 111. If a person who is insolvent or in contemplation Fraudulent
2 of insolvency, within six months before the filing of the petition by i856,82^§ 27.
3 or against him, except as provided in section thirty-eight, makes p." f; 157,' 1 1| ."
4 a sale, assignment, transfer or other conveyance of any part of his § Alien' 451.
5 property to a person having reasonable cause to believe him insol- J|2AUeI1' 173'
6 vent or in contemplation of insolvency, and that such sale, as- 135 Mass. 299.
J 139 Mass. 566.
7 signment, transfer or other conveyance is made in order to prevent 142 Mass! 51s!
o ±.\ 2. j? j. if- • • • i ± 147 Mass. 388..
o the property from coming to his assignee in insolvency, or to 510.
1454
COURTS OF INSOLVENCY.
[Chap. 163.
14S Mass. 48.
153 Mass. 243,
502.
159 Mass. 271,
365, 498.
171 Mass. 341.
164 U. S. 347.
prevent it from being distributed under the laws relative to in- 9
solvency, or to defeat the object of, or to impair, hinder, impede or 10
delay the operation and effect of, or to evade, any of said provi- 11
sions, the sale, assignment, transfer or other conveyance shall be 12
void, and the assignee may recover the property or the value thereof 13
as assets of the estate. If such sale, assignment, transfer or con- 14
veyance is not made in the usual and ordinary course of business 15
of the debtor, that fact shall be prima facie evidence of such cause 16
of belief. 17
pi^cedfn^°sec-f Section 112. The provisions of the six preceding sections 1
is56S284 °5 25 sna^ n°t apply to a payment of money or transfer of property in 2
<?•?'• us, §?o. payment, not exceeding twenty-five dollars in amount, upon a debt 3
contracted for necessaries furnished to the debtor or his family. 4
P. S. 157, § 97.
Allowance to
debtor.
1838, 163, §§ 6,
G. S. 118, § 92
P. S. 157, § 99.
1888, 67.
8 Cush. 109.
160 Mass. 232.
ALLOWANCE AND SURPLUS.
Section 113. The debtor shall receive from the assignee one 1
8- dollar a day for his attendance upon the court or the assignee if 2
required under the provisions of section eighty-two. He shall also 3
be allowed out of his estate, for the necessary support of himself 4
and family, such amount not exceeding the rate of three dollars a 5
week for each member of his family, and for such time not exceed- 6
ing two months, as the court orders." A debtor who is discharged 7
shall be allowed five per cent on the net proceeds of all his estate 8
received by the assignee, if such net proceeds after such allowance 9
is sufficient to pay the creditors entitled to a dividend the amount 10
of fifty per cent on their debts ; but the allowance shall not exceed 1 1
in all five hundred dollars. In case of the absence of the debtor or 12
his failure to apply for either of said allowances the judge may 13
allow the same amount to his wife or any minor child or children 14
of the debtor. 15
— how paid in
case of death.
1838, 163, § 5.
G. S. 118, § 93.
P. S. 157, § 100.
Section 114. If an allowance to the debtor on the net proceeds 1
of his estate becomes due and is not paid to him in his lifetime, it 2
shall be paid to his executor or administrator, and be disposed of in 3
like manner as other property of which he may be possessed at his 4
decease. 5
retu^eVto36 Section 115. If after the payment of all debts proved a sur- 1
im°im §13 P^us remams m the hands of the assignee, it shall be paid or re- 2
g. s'. us, § 94. conveyed to or revest in the debtor or his legal representatives. 3
P. S. 157, § 101. 6 Met. 203.
Accounts.
1838, 163, § 12.
G. S. 118, § 95.
1862, 179, § 6.
P. S. 157, § 102.
1884, 126.
10 Cush. 173,
498.
6 Gray, 366.
14 Gray, 154.
ACCOUNTS AND DIVIDENDS.
Section 116. At the third meeting the assignee shall exhibit 1
under oath to the court and creditors present fair and just accounts 2
of all his receipts and payments relative to the estate, and may be 3
examined relative thereto by the court. If there are two or more 4
joint assignees their accounts may be allowed upon the oath of one 5
of them. The notice of the third and all subsequent meetings of 6
creditors shall contain a statement that the accounts of the assignee 7
will be presented, and that creditors may appear and object to the 8
Chap. 163.] courts of insolvency. 1455
9 allowance thereof. Special notice of the presentation of accounts
10 may be ordered at other times by the court to be given in such
11 manner as it orders. In all cases the judge shall pass upon the
12 reasonableness of the accounts of assignees, although no creditor
13 appears to object.
1 Section 117. The judge shall at said third meeting order a div- Dividend.
2 idend of the property, or a part thereof, among the creditors who g!^\ H8>§§925.
3 have proved their claims, in proportion to their respective debts; pJl.ist §i'o3.
4 but, at any time after the assignment, upon request of the assignee 8 Allen» 318-
5 or a creditor, and upon notice to the creditors and assignee, the
6 judge may order the payment, in whole or in part, of claims entitled
7 to priority or preference under the provisions of this chapter.
1 Section 118. In the order for a dividend under the provisions Preferred
2 of the preceding section, the following claims shall be first paid in i&}8™163, §§ 12,
3 full in the following order : — f^ 124 § 6
4 First, The twenty-five dollars or expense of publication as pro- \®>o, 218. ^
5 vided in section one hundred and seventy paid by a creditor and £p| iw-
6 the legal fees, paid by him, of an officer for the service of the 96'. '
7 order of notice to the debtor upon the original petition and for the i83,'§ii. '
8 service of a writ of injunction issued to restrain the transfer or dis- p. '!'. i57,§§§ 104,
9 position of any part of the debtor's property, not exempt from \f^ 394j §§ g_8<
10 attachment, and from any interference therewith. i3CGray3307
11 Second, The legal fees of the messenger. 138 Mass. 99.
12 Third, Debts due to the United States, and debts due to and isoMass.iso.
13 taxes assessed by this commonwealth, or a county, city or town
14 therein.
15 Fourth, Wages, to an amount not exceeding one hundred dollars,
16 due to a clerk, servant or operative for labor performed within one
17 year last preceding the first publication of the notice, or for labor
18 for the recovery of payment for which an action commenced within
19 one year after the performance thereof is pending, or has terminated
20 within one year from said first publication.
21 Fifth, Debts due to physicians for medical attendance on the
22 debtor or his family, rendered within six months prior to the insti-
23 tution of proceedings in insolvency, to an amount not exceeding
24 fifty dollars.
25 Sixth, Debts due to persons who by the laws of the United States
2Q or of this commonwealth are or may be entitled to a priority or
27 preference in like manner as if this chapter had not been enacted.
28 Seventh, Other legal fees, costs and expenses of suit, and for 152 Mass. 596.
29 the custody of the property proved as preferred under the pro-
30 visions of section one hundred and seventy-four.
1 Section 119. Upon petition by a creditor upon whose petition Allowance to
2 a warrant has issued against a debtor and after notice to such debtor credito^ffr
3 and his assignee, if any, the court may allow as a preferred claim etc™861 fee8'
4 against the estate such amount as said creditor has actually paid for 1897> 119-
5 his expenses and for counsel fees incurred for services rendered
6 upon such petition and in the legal proceedings connected there-
7 with prior to the issuing of the warrant. Such petition shall be
8 verified by the oath of the creditor and of the counsel to whom such
9 money was paid.
1456
COURTS OF INSOLVENCY.
[Chap. 163.
Section 120.
The estate shall be liable for wages due to an
Wages due to
an operative
from an opera- operative from another operative who has contracted or agreed to
tivs "workinsr
under contract, do certain specified work for the debtor, to the amount of one hun-
p.7s. 157, § 105. dred dollars, for labor actually performed on such work within one
year last preceding the first publication of the notice, and in the
division of the estate such wages shall have the priority given to
wages due to operatives under the provisions of the preceding sec-
tion ; but all payments under the provisions of this section shall be
charged to the account of the operative who, as principal has con-
tracted or agreed to do the work, and such payments, and the
liability herein imposed, shall not exceed the amount due such
principal operative for such work performed within the time here-
inbefore mentioned. The provisions of this section shall not apply
to cases within the provisions of sections one hundred and sixty-four
to one hundred and sixty-eight, inclusive, of chapter one hundred
and eleven.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Reservation
for absent
creditors.
1838, 163, § 12.
G. S. 118, § 97.
P. S. 157, § 106.
Section 121. If at the time of ordering the dividend it appears 1
probable that there are just claims against the estate which for 2
sufficient reason have not been proved, the judge in ordering the 3
dividend shall leave in the hands of the assignee an amount suffi- 4
cient to pay every such absent creditor a proportion equal to what 5
shall be then paid to the other creditors. Such amount shall re- 6
main thus unappropriated in the hands of the assignee until the 7
final dividend is declared, or until the judge orders its distribution. 8
Unclaimed
dividends.
1883, 242.
1897, 303, § 1.
Section 122. If a dividend, which the judge has declared or 1
which has become payable to a creditor who has proved his claim 2
under a composition confirmed by the court remains for six months 3
unclaimed, the assignee or, in a case of composition, the register, 4
may deposit it in a savings bank or other like institution or invest 5
it in bank stock or other stocks, as the court may order, to accu- 6
mulate for the benefit of the person entitled thereto. Such deposit 7
or investment shall be made in the name of the judge and shall be 8
subject to his order and that of his successors in office as hereinafter 9
provided. The person who makes such deposit or investment shall 10
file in court a memorandum thereof, with the original certificate or 11
other evidence of title thereto, which shall be allowed as a voucher 12
for such payment. When the person entitled to the money de- 13
posited has satisfied the judge of his right to receive the same, he 14
shall cause it to be transferred and paid over to him. 15
Unclaimed
deposits.
1897, 303, § 2.
Second
dividend.
Assignee's
accounts.
1838, 163, § 13.
G. S. 118, § 98.
P. S. 157, § 107.
Section 123. If money deposited with a register to secure the 1
payment of fees or to carry out a composition confirmed by the 2
court remains unclaimed for one year after the depositor or other 3
person is entitled to receive it, the register may, under the direc- 4
tion of the judge, deposit it in a savings bank or invest it in the 5
manner and subject to the provisions of the preceding section. 6
Section 124. The assignee shall, at such time as the judge 1
orders within eighteen months after his appointment, declare a sec- 2
ond dividend of the estate, if the property was not wholly distrib- 3
uted upon the first dividend, and shall give notice of a meeting of 4
all the creditors of the debtor for such purpose. At such meeting 5
Chap. 163.] courts or insolvency. 1457
6 the accounts of the assignee shall be produced and examined as
7 provided in section one hundred and sixteen and settled by the
8 court ; and any balance appearing to be in the hands of the assignee
9 shall, by order of the judge be divided among all the creditors who
10 have proved their debts, in proportion thereto.
1 Section 125. If at any time before the final dividend any out- saie.etc., of
2 standing debts or other property due or belonging to the estate debts, etc.
3 which cannot in the opinion of the court be collected and received g. s\ ns, § 99.
4 by the assignee without unreasonable or inconvenient delay, re- p' s" 15/' § 108'
5 main in the hands of the assignee he may under the direction of the
6 court sell and assign such debts or other property in such manner
7 as the court orders.
1 Section 126. An action upon a claim sold by an assignee shall aaimssoidby
2 be brought in the name of the purchaser. The fact of sale and of assignees.
3 purchase by the plaintiff shall be set forth in the writ, and the 1859,194.
4 defendant may avail himself of any matter of defence of which he p.' s." 157,' § 109.'
5 could have availed himself in an action upon the claim by the as- 3 iiien) 993'
6 signee. Costs in such actions shall be recovered by or against the 11 Malt! fof *
7 plaintiff, and the assignee shall not be liable therefor.
1 Section 127. The second dividend shall be final; but if an Further
2 action relative to the estate is then pending or part of the estate is i838,di63?§'i3.
3 outstanding or other property of the debtor afterward comes to the p; f ; 157; f Hl\
4 hands of the assignee, another dividend shall be made by order of
5 the judge. Further dividends shall be made in like manner as
6 often as occasion requires.
1 Section 128. No creditor whose debt is proved at the time of dendsenouo"be
2 the second or any subsequent dividend shall disturb a prior dividend, ?j£gu™33d; 13
3 but he shall be paid so far only as the funds remaining unappropri- g. s*. us, § 162.
4 ated in the hands of the assignee are sufficient therefor.
petition by creditors.
1 Section 129. If a person arrested on mesne process in a civil credito^7
2 action for the amount of one hundred dollars or more founded upon 1838, 163, § 19.
3 a claim provable against the estate of an insolvent debtor, has not 12,13.
1851 189 § 2
4 given bail therein on or before the return day of such process, or i856| 284|'§§ 25,
5 has been actually imprisoned thereon for more than thirty days ; g.' s. us, § 103.
6 or if a person whose property has been attached on mesne process \%l't f^j 1 1;
7 in such action founded upon such contract has not before the return pf g'.2^ § 112.
8 day of such process dissolved the attachment as provided by law ; *|j°> **i. 2
9 or if a person has removed himself or any part of his property from ^u, 261!
10 the commonwealth, with intent to defraud his creditors; or has 2 Met. 573.
11 concealed himself to avoid arrest, or any part of his property to scusii. 101.
12 prevent its being attached or taken on a legal process; or pro- \ Gray! 14°!
13 cured his arrest or his property to be attached or taken on legal | Gray,' lie.'
14 process ; or made a fraudulent payment, conveyance or transfer of | Gray, 5o.g
15 any part of his property; or, being a banker, broker, merchant, 128 Mass. 120.
16 trader, manufacturer, contractor, builder or miner, has fraudu- 146 Mass! 385!
17 lently stopped payment, or has stopped or suspended and not re- lb Mass! in!
1458
COURTS OF INSOLVENCY.
[Chap. 163.
sumed payment of his commercial paper within fourteen days ; any 18
of his creditors whose claims provable against his estate amount to 19
one hundred dollars, may, within ninety days thereafter, or, in the 20
case of any such fraudulent conveyance of land, within ninety days 21
after it has been recorded, if the debtor has resided in the common- 22
wealth within one year, file a petition under oath in the court of 23
insolvency for the county, if any, in which the debtor has last 24
resided or had a usual place of business for three consecutive months 25
before the filing of said petition, otherwise in the court for the 26
county in which he resides or last resided, or has or has had a usual 27
place of business, stating the facts and the nature of their claims 28
and praying that his property may be seized and distributed accord- 29
ing to the provisions of this chapter. 30
Notice of peti-
tion, etc.
1879, 245, § 7.
1880, 246, § 2.
1881, 235, § 3.
P. S. 157, § 113.
Section 130. The register shall cause notice of the filing of 1
such petition to be published twice in not more than two news- 2
papers, and shall forthwith make and file a certificate of the fact 3
and date of publication. The actual expense of such publication 4
shall be paid from the amount deposited by the creditor therefor 5
as provided in section one hundred and seventy ; but a hearing 6
upon the petition may be had or a warrant issued thereon prior to 7
the completion of the publication of said notice. The court may, 8
after the commencement of proceedings by or against the debtor 9
and before the hearing upon the petition, by injunction restrain the 10
debtor and any other person from making, transferring or disposing 11
of any part of the debtor's property not exempt from attachment, 12
and from any interference therewith ; and if probable cause appears 13
for believing that the debtor is about to conceal or remove from the 14
commonwealth his property or his evidence of property, or any 15
part thereof or to make a fraudulent conveyance or disposition 16
thereof, the judge may issue a warrant under his hand to the sheriff 17
of the county or one of his deputies, ordering him forthwith as mes- 18
senger to take -possession of all the property of the debtor, not 19
exempt from attachment, and safely keep it until the further order 20
of the court. 21
Warrant.
Proceedings
thereon.
1838, 163, § 19.
G. S. 118, § 104.
P. S. 157, § 114.
6 Met. 518.
4 Cush. 121.
8 Gray, 316.
Section 131. If, after notice of the petition to the debtor by a 1
copy thereof served upon him personally or left at his last and 2
usual place of abode, and a hearing of the petitioner and debtor, or 3
a default by the debtor to appear in pursuance of said notice, the 4
court finds the facts stated in the petition to be true, the judge shall 5
forthwith issue a warrant to take possession of the property of the 6
debtor. The warrant shall be directed, and the property of the 7
debtor shall be thereupon taken and distributed in like manner and 8
with proceedings similar to those herein provided in case of volun- 9
tary petitions. 10
Stay of
proceedings.
1851, 189, § 3.
G. S. 118, § 105.
1880, 246, § 6.
P. S. 157, § 115.
1894, 139.
163 Mass. 171.
Section 132. If a person or corporation has committed an act 1
of insolvency from which he or it should be equitably relieved, the 2
court may upon petition by him or it, with or without notice to the 3
petitioning creditor, stay proceedings in insolvency and if, upon a 4
hearing, it finds that he or it is solvent or that the proceedings 5
ought to be stayed it may dismiss the petition in insolvency. 6
Chap. 163.] courts of insolvency. 1459
petition by creditors of insane persons.
1 Section 133. Any of the creditors of an insolvent insane per- Petition by
2 son, whose claims provable against his estate amount to one hundred fnsane person.
3 dollars, may file a petition under oath in the court of insolvency ^ I33! §§ *' 4"
4 for the county, if any, in which the debtor has last resided or had ^"gf'^os'fs16'
5 a usual place of business for three consecutive months before the
6 filing of said petition, otherwise in the court for the county in which
7 he resides, or has a usual place of business, stating his insolvency
8 and the nature of their claims, and praying that his property may
9 be seized and distributed according to the provisions of this chapter.
10 If after public notice and the appointment of a guardian ad litem
11 for such insane person, and a hearing, the court finds that the
12 interests of the debtor and creditors so require, the judge may
13 issue a warrant to take possession of the property of the debtor
14 and thereupon like proceedings shall be had as in the settlement
15 of estates of other insolvent debtors.
1 Section 134. In such case, the schedules of creditors and of 1^217?!' 2.
2 property required by the provisions of this chapter shall be made p- s- 157i § 117-
3 and filed by the messenger, upon his best information and belief.
4 The debtor shall not be required to attend at any meeting of cred-
5 itors nor be subject to examination, unless ordered by the court.
1 Section 135. Within six months after recovering from his in- Debtor, after
2 sanity, the debtor may petition the court for a discharge from his Som insanity,
3 debts, and shall thereupon be required to deliver to his assignee dis"cha?fey for
4 for the benefit of his creditors any property which was in his hands pfs'. ^ f i'18.
5 or possession or to which he was entitled at the time of the filing
6 of the original petition, and which had not come into the hands or
7 possession of his assignee ; shall make a full disclosure thereof, and
8 shall take and subscribe an oath that he has so done ; shall submit
9 himself to examination thereon, and may within three months after
10 the filing of his petition file the assent in writing to his discharge
11 of a majority in number and value of his creditors who have proved
12 their claims, as provided in section ninety-nine. If the court finds,
13 at a meeting of the creditors called for the purpose, that he has
14 made a full disclosure and delivery of his property as herein re-
15 quired, that he has conformed to the provisions of this chapter so
16 far as applicable and that his assets have paid fifty per cent of the
17 claims proved against his estate, or that the assent in writing to his
18 discharge of a majority in number and value of his creditors who
19 have proved their claims has been filed, the judge shall grant him a
20 certificate, which shall state all fiduciary debts exempt from dis-
21 charge and shall be in the form and have the effect provided by this
22 chapter for discharges of other insolvent debtors.
concealment of property.
1 Section 136. A debtor who after notice of the filing of a peti- £t°nc®f™°*'
2 tion by or against him secretes or conceals property belonging to erty.
3 his estate, or any books, deeds, documents or writings relative g. s\ ns, § 106.
i PS 157 5 119
4 thereto, or removes or causes to be removed the same or any part 13b Mass. W'
5 thereof out of the commonwealth, or otherwise disposes of any part
1460
COURTS OF INSOLVENCY.
[Chap. 163.
thereof, in order to prevent it from coming to the possession of the 6
messenger or assignee, or to hinder, impede or delay either of them 7
in recovering or receiving the same, or who makes a payment, gift, 8
sale, assignment or other conveyance of property belonging to his 9
estate ; or spends any part thereof in gaming, or otherwise except 10
such as may reasonably be expended for the support of himself and 11
family, not exceeding the amount allowable by law, shall be pun- 12
ished by imprisonment in the state prison for not more than five 13
years, or in jail for not more than two years. 14
Petition by or
against part-
nerships.
1838, 163, § 21.
1856, 284, § 37.
1858, 93, § 10.
G. S. 118, § 108.
1881, 233.
P. S. 157, § 120.
1893, 405, § 4.
1894, 30.
2 Cush. 175.
4 Cush. 127.
5 Cush. 224.
11 Cush. 236.
3 Gray, 239, 542.
3 Allen, 554.
101 Mass. 300.
148 Mass. 269.
167 Mass. 123.
PARTNERSHIPS.
Section 137. Upon petition by one or more partners who are 1
insolvent to the court for the county, if any, in which the part- 2
nership has last had a usual place of business for three consecutive 3
months before the filing of such petition, otherwise to the court for 4
the county in which it has or last had a usual place of business, 5
after notice to the other partners if within the commonwealth, or 6
upon petition by a creditor of the partners, the judge may issue a 7
warrant as provided in this chapter, upon which the property of the 8
firm and the separate estate of each of the partners, not exempt 9
from attachment, shall be taken, and the creditors of the firm and 10
the separate creditors of each partner may prove their respective 11
debts. 12
Choice of as-
signee; Joint
aud separate
property.
1838, 163, § 21.
G. S. 118, § 109.
P. S. 157, § 121.
4 Cush. 99.
10 Cush. 458.
5 Gray, 574.
10 Gray, 254,
260. 263.
13 Gray, 115,
465.
148 'Mass. 269.
160 Mass. 171.
163 Mass. 352.
165 Mass. 312.
166 Mass. 379.
177 Maes. 52.
Section 138. The assignee shall be chosen by the creditors of 1
the firm and shall keep separate accounts of the joint property of 2
the firm, and of the separate estate of each member thereof; and 3
after deducting from the whole amount received by him the total 4
expenses and disbursements paid, the net proceeds of such joint 5
property shall be appropriated to pay the creditors of the firm, and 6
the net proceeds of the separate estate of each partner shall be ap- 7
propriated to pay his separate creditors. If there is a balance of 8
the separate estate of a partner after the payment of his separate 9
debts, it shall be added to such joint property for the payment of 10
the firm creditors. If there is a balance of such joint property after 11
the payment of the firm debts, it shall be divided and appropri- 12
ated to and among the separate estates of the several partners ac- 13
cording to their respective rights and interests therein, and as it 14
would have been if the partnership had been dissolved without 15
insolvency ; and the amount so appropriated to the separate estate 16
of each partner shall be applied to the payment of his separate 17
debts. 18
Limited
partnerships.
1838, 163, § 22.
G. S. 118, § 110.
P. S. 157, § 122.
101 Mass. 300.
Section 139. The provisions of the two preceding sections 1
shall apply to insolvent limited partnerships formed under the pro- 2
visions of chapter seventy-one or the corresponding provisions of 3
earlier laws ; but the separate estates and separate debts of the 4
special partners shall not be subject to the proceedings against the 5
partnership. 6
Separate allow-
ance to each
partner.
Section 140. Each partner shall be entitled to allowance as 1
hereinbefore provided for the maintenance of himself and family ; 2
Chap. 163.] courts of insolvency. 1461
3 and the allowance from the net proceeds of the estates as provided JP| \^ § ^
4 in section one hundred and thirteen shall be computed on the firm f^'i57^!123,
5 estate and also on each of the separate estates as if there had been 163 Mass. 295.
6 a separate warrant against each ; but none of the partners shall re-
7 ceive in all more than five hundred dollars.
1 Section 141. The certificate of discharge shall be granted or certificate of
2 refused to each partner as it would or ought to be if the proceed- eachhpartne°r.
3 ings had been against him alone ; otherwise the proceedings against al.nl.^n'a.
4 partners shall be the same as against an individual. 5Cush.6i3. p. s. 157, § 124.
1 Section 142. If upon the dissolution of a partnership, one or proof ofpart.
2 more of the partners or a new partnership formed by the addition assumedbyts
3 of new members has agreed to pay any outstanding debts of such partne™°e?c.
4 partnership, or if a person or firm, in consideration of the receipt or Jf6! ™> ||i>J-
5 transfer of property, has agreed to pay any outstanding debts of i|6.
6 the person from whom such property was received or transferred, 3 Aiien/579.'
7 and the person agreeing to pay has become insolvent, such debts 156 Mass. 375.
8 may, if the creditors so elect, be proved against the estate of such
9 insolvent debtor or debtors, and the proof and allowance thereof
10 shall discharge the person originally liable therefor. If the original
11 debtor, in either of such cases has been compelled to pay the debt
12 so agreed to be paid, he may prove the amount so paid as the
13 original creditor might have done.
CORPORATIONS.
1 Section 143. A domestic corporation or a foreign corporation petition by
2 mentioned in section four of chapter one hundred and twenty-six, i^32^!§°§ni,'2,
3 except railroad and banking corporations and foreign insurance g.' s. ns, §§ 113,
4 companies, may file a petition signed by an officer duly authorized ^ 157 §§ 127
5 by a vote of a majority of the corporators present and voting at a 12k '
6 legal meeting called for the purpose, in the court for the county 13 Alien' 105.
■ • • * • . 167 Mass 28
7 in which the corporation has its principal place of business, stating 172 Mass! 154.
8 its inability to pay its debts and its willingness to assign its prop-
9 erty for the benefit of its creditors, and praying that such proceed-
10 ings may be had as are hereinafter provided. The judge shall forth-
11 with issue a warrant, as upon a petition by a debtor under the
12 provisions of section twenty, which shall require that the notice
13 given by the messenger shall state further that the making of any
14 contract by the corporation is forbidden by law. The proceedings
15 thereon, except as hereinafter provided, shall be the same as upon
16 the petition of a natural person, and in the case of foreign cor-
17 porations shall apply only to property of the corporation within the
18 commonwealth and the oath provided for in section one hundred
19 and forty-five shall be modified in accordance herewith.
1 Section 144. Claims on account of bills of exchange, indorse- ciaimsprov-
2 ments, money due on bottomry or respondentia bonds or paid upon fasfdividend.
3 indorsements or as surety may be proved against an insolvent cor- Gfs'.n78,§§3ii5.
4 poration before the making of the last dividend, in like manner as JswiMi'J™'
5 against the estate of an insolvent debtor before the making of the 152 Maas- 596.
6 first dividend.
1462
COURTS OF INSOLVENCY.
[Chap. 163.
Dutiee^etc of Section 145. The schedules to be furnished shall be prepared 1
officers. ' and furnished by the treasurer or other financial officer of the cor- 2
g. s'. us, § lie.' poration, with such assistance from the other officers as he may 3
1890,' 32i,' §1. ' require; and the provisions of this chapter which apply to the 4
168 Mass. 82. debtor or set forth his duties relative to executing papers, submit- 5
ting to examinations, disclosing, making over, secreting, conceal- 6
ing, convejdng, assigning or paying away his money or property, 7
shall apply to each officer of the corporation relative to the same 8
matters concerning the corporation and the money and property 9
thereof. Said officers shall at the second meeting severally make 10
and subscribe an oath in substance as follows : — 11
Oath.
I,
, (president, etc., or treasurer, etc.,) do swear that I verily believe
the account of the creditors of the corporation, contained in the schedule signed
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 apprise 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 corporation made over
or disposed of in any manner in fraud of the laws relative to insolvency or of
the creditors of said corporation.
Powers and
duties of as-
signee.
1890, 321, § 2.
Section 146. An assignee of a foreign corporation shall have 1
like rights and duties as an assignee of a domestic corporation rela- 2
tive to property within the commonwealth or which may be put 3
into his possession by said corporation. He shall as far as practi- 4
cable so distribute the assets that all the creditors within or without 5
the commonwealth shall receive proportionate dividends from the 6
assets whether they are in the control of the assignee or not. The 7
claims entitled to priority under the provisions of this chapter shall 8
have like priority in the case of such corporations. 9
pre°erredaase8 Section 147. Claims against a corporation authorized to take 1
i85im327 si9 ^an(^ °r materials for damages for such taking shall be preferred 2
g. |. us, § 119. claims, next after debts due to the United States and to the com- 3
' ' mon wealth. 4
Section 148. The provisions of sections one hundred and ten
Void prefer,
ences.
g5s' us !«9i2o anc^ one nundred and eleven shall apply to corporations subject to
p21s 157' ssi^' ^ne provisions of this chapter, and an allowance or discharge shall
135. ' ' ' not be granted to a corporation, nor to a person as officer or mem-
10 Gray, 243. , ,, ° ~ r r
121 Mass. 399. ber thereof.
1
2
3
4
5
creditom7 ' Section 149. If a corporation described in section one hundred 1
isle' II' § 25' an(^ forty-three whose property has been attached on mesne process 2
p' s' 157' ! ill" *n a c*v^ acti°n founded on a contract for the amount of one hun- 3
1890,' 32i,' §i. ' dred dollars or more, which is provable under the provisions of this 4
i63'Mass. 171, chapter, has not within fourteen days from the return day of the 5
172'Mass. 156. writ, dissolved the attachment as provided by law, or if such corpo- 6
ration has removed any part of its property from the commonwealth, 7
with intent to defraud its creditors, or conceals any part of its 8
property to prevent its being attached or taken on legal process, or 9
has procured its property to be attached or taken on legal process, 10
or has made a fraudulent payment, conveyance or transfer of its 11
Chap. 163.] OOuhts of insolvency. 1463
12 property or any part thereof, or has stopped or suspended and has
13 not resumed payment of its commercial paper within fourteen days,
14 any of its creditors whose claims provable against its estate amount
15 to one hundred dollars may, within ninety days thereafter, file a
16 petition under oath in the court for the county in which the corpo-
17 ration has its principal place of business, stating the facts and the
18 nature of their claims, and praying that its property or, if a foreign
19 corporation, its property in the commonwealth, may be seized and
20 distributed according to the provisions of this chapter ; and there-
21 upon, if after notice to a domestic corporation by serving on its
22 president, treasurer or clerk, or to a foreign corporation by serving
23 upon the commissioner of corporations, thirty days at least before
24 the return day of the notice a copy of the petition, and a hearing
25 or upon default of the corporation to appear at the time and place
2Q appointed in the notice, the court finds the facts stated in the peti- ,
27 tion to be true, the judge shall forthwith issue a warrant to take
28 possession of the property of the corporation or, if a foreign corpora-
29 tion, of its property in the commonwealth ; and thereupon like
30 proceedings shall be had as upon a warrant issued upon the petition
31 of a corporation.
COMPOSITION.
1 Section 150. Instead of proceeding as required by the laws composition.
2 relative to insolvency, an insolvent debtor or a domestic corpora- 1H7; H?; § 1;
3 tion subject to the provisions of this chapter having capital stock
4 may obtain a discharge from his or its debts as hereinafter provided.
1 Section 151. At any time after the filing of the petition by or Proposal for
2 against the debtor and the schedules required by law, he may file a imfm^i.'
3 written proposal for composition with his creditors, stating the
4 amount of the proposed dividend, which shall be payable only in
5 money, the date when payable and the security to be given for
6 such payments so far as deferred. Such proposal shall not be con-
7 sidered unless it conforms to such requirements, nor unless it pro-
8 vides for payment in full of all debts and charges entitled to
9 priority.
1 Section 152. If the allegations of the petition appear to be stay of pro-
2 true or if a warrant has been issued thereon, the court, upon the compete!57
3 filing of the proposal for composition, may stay or suspend any illt* iff* | f;
4 process or proceeding which would otherwise be required by law i6|Vass.§3i7.
5 and may make appropriate orders relative thereto or to the custody ies Mass. 100.
6 of the estate. It shall order a hearing on such proposal or a modi-
7 fication thereof under the provisions of section one hundred and
8 fifty-six, of which the register shall send notice by mail post paid
9 to all known creditors not less than seven days before the day
10 appointed therefor, stating the substance of the proposal or modi-
11 fication thereof.
1 Section 153. Books of account and papers of the debtor rel- pape^opento
2 ative to his estate shall until the final hearing on confirmation of ^m^6atj°4n-
3 the composition be open at all reasonable times to examination by
4 any creditor or his agent, and the court may enforce production
5 thereof; and during such period the debtor or any other person
1464
COURTS OF INSOLVENCY.
[Chap. 1(53.
Provisions
applicable.
1884, 236, § 5.
1885, 353, § 1.
157 Mass. 175.
163 Mass. 26.
165 Mass. 585.
Effect of
notice of pro-
posal.
1884, 236, § 5.
1889, 406, § 1.
may be examined by the court or by a creditor as provided by
section eighty-two.
Section 154. The provisions of sections thirty-one, thirty-
three, thirty-four, thirty-six, thirty-nine, forty, forty-one and forty-
three to forty-eight, inclusive, relative to debts and proof of claims,
shall apply to composition proceedings so far as applicable thereto ;
but the proceedings shall not be stayed or suspended on account of
an appeal from the allowance or rejection of a claim.
Section 155. In composition proceedings in which no warrant
has been issued the date of the notice by the register to the cred-
itors of the debtor's proposal of composition shall have the same
effect relative to the proof of claims and the debtor's discharge as
the date of the first publication of the issuing of the warrant in vol-
untary proceedings in insolvency.
SltnfffTred- Section 15 6. The debtor shall be present at the hearing and
i8S48-236 6-8 may ^nen ^>e examined by the court or by a creditor relative to his
1885^ 353,' §§ 2, 3. estate, and other evidence may be offered. At any time before the
i6i Mass. 554. hearing is closed the debtor may file any modification of his pro-
posal which shall thereafter be considered the proposal. The hear-
ing shall then be adjourned not less than seven days, and if at or
before the day to which such or any subsequent adjournment is
made the debtor files in court the written assent to the proposal
of a majority in number and value of his creditors who have proved
their claims if the same be for the payment of not less than fifty
per cent to the general creditors, or if less than fifty per cent,
of three-fourths in number and value of such creditors, the court
shall at the hearing, or at a further adjournment thereof determine
whether the composition shall be confirmed, and any creditor may
be heard thereon. Any matters which would prevent or avoid a
discharge in insolvency may be considered in ascertaining the ex-
pediency of confirming the same, but not as an absolute bar thereto.
If the only objection thereto relates to the security for deferred
payments, other security may then be offered. No claim entitled
to priority shall be counted nor shall a creditor whose claim is less
than fifty dollars be counted in the number of creditors.
Confirmation
of composition.
Effect.
1884, 236, § 9.
1890, 387.
147 Mass. 192.
150 Mass. 353.
155 Mass. 389.
171 Mass. 111.
Section 157. If the court finds that the composition has been
duly assented to and is consistent with justice and for the interests
of the creditors, it shall order the same to be confirmed ; and by
the same order shall limit the time within which money for cash
payments and vouchers and securities for deferred payments shall
be deposited in court ; and upon such deposit within the time so
limited therefor, the judge shall grant to the debtor a certificate of
discharge from his debts, which shall be substantially in the form
and have the same effect as though obtained by the other proceed-
ings in insolvency. It shall not be annulled for a cause which was
brought to the notice of the court on the hearing for confirmation,
or which was then known to the creditor petitioning to have the
same annulled ; nor shall it bar the debt of a creditor whose name
was fraudulently and wilfully omitted from the debtor's schedule of
creditors. But the debt of a creditor omitted therefrom by mistake
6
7
1
2
3
4
5
6
1
2
3
4
5
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Chap. 163.] courts of insolvency. 1465
16 only or want of knowledge, shall be barred and he shall be entitled
17 to and may recover against the debtor the amount of the dividend
18 to which he would have been entitled in the composition proceed-
19 ings.
1 Section 158. If there are unsecured claims included in the unproved
2 debtor's schedule of creditors which have not been proved at the i89o™87.
3 time of the deposit, the deposit shall include a dividend at the rate ^ Mass! 466!
4 proposed on all such claims computed on the amount set forth in
5 the schedule ; and after the expiration of five months and within
6 six months from the time of the first hearing on the debtor's pro-
7 posal for composition, the court shall order a hearing for the proof
8 of such unproved claims, of which notice shall be given in like
9 manner as of the previous hearings ; and upon proof and allowance
10 thereof at such hearing, the court shall order dividends to be paid
11 on all debts so proved at the rate allowed on debts formerly proved,
12 and the money deposited on claims then remaining unproved shall
13 then be refunded to the depositor.
1 Section 159. Upon the granting of the discharge, the money, Disposition of
2 vouchers and securities deposited in court shall be paid and deliv- aXeaIrgeUpon
3 ered by the register upon demand to the persons entitled thereto, ilVa3ssA9o!
4 and all other property of the debtor shall revert to and revest in 17° Ma8S- 9-
5 him ; and the court may order any necessary or proper release or
6 reconveyance thereof by an assignee or trustee to whom the same
7 may have been assigned or conveyed.
1 Section 160. After the expiration of one year from the deposit Return of
(.iGlDOSltS
2 in court of the money, vouchers and securities, as provided in sec- i885,353,'§5.
3 tion one hundred and fifty-seven, the court may, after notice by mail
4 postpaid, to creditors who have not taken up their dividends, order
5 all such money, vouchers and securities then remaining on deposit
6 in said court, to be paid and transferred to the depositor.
1 Section 161. If the money for the cash payments and the Effect of
2 vouchers and securities for deferred payments are not deposited in compos?tfion.
3 court within the time limited by the order of confirmation, the case 1884. 236> § n-
4 shall proceed in insolvency, and the register shall deliver to the
5 assignee all money and securities which are the property of the
6 debtor which shall have been deposited in court ; and all other
7 securities and vouchers which shall have been so deposited shall be
8 returned by the register to the persons who furnished or deposited
9 the same or be otherwise disposed of as the judge may order. In
10 such case the stay or suspension of other proceedings by reason of
11 the attempted composition shall not affect any rights, and the period
12 of suspension shall be excluded in computing other periods of time
13 provided by the laws relative to insolvency.
1 Section 162. The provisions of this chapter shall not release stockholder's
2 an officer or stockholder of a corporation from any liability under affected.110
3 the provisions of sections fifty-eight and fifty-nine of chapter one 1897> 247> 5 2-
4 hundred and ten, but if such corporation applies for a discharge
5 as hereinbefore provided any creditor may, at any time after the
6 filing of the offer in composition, file a bill in equity in behalf
1466
COURTS OF INSOLVENCY.
[Chap. 163.
of himself and other creditors of the corporation, against it and all 7
persons who were stockholders therein at the time of the filing of 8
the petition in insolvency by or against the corporation, or against 9
all the officers liable for its debts and contracts, for the recovery of 10
the amounts due from the corporation to himself and the other 11
creditors for which the stockholders or officers may be personally 12
liable, by reason of any act or omission on its part or on that of its 13
officers, stating the nature of his claim and the grounds upon which 14
it is expected to charge the stockholders or officers personally. 15
It shall not be necessary to allege or prove a judgment against the 16
corporation or the return of an execution unsatisfied. If the ground 17
upon which it is expected to charge the officers of the corporation 18
is an excess of debts above the capital stock, the extent of such 19
excess shall be taken to be that existing at the time of the filing of 20
the petition in insolvency by or against said corporation. 21
SStton'iSP" Section 163. If, at the time of the filing of the offer in com- 1
i897di^-a5C3°n' Position by a corporation, an action is pending against it on behalf 2
of a creditor who would be entitled to enforce a liability against 3
its officers or stockholders under the provisions of chapter one 4
hundred and ten, the plaintiff may change his action into a suit 5
in equity, making parties thereto the stockholders and officers 6
who were such at the time of the filing of the petition in insolvency 7
by or against the corporation, and may proceed thereafter in like 8
manner as provided in the preceding section. If the ground upon 9
which it is expected to charge the officers of the corporation is an 10
excess of debts above the capital stock, the extent of such excess 11
shall be taken to be that existing at the time of the beginning of 12
said action. 13
^97°42v§^6' Section 164. A suit in equity under the provisions of the two 1
preceding sections shall be subject to the provisions of sections 2
sixty-three to sixty-seven, inclusive, of chapter one hundred and ten. 3
Schedule of
officers, etc.
1897, 427, § 4.
Section 165. A corporation which makes an offer of compo- 1
sition shall file, at the time of filing the schedules of assets and lia- 2
bilities, a schedule of all its officers and stockholders who were such 3
at the time of the filing of the petition in insolvency by or against 4
it, with the holdings of stock at such time. 5
charge°upon" Section 166. A discharge under the provisions of section one 1
1889 406es28' nundred and fifty-seven shall dissolve any attachment on mesne 2
170 Mass. 179. process made not more than four months prior to the time of giving 3
the notice to the creditors of the debtor's proposal of composition. 4
and^rd™^8 Section 167. The court, except as herein otherwise provided, 1
1884, 236, § 12. may allow amendments and make appropriate orders, in the course 2
of the proceedings or thereafter, necessary to carry the same into 3
full effect. 4
Penalty for S-FTTTfYNT 1 fi8
placing ficti- OH.OHOJN J. DO.
s^hUedutetlipon ^s scnedule of creditors a false or fictitious debt with intent to
1884, 236, § 13. deceive or defraud his creditors, or who having notice or knowl-
edge that a person has proved or attempted to prove a false or fie- 4
An insolvent debtor who knowingly places upon 1
2
3
Chap. 163.] courts of insolvency. 1467
5 titious debt against his estate, fails to disclose the same forthwith
6 to the court or who makes a payment or gives or promises an
7 advantage to a creditor with intent thereby to procure his assent
8 to a composition, shall be punished by imprisonment in the state
9 prison for not more than five years or in jail for not more than
10 two years.
1 Section 169. A creditor of an insolvent debtor who know- Penalty
2 ingly proves a false or fictitious debt against the estate, or receives fictitious debt.
3 or procures or attempts to procure a payment or advantage in con- 1884> 236' § w"
4 si deration of his assent to a composition, shall be punished by im-
5 prisonment for not more than two years or by a fine of not more
6 than one thousand dollars.
FEES AND COSTS.
1 Section 170. A debtor's petition for the institution of volun- Feeforreceiv-
2 tary insolvency proceedings shall be received and entered by the etc.petltlon,
3 register only upon payment to him of twenty-five dollars. A cred- i|||* ^ | \l\
4 itor's petition for the institution of proceedings against a debtor shall p.'s.'^'lilf.'
5 be received and entered by the register only upon payment to him of 1895> 394> §§1»2-
6 the amount necessary to defray the expense of publishing the notice
7 of the filing of such petition, but the warrant shall not issue until
8 twenty-five dollars is paid to the register. A proposal by a debtor
9 for composition with his creditors shall not be received or entered
10 by the register after the filing of a creditor's petition for involun-
11 tary proceedings, and before the issuing of a warrant thereon, until
12 twenty-five dollars has been paid to the register.
1 Section 171. The register shall, on the first day of January, Accounts of
2 April, July and October in each year, render an account under im*£s4, § u.
3 oath of all fees so received by him during the three months last Sbf/isT8.' § m
4 preceding, and on or before the tenth day of said months pay over fsbf,' 394 'fsf8'
5 the same to the treasurer and receiver general.
1 Section 172. In composition cases no fees or compensation No fees in
2 shall be payable to the register for giving notices to creditors or cases,0when.
3 for the custody of money, vouchers or securities, or for the pay- isll) 39I; 1 ti
4 ment of dividends.
1 Section 173. In all cases in a court of insolvency the messen- Messenger's
2 ger shall be entitled to the following fees : — for service of the lsll,' 163, § 16.
3 warrant, two dollars ; for necessary travel, at the rate of four cents g?1\ m^ra.
4 a mile ; for each written notice to creditors named in the schedule, \^'lU]llZ1'
5 ten cents ; for the custody of property, publication of notices and
6 other services, the amounts actually incurred and paid and returned
7 by him in an itemized account under oath and approved by the
8 court. For cause and upon a hearing the court may make a fur-
9 ther allowance.
1 Section 174. If an attachment on mesne process has not been costs if
ex j • • 1 t t n i/> 1 • . • • i attachment
2 dissolved before commencement of proceedings in insolvency, or dissolved.
3 if such attachment has been dissolved by bond and the claim upon ofs*. iw,§6m.
1468
JUDGES AND REGISTERS OF PROBATE, ETC. [CHAP. 164.
4
5
1862, 179, § 5. which the action was commenced is proved against the estate of the
Sbf," 359.' § 139' debtor, the plaintiff may also prove the legal fees, costs and ex-
it? Mass! ill penses of the action and of the custody of the property to the date of <6
15-2 Mass. 596. £he fa^ meeting, and the amount thereof shall be a privileged debt. 7
Ca>fd8'llow Section 175. In matters of insolvency which are contested in 1
1856, 2S4, §§ 38, a court of insolvency, the superior court or the supreme judicial 2
g.' s. U8, §§ 128, court, said courts may in their discretion award costs to either 3
p.s. is?, §§i40, party to be paid by the other, or to either or both parties to be 4
paid out of the estate. If costs are awarded to be paid by one party 5
to the other, said courts, respectively, may issue execution therefor. 6
VACATING PROCEEDINGS.
Vacating
proceedings.
1848, 304, § 13.
G. S. 118, § 130.
P. S. 157, § 142.
3 Gray, 531.
Section 176. Upon petition by a creditor who has proved his 1
claim the court may order the proceedings to be stayed and, after 2
notice and a hearing, if no objection is made by the debtor or any 3
such creditor, enter an order vacating all proceedings therein. 4
Returns by
registers.
1846, 168, § 3.
1851, 327, § 24.
G. S. 118, § 131.
P. S. 157, § 143.
1897, 89.
RETURNS.
Section 177. Each register shall on or before the tenth day of 1
each month make a return to the secretary of the commonwealth of 2
the name, residence and occupation of each person by or against 3
whom, as an insolvent debtor, and of the name of each corporation, 4
the kind of business for which it was organized, the place or places 5
in which its business was principally done, by or against which, as 6
an insolvent corporation, a petition has been filed in his court 7
during the month last preceding, with the dates of such petitions. 8
The secretary shall enter such returns, conveniently for reference, 9
in a book which shall be open to public inspection. 10
Judges.
1858, 93, § 1.
G. S. 119, § 1.
CHAPTEK 164.
OF JUDGES AND REGISTERS OF PROBATE AND INSOLVENCY.
Sections 1-9 . — Judges .
Sections 10-24 . — Registers .
Sections 25, 26. — General Provisions.
Sections 27-32. — Salaries and Fees.
Sections 33-35. — Court Officers.
JUDGES.
Section 1. There shall be one judge of probate and insolvency
in each county except in the counties of Suffolk and Middlesex.
P. S. 158, § 1.
1
2
—in Suffolk
and Middlesex.
1893, 379.
1894, 527, § 1.
Section 2. There shall be two judges of probate and insolvency 1
for each of the counties of Suffolk and Middlesex. The senior judge 2
shall be the first judge of probate and insolvency in each county, to 3
whom, and to his successors, all bonds which are required by law to 4
Chap. 164.] judges and registers of probate, etc. 1469
5 be given to the judge of the probate court or of the court of insol-
6 vency for said counties shall be made payable. The probate court
7 and the court of insolvency for said counties may be held by one or
8 both of the judges and, when so held, shall have and exercise all the
9 powers and jurisdiction committed to the respective courts. The
10 judges shall so arrange the performance of their duties as to insure a
1 1 prompt and punctual discharge thereof. Simultaneous sessions of the
12 courts in said counties may be held if the public convenience so re-
13 quires. Citations, orders of notice and all other processes issued
14 by the register of probate and insolvency for either of said counties
15 shall bear teste of the first judge of said courts, respectively. A
16 deposit or investment which is made in the name of the judge of the
17 probate court or the court of insolvency for either of said counties
18 shall be made in the name of the first judge of the court, and shall
19 be subject to the order of the court.
1 Section 3. A judge of probate and insolvency, before entering oath of judge.
2 upon the performance of his official duties, in addition to the oaths c.^artFi! 2'
3 prescribed by the constitution, shall take and subscribe an oath that frme6nd' con6t»
4 he will faithfully discharge said duties and that he will not during ^5f • Jf^ §§'f6'
5 his continuance in office, directly or indirectly, be interested in, or G5|f1,J§§c22*'3,
6 be benefited by, the fees or emoluments which may arise in any suit p' s! 158,' § 2.
7 or matter pending in either of the courts of which he is judge. Such
8 oath shall be filed in the registry of probate of the county for which
9 he is appointed.
1 Section 4. The judges may perform each other's duties when Judges may
2 they find it necessary or convenient. etc.rc ange'
1859, 110, § 1. G. S. 119, § 3. P. S. 158, § 3. 15 Gray, 459.
1 Section 5. If a judge of probate and insolvency is unable or Assistance of
2 fails from any cause to perform his duties or any part of them, or i^^IT'
3 if, in his opinion, the court requires the assistance of another judge, \l\~'t f^ § 5_
4 or if there is a vacancy in the office of judge of probate and ^-5| • J3j §§x|-
5 insolvency, his duties, or such of them as he may request, shall be §• §'• -Wo' f f
6 performed in the same county by the nudge of probate and insolvency ls®2> 337>' § *•
• 1894 377 § 1
7 of any other county who may be designated by the judge, or, in i899| 345', § 1!
8 case of his failure so to designate, who may be designated by the
9 register of probate and insolvency from time to time as may be
10 necessary ; but, unless objection is made by an interested party
11 before the decree is made, any case may be heard and determined
12 out of said county in the performance of such duties by such other
13 judge, who may send his decree to the registry of probate for the
14 county in which the case is pending. Two or more simultaneous
15 sessions of the court may be held, the fact being so stated upon the
16 record.
1 Section 6. The register of probate and insolvency shall certify certification of
2 upon his records and to the auditor of the commonwealth the num- assistance.
3 ber of days and the dates upon which, and the occasion for which, g.5s.\i09,§§ 5.
4 the duties of the judge of probate and insolvency are performed by ^'9f ; 337s; 1 2 ."
5 such judge of another county under the provisions of the preceding i|9*i |77| § 2.
6 section.
1470
JUDGES AND REGISTERS OF PROBATE, ETC. [CHAP. 164.
Compensation.
1892, 337, § 3.
1894, 377, § 3.
1899, 345, § 3.
Section 7. The judge who performs any duty under the pro- 1
visions of section five shall, except as provided in the following 2
section, receive from the commonwealth, in addition to the amount 3
otherwise allowed to him by law, fifteen dollars for each day that 4
he performs such duties. Such compensation, so far as it is for 5
services rendered for any cause, except for such interest as pre- 6
vents the performance of his duties by the regular judge, shall, for 7
any excess above three per cent of his salary, be deducted from the 8
salary of the judge so assisted. 9
Bonds to act-
ing judge.
1859, 110, § 3.
G. S. 119, § 5.
P. S. 158, § 5.
Section 8. Bonds which are required to be given to the judge 1
shall be given, in case of vacancy in the office of judge, to the 2
acting judge, and to his successors in office, and all business shall 3
be done in his name or in the name of the probate court or the 4
court of insolvency for the county in which the case or matter is 5
pending; but bonds may be approved, and other acts, which are 6
required to be done or certified by the judge, may be approved, 7
done or certified by the acting judge. 8
Decree out of
county.
1898, 131.
Section 9. The judge of probate and insolvency may, in cases 1
in which a decree, order or allowance can be made without a hear- 2
ing, and in all cases after a hearing, make such decree, order or 3
allowance, and approve bonds, at any place in the commonwealth, 4
with the same effect as if so made and approved in their respective 5
counties ; and if such judge, under the provisions of section five, 6
acts in a county other than his own, such decrees, orders or allow- 7
ances may be signed, and bonds approved, outside of the county in 8
which he may have been designated to act. The provisions of this 9
section shall not affect the validity of any decree, order or allow- 10
ance which was signed or bond which was approved prior to the 11
third day of March in the year eighteen hundred and ninety-eight. 12
Oaths.
Const., pt. 2,
c. 6, art. 1.
Amend, const.,
art. 6.
1817, 190, § 2.
R. S. 83, § 21.
1856, 284, § 12.
1858, 93, § 5.
G. S. 119, § 7.
P. S. 158, § 6.
REGISTERS.
Section 10. Every register of probate and insolvency, before 1
entering upon the performance of his official duties, in addition to 2
the oaths prescribed by the constitution, shall take and subscribe an 3
oath that he will faithfully discharge said duties, and that he will not 4
during his continuance in office, directly or indirectly, be inter- 5
ested in, or be benefited by, the fees or emoluments which may 6
arise in any suit or matter pending in either of the courts of which 7
he is register. Such oath shall be filed in the registry of probate 8
of the county for which he is elected. 9
Bonds.
1762-3, 24, § 2.
1786, 57, § 2.
R. S. 83, § 21.
1856, 284, § 12.
1857, 15.
1858, 93, §§ 5, 8
G. S. 119, § 8.
P. S. 158, § 7.
Section 11. He shall give bond to the treasurer and receiver 1
general for the faithful performance of his official duties, in a sum 2
not less than one thousand nor more than ten thousand dollars, as 3
may be ordered by the judge, with one or more sureties who shall 4
be approved by him. 5
Custody of
records.
1817, 190, § 2.
R. S. 83, § 22.
1856, 284, § 13.
Section 12. The register shall have the care and custody of all 1
books, documents and papers which appertain to the courts of which 2
he is register, or which are deposited with the records of insolvency 3
Chap. 164.] judges and registers of probate, etc. 1471
4 or filed in the registry of probate, and shall carefully preserve them is5s,93, §5.
5 and deliver them to his successor. He may, with the approval of p." f ." iss,' | IP"
6 the county commissioners and at the expense of the county, cause 1900>180-
7 copies of the indexes, or new indexes, to the records which are in
8 his custody, to be printed and to be sold at a price which shall be
9 not less than the cost of paper, printing and binding. He shall
10 perform such other duties which appertain to his office as may be
11 required by law or prescribed by the judge.
1 Section 13. He may at any time receive and place on file pe- Petitions and
2 titions and applications to the probate court or the court of insol- i8«>fi63.
3 vency, and may issue orders of notice and citations in like manner pfl'.^l 9.
4 and with like effect as if they were issued by the judge ; but if the
5 judge considers that such notice is insufficient, he may order further
6 notice.
1 Section 14. He may issue process of attachment and of execu- Attachment,
2 tion, and all other processes and all warrants, letters and licenses 1881,215, §2.
3 which may be necessary to carry into effect any order or decree of fs^'igl; § 10'
4 the courts, and they may run into any county and shall be exe-
5 cuted and obeyed throughout the commonwealth. He may appoint
6 appraisers to make any inventory which may be required to be
7 returned to said courts.
1 Section 15. He shall furnish copies of records or other papers Registers to
2 in his custody and shall collect therefor the fees provided by law. i89M<59,c§ I!68'
1 Section 16. He shall, on the first Monday of January, April, j^0]^*8 § 3-
2 July and October, in each year, account for and pay over to the
3 treasurer and receiver general all fees and compensation which have
4 been received by him otherwise than by salary.
1 Section 17 . The judges for the counties of Bristol, Essex, Frank- ^g^ter?*
2 lin, Hampden, Hampshire, Middlesex, Norfolk, Suffolk and Worces- ^°6ns*^.^' 2>
3 ter may each appoint an assistant register of probate and insolvency Amend.' const.,
4 for his county, who shall hold office for three years unless sooner is58, 93, §§ 6, s.
P Q 11Q S 11
5 removed by the judge. Such assistant register in Bristol, Hamp- p.' s." 158,' § 11.'
6 den and Hampshire maybe a woman. Before entering upon the ill; 234.' § L
7 performance of his duties, an assistant register shall take the oaths 1900' 144' § J;
8 prescribed by the constitution, and shall give bond to the treasurer
9 and receiver general for the faithful performance of his official duties,
10 in a sum not less than five hundred nor more than five thousand
11 dollars, as may be ordered by the judge, with one or more sureties
12 who shall be approved by him.
1 Section 18. The register of probate and insolvency for the cierkinsuf-
2 county of Suffolk may, subject to the approval of the judges of i878,u9.nty*
3 probate and insolvency for said county, appoint a clerk and may p- s- 158> § 12-
4 remove him at pleasure.
1 Section 19. The register shall forthwith report to the secretary Notice of
2 of the commonwealth a vacancy in the office of assistant register and offiwfof assist-
ant.
1472
JUDGES AND REGISTERS OF PROBATE, ETC. [CHAP. 164.
1880, 139, § 4.
P. S. 158, § 13.
the name, residence and date of appointment of the person who may 3
have been appointed to fill such vacancy. 4
Assistant
register, duties.
1858, 93, §§ 6, 7.
G. S. 119, § 12.
P. S. 158, § 14.
Section 20. An assistant register shall perform his duties 1
under the direction of the register, and shall pay over to him all fees 2
and amounts received as such assistant. He may authenticate papers 3
and perform such other duties as are not performed by the register. 4
In case of the absence, neglect, removal, resignation or death of the 5
register, the assistant may complete and attest any records which 6
remain unfinished and may act as register until a new register is 7
qualified or until the disability is removed. 8
Inspection of
records, etc.,
by judges.
1861, 95, § 1.
P. S. 158, § 15.
Section 21. The judges shall semi-annually inspect the doings
of the registers of their courts, and see that the records and files
are made up seasonably and kept in good order ; and if the records
are left incomplete for more than six consecutive months, such
neglect, unless caused by illness or casualty, shall be adjudged a
forfeiture of the bond of the register.
1
2
3
4
5
6
Notice to treas-
urer of forfeit-
ure of regis-
ter's bond.
1861, 95, § 2.
P. S. 158, § 16.
Section 22. In case of any neglect which causes a forfeiture of 1
the bond of the register or assistant register, the judge shall forth- 2
with give notice thereof in writing to the treasurer and receiver 3
general, who shall thereupon cause the bond to be put in suit ; and 4
the amount recovered in such suit shall be applied to the expense of 5
making up the deficient records under the direction of the court in 6
whose records the deficiency exists, and the surplus, if any, shall 7
be carried into the account of such treasurer. 8
nofexempt*0-' Section 23. The provisions of the two preceding sections shall 1
on°bonds0ns n0* exempt registers or assistant registers from an action for any 2
i86i, 95, §3. other breach of their bond, or from other liability for neglect or 3
misconduct in their office. 4
P. S. 158, § 17.
Temporary
register.
1817, 190, § 2.
K. S. 83, §§ 23-
25.
1856, 173, § 8;
284, §§ 14, 15.
1858, 93, §§ 2, 3,
5,6.
G. S. 119,
15.
P. S. 158,
20.
Section 24. If, upon the death, resignation, removal or absence 1
of the register, there is no assistant register, or if he also is absent, 2
the judge shall appoint a temporary register who shall act until a 3
register is appointed or elected and qualified, or until the disability 4
is removed. Such temporary register shall be sworn before the 5
14, judge, and a certificate thereof, with his appointment, shall be re- 6
19> corded with the proceedings of each court in which he acts. 7
Judge, regis-
ter, etc., to be
disinterested.
1727, 3.
1815, 49.
1817, 190, § 4.
R. S. 83, §§ 26,
27.
1856, 284, §§ 16,
17.
1858, 93, §§ 2, 3,
5.
G.S.119, §§6,9.
1879, 292, § 1.
P. S. 158, § 21.
5 Pick. 483.
110 Mass. 189.
GENERAL PROVISIONS.
Section 25. No judge, register or assistant register of probate 1
and insolvency or any person who is employed in the registry of 2
probate and insolvency in any county shall be interested in, or be 3
benefited by, the fees or emoluments which may arise in any matter 4
pending before the probate court or court of insolvency of such 5
county ; nor shall he act as counsel or attorney, either in or out of 6
court, in any matter pending before said courts or in an appeal there- 7
from; nor shall he be appointed executor, administrator, guardian, 8
commissioner, appraiser or assignee of or upon an estate within the 9
jurisdiction of such courts ; nor shall he be interested in the fees 10
Chap. 164.] judges and registers of probate, etc. 1473
11 or emoluments arising from any of said trusts ; and no judge shall
12 be retained or employed as counsel or attorney, either in or out of
13 court, in any suit or matter which may depend on or in any way
14 relate to a sentence, decision, warrant, order or decree made or
15 passed by him ; nor for or against an executor, administrator or
16 guardian appointed within his jurisdiction, in any action or suit
17 brought by or against the executor, administrator or guardian
18 as such ; nor in any action or suit relating to the official conduct
19 of such party ; nor for or against a creditor, debtor or assignee,
20 in a cause or matter which arises out of or is connected with any
21 proceedings before him ; nor in an appeal in such cause or matter.
1 Section 26. If a judge or register of probate desires to be Judge or regis-
2 appointed guardian of his minor child, who is an inhabitant of or mLgorachndn of
3 resides in the same county, such appointment may be made, and p.7s. li", § 22.
4 all subsequent proceedings in regard thereto had, in the probate
5 court of the most ancient adjoining county.
SALARIES AND FEES.
1 Section 27. Judges, registers and other officers of courts of il^ff'
2 probate shall receive from the commonwealth annual salaries as fol- **• s- &> §§ 49>
3 loWS : 1856, 284. 1S58, 93, §§ 13, 14. G. S. 119, § 16.
1864, 298. 1867, 357. P. S. 158, § 23. 1893, 469, § 1.
4 For the county,
5 Of Barnstable, the judge and register each, thirteen hundred dol- §7™|^ble*
6 lars : 188^ mo-
7 Of Berkshire, the judge, twenty-five hundred dollars ; the reg- Berkshire.
8 ister, eighteen hundred dollars : lit*', III'.
9 Of Bristol, the judge, three thousand dollars ; the register, twenty- Bristol.
10 five hundred dollars ; and the assistant register, one thousand dol- lilt', lei;
11 lars: 1889,211. 1900, 144, §1.
12 Of Dukes County, the judge and register each, seven hundred ^ei78Comity'
13 dollars: m^sis.
14 Of Essex, the judge, forty-five hundred dollars ; the register, Essex.
15 thirty-three hundred dollars; and the assistant register, twenty- mi', 273!
16 three hundred dollars : 1900,328,408. 1888,112.
17 Of Franklin, the judge and register each, fifteen hundred dollars ; Franklin.
18 and the assistant register, five hundred dollars : iigl* fiii § 2.
19 Of Hampden, the judge, three thousand dollars ; the register, Hampden.
20 twenty-five hundred dollars ; and the assistant register, one thou- mi', 253.'
21 sand dollars : 1886, m 1394,352. 1898, 234. 1884,248.
22 Of Hampshire, the judge and register each, sixteen hundred dol- igy™^11*'
23 lars ; and the assistant register, six hundred dollars : 1899> 191> § 2-
24 Of Middlesex, the judges each, forty-five hundred dollars ; the Middlesex.
25 register, four thousand dollars ; and the assistant register, twenty- me, m.
26 five hundred dollars: i89i, 3is. 1894,527, §3. 1897, 383. 1900,347. isss^si!
27 Of Nantucket, the judge and register each, nine hundred dol- ^^Jf*3*-
28 lars: mi',4ss.
29 Of Norfolk, the judge, twenty-eight hundred dollars ; the register, Norfolk.
30 twenty-three hundred dollars ; and the assistant register, twelve lls^ 72?'
31 hundred dollars :
32 Of Plymouth, the judge, two thousand dollars ; the register, Plymouth.
33 eighteen hundred dollars : ill^ lis!
1474
JUDGES AND REGISTERS OF PROBATE, ETC. [CHAP. 164.
Suffolk.
1871, 277.
1878, 119.
1882, 144.
Worcester.
1833, 173.
1885, 275.
1888, 152.
1899, 264.
Of Suffolk, the judges each, five thousand dollars ; the register, 34
five thousand dollars ; the assistant register, twenty-eight hundred 35
dollars ; and the clerk, twelve hundred dollars : 1885, 203. i89i, 91. 36
Of Worcester, the judge, forty-five hundred dollars ; the register, 37
three thousand dollars ; and the assistant register, twenty-three 38
hundred dollars. 1900,408. 39
Compensation
for extra cleri-
cal assistance.
1879, 292, § 2.
1881, 215, § 1.
P. S. 158, § 24.
1885, 205, § 2.
1893, 151, § 2.
1899, 191, § 2.
Section 28. If it is considered necessary by the judge, the 1
register shall be allowed annually an amount not exceeding one- 2
third of his salary for extra clerical assistance actually performed, 3
which shall be paid by the commonwealth. The judges in their 4
respective counties shall audit and approve the accounts of the regis- 5
ter. The provisions of this section shall not apply to the county 6
of Suffolk, nor shall it apply to the counties of Franklin or Hamp- 7
shire so long as a salary is paid to an assistant register therein. 8
Additional
clerical assist-
ance.
1889, 136.
1900, 144, § 2.
1886, 114.
1895, 174.
1896, 219.
1885, 304.
1890, 192.
1893, 344.
1895, 459.
1898, 332.
1901, 302.
1894, 322.
1885, 205, § 1.
1888, 280.
1889, 418.
1892, 230.
1893, 431.
1895, 364.
1897, 317.
1887, 39.
1889, 209.
1894, 259.
1898, 117.
Section 29. In addition to the amount allowed by the preceding 1
section, registers of probate and insolvency shall be allowed for 2
clerical assistance not more than the following amounts, which shall 3
be paid by the commonwealth or county as hereinafter stated to the 4
persons who actually perform the work : 5
For the county, 6
Of Bristol, two hundred dollars, payable by the commonwealth 7
upon the certificate of the judge of probate and insolvency : 8
Of Essex, twenty-five hundred dollars, payable by the common- 9
wealth upon the certificate of the judge of probate and insolvency : 10
Of Hampden, six hundred dollars, payable by the commonwealth 11
upon the certificate of the register, countersigned by the judge of 12
probate and insolvency : 13
Of Middlesex, four thousand dollars, payable by the common- 14
wealth upon the certificate of the judge of probate and insolvency, 15
and two thousand dollars from said county upon the certificate of the 16
register, countersigned by the judge of probate and insolvency : 17
Of Norfolk, six hundred dollars, payable by the commonwealth 18
upon certificate of the judge of probate and insolvency : 19
Of Plymouth, five hundred dollars, payable by the commonwealth 20
upon the audit and approval of the accounts of the register therefor 21
by the judge of probate and insolvency : 22
Of Suffolk, fifty-one hundred dollars, payable by the common- 23
wealth, and twenty-five hundred dollars and such further amount 24
as the board of aldermen of the city of Boston may by vote approve, 25
payable by said county, all upon the certificate of the register, 26
countersigned by a judge of probate and insolvency : 27
Of Worcester, thirty-three hundred and fifty dollars, payable by 28
the commonwealth upon the certificate of the register, countersigned 29
by the judge of probate and insolvency. 30
Travelling
expenses.
1896, 316.
Section 30. Judges and registers shall receive from their re- 1
spective counties their actual and proper travelling expenses which 2
may be incurred by them in the performance of their official duties 3
in holding and attending court at a place other than that in which 4
the registry of probate is situated, upon an itemized statement of 5
such expenses being certified to, and approved by, the county com- 6
missioners of the respective counties. 7
Chap. 164.] judges and registers of probate, etc. 1475
1 Section 31. A temporary register shall be entitled to the same compensation
2 compensation as the register and shall be paid by him if the ap- regtste?°rary
3 pointment is caused by his absence ; but if the appointment is r s'. gl!'/^*.
4 caused by his death, removal or resignation, the temporary register Ji|; g|*'§§5U-
5 shall be paid by the commonwealth. p. s. iss, § 25. G- s'- U9. § W-
1 Section 32 . No judge or register of probate and insolvency judges, etc.,
2 shall receive any fee or compensation in addition to his salary for j^es!0 receiye
3 holding or attending courts or acting as judge or register in any r2!.1^'^!.
4 county, nor for anything done in his official capacity, except as il|f ' Ifl* | f1"
5 expressly provided by law. g. s. 119, § is. p. s. 158, § 26. isss) 93, '§§ 2,
COURT OFFICERS.
1 Section 33. The judges of probate and insolvency for the county officer in
2 of Suffolk shall appoint an officer to attend the sessions of the pro- f^uo.
3 bate court and court of insolvency, and may at any time, for a cause il^'ei?"
4 which they consider sufficient, remove him, and may fill any vacancy 1898> 146-
5 caused by removal or otherwise. Such officer shall give bond in the
6 sum of one thousand dollars for the faithful performance of his
7 duties payable to the treasurer of the county of Suffolk, with suffi-
8 cient sureties who shall be approved by a judge of said court.
9 Such officer may serve the orders, precepts and processes issued by
10 said courts or by a judge thereof. He shall be paid by the county,
11 in monthly instalments, a salary of fifteen hundred dollars a year.
1 Section 34. In addition to the officers whom the sheriff of the officer in
2 county of Middlesex is authorized by section seventy-three of ^sjfili6*"
3 chapter one hundred and sixty-five to appoint, he may appoint, sub-
4 ject to the approval of the judges of probate and insolvency for said
5 county, an officer who shall serve as a permanent court officer for
6 attendance at the sessions of the probate court. Such officer shall
7 give bond in the sum of ten thousand dollars, for the faithful per-
8 formance of his duties, payable to the sheriff of said county with
9 sureties who shall be approved by either of said judges. He shall
10 serve the orders, precepts and processes issued by said probate court
11 or by either judge thereof. He shall receive from the county of
12 Middlesex an annual salary of seventeen hundred dollars in full
13 payment for all services performed by him, ten cents a mile for
14 travel out and home once a week during such attendance, if such
15 distance exceeds five miles one way, and one hundred dollars,
16 annually, in addition to his salary, to provide a uniform, which he
17 shall wear while in attendance on said courts.
1 Section 35. The judges of probate and insolvency for the Messenger in
2 county of Middlesex may appoint a messenger for the courts of Kwif16
3 probate and insolvency for said county, may at any time remove
4 him for a cause which is by them considered sufficient, and may fill
5 a vacancy caused by a removal or otherwise. Said messenger shall
6 wait upon said courts and perform such duties as the judges may
7 direct, and shall receive from said county an annual salary of one
8 thousand dollars, payable in equal monthly instalments.
369.
1476
CLERKS OF COURTS, ATTORNEYS, ETC.
[Chap. 165.
CHAPTEE 165.
OF CLERKS, ATTORNEYS AND OTHER OFFICERS OF JUDICIAL COURTS.
Sections 1-38. •
Sections 39, 40.
Sections 41-51.-
Sections 52-54.-
Sections 55-60.-
Section 61.
Sections 62-67.-
Sections 68-79.-
Sections 80-88.-
-Clerks of the Courts.
-Bar Examiners.
-Attorneys at Law.
- Masters, Referees and Assessors.
- Auditors.
-Reports of Masters and Auditors.
•Reporter of Decisions.
•Deputy Sheriffs and Other Court Officers.
• Stenographers.
CLERKS OF THE COURTS.
Sr^mmoSf* Section 1. The justices of the supreme judicial court or a
lmlm § 40 majority of them shall appoint the clerk of the court for the com-
G.|.i2i',||i,2. monwealth for a term of five years from the date of his appoint-
' ment, and may appoint an assistant clerk of said court for a term
of three years from the first day of January next after his appoint-
ment; and may remove them.
1
2
3
4
5
6
i859Jei96,f§§4?' Section 2. The clerk shall attend all sessions of the court, pre- 1
g.'s 121 §§3-5 serve aH the files and papers thereof, keep a docket record of all 2
p. s. 159, §§ 3-5. questions transferred, and of all petitions, complaints or other 3
processes presented to the court, and enter thereon the name of the 4
parties in full and the name of the counsel who appear in behalf of 5
either party, and a brief description of the nature of the action or 6
proceeding. He shall also record thereon accurate minutes of all 7
orders, decrees or directions of the court in each case, transmit 8
forthwith to the clerks of courts in the several counties all rescripts 9
which are made or ordered by the court and the papers which belong 10
to the supreme judicial court or the superior court in each case, and 11
receive and keep safely all papers transmitted to him by the clerks 12
of the courts. He shall make copies of all papers on file in said 13
court and of the docket record thereof, if desired, and certify them 14
under the seal of the court. He shall issue such writs or other proc- 15
esses as the court orders, shall charge the fees provided by law for 16
like services for clerks of courts, and, if no express fee is provided, 17
he shall receive a fair compensation for the services required of 18
him in analogy to like services for which a compensation is fixed 19
by law. He shall annually, before the last Wednesday of Decern- 20
ber, account with and pay over to the treasurer and receiver general 21
all fees which have been received by him. 22
Clerks to be
clerks of
county com.
missioners.
Section 3. The clerk and assistant clerks of the courts shall be 1
clerk and assistant clerks of the county commissioners. 2
1857,1. G. S. 121, §6. 1860,11. P. S. 159, § 6.
Assistant
clerks.
1850, 236, § 1.
1851, 38, § 1.
1855, 449, § 2.
Section 4. The justices of the supreme judicial court or a 1
majority of them shall appoint an assistant clerk of the courts for 2
each of the counties of Bristol, Essex, Hampden, Middlesex, Nor- 3
Chap. 165.] clerks of courts, attorneys, etc. 1477
4 folk and Worcester, and of the supreme judicial court in the county 1856, 37, § i.
5 of Suffolk, for a term of three years from the date of his appoint- g5|\ lli.ls.
6 ment, and may remove him. The assistant clerk for the county of illl| ill! § 4"
7 Hampden may be a woman. p. s. i59,§8. 1897,220.
1 Section 5. The justices of the supreme judicial court or a ma- Assistant
2 jority of them may appoint, for a term of three years from the date Essex and
3 of their appointments, a second assistant clerk of the courts for isrefisi6*'
4 the county of Essex and a second and a third assistant clerk of the ^'J-n%|^
5 courts for the county of Middlesex. 1896i 2is-
1 Section 6. The justices of the superior court or a majority of ^rt^Iuf01*
2 them may appoint, for a term of three years from the date of their *<££■, M
. " . - . -.I « . 1 ^ ..,,. iooo, 15a.
3 appointments, nine assistant clerks 01 said court tor civil business 1889, 50.
4 in the county of Suffolk, one of whom shall perform such duties as 1395,' 25i, 393,
5 may be required of him as clerk in equity proceedings in said 1897,334.
6 court for equity business in said county. 1899' 377-
1 Section 7. The clerks of the courts for the counties of Norfolk ^^uPaSd*'
2 and Worcester may each appoint a second assistant clerk, and the ^rc1e&81ter-
3 clerk of the superior court for criminal business for the county of p. s. 159, § 9.
4 Suffolk and the clerks of the courts for the counties which have
5 no permanent second assistant clerks may appoint assistant clerks
6 pro tempore, or for a term of one year, subject to removal by the
7 court or by the clerk.
1 Section 8. If, by reason of illness or other cause, the clerk of ciertsprotem.
2 the courts in any county, or of the supreme judicial court in the J|K']|£' fy> 3-
3 county of Suffolk, is unable to perform the duties of his office, and g. s. 121, §9.
4 there is no assistant clerk or he also is unable to perform the duties
5 of his office, the justices of the supreme judicial court or a majority
6 of them may appoint a clerk pro tempore, who shall perform the
7 duties of the office until the clerk or assistant clerk resumes his
8 duties. The justices of the superior court may in like manner ap-
9 point a clerk pro tempore if a clerk and assistant clerk of that court
10 in the county of Suffolk cannot perform the duties of the office.
11 When, after any such temporary appointment, the clerk or assistant
12 clerk resumes his duties, he shall make a record of that fact, with
13 the date, under his signature, in the latest book of records in each
14 of the courts.
1 Section 9. If an assistant clerk of the courts is unable to per- Assistant
2 form the duties of his office, the justices of the court who are tempore™
3 authorized to appoint him or a majority of them may appoint an pfl.iaigf^ii.
4 assistant clerk pro tempore, who shall perform the duties of that
5 office until the assistant clerk resumes his duties.
1 Section 10. If, at a sitting of any court, neither the clerk nor Appointment
2 assistant clerk is present, the court may appoint a clerk pro tempore, c&rkprVtem.
3 who shall perform the duties of the office during the sitting or until YmM-
4 the clerk or assistant clerk resumes his duties, unless an appointment |^; f 'is1' § 14;
5 under one of the preceding sections is sooner made or unless a new p' §• jfg' f J.^
6 clerk has been elected and has qualified.
1478
CLERKS OF COURTS, ATTORNEYS, ETC.
[Chap. 165.
Clerks to be
eworn.
1783, 9, § 5.
1796, 95, § 2.
1799, 81, § 1.
1811, 8, § 3.
1815, 37.
B. S. 86, § 8;
88, §§ 4, 14.
Section 11. The clerk, assistant clerk, clerk pro tempore and 1
assistant clerk pro tempore of a court shall be sworn before a justice 2
thereof, who shall, upon administering the oaths of office, forthwith 3
make return of such act, with the date thereof, to the secretary of 4
the commonwealth. 5
1850, 236, § 1.
1851, 38, § 1; 158, § 2.
1856, 37, § 1.
1859, 196, §§ 40, 41.
G. S. 121, § 11.
1863, 64, § 2.
P. S. 159, § 13.
1S94, 228.
Bonds of
clerks.
1762,3; 24, §1.
1786, 57, § 1.
1811, 8, § 3.
1821, 23, § 3.
B. S. 88, § 3.
1850, 236, § 1.
1851, 38, § 1;
158, § 2.
1856, 37, § 3.
1859, 196, § 41.
G. S. 121, § 12.
1863, 64, § 2.
P. S. 159, § 14.
Section 12. The clerk and assistant clerk of the supreme judi- 1
cial court for the commonwealth shall, before entering upon the 2
performance of his duties, each give bond in the sum of two thou- 3
sand dollars for the faithful performance of his official duties, pay- 4
able to the treasurer and receiver general, with sufficient surety or 5
sureties who shall be approved by the court. Each clerk, assistant 6
clerk, and each assistant clerk pro tempore who is appointed under 7
the provisions of section nine, shall give bond in like manner to the 8
county treasurer, in a sum not less than five hundred nor more 9
than two thousand dollars, to be determined by the court ; and 10
each clerk pro tempore who is appointed under the provisions of 11
section eight shall give bond in like manner, if required by the 12
court. 13
Notice to
secretary of
vacancy in
office of assist-
ant.
1880, 139, § 3.
P. S. 159, § 15.
Section 13. Each clerk shall forthwith report to the secretary 1
of the commonwealth a vacancy in the office of assistant clerk, and 2
shall report the name and residence of the person who is appointed 3
to fill such vacancy, and the date of the expiration of the term of 4
service. 5
General duties
of clerks.
1782, 9, § 5.
1786, 57.
1811, 8, § 1.
1830, 129, § 2.
B. S. 88, § 5.
G. S. 121, § 13.
P. S. 159, § 16.
Section 14. The clerks shall attend all the courts of which they 1
are clerks when held in their respective counties, and the sessions 2
of the county commissioners, and shall record their proceedings ; 3
and shall have the care and custody of all the records, books and 4
papers which appertain to, or are filed or deposited in, their re- 5
spective offices. 6
— of clerk of
supreme judi-
cial court in
Suffolk.
1887, 291, § 2.
Section 15. The clerk of the supreme judicial court for the 1
county of Suffolk shall act as clerk of the supreme judicial court 2
when sitting in Boston for the hearing of cases from any county 3
other than Suffolk, except when sitting as a full court, and for such 4
purposes as the court may order. 5
— of clerk of
superior court
in Suffolk.
1896, 413.
Section 16. The clerk of the superior court for civil business 1
in the county of Suffolk, or such assistant clerk of said court as the 2
justices thereof or a majority of them may, from time to time, des- 3
ignate for such duty, shall act as clerk of said court when sitting in 4
Boston for the hearing of cases from any county other than Suffolk, 5
and for such purposes as the court may order. 6
Forwarding
exceptions to
attorney
general.
1890, 374.
1895, 372.
Section 17. The clerks shall cause one or more copies of all 1
appeals, bills of exceptions and reports of cases in which the attor- 2
ney general appears for the commonwealth to be printed and for- 3
warded to him at Boston as soon as may be after they have been 4
allowed and filed. 5
Chap. 165.] clerks oe courts, attorneys, etc. 1479
1 Section 18. When a rescript is filed in a case or proceeding in Notice of
2 the supreme judicial court or the superior court, the clerk of such Imffi.'
3 court shall forthwith give notice thereof to an attorney of record of p# s> 153> § 17#
4 each party, and transmit a copy of such rescript to the reporter of
5 decisions.
1 Section 19. When judgment is entered by the superior court £^;e0nft
2 upon a demurrer, or upon a case stated, or when a decision is ren- 1879,4.
3 dered in an action which is heard without a jury, the clerk shall lasg.'sw.'
4 give notice thereof to the parties or to their attorneys.
1 Section 20. A fac-simile of the signature of the clerk of any Facsimile of
2 court in the commonwealth, imprinted by him upon any writ, sum- isIs^jl6'
3 mons, order of notice or order of attachment, except executions, 1886>13-
4 shall have the same validity as his written signature.
1 Section 21. The name of an assistant clerk of any court, asffsta^cilrk.
2 followed bv the designation ' ' assistant clerk ", shall be a sufficient isjg. 215.
0 /b • a • x 1895> 251-
3 official signature. 1896,413.
1 Section 22. The clerk of the courts may issue any order of (j^e orders of
2 notice upon any petition or other proceeding at law or in equity ?P73ice^9
3 which might be issued by the court ; but the court or a justice p. s. 159, § 17.
4 thereof may cause additional notice to be given.
1 Section 23. The clerks shall keep an alphabetical list of the Alphabetical
2 names of all the parties to every action or judgment which is n^^^vsL
3 recorded in the records and a reference to the book and page where <f; |; ili,§§7i4.
4 it is recorded ; and, if there are two or more plaintiffs or defendants, p- s-159> § 18-
5 the name of each and a like reference shall be inserted in its appro-
6 priate place in the alphabetical list.
1 Section 24. Clerks of courts, or, in the county of Suffolk, the preservation
2 clerk of the superior court for civil business, shall receive and safely triaT justices!
3 keep the dockets, records and other official papers of trial justices 1888>211>§6-
4 which may be deposited in their offices under the provisions of sec-
5 tion sixty-one of chapter one hundred and sixty-one, and shall
6 make and certify copies thereof which shall have the same effect as
7 if certified by trial justices. They shall be allowed the same fees
8 for making such copies as are allowed to them in similar cases.
1 Section 25. The supreme judicial court may, by general rule or Extension of
2 special order, direct what portion of the papers in causes which are recwds011
3 entered in said court or in the superior court shall be extended upon p7!'.2^', § 19.
4 the records after final judgment or otherwise.
1 Section 26. The clerks of the courts in the several counties cierktoex-
2 and of the supreme judicial court and the superior court in the r1. s.88?§riiB-'
3 county of Suffolk shall at the first sitting in each year of the su- p1; f ; H^ 1 20:
4 preme judicial court in their counties exhibit their latest books of 16Mas8-382-
5 records to a justice of the court, who shall cause errors and defects
6 therein to be corrected.
1480
CLERKS OF COURTS, ATTORNEYS, ETC.
[Chap. 165.
Justices to in-
spect records.
1762,3; 24, §4.
1786, 57, § 4.
R. S. 88, § 8.
G. S. 121, § 16.
P. S. 159, § 21.
Section 27. The justices of the several courts shall inspect the 1
doings of the clerks from time to time, and shall see that the records 2
are made up seasonably and kept in good order ; and, if the records 3
are left incomplete for more than six consecutive months, such neg- 4
lect, unless caused by illness or casualty, shall be adjudged a for- 5
feiture of the bond of the clerk. 6
^tenure of Section 28. In case of any neglect which causes a forfeiture of 1
1762, 3; 24, § 4. the bond of a clerk or assistant clerk, the justices shall forthwith 2
e.V. 88,' §§ 9, io. give notice thereof in writing to the treasurer who has the custody 3
O S 1*21 §§17 ■
is". ' ' thereof, who shall thereupon cause suit to be brought thereon. The 4
p. s. io9, §§ 22, amount recovered in such suit shall be applied to the expense of 5
making up the deficient records under the direction of the court in 6
whose records the deficiency exists, and the surplus, if any, shall 7
be carried into the account of such treasurer. 8
o^erbre.-fches Section 29. The provisions of the two preceding sections shall 1
r's'i2Wi9 n0^ exemP^ a clerk or assistant clerk from an action for any other 2
p.' s.' 159,' § 24.' breach of the condition of his bond, or from his liability in any 3
other way or to any party for neglect or misconduct in his office. 4
Duties of
assistant clerk.
1850, 236, § 2.
1851, 38, § 2.
1856, 37, § 2.
G. S. 121, §§ 20,
21.
1S73, 181, § 1.
P. S. 159, §§ 9,
25, 26.
13 Gray, 74.
Clerk to
account for
fees, etc.
1811, 8, § 2.
1813, 77, § 2.
1820, 84, § 1.
1S30, 129, § 3.
1835, 124, § 2.
R. S. 88, § 15.
G. S. 121, § 22.
1879, 300, § 1.
P. S. 159, § 27.
1887, 291, § 1.
1888, 257, § 4.
1891, 236.
Section 30. Each assistant clerk shall, under the direction of the 1
clerk, perform any of the duties of the clerk and shall pay over to 2
him all fees and amounts received as such assistant. In the absence 3
or upon the resignation, death or removal of the clerk, the assistant 4
clerk shall perform his duties, under the direction of the court, until 5
he returns or until a clerk is elected or appointed and has qualified, 6
and, upon the death, removal or resignation of the clerk, the assist- 7
ant clerk shall account with, and pay over the money in his hands 8
to, the officer with whom the clerk is by law required to account. 9
Section 31. The clerks of the courts in the several counties, 1
and of the supreme judicial court and the superior court in the 2
county of Suffolk, shall keep a cash book, which shall be county 3
property and shall be and remain a part of the records of the courts, 4
in which they shall keep accounts of all fees received by them for 5
their official acts and services, including fees for copies which they 6
are not required by law to furnish, fees and money in proceedings 7
relative to naturalization or for naturalization certificates, and all 8
fees and money of whatever description or character received by 9
them, or by any assistant or other person in their offices or employ- 10
ment, for any acts done or services rendered in connection with 1 1
their said offices, and shall on or before the tenth day of each month 12
pay over to the treasurer of the county, or to such other officer as 13
is entitled to receive them, all fees received during the preceding 14
calendar month, and shall render to him an account thereof under 15
oath. 16
— for un-
claimed funds.
1890, 330.
Section 32. Clerks of courts who have in their custody money 1
or dividends of an insolvent savings bank or insurance company 2
whose affairs have been wound up by the courts of which they are 3
clerks, which money or dividends have remained unclaimed for more 4
than ten years after the order of final settlement by the court, shall, 5
after deducting all amounts due to themselves, to the county or to 6
Chap. 165.] clerks of courts, attorneys, etc. 1481
7 the commonwealth for fees or expenses, pay over the balance to
8 the treasurer and receiver general and file with him a schedule of the
9 names and residences, so far as known to them or shown by the
10 record, of the parties who are entitled thereto. The fees and ex-
11 penses so deducted shall be audited and adjusted by the controller
12 of county accounts and paid forthwith to the persons who are entitled
13 thereto. After such payment of fees and expenses, and of the pay-
14 ment of the balance to the treasurer and receiver general, the liability
15 of clerks for such money and dividends shall cease. The treasurer
16 and receiver general shall hold such funds in trust for two years ;
17 and if they are not paid over by him within that time to the persons
18 who are entitled thereto, upon proper demand and satisfactory
19 evidence of the identity of the claimant and of the justice of the
20 claim, they shall escheat to the commonwealth.
1 Section 33 . The clerk of the court for the commonwealth shall c^ yetc for
2 receive from the commonwealth an annual salary of three thousand common- '
3 dollars, and five hundred dollars a year for clerk hire, and the assist- 1859, m, §§ 40,
4 ant clerk shall receive from the commonwealth an annual salary of g. s. 121, §§ 5,
5 fifteen hundred dollars. p. s. 159, §§ 5, 31. 1894, 136.
1 Section 34. The annual salaries of the clerks of the courts shall, ffg^f8 of
2 except as herein otherwise provided, be payable in monthly instal- igoo'^'54'
3 ments by the respective counties, and shall be as follows : — For the R- s. 88,'§§ 16,
4 county of Barnstable, twelve hundred and fifty dollars ; Berkshire, 1857,272.
5 twenty-eight hundred dollars ; Bristol, four thousand dollars ; Dukes iw7,'m,'i£?'
6 County, six hundred dollars ; Essex, fifty-two hundred dollars ; jfj[3; 1^268.
7 Franklin, eighteen hundred dollars; Hampden, thirty-five hundred ^•8f,11^.' Hf*
8 dollars; Hampshire, twenty-three hundred dollars; Middlesex, six fy>'|
9 thousand dollars ; Nantucket, six hundred dollars ; Norfolk, twenty- 1392)95.'
10 eight hundred dollars ; Plymouth, two thousand dollars ; Worcester,
11 fifty-two hundred dollars ; Suffolk, the clerk of the supreme judicial
12 court, sixty-five hundred dollars, of which fifteen hundred dollars
13 shall be paid by the commonwealth ; the clerk of the superior court
14 for civil business, sixty-five hundred dollars ; and of the superior
15 court for criminal business, six thousand dollars.
1 Section 35. The annual salaries of assistant clerks of the courts, —of assistant
2 payable in monthly instalments by the respective counties, shall be i85ok236
3 as follows:— J 1§ 215°'. 267'
4 In the county of Suffolk, the assistant clerk of the supreme judi- ^5| ^ K6
5 cial court, twenty-five hundred dollars ; of the superior court for isjp. 209.'
6 civil business, the first assistant clerk and the assistant clerk for 1370)336!
• ■ 1871 203
7 equity business, three thousand dollars each, and the second, third, 1372) 142) 307,
8 fourth, fifth, sixth, seventh and eighth assistant clerks, twenty-five ffn, ' 17) § 1.
9 hundred dollars each ; Bristol, the assistant clerk, eighteen hundred pfs'. 159,^31.
10 dollars and his travelling expenses ; Essex, the first assistant clerk, J|p> ^-
11 twenty-six hundred dollars and the second assistant clerk, two Jj|f'ii3-50
12 thousand dollars ; Hampden, the assistant clerk, thirteen hundred 444-'
1S90 201
13 dollars ; Middlesex, the first assistant clerk, twenty-six hundred dol- 1891)9?.'
14 lars, the second assistant clerk, twenty-five hundred dollars and the i!| mllm.
15 third assistant clerk, two thousand dollars; Norfolk, the assistant i^5- 251> 393>
16 clerk, eighteen hundred dollars; Worcester, the assistant clerk, i^' I20' 334.
17 twenty-three hundred dollars. 1399,377. 1900,329. 1901,510. i89s) 376) 5is.
1482
CLERKS OF COURTS, ATTORNEYS, ETC.
[Chap. 165.
Salaries of
clerk and
assistant clerk
pro tempore.
R. S. 88, § 14.
G. S. 121, § 27.
1860, 191, § 9.
1868, 64, § 2.
P. S. 159, § 32.
Section 36. Each clerk pro tempore shall be paid by the clerk 1
for whom he is acting such compensation as the court appointing 2
him may determine. Each assistant clerk pro tempore who is ap- 3
pointed under the provisions of section nine shall receive from the 4
county the same salary as the assistant clerk for whom he is acting, 5
and the amount so paid shall be deducted from the salary of such 6
assistant clerk. 7
Salaries to be
in full com-
Eensation.
388, 257, § 2.
Section 37. The annual salaries of clerks shall be in full com-
pensation for all services rendered by them in the civil or criminal
courts, to the county commissioners, in making any returns re-
quired by law or in the performance of any other official duty
except for such clerical assistance as may be allowed under the pro-
visions of the following section.
1
2
3
4
5
6
Extra clerical
assistance.
1873, 181.
1879, 300, § 4.
P. S. 159, §§ 9,
33.
1898, 238.
1899, 350.
[1 Op. A. G.
467.]
Section 38. Upon the certificate of the clerk of the courts in 1
the several counties, or of the clerk of the supreme judicial court or 2
the superior court in the county of Suffolk, that extra clerical assist- 3
ance was actually performed and was necessary, stating the names 4
of the persons by whom it was performed and the time occupied, 5
he shall be allowed such amounts as the county commissioners, in 6
a writing signed by them, or, in the county of Suffolk, the board of 7
aldermen of the city of Boston, by vote, approve. Said amounts 8
shall be paid by the county monthly to the person or persons 9
employed, including assistants appointed under the provisions of 10
section seven. 11
Bar examin-
1897, 508, § 1.
Duties of
board.
1897, 508, § 3.
1898, 312.
BAR EXAMINERS.
Section 39. There shall be a board of bar examiners consisting 1
of five persons, who shall reside in different counties, one of whom 2
shall annually be appointed by the justices of the supreme judicial 3
court for a term of five years from the first day of October in the 4
year of his appointment, and who may be removed by them. Such 5
justices may fill any vacancy which occurs in the board. 6
Section 40. Said board shall determine the time and place of 1
all examinations for admission to the bar, conduct the same and 2
may, subject to the approval of the supreme judicial court, make 3
rules therefor. The members shall receive from the fees received 4
under the provisions of the following section such compensation as 5
the justices of the supreme judicial court, or a majority of them, may 6
allow, and from the commonwealth, such amount for the expenses 7
of the board as may be certified by its chairman and approved by a 8
justice of the supreme judicial court. 9
Attorneys at
law.
1785, 23, § 1.
1795, 80, § 4.
R. S. 88, §§ 19,
20,23.
1852, 154.
G. S. 121, §§ 28,
29, 32.
1876, 197.
P. S. 159, §§ 34,
37.
ATTORNEYS AT LAW.
Section 41. A citizen of this commonwealth, or an alien who 1
resides in this commonwealth and has made the primary declaration 2
of his intention to become a citizen of the United States, including 3
women, may, if of the age of twenty-one years, file a petition in the 4
supreme judicial court or in the superior court to be examined for 5
admission as an attorney, whereupon, unless the court otherwise 6
orders, the petition may be referred to the board of bar examiners 7
Chap. 165.] clerks of courts, attorneys, etc. 1483
8 to ascertain his acquirements and qualifications. If the board re- 1882,139.
9 ports that the petitioner is of good moral character and recommends mn', loll f 1."
10 his admission, he may be admitted unless the court otherwise deter- JoMetW
11 mines, and thereafter may practise in all the courts in the common- m Ma88- 376-
12 wealth. If the court makes .an order relative to a petition for
13 admission, the petitioner shall be admitted in accordance there-
14 with. The petitioner shall pay to the clerk a fee of ten dollars
15 upon the entry of his petition, and a further fee of five dollars upon
16 the entry of a subsequent petition by him. Such fees shall be paid
17 over by the clerk to the treasurer and receiver general. The peti-
18 tioner shall also pay a fee of five dollars for admission to the bar,
19 which shall be paid over by the clerk to the county treasurer.
1 Section 42. Whoever is admitted as an attorney shall, in open oath of office.
2 court, take and subscribe the oaths to support the constitution of art!™ ' conet•,
3 the United States and of this commonwealth, and the following Itss^'h2'
4 oath of office shall be administered to and subscribed by him : — ^- s- 88> §§ 21'
G* S. 121, §§ 30,
31.
You [repeat the name] solemnly swear that you will do no falsehood, nor p. 8. 159, §§ 35,
consent to the doing of any in court; you will not wittingly or willingly pro-
mote or sue any false, groundless or unlawful suit, nor give aid or consent to
the same ; you will delay no man for lucre 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 clients. So help you God.
1 Section 43. A person who has been admitted as an attorney or Attorneys
2 counsellor of the highest judicial court of any other state of which states?ther
3 he was an inhabitant, and who subsequently becomes a citizen of q\ |; ffi,5^.
4 this commonwealth, may be admitted to practise here upon the p* s- 159> § 38-
5 production of satisfactory evidence of his good moral character and
6 his professional qualifications.
1 Section 44. An attorney may be removed by the supreme Removal.
2 judicial court or the superior court for deceit, malpractice or other g. s. m, § 34.
3 gross misconduct, and shall also be liable in damages to the person n fuel?,' 472?*
4 injured thereby, and to such other punishment as may be provided ili'Mass. 222.
5 by law ; and the expenses and costs of the inquiry and proceedings 168 Maes- 169-
6 in either court for the removal of an attorney shall be paid as in
7 criminal prosecutions in the superior court.
1 Section 45. Whoever has been so removed and continues there- Penalties on
2 after to practise law or to receive any fee for his services as an attorneys.
3 attorney at law rendered after such removal, or who holds himself 1891, *18,
4 out, or who represents or advertises himself as, an attorney or coun-
5 sellor at law, and whoever, not having been admitted to practise as
6 an attorney at law in accordance with the provisions of this chap-
7 ter, represents himself to be an attorney or counsellor at law, or
8 to be lawfully qualified to practise in the courts of this common-
9 wealth, by means of a sign, business card, letterhead or otherwise,
10 shall, upon a first conviction, be punished by a fine of not more
11 than one hundred dollars or by imprisonment for not more than six
12 months, and, upon any subsequent conviction, by a fine of not
13 more than five hundred dollars or by imprisonment for not more
14 than one year.
1484
Parties may
manage their
own suits.
1701-2, 7, § 1.
1708-9, 3, § 2.
1714, 3, § 2.
1785, 23, § 2.
Persons
specially
authorized,
etc.
1789, 58.
R. S. 88, § 27.
G. S. 121, § 36.
1865, 81.
P. S. 159, § 41.
CLERKS OF COURTS, ATTORNEYS, ETC.
[Chap. 165.
Section 46. Parties may manage, prosecute or defend their 1
own suits personally, and by such attorneys as they may engage ; 2
but not more than two persons for each party shall, without per- 3
mission of the court, be allowed to manage any case therein. 4
1789, 58. R. S. 88, § 26. G. S. 121, § 35. P. S. 159, § 40.
Section 47. Any person of good moral character, unless he has 1
been removed from practice as an attorney under the provisions of 2
section forty -four, may manage, prosecute or defend a suit if he is 3
specially authorized by the party for whom he appears, in writing 4
or by personal nomination in open court. 5
Lien lor fees.
1810, 84.
1830, 124.
R. S. 88, § 28.
G. S. 121, § 37.
P. S. 159, § 42.
5 Mass. 309.
11 Mass. 236.
13 Mass. 525.
4 Gray, 357.
Penalty for not
paying over
to client.
1859, 166, § 1.
G. S. 121, § 38.
P. S. 159, § 43.
Section 48. An attorney who is lawfully possessed of an exe- 1
cution, or who has prosecuted a suit to final judgment in favor of 2
his client, shall have a lien thereon for the amount of his fees and 3
disbursements in the cause, but the provisions of this section shall 4
not prevent the payment of the execution or judgment to the judg- 5
ment creditor by a person who has no notice of the lien. 6
103 Mass. 33. 176 Mass. 162.
Section 49. An attorney at law who unreasonably neglects to 1
pay over money which has been collected by him for and in behalf 2
of a client, when demanded by the client, shall forfeit to such client 3
five times the lawful interest of the money from the time of the 4
demand. 5
Attorney not
to act in suit
previously de-
cided by him.
1705-6, 7, § 2.
1815, 49, § 1.
R. S. 89, § 8.
Section 50. No person shall be employed or allowed to appear 1
as attorney before a court in, any proceeding, civil or criminal, 2
which shall have been previously determined before himself as a 3
judge of any court or as a trial justice. 4
G. S. 121, § 39.
P. S. 159, § 44.
1884, 170.
Sheriff, etc.,
not to act as
attorney.
1736-7, 3.
1742-3, 25.
1758-9, 14.
1783, 44, § 3.
1822, 20.
R. S. 14, §§ 79,
80; 88, §§29,30.
G. S. 17, § 64;
121, § 40.
P. S. 159, § 45.
6 Pick. 483.
Masters in
chancery.
1826, 109, § 4.
R. S. 88, §§ 31,
32.
1838, 162.
1844, 9, 173.
1845, 22.
1848, 277.
G. S. 121, §41.
1868, 185.
1873, 365.
1874, 1.
Completion of
business if
commission
expires.
1844, 138.
Section 51. A sheriff, deputy sheriff or constable, who appears
in a court or before a trial justice as attorney for any party to a
suit, or who draws, makes or fills up a writ, declaration, plea or
process for such party, or who, with intent to procure himself to be
employed in the collection of a demand, or in any manner to make
gain or profit therefrom, advises, counsels or encourages a person,
directly or indirectly, to commence a suit or process, shall forfeit
fifty dollars.
MASTERS, REFEREES AND ASSESSORS.
Section 52. The governor, with the advice and consent of the
council, shall, as vacancies occur, appoint masters in chancery so
that the number thereof in the several counties shall be eleven in
Suffolk, nine in Essex, seven in Middlesex, seven in Worcester and
not more than five in any other county. They shall be sworn, and
shall hold their offices for a term of five years, unless sooner re-
moved by the governor and council.
1876, 13.
1879, 142.
P. S. 159, § 46.
131 Mass. 204.
1
2
3
4
5
6
7
8
1
2
3
4
5
6
7
Section 53. A master may complete any unfinished proceed- 1
ings and processes pending before him or commenced under his 2
direction notwithstanding the expiration of his commission. 3
G. S. 121, § 45.
P. S. 159, § 50.
Chap. 165.] clerks of courts, attorneys, etc. 1485
1 Section 54. The supreme judicial court and the superior court f^™1^8*1*1011,
2 shall award reasonable compensation to commissioners, assessors, 1886)51.'
3 referees, masters in chancery and special masters, for duties per- 1899)458!
4 formed under the direction of said courts, and to arbitrators ap- 1901'366-
5 pointed under the provisions of chapter one hundred and ninety-four
6 upon whose awards judgment is entered, which shall be paid by the
7 counties in which they are appointed.
auditors.
1 Section 55. When a civil action is at issue, the supreme judicial ^Jp1^8'
2 court or the superior court, in its discretion, and a police, district R. s. 96, §§ 25,
3 or municipal court, if both parties assent thereto in writing, may 1856, 202.
4 appoint one or more auditors to hear the parties, examine their i863,'i97,'§ 1. '
5 vouchers and evidence, state accounts and report upon such matters u' Met. 297. '
6 therein as may be ordered by the court. The report shall be prima \l Gray) 351'.
7 facie evidence upon such matters only as are expressly embraced ^^^I'ii6'
8 in the Order. IOO Mass. 193. 112 Mass. 320. 115 Mass. 44. 9Allen, 181,
117 Mass. 167. 126 Mass. 21. 129 Mass. 299. 141 Mass. 304.
122 Mass. 505, 522. 127 Mass. 530. 133 Mass. 548. 150 Mass. 535.
1 Section 56. After any account of an executor, administrator, Appointment
2 guardian, trustee or other person who is required by law to render Court?bate
3 an account in the probate court has been filed therein, the judge 1889>31L
4 of said court may, before approving it, appoint one or more auditors
5 to hear the parties, examine vouchers and evidence and report upon
6 the same to the court. The report shall be prima facie evidence
7 upon such matters as are expressly referred to such auditors.
1 Section 57. The auditors shall give notice to the parties of the Notice to
2 time and place appointed for their meeting, and may adjourn from r!^!^', §§ 26,
3 time to time as may be necessary. If there is more than one g.'s. 121, §§47,
4 auditor, all shall meet and hear the cause, but a report may be 48-
5 made by a majority. p. s. 159, §§ 52, 53. 15 Gray, 351.
1 Section 58. The court may, for cause, discharge the auditors Discharge by
2 and appoint others, and may recommit the report for revision or RUsrt'96, § 29.
3 further examination to the same or to other auditors. g. s. 121, §49.
P. S. 159, § 54. 4 Pick. 283. 100 Mass. 153. 132 Mass. 489.
1 Section. 59. The court in which a cause is pending may, upon Hearings i>e-
2 application of either party, appoint a day certain for the hearing 1900, tis.Ti.8'
3 thereof before the auditor. The hearing shall be had upon the day
4 appointed, and shall proceed, unless the parties otherwise agree or
5 the auditor otherwise orders, from day to day until the conclusion
6 thereof. If either party neglects to appear at the time appointed
7 for such hearing or at &ny adjournment thereof, without good cause,
8 or if at such hearing either party wilfully refuses to produce in
9 good faith the testimony relied upon by him, the auditor may report
10 such neglect or refusal to the court, which may thereupon enter a
11 default or a nonsuit against such party.
1 Section 60. The court shall award reasonable compensation to compensation.
2 auditors, and it shall be paid by the county if they are appointed r. s. 96,'§ 31.
1486
G. S. 121, § 50.
■ 1867,67.
1873, 342.
1878, 173.
P. S. 159, § 55.
1889, 311.
125 Mass. 316.
CLERKS OF COURTS, ATTORNEYS, ETC.
[Chap. 165.
by the supreme judicial court, the superior court or the probate 3
court. If they are appointed by any other court, the cOmpensa- 4
tion awarded may be paid by either party and taxed in his bill of 5
costs if he prevails ; but the plaintiff shall be liable for such pay- 6
ment, and the court may make all orders and decrees, and issue 7
process to enforce the same. 8
Reports of
masters and
auditors.
1888, 282,
REPORTS OF MASTERS AND AUDITORS.
Section 61. Auditors, masters in chancery and special masters 1
shall file their final report in the office of the clerk of the court by 2
which they are appointed within ninety days after the hearing before 3
them has been closed or within such further time as the court may 4
allow, and, in default thereof, shall not be entitled to any fees. 5
Reporter
Of
decisions.
1803,
133,
§1.
R. S
88,
§§36,
37.
Preparal
-ion of
reports.
1803,
133,
§1.
1S26,
51.
R. S
88,
§§38,
39.
1838,
100.
G. S
121
§§52,
53.
1879,
280.
P. S
159
§§57,
58.
1889,
471,
§3.
REPORTER OF DECISIONS.
Section 62. The reporter of the decisions of the supreme judi- 1
cial court shall be appointed by the governor, with the advice and 2
consent of the council, and shall hold his office at their pleasure. 3
G. S. 121, § 51. P. S. 159, § 56. 142 Mass. 29.
Section 63. He shall attend the law sittings of the court, make 1
true reports of decisions upon all questions of law which are argued 2
by counsel, and shall prepare them for publication with suitable 3
head notes, tables of cases and indexes, furnish them to the publisher, 4
and superintend the correction, proof reading and publication thereof. 5
He shall in his discretion report the several cases more or less at 6
large according to their relative importance, so as not unnecessarily 7
to increase the size or number of the volumes of reports. The 8
reports of the decisions upon all questions of law argued and de- 9
termined before the first day of September in each year shall be 10
published within ninety days thereafter. 11
Style of re-
ports.
1867, 239.
P. S. 159, § 60.
Section 64. The volumes of reports shall be styled "Massa- 1
chusetts Reports ", and the name of the reporter shall not be added 2
thereto. 3
Preservation
of opinions
until publica-
tion.
1874, 43.
P. S. 159, § 61.
142 Mass. 29.
Section 65. The county of Suffolk shall provide a safe and con- 1
venient place in the city of Boston in which the reporter shall keep 2
the written opinions of the court in all law cases argued in the several 3
counties until their publication in the reports, and his dockets and 4
copies of papers in such cases, and in which he shall afford due facil- 5
ities for their examination. 6
Deputy to
reporter.
R. S. 88, § 41.
G. S. 121, § 55.
P. S. 159, § 62.
Section 66. If the reporter is prevented from attending at a 1
sitting, he shall depute a suitable person to attend for him and 2
take notes of the decisions ; or the court may appoint a person to 3
act for him until he resumes the performance of his duties, or until 4
another is appointed. 5
F8o£i33,8§a2ion' Section 67. The reporter shall receive from the commonwealth 1
r. s. 88,'§42. an annual salary of four thousand dollars, and shall be allowed not 2
Chap. 165.] clerks or courts, attorneys, etc. 1487
3 more than two thousand dollars a year for clerk hire and for the 1843, 9, § i.
4 incidental expenses of his office which shall be paid by the com- fm,'m! § 56'
5 mon wealth. Such amounts shall be in full compensation for his fmim^ii3'
6 services and for clerk hire and incidental expenses. All fees re- 1892>380-
7 ceived by him for copies of opinions, rescripts and other papers
8 shall be paid by him quarterly to the treasurer and receiver general
9 with a detailed statement thereof.
DEPUTY SHERIFFS AND OTHER COURT OFFICERS.
1 Section 68. Not more than four deputy sheriffs shall receive officers of
2 compensation for attendance upon a civil sitting of the supreme ciXjourt;.udl"
3 judicial court unless the presiding justice in writing requires the p6tA59,§66.
4 sheriff to procure the attendance, for the whole or a portion of such
5 sitting, of an additional number.
1 Section 69. Each officer in attendance upon the supreme judi- salaries of ofa.
2 cial court in the county of Suffolk, not exceeding six, including the judicial court.
1882 232 8 1
3 messenger of the justices of said court, shall receive in full for all i886',37,§2."
4 services performed by him seventeen hundred dollars, of which thir- 1890>294-
5 teen hundred dollars shall be paid by said county and four hundred
6 dollars by the commonwealth.
1 Section 70. Not more than four deputy sheriffs shall receive officers of
2 compensation for attendance upon a sitting of the superior court for m^m, § iurt'
3 civil business or a sitting of said court for both civil and criminal Pm s" 159' § 64-
4 business unless the presiding justice or the district attorney in
5 writing requires the sheriff to procure the attendance, for the whole
6 or a portion of such sitting, of an additional number.
1 Section 71. Not more than six deputy sheriffs or constables —for criminal
2 shall receive compensation for attendance upon a criminal sitting of i862,nw2, § 2.
3 the superior court for criminal business unless the district attorney p> S- 159' § 65-
4 in writing requires the sheriff to procure the attendance, for the whole
5 or a portion of such sitting, of an additional number.
1 Section 72. The sheriff of the county of Suffolk shall appoint, -for superior
court in
2 subject to the approval of the justices of the superior court or a Suffolk.
1877 169 § 2
3 majority thereof, officers for attendance upon the several sessions p. s. 159, § 67.
4 of said court in said county, not exceeding four for each session for 1888' 357' § '
5 civil business held with juries, three for each session held without
6 juries and six for the session for criminal business. The sheriff shall
7 from time to time interchange said officers between the several ses-
8 sions so as to secure, as nearly as may be, the performance of equal
9 service by all officers.
1 Section 73. The sheriff of the county of Middlesex may appoint, — for superior
court iu
2 subject to the approval of the justices of the superior court or of a Middlesex.
• • 1892 107 § 1
3 majority thereof, eight officers for attendance on the sessions of said 1395! 24^ § i.
4 court for civil or criminal business. Such officers shall, when re-
5 quired by the sheriff, attend the sessions of the supreme judicial
6 court and probate court, when not in attendance on the superior
7 court.
1488
CLERKS OF COURTS, ATTORNEYS, ETC.
[Chap. 165.
Bond.
Authority.
1888, 357, §§ 2, 3.
1892, 107, §§ 2, 4.
Fees for
attendance at
court.
1795, 41, § 1.
R. S. 122, §§ 5, 8.
1843, 75, § 2.
1856, 185.
G. S. 157, §§ 4, 7.
1866, 190.
1873, 222,
1879, 227, § 1.
P. S. 159, § 68.
1882, 232, § 2.
1887, 243.
1895, 369.
1897, 342.
Section 74. Each of the officers named in the two preceding 1
sections shall give to the sheriff of the county a bond with sufficient 2
sureties, in the sum of fifteen hundred dollars, for the faithful per- 3
formance of his duties. Such officers shall have the authority of 4
constables to serve venires for jurors and the processes of said courts, 5
and shall be paid by the county their actual expenses necessarily 6
incurred in making such services. 7
Section 75. Deputy sheriffs who do not receive an annual sal- 1
ary shall be paid five dollars a day by the county for attendance 2
upon the supreme judicial court or the superior court or the probate 3
court or court of insolvency, and five cents a mile for travel out 4
and home once a week, during such attendance. Constables shall 5
be paid four dollars a day for such attendance and the like amount 6
for travel. Said officers or any officers additional to those allowed 7
by the provisions of section sixty-nine whose attendance may be 8
required by the supreme judicial court in the county of Suffolk 9
shall, if deputy sheriffs, receive five dollars and, if constables, four 10
dollars and fifty cents a day for attendance upon said court, and 11
for travel, the same as in other counties. Said compensation, when 12
said court is sitting for the commonwealth, shall be paid by the 13
commonwealth, and in other cases by the county. 14
Salaries of
officers in
superior court
in Suffolk and
Middlesex.
1862, 216, § 11.
1877, 169, §§ 1, 3.
P. S. 159, § 69.
1882, 245, § 3.
1883, 54.
1886, 37, § 1.
1892, 107, § 3.
1895, 246, § 2.
Section 76. Each officer in attendance upon the sessions of the 1
superior court in the county of Suffolk and Middlesex and the 2
messenger of the justices of the superior court shall receive in full 3
for all services performed by him an annual salary of seventeen 4
hundred dollars which shall be paid monthly by said counties, re- 5
spectively ; and said officers in the county of Middlesex shall, in 6
addition, receive ten cents a mile for travel out and home once a 7
week during such attendance if such distance exceeds five miles in 8
one direction. Any additional officers whose attendance may be 9
required in said court in the county of Suffolk, as provided in sec- 10
tions seventy and seventy-one, shall be allowed three dollars for each 11
day of service actually rendered, which shall be paid by said county: 12
Allowance for
uniforms.
1888, 371.
1891, 181.
1892, 107, §§ 3, 5.
1895, 246, §§ 2, 3.
Section 77. The officers named in sections sixty-nine, seventy- 1
three and seventy-six and deputy sheriffs in attendance upon the 2
supreme judicial court or the superior court in the county of Suffolk 3
or Middlesex shall, while on duty in said courts, wear uniforms which 4
shall be designated by the sheriff of the county and, except the deputy 5
sheriffs in the county of Middlesex, shall each be annually allowed 6
by the respective counties one hundred dollars in addition to the 7
salary allowed by law in order to provide such uniforms. 8
Summoning of
witnesses by
officers in
Suffolk.
1879, 193.
P. S. 159, § 70.
Section 78. The officers in attendance upon the sessions of the 1
superior court for criminal business in the county of Suffolk shall 2
summon witnesses on behalf of the commonwealth from any part of 3
the commonwealth, but shall receive therefor no compensation in 4
addition to their salaries except for expenses actually incurred and 5
paid. 6
drawdSout.ieto Section 79. No deputy sheriff or constable who is in receipt of 1
pfty- a salary from the county shall be designated to attend, for compen- 2
Chap. 165.] clerks of courts, attorneys, etc. 1489
3 sation by the day, upon the sessions of the supreme judicial court 1862, 102, § 4.
4 or the superior court, and no deputy sheriff or constable shall re- p. s'. 159, § 71.
5 ceive compensation for attendance upon the sessions of more than
6 one court, nor upon more than one session of the same court, on
7 the same day.
stenographers .
1 Section 80. The justices of the superior court, or a majority Appointment
2 of them, shall appoint a stenographer for each regular session of said pherln°sra"
3 court held for civil business and for the session of said court held F-87s.3i59,f§\'23'
4 for criminal business within and for the county of Suffolk, and a jg85 291 §§ x 3
5 stenographer for said court in all other counties. They may also, if *• '
6 the business of the court requires it, appoint an additional stenog- ^ m.
7 rapher in any county except Suffolk, who shall serve when desig- is96j 459! §§ i| s!
8 nated for duty. Each stenographer shall be an officer of the court
9 and shall be sworn, and the same person may be appointed stenog-
10 rapher for more than one county. Such justices, or a majority of
11 them, may remove said stenographers at any time, and may fill a
12 vacancy which is caused by such removal or otherwise.
1 Section 81. Each stenographer who is appointed for the countv —of assistants.
2 of Suffolk under the provisions of the preceding section may, with p. s. 159, § 75.
3 the approval of any justice of said court, appoint one or more assist- Hf; !i; f t;
4 ants, who shall also be sworn ; but no additional compensation shall 189M59> §*•
5 be paid or expense incurred by reason of such appointment. The
6 presiding justice of said court may, except in the county of Suffolk,
7 in case of the illness or temporary absence of the stenographer, ap-
8 point a competent person to act during such illness or absence.
1 Section 82. The presiding justice of any special or temporary Temporary
2 session of the superior court for civil or criminal business in the fnesu§oik.her
3 county of Suffolk may, in his discretion, appoint one or more 1111; f||; 1 1;
4 stenographers to attend therein, who shall be officers of the court
5 and who shall be sworn. But it shall not be necessary to appoint
6 a stenographer for any session for civil business if the justices do
7 not consider it of a permanent and continuous character.
1 Section 83. At the trial of any issue of fact in the supreme stenographer
2 judicial court, or at the trial of any criminal case in the superior fudicmfan!
3 court, the presiding justice may appoint a stenographer, who shall courts01*
4 be sworn. " i897,«8,§i.
1 Section 84. A justice of the superior court may, upon the —for grand
2 request of the district attorney, appoint a stenographer, who shall mi,' 478, §2.
3 be sworn and who shall take stenographic notes of such testimony
4 given before the grand jury as he may direct and shall provide him
5 with a transcript fully written out of such part of said notes as he
6 may require. The provisions of this section shall not authorize
7 the taking of any statement or testimony of a grand juror.
1 Section 85. Stenographers shall attend the sessions of the Duties of
2 courts for which they are appointed, and those who are appointed i87o,°fi2^h2ers"
3 for jury sessions of the superior court for civil business in the county isa^i9,'! 2.3'
4 of Suffolk shall, when directed by the justice presiding in such ■ifl'f4' §§ 1,2;
1490 CLERKS OF COURTS. ATTORNEYS, ETC. [CHAP. 165.
1892,133. session, serve in any other of said sessions as the necessities of the 5
lltf! 459) f§\ 3. service may require. Said stenographers, unless excused there- 6
1897, 478, §1. from by the presiding justice, stenographers for criminal business 7
in the county of Suffolk, upon the request of the presiding justice, 8
the district attorney or the defendant, stenographers for civil busi- 9
ness in counties except Suffolk and stenographers appointed under 10
the provisions of sections eighty-two and eighty-three shall take 11
stenographic notes of all the evidence given at each trial in their 12
respective courts and of the rulings and charge of the presiding 13
justice, and, when requested by him, shall read from such notes 14
in open court any portion of the testimony so taken and, upon 15
request, shall provide him with a transcript of such notes, fully 16
written out, of such part of said testimony, rulings or charge as 17
may be desired, and, upon request, shall within a reasonable time 18
furnish to either party a like transcript, upon payment by the party 19
requesting it of ten cents a hundred words for each copy so fur- 20
nished. If the transcript is furnished at the request of the pre- 21
siding justice, the stenographer shall be paid therefor at the same 22
rate by the county, upon a voucher approved by the justice, and, in 23
criminal cases in the county of Suffolk, such expense and the expense 24
of transcripts furnished to the district attorney shall be taxed 25
like other expenses. The stenographer appointed for the criminal 26
session of the superior court for the county of Suffolk, when not 27
employed in said court, shall perform such services as stenographer 28
as may be required by the district attorney, and shall receive the 29
same compensation for transcripts as is hereinbefore provided. 30
stenographers. Section 86. Each stenographer who is appointed for the ses- 1
1894, I24, § 3. sions of the superior court for civil business without juries in the 2
county of Suffolk shall attend therein when requested by the presid- 3
ing justice, and shall perform the duties required by the preceding 4
section of stenographers in the jury sessions of said court, and shall 5
render such other clerical assistance to the justices of said court as 6
said justices may consider necessary. He shall receive for tran- 7
scripts furnished to parties the compensation provided in the pre- 8
ceding section. 9
o
servl^s!1186 °f Section 87. Official stenographers of the superior court in the 1
1896* til' § 6* same or different counties may, with the consent of said court, in- 2
terchange services or perform the duties of each other. 3
compensation. Section 88. Stenographers who are appointed for the sessions 1
p's 159 §72 °^ ^e suPeri°r court for civil business with juries in the county of 2
rP' HKV' Suffolk and the stenographer appointed for the session of said court 3
74, §'i. " for criminal business in said countv shall each receive an annual 4
1 ^qo Q94. *^
ma', m, 452. salary of twenty-five hundred dollars which shall be paid by the 5
m,'%f{,6^' county ; stenographers appointed for the sessions of said court with- 6
i89?;tre.§§1'5' out juries shall each receive such salary as the justices of said court 7
1901,329. shall establish, not exceeding twenty-five hundred dollars which 8
shall be paid by the county. The stenographers appointed for the 9
superior court for other counties which contain a population of more 10
than two hundred thousand shall each receive such salary as the 11
justices of said court shall establish, not exceeding twenty-five 12
hundred dollars a year. Stenographers appointed for the superior 13
Chap. 166.] provisions relative to courts. 1491
14 court for civil business in other counties shall each receive nine
15 dollars for each day's actual and necessary attendance at court which
16 shall be paid by the county upon the certificate of the presiding
17 justice as to such attendance. Stenographers appointed under the
18 provisions of section eighty-three shall each receive ten dollars for
19 each day's actual and necessary attendance at court, and the stenog-
20 rapher appointed under the provisions of section eighty-four, a like
21 amount and ten cents a hundred words for transcripts furnished to
22 the district attorney which shall be paid by the county. Stenog-
23 raphers appointed under the provisions of section eighty-two shall
24 each receive nine dollars a day for each day of actual and necessary
25 attendance in court and the same amount for transcripts as is
26 allowed by section eighty-five.
CHAPTEE 166.
OF PROVISIONS RELATIVE TO COURTS AND OF NATURALIZATION.
Sections 1-13. — Provisions relative to Courts.
Sections 14-20. — Naturalization.
PROVISIONS RELATIVE TO COURTS.
1 Section 1. The courts of the commonwealth, the justices thereof po^|rslof
2 and trial justices shall have and exercise all the powers which may lS^-,2
3 be necessary for the performance of their duties. Thev niav issue all it«3| «, § i.
■ 1817 87"
4 writs, warrants and processes and make and award judgments, de- i9o,'§i.'
5 crees, orders and injunctions which may be necessary or proper to H* § 361;' II, % 9 ;
6 carry into effect the powers granted to them, and, if no form for l^fn^'J.13'
7 such writ or process is prescribed by statute, they shall frame one in n6S§ ir'm'
8 conformity with the principles of law and the usual course of pro- § 20g; 120, § 47.
9 ceedings in the courts of this commonwealth. 154, § 12;' 155!
1893, 396, § 57. 2Met.271. 155 Mass. 486.
1 Section 2. The justices of the supreme judicial court and of the Justices to be
2 superior court, justices and special justices of police, district and of^hXpeace8
3 municipal courts, by virtue of their offices, and justices of the r7ll~9,§8i§6'
4 peace shall be conservators of the peace throughout the common- ^3, 5i, § i.
5 wealth and as such may, upon view of an affray, riot, assault or f^f^.'L7\7
6 battery, without a warrant in writing, command the assistance of isk, 335, §5.
7 every sheriff, deputy sheriff, constable and police officer and of all g. s. 115, § 2";
8 other persons present for its suppression and for the arrest of all p°s?il3, §2;
9 persons concerned therein as provided in chapters two hundred and §5|;§11; 155,
10 sixteen and two hundred and seventeen. Persons so arrested shall if G'ray' 1943'
11 be taken before a police, district or municipal court or a trial justice
12 for examination.
1 Section 3. In writs, processes, records and judicial proceed- f^fngYow
2 ings, civil or criminal, the day on which any sitting is to commence i68^?4'!'1:,
3 may be designated as the first, second or other Monday, or other i859,'i96, § is.
4 day in the week, as the case may be, of the month in which the 122, §1. '
5 sitting commences. p. s. 153, § 21 ; 160, § 1.
1492
PROVISIONS RELATIVE TO COURTS.
[Chap. 166.
Change of
time and place
of court.
1730-31, 12.
1797, 16, § 10.
B. S. 89, §$ 2, 3.
G. S. 122, §§2, 3.
P. S. 160, §§2, 3.
Section 4. If it is unsafe or inexpedient to hold a court at the 1
time and place appointed, a justice of the court may appoint another 2
time and place within the same county for holding the same. Such 3
adjournment shall be made by an order in writing, signed by the 4
justice or justices, and served by public proclamation by the person 5
to whom it is directed in the shire town or as near thereto as is 6
safe, and also by publication in such newspaper or in such other 7
manner as is required in the order. 8
Courts not to
be open Sun-
day, etc.,
unless, etc.
R. S. 89, § 4.
1856, 113, § 1.
G. S. 122, § 4.
1881, 71.
P. S. 160, § 4.
1894, 130, §§ 3, 4.
1896, 162, § 1.
13 Mass. 347.
14 Allen, 156.
107 Mass. 209.
Section 5. Courts shall not be opened on Sunday, on a legal 1
holiday or the following day if a holiday occurs on Sunday, except as 2
provided in section four of chapter one hundred and fifty-eight or 3
except for the purpose of entering or continuing cases, instructing or 4
discharging a jury, receiving a verdict or adjourning ; but the pro- 5
visions of this section shall not prevent the exercise of the jurisdic- 6
tion of any magistrate in criminal cases to preserve the peace or arrest 7
offenders. 8
Section 6. Sheriffs, deputy sheriffs, constables and other officers 1
shall serve all lawful processes issued by a court, judge, judicial 2
3
Sheriffs, etc.,
to serve
process.
1783, 44, §1; "" — '"■"" *"" — j— ~~~~~ — ^ ~j „ v,v,*~~, j~~ &
46, §' i. ' officer or county commissioners which are legally directed to them
1817,13; 190, §1. J b J
R.S. 14, §68; 83, §11; 84, §3; 85, §30. G. S. 122, § 5. P. S. 160, § 5.
Attorneys,
etc., not to buy,
etc., demands
for collection.
1811, 62.
R. S. 89, §§ 5-7.
G.S.122,§§6,7.
P. S. 160, §§ 6, 7.
13 Pick. 79.
109 Mass. 237.
138 Mass. 530.
Section 7. An attorney, justice of the peace, sheriff, deputy 1
sheriff or constable who, directly or indirectly, buys or is, interested 2
in buying, or, directly or indirectly, lends or advances or agrees 3
to lend or advance any money or other goods, or gives or promises 4
any valuable consideration whatever to any person, as an induce- 5
ment to place or in consideration of having placed in the hands of 6
any person any bond, note, book debt or right of action for collec- 7
tion, with intent to make for himself any gain from the fees arising 8
from such collection by legal proceedings, shall, for each offence, 9
forfeit not less than twenty nor more than five hundred dollars. 10
i859,r207. Section 8. Clerks or assistant clerks of courts, sheriffs or their 1
p'f'i6o'§§if' deputies, as the court may direct, shall perform the duties of criers, 2
without additional compensation ; and any officer may adjourn the 3
court by order thereof. 4
not'lisqutii- Section 9. No person shall be disqualified from acting as judge, 1
wehenyinterest' magistrate, appraiser or officer of any kind in a suit or proceeding 2
is?- io3§s22 m wni°n a °ity or town is interested by reason of his interest as an 3
i82s| is, '§ 3. " inhabitant thereof. No juror shall be disqualified by reason of 4
1836,' 4, §13. ' being an inhabitant of the city of Boston. p. s. 160, §13. 5
G. S.122, §13. 2 Allen, 396, 402, 596. 139 Mass. 315. 147 Mass. 585. 157 Mass. 14.
iudk;eiaiSofficer. Section 10. No person who holds a judicial office under the laws 1
lis' 175' I i4' °f ^e United States shall hold any judicial office under the consti- 2
g^s. W4 "§ 67. tution and laws of this commonwealth, except that of trial justice or 3
p. s'. wo, §14. justice of the peace. 4
bankruptcy Section 11. No person who holds the office of referee in bank- 1
certa!nhoffices ruPtev under the laws of the United States shall at the same time 2
p6!' i6o I is k°kl any judicial office, except that of justice of the peace, nor the 3
Chap. 166.] naturalization. 1493
4 office of clerk or assistant clerk of any court, or register or assistant
5 register of probate and insolvency, under the laws of this common-
6 wealth.
1 Section 12. Any court or trial justice may exclude minors as Minors may be
2 spectators from the court room during the trial of any cause, civil or court room™111
3 criminal, if their presence is not necessary as witnesses or parties, pfs.ia), §16.
1 Section 13. Commitments for contempt of court may be made commitments
2 to any jail in the commonwealth ; and processes issued in proceed- ser^etofipt'
3 ings relative to alleged contempts may be served by any sheriff or i^m
4 deputy sheriff to whom they are directed in any other county as
5 well as in that for which such sheriff or deputy sheriff is chosen or
6 appointed. <•
naturalization .
1 Section 14. The supreme iudicial court, the superior court, Jurisdiction of
2 and, if it has common law jurisdiction, a seal and a clerk duly 1856, 47,§i.
3 appointed by the governor, any police, district or municipal court, g. s. 122, § 8.
4 may, respectively, have jurisdiction of primary declarations of inten- issf," 345,' 1 1."
5 tion of aliens to become citizens of the United States, and of final ilyf; li|;
6 applications for naturalization of aliens ; but no declaration or ap- 1892> 3is-
7 plication shall be received by the supreme judicial court or the
8 superior court unless the applicant resides in the county in which
9 the court is held, nor by any police, district or municipal court
10 unless the applicant resides in the district for which the court is
11 established. If the applicant does not reside in the judicial district
12 of any police, district or municipal court which has a seal and a
13 clerk duly appointed by the governor, he may apply to such one of
14 said courts as is held nearest to the town in which,.he resides.
1 Section 15. Primary declarations of intentions of aliens to Primary
2 become citizens of the United States may, at any time, be filed in whi^niedL8'
3 the supreme judicial court or the superior court, or in a police, g.5!.4/^ § 9.
4 district or municipal court which has jurisdiction of naturalization, ^gf'/l0* §9-
5 and the required oath may be administered by the clerk at the issiliso.
6 time such declaration is filed and a record thereof shall be entered
7 on the docket.
1 Section 16. Every application for naturalization shall be en- Final appiica-
2 tered on the docket of the court and final action thereon shall be aied8' when
3 had at any regular sitting of the court. Such application shall con- 1900; 374; | f;
4 tain the name, age, occupation and residence of the applicant, the
5 name of the street and number of the house in which he resides,
6 the names of the persons whom he intends to summon as witnesses
7 at his final hearing and the name of the street and number of the
8 house in which they severally reside ; but if the name of the street
9 or the number of the house thereon cannot be given, the place of
10 residence shall be described with sufficient accuracy for identifi-
11 cation.
1 Section 17. A record of every application for naturalization, Record and
2 the action thereon and the names and residences of the witnesses UraiIzations!a "
3 shall be kept by the clerk of each court and a return shall be made \ll^ If' § 5*
1494
NATURALIZATION.
[Chap. 166.
annually, on or before the first day of February, to the secretary of 4
the commonwealth, of the name, age, occupation and residence of 5
every person naturalized prior to the first day of the preceding Jan- 6
uary, the date of the naturalization and the names and residences 7
of the witnesses. Such returns shall be preserved by the secretary 8
in a form convenient for reference. 9
Fees.
1879, 300, § 3.
P. S. 199, § 4.
1885, 345, § 6.
1897, 505.
1900, 374, § 3.
[1 Op. A. G.
438.]
Section 18. The fees of clerks of all courts under the provi- 1
sions of the four preceding sections shall be as follows : for receiv- 2
ing the primary declaration or application for the naturalization of 3
an alien, one dollar; for the final declaration or application for the 4
naturalization of an alien, two dollars ; for making out the papers 5
for either of said declarations, one dollar. All fees in naturalization 6
cases shall be accounted for and paid over by said clerks to the 7
treasurers of their respective counties, who shall pay them to the 8
treasurers of county law libraries, the same to be in addition to 9
the sums which such associations are otherwise entitled to receive 10
by law. No primary or final certificate shall issue until the fees 11
provided for in this section are first paid. 12
Penalties.
1855, 28, § 2.
G. S. 122, § 11.
P. S. 160, § 11.
1885, 345, § 8.
4 Gray, 559.
Section 19. A clerk or other person who records or files such 1
application or declaration or issues a certificate in violation of the 2
provisions of sections sixteen or seventeen shall be punished by a 3
fine of twenty-five dollars. 4
Attending
officers.
1885, 345, § 10.
Section 20. The justice of a police, district or municipal court, 1
when sitting for naturalization, may designate not more than two 2
constables of the city or town, or deputy sheriffs of the county 3
within which the court is held, to attend the court. Their fees shall 4
be the same as are provided for attending the superior court, and 5
shall be approved and paid by the county like expenses in criminal 6
cases. 7
TITLE II.
OF ACTIONS AND PROCEEDINGS THEREIN.
Chapter 167. — Of the Commencement of Actions and the Service of Process.
Chapter 168. — Of Arrest on Civil Process.
Chapter 169. — Of Bail.
Chapter 170. — Of Proceedings against Absent Defendants and upon Insuffi-
cient Service.
Chapter 171. — Of the Survival of Actions and of the Death and Disabilities
of Parties.
Chapter 172. — Of Actions by and against Executors and Administrators.
Chapter 173. — Of Pleading and Practice.
Chapter 174. — Of Set-off and Tender.
Chapter 175. — Of Witnesses and Evidence.
Chapter 176. — Of Juries.
Chapter 177. — Of Judgment and Execution.
Chapter 178. — Of the Levy of Executions on Land.
CHAPTER 167.
OF THE COMMENCEMENT OF ACTIONS AND THE SERVICE OF PROCESS.
Sections 1-14. — Venue of Actions.
Sections 15-25. — Forms, Issuing and Return of Writs.
Sections 26-37 . — Service of Writs .
Sections 38-57. — Attachment of Property — General Provisions.
Sections 58-65. — Attachment of Real Estate and Leasehold Estates.
Sections 66-68. — Attachment of Corporate Shares.
Sections 69-78. — Attachment of Encumbered Personalty.
Sections 79-81. — Supplementary Process.
Sections 82-96. — Sale of Personal Property Attached.
Sections 97-100. — Attachment of Share of Joint Owner of Personalty.
Sections 101-109. — Fraudulent Attachments.
Section 110. — Reduction or Discharge of Attachment.
Sections 111-127. — Dissolution of Attachment.
Section 128. — Execution of Bonds.
VENUE OF ACTIONS.
1 Section 1. A transitory action shall, except as otherwise pro- venue of
2 vided, if any one of the parties thereto lives in the commonwealth, aXons?7
3 be brought in the county in which one of them lives or has his 1749-50! I.2'
4 usual place of business. If brought in any other county, unless R8|\29o',|§i4,
5 transferred under the provisions of section fourteen, the writ shall ^
6 abate and the defendant shall be allowed double costs. If neither psik*
1856, 70.
[1495]
1496
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 167.
G. S. 123, § 1.
P. S. 161, § 1.
6 Gray, 122.
party lives in the commonwealth, the action may be brought in any 7
COUnty. 15 Gray, 50. 4 Allen, 17, 365. 14 Allen, 94. 152 Mass. 268. 156 Mass. 522. 8
Venue of
transitory
actions in
inferior courts.
R. S. 87, § 35.
G. S. 116, § 19.
1866, 47.
lyeu, 17, § 3.
1874, 271, § 8.
1S75, 106, § 2.
1876, 184.
1878, 72.
1879, 154.
P. S. 154, §§ 14,
15, 46,48,49,60;
175, § 3.
1S93, 396, § 13.
1894,398, § 1;
431.
161 Mass. 440.
164 Mass. 144.
170 Mass. 570.
Section 2. A transitory action in a police, district or municipal 1
court shall be brought in the county in which one of the defendants 2
lives or has his usual place of business, or, if commenced by the trus- 3
tee process, in the county in which all the persons named in the writ 4
as trustees live or have their usual places of business-, and, in either 5
case, in a court within whose judicial district one of the parties lives 6
or has his usual place of business ; or, if no one of the parties lives 7
or has a usual place of business within a judicial district, then in 8
any such court in said county. An action of summary process under 9
the provisions of chapter one hundred and eighty-one shall, if the 10
land in controversy is situated within a judicial district, be brought 11
in the court for that district ; otherwise, it may be brought in any 12
such court in the county in which the land is situated. Said courts 13
shall have jurisdiction of a transitory action against a defendant 14
who is not an inhabitant of this commonwealth if personal service 15
or an effectual attachment of property is made within the common- 16
wealth ; and such action may be brought in any of said courts in 17
the county in which the service or attachment was made. 18
— of actions
of replevin.
1789, 26, § 4.
K. S. 113, § 2S.
— of actions
by the com-
monwealth.
1866, 233, § 1.
P. S. 161, § 4.
Section 3. An action of replevin shall be brought in the county 1
in which the goods or beasts are detained, g. s. i43, § n. p. s. i84, § n. 2
Section 4. A civil action in which the commonwealth is plain- 1
tiff or in which money due to the commonwealth is sought to be 2
recovered may be brought in the county in which the defendant 3
lives or has his usual place of business, or in the county of Suffolk. 4
— of actions by
and against
counties.
1809, 128.
It. S. 90, §§ 19,
20.
G. S. 123, §§ 3, 4.
P. S. 161, §§5,6.
Section 5. A local or transitory action by a county shall be 1
brought in the county in which the defendant lives or in a county 2
adjoining the plaintiff county. If the defendant lives in the plaintiff 3
county, it shall be brought in an adjoining county. Such action 4
against a county shall, at the election of the plaintiff, be brought 5
in the county in which he lives, in the defendant county or in an 6
adjoining county. 7
"ain^towns, Section 6. An action against a city, town or person to recover
fUt'JZl d*?fect- for injury or damage received bv reason of a defect, want of repair
ive highways, J ^ «, . ® .,; . J ... ' l
1877 234 or an msumcient railing in or upon a highway, town way, cause-
p. s. lei, § 7. way or bridge shall be brought in the county in which said city or
town is situated or said person resides ; but such action against
the city of Boston may be brought in the county of Middlesex, in
the county of Norfolk or in the county in which the plaintiff resides,
and such action against the town of Nantucket or against any town
in the county of Dukes County may be brought in the county of
Bristol.
1
2
3
4
5
6
7
8
9
10
by°anad "gainst Section 7. Transitory actions, except those mentioned in the
R°r!09M°i68' preceding section, to which a corporation, other than a county or
^36,4^1 1|._ the city of Boston, is a party may be brought as follows :
p;s;i6i;§8! First, If both parties are cities, towns or parishes, in the
4 Met. 212. , i. , .,i . . .. . . ' r
6Cush.524. county in which either partv is situated.
1
2
3
4
5
Chap. 167.] commencement of actions, service of process. 1497
6 Second, If both parties are corporations, other than a city, town i6Gray,ii6.
7 or parish, in any county in which either corporation has an estab- lfsMass.^i.
8 lished or usual place of business, or in which it held its last annual
9 meeting, or usually holds its meetings.
10 Third, If one party is a corporation named in the two preceding
11 clauses, and the adverse party is a natural person, in any county
12 in which, by the provisions of said clauses, the corporation might
13 sue or be sued, or in the county in which the natural person lives or
14 has a usual place of business.
1 Section 8. An action by or against the city of Boston, except venue of
2 actions mentioned in section six and actions by the collector of said actions by and
3 city under the provisions of sections thirty-two and thirty-three of Boston. C1 7 °
4 chapter thirteen, may be brought in the county of Suffolk, Essex, HSf; llhfli.
5 Middlesex or Norfolk, or in the county in which the plaintiff lives. E.2|.9o,§§§'i2o,
1836,4, §13. G. S. 123, §6. 1878,225. P. S. 161, § 9. 121-
1 Section 9. The defendant or tenant in an action brought in —removal
2 the county of Suffolk by the city of Boston or by its collector may, ofXffoik!*7
3 if the action is brought in the supreme judicial court or the supe- p^f 90, §§'122
4 rior court, within thirty days after the day for appearance, or if the J||g i §13
5 action is commenced in a police, district or municipal court and pf'^f'f Ja
6 taken to the superior court on appeal, within thirty days after i885,'384,'§i4.'
7 the entry of the appeal, file a motion in writing for the removal
8 of the action to the county of Essex, Middlesex or Norfolk, and
9 the court shall thereupon order it to be removed to the same court
10 in such one of said counties as the attorney of the city of Boston
11 elects.
1 Section 10. A transitory action by or against an executor or —by and
2 administrator may be brought in any county in which it might have tor^ne8tcexecu"
3 been brought by or against the testator or intestate at the time of p.6|*. i6if §"2.
4 his decease.
1 Section 11. If a tract of land lies in two or more counties, an Actions reia.
2 action relative to it, to which neither a county, the city of Boston indifferent
3 nor any corporation named in section seven is a party, may be i^fl B' etc'
4 brought in any of said counties, and the declaration shall be so p;f;i!f'ff;
5 drawn as to include the whole tract. 102 Mass. 46i.
1 Section 12. If the supreme iudicial court or the superior court change of
jl *f *- venue
2 finds that a party to an action or proceeding pending therein cannot, isst, 347.
3 by reason of local prejudice or other cause, have an impartial trial
4 in the county in which the action or proceeding was commenced,
5 it may, upon the application of either party, order it to be re-
6 moved for trial to another county. Upon the entry of such order,
7 the clerk of the court in which the action or proceeding is pending
8 shall forthwith transmit all the papers in the case, and a certified
9 copy of said order to the clerk of the court for the county to which
10 it has been ordered to be removed. The clerk who receives such
11 papers and order shall forthwith enter them on his docket, and
12 the case shall thereupon proceed as if it had been originally com-
13 menced in the county to which it has been removed.
1498
COMMENCEMENT OP ACTIONS, SERVICE OF PROCESS. [CHAP. 167.
Venue for
recovery of
forfeitures.
R. S. 90, § 17.
G. 8. 123, § 8.
P. S. 161, § 11.
Section 13. A civil action for the recovery of a forfeiture, ex- 1
cept an action in which the commonwealth is plaintiff, or in which 2
money is sought to be recovered for the commonwealth, shall be 3
brought in the county in which the offence was committed, unless 4
the statute imposing the forfeiture otherwise provides. 5
Erroneous
venue.
1851, 233, § 117.
1852, 312, § 80.
G. S. 129, § 70.
1880, 251.
P. S. 161, § 12;
167, § 73.
130 Mass. 335.
133 Mass. 466.
152 Mass. 268.
Section 14. If a local action which is commenced in the supreme 1
judicial court or the superior court has been brought in an erroneous 2
venue, the court may, if the error is discovered at the trial, of its own 3
motion order a nonsuit, unless good cause is shown why the trial 4
should be allowed to proceed ; or, if the error is discovered at any 5
stage of the proceedings of an action, local or transitory, the court 6
may, upon motion of either party, order the action, with all papers 7
relating thereto, to be transferred to the proper county upon terms 8
to the defendant ; and it shall thereupon be entered and prose- 9
cuted in the same court for that county as if it had been originally 10
commenced therein, and all prior proceedings otherwise regularly 11
taken shall thereafter be valid. 12
Civil actions,
how com-
menced.
Const., pt. 2,
c. 6, art. 5.
1784, 28.
1794, 65, § 1.
R. S. 90, §§ 1, 3,
7-9; 109, §§2, 3.
G. S. 123, §§ 9,
10, 13-15; 142,
§§ 2, 3.
P. S. 155, §17;
161, §§ 13, 14,
17-19; 183, §2.
3 Mass. 193.
FORMS, ISSUING AND RETURN OF WRITS.
Section 15. Actions at law, unless founded on scire facias or
other special writs, or unless otherwise authorized by statute or by
established practice, shall be commenced by original writs. Such
writs shall be signed, sealed and bear teste as required by the con-
stitution, and shall be framed either to summon the defendant, with
or without an order to attach his goods or estate, or to attach his
goods or estate and, for want thereof, to take his body ; or, in an
action commenced by the trustee process, to attach his goods or
estate in his own hands and also in the hands of the trustee. Orig-
inal writs shall be in the form heretofore established by law and by
the usage and practice of the courts. If changes in their form are
necessary in order to adapt them to changes in the law, or for any
other sufficient reason, the courts may make such changes, subject
to the final control of the supreme judicial court which may, by
general rule, regulate such changes in all the courts. Original writs
issued by trial justices shall be signed by the justice before whom
the action is brought, and shall be dated and filled up like other
original writs.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Separate sum.
mons after
attachment.
C L. 7, § 1.
YM-h i20.. § thereof shall be a sufficient service of the original summons.
1797, 50, § 1.
R. S. 90, § 4.
Section 16. A separate summons shall be served on the defend- 1
ant after an attachment of property on the writ, and the service 2
3
G. S. 123, § 11.
P. S. 161, § 15.
106 Mass. 217.
124 Mass. 468.
145 Mass. 341.
When writ and
summons may
be combined.
R. S. 90, § 5.
G. S. 123, § 12.
P. S. 161, § 16.
3 Mass. 196.
1 Pick. 497.
Section 17. In actions against corporations, and in other actions 1
in which property may be attached, but in which the defendant is 2
not liable to arrest, the writ of attachment and original summons 3
may be combined in one, requiring the officer to attach the goods 4
and estate and to summon the defendant. 5
Proceedings
if defendant's
name is un-
known.
Section 18. If the name of a defendant is not known to the
plaintiff, the writ may be issued against him by a fictitious name,
1
2
Chap. 167.] commencement of actions, service of process. 1499
3 and, if duly served, shall not be abated for that cause, but may be r. s. 90, §54.
4 amended upon terms. p. s. iei, § 20. 10 Met. 436. 142 Mass. 562. G' s' 123' § 16'
1 Section 19. Writs and processes in the supreme iudicial court writs, how
2 and in the superior court shall be signed, and may be issued, by const., pt. 2,
3 the clerk, may be returnable to the same court in any other county, 1820, 79,'§ 3.
4 may run, and shall be executed and obeyed, throughout the com- 90,§§t%?35;
5 monwealth. g. s. 123, § 17. p. s. i6i, § 21. 1836' 4' § 9-
1 Section 20. Subpoenas on bills in equity shall bear teste of the subpoenal
2 first justice of the court who is not a party to the suit, and shall be hovYseued'.
3 under the seal of the court and signed by the clerk. p. s. iei, § 22. q\ §; ^f/JI
1 Section 21. An original writ issued by the supreme judicial w^a^en
2 court or the superior court, if required to be served fourteen days R. s. 90, §116.
3 before the return day, shall be returnable at the election of the p." s." iei,' § 23.'
4 plaintiff at any return day which occurs after the expiration of '
5 fourteen days from, and within three months after, the date of
6 the writ ; and, if required to be served thirty days before the return
7 day, shall be returnable at the election of the plaintiff at any return
8 day which occurs after the expiration of thirty days from, and
9 within three months after, the date of the writ.
1 Section 22. An original writ issued by a police, district or same subject.
2 municipal court shall be returnable not more than sixty days after 47*. ' '
3 the date thereof. It may run throughout the county in which the Jf9!; 3^; § 17-
4 court issuing it is held, and throughout the commonwealth for the ^*» 398> & 2;
5 purpose of attaching property. It may run into the county in
6 which the defendant, or in which one of several co-defendants, lives
7 for the purpose of service on him in an action against several
8 defendants who live in different counties which is brought in the
9 county in which one of them lives or in an action of summary
10 process under the provisions of chapter one hundred and eighty-one
11 or in an action by the trustee process.
1 Section 23. An original writ which is issued by a trial justice same subject.
2 shall be returnable not more than sixty days after the date thereof. 1783; 42, § i.
3 It may run throughout the commonwealth for the purpose of il'3f,*i2i,§§i".
4 attaching property, and it may run into the county in which the p| t; i^' fjr/'
5 defendant lives for the purpose of service on him in an action of i|-
6 summary process under the provisions of chapter one hundred and 2 Alien, 531.
7 eighty-one or in an action by the trustee process. If an attach-
8 ment is made in a county other than that in which the writ is re-
9 turnable, not more than one dollar and fifty cents shall be chargeable
10 to or taxed against the defendant for the service of the writ.
1 Section 24. The first Monday of every month shall be a return Return days
2 day in every county for writs, processes, notices to appear and cita- jSdicFafank
3 tions in all actions, suits and other civil proceedings in the supreme courts01
4 judicial court and the superior court. Such writs, processes, g; |; ^^\
5 notices and citations may be made returnable, at the election of Ysst'm'ii3'
6 the party who takes out the same, at any return day within three 153 Mass. aoi.
1500
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 167,
months after the date thereof; but said courts may make them re- 7
turnable at other times. If they issue out of the supreme judicial 8
court for the county of Dukes County or Nantucket, they shall 9
be returnable in the county of Bristol. 10
taehrf5-ioryB Section 25. Saturday of each week shall be the return day for 1
i893rt396 "2 ^i^' processes, notices to appear and citations in all civil actions 2
and proceedings in police, district and municipal courts ; but said 3
4
courts may make them returnable at other times.
Directions for
attachment or
arrest.
R. S. 90, § 56.
G. S. 123, § 107.
P. S. 161, § 26.
4 Ma'ss. 60.
SERVICE OF WRITS.
Section 26. If the writ requires the officer to attach the goods 1
or estate of the defendant and for want thereof to take his body, 2
the plaintiff or his attorney may by written or verbal directions 3
require the officer to serve the writ by an attachment of goods or 4
estate or by the arrest of the defendant, if such arrest is author- 5
ized, and the officer shall serve the writ according to such directions. 6
Service of
original writs.
C. L. 330, § 4.
1699-1700, 3, § 4.
1783, 42, § 1.
R. S. 85, §8; 90,
§21.
G. S. 123, § 21.
P. S. 154, §16;
161, § 27.
1893, 396, § 17.
1894, 398, § 2.
5 Met. 334.
12 Cush. 78.
Section 27. An original writ which is issued by the supreme 1
judicial court or the superior court shall be served fourteen days 2
at least before the return day. An original writ which is issued by 3
a police, district or municipal court or trial justice may be directed 4
to and served by any officer who is qualified to serve civil process 5
and shall be served not less than seven nor more than sixty days 6
before the return day ; but if such writ is to be served in a county 7
other than that in which the court issuing it is held, it shall, except 8
in trustee process, be served at least fourteen days before the return 9
day. 10
Service upon
certain corpo-
rations.
1694-5, 15, § 3.
1726-7, 15, § 3.
1783, 39, § 6.
1785, 75, § S.
Section 28. The writ in an action against a county, city, town, 1
parish or religious society, or against proprietors of wharves, gen- 2
eral fields or real estate lying in common, shall be served thirty 3
days at least before the return day. 4
R. S. 90, §22. G. S. 123, §22. P. S. 161, § 28. 109 Mass. 313.
Service of
summons.
1797, 50, § 1.
R. S. 90, § 39.
G. S. 123, § 23.
P. S. 161, § 29.
124 Mass. 468.
135 Mass. 412.
145 Mass. 341.
171 Mass. 303.
Section 29. A separate summons which is served after an attach- 1
ment of property shall be served by delivering it to the defendant 2
or by leaving it for him as hereinafter provided ; and an original 3
summons without an attachment shall be served by reading it to 4
the defendant, by delivering to him a copy thereof attested by the 5
officer who serves it or by leaving such copy for him as hereinafter 6
provided. 7
Same subject.
R. S. 90, § 40.
G. S. 123, § 24.
P. S. 161, § 30.
Section 30. The separate summons may be served at any time
after the attachment has been made, if it is served the number of
days before the return day required for the service of the original
writ ; and a certificate of the service of the summons shall be indorsed
on the original writ.
1
2
3
4
5
— if no per-
sonal service.
1700-1, 20, § 1.
Section 31. If the summons is not served personally on the 1
defendant, the original or a copy, as the case may be, shall be left 2
Chap. 167.] commencement of actions, service of process. 1501
3 at his last and usual place of abode, if he has any within the com- 1736-7,12.
4 monwealth known to the officer. If he has none, it shall be left r9s.9o, §§4if'
5 with his tenant, agent or attorney, if he has any within the com- ^; s 12g) § 25.
6 monwealth known to the officer. If he has no such last and usual ?^-l61ji31-
6 Cusn. 354.
7 place of abode and no tenant, agent or attorney, no service on nf Sray' |Io-
8 him shall be required except as provided in the three following' 131 Mass. 359.
n ,. ^ r r ° 140 Mass. 488.
9 sections.
1 Section 32. If an absent defendant whose property has been service of
2 attached is sued with one or more others on a joint contract, and onnabserit
3 he has no such last and usual place of abode, and no tenant, agent ^defendant
4 or attorney, within the commonwealth, the summons for him shall ^f9r7e-50 § 6
5 be left with one of the co-defendants, if there is any within the £• f'-^A*6,-
_ - Cx. b. 123, § 2b.
D Commonwealth. P. S. 161, § 32. 6 Cush. 354. 3 Gray, 508.
1 Section 33. If the tenant in a real action is out of the com — in real
2 monwealth and has no last and usual place of abode here known to Absent tenant!
3 the demandant, the summons or an attested copy shall, in addition r0!'1^ |72;
4 to any other service required, be left for him with the tenant or p* if" iff' IK'
5 occupant, if any, of the land demanded ; otherwise, it shall be left 2 Cusn- &■
6 in a conspicuous place on the land.
1 Section 34. If the defendant is out of the commonwealth, or if ^absent^e-06
2 his residence is not known to the officer, and no personal service is j^g8™-, 48
3 made on him, he shall, in addition to the service herein prescribed, g'. s! 123, § 28.
4 be entitled to further notice of the action as provided in chapter 6 cusn. 354.
5 one hundred and seventy.
11 Met. 370. 10 Gray, 164. 4 Allen, 94.
9 Gray, 311. 12 Gray, 198. 105 Mass. 93.
1 Section 35. In an action against a county, the summons shall be service of
2 served by leaving an attested copy thereof with the county treas- munk?pai,°etc.,
3 urer and with one of the county commissioners or one of the i^nl*10116'
4 officers who by law exercise the powers of county commissioners, g t'i23§§429
5 In an action against a city, town, parish or religious society, or ^s, ^6.'
6 against the proprietors of wharves, general fields or real estate
7 lying in common, the summons shall be served by leaving an
8 attested copy thereof with the treasurer of the corporation or of the
9 proprietors, and another like copy with the mayor, clerk or one of
10 the aldermen of the city, or with one of the selectmen of the town,
11 or with one of the assessors or standing committee of the parish or
12 religious society, or with one of the proprietors of such land or other
13 estate, as the case may be ; and if no such treasurer is found within
14 the county, the copy shall be left with one of the other officers
15 before mentioned, or with one of said proprietors ; and if there are
16 no such officers, the copy shall be left with one of the inhabitants
17 of the county, city or town, or with one of the members of the
18' corporation.
1 Section 36. In an action against a corporation not mentioned "^ons? cor'
2 in the preceding section, the summons shall be served by leaving ^3|1if(f§43
3 the original or copy, as the case may be, with the clerk, cashier, g'. s. 123, § 30.
4 secretary, agent or any other officer who has charge of its business ;
1502
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 167.
4 Allen, 357.
173 Mass. 28.
and if no such officer is found within the county, the summons 5
may be served on any member of the corporation. 6
Service of
summons In
suits in
R. S. 90
Section 37. A writ of original summons or subpoena issued in
L, ITiiJ' a suit m equity shall be served the same number of days before
g9's 123 31 *ne re^urn day and in the same manner as an original writ in an
p.' s. lei,' § 37.' action at law in the same court.
1
2
3
4
Property liable
to attachment.
1735-6, 9, § 1.
1783, 57, § 4.
1798, 77, § 3.
R. S. 90, §§ 23,
24.
1853, 269, § 2.
1859, 183.
G. S. 123, § 32.
P. S. 161, § 38.
17 Mass. 405.
3 Pick. 368.
16 Pick. 144.
2 Met. 510.
8 Gray, 517.
14 Gray, 220.
8 Allen, 583.
101 Mass. 105.
106 Mass. 506.
ATTACHMENT OF PROPERTY GENERAL PROVISIONS.
Section 38. All real and personal property which is liable to 1
be taken on execution, except such personal property as, from its 2
nature or situation, has been considered as exempt according to the 3
principles of the common law as adopted and practised in this com- 4
monwealth, and except as provided in the two following sections, 5
may be attached upon the original writ in any action in which debt 6
or damages are recoverable, and may be held as security to satisfy 7
such judgment as the plaintiff may recover ; but no attachment of 8
land shall be made on a writ returnable before a police, district or 9
municipal court or a trial justice unless the debt or damages de- 10
manded therein exceed twenty dollars. 119 Mass. 241. 11
Attachment
of cars and
vessels.
1875, 144.
1S81, 124.
P. S. 161, $ 39.
140 Mass. 131.
Section 39. Eailroad cars and engines in use and making reg- 1
ular passages on railroads, and steamboats so in use upon water- 2
routes, shall not, within forty-eight hours previous to their fixed 3
time of departure, be attached upon mesne process unless the 4
officer who makes an attachment of such property has first demanded 5
of the owners or managers thereof other property upon which to 6
make such attachment equal in value to the ad damnum in the writ 7
and such owners or managers have refused or neglected to comply 8
with said demand. Such attachment shall be void unless the officer 9
certifies in his return that he has made such demand and that the 10
owners or managers have refused or neglected to comply there- 11
with ; and no ship or vessel shall be attached on mesne process 12
in an action at law unless a declaration is inserted in the writ 13
before service thereof, nor unless the plaintiff or a person in his 14
behalf makes affidavit and proves to the satisfaction of a justice 15
of a court of record, a master in chancery or, except in the county 16
of Suffolk, a trial justice or justice of the peace that he has a 17
good cause of action and reasonable expectation of recovering an 18
amount, exclusive of all costs, equal to at least one-third the 19
damages demanded in such writ, which affidavit and the certificate 20
of the magistrate that he is satisfied that the same is true shall be 21
annexed to the writ. 22
— of property
of newspaper
offices.
1890, 377.
Section 40. The press, type, stands, cases, paper and other per- 1
sonal property used in printing and publishing newspapers shall 2
not, within forty-eight hours previous to the issue of any edition of 3
a newspaper be attached upon mesne process unless the officer who 4
makes an attachment of such property has, at least twenty-four hours 5
previously thereto, demanded of the owners or managers thereof 6
other property upon which to make such attachment equal in 7
Chap. 167.] commencement of actions, service of process. 1503
8 value to the amount of the ad damnum of the writ and such owners
9 or managers have refused or neglected to comply with such de-
10 mand. Such attachment shall be void unless the officer certifies in
11 his return that he has made such demand, the time when it was
12 made and that it has been refused and not complied with. Such
13 attachment, made after such demand, shall take effect from the time
14 demand was made, so as to take priority of any mortgage, pledge,
15 conveyance or attachment made subsequent to the time of making
16 such demand.
1 Section 41. Successive attachments may be made upon the successive
2 same writ by one or more officers and in one or more counties, at th^same writ"
3 any time before the service of the summons ; but no attachment q.\ |; i^f/lj.
4 shall be made thereon after the summons has been served. p. s. i6i, §40.
1 Section 42 . Personal property which has been attached or taken ~^P^?t^ ifEer-
2 on execution by a constable may be further attached or taken on if70- 3io.
3 execution by a deputy sheriff or other competent officer, upon any
4 writ of attachment or execution which such constable is not quali-
5 tied to serve ; and thereupon such constable shall make return upon
6 and deliver his writ, with the possession of the property, to such
7 deputy sheriff or other officer, who shall complete the service
8 thereof. If such writ of attachment has been returned into court,
9 the constable shall file in the case a certificate of the fact of such
10 surrender of possession.
1 Section 43. The officer, if necessary, may appoint a keeper of ^^272, §§ 1, 2.
2 personal property which has been attached or taken on execution, ^•p{c1^1',1f/^
3 and in such case shall, upon the written request of the defendant, 122 Mass. 541.
155 Mass 261.
4 remove such property or the keeper without unreasonable delay.
1 Section 44. Personal property which has been attached may, Property may
2 subject to the provisions of the preceding section, be kept upon the prem£es,nuntii.
3 premises where it is found unless the owner or occupant of the p. s'. i6i, § 43.
4 premises in writing requests the officer to remove his keeper there- loi^jass.^eT.
5 from ; and if the defendant in writing requests the officer to allow J|? mIII'. 1st
6 property which has been attached upon the premises of the de-
7 fendant to remain there until he may give bond to dissolve the
8 attachment, the property shall not be removed until he has had
9 reasonable opportunity to give such bond.
1 Section 45. If an attachment is made of articles of personal ^ufky^ods.0*
2 property which, by reason of their bulk or for other cause, cannot R-s. 90, §§33,
3 be immediately removed, a certified copy of the writ, without the S'f-j?Mj?I-
4 declaration, and of the return of the attachment may, within three 8 rick. 402.
5 days after the attachment, be deposited in the office of the clerk of 4 Alien, 329.
6 the city or town in which it is made ; and such attachment shall \\3 1\IH] '^f;
7 be as valid and effectual as if the articles had been retained in the J|°, jj^8,; ^;
8 possession and CUStody Of the Officer. 170 Mass. 142. 177 Mass. 526. 157 Mass. 384.
1 Section 46. The clerk shall receive and file all such copies, same subject
2 noting thereon the time when received, and keep them safely in g! s'. 123, § 58.
& > r ^ • P. S. 161, § 70.
1504
COMMENCEMENT OF ACTIONS, SERVICE OF PEOCESS. [CHAP. 167.
his office, and also enter a memorandum thereof, in the order in 3
which they are received, in the books kept for recording mortgages 4
of personal property. Such entry shall contain the names of the 5
parties to the action and the date of the entry. The clerk's fee for 6
this service shall ^e twenty-five cents, which shall be paid by the 7
officer and included in his charge for the service of the writ. 8
Attachment of
proceeds of
property sold.
1822, 93, § 5.
R. S. 90, §§ 71,
72.
G. S. 123, § 34.
P. S. 161, § 44.
Section 47. If personal property has been sold or disposed of 1
by consent of the parties, or after an appraisal as hereinafter pro- 2
vided, the proceeds, while remaining in the hands of the officer, 3
shall be liable to be further attached by him as the property of the 4
original defendant, in the manner in which the property itself 5
might have been attached ; and shall be held and disposed of in the 6
same manner as if the attachment had been made on the property 7
itself before the sale thereof. But the foregoing provision shall not 8
prevent the officer from paying over to the defendant the surplus 9
of the proceeds of such sale, after retaining enough to satisfy all 10
the attachments actually existing at the time of such payment. 11
attachment of Section 48. Property which has been replevied from an officer
pleviedy re" wn0 nas Cached it shall be considered as remaining in his custody
Rs. 90 §99. and control so as to be liable to further successive attachments, as
G. S. 123, § 35. ,„ , . .-..,.
p. s. i6i, §45. it it had remained in his possession.
1
2
3
4
Plaintiff in re-
plevin liable
for value.
R. S. 90, § 100.
G. S. 123, § 36.
P. S. 161, § 46.
Section 49. If there is judgment for a return of the property 1
so replevied, the plaintiff in replevin and his sureties shall be liable 2
for the whole of the property or the value thereof, although the 3
attachment for which it is finally held was made after the property 4
was replevied. 5
Attachment
after death,
etc., of first
attaching
officer.
R. S. 90, § 101.
G. S. 123, § 37.
P. S. 161, § 47.
Section 50. If an officer dies or is removed from office while an 1
attachment which he has made remains in force, the attached prop- 2
erty, whether replevied or remaining in possession of the officer 3
or of his executor or administrator, may be further attached by any 4
other officer so as to bind it or its proceeds, as if the later attach- 5
ment had been made by the first-mentioned officer. 6
fxfche4dsens9 in Section 51. The officer who makes such later attachment shall 1
k.s. 90, §§ io2, not take the property itself, but he shall make a return of an attach- 2
p'i'iei'Hi" ment m *ne common form, stating by whom the property was pre- 3
viously attached, and, if it has not been replevied, shall leave a 4
certified copy of the writ, without the declaration, and of the return 5
of that attachment with the former officer if living or, if he is dead, 6
with his executor or administrator or whoever then has possession of 7
the property. If the property has been replevied, and the officer 8
who made the original attachment is dead, he shall leave such copy 9
with the plaintiff in replevin or with his executor or administrator, 10
and the attachment shall be considered as made when such copy is 11
delivered in either of the modes before provided. 12
mgrepie^ied11' Section 52. Property which has been replevied from an attach- 1
RTOspe9of§ 104. jn£ officer siiall not be further attached as the property of the orig- 2
p's'iei'tig" ma* defendant in any manner other than is provided in section 3
Chap. 167.] commencement of actions, service of process. 1505
4 forty-two and in the four preceding sections, so long as it is held
5 by the plaintiff in replevin or by any person holding under him,
6 unless the original defendant has acquired a new title thereto.
1 Section 53. Property which has been attached by an officer, Attachment to
2 whether remaining in his custody at the time of his death or taken death of attach-
3 from him by replevin or otherwise, and also all claims for dam- R.gs?9oT§r95.
4 ages to property so taken from him, shall remain subject to the p." I; ill,' | to."
5 attachment as if the officer had lived, and shall not be considered
6 as assets in the hands of his executor or administrator.
1 Section 54. An attachment of land which is subject to a mort- Attachment of
2 gaffe or other encumbrance shall, if the mortgage is redeemed or land.
. 1815 137 6 3
3 the encumbrance is removed before the levy of the execution, hold k. s. 9o,'§ 32.
/~l O -1 an C J -1
4 the land discharged of the mortgage or encumbrance, and execution p.' s! i6i,' § 51!
5 may be levied in the same manner and with the same effect as if it io6Mass5507.
6 had never existed.
1 Section 55. Property which has been attached shall be held ^ctiv'etSr
2 for thirtv days after final iudffment for the plaintiff so that it mav tturty.days
* * . " , o .-1 •' after judg-
3 be taken on execution ; but if attached in the county of Nantucket ment.
4 and judgment is rendered in another county, or if judgment is 1701-2, 5,' § 11.
5 rendered in the county of Nantucket and it was attached in another nsoe; 107. U"
6 county, it shall be held for sixty days after final judgment, unless g;s.i23,§M2.
7 the attachment is sooner dissolved as hereinafter provided. p. s. i6i, §52.
11 Mass. 204. 106 Mass. 506. 118 Mass. 514.
1 Section 56. Property which has been attached in suits in equity —for thirty
2 shall be held for thirty days after the right of appeal from a final right of appeal
3 decree expires. p^resUiye^'
1877, 178, § 6. P. S. 161, § 53. 138 Mass. 209.
1 Section 57. The final judgment intended in sections fifty-five, Final jtidg.
2 one hundred and eleven and one hundred and sixteen is that which mes. w,<t$i.'
3 is rendered in the original action, whether upon appeal or other- p.' f; iff; f 55."
4 wise, and not such as may be rendered upon a writ of error or writ I74 Mass! 349!
5 of review.
ATTACHMENT OF REAL ESTATE AND LEASEHOLD ESTATES.
1 Section 58. In attaching land, or a right or interest therein, the Attachment of
2 officer need not enter upon the land or be within view of it. In hoidsanc
3 attaching leasehold estates, the officer shall state in his return in S'47,-267,§§33.'
4 general terms the leasehold property attached. p.'f.'iei.'foi."
13 Mass. 128. 11 Pick. 341. 142 Mass. 212.
rit.
1 Section 59. No attachment on mesne process of land or of any Deposit of
2 leasehold estate shall be valid against a subsequent attaching creditor, e. s. 90, § 2s
3 or against a subsequent purchaser in good faith and for value, unless 1S47; 267, § 3.
4 the officer deposits a certified copy of the original writ, without the mto.'sm/Il1'
5 declaration, and so much of his return thereon as relates to the ^7|.mJ|'^i
6 attachment of the estate in the registry of deeds for the county or J^.40^
7 district in which the land lies. 10 Met. 142. 11 Met. 244.
1506
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 167
Duty and fees
of officer.
1838, 186.
1839, 89.
1847, 267, § 3.
G. S. 123, § 52.
1870, 264, § 1.
Section 60. The officer who makes such attachment shall deposit 1
such copy in the registry of deeds ; and he shall be entitled to re- 2
ceive four cents a mile for his travel from the place of service to the 3
registry, with his fee for the copy. 4
1873, 297, § 1.
P. S. 161, § 63.
— of register.
E. S. 90, § 30.
1S56, 209.
G. S. 123, § 53.
1870, 264, § 2.
1873, 297, § 2.
P. S. 161, § 64.
118 Mass. 517.
Section 61. The register of deeds shall note on every such copy 1
the day, hour and minute when he receives it, and shall file it in his 2
office. He shall also enter in a book which he shall keep for that 3
purpose the name of the plaintiff and the name of each defendant 4
whose land is attached, the time when the attachment was made 5
and the time when the copy was deposited. His fee in each case 6
shall be twenty-five cents, which shall be paid upon the deposit 7
of the copy and may be taxed for the plaintiff in his bill of costs. 8
If a dissolution of an attachment which has been so entered in a reg- 9
istry of deeds appears of record in the court in which the action in 10
which the attachment was made is pending, the clerk of such court 11
shall forward to such register a certificate of such dissolution, stating 12
how such dissolution was made, and the register shall file the cer- 13
tificate with the copy of the writ and shall enter it in his docket of 14
attachments. 15
When such
attachment
takes effect.
R. S. 90, § 29.
G. S. 123, § 54.
1860, 70.
P. S. 161, § 65.
10 Allen, 494.
129 Mass. 27.
158 Mass. 3S5.
Attachment of
land fraudu-
lently con-
veyed, etc.
1844, 107, § 2.
1855, 453.
G. S. 123, § 55.
P. S. 161, § 66.
6 Gray, 520.
11 Grav, 217.
9 Allen, 101.
99 Mass. 479.
128 Mass. 427.
130 Mass. 578.
147 Mass. 23.
Section 62. If the copy of the writ is deposited, as aforesaid, 1
within three days after the day when the attachment was made, the 2
attachment shall take effect from the time it was made ; otherwise, 3
from the time when the copy is so deposited ; but attachments of 4
land, and of leasehold estates which have an original term of more 5
than seven years, shall not be valid against purchasers in good faith 6
and for value, other than the defendant, except from the time when 7
the copy is deposited as aforesaid. 8
Section 63. If an attachment on mesne process is made of land, 1
or of a right or interest therein, which has been fraudulently con- 2
veyed by the debtor to a third person, or which has been pur- 3
chased by the debtor, or the purchase money of which has been 4
directly or indirectly paid by him, and the title thereto has been re- 5
tained in the vendor or conveyed to another person, with the intent 6
and for the purpose of fraudulently securing the land from attach- 7
ment by a creditor of such debtor, or with the intent and for the 8
purpose of delaying, defeating or defrauding creditors, it shall not 9
be valid against a subsequent attaching creditor, or against a sub- 10
sequent purchaser in good faith and for value, unless the officer in 11
addition to the return required by the preceding sections also re- 12
turns a brief description of the land which has been attached, by its 13
locality, situation, boundaries or otherwise as known to him, and 14
the names of the persons in whom the record or legal title stands. 15
Entry of name
of holder of
legal title, etc.
1844, 107, § 3.
G. S. 123, § 56.
1870, 264, § 1.
1873, 297, § 1.
P. S. 161, § 67.
118 Mass. 517.
Section 64. The register in such case, in addition to the names 1
of the parties to the writ which he is required to enter as provided 2
in section sixty-one, shall also enter in his docket of attachments 3
the names of the persons in whom the record or legal title stands, as 4
returned by the officer, in the same manner as if the estate of such 5
persons were attached as defendants in the writ. 6
Chap. 167.] commencement of actions, service or process. 1507
1 Section 65. Registers of deeds shall perform the same duties Duties of regis-
2 relative to the filing and entering of copies of writs and other papers jfaperain
3 in actions commenced in the courts of the United States which united8 states
4 affect the title to land by attachment or otherwise as are required ^nFm 3
5 relative to the filing and entering of such papers in such actions p- s- 1^'< § 68.
6 commenced in the courts of this commonwealth.
ATTACHMENT OF CORPORATE SHARES.
1 Section 66. The share or interest of a stockholder in a corpora- Attachment of
2 tion organized under the laws of this commonwealth or of the United shares.ate
3 States and located or having a general office in this commonwealth ^ ||' |§9j 5
4 may be attached by leaving an attested copy of the writ, without **• |'- 40'- § ^; '
5 the declaration, and of the return of the attachment, with the clerk, g! s. 123, § 59.
• • /» 1870 291 6 1
6 treasurer or cashier of the company, if there is such officer; other- p. s. lei, § 71.
7 wise, with any officer or person who has at the time the custody of 149 Mass! m\
S the books and papers of the corporation.
1 Section 67. A share or interest so attached, with all the divi- ^04ff83 1-§ 2
2 clends thereafter accruing thereon, shall, except as otherwise pro- 5- giSJb^Zn
3 vided in section thirty-six of chapter one hundred and nine, be i87o,'29i,'§i. '
4 held as security to satisfy the final judgment in the action, in like '
5 manner as other personal property is held.
1 Section 68. If the officer who has a writ of attachment against Pe°atltyffi cor"
2 such stockholder exhibits the writ to the officer of the companv who &• s. 90, § 38. '
3 is appointed to keep a record or account of the shares or interest p." s.' i6i,' § 73.'
4 of the stockholders therein, and requests a certificate of the number
5 of shares or amount of the interest held by the defendant, such
6 officer of the company shall give such certificate to the officer who
7 holds the writ. If he unreasonably refuses so to do, or if he wilfully
8 gives a false certificate thereof, he shall be liable in an action of
9 tort for double the amount of the damages caused by such refusal"
10 or false certificate, unless the judgment is satisfied by the original
11 defendant.
ATTACHMENT OF ENCUMBERED PERSON ALTV.
1 Section 69. Personal property of a debtor which is subject to Attachment of
2 a mortgage, pledge or lien, and of which the debtor has the right of proptrif!d
3 redemption, may be attached and held as if it were unencumbered, r?|. goS^I'
4 if the attaching creditor pays or tenders to the mortgagee, pledgee ^s ^1' 1 62
5 or holder of the property the amount for which it is so liable within p. s. I6ij7ii
6 ten days after demand as hereinafter provided. 13 Met! 204.'
1 Cush. 278. 1 Allen, 29. 110 Mass. 28, 167. 142 Mass. 15.
3 Cush. 306. 6 Allen, 295. 119 Mass. 535. 143 Mass. 123.
14 Gray, 566. 106 Mass. 114. 122 Mass. 303. 159 Mass. 204.
1 Section 70. The mortgagee, pledgee or holder shall, when de- Mortgagee to
2 manding payment of the money due to him, state in writing a just ls^ia^T^*'
3 and true account of the debt or demand for which the property is f844,'i48,§§TL
4 liable to him and deliver it to the attaching creditor or officer. If £• |- ???' J Sf-
-, . . . i n "• "• 1"1> S 75.
5 the same is not paid or tendered to him within ten days thereafter, i Met. 294, 325,
6 the attachment shall be dissolved, the property shall be restored 3 Met. 144,268.
1508
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 16'
12 Met. 308.
3 Cush. 306, 575.
3 Gray, 490.
4 Gray, 550.
14 Gray, 123.
1 Allen, 29.
to him and the attaching creditor shall be liable to him for any 7
damages he has sustained by the attachment. 8
3 Allen, 241, 427.
6 Allen, 80.
14 Allen, 222.
98 Mass. 510.
100 Mass. 323.
103 Mass. 335.
105 Mass. 49.
110 Mass. 365.
Ill Mass. 273.
125 Mass. 164, 582.
140 Mass. 154.
145 Mass. 270, 571.
151 Mass. 497.
157 Mass. 228.
166 Mass. 1.
170 Mass. 517, 523.
r^?J^i0r Section 71. If he demands and receives more than the amount 1
demand due to him, he shall be liable in an action by the attaching creditor 2
r. s. 90,'§8o. for money had and received for the excess, with interest thereon 3
at the rate of twelve per cent a year. 4
G. S. 123, § 64.
P. S. 161, § 76.
Debt to be re-
paid out of pro-
ceeds of sales.
R. S. 90, § 81.
G. S. 123, § 65.
P. S. 161, § 77.
Section 72. If property which has been attached and redeemed 1
by the attaching creditor, as aforesaid, is sold on mesne process 2
or on execution, the proceeds thereof, after deducting the charges 3
of the sale, shall be first applied to repay to the attaching creditor 4
the amount so paid by him, with interest. 5
— or by de-
fendant.
R. S. 90, § 82.
G. S. 123, § 66.
P. S. 161, § 78.
Section 73. If the attaching creditor, after having redeemed 1
the property, does not recover judgment, he may nevertheless hold 2
the property until the debtor repays to him the amount which he 3
paid for the redemption, or as much thereof as the debtor would 4
have been obliged to pay to the mortgagee, pledgee or holder of the 5
property, if it had not been attached, with interest from the time 6
when it was demanded of the debtor. 7
Attachment of
mortgaged per-
sonalty in
debtor's pos-
session.
1844, 148, § 2.
G. S. 123, § 67.
P. S. 161, § 79.
6 Cush. 106.
9 Gray, 45.
8 Allen, 273.
29 Mass. 172.
102 Mass. 423.
107 Mass. 122.
Section 74. Personal property which is subject to a mortgage 1
and is in the possession of the mortgagor may be attached as if un- 2
encumbered ; and the mortgagee or his assigns may be summoned 3
in the same action in which the property is attached as the trustee 4
of the mortgagor or his assigns to answer such questions as may be 5
put to him or them by the court or by its order relative to the con- 6
sideration of the mortgage and the amount due thereon. 7
114 Mass. 60.
121 Mass. 96.
133 Mass. 78.
134 Mass. 347.
140 Mass. 208.
148 Mass. 566.
154 Mass. 34.
175 Mass. 144.
Determination
of amount due.
1844, 148, § 3.
G. S. 123, § 68.
P. S. 161, § 80.
3 Cush. 306.
128 Mass. 102.
133 Mass. 78.
140 Mass. 208.
144 Mass. 385.
154 Mass. 34.
170 Mass. 469.
Section 75. If upon such examination, or upon the verdict of 1
a jury as hereinafter provided, it appears that the mortgage is valid, 2
the court, having first ascertained the amount justly due upon it, 3
may direct the attaching creditor to pay the same to the mortgagee 4
or his assigns within such time as it orders ; and if he does not pay 5
or tender the amount within the time prescribed, the attachment 6
shall be void and the property shall be restored. 7
— of validity
of mortgage.
1844, 148, § 4.
G. S. 123, § 69.
P. S. 161, § 81.
Section 76. If the attaching creditor denies the validity of the 1
mortgage and moves that the validity may be tried by a jury, the 2
court shall order such trial upon an issue which shall be framed 3
under its direction and if, upon such examination or verdict, the 4
mortgage is adjudged valid, the mortgagee or his assigns shall re- 5
cover his costs. 6
Creditor to
retain amount
paid by him,
etc
1844, 148, § 5.
G. S. 123, § 70.
P. S. 161, § 82.
Section 77. "When the creditor has paid to the mortgagee or 1
his assigns the amount ordered by the court, he may retain out of 2
the proceeds of the property attached, when sold, the amount 3
so paid with interest, and the balance shall be applied to the pay- 4
ment of his debt. 5
Chap. 167.] commencement of actions, service of process. 1509
1 Section 78. If the attaching creditor, after having paid the creditor not
2 amount ordered by the court, does not recover judgment, he may judgment^
3 nevertheless hold the property until the debtor has repaid with Snturepafl!7
4 interest the amount so paid. g. s. 123, §71. p. s. bi, §83. ism, 148, §6.
SUPPLEMENTARY PROCESS.
1 Section 79. If the service of a writ, process or order is defec- Further service
2 tive or insufficient, the court or tribunal to which it is returnable sertu;eefectlve
3 may, upon motion of the plaintiff or petitioner, issue further writs, pJs.iei, §84.
4 processes and orders, which shall be served in such manner as may 140Mass.342.
5 be therein directed ; and upon due service thereof, the court or
6 tribunal shall thereby acquire the same jurisdiction of the subject
7 and of the parties as it would have obtained if such service had
8 been made in pursuance of the original writ, process or order. The
9 action, suit or proceeding shall be continued from time to time
10 until such service is made.
1 Section 80. At any time during the pendency of an action, Attachments
2 suit, libel, petition or other proceeding at law or in equity, upon dencygofesu"it.
3 the commencement of which an arrest or attachment is authorized 1I77,' ill' §§ x' **
4 by law, the court or trial justice for cause may, on motion ex parte, pj|.^i §§85
5 order such arrest of the defendant or such attachment of his prop- 88-
6 erty by the trustee process or otherwise to secure the judgment or
7 decree which the plaintiff may obtain in said cause ; but no arrest
8 of the defendant shall be authorized unless the plaintiff or a person
9 in his behalf makes affidavit and proves to the satisfaction of the
10 court or trial justice the same facts as are required to be proved to
11 authorize an arrest on mesne process. Such arrest or attachment
12 shall be subject to all the provisions of law relative to arrest and
13 attachment upon mesne process, so far as applicable.
1 Section 81. A precept for such arrest or attachment shall be in precepts, form
2 the same form, so far as practicable, as an original writ of capias 1J76, 167, §§2,3.
3 and attachment; but the supreme judicial court may by general p7'.s'161,§§86'
4 rules establish forms therefor. Such precept may be served by an
5 officer authorized to serve the original process in the cause, and
6 shall be returnable as may be ordered by the court which issues it.
SALE OF PERSONAL PROPERTY ATTACHED.
1 Section 82. Personal property which has been attached on saieofprop.
2 one or more writs may, if the debtor and all the attaching creditors 1822, 93,a§cie
3 consent in writing to the sale, subject to the provisions of sections ]|; |; mjyfa.
4 sixty-nine to seventy-eight, inclusive, be sold by, the attaching ^ fi^if^9"
5 officer in the manner provided by law for selling like property on f^tck3/07'
6 execution ; and the proceeds of the sale, after deducting the neces- 4 Met. 137, 504.
7 sary charges, shall be held by the officer subject to the attachments 10 Met. 236.
8 and be disposed of as the property would have been held and 101 Mass. 259.
9 disposed of had it remained unsold. 125 Mass. 278. 154 Mass. 34.
1 Section 83. If an attachment is made of animals or of goods Appraisal and
2 which are liable to perish, waste or greatly decrease in value by awe property!
3 keeping, or which cannot be kept without great and disproportion- r.2|.9o,§§58.
1510
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 167-
G. S. 123, § 73.
P. S. 161, § 90.
18 Pick. 407.
3 Allen, 207.
97 Mass. 67.
101 Mass. 259.
114 Mass. 60.
154 Mass. 34.
ate expense, and the parties do not consent to a sale thereof as
before provided, the property so attached shall, subject to the pro-
visions of sections sixty-nine to seventy-eight, inclusive, upon the
application of either of the parties interested to the attaching officer,
be examined, appraised and sold or otherwise disposed of in the
manner following.
4
5
6
7
8
9
Appraisal and
sale of perish-
able property;
proceedings.
1822, 93, § 2.
E. S. 90, § 59.
1851,1, §3; 58;
257.
G. S. 123, § 74.
P. S. 161, § 91.
6 Allen, 505.
Section 84. Upon such application, the attaching officer shall 1
give notice to all the other parties or their attorneys, prepare a 2
schedule of the goods and cause three disinterested persons ac- 3
quainted with the nature and value of such goods to be appointed 4
and sworn before a magistrate or the attaching officer to the faith- 5
ful performance of their duty as appraisers. 130 Mass. 247. 6
Notice to ab-
sent defendant.
1837, 185.
G. S. 123, § 75.
P. S. 161, § 92.
Section 85. If the defendant is not within the commonwealth 1
and has no attorney therein, the notice in writing shall be left at 2
his last and usual place of abode in the commonwealth, if he has 3
any ; otherwise, it shall be delivered to, or left at the dwelling 4
house or place of business of, the person who had possession of the 5
property at the time of the attachment. 6
Appraisers,
how appointed.
E. S. 90, § 60.
1851, 257.
G. S. 123, § 76.
P. S. 161, § 93.
101 Mass. 259.
Section 86. One appraiser shall be appointed by the creditor 1
or creditors in the several actions, one by the debtor or debtors, and 2
one by the officer ; and if the debtors or creditors, respectively, neg- 3
lect to appoint such appraiser, or do not agree in the nomination, 4
the officer shall appoint one in their behalf. 5
Sale after
appraisal.
E. S. 90, § 61.
G. S. 123, § 77.
P. S. 161, § 94.
18 Pick. 407.
4 Cush. 393.
130 Mass. 247.
Section 87. The appraisers shall examine the attached prop- 1
erty and, if in their opinion it, or a part thereof, is liable to perish 2
or waste or to greatly decrease in value by keeping or cannot be 3
kept without great and disproportionate expense, they shall appraise 4
the value thereof and the property shall thereupon be sold by the 5
officer and the proceeds held and disposed of as provided in section 6
eighty-two, unless the goods are taken by the debtor as provided in 7
the following section. 8
— or delivered
to defendant.
1822, 93, § 3.
E. S. 90, § 62.
G. S. 123, § 78.
P. S. 161, § 95.
130 Mass. 247.
Section 88. The property so appraised shall, if he requires it,
be delivered to the debtor upon his depositing with the attaching
officer the appraised value thereof in money, or upon giving bond
to the officer in a sufficient sum, with two sufficient sureties, condi-
tioned to pay to him the appraised value of the property or to satisfy
all such judgments as may be recovered in the actions in which the
property was attached, if demanded within the time during which
the property would have been held by the respective attachments
or within thirty days after the time when the creditors, respectively,
would have been entitled to demand payment out of the proceeds
of the property if it had been sold as before provided.
1
2
3
4
5
6
7
9
10
11
Bond to be
returned with
the writ.
1822, 93, § 4.
E. S. 90, § 63.
G. S. 123, § 79.
P. S. 161, § 96.
Section 89. The officer who takes such bond shall return it with 1
the writ on which the first attachment is made in like manner as 2
bail bonds are returned, with a certificate of his doings therein ; 3
and if the bond is forfeited, any of the attaching creditors may 4
bring an action of contract thereon in the name of the officer. 5
Chap. 167.] commencement of actions, seevice of process. 1511
1 Section 90. The writ in an action on such bond shall, in addition Action on
2 to the usual indorsement, have the names of the creditors by whom jtord.1)ycre(i"
3 the action is brought indorsed upon it; and if judgment is rendered r2|.9o',§64.
4 for the defendants, executions for the costs shall be issued against p" §• ifj' f f^
5 all the creditors whose names are so indorsed.
1 Section 91. If judgment is rendered for the plaintiff, the money Money recov-
2 recovered shall be first applied, under the order of the court, to pay toethembelons
3 the reasonable expenses of prosecuting the action, so far as they are G.i".i23,§§6ii.
4 not reimbursed by the costs recovered of the defendant ; and the p- s- 161> § 98-
5 residue shall belong to all the attaching creditors according to their
6 respective rights.
1 Section 92. The court may, upon a hearing in equity, determine Distribution
2 the rights of the several attaching creditors and award a separate R^s^o^ee.
3 execution for the amount due or payable to each, to be served and p*; f ; ^f; | ^;
4 levied to his own use in the manner provided when a judgment is
5 rendered on an administration bond ; or it may award one exe-
6 cution for the whole amount due on the bond and cause the money
7 received to be distributed among the creditors according to their
8 respective rights.
1 Section 93. No judgment or execution shall be awarded for prior attach.
2 the use of a creditor without reserving as much as may be due upon protected1?6
3 any prior attachment, whether the creditor in such prior action is G.i".i23,§§683.
4 or is not one of those by whom the action is brought on the bond. p. s. lei, § 100.
1 Section 94. A creditor who is entitled to the benefit of the creditor not
2 bond, and who has not joined in bringing the action thereon may acWongon the
3 bring a writ of scire facias upon the judgment and recover any R°sd,90,t(§68.
4 amount due to him upon the bond ; or he may, upon motion at any p." f ; iff; | Ui.
5 time before final judgment, become a party to the action upon
6 terms.
1 Section 95. No creditor whose cause of action on such bond R^go^g.
2 accrued more than one year before the commencement of the action <j. 1- J|*> | ^
3 shall have judgment or execution in such action, and no creditor
4 shall sue out a writ of scire facias upon the judgment, unless within
5 one year after his cause of action accrues.
1 Section 96. If property which has been sold or appraised and beepdiTwhen.
2 delivered to the debtor in the manner before provided is attached g- 1- ^§§786
3 by several creditors, any one of them may demand and receive p.' s.' i6i,' § 103.
4 satisfaction of his judgment, notwithstanding a prior attachment, if
5 he is otherwise entitled to demand the money, and if a sufficient
6 amount of the proceeds of the property, or of its appraised value,
7 remains to satisfy all prior attachments.
ATTACHMENT OF SHARE OF JOINT OWNER OF PERSONALTY.
1 Section 97. If personal property of two or more part owners Appraisal
2 is attached in an action against one or more of them, it shall, upon part owner.
3 the request of any other part owner, be examined and appraised in R3|\go%§73.
4 the manner provided in sections eighty-three to eighty-seven, inclu- G.s.i23,§87.
1512
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 167.
p. s. 161, § 105. sive, except that the part owner who makes the application shall, 5
129 Mass! 127. and the debtor shall not, appoint one of the appraisers. The pro- 6
visions of this section shall not apply to partnership property. 7
Delivery to
part owner.
1835, 143, §§ 2, 3
R. S. 90, §§ 74,
77.
G. S. 123, §§ 88,
91.
Section 98. The property so appraised shall be delivered to 1
the part owner at whose request it was appraised, upon his giving 2
bond to the attaching officer in a sufficient sum, with two sufficient 3
sureties, conditioned to restore such property in like good order 4
~P Q 1 fil R£ 1 Oft e* ^^
io9. ' ' or to pay to the officer the appraised value of the defendant's share or 5
interest therein, or to satisfy all such judgments as may be recovered 6
in the action in which it is attached, if demanded within the time 7
during which the property would have been held by the respective 8
attachments. The provisions of section eighty-nine and of sue- 9
ceeding sections shall apply to such bond and to an action thereon. 10
108 Mass. 565.
Pledgee of
property.
1S35, 143, § 2.
R. S. 90, § 75.
G. S. 123, § 89.
P. S. 161, § 107.
Section 99. If such appraised value or any part thereof is so 1
paid, the defendant's share of the property shall thereby become 2
pledged to the party to whom it was delivered, and he may sell it, 3
if not redeemed, and shall account to the defendant for the balance 4
of the proceeds of the sale. 5
R^giu0^'. Section 100. If the attachment is dissolved, the party to whom 1
p' I' ill' ! 108 ^e defendant's share was delivered shall restore it to the defendant, 2
or to the officer, to be by him delivered to the defendant. 3
Fraudulent
attachments,
how defeated.
1823, 142, §§ 1, 2.
1832, 159.
R. S. 90, §§ 83,
84.
G. S. 123, §§ 92,
93.
P. S. 161, §§ 110,
111.
19 Pick. 381.
9 Met. 69.
FRAUDULENT ATTACHMENTS.
Section 101. A person who claims title or interest in any real 1
or personal property which has been attached in an action between 2
other persons by an attachment, purchase, mortgage or other title 3
subsequent to the attachment may dispute the validity and effect 4
of such prior attachment on the ground that the amount demanded 5
in the first action was not justly due or was not payable when the 6
action was commenced by filing a petition in the court in which the 7
first action is pending, at any time before final judgment therein, 8
stating the facts and circumstances on which his petition is founded, 9
and the grounds of his own claim, and praying that the prior attach- 10
ment may be dissolved. 11
b(?ndavit and Section 102. The petitioner, or a person in his behalf, shall 1
r2s 9o%! Is ma^e oatn ^at nis claim is just and legal and that all the other 2
9i. '■ ' facts stated in the petition are true or are believed by the de- 3
99. " ' ponent to be true ; and, upon filing the petition, the petitioner, or 4
iiVf' 161, §§ 112' a person in his behalf, shall give a bond or recognizance with suf- 5
ficient surety or sureties, conditioned to pay to the adverse party 6
such damages and costs as may be awarded to him in the proceed- 7
ings upon the petition. 8
Dissolution of
prior attach-
ment.
R. S. 90, § 86.
G. S. 123, § 95.
P. S. 161, § 113.
1900, 447, § 1.
5 Pick. 410.
8 Pick. 165.
12 Pick. 199.
Section 103. If the court finds that a part of the amount de- 1
manded in the prior action is not justly due, or was not payable 2
when the action was commenced, it shall order the attachment 3
therein made to be dissolved in whole or in part as justice re- 4
quires ; but such order shall have no other effect on the prior ac- 5
tion. If the hearing is in the supreme judicial court or the superior 6
Chap. 167.] commencement op actions, service of process. 1513
7 court, the court shall, upon motion, order a trial by jury of any
8 question of fact.
1 Section 104. The proceedings between the adverse claimants Effect of
2 or plaintiffs shall not be affected by any answer, plea or other act of Rle|d9o,g§'88.
3 the defendant in the prior action nor by the judgment rendered p; |; J|f • | Hi
4 therein.
1 Section 105. No attachment shall be dissolved as aforesaid by Defences m
2 reason of a defence to the action which is founded on the laws for !£csh go,8§ '89.
3 the limitation of actions or which requires certain contracts to be f; |; }|f' | JJj
4 made in writing, or by reason of any other like defence, if the
5 court finds that the demand is otherwise well founded and is justly
6 and equitably due.
1 Section 106. The court may, upon such inquiry, award to Damages and
2 either party reasonable costs and, if the prior attachment is main- i823,si42, § 4.
3 tained, may award to the attaching creditor reasonable damages. R,s' 90,§9°-
G. S. 123, § 98. F\ S. 161, § 116. 2 Met. 229.
1 Section 107. If, during the pendency of the proceedings, the Proceedings
2 action in which the attachment was made is transferred to another E?s?9o^§e92.'
3 court, the inquiry concerning the attachment shall be transferred to p." |.' im) | m
4 the same court and be there heard and determined.
1 Section 108. The judgment of the court upon such an inquiry, Effect of
2 whether the attachment is thereby vacated or held to be valid and R^f^o^fSs.
3 effectual, shall be a bar to any action which may be brought by the p.' f." ill,' f 119!
4 petitioner against the party who made the attachment for any
5 supposed fraud or deceit therein.
1 Section 109. The provisions of the eight preceding sections To what cases
2 shall not apply to an action commenced before a trial justice. r^So,' § 94.
1874, 152. P. S. 161, § 120. 1900, 447, § 2. 6 Gray, 528. Gl S< 123, § 102-
REDUCTION OR DISCHARGE OP ATTACHMENT.
1 Section 110. If an excessive or unreasonable attachment is Reduction of
2 made on mesne process, the defendant may apply in writing, in i85i,C233f§96.
3 any county, to a justice of the court to which such process is g5|.81223,§§5io3.
4 returnable, for a reduction of the amount of the attachment or for ^9| ■$*> § 121-
5 its discharge ; and such justice shall order a notice to the plaintiff,
6 which shall be returnable before himself or any other justice of the
7 same court as speedily as circumstances permit. If, upon a sum-
8 mary hearing of the parties, it is found that the attachment is
9 excessive or unreasonable, the justice shall reduce or dissolve the
10 attachment or order a part of the goods or estate to be released.
DISSOLUTION OF ATTACHMENT.
By Operation of Law.
1 Section 111. If the final judgment is for the defendant, the Dissolution of
2 attachment, except as provided in section fifty -six, shall be forth- judgment y
3 with dissolved. g.s.123,§43. p.s.iei, §54. r.s.90,§26.
1514
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 167.
Dissolution of
attachment
by death of
defendant.
1822, 93, § 6.
R. S. 90, §§ 105,
106.
G. S. 123, §§ 45,
46.
P. S. 161, §§ 56,
57.
5 Met. 356.
11 Cush. 463.
6 Gray, 114, 523.
Section 112. An attachment of real or personal property shall 1
be dissolved if the debtor dies before it is taken or seized on exe- 2
cution and administration of his estate is granted in this common- 3
wealth upon an application therefor made within one year after his 4
decease. The attaching officer shall also, upon demand, and upon 5
receiving from the executor or administrator of such debtor so 6
appointed his legal fees and charges for attaching and keeping the 7
property attached by him, deliver it to such executor or adminis- 8
trator. 9
Liability of
officer for net
proceeds.
R. S. 90, § 107.
G. S. 123, § 47.
P. S. 161, § 58.
Section 113. If the officer has, before such demand, sold on 1
execution the personal property attached or a right of redeeming 2
land attached as aforesaid, he shall not be a trespasser, but shall 3
be liable only for the proceeds of the sale after deducting his legal 4
fees and charges for attaching, keeping and selling the property 5
attached. Such proceeds may be recovered by the executor or 6
administrator in an action of contract. 7
— of creditor
for proceeds
paid over to
him.
R. S. 90, § 108.
G. S. 123, § 48.
P. S. 161, § 59.
Section 114. If the officer in such case has, before such demand, 1
paid over the proceeds of the sale to the judgment creditor, he shall 2
not be liable therefor, but the executor or administrator, if ap- 3
pointed as before provided, may in an action of contract recover 4
from the judgment creditor the amount so paid to him. 5
f&ofL??£ Section 115. The defendant, in an action founded on either of 1
allowed in '
l^ch case. the three preceding sections, shall not be allowed in any manner 2
6. s. 123, § 49. to set off a demand against the executor or administrator, or against 3
the estate of the deceased. 4
P. S. 161, § 60.
Attachments
dissolved by-
giving bond.
1838, 163, § 20.
1850, 27, § 1.
1851, 327, § 18.
G. S. 123, § 104.
1875, 68, § 2.
1881, 100.
P. S. 161, 5 122.
1888, 405, § 2.
6 Gray, 112.
10 Gray, 333.
104 Mass. 356.
106 Mass. 455.
109 Mass. 576.
Ill Mass. 213.
114 Mass. 101.
115 Mass. 27, 42.
117 Mass. 288,
343.
121 Mass. 516.
122 Mass. 176.
123 Mass. 363.
130 Mass. 16.
133 Mass. 461.
141 Mass. 154.
156 Mass. 166.
164 Mass. 316.
167 Mass. 222.
By Giving Bond.
Section 116. A defendant whose property has been attached on 1
mesne process in a civil action may, at any time before final judg- 2
ment, dissolve the attachment by giving a bond with sufficient sure- 3
ties, who shall be approved by the plaintiff or by his attorney in 4
writing, by a master in chancery or by a justice of a court of record 5
if the attachment is made within the jurisdiction of such justice, 6
conditioned to pay to the plaintiff, within thirty days after the final 7
judgment in such action, such amount, if any, as he may recover ; 8
and also to pay to the plaintiff, within thirty days after the entry 9
of any special judgment in accordance with the provisions of chapter 10
one hundred and seventy-seven, the amount, if any, for which such 11
special judgment shall be entered. Sureties shall not be sufficient 12
unless they are satisfactory to the plaintiff, or unless the magistrate 13
finds that each, if there are only two, is worth, in excess of his 14
indebtedness, an amount equal to that for which the attachment is 15
laid ; or, if there are more than two, that they are together worth 16
twice such amount. 17
apeparovlibof°re Section 117. Before such bond is approved, the defendant, or 1
is046di22 a Person m nis behalf, shall make application in writing to the 2
G5s'2i23§«io5 magistrate, specifying therein the names and residences of the 3
1881,' ioo.' ' proposed sureties. Notice of the time and place of the hearing shall 4
Chap. 167.] commencement or actions, seevice of process. 1515
5 be given to the plaintiff or his attorney as provided in sections p. s. iei, § 123.
6 twenty-seven to thirty, inclusive, of chapter one hundred and sev- 120Mass-368-
7 enty-five ; but the plaintiff or his attorney may in writing waive
8 such notice or may approve the bond at any time.
1 Section 118. The fees of the magistrate shall be one dollar Fees for ap-
2 for the hearing and decision and fifty cents for the citation. If lJsoI^f § 2.n s'
3 the attachment is dissolved and the defendant prevails, such fees ak^Vfioe.
4 shall be taxed in his costs. p.8s.i06i', §124.
1 Section 119. Such bond and the bond required by the provi- b°defendeaited
2 sions of section one hundred and twenty-three shall be filed by 187°. 291. § 5. '
3 the defendant with the clerk of the court to which the writ is re- p. s. mi, § 125.
4 turnable, or in which the action is pending, within ten days after m Mass! 154.
5 its approval, and the attachment shall not be dissolved until the
6 bond shall have been so filed. The plaintiff may take such bonds
7 from the files upon leaving on file a copy thereof attested by the
8 clerk ; and the plaintiff may tax the cost of such copy as part of
9 his costs in an action on such bond.
1 Section 120. If, within four months after an attachment of jj^tiesofiii.
2 property has been made on mesne process in a civil action founded solvent debtor.
3 on a claim which would, if proved, be barred by a discharge in no Mass. 179.
4 insolvency of the defendant and after such attachment has been dis-
5 solved as provided in the four preceding sections, proceedings in
6 insolvency are instituted by or against the defendant, the action shall,
7 upon the suggestion of any party interested, be continued to await
8 the result of such proceedings in insolvency ; and if the debtor re-
9 ceives his discharge in insolvency, the sureties on the bond given
10 by him to dissolve the attachment shall be released from all liability
11 thereon.
1 Section 121. A defendant may, at any time before final judg- Bond to pay
2 ment, release from attachment the property attached, or such part erty.eo prop"
3 thereof as he may elect, by giving bond to the plaintiff with sufficient \lfo, III', § 2.
4 sureties, who shall be approved by the plaintiff or by his attorney ^ ffo.§ 2'
5 in writing, by a master in chancery or by a justice of a court of ^f * 405 ' § 2 26*
6 record if the attachment is made within the jurisdiction of such ^m^'IP'
7 justice, conditioned to pay to the plaintiff within thirty days after i69Mass'.6i.
8 final judgment in such action, or after the entry of a special judg-
9 ment therein under the provisions of chapter one hundred and
10 seventy-seven the amount fixed as the value of the property so re-
11 leased, or so much of said amount as may be necessary to satisfy
12 the amount, if any, which the plaintiff may recover ; and the prop-
13 erty so released shall be described in such bond. If the parties to
14 the action do not agree upon the value of the property, the de-
15 fendant, or a person in his behalf, may make written application to
16 any magistrate who is authorized to approve said bond in the county
17 in which the property is situated, stating the names of the parties
18 to the action, the name of the officer who made the attachment, a
19 description of the property which he desires to release from attach-
20 ment and the names and residences of the proposed sureties. The
21 magistrate shall forthwith cause written notice of the application
22 and of the time and place for the hearing to be served upon the
1516
COMMENCEMENT OF ACTIONS, SERVICE OF PROCESS. [CHAP. 167.
plaintiff, if he resides in the county ; otherwise, upon the officer 23
who made the attachment. The notice shall be served twenty-four 24
hours, at least, before the time appointed therein for a hearing and 25
as much earlier as the magistrate may order. At the time and 26
place appointed, after hearing the parties, the magistrate shall ap- 27
point three disinterested persons to examine and appraise the prop- 28
erty described in the application, who shall be sworn, shall appraise 29
the property at its fair market value and shall make return of their 30
doings in writing to the magistrate at a time and place fixed by him 31
to which the hearing shall be adjourned. At such adjourned hear- 32
ing the defendant may give bond to the plaintiff, with sureties, 33
who shall be approved by the magistrate as herein provided. Upon 34
the filing of such bond, as is required by the provisions of section 35
one hundred and nineteen, the attachment upon the property de- 36
scribed therein shall be dissolved. 37
Fees.
1870, 291, § 4.
1881, 100.
P. S. 161, § 127.
Section 122. The magistrate may adjourn such hearing from 1
time to time. His fees shall be one dollar for each citation and 2
two dollars for each hearing and each adjournment thereof. The 3
fees of the appraisers shall be determined by the magistrate. The 4
applicant shall pay all fees ; but if final judgment is in his favor, 5
they shall be taxed as a part of his costs. The magistrate's certifi- 6
cate of the amount shall be filed before said fees are allowed as a 7
part of the taxable costs. 8
Dissolution of
attachment of
realty fraudu-
lently con-
veyed.
1367, 137.
1S70, 291, § 3.
1875, 68, § 2.
1SS1, 100.
P. S. 161, § 128.
18S8, 405, § 2.
120 Mass. 358.
Section 123. If an attachment of real property is made under 1
the provisions of sections sixty-three and sixty-four, the person in 2
whose name the record title of the property attached stands, or a per- 3
son in his behalf, may, before final judgment, dissolve the attachment 4
by giving bond to the plaintiff, with sufficient sureties, conditioned . 5
to pay to him, if he establishes his title to the land in a writ of 6
entry against the person having the record title thereto at the time 7
of the attachment, the ascertained value of the land, or so much 8
thereof as shall satisfy the amount, if any, which the plaintiff shall 9
recover upon final judgment, or upon a special judgment under the 10
provisions of chapter one hundred and seventy-seven, in the action 11
in which such attachment was made. All proceedings required in 12
the two preceding sections shall apply to the dissolution of an at- 13
tachment under the provisions of this section. In the trial of such 14
writ of entry, the record of the attachment and of final or special 15
judgment, as the case may be, in the action in which the attach- 16
ment was made shall be conclusive evidence of a momentary seisin 17
of the land in the plaintiff to enable him to maintain an action 18
therefor upon his own seisin ; but no such writ of entry shall be 19
brought after the expiration of one year from the date of such final 20
or special judgment. If the demandant recovers judgment on such 21
writ of entry, he shall not have an execution for possession, but 22
may have an execution for costs. 23
— by deposit.
1897, 404.
Section 124. A defendant may dissolve an attachment by 1
depositing with the officer who makes the attachment an amount of 2
money equal at least to the amount of the ad damnum in the writ, 3
which the officer shall hold in place of the property attached and 4
which shall be subject to be disposed of in the same manner. 5
Chap. 167.] commencement of actions, seevice of peocess. 1517
1 Section 125. A defendant whose individual property has been Dissolution
2 attached in an action against several defendants may dissolve such property*3^1
3 attachment, or any part thereof, in any of the modes provided in j^e defendant.
4 the nine preceding sections. But the bond to dissolve such attach- p8^ ^ §129
5 ment shall be so conditioned as to apply only to a judgment re- 1(& Mass. 316. '
6 covered against such defendant alone or jointly.
By Appointment of Receiver.
1 Section 126. An attachment of property on mesne process shall m^ntby"511"
2 be dissolved by the appointment by any court of competent juris- o??ec«i?ernt
3 diction in this commonwealth of a receiver to take possession of 1898> m> 5 1-
4 such property, if the bill or petition praying for the appointment
5 of such receiver is filed in said court within four months after such
6 attachment was made, unless the court at any time, in its discretion,
7 continues such attachment for the benefit of the estate of the de-
8 fendant. In such case, the court may authorize the receiver to
9 prosecute the action upon which the attachment was made for the
10 benefit of the estate of the defendant and may make further orders
11 to enable the receiver to recover for the benefit of the estate of the
12 defendant the amount due to the plaintiff in the original action.
1 Section 127. If an attachment has been dissolved in the man- Discharge of
2 ner provided in the preceding section, the proceedings for the i898,420,'§2.
3 appointment of a receiver shall not thereafter be dismissed and the
4 receiver discharged until all the assets which have come into his
5 hands as receiver have been fully distributed or the claim upon
6 which the attachment was made has been fully paid and discharged,
7 unless the debtor, before such dismissal, deposits with the officer
8 who made the attachment such amount of money as the court be-
9 fore which such receivership proceedings are pending, after notice
10 to the attaching creditor and a hearing, finds reasonable for the
11 protection of his claim in the action in which the attachment was
12 made. Such money shall be held by the officer in place of the
13 property held under the attachment before its dissolution and shall
14 be disposed of as such property would have been disposed of had
15 the attachment not been dissolved.
EXECUTION OF BONDS.
1 Section 128. A bond which is required to be given by a party Execution of
2 to a civil action or proceeding may be executed by any person other im, iss.
3 than the party to the action or proceeding, and may be approved in p36!. ill, § 104.
4 the same manner as if executed by such party, if it appears to ^ Mass! lis!
5 the magistrate who approves it that there is good reason why it is
6 not executed by him.
1518
ARREST ON CIVIL PROCESS.
[Chap. 168.
CHAPTER 168.
OF ARREST ON CIVIL PROCESS.
Sections 1-28. — Arrest on Mesne Process and Execution.
Sections 29-46. — Discharge from Arrest.
Sections 47-5 1 . — Imprisonment.
Sections 52-55. — Fraudulent Debtors.
Sections 56-58. — Discharge of Debtors of the Commonwealth.
Section 59. — Discharge or Removal of Insane Debtors.
Sections 60-64. — Judgment Debtors Imprisoned or on Bail.
Section 65. — Surrender of Principal on Recognizance.
Sections 66, 67. — Remedy on Recognizances and Bonds, and for Escapes.
Sections 68-73. — Provisions relative to Magistrates.
Sections 74-79. — Fees and Costs.
Sections 80-86. — Equitable Process after Judgment.
Arrest on
mesne process
in actions of
contract.
1830, 131, § 1.
1834, 167, § 1.
R. S. 90, § 111;
97, § 44.
1855, 444, § 11.
1857, 141, § 17.
G. S. 124, § 1.
P. S. 162, § 1.
13 Gray, 575.
2 Allen, 431.
122 Mass. 428.
127 Mass. 60.
139 Mass. 458,
461.
167 Mass. 31.
1859, 166, § 3.
1901, 343.
ARREST ON MESNE PROCESS AND EXECUTION.
Section 1. No person shall be arrested on mesne process in an 1
action of contract, unless the plaintiff or a person in his behalf 2
makes affidavit and proves to the satisfaction of a justice of a police, 3
district or municipal court, a master in chancery, a trial justice, or, 4
except in the county of Suffolk, a justice of the peace : 5
First, That he has a good cause of action and reasonable expec- 6
tation of recovering a sum amounting to twenty dollars exclusive of 7
costs which have accrued in any former action ; 8
Second, That he believes, and has reason to believe that the de- 9
fendant has property, not exempt from being taken on execution, 10
which he does not intend to apply to the payment of the plaintiff's 11
claim ; and, 12
Third, That he believes and has reason to believe that the de- 13
fendant intends to leave the commonwealth, so that execution, if 14
obtained, cannot be served upon him ; 15
Or, instead of the second and third, that the defendant is an 16
attorney at law, or a person, member of a firm, agency or associa- 17
tion engaged in the business of collecting money, that the debt 18
sought to be recovered is for money collected by the defendant for 19
the plaintiff and that the defendant unreasonably neglects to pay 20
the same to the plaintiff. 21
Such affidavit and the certificate of the magistrate that he is satis- 22
fied it is true shall be annexed to the writ. 23
— in actions of
tort.
1854, 63.
1855, 249, § 1.
G. S. 124, § 2.
1873, 352, § 2.
P. S. 162, § 2.
7 Gray, 59.
8 Allen, 434.
Section 2. A person shall not be arrested on mesne process in 1
an action of tort unless the plaintiff or a person in his behalf makes 2
oath to the satisfaction of a magistrate named in the preceding sec- 3
tion that he believes and has reason to believe that he has a good 4
cause of action against the defendant, that he has reasonable expec- 5
tation of recovering an amount equal, at least, to one-third of the 6
damages claimed in the writ, and that he believes and has reason to 7
believe that the defendant intends to leave the commonwealth, so 8
that execution, if obtained, cannot be served upon him ; and such 9
Chap. 168.] arrest on civil process. 1519
10 affidavit, with a certificate of the magistrate that he is satisfied it is
11 true, shall be annexed to the writ.
1 Section 3. No woman shall be arrested on mesne process except Arrest on
2 for tort. No person shall be arrested on mesne process in a civil of women, etc.
„ ,. j. , K ,., , r 1830,131, §2.
3 action tor slander or libel. r. s. 97, § 46.
1855, 249, §2; 1857, 141, § 30. P. S. 162, § 3.
444, § 15. G. S. 124, §§ 3, 7. 10 Allen, 76.
1 Section 4. A person arrested on mesne process may in any Reduction of
2 county apply in writing to a justice of the court to which such i^98,a3£?rnum'
3 process is returnable for a reduction of the amount of the ad dam-
4 num of the writ or for his discharge ; and such justice shall order
5 notice to the plaintiff, returnable before himself or another justice
6 of the same court. If, upon a hearing, it is found that the ad dam-
7 num is excessive, the justice shall reduce it or, if the arrest is found
8 to be unreasonable, he may in his discretion order the discharge of
9 the defendant.
1 Section 5. The officer serving an original writ shall not be liable Duty of officer.
T? ^l Qft S 1 1 ft
2 for not having arrested the defendant, unless he has been expressly g, s. 124, § 4. '
3 required by the plaintiff or his attorney to make such arrest. p' s" 162, § 4'
1 Section 6. The judgment creditor in an execution issued against Demand on
2 a woman upon a iudgment for twenty dollars or more, exclusive of ment debtor".
3 costs which make a part of said judgment, whether the same have p. s'. 162, § 6.
4 accrued in the last action or in a former action on the same oriainal 151 Mas8' 363-
5 cause of action, and while so much as that amount remains uncol-
6 lected, may cause payment thereof to be demanded of her by an
7 officer qualified to serve such execution ; and if upon such demand
8 she fails to pay it or to expose sufficient property to be taken by
9 such officer to satisfy it, the officer shall, upon request of the judg-
10 ment creditor, make a return of his doings upon such execution and
11 shall be entitled to receive his fees for travel and, in addition thereto,
12 one dollar, which fees shall be repaid by the judgment debtor as a
13 part of the costs of the execution.
1 Section 7. After such demand the judgment creditor or a person citation, upon
2 in his behalf may, in the county in which the judgment was ren- fsfy^ecutton.
3 dered or in which the debtor resides, file in a police, district or pfl.iei',!?-
4 municipal court or with a trial justice a petition under oath, with 1897> 466> § L
5 a copy of the execution and the return of the officer thereon, stat-
6 ing the fact of such judgment and demand and alleging that he
7 believes that she has property, not exempt from attachment, which
8 she refuses to apply in payment of said execution, or to expose so
9 that it may be taken thereon, and asking that a citation may issue,
10 requiring her to appear at a time and place therein named and
11 submit to an examination relative to her property ; and thereupon
12 the clerk of said court or the magistrate shall issue such citation,
13 allowing her at least one day for every twenty miles' travel, and
14 one day for any distance less than twenty miles. Such citation may
15 be served by an officer qualified to serve the execution, and his fees
16 for such service shall be fifty cents for the copy, and for travel, the
17 same as for the service of writs.
1520.
AKREST ON CIVIL PROCESS.
[Chap. 168.
Capias.
1862, 162, § 3.
P. S. 162, § 8.
Examination.
1862, 162, § 4.
P. S. 162, § 9.
Surrender of
property.
Commitment
for contempt.
1862, 162, § 5.
P. S. 162, § 10.
Section 8. If the debtor fails to appear at the time and place 1
named in the citation, upon proof of service by the return of the 2
officer, the magistrate may issue a capias to bring her before him, 3
which may be served by an officer qualified to serve the citation. 4
Section 9. The judgment debtor, when so brought before said 1
magistrate, shall be sworn to make true, full and perfect answers 2
relative to her property and the disposal thereof; and she shall 3
thereupon be examined by the judgment creditor upon written in- 4
terrogatories, in the presence of the magistrate or otherwise as he 5
shall order ; and after such examination she may add such other 6
facts as she may consider necessary, and the judgment creditor may 7
re-examine her relative thereto. Such examination shall be signed 8
by her and filed with said magistrate. Either party may introduce 9
evidence relative to the subject of such examination. 10
Section 10. If it appears upon such examination that the judg- 1
ment debtor has property of the value of twenty dollars not exempt 2
from attachment or from being taken on execution or which cannot 3
be reached on execution, judgment to that effect shall be entered 4
and she shall produce such property, or so much thereof as may be 5
needed to satisfy such execution with the costs of the proceedings 6
upon such citation ; or if said property is not within the county in 7
which the proceedings are had, or not capable of being taken on 8
execution, she shall execute and deliver to the judgment creditor or 9
to a person in his behalf a transfer, assignment or conveyance 10
thereof, or of so much thereof as may be sufficient to satisfy said 11
execution and said costs, or to secure the payment thereof. If, 12
upon being ordered so to do, she fails to comply with such order, 13
she shall be committed by said magistrate as for a contempt, until 14
she complies with such order or is otherwise discharged according 15
to law. 16
Effect of insol-
vency, etc.
1862, 162, § 6.
P. S. 162, § 11.
Property
fraudulently
conveyed by
her.
1862, 162, § 7.
P. S. 162, § 12.
Contempt by
fraudulent
transfer.
1862, 162, § 8.
P. S. 162, § 13.
Section 11. If such judgment debtor during such commitment 1
becomes an insolvent debtor under the laws of this commonwealth 2
or a bankrupt under the laws of the United States, or if it appears 3
that she has been divested of her property during such commitment 4
otherwise than by her own act, she shall be discharged. 5
Section 12. If , after the commencement of the action upon which 1
the judgment was obtained, the judgment debtor makes a volun- 2
tary or fraudulent conveyance, transfer or gift of any property, she 3
may be required to transfer it to the judgment creditor, who may 4
thereupon demand such property and recover it from the person 5
who received it, or from any person who may have taken it without 6
consideration or with notice of the fraud or want of consideration • 7
of the original transfer, conveyance or gift. 8
Section 13. If, after the service of the citation upon the judg- 1
ment debtor and during the pendency of the proceedings thereon, 2
she makes a conveyance, assignment or transfer of property or a 3
payment of money with intent to prevent it from being transferred 4
or paid to the judgment creditor or applied by said proceedings to 5
the satisfaction of said judgment, she may, in the discretion of the 6
Chap. 168.] aerest on civil process. 1521
7 magistrate, be committed as for a contempt ; but the provisions of
8 this section shall not apply to the payment by the debtor of a debt
9 for necessaries, of a debt due on an execution upon which she pre-
10 viously has been cited to appear under the provisions of this chapter,
11 nor of a reasonable fee of counsel relating to the examination.
1 Section 14. Upon petition for a citation under the provisions f8||8,162 §9
2 of section seven, the petitioner shall pay to the clerk of said courts p. s. 162, §u.
3 or to said trial justice three dollars, which shall be in payment for
4 issuing the required citations, notices, orders and certificates and for
5 the examinations and hearings in such proceedings. Such fee shall
6 be repaid by the judgment debtor, if she is adjudged to have prop-
7 erty under the provisions of section ten.
1 Section 15. After the expiration of three years from the ter- fneat°ion,ewhSi'.
2 mination of such proceedings and while the judgment remains in p.6|. Ellis'
3 force, the judgment creditor may cause a new demand to be made
4 upon the execution ; and if it is not thereupon satisfied, he may
5 cause like proceedings to be commenced anew.
in • • r»i -it- Judgments in
1 Section 16. A mdgment m favor of the commonwealth against favor of the
^^ ^d common-
2 a male or female defendant may, if the attorney general or the wealth, how
3 district attorney for the district in which such judgment was re- istsTitV
4 covered so orders in writing upon the execution, be enforced in m^mlli6'
5 accordance with the provisions of the ten preceding sections ; and
6 the petition referred to in section seven may in such case be
7 made to a court or magistrate named therein, or to the court in
8 which the judgment was rendered, which court shall in such case
9 have the same jurisdiction as is given in said sections to the courts
10 and magistrate therein named and may designate a master in chan-
11 eery to examine the judgment debtor and report the testimony.
Arrest on
1 Section 17. Except as provided in the eleven preceding sec- j^01^11,
2 tions and section twenty-six and except in actions of tort, no per- isie! in.
3 son shall be arrested on an execution in a civil action, unless the r. J. 97,'§ u.
4 judgment creditor or a person in his behalf, after execution has im', u\, §§ 1-3!
5 been issued amounting to twenty dollars exclusive of costs which im,'ii£,'ii.'
6 make part of said judgment, whether the same have accrued in the Ysss^ii9,'ih'
7 last action or in any former action on the same original cause of g8^;*07^
8 action, and while so much as that amount remains uncollected, 13 Gray, 575.
9 makes affidavit and proves to the satisfaction of a police, district or 99 Mass! 36.'
10 municipal court or a trial justice that he believes and has good reason
11 to believe :
13" Mass. 467. 146 Mass. 89. 166 Mass. 226.
139 Mass. 458, 461. 162 Mass. 45, 339. 136 U. S. 468.
12 First, That the debtor has property, not exempt from being taken 4 Alien, 72.
13 on execution, which he does not intend to apply to the payment 127 Mass! 550!
14 of the plaintiff's claim ; or,
15 Second, That, since the debt was contracted or the cause of
16 action accrued, the debtor has fraudulently conveyed, concealed or
17 otherwise disposed of a part of his property, with intent to .secure it
18 to his own use or defraud his creditors ; or,
19 Third, That, since the debt was contracted or the cause of i5iMaSS.4i9.
20 action accrued, the debtor has hazarded and paid money or other
1522
ARREST ON CIVIL PROCESS.
[Chap. 168.
124 Mass. 92.
138 Mass. 384.
146 Mass. 439.
1859, 166, § 2.
1901, 343.
1881, 263, § 3.
1891, 407.
104 Mass. 354.
115 Mass. 236.
144 Mass. 151.
149 Mass. 96.
153 Mass. 541.
property to the value of one hundred dollars or more in some kind
of gaming prohibited by the laws of this commonwealth ; or,
Fourth, That, since the debt was contracted, the debtor has wil-
fully expended and misused his property or any part thereof to
enable himself to swear that he has not property to the amount of
twenty dollars, not exempt from being taken on execution ; or,
Fifth, If the action was founded on contract, that the debtor
contracted the debt with intent not to pay it ; or,
Sixth, That the debtor is an attorney at law or a person, member
of a firm, agency or association engaged in the business of collect-
ing money ; that the debt upon which the judgment on which the
execution issued was recovered was for money collected by the
debtor for the creditor, and that said debtor unreasonably neglects
to pay it.
Such affidavit, and the certificate of the magistrate that he is satis-
fied there is reasonable cause to believe that the charges therein con-
tained, or one of them, are true, shall be annexed to the execution.
If a debtor is entitled to notice under the provisions of the follow-
ing section, such affidavit may, unless the magistrate otherwise
orders, be made at any time before the certificate is issued. If
the judgment debtor lives or has his usual place of business in this
commonwealth, the application for a certificate authorizing his arrest
shall be made in the county in which he lives or has his usual place
of business ; otherwise, in any county.
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
Notice of ap-
plication lor
arrest, how
served.
1877, 250, §§ 1, 5,
1879, 283, § 2.
P. S. 162, §§ 18,
25
1887, 442, §§ 1,
2,4.
1888, 419, §§ 2, 4,
1889, 415, § 1.
129 Mass. 40.
134 Mass. 391,
473.
145 Mass. 221.
162 Mass. 17.
164 Mass. 150.
175 Mass. 451.
Section 18. A magistrate to whom application is made for a 1
certificate authorizing arrest on execution shall, unless the creditor 2
or a person in his behalf makes affidavit and proves to the satisfac- 3
tion of the magistrate that there is good reason to believe that the 4
debtor intends to leave the commonwealth, issue notice to the debtor 5
to appear before a magistrate named in the preceding section and 6
submit to an examination upon the charges specified in said section 7
or any of them. Such notice shall specify the charges on which 8
the creditor intends to examine the debtor, and may be served by 9
an officer qualified to serve civil process, by delivering an attested 10
copy of the notice to the debtor, or leaving it at his last and usual 11
place of abode, allowing not less than three days before the time 12
fixed for the examination, and at the rate of one hour additional 13
for each mile of travel. The examination, or the time fixed there- 14
for, may be postponed or continued from time to time at the dis- 15
cretion of the magistrate. 16
Form of notice
to debtor.
1877, 250, § 6.
P. S. 162, § 19.
ing
Section
form :
19. Such notice shall be substantially in the folio w-
1
2
To A.
C. D.,
B.
the judgment creditor named in a certain execution against you, dated
, issued from [the court] , having applied for a certificate authorizing
your arrest, you are hereby notified to appear before [the name or names of a
magistrate or magistrates named in section twenty -nine of chapter one hundred
and sixty-eight of the Revised Laws] at [the place of examination or hearing]
on the day of at o'clock in the noon for examination
upon the following charges, specified in section seventeen of chapter one hun-
dred and sixty-eight of the Revised Laws, to wit: [Here specify the charges on
which the debtor is to be examined.]
Bale, signature, and teste as provided in section seventy-three.
Chap. 168.] arrest on civil process. 1523
1 Section 20. If the judgment debtor appears before the magis- Examination.
2 trate at the time and place named, he shall be examined on oath 1879; m, § 1!
3 upon the charges specified in said notice to him. Such examination l^l'Afillo:
4 may be in the presence of the magistrate or otherwise as he shall \Hl' ^ |§32' *•
5 order, and when completed, if in writing, shall be signed and sworn J|^'^||'
6 to by the debtor, and shall be preserved by the magistrate. The iseu. s.-468.
7 examination and hearing shall be oral, unless one of the parties
8 requests that it be wholly or partially in writing, and either party
9 may introduce additional evidence. If the debtor fails to appear
10 at the examination or, if appearing, fails to comply with all law-
11 ful orders of the magistrate, or if the truth of one at least of
12 charges two to six, inclusive, specified in section seventeen, is
13 proved to the satisfaction of the magistrate, the arrest may be au-
14 thorized upon the original execution or upon an alias or other
15 successive execution issuing on the same judgment. If the time
16 for the return of the execution expires while the examination is
17 pending, the arrest may be authorized upon an alias or other suc-
18 cessive execution, in like manner and for the same reasons as upon
19 the original execution. If the time for the return of the execution
20 or of an alias or other successive execution, issuing on the same
21 judgment, expires after a certificate authorizing an arrest has been
22 affixed thereto, and before such arrest has been made thereon, a
23 copy of said original certificate, made and certified by the clerk of
24 the court or by the magistrate issuing such execution, shall be affixed
25 to any such alias or other successive execution, and such copy shall
26 have the same force and effect as the original certificate.
1 Section 21. If at such examination it appears that, after service Fraudulent
2 of the notice and pending the proceedings thereon, the debtor has isImim 3.
3 made a payment of money or a conveyance, assignment or transfer IfsMafs. 220.
4 of property which is not exempt from being taken on execution,
5 with intent to prevent it from being transferred or paid to the
6 creditor, or applied by said proceedings to the satisfaction of the
7 ■ execution, and the magistrate so certifies, the debtor may, in
8 the discretion of the magistrate, be committed as for a contempt.
9 The provisions of this section shall not apply to the payment by
10 the debtor of a debt for necessaries, of a debt due on an execution
11 upon which he previously has been cited to appear under the pro-
12 visions of this chapter, nor of a reasonable fee of counsel relating to
13 the examination.
1 Section 22. If it appears that the debtor has property above Property to be
2 the amount of twenty dollars, not exempt from being taken on ex- §ebtorCe J
3 ecution, he shall, if possible, produce the excess and allow it to be ilsll Hi; 1 1!
. 4 taken on the execution, or "otherwise applied to the payment of the p- s. 162, § 21.
5 judgment debt and of the costs of the proceedings. If said property
6 cannot be taken on the execution, the debtor shall be required' to
7 execute and deliver to the judgment creditor, or to a person in his
8 behalf, a transfer, assignment or conveyance thereof, in such form
9 as the magistrate orders.
"eJ
1 Section 23. The debtor may redeem real property so transferred Rre^ee^)ti001 o£
2 within one year and personal property within sixty days from the transferred.
1524
ARREST ON CIVIL PROCESS.
[Chap. 168.
1877, 250, § 3.
P. S. 162, § 22.
date of such transfer, assignment or conveyance, upon payment of 3
said debt and costs and of the necessary expense actually paid by 4
the creditor for the care or custody of such property. If such prop- 5
erty is not so redeemed, it shall be sold forthwith at public auction, 6
unless in the transfer or assignment thereof it was otherwise pro- 7
vided, and the proceeds, after deducting the expenses of such sale, 8
shall be applied to the payment of said debt and costs, and the 9
excess, if any, remaining after such payments, shall be paid to the 10
debtor; or the creditor may take said property at a valuation to 11
be fixed by the debtor in the transfer, assignment or conveyance 12
thereof and apply such amount in payment as aforesaid. 13
Refusal or ac-
ceptance by
creditor of
transfer.
1877, 250, § 3.
P. S. 162, § 23.
Section 24. The creditor may refuse to accept a transfer or 1
assignment, and his acceptance thereof shall not impair his right to 2
have his execution satisfied in whole or in part by a levy on other 3
property in the manner provided by law. If the execution, after 4
such transfer or assignment has been made and before the sale of 5
the property conveyed thereby, is satisfied in full by levy or other- 6
wise, the creditor shall forthwith re-convey said property to the 7
debtor. 8
Subsequent
application for
arrest.
1S77, 250, § 4.
P. S. 162, § 24.
1887, 442, § 2.
127 Mass. 550.
Section 25. If the debtor appears as ordered by the magistrate 1
and complies with all lawful orders made by him, and if the truth of 2
one at least of charges two to six, inclusive, specified in section 3
seventeen is not proved, a certificate authorizing an arrest shall not 4
be granted, and the judgment creditor shall not, within three years 5
thereafter, make application for the arrest or examination of such 6
debtor upon the same charge and cause of action. 7
Affidavit not
required,
when.
G. S. 124, § 6.
1862, 169, § 2.
P. S. 162, § 5.
12 Allen, 71.
143 Mass. 187.
Section 26. An affidavit shall not be required to authorize arrest 1
upon an execution issued for costs only ; nor upon an execution 2
issued upon scire facias or other suit upon a recognizance against 3
bail or sureties in a criminal case, if the debtor neglects upon de- 4
mand of the officer having such precept to deliver to him prop- 5
erty, not exempt from levy, sufficient to satisfy such execution. A 6
debtor so arrested shall be committed on the execution, unless he 7
requires the officer to take him before a magistrate named in section 8
twenty-nine. 9
s^rTset.after Section 27. An arrest shall not be made after sunset, in cases 1
I!?' ill' 1 30' *n whi°h a certificate of a magistrate is required, unless it is specially 2
g. s. 124, '§ 8. authorized therein for cause. 3
P. S. 162, § 26.
104 Mass. 354.
129 Mass. 156.
134 Mass. 391.
f896,t247.arrest' ' Section 28. When a person is under arrest by a constable on 1
mesne process or on execution, he may be further arrested by a 2
sheriff or his deputy upon a writ or execution which such constable 3
may not be qualified to serve, and thereupon said constable shall 4
deliver such person to said officer, make return upon his writ or 5
execution of his doings thereon and deliver it to said officer, who 6
shall hold such person in arrest thereunder and complete the ser- 7
vice thereof. 8
Chap. 168.] arrest on civil process. 1525
discharge from arrest.
1 Section 29. When arrested on mesne process, the defendant shall toproc^ebaii
2 be allowed a reasonable time to procure bail, and when arrested on etc. '
3 such process, or on execution, he shall be allowed reasonable time to R- s. 98, §§ i,L
4 procure sureties for his recognizance hereinafter mentioned. When 1855,' 444; § 12.
5 arrested on mesne process, if he does not give bail, and when ar- \lf 258.1' §§ *'
6 rested on execution in any case, he shall be taken before a police, SvImm^"
7 district or municipal court, or a trial justice, or if he wishes to ^'sf'^'ls27'
8 recognize, he may be taken before a master in chancery. If the !88Mi5',§§5,6.
9 arrest is made when the court is not sitting and the defendant or 100 Mass. 300.
10 debtor does not desire to give bail or to recognize, the officer 174 Mass! 307!
1 1 making the arrest may deliver the defendant or debtor to the keeper
12 of the jail, to be detained in said jail until the next sitting of the
13 court for the transaction of business, when he shall be delivered
14 to said officer to be taken before the court. The officer making
15 the arrest shall pay in advance to the keeper of the jail, for the sup-
1(3 port of the defendant or debtor, twenty-five cents for each days'
17 detention, which shall be charged with the expenses of serving the
18 writ or execution.
1 Section 30. When taken before the magistrate, the defendant or Recognizance,
2 debtor may recognize with surety or sureties in a sum not less than 1855, 444, §§ 4, 9,
3 the amount of the execution, or of the ad damnum in the writ if he 1857, 141, §§ 10,
4 is arrested on mesne process, that within thirty days from the day of £?s m §10
5 his arrest he will deliver himself up for examination before a police, *^| 'iff 'll8'
(3 district or municipal court, or a trial justice, giving notice of i89i!27i'.
. 11 Gray 226
7 the time and place thereof as herein provided, and appear at the i Alien, 349, 466.
8 time fixed for his examination and from time to time until the io3AMass.3549.
9 same is concluded, and not depart without leave of the magistrate, 109 Mass! 503!
10 making no default at any time fixed for his examination, and ^g Mass' 135
1 1 abide the final order of the magistrate thereon ; but if he is arrested 120 Mass. 147,
.0 ... 594.
12 on mesne process and the writ is returnable within thirty days, the 121 Mass. 283,
13 number of days within which he shall deliver himself up shall be 122 Mass. 412.
14 limited by the magistrate so as not to extend beyond the return day of 557 Mass" 260'
15 the writ.
126 Mass. 310. 144 Mass. 14. 162 Mass. 17. 168 Mass. 102, 373.
139 Mass. 38. 146 Mass. 89. 165 Mass. 106. 169 Mass. 61.
142 Mass. 107. 157 Mass. 508. 166 Mass. 296. 174 Mass. 307.
1 Section 31. If a debtor arrested on execution is surrendered by a person sur-
2 his surety, he may recognize anew for such appearance at the time, may recognize
3 place and upon the conditions expressed in the former recognizance. ofsT'm, § n.
P. S. 162, § 29. 104 Mass. 433.
1 Section 32. A defendant arrested on mesne process who has oath without
2 recognized or given bail. may, without a surrender by his surety or surety. er J
3 sureties, take the oath that he does not intend to leave the com- pJl'.i62,§3ov
4 mon wealth, or the oath for the relief of poor debtors ; and the tak-
5 ing of either of said oaths by him shall be a discharge of his surety
6 or sureties.
1 Section 33. If the defendant or debtor, when taken before the Notice when
2 magistrate or at any time when entitled thereto, desires to take an to take oath.68
3 oath as hereinafter provided, and to have a time fixed therefor, a Ym-s, i?; I i!
1526
ARREST ON CIVIL PROCESS.
[Chap. 168.
>±,
1741-2, 6, § 1.
1759-60, 12, § 1.
1762-3, 18, § 1.
1787, 29, § 1.
1834, 167, § 2.
R. S. 98, §§ 2, 18,
1842, 56, § 1.
1844, 154, §§ 2,
10.
1855, 444, §§ 4,
5, 12.
1857, 141,
5, 18, 20.
G. S. 124, § 12.
P. S. 162, § 31.
1888, 419, § 7.
8 Cush. 289.
8 Gray, 244.
105 Mass. 341.
106 Mass. 118.
109 Mass. 216.
Ill Mass. 76.
124 Mass. 397,
399.
126Mass. 186.
129 Mass. 451.
police, district or municipal court or trial justice, in the county in 4
which the arrest was made, shall appoint a time and place for the 5
examination of the defendant or debtor, and shall issue a notice 6
thereof to the plaintiff or creditor, in the manner provided in section 7
seventy-three, substantially in the following form : — 8
To A-
B-
■ : C D , arrested on mesne process (or execution) in
your favor, desires to take the oath for the relief of poor debtors, (or, the oath
that he does not intend to leave the commonwealth,) at (naming the day, hour
and place) .
Date, signature and teste as provided in section seventy -three.
Notice may be given that the defendant arrested on mesne process 9
desires to take both of said oaths, and the form of notice may be 10
varied accordingly. 157 Mass. 374. 160 Mass. 317. 11
Service of
notice.
1736-7, 13, § 1.
1737-8, 17, § 1.
1741-2, 6, § 1.
1759-60, 12, § 1.
1762-3, 18, § 1.
1787, 29, § 1.
1811, 85, § 2.
1834, 167, § 2.
R. S.98, §§2,3,
18, 19.
1842, 56, § 1.
1844, 154, §§ 2, 5.
1855, 444, §§ 4, 5,
12.
1857, 141, §§ 4, 5.
G. S. 124, § 13.
1861, 112.
P. S. 162, § 32.
3 Met. 568.
7 Cush. 265.
7 Allen, 354.
109 Mass. 216.
112 Mass. 58.
113 Mass. 507.
114 Mass. 74.
115 Mass. 236,
358.
Section 34. Such notice shall be served by an officer qualified 1
to serve civil process, by giving to the plaintiff or creditor, or his 2
agent or attorney, an attested copy thereof, or by leaving such copy 3
at the last and usual place of abode of the plaintiff or creditor, or his 4
agent or attorney. The time of service shall be not less than one 5
hour, and, if service is made at the last and usual place of abode, 6
not less than one day, before the time appointed for the examination, 7
and there shall be allowed also not less than one hour for every mile 8
of travel. If there is more than one plaintiff or creditor, or 9
more than one agent or attorney, service on one shall be sufficient. 10
If the plaintiff or creditor is dead or not a resident in the county in 11
which the arrest is made, and no such agent or attorney is found 12
within the county, the notice may be served on the officer who made 13
the arrest. The person who made the writ may in all cases be re- 14
garded as the attorney of the plaintiff or creditor, if an arrest is 15
made on the writ or on an execution issued thereon. 16
119 Mass. 191.
121 Mass. 319.
123 Mass. 52.
124 Mass. 178, 181.
132 Mass. 214.
135 Mass. 411.
145 Mass. 340.
New notice.
R. S. 98, § 39.
1848, 286.
1850, 212.
1857, 141, § 27.
G. S. 124, § 14.
P. S. 162, § 33.
1888, 419, § 8.
113 Mass. 355.
125 Mass. 425.
127 Mass. 158.
128 Mass. 404.
Section 35. If a defendant or debtor has given notice of his 1
desire to take the oath for the relief of poor debtors, a new notice 2
thereof shall not be given within seven days from the service of the 3
former notice, unless the former notice was insufficient in form or 4
service. If the oath for the relief of poor debtors has been re- 5
fused, an application to take it shall not be made by the defendant 6
or debtor within seven days from the hour of such refusal. 7
157 Mass. 509.
158 Mass. 328.
Examination
of debtor.
1855, 444, § 5.
1857, 141, §§ 6, 7.
G. S. 124, § 15.
1860, 215, § 2.
P. S. 162, § 34.
1888, 419, § 9.
Section 36. If such notice has been duly served, the magistrate 1
who issued it, or any magistrate named in section thirty-three, shall 2
attend at the time and place therein specified, and examine the 3
defendant or debtor as herein provided. 13 Gray, 396. 4
6 Allen, 287. HI Mass. 481. 122 Mass. 412.
Adjournment.
1817, 186, § 1.
1826, 9, § 2.
R. S. 98, § 5.
1857, 141, § 7.
G. S. 124, § 16.
P. S. 162, § 35.
Section 37. The magistrate may adjourn the case from time to 1
time, and shall have the same powers relative to all other inci- 2
dents thereto as other courts or trial justices have in civil actions ; 3
and witnesses duly summoned shall attend as required in civil cases. 4
6 Allen, 287.
7 Allen, 354.
8 Allen, 150.
11 Allen, 29, 395.
14 Allen, 157.
124 Mass. 383.
147 Mass. 69.
177 Mass. 206.
Chap. 168.] arrest on civil process. 1527
1 Section 38. Pending the examination and at any time after the Recognizance
2 defendant or debtor is taken before a magistrate, a magistrate named nfatioSf exam'
3 in section twenty-nine may accept his recognizance with surety or llsf/lfl^fg,
4 sureties in a sum not less than the amount of the execution, or of \%7> U1> §§ 10
5 the ad damnum in the writ if he is arrested on mesne process, that Jfg 124 §17
6 he will appear at the time fixed for his examination, and from time fA®;16V336-
7 to time until the same is concluded, and not depart without leave 6 Alien,' 285, 288.
8 of the magistrate, making no default at any time fixed for his ex- 8Aiien',i48,'i5oi
9 amination, and abide the final order of the magistrate thereon. No nAiien,3395.
10 recognizance under the provisions of this chapter, except in case of 1I3 Mass! 333.'
11 appeal under the provisions of section fifty-three, shall be accepted ^ Mall' 107'
12 after the oath has been once refused to the debtor.
1 Section 39. If the defendant or debtor desires to take an oath Defendant not
. . -. recognizing
2 and to have a time fixed forms examination, but does not recognize maybeim-
3 to the satisfaction of the magistrate as provided in the preceding 1889, 415, § 4.
4 section, the magistrate may make a certificate thereof, which shall
5 be attached to the writ or execution, and the defendant or debtor
6 shall be committed to jail until the next sitting of the court for
7 the transaction of business or until the time fixed for his examina-
8 tion, when he shall be delivered by the jailer to the officer who
9 makes the arrest, to be by him taken before the magistrate.
1 Section 40. If the defendant or debtor, arrested on mesne proc- —maybe
2 ess or on execution without notice under the provisions of section whenarge '
3 eighteen, has given notice that he desires to take an oath that he 1I57; i4i| § 2©.
4 does not intend to leave the commonwealth, he shall be examined fsii'Isi'^fs.
5 relative thereto, and either party may introduce additional evidence. p7|' ^ \%
6 If the magistrate is satisfied that the defendant or debtor did not ^ Mass' lo5"
7 when arrested, and does not at the time of examination, intend to
8 leave the commonwealth, he shall make certificate thereof, and dis-
9 charge the defendant or debtor from arrest ; and immediately upon
10 such discharge, if the creditor so desires, such debtor shall be re-
11 quired, without further notice, to submit to examination under the
12 provisions of sections twenty to twenty-five, inclusive, upon the
13 charges in the affidavit annexed to the execution on which he was
14 arrested.
1 Section 41. If the defendant or debtor has given notice that he Examination
2 desires to take the oath for the relief of poor debtors, the magistrate ability to pay,
3 shall examine him on oath relative to his property, the disposal fg°7) 186) § 1.
4 thereof and his ability to pay the debt or satisfy the cause of action ^3|> gf'A2^ 7
5 for which he is arrested ; and either party may introduce additional 20^ '
6 evidence. The plaintiff or creditor may upon such examination 154, §6.'
7 propose to the defendant or debtor interrogatories pertinent to the 1857^ 141! §§ h,
8 inquiry, and the examination shall, if required by either party, be g.' s. 124, § 19.
9 in writing, in which case it shall be signed and sworn to by the ^'7sMass'. Lf."
10 defendant or debtor, and preserved by the magistrate. 163 Mass. 404.
1 Section 42. If the plaintiff or creditor, after request, makes Discharge
2 default in payment of the fees, or if the plaintiff or creditor or a m^nt "£ fees,7'
3 person in his behalf does not attend the examination, the defendant ism, 444, § 14.
4 or debtor shall, without examination and without payment of fees, efs'.1^' |24|.
5 be discharged from arrest or imprisonment and shall be exempt p- s- 162> § 68-
1528
ARREST ON CIVIL PROCESS.
[Chap. 168.
1 Allen, 492.
9 Allen, 378.
Ill Mass. 288.
133 Mass. 256.
from further arrest upon the same execution or any process founded 6
on the judgment, and a certificate of such discharge signed by the 7
magistrate shall be annexed to the writ or execution ; but if, after 8
the oath has once been refused, the defendant or debtor again applies 9
for the benefit thereof, the fees for such subsequent application or 10
examination thereon shall be paid by him. 11
If magistrate Is
satisfied, etc.,
he may admin-
ister oath.
1698, 11, § 1.
1727-8, 9, § 1.
1732-3, 7, § 1.
1730-7, 13, § 1.
1737-8, 17, § 1.
1741-2, 6, § 1.
1759-60, 12, § 1.
1762-3, IS, § 1.
1787, 29, § 2.
1805, 100, § 2.
1816, 55.
1817, 186, § 1.
1834, 167, § 2.
R. S. 98, §§ 8, 9,
21.
1855, 444, §§ 6,
12.
1857, 141, §§ 8,
19.
Section 43. 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 provided for in the fol-
lowing section, and it appears to him that the defendant or
debtor is entitled to his discharge, he shall administer to him the
following oath : —
Oath for the Eelief of Poor Debtors.
I [repeat the name] do solemnly swear that I have not any property to the
amount of twenty dollars except the property which is by law exempt from
being taken on execution, but not excepting intoxicating liquors ; and that I
have not any other property 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. G. S. 124, § 21. 1873, 343. P. S. 162, § 39.
6 Gray, 251. 9 Allen, 376. 137 Mass. 467. 159 Mass. 446.
1
2
3
4
5
6
Certificate of
magistrate,
and effect of
discharge.
Death of cred-
itor.
161)8, 11, § 5.
1732-3, 7, § 5.
1736-7, 13,
§§1,6.
1737-8, 17,
§§ 1, 6.
1741-2, 6, §§ 1, 4.
1759-60, 12,
§§ 1, 4-
1762-3, 18,
§§ 1, 4.
1787, 29, §§ 2, 4.
1816, 55.
R. S. 98, §§ 10,
11, 14, 16.
1842, 56, § 4.
1844, 154, §§ 7, 8.
1855, 444, §§ 7,
12.
1S57, 141, §§ 9,
19.
G. S. 124, § 22.
1873, 352, § 3.
P. S. 162, § 40.
7 Met. 287.
6 Gray, 251.
1 Allen, 456.
6 Allen, 285.
7 Alien, 266,
466.
Ill Mass. 288.
117 Mass. 4.
121 Mass. 554.
142 Mass. 108.
Section 44. After administering the oath, the magistrate shall
make a certificate thereof as follows : —
1
2
ss. This certifies that A-
B-
•, a poor prisoner arrested upon
execution, (or on mesne process,) has caused E F , the creditor (or
plaintiff) at whose suit he is arrested, to be notified according to law of his
desire to take the benefit of the law for the relief of poor debtors ; that it ap-
pears that said A B has not any property to the amount of twenty dol-
lars, except the property which is by law exempt from being taken on execution,
but not excepting intoxicating liquors ; and has not any other property now con-
veyed, concealed or in any way disposed of, with design to secure the same to his
own use or defraud his creditors. And after due examination of said A
B , the oath for the relief of poor debtors was administered to him.
Date, signature and teste as provided in section seventy -three.
Upon taking the oath, the defendant or debtor shall be discharged
from arrest or imprisonment, and shall be forever exempt from arrest
on the same execution, or on any process founded on the judgment,
or on the same cause of action, unless convicted of having wilfully
sworn falsely on his examination. If he is arrested or committed
on execution, the judgment shall remain in full force against his
property and the creditor may take out a new execution against his
property as if he had not been committed ; and if he is committed
on mesne process, any execution which may afterward issue on a
judgment for the same cause of action shall issue against his prop-
erty and not against his body. The death of the execution creditor
shall not affect proceedings instituted under the provisions of this
chapter.
3
4
5
6
7
8
9
10
11
12
13
14
15
Debtor on bail, Section 45 . If a person is arrested or has given bail or is im-
etc, may be . , A . , P . ,
discharged. prisoned on mesne process, or is arrested or imprisoned on any
p. s. 162, § 4i. execution, he may be discharged in the same manner and subject to
105 Mass. 385. ^e same provisions of law as a person arrested on an execution
mentioned in section seventeen.
1
2
3
4
5
Chap. 168.] arrest on civil, process. 1529
1 Section 46. No debtor shall be entitled to the benefit of the Debtor not
2 oath for the relief of poor debtors after a writ of scire facias on the oath, after
3 bail bond given by him in the original action has been served upon until acias'
4 his bail, unless he pays all costs which have accrued on such scire \^' \^' f %
5 facias. ' S&Skli
IMPRISONMENT.
1 Section 47. If a defendant arrested on mesne process and taken commitment
2 before the magistrate does not desire to take an oath or fails to o^mesnTproc-
3 recognize, to the satisfaction of the magistrate as before provided, 1701-2, 5, § n.
4 and does not give bail, or if on his examination he does not satisfy ^ -^ |^2
5 the magistrate that he does not intend to leave the commonwealth, ijp> ^> § i|
6 and the oath for the relief of poor debtors is refused him, and he 22.
7 does not give bail, the magistrate shall make a certificate thereof, p.' s! m, § 43.'
8 and the defendant shall be committed to jail until final judgment in s'aii^'iso1'
9 the action in which he was arrested. If the final judgment is against l^Mass! eo4'
10 him, he shall, unless discharged by the plaintiff, be held for thirty
11 days thereafter, so that he may be taken on execution ; but, if the
12 oath for the relief of poor debtors has not been refused him, he shall
13 be discharged if he recognizes as aforesaid, gives bail or bond as pro-
14 vided in section sixty or takes the oath for the relief of poor debtors
15 or an oath that he does not intend to leave the commonwealth.
1 Section 48. If a debtor arrested on execution and taken before —when
2 the magistrate does not desire to take an oath, or fails to procure execution.11
3 surety or sureties to the satisfaction of the magistrate as before pro- ^s'.ll,^.
4 vided, or if, upon his examination, the oath or oaths are refused to ^§' m §§26
5 him, of which refusal a certificate- shall be annexed to the execution, F^i62-!44-
6 he shall be committed to iail until he has recognized as herein pro- 11 Gray ,"226.
• /» 112 Mass 394
7 vided if the oath for the relief of poor debtors has not been refused 137 Mass! 25. '
8 him, or until the execution is satisfied, or until he is released by the 166Mas8-33-
9 creditor, or until he has given notice as before provided and taken
10 the oath for the relief of poor debtors or the oath that he does
11 not intend to leave the commonwealth, in cases in which such oath
12 is permitted.
1 Section 49. If the defendant or debtor confined in iail on mesne support in jail.
2 process or execution in a civil action claims support as a pauper, the § 3. '
3 jailer shall furnish his support at the rate of one dollar and seventy- ilJcjifef § 3.
4 five cents a week, to be paid by the plaintiff or creditor, who in such jf2s' 2920' || nf"
5 case shall, if required by the jailer, either from time to time advance 11*; ^.^ 48~
6 the money necessary for the support of the prisoner or give the iailer 1857, wi, § 25.
- jtjl jt o G S 124 6 27
7 satisfactory security therefor. If the plaintiff or creditor neglects so r: s." ws' § 45.'
8 to do for twenty-four hours after demand, the jailer shall discharge ll^als.1!^.
9 the prisoner. Such demand may be made of the officer who made
10 the commitment or of the plaintiff or creditor or his attorney at any
11 time after the prisoner has claimed such support.
1 Section 50. If a debtor committed on execution claims support Discharge by
2 as a pauper, the creditor may at any time thereafter order his dis- Effect.
3 charge. If a debtor is so discharged by order of the creditor, or by 1821', 22! § 4!
4 the jailer for want of security or of an advance of money as before **; s- ^ §§ 58>
5 provided, the debt and costs with all amounts paid by the creditor «• s. 124, §§ 28,
1530
ARREST ON CIVIL PROCESS.
[Chap. 168.
p. s. 162, §§ 46, for the debtor's support in prison shall remain a legal claim against
io?Mh'2938- k*s ProPerty> and may be enforced accordingly in the same manner
163 Mass! 214! as if he had not been committed on the execution ; but he shall
not thereafter be liable to arrest or imprisonment for the same debt,
costs or charges.
6
7
8
9
10
Property
liable for
support.
R. S. 97, § 60.
G. S. 124, § 30.
P. S. 162, § 48.
Section 51. If the debtor undertakes to satisfy the execution, 1
he shall not be entitled to be discharged until he has paid all charges 2
for his support in jail, both upon the arrest on the original writ and 3
upon the commitment on execution, in addition to the amount due 4
on the execution and the costs and charges thereon. 5
When fraud is
charged,
debtor to
plead, etc.
1788, 16, § 3.
R. S. 9S, §§ 23,
27, 28, 30, 31.
1844, 154, § 11.
1848, 168.
1855, 444, §§ 2, 8.
1857, 141, §§ 12,
16, 18.
G. S. 124, §§ 20,
31.
1872, 281, § 1.
P. S. 162, § 49.
1 Allen, 385.
7 Allen, 266.
100 Mass. 287.
124 Mass. 92.
127 Mass. 550.
130 Mass. 189.
133 Mass. 127,
256.
142 Mass. 96.
150 Mass. 411.
162 Mass. 14.
FRAUDULENT DEBTORS.
Section 52. If any of the five last named charges in section 1
seventeen is made as therein provided, or if the plaintiff or creditor 2
or a person in his behalf, at any time pending the examination of 3
a defendant or debtor who has given notice of his desire to take the 4
oath for the relief of poor debtors, files such charges in writing, 5
subscribed and sworn to by the plaintiff or creditor or by a person 6
in his behalf, the charges shall be considered in the nature of an 7
action at law, to which the defendant or debtor may plead that he is 8
guilty or not guilty, and the magistrate may thereupon hear and 9
determine the same. If a person arrested on execution, after such 10
arrest, misspends or misuses to the amount of forty dollars, or to an 11
amount equal to that for which he is arrested or committed, his prop- 12
erty which is not exempt from being taken on execution, but which 13
cannot be attached by ordinary process of law, without first having 14
offered such property to the arresting creditor in satisfaction or part 15
satisfaction of his debt, the charge of such misspending or misuse 16
ma}r be filed in the manner herein provided for filing charges of 17.
fraud. The plaintiff or creditor shall not upon the hearing give 18
evidence of a charge of fraud which is not made or filed as herein 19
provided, nor of a fraudulent act of the debtor which was committed 20
more than three years before the commencement of the original 21
action. 22
Appeal.
R. S. 98, §§ 27,
32, 34, 35.
1857, 141, § 13.
G. S. 124, § 32.
P. S. 162, § 50.
9 Met. 447.
3 Gray, 318.
10 Gray, 491.
100 Mass. 287.
126 Mass. 28.
Section 53. A party aggrieved by a judgment rendered under 1
the provisions of the preceding section may appeal to the superior 2
court, in like manner as from the judgment of a trial justice in 3
civil actions. The trial in the superior court shall be by a jury, 4
unless the court with the consent of both parties hears and deter- 5
mines it without a jury. 6
133 Mass. 256. 137 Mass. 25. 140 Mass. 171. 150 Mass. 411.
— proceedings
on.
R. S. 98, §§ 33,
34.
1857, 141, § 14.
G. S. 124, § 33.
P. S. 162, § 51.
10 Gray, 491.
1 Allen, 385.
112 Mass. 394.
150 Mass. 411.
Section 54. If the plaintiff or creditor appeals, he shall before 1
the allowance of the appeal recognize with sufficient surety or sure- 2
ties to enter and prosecute his appeal with effect, to produce at the 3
superior court a copy of all the proceedings upon said charges, 4
and to pay all costs if judgment is not reversed. If the defendant 5
or debtor appeals, he shall recognize in like manner, and with the 6
further condition, that if final judgment is against him he will, within 7
thirty days thereafter, surrender himself to be taken on execution 8
Chap. 168.] arrest on civil process. 1531
9 and abide the order of the court, or pay to the plaintiff or creditor
10 the whole amount of the original judgment against him.
1 Section 55. If the defendant or debtor, after any one of said ?ei>t0£ uPon
/»i -I ' • i • i •-, it default, etc.,
2 charges has been made or filed against him, voluntarily makes de- mag be denied
3 fault at a time appointed for the hearing, or if upon a final trial he R. s.'98, §36.
4 is found guilty of any of them, he shall have no benefit from the g. s. i24,§§34.
5 proceedings under the provisions of this chapter, and may be sen- p37!. 162, §52.
6 tenced to imprisonment for not more than one year. But the I oralis.
7 defendant or debtor, after the expiration of any sentence, may j°o Mass' is7'
8 renew his application for the oath for the relief of poor debtors, as ip jjaes- £L
9 though he had not been found guilty and sentenced.
150 Mass. 411. 151 Mass. 419. 159 Mass. 446.
DISCHARGE OF DEBTORS OF THE COMMONWEALTH.
1 Section 56. If a debtor committed to prison on a warrant of ^^relf of
2 distress in favor of the commonwealth is unable to pay the debt for comm.°n-
3 which he is imprisoned, he shall be entitled to his discharge in like 1855, 276, §§ 1, 2.
4 manner as poor debtors arrested on execution ; and all the proceed- p.' s.' 162' § 53."
5 ings shall conform as nearly as may be to the provisions of law
6 relative to such debtors, except as hereinafter provided.
1 Section 57. If he represents to the jailer that he desires to take same subject.
2 the oath for the relief of poor debtors, the jailer shall make the same G.5s'.i24,!§36.3'
3 known to a police, district or municipal court, or a trial justice. The im^m'J-w'
4 magistrate shall thereupon appoint a time and place for the examina- 7 Cu8h- 536-
5 tion of the debtor, and shall notify the district attorney for the dis-
6 trict by a notice, which shall be served on him personally by an
7 attested copy thereof or by leaving the same at his usual place of
8 abode, thirty days at least before the time appointed for the examina-
9 tion.
1 Section 58. If the place appointed for the examination is out f8a5me276b|e5ct"
2 of the city or town in which the district attorney resides or if he is g. s. 124, § 37.
3 unable to attend the examination, he may appoint counsel in his
4 stead ; and, for such attendance by himself or counsel, suitable allow-
5 ance shall be made by the superior court for the county.
DISCHARGE OR REMOVAL OF INSANE DEBTORS.
1 Section 59. If a defendant or debtor imprisoned on mesne proc- insane debtors.
2 ess or execution is supposed to be insane and incapable of taking g. s'. 124, §§ 38,'
3 the oath for the relief of poor debtors, any person may file a pe- p.' s. 162, §§ 56,
4 tition in any court named in section thirty-three of chapter eighty- 57,
5 seven for the county in which he is imprisoned, stating the facts.
6 The judge shall appoint a time and place for a hearing and exam-
7 ination, and shall order notice thereof to be given to the creditor or
8 his attorney seven days before the time appointed, and in other re-
9 spects shall proceed as provided in chapter eighty-seven for cases
10 of insane persons not under arrest. If satisfied upon the exami-
11 nation that the person is insane, the judge may order his discharge
12 or removal to any of the state insane hospitals or to such other
1532
ARREST ON CIVIL PROCESS.
[Chap. 168.
place as is provided by law for insane persons in any city or town in 13
this commonwealth. The legal rights of the creditor shall not be 14
affected by such discharge or removal. 15
Discharge
upon final
judgment.
1837, 198, § 1.
G. S. 124, § 40.
P. S. 162, § 58.
JUDGMENT DEBTORS IMPRISONED OR ON BAIL.
Section 60. A person imprisoned in a civil action when final 1
judgment in such action is rendered against him shall be discharged, 2
upon giving to the creditor a bond with sufficient surety or sureties 3
to be approved by a magistrate named in section one in a sum not 4
less than double the amount of the judgment and conditioned that 5
he shall surrender himself at the same jail to the jailer, between 6
the hours of eight and ten o'clock of the forenoon of the thirtieth 7
day next after the rendition of said judgment, or if said day falls 8
on Sunday, on the next following day, which day shall be specified 9
in the bond, and there remain until five o'clock of the afternoon of 10
the same day, so that he may be taken on the execution on said 11
judgment. 12
Proceedings
when execu-
tion issues.
1837, 198, § 3.
1857, 141, § 3.
G. S. 124, § 41.
P. S. 162, § 59.
Section 61. If an execution on such judgment amounting to 1
twenty dollars exclusive of costs, and upon which so much as that 2
amount remains uncollected, is delivered to an officer qualified to 3
serve it, with the affidavit required for the arrest of a debtor on 4
execution, such officer may, within thirty days after the rendition of 5
the judgment on which such execution is issued, leave it or a copy 6
thereof with the jailer ; and the debtor shall, upon the surrender of 7
himself as provided in said bond, be committed upon the execution in 8
like manner as if he had been taken and committed thereon by the 9
officer to whom it was delivered. The officer shall make return in 10
like manner and be entitled to the same fees as if the execution 11
had been served in the common form. 12
Same subject.
1837, 198, §§ 3, 4.
G. S. 124, § 42.
P. S. 162, § 60.
Section 62. The jailer shall, immediately after the expiration of 1
said thirty days, certify upon the execution or copy so left with him 2
the fact that such debtor has or has not surrendered himself, and shall 3
give a similar certificate to the officer, upon request, which shall be 4
annexed to his return on the execution ; and such certificate shall 5
be sufficient authority to the officer to make his return accordingly. 6
Such return, with the certificate annexed thereto, shall be prima 7
facie evidence of the fact on the question of breach of condition of 8
the bond and in other cases. A jailer who gives a false certificate, 9
shall be liable in damages to any person injured thereby. 10
Bond by per-
son surren-
dered by bail
after final
judgment.
1837, 198, § 5.
G. S. 124, § 43.
P. S. 162, § 61.
Section 63. If a person who has given bail on mesne process in 1
a civil action is surrendered by his bail after final judgment in such 2
action, he shall be released upon giving to the creditor a bond as 3
provided in section sixty, except that the condition thereof shall be 4
for his surrender at the same jail on the thirtieth day next after 5
the surrender by his bail. The day on which the same will fall, 6
and, if there is more than one jail in the same county, the jail at 7
which the surrender is to be made, shall be specified in the condi- 8
tion of the bond. All the other provisions relative to the bond 9
which are mentioned in section sixty shall apply to such bond. 10
Chap. 168.] arrest on civil process. 1533
1 Section 64. The provisions of the four preceding sections shall Emitted7 be
2 not prevent an officer from taking the debtor and committing him ^thin/te rty
3 to iail on such execution within thirty days after the rendition judgment.
4 of judgment or surrender by the bail as he might have done if such g. s\ 124, § u.
5 bond had not been given ; and such commitment of the debtor shall P'
6 be equivalent to his surrender according to the condition of his bond,
7 and shall discharge it.
SURRENDER OF PRINCIPAL ON RECOGNIZANCES.
1 Section 65. Whoever recognizes as surety for another as pro- Proceedings.
2 vided in this chapter may at any time before breach of the recog- g. s. 124, § 45.
3 nizance surrender his principal and exonerate himself from further f^i Mass', loo.'
4 liability, in the manner provided for the surrender by bail, and all 122Mass- 534-
5 the proceedings on such surrender shall be the same as provided in
6 the case of bail.
REMEDY ON RECOGNIZANCES AND BONDS, AND FOR ESCAPES.
1 Section 66. If a recognizance or bond taken under the pro- Remedy on
2 visions of this chapter is broken, the creditor may, within one year anCdfonlsnces
3 after such breach, commence an action thereon ; and judgment shall \lf7[ \H[ f fj.
4 be entered for the amount of the penalty, but execution shall issue f^o'sii'ii6'
5 for so much thereof only as may be justly and equitably due. If p. s. lei, §§ 64,
6 the recognizance was taken on an execution, the execution in such 2 Alien, 75.
5 Allen 393
7 action shall not issue for less than the amount due on the original 9s Mass. 31.'
8 judgment, with costs and charges arising after the issuing of the w, ultl'. II1.'
9 original execution. Such actions in favor of the commonwealth \f0 ^lll'. m.
10 shall be brought in the court in which the original judgment was 173 Mass- 475-
11 rendered.
1 Section 67. If a prisoner who has been arrested or committed Remedy for an
r. ...... . , escape.
2 on execution in a civil action escapes with the consent or by the W33, 134.
3 negligence of the officer, the creditor may in an action of tort against 72.
4 the officer recover such damages as he has suffered by the escape, p.' s." 162' | ee."
5 and may also have against the original debtor a scire facias or an ioGJray,2365.
6 action on the judgment. 4 AUen, 74. 6 Alien, 260.
PROVISIONS RELATIVE TO MAGISTRATES.
1 Section 68. A justice of a police, district or municipal court, ^.J^act8"068
2 or a special justice when exercising the powers and duties of a isss, 419, § 12.
3 justice of such court may act under the provisions of this chap- i89o| 44.< § 2.
4 ter. Unless the context otherwise requires, the word " magistrate " 157 ultl'. 374!
5 as used in this chapter shall include the word " court", and in sec- Definitions.
6 tions eighty to eighty-six, inclusive, the word "court" as applied
7 to the county of Nantucket shall include the words " trial justice ".
1 Section 69. If a magistrate fails to attend at the time and place continuance a
2 to which any process under the provisions of this chapter is return- Sifsto'attend.
3 able or continued before him, any other magistrate named in sec- p.'s. 162, § 67.
4 tion one may attend at such time and place and may continue the
5 proceeding for not more than thirty days, without costs, saving the
6 rights of all parties ; and he shall make a certificate thereof, which
1534
ARKEST ON CIVIL PEOCESS.
[Chap. 168.
Defendant not
to be defaulted
if magistrate
absent, etc.
1887, 442, § 3.
144 Mass. 14.
163 Mass. 79.
165 Mass. 108.
shall be by him delivered to the magistrate before whom such 7
process is pending. 8
Section 70. A defendant or debtor who has been arrested on 1
mesne process or execution shall not at any appointed hearing suffer 2
default by reason of the absence or disability of a magistrate quali- 3
tied to act, if, within three days thereafter, such defendant or debtor 4
shall provide for a continuance of the hearing by issuing a new 5
notice to the creditor, which shall be served as provided in section 6
thirty-four. 7
m$em '§ 12 Section 71. There shall be no appeal from a judgment or order 1
io9G'ra59'- i of a magistrate under the provisions of this chapter, except as 2
8 Aiien.'iso." expressly provided in section fifty-three. 3
ills0^0^118' Section 72. A magistrate acting under the provisions of this
1898^ 559! chapter may issue a writ of habeas corpus to bring before him for
examination or for entering into a recognizance a defendant or
debtor who has been imprisoned on mesne process or execution,
and the proceedings thereon shall be in accordance with the provi-
sions of chapter one hundred and ninety-one so far as applicable.
Notices, etc., to
be under seal
of court.
1S89, 415, § 2.
157 Mass. 375.
Section 73. All certificates, notices and other processes required
by the provisions of this chapter, if issued by a police, district
or municipal court having a clerk, shall be under the seal of the
court, signed by the clerk or an assistant clerk thereof, and bear
teste of a justice of the court who is not an interested party in the
proceeding, and, if issued by a court having no clerk or by a trial
justice, shall be signed by the magistrate with the designation of his
office.
1
2
3
4
5
6
1
2
3
4
5
6
7
8
Entry fee in
municipal,
etc., courts.
1891, 313.
Other fees of
magistrates.
1817, 186, § 1.
R. S. 98, § 41.
1848, 324, § 2.
1855, 249, § 1;
276, § 6.
1857, 141, § 29.
G. S. 124, §§ 48,
49.
1866, 193, § 1.
P. S. 162, § 68.
1888, 419, § 13.
1889, 415, § 6.
3 Allen, 245.
FEES AND COSTS.
Section 74. Upon the commencement of any proceedings under 1
the provisions of the preceding sections of this chapter relative to 2
male debtors in a police, district or municipal court, there shall be 3
paid to the clerk, if any, of such court, otherwise to the justice 4
thereof, an entry fee of three dollars, which shall be in payment for 5
hearing applications, for examinations and continuances, and the 6
issuing of all notices and certificates required in such proceedings. 7
Section 75. Except as provided in the preceding section and in 1
section fourteen, the fees of the magistrate under the provisions of 2
the preceding sections of this chapter shall be paid in advance as 3
follows : for hearing an application for a certificate to arrest, one 4
dollar ; for approving or disapproving sureties and taking a recog- 5
nizance after arrest, one dollar and fifty cents ; for each day spent 6
in examination, three dollars ; for each postponement or continu- 7
ance of an examination or the time fixed therefor, one dollar, which 8
shall be paid by the party requesting such postponement or contin- 9
uance ; for any notice or certificate required, one dollar ; for a writ 10
of habeas corpus mentioned in section seventy-two, one dollar; for 11
approving a bond under the provisions of sections sixty and sixty- 12
three, one dollar, which shall be paid by the applicant. If the oath 13
Chap. 168.] arrest on civil process. 1535
14 is not administered, such fees shall be allowed as part of the service
15 of the writ or execution.
1 Section 76. The fees of officers under the provisions of the pre- Fees of of&-
2 ceding sections of this chapter shall be as follows : for the service iIsmm, §is.
3 of notices, the same as for an original summons in an action at 1889, 415' § 6-
4 law ; for the service of a writ of habeas corpus mentioned in sec-
5 tion seventy-two, one dollar and the fee allowed for travel upon the
6 service of a summons ; for each day's attendance before a magistrate
7 on the examination of a defendant or debtor in his custody, three
S dollars.
1 Section 77. The fees of the jailer under the provisions of sec- Fees of jailer.
2 tions sixty-one and sixty-two, shall be as follows : on a surrender G^'.m.^to.
3 of a debtor, fifty cents ; and for a certificate thereof or of the non- p' s" 162' § 69,
4 surrender of the debtor, twenty-five cents, which shall be paid by
5 the officer, and charged with the expenses of serving the execution.
6 In other cases where a certificate is required, the jailer shall be
7 entitled to a fee of twenty-five cents, which shall be paid by the
S party requiring the same.
1 Section 78. Fees received under the provisions of this chapter Disposition of
2 by a police, district or municipal court shall be considered as re- ishI.'aw, § 13.
3 ceived for civil business, and shall be accounted for and paid by the isIl; 313'. § 7'
4 clerk of said court, if any, otherwise by the magistrate thereof, to 1897, 466, § 2-
5 the treasurer of the county in which such court is held ; but, in the
6 county of Suffolk, such clerks and magistrates as by law account and
7 pay to the collector of the city of Boston shall so do hereunder.
1 Section 79. If the arrest was on mesne process and final iudg- costs.
2 ment in the action is rendered for the defendant, he shall have taxed '
3 in his costs against the plaintiff all costs paid by him on account of
4 the arrest. If the arrest was on execution, the execution shall not
5 be satisfied until the debtor has repaid all costs paid by the creditor
6 upon and after arrest and all lawful charges paid by the creditor
7 for his support in prison. If the arrest was on mesne process and
8 the plaintiff shall recover more than twenty dollars, exclusive of
9 costs, the costs paid by him upon and after the arrest and all lawful
10 charges paid by him for the defendant's support in jail shall be
11 taxed in his costs.
EQUITABLE PROCESS AFTER JUDGMENT.
1 Section 80. Upon the filing of an application of a judgment E^g™aefter
2 creditor, with an affidavit made by him or a person in his behalf that judgment.
3 the judgment is founded upon a claim for the necessaries of life fur- 1899', 445; § 1!
4 nished to the judgment debtor or his family, or for work or labor per- i73 Mass. 498.
5 formed by the judgment creditor for the judgment debtor, the justice
6 or clerk of a police, district or municipal court of the judicial district
7 in which the judgment debtor resides or, if he does not reside within
8 the district of any such court, the justice or clerk of a police, district
9 or municipal court held within the county and nearest to the town
10 in which the debtor resides, or in the county of Nantucket a trial
11 justice, shall issue a notice to said debtor to appear at a time and
1536
ARREST ON CIVIL PROCESS.
[Chap. 168.
place named therein to show cause why an examination into his cir- 12
cumstances should not be made and a decree be entered ordering him 13
to pay such judgment in full or by instalments, weekly, monthly or 14
otherwise. Said notice shall be served by delivering a copy thereof 15
to the defendant or by leaving a copy at his last and usual place of 16
abode, at least seven days before the return day thereof. At the 17
hearing the court shall first ascertain if the creditor's claim is for the 18
necessaries of life, or for work' or labor performed by the judgment 19
creditor for the judgment debtor, as stated in his affidavit, and, if 20
it so finds, it shall make inquiry, by examination of the judgment 21
debtor or otherwise, as to his circumstances, his income from any 22
source and his ability to pay said judgment ; and if the debtor fails 23
to appear at the time and place fixed, such inquiry may proceed in 24
his absence. If it shall appear that said notice has not been served 25
as herein required, the court may continue the proceedings and issue 26
a new notice to the debtor. If the court finds that the debtor is not 27
able at the time to pay said judgment in full or by partial payments 28
from time to time, it shall enter a finding thereof, which shall be sub- 29
ject to revision upon like notice and inquiry and upon proof of changed 30
circumstances. In such case, the clerk or justice shall not issue a 31
subsequent notice to the debtor until the creditor or a person in 32
his behalf has filed in court an affidavit stating in substance the 33
evidence of the debtor's change of circumstances upon which he 34
relies for a revision and until the court in its discretion has deter- 35
mined that there is occasion for a new inquiry into the debtor's cir- 36
cumstances. If the court finds that the debtor is able to pay the 37
judgment in full or by partial payments from time to time, it may, 38
after first allowing the debtor out of his income a reasonable amount 39
for the support of himself and family, enter a decree fixing the time, 40
place and amount of payments to be made by the debtor on said 41
judgment out of his income in excess of said allowance. 42
Enforcement
of decree.
1898, 549, § 2.
Section 81. If the debtor at anytime fails to comply with such 1
decree the creditor may cause him to be notified to show cause 2
therefor and, unless the debtor shows good cause therefor, the court 3
may order that unless he complies with such decree or with such 4
modification thereof as it may then make, within the time stated in 5
said order, such failure shall be a contempt of court ; and if, at the 6
expiration of the time fixed by the court for compliance with such 7
new decree, the debtor still fails or refuses to comply therewith, the 8
court may enforce its decrees by proceedings for contempt as a 9
court of equity might do ; but not more than fourteen days' im- 10
prisonment shall be ordered by the court as punishment for any 11
one such contempt. The debtor may be released by order of the 12
court at any time, upon payment of the claim and costs or upon 13
his giving a bond to the creditor, with one or more sureties who 14
shall be approved by the court, conditioned that he will comply 15
with all existing or subsequent decrees of the court ; or, after seven 1 6
days' imprisonment, he may be released by order of the court, upon 17
filing in court his personal bond, conditioned that he will thence- 18
forth comply with all decrees of the court. If the debtor is released 19
upon his personal bond, as aforesaid, he may, if he does not comply 20
with said decree within sixty days after his release or fails to show 21
to the court good cause for his non-compliance, again be cited to 22
Chap. 168.] arrest on civil process. 1537
23 appear before the court by the creditor and proceeded against as for
24 a further contempt of court.
1 Section 82. A judgment debtor may himself apply by petition Application by
2 for the benefit of the provisions of section eighty, and may cause a 1898^9, § 3.
3 creditor holding a judgment against him for the necessaries of life
4 furnished to himself or his family to be cited to appear and show
5 cause why an examination, as hereinbefore provided, shall not be
6 made ; and the court may, after a hearing, proceed in the case in the
7 same manner as if such application had been made by a creditor.
1 Section 83. If a judgment creditor institutes proceedings as suspension of
2 provided in section eighty, all other processes or suits to enforce j^y Proceed-
3 or recover upon any judgment upon which such proceedings are 1898'549>§4<
4 based and all actions or proceedings by other creditors against such
5 judgment debtor, relative to wages, shall be suspended, except as
6 provided in the following section, until the judgment or judgments
7 on which such proceedings are based shall have been fully satisfied ;
8 but the provisions of this section shall not prevent the attachment
9 of any property of the debtor other than his wages, either before or
10 after judgment, or the levy of the execution thereon.
1 Section 84. A creditor who has recovered a judgment upon a inquiry as to
2 claim for the necessaries of life against a debtor against whom pro- lertairfciaims.
3 ceedings by another judgment creditor are pending under the pro- 1898> m' § 6"
4 visions of the four preceding sections may, upon motion and after
5 notice to all parties in interest, inquire into the validity and amount
6 of the claim of any judgment creditor for whose benefit the decree
7 under the provisions of said sections has been entered. Upon the
8 hearing of such motion, the court may order any judgment creditor
9 who is then a party to the proceeding to render an account to the
10 court of all amounts theretofore paid by the debtor upon such judg-
11 ment, and may also, after a hearing, enter a decree revoking or
12 modifying any previous decree in the proceedings, and may order
13 that payments thereafter made by the judgment debtor be appor-
14 tioned between the different judgment creditors who are then par-
15 ties to such proceeding.
1 Section 85. The court may, at any time upon written notice to Revision of
2 the opposite party or to his attorney of record, revise, modify or 1898^9, §5.
3 suspend a decree made in any proceedings under the provisions of
4 the five preceding sections.
1 Section 86. No costs shall be allowed to either party after pro- costs and fees.
2 ceedings have been commenced under the provisions of the six pre- 1898' ^ § 7'
3 ceding sections, except that twenty-five cents shall be paid to the
4 clerk or justice who issues the notices therein provided, and the
5 same fees shall be paid to officers for copies, service, travel and
6 other expenses as are allowed by law in the service of writs, and
7 they shall be paid in the same manner.
1538
BAIL.
[Chap. 169.
CHAPTER 169.
OF BAIL.
Sections 1-8.
Sections 9-17.
Sections 18-22.-
Sections 23-25.'
-Taking Bail.
■Surrender of Principal, etc.
■Bail in Actions before Inferior Courts.
Support of Principal.
TAKING BAIL.
frre^edon Seotion 1. A defendant arrested on mesne process shall be
mesne process released upon giving bail. If he has been sentenced to imprison-
may srrv6 D&il. x o o ±
etc. ment on a charge of fraud under the provisions of chapter one
1857 141 §22 .
g. s. 125, § i." hundred and sixty-eight, the giving of such bail shall not discharge
FoGray%9o.' him from such imprisonment.
1
2
3
4
5
— how taken.
R. S. 91, § 1.
G. S. 125, § 2.
P. S. 163, § 2.
2 Mass. 481.
10 Mass. 20.
12 Mass. 434.
12 Met. 564.
4 Gray, 300.
Section 2. Bail in a civil action shall be taken by giving a 1
bond to the sheriff, if the writ is served by him or his deputy, 2
otherwise to the officer by whom the writ is served, conditioned 3
that the defendant shall appear and answer to the plaintiff, abide the 4
final judgment of the court and shall not avoid. 103 Mass. 399. 5
116 Mass. 133. 119 Mass. 146. 146 Mass. 58.
113 Mass. 325.
Officer may
require two
sureties, etc.
R. S. 91, § 2.
1850, 199, § 1.
1852, 211.
G. S. 125, § 3.
P. S. 163, § 3.
9 Mass. 479.
Section 3. An officer shall not be required to accept a bail bond 1
unless with at least two sureties, each of them having sufficient prop- 2
erty within this commonwealth ; and he may examine on oath, to be 3
administered by him, the persons offered as sureties, as to their suffi- 4
ciency. If he takes a bail bond with only one surety, he shall be 5
liable to the plaintiff for any loss sustained by the insufficiency of 6
the bail, although the surety was actually sufficient when taken. 7
f?°?TOvedyetc Section 4. The bond may be approved by a judge of a court of 1
Fee. ' record, a master in chancery, trial justice or justice of the peace, and, 2
g. s. 125, § I' when so approved, the sureties shall be sufficient. The fee of the 3
magistrate shall be one dollar for the examination and decision. 4
18S0, 132, § 1
P. S. 163, § 4-
those who exe- Section 5. A bail bond shall bind the persons who execute it, 1
RUts "i § 3 although taken with one surety only, or with two or more sureties 2
g. s. 125, § 5. any of whom have not sufficient property within this commonwealth, 3
P. S. 163, § 5
2 pick. 284. ' or although not approved as aforesaid.
2 Met. 490.
rt0hAer^^ Section 6.
turned with the
writ. and the clerk shall note on the writ that a bond is so filed
g. s. 125, § 6. an appeal, the bond shall be sent with the other papers to the court
P. S. 163, §6. , ,! r L
17 Mass. 602. appealed tO. 2 Met. 490. 9 Met. 564. 103 Mass. 398
The bond shall be returned and filed with the writ, 1
Upon 2
3
4
Obligations of
bail.
1693-1, 1.
1784, 10, § 1.
R. S. 91, § 5.
G. S. 125, § 7.
1881, 263, § 4.
P. S. 163, § 7.
2 Mass. 481.
Section 7. In case of the avoidance of the principal and a return 1
on the execution that he has not been found, or a return on the notice 2
mentioned in section nineteen of chapter one hundred and sixty- 3
eight that after diligent search by the officer serving the notice the 4
principal has not been found, his bail shall satisfy the judgment, 5
Chap. 169.] bail. 1539
6 with interest thereon from the time it was rendered, unless he dis- 12 Mass. 433.
7 charges himself by surrendering the principal before final judgment iiceush8i5590'
8 against him on the writ of scire facias, or by other sufficient defence i« Masai!?!
9 in that suit.
1 Section 8. The bail bond shall be so far a matter of record and ^3_2n1bond'
2 of the nature of a recognizance that the court in which the judgment g8! ^ §§ |J-
3 against the principal was rendered, upon application of the creditor g! si 125, §§8-'
4 to the clerk thereof, shall issue a writ of scire facias thereon in the p.' s. 163, §§ 8-
5 name of the creditor against the bail, which, without setting forth aMass. 484.
6 the bond, shall allege that the defendants became bail ; but no 27pfckSS28302'
7 action shall be maintained on the writ of scire facias unless it is 23Metck4908587
8 served on the bail within one year after final judgment against the \^T^l'J%9
9 principal. 113 Mass! 325!
SURRENDER OF PRINCIPAL.
1 Section 9. The bail may surrender the principal in the court in surrender of
2 which the scire facias is pending at any time before final judgment ?ourt^tc.ln
3 therein against them, and, upon payment of the costs on the scire noH^u.
4 facias to that time, they shall be discharged. g. s. 125, § 12. ^ ^ |210
P. S. 163, §12. 1884,260. 7 Mass. 169. 117 Mass. 281. 161 Mass. 55.
1 Section 10 . The principal so surrendered shall be committed to commitment.
2 the jail for thirty days so that he may be taken on execution, unless ns4, ib'§2.'
3 he is discharged as provided in chapter one hundred and sixty-eight, oili 12^/13
P." S.' 163,' § 13.'
1 Section 11. Upon proof of the death of the principal before Discharge by
2 final judgment on the scire facias, the bail shall be discharged, upon cfpai! of prm'
3 payment of the costs on the scire facias to the time when such proof ifl^fcfss. 384.
4 is made.
1 Section 12. The bail may, at any time before final judgment Surrender out
2 against them on a writ of scire facias, exonerate themselves from isn, we.
3 further responsibility by surrendering their principal as provided g! si 125, § ii.
• • PS 163 5 14
4 in the four following sections.
1 Section 13. Such surrender may be made to the iailer in the -to jailer.
2 county in which the principal was arrested or in that to which the r. s. 9i,'§§ 13,
3 original writ against the principal was returnable, who shall receive g.'s. 125, §§ 15,
4 and hold him in like manner and with the same rights as if he had p°;s< 163)§§15
5 been committed on the original writ. 20-
1 Section 14. The jailer shall not be obliged to receive a person Proceedings.
2 so surrendered, unless the bail delivers to him a copy of the bail g! si 125, §ii>.
3 bond attested by the officer who took it or by the clerk in whose P- s' 163' § 16"
4 custody it may be, which shall be a sufficient warrant for the jailer.
1 Section 15. The bail shall, within fourteen days after such sur- same subject.
2 render, deliver to the jailer a copy of the original writ or process r. s. 9i,'§§ 15,
3 whereby the prisoner was arrested, with a copy of the return in- g! s. 125, §§ 17,
4 ciorsed thereon, attested by the officer who served the writ or by the p3;^ 163§§ 17>
5 clerk into whose office it is returned, and they shall also within said f^nsh 'm
6 time give notice in writing to the plaintiff or his attorney of the "Ai,en. 3.9!*-
7 time when and the place where the prisoner was so committed.
1540
BAIL.
[Chap. 169.
Bail to pay
costs on scire
facias, when.
1817, 146.
R. S. 91, § 17.
6. S. 125, § 19.
P. S. 163, § 19.
11 Cush. 15.
Section 16. If the surrender is made after a writ of scire facias 1
is issued against the bail, they shall, within fourteen days after 2
the surrender, pay the costs of suit on the scire facias to the creditor 3
or his attorney, or to the jailer for the use of the creditor ; but if 4
the writ of scire facias has not been served on the bail, they shall 5
not be required to pay the costs thereon until twenty-four hours 6
after he has notice of the issuing of the writ and a demand by the 7
creditor for such payment. 8
oS^nailction. Section 17. The provisions of the five preceding sections shall 1
b8!' 9°i V19 no^ imPau' the right of bail in all cases to surrender their principal 2
g'. s'. 125, § 2i. in the court in which the original action is pending, before final 3
' ' judgment ; or, after judgment, to surrender him to the officer hold- 4
ing the execution, at any time before the return thereof. 5
Bail before
inferior courts.
1803, 132, § 1.
R. S. 91, § 20.
G. S. 125, § 22.
P. S. 163, § 22.
BAIL, IN ACTIONS BEFORE INFERIOR COURTS.
Section 18. If bail is taken in an action before a police, dis- 1
trict or municipal court or a trial justice, the magistrate may issue 2
a scire facias against the bail, although the sum of the debt and 3
costs on the original judgment exceeds the amount to which its or 4
his jurisdiction is otherwise limited ; and the rights and obligations 5
of the bail and all proceedings as to the surrender of the principal 6
and the action against the bail shall be substantially the same as are 7
provided relative to bail when taken in actions in other courts. 8
prffcipann* Section 19. When bail in an action before a police, district or 1
18031 i32Se«« 2 4 municipal court or a trial justice surrender their principal in court, 2
b. s. 9i,'§§ 21, either during the pendency of the original action or of the scire 3
g.'s. 125, §§ 23, facias, they shall secure the attendance of an officer qualified to serve 4
p.' s. 163, §§ 23, legal process in the case to whom the principal may be committed. 5
M' Any such officer who is seasonably notified and requested to attend 6
for the purpose aforesaid shall attend and shall receive and take 7
charge of the principal, if committed to his custody by the mag- 8
istrate. 9
uponesurngs Section 20. If the principal is surrendered in such action, an 1
bds e9i 23 entry of such surrender shall be made on the record and he shall be 2
g. s. 125, §25. forthwith committed to the officer in attendance. p. s. 163, §25. 3
Same subject.
B. S. 91, §§ 24,
25
G. S. 125, § 26.
P. S. 163, § 26.
Section 21. If the principal is surrendered before final judgment 1
in the original action, the bail shall deliver to the officer a copy of the 2
original writ, with the return indorsed thereon, attested by the clerk 3
of the court, if any, otherwise by the justice. If the surrender is 4
after final judgment in the original action, the bail shall deliver 5
to the officer a copy of the entry of the surrender, attested in like 6
manner. The officer shall deliver the copy to the jailer upon com- 7
mitting the prisoner to his custody ; and such copy shall be a suffi- 8
cient warrant to the officer and to the jailer for receiving, committing 9
and holding the prisoner. 10
Tseo!!i°3f2??4Cer' Section 22. The officer shall be allowed the same fees, which 1
g i' l^'Vi^ sna^ ^e Pa^ ky the bail, as upon the arrest and commitment of a 2
p. s. 163,' § 27. defendant on mesne process. 3
Chap. 170.] absent defendants. 1541
1
SUPPORT OF PRINCIPAL.
Section 23. If a principal, surrendered by his bail and com- Liability of
2 mitted to jail, claims support as a pauper, the jailer may require the im*v&:
3 plaintiff or his attorney in the action to give security or to advance q\ |; mflis.
4 the money for the support of the defendant in like manner as if the p- s- 163> § 28-
5 commitment had been made by an officer. If the plaintiff fails so
6 to do for twenty-four hours after being so required, the jailer may
7 discharge the defendant.
ue>"
1 Section 24. The jailer may, at the time of the surrender, demand -<°f ^u-
2 of the bail the advance of money for the support of the principal, or g- 1- %i^L
3 security therefor, instead of demanding the same of the plaintiff; p." s.' 163,' § 29.'
4 and if the bail, for twenty-four hours after such demand, fail to give
5 such security or to advance the money for the support of the princi-
6 pal, the jailer may discharge him ; and the bail and the principal shall
7 thereupon continue liable to the plaintiff in all respects as if the sur-
8 render had not been made.
1 Section 25. If such demand is made upon the bail, they shall ~jf,j)£rsur"
2 be liable for the support of the principal for seven days after they ip|> i^-
3 have given notice of the surrender to the plaintiff or to his attorney 57.
4 in the action. The plaintiff shall be liable for the support of the 31'.
5 defendant after the expiration of said seven days ; and if he fails to 31. ' ' 8S '
6 advance the money or to give security therefor as before provided,
7 at or before the expiration of said time, the jailer may discharge the
8 defendant.
CHAPTER 170.
OF PROCEEDINGS AGAINST ABSENT DEFENDANTS AND UPON
INSUFFICIENT SERVICE.
1 Section 1. A personal action shall not be maintained against a Actions
2 person who is not an inhabitant of this commonwealth unless he attendants.611*
3 has been served with process within this commonwealth or unless an q\ §; i^f/t
4 effectual attachment of his property within this commonwealth has fcu'stf^!1'
5 been made upon the original writ, and in case of such attachment jocusn. is3.
n 1 • i-i -n ti 3 Gray, 508.
6 without such service, the ludgment shall be valid to secure the 11 Alien, 134.
0 106 Mass 220
7 application of the property so attached to the satisfaction of the 131 Mass! 359!
8 judgment, and not Otherwise. 170 Mass. 538. 176 Mass. 48. 150 Mass! 555.
1 Section 2 . If an action is brought by a person who is not an cross actions.
2 inhabitant of this commonwealth or who cannot be found herein to r. s. 9o,'§§ 49,
3 be served with process, he shall be held to answer to any action G.'s.i26, §§2,3.
4 brought against him here by the defendant in the former action, if f^s^ilo.2'3'
5 the demands are of such a nature that the iudgment or execution in J6^8^478-
n & ... 1 Met. 80.
6 the one case may be set off against the ludgment or execution in the no Mass. 538.
o J_ o J75 Mass. 369.
7 other. If there are several defendants in the original action, each
8 of them may bring such cross action against the original plaintiff
9 and may be allowed to set off his judgment against that which may
10 be recovered against himself and his co-defendants in like manner
11 as if the latter judgment had been against himself alone.
1542
ABSENT DEFENDANTS.
[Chap. 170.
w
rit, how
served.
R.
S. 90,
§51.
G.
s. r>6.
§4.
P.
S. 164,
§4.
168 Mass
.106.
Proceedings.
K.
S. 90,
§52;
92,
§16.
G.
S. 126
,§5.
P.
S. 164,
§5.
Section 3. The writ in such cross action may be served on the 1
person who appears as the attorney of the plaintiff in the original 2
action, and such service shall be as valid and effectual as if made 3
on the party himself in this commonwealth. 4
Section 4. The court in which either of the actions is pending 1
may, from time to time, order continuances to enable the absent party 2
to defend the action brought against him, and to enable either party 3
to set off his judgment or execution against that which is recovered 4
against him, but the actions shall not be unreasonably delayed by 5
the neglect or default of either party. The provisions of the follow- &
ing sections, relative to actions against persons absent from the 7
commonwealth, shall not apply to a cross action brought under the 8
provisions of the two preceding sections. 9
a^uon^when Section 5. If real property of a non-resident is attached and no 1
1884, -268. personal service is made upon the defendant, the action shall be dis- 2
missed unless notice thereof is given in such manner as the court 3
orders within one year after the entry of the action. 4
Notice.
1828, 114.
R. S. 90, §53;
92, § 3.
G. S. 126, § 6.
P. S. 164, § 6.
1894, 3S4.
3 Gray, 508.
4 Allen, 94.
5 Allen, 45.
11 Allen, 134.
138 Mass. 72.
144 Mass. 10.
Section 6. If a defendant is absent from the commonwealth or 1
his residence is not known to the officer serving a writ, and no 2
personal service has been made on him, or if the service of a writ 3
is defective or insufficient by reason of a mistake of the plaintiff 4
or officer as to where or with whom the summons or copy ought 5
to have been left, the court, upon suggestion thereof by the plain- 6
tiff, shall order the action to be continued until notice of the action 7
is given in such manner as it may order. But if the property 8
of an absent defendant has been attached and the residence of such 9
defendant is known to the plaintiff and no legal service can be 10
made upon him within this commonwealth, except by publication, 11
the court may order personal service to be made on him in such 12
manner as it may order and, upon proof that service has been made 13
as ordered, such defendant shall be held to answer to the action 14
and no further service shall be necessary. If in any case the 15
defendant does not appear, the court may in its discretion order the 16
action to be continued and further notice given to him in such 17
manner as it may order. 18
182^114. Section 7. If, after such notice, the defendant does not appear 1
g1'i26§§37 within ten days after the day specified therein for his appearance, 2
f- s-i64,'§7. a default shall be entered and iudgment thereon may be rendered 3
1885, 384, §8. • x 1 • • 1 1 • x« t
144 Mass. 10. against him as provided in section one. 4
Bond.
1700-1, 20, § 3.
1797, 50, § 5.
R. S. 92, §§ 6,
G. S. 126, §§ 8,
P. S. 164, §§ 8,
4 Mass. 483.
19 Pick. 64.
13 Gray, 1.
131 Ma6S. 362.
138 Mass. 72.
Section 8. If judgment in a personal action is rendered as pro- 1
vided in the preceding section upon the default of a defendant who 2
is absent from the commonwealth or whose residence is unknown, 3
the plaintiff shall not take out execution thereon within one year 4
thereafter, unless he files with the clerk of the court a bond payable 5
to the defendant with one or more sureties, approved by the clerk 6
or, upon appeal from his decision as to the sufficiency of the sure- 7
ties, by a justice of the court rendering the judgment, in a sum 8
equal to double the amount recovered, conditioned to repay the 9
Chap. 170.] absent defendants. 1543
10 amount so recovered if the judgment is reversed, or so much of
11 the amount as shall be recovered back upon a review brought by
12 the original defendant within one year after the original judgment.
1 Section 9 . If an attachment has been made upon a writ return- Notice in
2 able to a police, district or municipal court or trial justice and the isll^m,0^1*8"
3 defendant is absent from the commonwealth, so that no service can p." f." if 4,' | li •
4 be made on him and he has no agent or attorney residing in this JH^gi^ U8
5 commonwealth, the court or justice may order the action to be 18AV31L
6 continued until notice thereof is given to the defendant in such i3s Mae's. 72.
7 manner as it or he may order. If, upon proof that such notice has
8 been given, the defendant fails to appear on the return day of such
9 notice, judgment may be entered and execution issued for the plain-
10 tiff, upon his giving bond to the defendant with sufficient surety in
11 double the sum for which execution is to be issued, conditioned to
12 repay the amount recovered, if, within one year from the rendition
13 of the judgment, proceedings are begun upon which said judgment .
14 is reversed.
1 Section 10. If the execution in an action under the provisions Execution
2 of this chapter, except as otherwise provided, is levied on land, no 1700^1, 20, §a£d'
3 alienation thereof by the original plaintiff shall prevent the defend- r9^.5^^.
4 ant from retaking the same or as much thereof as may be necessary <j. 1. 126, § io.
5 to satisfy the judgment which he recovers on review, if the writ
6 of review is sued out within one year after the original judgment.
1 Section 11. If the original iudgment was for seisin of the land Judgment in
• , . ^ , J S ,, . . . n. real action.
2 demanded in a real action, the writ of seisin may be issued in r. s. 92, §9.
3 favor of the demandant without his giving bond ; and if the judg- p.' s.' m, § 11.'
4 ment is reversed in whole or in part upon a review, whether sued
5 out within the year or afterward, the original tenant may have resti-
6 tution of the land as upon a reversal on a writ of error.
1 Section 12. An action of tort against several defendants, any Actions of tort
10.
2 one of whom is absent from the commonwealth at the time of the r. s. 92, §
3 service of the writ, shall be conducted with regard to him relative p." |; i|£ f Jf;
4 to the service of the writ, judgment, review thereof and execution in
5 like manner as if he were the sole defendant.
1 Section 13. An action of contract against several defendants, —of contract.
2 any one of whom is in the commonwealth and any other of whom r. s'. 92, § 11.
3 is absent, in which the plaintiff recovers judgment shall not be sub- p.' I; lei; § 13!
4 ject to the provisions of this chapter relative to review, giving bond leGray.iu.
5 and alienation of land ; but judgment shall not be rendered against
6 any such absent defendant, unless under such circumstances as
7 would entitle the plaintiff to judgment if the absent party were the
8 sole defendant.
1 Section 14. An action of contract against several defendants Prosecution
2 in which legal service is not made upon all, either by attachment or served! those
3 otherwise, by reason of their absence from the commonwealth or R^.^f^ii
4 for other sufficient cause, may be prosecuted against those who are 13-
15M
SURVIVAL OF ACTIONS.
[Chap. 171.
g. s. 126, §§ 14, duly served with process, without further proceedings against the
?. s. 164, §§ 14, others. If judgment so rendered against one or more of several
joint contractors remains unsatisfied, an action on the same contract
may be maintained against any of the other joint contractors in like
manner as if the contract had been joint and several.
10 Allen, 490. 147 Mass. 201.
15
5 Mass. 193.
8 Mass. 423.
13 Mass. 148
13 Met. 256.
16 Gray, 114
5
6
7
8
9
^t^verai f one Section 15. Eeal actions against several tenants, any one of 1
Rnsn92, fii. whom is absent from the commonwealth, shall be conducted relative 2
g. s. 126, § 16. to him as if he were the sole defendant. p. s. 164, § 16. 3
Mixed actions.
R. S. 92, § 14.
G. S. 126, § 17.
P. S. 164, § 17.
Section 16. The provisions of this chapter relative to judg- 1
ment, bond and review in actions of tort shall apply to a mixed 2
action if the defendant -or one of several defendants is absent from 3
the commonwealth, but, with regard to the service of the writ and 4
notice to the defendant, it shall be conducted as a real action. 5
CHAPTER 171.
OF THE SURVIVAL OF ACTIONS AND OF THE DEATH AND DISABILITIES
OF PARTIES.
Sections 1, 2.-
Sections 3-8 . ■
Sections 9-12.-
Sections 13-15.-
Section 16.-
Section 17.-
Section 18.-
Section 19.-
■Survival of Actions.
-Personal Actions.
-Real and Mixed Actions.
- Petitions for Partition.
■Applications for a Jury.
- Suits in Equity.
■Insanity.
-Death or Removal of a Public Officer.
Actions which
survive.
1805, 99, § 2.
1S22, 110, § 1.
1828, 112.
1834, 2.
R. S. 14, §66;
93, § 7.
1842, 89, § 1.
G. S. 17, § 58;
127, § 1.
SURVIVAL OF ACTIONS.
Section 1. In addition to the actions which survive by the com- 1
mon law, the following shall also survive : actions of replevin, tort 2
for assault, battery, imprisonment or other damage to the person, 3
for goods taken and carried away or converted, or for damage to real 4
or personal property, and actions against sheriffs for the misconduct 5
or negligence of themselves or their deputies. 6
P. S. 25, § 10; 165, § 1.
1 Pick. 71.
4 Cush. 408.
106 Mass. 145.
115 Mass. 346, 552.
121 Mass. 550.
123 Mass. 254.
125 Mass. 166.
132 Mass. 359.
143 Mass. 280, 301.
147 Mass. 471.
173 Mass. 212.
Action for
causing death.
1897, 416.
1898, 565.
11 Allen, 34.
155 Mass. 176.
Section 2. If a person or corporation by his or its negligence, 1
or by the gross negligence of his or its agents or servants while en- 2
gaged in his or its business, causes the death of a person who is in 3
the exercise of due care and not in his or its employment or service, 4
he or it shall be liable in damages in the sum of not less than five 5
hundred nor more than five thousand dollars to be assessed with 6
reference to the degree of his or its culpability or of that of his 7
or its agents or servants, to be recovered in an action of tort, com- 8
menced within one year after the injury which caused the death, by 9
the executor or administrator of the deceased, one-half thereof to 10
the use of the widow and one-half to the use of the children of the 11
Chap. 171.] survival of actions. 1545
12 deceased ; or, if there are no children, the whole to the use of the
13 widow ; or, if there is no widow, the whole to the use of the next
14 of kin.
PERSONAL ACTIONS.
1 Section 3. An action of replevin or tort by or against an offi- Death of
oniCGr not to
2 cer for personal property attached by him and claimed or taken by abate action.
3 another person shall not be abated by the death of either party, but g*. s'. 127, § 2!
4 may be prosecuted by or against the executor or administrator of the p* s' 165' § 2"
5 deceased.
1 Section 4. If judgment in such case is rendered for the execu- judgment for
2 tor or administrator of the officer, the property or money recovered txecutorfltc.
3 shall be disposed of in the same manner as it ought to have been by l'.S-90' §§97'
4 the officer if he had recovered the same ; but if judgment is rendered p'f'ieHIl't
5 against such executor or administrator, the property shall be re-
6 turned or delivered or the damages recovered shall be paid in full
7 by him, if there is sufficient property therefor, although the estate
S of the deceased is insolvent.
1 Section 5. If the sole plaintiff or defendant in a personal action, Death of sole
2 the cause of which survives, dies before the entry thereof or of an defendant7
3 appeal from a judgment rendered therein, the action or appeal may 17I71I,' it, §' 1."
4 be entered and his death suggested upon the record. After the 598|i2'§10;
5 entry of such action or appeal and of the suggestion of his death ip|, 86.
6 as aforesaid, his executor or administrator may, within such time g. s." 127, §§ 5-7.
7 as the court or trial justice allows, appear and prosecute or defend 133 Mass. m. '
8 in the same manner as if the action had been commenced by or
9 against him. If he does not voluntarily appear the court or trial
10 justice before whom the action is pending shall, upon motion of the
11 surviving party, cite him to appear and prosecute or defend it.
1 Section 6. Such citation shall be returnable at such time as the citation.
2 court or trial justice may order and shall be served fourteen days b. s.93, §4.
3 at least before the return day ; but it shall not issue after the ex- lsre.'m' § 8'
4 piration of two years from the time such executor or administrator S"iuen,22i.'9'
5 has given bond, if he has given the notice of his appointment as re-
6 quired by law.
1 Section 7. If the executor or administrator does not appear on Nonsuit or
2 the return of the citation or within such further time as the court or i72f*V§ 3.
3 trial justice allows, he shall be nonsuited or defaulted and judg- n^t^tu^.
4 ment rendered against him in like manner as if the action had been g- |; i!7)§f§\6-
5 commenced by or against him in his said capacity, except that he ™-g 165' §§1q
6 shall not be personally liable for costs ; but the estate of the deceased 11.
• • 136 Mass 251.
7 in his hands shall be liable for the costs, as well as for the debt or
S damages recovered.
1 Section 8. If any of several plaintiffs or defendants in a per- Death of joint
2 sonal action, the cause of which survives, dies before final judgment, R.asn93,'§§ 12,
3 the action may be prosecuted by the surviving plaintiff or against ™; S- 127> §§ llf
4 the surviving defendant, as the case may be. If all the plaintiffs or 12-
1546
SURVIVAL OF ACTIONS.
[Chap. 171.
p. s. 165, §§ 12, defendants die, the action may be prosecuted or defended by or 5
against the executor or administrator of the last surviving plaintiff 6
or defendant, respectively. 133 Mass. 409. 166 Mass. 476. les Mass. 415. 7
4 Pick. 308,
7 Pick. 62.
9 Pick. 527.
119 Mass. 361.
Prosecution
of real and
mixed actions
by devisee or
heir.
1826, 70, § 1.
R. S. 93, § 14.
1851, 233, § 72.
1852, 312, § 55.
G. S. 127, § 13.
P. S. 165, § 14.
17 Pick. 103.
10 Met. 294.
1 Cush. 395.
REAL, AND MIXED ACTIONS.
Section 9. If, in a real or mixed action, the demandant dies 1
before final judgment, his heir or devisee of the land demanded or 2
of the right of action may, within such time as the court allows, 3
appear and prosecute the action in the same manner as if com- 4
menced by him. If the first estate in possession under a devise is 5
not a fee simple, the devisee of the first freehold estate in pos- 6
session may appear and prosecute, and the judgment, if in his favor, 7
shall be conformed to his title. 8
8 Gray, 154. 12 Gray, 317. 13 Gray, 272. 152 Mass. 257.
— jointly with
survivors.
1826, 70, § 1.
R. S. 93, § 15.
G. S. 127, § 14.
P. S. 165, § 15.
10 Mass. 180.
Section 10. If any of several demandants dies before final 1
judgment, his heir or devisee shall be admitted, upon motion, to 2
prosecute the action jointly with the survivors, in the same manner 3
as if he had been originally a party thereto, n Mass. 56. 155 Mass. 46i. 4
— by survivor
alone.
1826, 70, § 1.
R. S. 93, § 16.
G. S. 127, § 15.
P. S. 165, § 16.
Section 11. If the interest of the deceased party passes to the 1
surviving demandants, or if there is no motion for the admission of 2
an heir or devisee at the sitting when the death of the deceased party 3
is suggested or within such further time as the court allows, the 4
surviving demandants may prosecute the action for so much of the 5
land in question as may then be claimed by them. 6
Death of
tenant.
1826, 70, § 2.
R. S. 93, § 17.
1855, 364.
G. S. 127, §§ 16,
17.
P. S. 165, §§ 17,
18.
2 Mass. 479.
2 Pick. 23.
19 Pick. 243.
Section 12. If the tenant dies before final judgment, his heir or 1
devisee of the land demanded may, within such time as the court 2
allows, appear and defend the action, which shall be conducted 3
in the same manner as if commenced against him. If the heir or 4
devisee does not voluntarily appear, the court before whom the 5
action is pending shall, upon the application of the demandant, cite 6
such heir or devisee to appear and defend the action. If any of 7
several tenants in such action dies before final judgment, the action 8
may be prosecuted against the surviving tenants for so much of the 9
land as they hold or claim. 10
petitions for partition.
paCrtit?on°r Section 13. The provisions of the four preceding sections shall 1
lH' to §3 aPPty t° petitions for partition of land, in case of the death of any 2
?• s' ?3'L'§i8. of the parties, except as provided in the two following sections. 3
P. S. 165, § 20. 2 Mass. 479. 10 Mass. 5. 136 Mass. 126.
G. S. 127, § 18.
Exception.
R. S. 93, § 19.
G. S. 127, § 19.
P. S. 165, § 21.
Section 14. If upon the death of one of several such petition- 1
ers his interest passes to the surviving petitioners or to any person 2
admitted to join them in the petition, it shall be prosecuted in 3
the manner provided relative to a real action ; but if the interest of 4
the deceased party passes to a person not so admitted, such person 5
may, by order of the court, be made a respondent, and the same 6
proceedings may be had against him as would have been necessary 7
to make him an original respondent. 8
Chap. 172.] actions by and against executors, etc. 1547
1 Section 15. If, upon the death of any of several respondents, Further excep.
2 his interest passes to the surviving respondents, the action may k°sb'93, § 20.
3 proceed against them without any new process ; but if his interest f; f ; HI] f H;
4 passes to any other person, such person may be made a respondent
5 in the manner provided in the preceding section.
APPLICATIONS FOR A JURY.
1 Section 16. If a person who is entitled to petition the superior Death 01 per.
2 court or the county commissioners for a jury, either to assess dam- to^ury^etc!
3 ages or to hear and determine any other matter, dies without filing of l.2^, § 21.
4 such petition within the time limited therefor, his executor, admin- ^'9 Mass. nl'
5 istrator, heir or devisee, if interested, may, within one year after
6 his interest vests, file such petition in the same manner and with the
7 same effect as if filed by the deceased in his lifetime.
suits in equity.
1 Section 17. If a party to a suit in equity dies and the cause by —of party
2 the rules of equity may be revived against or in favor of an executor, m™k.
3 administrator, heir, devisee or other person, such representative 12 Gratis.9'
4 may, in lieu of proceedings to revive the same, appear or be sum- ^Mass!
5 moned to prosecute or defend in like manner as in an action at law.
insanity.
1 Section 18. If, during the pendency of an action or suit, either insanity.
2 party becomes insane, it may be prosecuted or defended by his guar- g'. s! i27,§§"23.
3 dian in like manner as if it had been commenced after the appoint- ^Mass5'4i22.5'
4 ment of the guardian, or the court may appoint a guardian for the | Alien 4!ii.
5 action, as the case may require.
DEATH OR REMOVAL OF A PUBLIC OFFICER.
1 Section 19. An action on a note, bond, contract or other Death or re-
2 liability made to or with the treasurer and receiver general, or of a puilnc officer,
3 county, city, town, parish or other corporation, or to or with any 1*97,14.
4 other public officer or trustee appointed under a statute, may, after ||" f-iafiooftW
5 his removal, resignation or death, be commenced or, if before com- g- f ■ J)", § 24.
' O ' ••ii r.b. loo, § «>•
6 menced, may be prosecuted by his successor, as it might have been ?2^?ss-4t2k
7 by the person with whom the contract was made. 6Cush.23o. 2 Met. 47.
166.
547.
CHAPTEE 172.
OF ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
1 Section 1 . An action which would have survived if commenced £c*|°^8„^„,
2 by or against the original party in his lifetime may be commenced gr^etc. 8
3 and prosecuted by or against his executor or administrator. g'. s'. 12k, § i.
1 Section 2. If an action of tort is commenced or prosecuted Damages in
2 against the executor or administrator of the person originally liable, R. s. 93, § 9.
1548
ACTIONS BY AND AGAINST EXECUTOES, ETC. [CHAP. 172.
p.' I." He'll." the plaintiff shall recover only for the value of the goods taken, or 3
!73Ma's8182i'> *or tne damage actually sustained, without vindictive or exemplary 4
damages, or damages for any alleged outrage to the feelings of the 5
injured party. 6
Becovery by
executor, etc..
in right of
another.
1822, 110, § 2,
E. S. 93, § 10.
G. S. 128, § 3.
P. S. 166, § 3.
Section 3. If the executor or administrator of a trustee, carrier, 1
depositary or other person who claimed only a special property in 2
goods which he held for the use and benefit of another recovers 3
such goods, or damages for the taking or detention thereof, in an 4
action of replevin or tort, the goods or money recovered shall not 5
be assets in his hands, but shall, after the deduction of the costs 6
and expenses of the action, be paid over and delivered to the per- 7
son for whose use and benefit they were so held or claimed by the 8
deceased. 9
Property
returned on
replevin by
executor, etc.
1822, 110, § 3.
E. S. 93, § 11.
G. S. 12S, § 4.
P. S. 166, § 4.
Section 4. If judgment for a return in an action of replevin is 1
rendered against an executor or administrator, the property returned 2
by him shall not be assets in his hands ; and if it has been included 3
in the inventory, the executor or administrator shall be allowed 4
therefor in his account if he shows that it has been returned in 5
pursuance of such judgment. 6
Writs against
executors, etc.
1703-1, 12, § 4.
1783, 32, § 9.
E. S. 110, § 1.
G. S. 128, § 5.
P. S. 166, § 5.
Section 5. Writs of attachment and executions against execu- 1
tors or administrators for debts due from the testator or intestate 2
shall run only against the goods and estate of the deceased in their 3
hands, and not against their bodies, goods or estate. 4
3 Mass. 193. 140 Mass. 66. 151 Mass. 503.
Costs.
E. S. 110, §§ 2,
3, 5.
G. S. 128, §§ 6,
7,9.
P. S. 166, §§ 6,
7 9.
16 Mass. 530.
136 Mass. 249,
294.
Section 6. If a judgment for costs is rendered against an ex- 1
ecutor or administrator in an action commenced by or against him, 2
or in an action commenced by or against the testator or intestate, 3
wherein the executor or administrator has appeared and taken upon 4
himself the prosecution or defence, he shall be personally liable for 5
the costs, and the execution shall be awarded against his body, goods 6
and estate, as if it were for his own debt. Costs paid by him shall 7
be allowed in his account unless the probate court determines that 8
the action was prosecuted or defended without reasonable cause. 9
Two execu-
tions.
E. S. 110, § 4.
G. S. 128, $ 8.
P. S. 166, § 8.
120 Mass. 516.
136 Mass. 249,
294.
143 Mass. 187.
Section 7. If the judgment is for debt or damages and costs, 1
an execution for the debt or damages shall be awarded against the 2
goods and estate of the deceased in the hands of the executor or 3
administrator, and another execution for the costs against the goods, 4
estate and body of the executor or administrator, as if it were for his 5
own debt. 6
Scire facias
against execu-
tor, etc.
1703-4, 12, § 4.
1783, 32, § 9.
1819, 157.
E. S. 110, § 6.
G. S. 128, § 10.
P. S. 166, § 10.
140 Mass. 66.
142 Mass. 229.
144 Mass. 23S.
Section 8. Upon the return unsatisfied of an execution against 1
an executor or administrator for a debt due from the estate of the 2
deceased, the court may, upon a suggestion by the creditor of waste, 3
issue a writ of scire facias against the executor or administrator. 4
If the defendant does not appear and show sufficient cause to the 5
contrary, he shall be found guilty of waste and shall be personally 6
liable for the amount thereof, if it can be ascertained, otherwise 7
for the amount due on the original judgment, with interest from the 8
Chap. 173.] pleading and peactice. 1549
9 time when it was rendered ; and judgment and execution shall be
10 awarded as for his own debt.
1 Section 9. If an executor or administrator dies or is removed utor^ete exec"
2 from office during the pendency of an action to which he is a party, j^W '
3 it may be prosecuted by or against the administrator de bonis non 1812, 165, § 1.
. • 1817 190 § 18
4 in like manner as if commenced by or against him; and the pro- r. s'.no', §§7," 8.
5 visions of the preceding chapter relative to the appearance or cita- 12- s- 128> §§ n>
6 tion of an administrator and relative to a nonsuit or default shall ^- s- 166> §§ n>
7 apply to such administrator de bonis non. 7 Alien, 427. 4 Mass. 611.
1 Section 10. If an executor or administrator dies or is removed ~e*Jftter ^udg*
2 after judgment has been rendered for or against him, the court may J8*?, i«5. §2.
3 issue a writ of scire facias in favor of or against the administrator de R- s. no, § 9/
4 bonis non, and a new execution may be issued in like manner as p.' s.' 166; § 13!
5 may be done in favor of or against an original executor or adminis-
6 trator, in case of the death of his testator or intestate after a judg-
7 ment rendered for or against him ; except that a judgment against
8 the first executor or administrator for costs for which he was person-
9 ally liable shall be enforced only against his executor or administra-
10 tor and not against the administrator de bonis non.
1 Section 11. If a iudgment is rendered for or against an execu- writ of error.
2 tor or administrator, a writ of error may be brought thereon by or isnl m, § is.
3 against an administrator de bonis non in like manner as it might §; |; 12s, § u.
4 have been brought by or against the executor or administrator who f Mass^en.14'
5 was party to the judgment. 7 Allen> m-
CHAPTER 173.
OF PLEADING AND PRACTICE.
Sections 1-38. — Pleading.
Sections 39-130. — Practice.
[* applies to civil actions before trial justices. See § 127.
j applies to civil actions before any police, district or municipal court. See § 126.
% applies to civil actions before any police, district or municipal court and before trial justices.
See § 125.
§ applies to real and mixed actions. See § 124.
|| applies to the municipal court of the city of Boston. See § 128.]
PLEADING.
Division of Personal Actions.
1 % Section 1 . There shall be only three divisions of personal ^tlons118 0l
2 actions : — 1851> 23^ § ?■
-- wv^v/iiu • 1852 812 6 1
3 First, Contract, which shall include actions formerly known as g. s.129, § i.
4 assumpsit, covenant and debt, except actions for penalties. 12 Gray'.W
5 Second, Tort, which shall include actions formerly known as iiomTs's5^.
6 trespass, trespass on the case, trover and actions for penalties. 144 Mais' Isf"
7 Third, Eeplevin. ' 177 Mass. 562.
1550
PLEADING AND PRACTICE.
[Chap. 173.
Parties.
Joipderof + Section 2. In actions of contract for the recovery of money
plaintiffs m * ill, ...*/ ,. J
several actions, due for manual labor, two or more persons may loin in one action
1896 111 . , -, .
against the same defendant, although such claims are not joint, if
the claim of no one of such plaintiffs exceeds twenty dollars ; and
each plaintiff so joining may recover the amount which is found to
be due to him solely. The claim of each plaintiff shall be stated in
a separate count, and the court may make such order for the trial of
the issues as may be most convenient, may enter separate judg-
ments, issue one or more executions and make such order relative
to costs as the case requires.
— of defend-
ants severally
liable on writ-
ten contracts.
1851, 233, § 3.
1852, 312, § 3.
G. S. 129, § 4.
P. S. 167, § 4.
16 Gray, 473.
13 Allen, 19,
217.
118 Mass. 380.
119 Mass. 361.
133 Mass. 409.
160 Mass. 418.
166 Mass. 37.
% Section 3 . All or any of the persons who are severally liable
upon contracts in writing, including bills of exchange and prom-
issory notes, may be joined in one action. The declaration may
contain one count only, describing the several contracts, if the
same contract was made by all ; or different counts, describing
the different contracts, if, as in the case of maker and indbrser,
the same contract was not made by all. The court shall make
such order for the separate trial of the issues as may be convenient,
and shall enter several judgments according to the several con-
tracts and issue one or more executions.
1
2
3
4
5
6
7
8
9
10
1
2
3
4
5
6
7
8
9
10
1897, 402.
Action by t Section 4. The assignee of a non-negotiable legal chose in 1
assignee of ~ o ° . . .
^ose^in action, action which has been assigned in writing may maintain an action 2
thereon in his own name, but subject to all defences and rights 3
of counter-claim, recoupment or set-off to which the defendant 4
would have been entitled had the action been brought in the name 5
of the assignor. 6
Same subject.
1878, 158.
P. S. 133, § 5.
% Section 5 . An action for the recovery of an outstanding debt 1
or claim which has been sold or assigned by an executor or admin- 2
istrator under a license of the probate court to sell or assign any 3
outstanding debts or claims shall be brought in the name of the pur- 4
chaser or assignee. The fact of the sale shall be set forth in the 5
writ or declaration, and the defendant may avail himself of any 6
defence which would have been open to him upon an action brought 7
by the executor or administrator. Costs shall be recovered by or 8
against the plaintiff, but not against the executor or administrator. 9
Such action, if brought upon a promissory note signed in the 10
presence of an attesting witness, shall not be barred by the provi- 11
sions of chapter two hundred and two, if the action could have been 12
maintained by the executor or administrator. 13
Form of de-
claring at law.
1851, 233, § 2.
1852, 312, § 2.
G. S. 129, § 2.
P. S. 167, § 2.
Substantive
facts required.
4 Gray, 446.
8 Gray, 589.
Declarations.
X Section 6. A declaration in a personal action shall conform 1
to the following requirements : — 2
First, It shall state to which division of actions specified in sec- 3
tion one the action belongs. 4
Second, It shall state concisely and with substantial certainty 5
the substantive facts necessary to constitute the cause of action. 6
10 Gray, 361.
15Grav, 249.
1 Allen, 521.
6 Allen, 410.
8 Allen, 309.
9 Allen, 358.
10 Allen, 326.
102 Mass. 58.
121 Mass. 346.
123 Mass. 583.
153 Mass. 380.
OHAP. 173.] PLEADING AND PRACTICE. 1551
7 Third, It need not aver a fact which is not required by law to 105 Mass. 71.
0 u J ' 112 Mass. 237.
8 be proved. 117 Mass. 195. 137 Mass. 119.
9 Fourth, It need not contain more than one count for each cause one count for
10 of action ; but any number of breaches may be assigned in each Iny\CumbCTbol
11 count and, if the nature of the case requires it, breaches may be 9Anen!S557.
12 assigned in the alternative. Two causes of action which arise on i|| Mass' 303'
13 different contracts shall not be embraced in one count except in the wo Mass. 201.
14 count on an account annexed.
15 Fifth, It may contain any number of counts for different causes Joinder of
16 of action which belong to the same division of actions. i52Mass. 133.
17 Sixth, Actions of contract and actions of tort shall not be —of causes of
18 joined; but if it is doubtful to which division a cause of action 7CGr0ay, 562.
19 belongs, a count in contract may be joined with a count in tort, io2Mass.2439.
20 with an averment that both are for one and the same cause of action. 107Mass. 369.
124 Mass. 50. 125 Mass. 477. 142 Mass. 129.
21 Seventh, The common counts shall not be used unitedly, but common
•/ ' counts
22 any one of them may be used if the natural import of its terms 7 Gray, 187.
23 correctly describes the cause of action. r y'
24 Eighth, A count on an account annexed may be used in an Account
25 action of contract if one or more items are claimed any of which 7 Gray.'ik, 190.
26 would be correctly described by any one of the common counts 99 Mass.' l23'
27 according to the natural import of its terms.
106 Mass. 430. Ill Mass. 390. 127 Mass. 546.
28 Ninth, Interest accruing as damages for the detention of money interest.
29 or otherwise may be declared on, in addition to other forms of
30 pleading authorized by law, by including in any count which is fol-
31 lowed by an account annexed or bill of particulars the words
32 " and interest", and by stating in the account annexed or bill of
33 particulars the time and amount for and upon which interest is
34 claimed and the amount of interest so claimed.
35 Tenth, Written instruments, except policies of insurance, shall nTents^ow*™1"
36 be declared on by setting out a copy or such part as is relied on, £ Grayed32sn'
37 or the legal effect thereof, with proper averments to describe the f1<^ay'4^-
38 cause of action. If the whole contract is not set out, a copy or 14 Gray,' 129.
39 the original, as the court may direct, shall be filed upon motion s Aiien/355.'
40 of the defendant. If it is necessary and the court so orders, io3Mass.446.'
41 the copy so filed shall be part of the record as if oyer had been 138 Ma88, 15L
42 granted of a deed declared on according to the common law.
43 No profert or excuse therefor need be inserted in a declaration.
44 If the instrument relied on is lost or destroyed, or if it is not
45 within the control of the party who relies on it, the substance
46 thereof, as nearly as may be, and the reason why a copy is not
47 given shall be stated.
48 Eleventh, The condition of a bond or other conditional obliga- Bonds, etc.
49 tion, contract or grant which is declared on shall be set forth. The 1T1 Ma98' 352'
50 breaches relied on shall be assigned, and the performance of con-
51 ditions precedent to the right of the plaintiff to maintain his ac-
52 tion shall be averred or his reason for the non-performance thereof
53 stated.
1 § Section 7 . Declarations in real actions which are founded on in real actions
2 mortgage titles shall allege the seisin to be " in mortgage." m^mfl%e.'
1852, 312, § 2. P. S. 167, § 3. 103 Mass. 479.
G. S. 129, § 3. 14 Gray, 109. 131 Mass. 179.
1552
PLEADING AND PRACTICE.
[Chap. 173.
description of t Section 8. In actions of tort for breaking and entering; the 1
plaintiff's Close + „, , t i /> ,i ii i , 1 n i i • &
in tort, etc. plaintiff's close, the place ol the alleged trespass shall be designated 2
<f.3s."M9, § §". in the declaration by name, boundaries or other sufficient description. 3
P. S. 167, § 6.
13 Met. 109.
97 Mass. 419.
152 Mass. 532.
157 Mass. 474.
Declaration
need not be in
writ, unless,
etc
1851, 233, § 7.
1852, 312, § 7.
G. S. 129, § 7.
1862, 20, §§ 1, 3.
P. S. 167, § 7.
1 Allen, 273.
9 Allen, 257.
X Section 9. In actions of contract or tort, unless an arrest of 1
the person is made or except as provided in section thirty-nine of 2
chapter one hundred and sixty-seven, the writ need not contain a 3
declaration nor any description of the cause of action in which it is 4
intended to declare except the name of the division thereof; but 5
if in such actions in police, district or municipal courts or before 6
trial justices the declaration is not inserted before the service of 7
the writ, the defendant shall, upon motion, be entitled as of right 8
to a continuance for at least seven days after the return day. 9
— to be filed
first day of
court.
1851, 233, § 8.
1852, 312, § 8.
1854, 440, § 1.
G. S. 129, § 8.
1862, 20, § 2.
P. S. 167, § 8.
1894, 405.
7 Gray, 409.
167 Mass. 472.
X § Section 10. The declaration, unless it has been inserted in 1
the writ, may be filed in the clerk's office, or in the office of the 2
justice of a police or district court which has no clerk, on or before 3
the return day of the writ, or it may be filed with a trial justice at 4
the time and place at which the writ is returnable. If, in an action 5
in which there has been an attachment of property, the declaration 6
and bill of particulars, when such bill is necessary, have not been 7
inserted in the writ, a copy thereof shall be furnished to the defend- 8
ant or his attorney within three days after a demand in writing 9
therefor upon the plaintiff or his attorney. 10
Non-entry and
late entry.
1697, 8, § 1.
1727-8, 10, § 2.
1732-3, 6, § 2.
1738-9, 4, § 2.
1742-3, 13, § 2.
1783, 42, § 1.
R. S. 85, § 10.
1851, 233, § 13.
1852, 312, § 9.
1854, 440, § 1.
G. S. 120, § 12;
129, § 9.
P. S. 155, § 23;
167, § 9.
X § Section 11. If the plaintiff fails to enter his writ, or if he 1
fails either to insert a declaration in the writ or to file it in the 2
clerk's office on or before the return day of the writ, or if he fails to 3
furnish to the defendant a copy thereof pursuant to the provisions 4
of the preceding section, the action ma}7 at any time, upon motion of 5
the defendant, be dismissed with costs ; but courts, excluding trial 6
justices, may upon terms allow the plaintiff, at any time before the 7
next regular return day, to enter his writ and to file his declaration. 8
1885, 384, § 6.
1893, 396, § 19.
1894, 405.
I Gray, 446.
9 Allen, 257.
II Allen, 527.
110 Mass. 56.
123 Mass. 318.
136 Mass. 423.
153 Mass. 104.
160 Mass. 24.
167 Mass. 472.
Bill of particu-
lars.
1851, 233, § 4.
1852, 312, $ 4.
G. S. 129, § 10.
P. S. 167, § 10.
12 Gray, 222.
X Section 12. If one of the common counts is used, the plain- 1
tiff shall file a bill of particulars with his writ when it is entered. 2
The items in such bill shall be numbered consecutively, and the 3
bill shall be a part of the declaration and be answered as such. 4
1 Allen, 273. 100 Mass. 152. 105 Mass. 21.
Demurrers.
1851, 233, § 30.
1852, 312, § 20.
G. S. 129, § 24.
P. S. 167, § 25.
138 Mass. 441.
Demurrers.
f Section 13. Either party may demur to the pleadings of the 1
adverse party, but no mere defects of form in the declaration or in 2
the subsequent pleadings shall be assigned as causes for demurrer. 3
If the adverse party does not amend the pleadings demurred to, he 4
shall be held to have joined in demurrer. 5
thldecuratfon. t Section 14. The defendant may demur to the declaration or 1
1I2' 111 ! n ^° one or more counts therein, and shall assign specifically the causes
G. S. 129, § 11.
P. S. 167, § 11.
of demurrer.
122 Mass. 163.
6 Allen, 417. 11 Allen, 283. 97 Mass. 30. 112 Mass. 90.
144 Mass. 523. 151 Mass. 573. 163 Mass. 402.
Chap. 173.] pleading and practice. 1553
1 | Section 15. The plaintiff may demur to the answer or to so Demurrer to
2 much thereof as applies to one or more counts in the declaration, lsfi^HTso.
3 and shall assign specifically the causes of demurrer. G5'l3ili,§§224.
P. S. 167, § 25. 6 Allen, 407. 97 Mass. 502. 124 Mass. 364.
1 | § Section 16. Demurrers may be for the following as well as causes for de-
2,i murrer.
other causes : — 1852, 312, §§ 21, 30. i851) 233, §§ 31,
G. S. 129, § 12. P. S. 167, § 12. 13 Gray, 64. 8 Allen, 356. 40.
3 First, That a count in contract and a count in tort, or that a 12 cush. 483.
4 count in the plaintiff's own right and a count in some representative 156Mass-262-
5 capacity, are improperly joined in the declaration ; or that a decla-
6 ration in contract or in tort is inserted in a writ of replevin.
7 Second, That the declaration or some count thereof does not 112 Mass. 237.
8 state a legal cause of action substantially in accordance with the
9 rules contained in this chapter.
10 Third, That the answer does not state a legal defence to the 6Aiien,406.
11 declaration or to some count thereof substantially in accordance
12 with the rules contained in this chapter.
13 The demurrer shall point out specifically the particulars in which f6eGraya1i25
14 the alleged defect consists, and the attorney, if any, shall certify | ^iilS'sil'
15 upon the demurrer that he is of opinion that there is such probable 100 Mass. 195.
109 Mass 481
16 ground in law therefor as to make it a fit subject for judicial inquiry 114 Mass! 487!
17 and trial and that it is not intended merely for delay.
1 f § Section 17. If a demurrer has been sustained, overruled or Pleading after
2 withdrawn , the court shall make an order relative to the filing of an llsT,1^^ 33.
3 answer or replication or a trial of the facts. (ff|. 3m,\*k.
P. S. 167, § 67. 7 Gray, 427. 2 Allen, 130. 163 Mass. 402.
Answers, Replications, etc.
1 | Section 18. A defence to a real, personal or mixed action, Answer in
2 which formerly might have been made by plea in abatement, may i85ai,e233,n§37.
3 be made by answer in abatement. Gfl.wl.^Yi
P. S. 167, § 13. 11 Allen, 149. 105 Mass. 208. 150 Mass. 550.
12 Met. 266. 12 Allen, 134. 121 Mass. 597. 163 Mass. 262.
1 f Section 19. If an answer in abatement is overruled on Answering
2 demurrer, or if, in consequence of such answer in abatement, the i85i%33, § 39.
3 plaintiff amends, the defendant, within such time as the court g?I\ mI, §u.
4 orders, shall in a personal action answer, and in a real or mixed p- s. 167, § 14.
5 action plead, to the merits.
1 f Section 20. In personal actions, the defendant shall file an Answer or
2 answer to the declaration. In real and mixed actions, he may plead ?83^?273,T£e'
3 the general issue, and may give in evidence thereunder all matters 1I2; 312! § 12!
4 which he might formerly have pleaded in bar. G- s- 129> § 15-
P. S. 167, §§ 15, 90. 1893, 396, § 23. 19 Pick. 455. 123 Mass. 187.
1886, 64. 1894, 431. 6 Gray, 107. 132 Mass. 110.
1 * Section 21. In actions before trial justices, the defendant may Answers
2 answer in writing or may orally deny the right of the plaintiff to justices"3
3 maintain his action. In the latter case, an entry shall be made on g. i. i2o,§§ ik
4 the record that the defendant appears and denies the plaintiff's right gkrayfaei?7"
5 to maintain his action and puts himself on trial, or in words to that £ Alien, 25.
. „ -l ' 98 Mass. 528.
6 enect.
1554
PLEADING AND PRACTICE.
[Chap. 173.
y85\233*T2i: t § Section 22. Two or more defendants who make the same 1
(f5| 3i229 §§"i36 defence may answer or plead jointly. Different consistent defences 2
p. s. 167^ § i6. maj be separately stated in the same answer or plea. 3
11 Gray, 15. 3 Allen, 73.
Pleadings on
appeal.
K. S. 85, § 12.
G. S. 120, § 28.
P. S. 155, § 35.
1893, 396, § 32.
1 Met. 309.
6 Allen, 25.
126 Mass. 399.
128 Mass. 603.
134 Mass. 377.
X Section 23. A case which is taken to the superior court upon 1
appeal from the judgment of a police, district or municipal court 2
or trial justice may be there tried upon the issue joined below ; 3
or the superior court may order the defendant to answer or plead 4
in the usual manner, and the case shall then be tried upon such issue 5
as may be joined therein. 177 Mass. 397. 6
Answer in bar.
1851, 233, § 22.
1852, 312, § 14.
G. S. 129, § 17.
P. S. 167, § 17.
5 Gray, 457, 541.
4 Allen, 577.
5 Allen, 300, 599.
6 Allen, 10.
7 Allen, 61.
f Section 24. The answer shall deny in clear and precise terms 1
every substantive fact which is intended to be denied in each count 2
of the declaration separately, or it shall declare the defendant's 3
ignorance of the fact, so that he can neither admit nor deny but 4
leaves the plaintiff to prove the same. 10 Alien, is, 4eo. 5
11 Allen, 523.
98 Mass. 222.
100 Mass. 216.
119 Mass. 376.
123 Mass. 574.
124 Mass. 457.
129 Mass. 50.
132 Mass. 110.
Answers to
separate items.
1851, 233, § 24.
1852, 312, § 15.
G. S. 129, § 18.
P. S. 167, § 18.
2 Gray, 521.
112 Mass. 405.
f Section 25. In answering the common counts and the count 1
on an account annexed, the defendant shall answer specifically 2
every item contained in the bill of particulars or account annexed, 3
but he may make one and the same allegation or denial relative to 4
any number of items to which such allegation or denial is applica- 5
ble, specifying the number of the items thus answered together, 6
if less than the whole. If the defendant denies that an item is 7
due or payable, or that he owes the plaintiff as alleged, he shall 8
state all the substantive grounds on which he intends to rest such 9
denial, and shall specify whether the whole or a part of such item 10
or demand is denied, and if a part only is denied, he shall specify 11
such part. 12
partfafdeniai. t Section 26. A denial by answer, affidavit or otherwise of a 1
JIS' o??'f?£- time, amount, quantity or place alleged shall declare whether it 2
1852, 312, §16. .,. -, . °. , to
g. s. 129, § 19. is applicable to every time, amount, quantity or place or not ; and 3
if not, what time, amount, quantity or place it admits. 4
Answer in
avoidance.
1851, 233, § 27.
1852, 312, § 18.
G. S. 129, § 20.
P. S. 167, § 20.
5 Gray, 541.
2 Allen, 18.
7 Allen, 141.
12 Allen, 419.
99 Mass. 194.
f Section 27. An answer shall state clearly and precisely each 1
substantive fact which is intended to be relied upon in avoidance 2
of the action, and if it sets up the statute of limitations, the 3
statute of frauds or any other legal bar, the defendant shall have 4
the benefit of such defence although the answer does not deny the 5
facts set forth in the declaration. 6
106 Mass. 51.
109 Mass. 398.
112 Mass. 387.
113 Mass. 250.
116 Mass. 547.
117 Mass. 14.
119 Mass. 187.
120 Mass. 209.
123 Mass. 572.
125 Mass. 417, 562.
128 Mass. 25.
133 Mass. 439.
135 Mass. 99.
139 Mass. 110.
141 Mass. 587.
151 Mass. 8, 275.
Equitable
defences.
1883, 223, § 14.
140 Mass. 63.
141 Mass. 440.
149 Mass. 275.
150 Mass. 27.
§ Section 28. The defendant may allege in defence any facts 1
which would entitle him in equity to be absolutely and uncon- 2
ditionally relieved against the plaintiff's claim or cause of action 3
or against a judgment recovered by the plaintiff in such action. 4
154 Mass. 389. 158 Mass. 313. 170 Mass. 526.
Written instru-
ments, how
pleaded.
X Section 29. Written instruments which are relied on in an 1
answer or in a subsequent pleading shall be set out, or copies or 2
Chap. 173.] pleading and practice. 1555
3 the originals shall be filed, in the manner provided for declaring; issi, 233, § 2.
1852 SI** S 2
4 thereon in the tenth clause of section six. g. s. 129, § 21.
P. S. 167, § 22. 11 Gray, 179. 171 Mass. 492.
1 t Section 30. If a conditional obligation, contract or grant is conditional
2 relied on in an answer or subsequent pleading, the condition shall etc.^how118'
3 be considered a part of the instrument, and similar averments shall ^i,d233, § 2.
4 be required in pleading on the same as are required by the eleventh (ffi.3^,! 22.
5 clause of section six. p. s.i67,§23.
1 f Section 31. The plaintiff may, at any time before trial, file ^li2c3a3ti?no8
2 a replication to the answer, clearly and specifically stating any facts 29. '
• ' 1852 312 S 19
3 in reply to new matter therein ; but, except as hereinafter provided, g. s. 129, §23.
4 no further pleading shall be required after the answer. Any new FAn/nJm4'
5 matter in avoidance of the action which the answer contains shall loVMaTs.fi5'
6 be considered to be denied by the plaintiff without a replication, iH Mast" 3I5'
7 unless the court, upon motion of the defendant, requires him to 177 Mass. 455.
S reply thereto, and to state what part, if any, he admits or denies.
1 § Section 32. The plaintiff may, in reply to a defence alleged fences?
2 by the defendant, allege any facts which would in equity avoid such igfi/afs §9i4'
3 defence or which would entitle the plaintiff to be absolutely and
4 unconditionally relieved in equity against such defence.
1 f Section 33. An answer or replication may allege facts which leSariTion*31
2 occur after the commencement of the action, and the court may i|>i. |||» § ||-
3 allow a supplemental declaration, answer or replication to be filed, g. s. 129, § 25.
4 alleging material facts which occurred or came to the knowledge 11 Gray,' 14.
5 of the party after the former declaration, answer or replication was 128 Mass! 254.
q filed. 162 Mass. 300.
1 | Section 34. A party may allege a fact or title alternatively, averment!6
2 declaring his belief of one alternative or the other, and his igno- issi, 233, § 35.
o i ^1 -j_ • ji ,, ,-, 1852, 312, § 25.
3 ranee whether it is the one or the other. p. s. 167, § 27. g. s. 129, § 26.
1 f Section 35. The allegations and denials of each party shall of'pieadings1.
2 be so construed by the court as to secure as far as possible sub- |Jj>i, |[|> 1 1[-
3 stantial precision and certainty and to discourage vagueness and p-f-^'ffg-
4 loose generalities. A substantive fact which is alleged with sub- 1 Gray, 450.
5 stantial precision and certainty and is not denied in clear and pre- 4 Gray,' 65, 446.
6 cise terms, shall be held to be admitted. No party shall be required BGrTy, 87.
7 to state evidence, or to disclose the means by which he intends to filler!; la!
8 prove his Case. 116 Mass. 515. 125 Mass. 534. 131 Mass. 283. 135 Mass. 99. 100 Mass. 217.
1 f § Section 36. A personal action shall be considered at issue avtc^i0°> when
2 when the pleadings are closed, and a real or mixed action, when i85i, 233, § 41.
1852 312 § 31.
3 the plea is filed. p. s. 167, §29. 122 Mass. 431. g. s.129, § 28.
Interpleader.
1 X Section 37. If, in an action at law, the defendant admits his Jnst|r|>s1fader-
2 liability, and the amount thereof is not disputed, but it appears that 152 Mass. 407.
3 such amount is claimed by the husband or wife of the plaintiff or by ies Mass'. 48.'
J ' 170 Mass. 369.
1556 PLEADING AND PKACTICE. [CHAP. 173.
any person other than the plaintiff and that the defendant has no 4
interest in the subject matter of the controversy, the court may, 5
upon the petition of the defendant, stating the names and residences 6
of all known claimants and the amount actually due from the de- 7
fendant, and after such notice as the court shall order to the plain- 8
tiff and to such claimants, order such claimants to be made defend- 9
ants, and shall thereupon hear and determine the rights of the 10
respective parties in and to said amount. The defendant may hold 11
such amount until final judgment, and shall then pay it over in ac- 12
cordance with the order of the court, or he may pay it into court to 13
await final judgment, and thereupon the action shall be discontinued 14
as to the defendant and his liability for said amount shall cease. 15
The costs of the defendant in such case shall be in the discretion of IS
the court, and may be charged upon the fund. 17
??otnel?K1oade^• t Section 38. If, in an action at law, in which property held by 1
1899, a52. it i in •• 1 1
a public warehouseman or other depositary is sought to be recov- 2
ered or the title thereto determined, it appears that such property is 3
claimed by the husband or wife of the plaintiff or by any person 4
other than the plaintiff, the court, upon the petition of the defendant, 5
stating the names and residences of all known claimants, and after 6
such notice as the court shall order to the plaintiff and to such 7
claimants, may order such claimants to be made defendants and 8
shall thereupon hear and determine the rights and interests of the 9
respective parties in and to such property, which may remain in 10
the custody of the public warehouseman or other depositary until 11
final judgment, and shall then be delivered in accordance with the 12
order of the court. 13
PRACTICE.
Indorsement of Process before Entry.
oiwfttTe^ore $ § Section 39. Original writs, writs of audita querela, writs of 1
cntLy7 § 1 sc*re fa°ias °y private persons on judgment or recognizance, writs of 2
iJ08-9,3,§i. error in civil cases, writs of and petitions for review, petitions for 3
1728-9,' i. ' partition in the superior court, petitions to establish liens on build- 4
fnoA oq K 11 •
i833| so; §§ 2,' 5. ings and land, petitions for certiorari or mandamus and bills in 5
n;S99!°§ li;10' equity, in which the plaintiff is not an inhabitant of the common- &
fi3;m, fk; wealth? shall, before the entry thereof, be indorsed by a responsible 7
o7's§ 123 § 2a- Pers0I> wno ig sucn inhabitant ; but if one of the plaintiffs is such 8
i36,§ 7jo'w6 ' an inhabitant, the process need not be so indorsed. Every indorser, 9
p. s. mi! § 24'; in case of avoidance or inability of the plaintiff, shall be liable to 10
178 S fi " 1 H7
§ 38; i9i, § i4. pay all costs which may be awarded against the plaintiff if an action 11
ltp'ici^m6' therefor is commenced within one year after the original judgment. 12
3 Met. 59. 8 Cush. 98. 1 Allen, 276. 138 Mass. 115.
8 Met. 146. 12 Gray, 190. 5 Allen, 206. 142 Mass. 141.
Indorsement of Process after Entry.
IweJSff7' % § Section 40. If a plaintiff who is not an inhabitant of the 1
p. s. i6i, §25. commonwealth has, by accident, mistake or inadvertence, failed to 2
have his writ, bill or petition indorsed as required by the preceding 3
section, the court may at any stage of the case, upon terms, allow 4
him to procure an indorser with the same effect as if the writ, bill 5
or petition had been indorsed before the entry thereof. 6
Chap. 173.] pleading and practice. 1557
1 ± § Section 41. If, after the commencement of an action, the indorser upon
2 plaintiff removes from the commonwealth, the court, upon motion of plaintiff.
3 any other party, shall, and of its own motion may, require the plain- r3s'.9o',§ ib;
4 till* to procure a responsible indorser. p. s. lei, § 30. §°^.§ 28; 112'
21 Pick. 212. 8 Cush. 98. 1 Gray, 114. 99 Mass. 460. G. S. 129, § 29.
1 J § Section 42. If an indorser removes from the commonwealth et<r™nothJr
2 or ceases to be responsible, the court may require the plaintiff to if^^ls **§ 11
3 procure a responsible indorser. 1833, 50, §3.
R. S. 90, § 12. G. S. 129, § 30. P. S. 167, § 31. 17 Mass. 222.
1 § Section 43. The supreme judicial court may require an in — in probate
2 dorser or security for the payment of costs in a probate or insolvent itjt6,8-234.c'
3 case or proceeding pending therein. p. s. 167, § 32. G' s" 129, § 3L
1 X § Section 44. If a plaintiff fails to procure an indorser ac- — if notpro-
2 cording to the order of the court, his action shall be dismissed and dismissed.
3 the defendant or other party shall recover his costs. i833'5o'§3.'
R. S. 90, § 13. G. S. 129, § 32. P. S. 167, § 33.
1 X § Section 45. The court may permit the name of an indorser —substitution
2 to be stricken out and a new and responsible indorser to be substi- 1784,28, \\I°
3 tuted. Every indorser shall be liable for costs from the commence- r. s. 90, §§ii,
4 ment of the action. g. s. 129, §33. p. s. 167, §34. 6 Mass. 494. 12-
Abatement.
1 X § Section 46. No writ, process, action, declaration or other Effect of
2 proceeding in the courts or course of justice shall be abated, arrested, ^abatement
3 quashed or reversed for any circumstantial errors or mistakes if gtlntiai^rors.
4 by it the person and case may be rightly understood by the court ; ^; £• £5-§ 2
5 or for defect or want of form only. r. s. 100, § 21. g. s. 129, § 34. iral'IsVil'
P. S. 167, § 35. 2 Cush. 491, 555. 10 Allen, 537. 108 Mass. 340. < > > S •
1 t § Section 47. If an issue of fact is found against the defend- Judgment
' 3 . . o upon issue of
2 ant upon an answer in abatement, final judgment, subject to the fact.
3 provisions of section fifty, shall be rendered against him. 1852' 312! § 28'.
f1 S 1*29 8 *?9
P. S. 167, § 40. 3 Met. 420. 125 Mass. 472. 152 Mass. 419. ' s "
24 Pick. 51. 113 Mass. 34. 128 Mass. 600. 155 Mass. 26.
Amendments.
1 i § Section 48. The court may, at any time before final iudg- Changing par-
v o ties form etc.
2 ment, except as otherwise provided, allow amendments introducing 1701-2, 5, §' 1. '
3 a necessary party, discontinuing as to a party or changing the form ilk' 70', §2.'
4 of the action, and may allow any other amendment in matter of i^ill*
5 form or substance in any process, pleading or proceeding which may w0f§§9i! 6,7! '22.
6 enable the plaintiff to sustain the action for the cause for which J||| ™> |§3j 2>
7 it was intended to be brought, or which may enable the defendant igsi", 233', § 42'.
0 , , , , , „ ° ' J 1852, 312, § 32.
o to make a legal defence. p. s. 167, § 42. g. s. 129, § 41.
3 Mass. 208. 15 Gray, 186. 115 Mass. 326. 144 Mass. 383.
4 Mass. 506. 1 Allen, 529. 122 Mass. 438. 146 Mass. 378.
16 Pick. 412, 485. 7 Allen, 489. 126 Mass. 393. 147 Mass. 312.
2 Met. 505. 8 Allen, 63. 128 Mass. 235. 148 Mass. 504.
10 Met. 525. 10 Allen, 460. 131 Mass. 407. 168 Mass. 223.
2 Cush. 12. 107 Mass. 82. 132 Mass. 194. 170 Maes. 260, 262.
10 Cush. 284. 108 Mass. 355. 135 Mass. 189. 172 Mass. 401.
12 Cush. 448. 112 Mass. 180. 139 Mass. 280. 174 Mass. 45.
12 Gray, 139. 114 Mass. 481. 143 Mass. 48. 177 Mass. 397, 404.
1558
PLEADING AND PRACTICE.
[Chap. 173.
Amendment
after demur-
rer.
1851, 233, § 30.
1852, 312, § 20.
— of answer in
abatement.
1851, 233, § 38.
1852, 312, § 28.
G. S. 129, § 40.
P. S. 167, § 41.
113 Mass. 34.
124 Mass. 81.
| Section 49. The court may allow a party to whose pleadings 1
a demurrer has been filed to amend, upon terms, within such time 2
as the court orders. g. s. 129, §24. p. s. 167, §25. 3
t § Section 50. If the defect upon which a plea or answer in
abatement is founded is capable of amendment, the court may allow
the plaintiff to amend, upon terms. The court may allow the de-
fendant to amend an answer in abatement or to answer over by
special order of the court for good cause shown, and not otherwise.
125 Mass. 472. 155 Mass. 26.
X § Section 51. If a new defendant is introduced by amend-
r33-; 100 s«2-5 men^' the plaintiff may take out against him a new writ of capias
g. s. 129, §§ 36^ and attachment or of summons in such form, and returnable at such
p." s. 167, §§ 37- time, as the court orders. Upon service and return of such new
e Alien, 350. writ, like proceedings may be had as if the person named therein
had been originally made a party.
Joinder of new
defendants.
Amendments
changing
actions at law
into suits in
equity, and
vice versa.
1865, 179, §§ 1, 2.
P. S. 167, § 43.
1883, 223, § 17.
101 Mass. 378.
133 Mass. 536.
168 Mass. 72.
170 Mass. 526.
— after judg-
ment.
1701-2, 5, § 1.
1784, 28, § 14.
R. S. 100, § 23.
G. S. 129, § 42.
P. S. 167, § 44.
3 Cush. 11.
10 Allen, 537.
§ Section 52. The supreme judicial court or the superior court
may, at any time before final judgment, and upon terms, allow
amendments changing an action at law into a suit in equity, or a
suit in equity into an action at law, if it is necessary to enable the
plaintiff to sustain the action or suit for the cause for which it was
intended to be brought. The court in which the amendment is
allowed shall retain jurisdiction of the cause as amended.
$ § Section 53. The court in which a judgment has been ren-
dered, or to which it has been removed by writ of error, may, if
justice so requires and the amendment is in affirmance of the judg-
ment, allow formal defects or imperfections in the record or pro-
ceedings to be corrected or amended. 104 Mass. 364. niMass. 160.
1
2
3
4
5
1
2
3
4
5
6
1
2
3
4
5
6
7
1
2
3
4
5
Defaults.
C. L. 87, § 6.
1701-2, 5, § 2.
1784, 28, §§ 6, 7.
R. S. 85, §9; 92,
§§1,2; 97, §2.
1851, 233, §§ 14,
17.
1852, 312, §§ 10,
11.
G. S. 120, § 11;
129, §§43-45;
133, §§ 1, 2.
1870, 68.
P. S. 155, § 22;
167, §§45-47;
171, §§ 1, 2.
1885, 384, §§ 7,
10, 11.
1893, 396, § 19.
1894, 431.
6 Mass. 4.
14 Pick. 92.
13 Gray, 459.
99 Mass. 404.
145 Mass. 18.
157 Mass. 417.
168 Mass. 297.
Defaults.
X § Section 54. If the defendant in an action commenced in the 1
supreme judicial court or the superior court, having been duly 2
served with process, fails to enter an appearance in writing within 3
ten days after the return day of the writ, his default shall be 4
recorded, and after the expiration of four days from such default, 5
the plaintiff may have judgment entered by order of the court or 6
by the clerk as of course without any further order. Upon a de- 7
fault at any stage of the proceedings in an action pending in said 8
courts, the damages shall, upon motion of either party, be assessed 9
by a jury. If the defendant in an action commenced in a police, 10
district or municipal court or before a trial justice, having been duly 11
served with process, fails to appear or answer thereto, his default 12
shall be recorded and judgment shall be rendered for the plaintiff 13
with costs. Courts may, for good cause shown, extend the time for 14
entering an appearance, and may, in their discretion and upon terms, 15
take off a default at any time before judgment. 16
Advancing
actions for
speedy trial.
1874, 248, § 3.
1875, 212, § 2.
Advancing Causes for Speedy Trial.
Section 55. If, in an action in which the plaintiff seeks merely 1
to recover a debt or a liquidated demand, with or without interest, 2
the defendant has appeared, the plaintiff may, within twenty days 3
Chap. 173.] pleading and practice. 1559
4 after the expiration of the time allowed to the defendant for filing p. s. 167, § 48.
5 an answer, file an affidavit verifying the cause of action and stating 117 MasB- 334-
6 that in his belief there is no defence thereto, and thereupon the clerk
7 shall issue an order requiring the defendant to show cause why judg-
8 ment should not be given for the plaintiff. The plaintiff shall
9 immediately give notice in writing to the defendant of such order,
10 and unless the defendant, within seven days after such notice, or
11 within such further time as the court may allow, consents to a de-
12 fault and to judgment for the amount demanded, or unless he dis-
13 closes, by affidavit or in such other manner as the court may order,
14 such facts as the court finds entitle him to defend, the court, shall ad-
15 vance such action for speedy trial ; but if, upon a hearing under such
16 order and notice, the court does not so advance the action, it may
17 in its discretion award the defendant reasonable costs. The court
18 shall require the defendant to disclose specifically and clearly the
19 substantive facts upon which he relies.
Claim of Trial by Jury.
1 § Section 56. A separate list of cases which are to be tried ci^L^dial'h0W
2 by a jury shall be kept in the supreme judicial court and the su- ^5f-^ i3,-
3 perior court, and no action shall be entered thereon unless a different g. s. 129, § 66;
133 § 3
4 provision is elsewhere expressly made, or unless a party, before lsji, 24s, §1.
5 issue joined, or within ten days after the time allowed for the filing p.'l'. 167, §e»;
6 of the answer or plea, or within ten days after the answer or plea Imf^-j.
7 has by consent of the plaintiff or by permission of the court been gf? Mass- 354«
8 filed, or within such time after the parties are at issue as the court JfJ^ass'ils*
9 mav bv general or special order direct, files a notice that he desires ieo siass.' 370!
t/ •/ o i. 7 ]f}g Mass. 21
10 a trial by jury ; but in a case in which damages are demanded, the 170 Mass." 1.'
11 court may of its own motion refer the assessment thereof to a jury.
Interrogatories.
1 % § Section 57. The plaintiff, after the entry of the action, and g^88-
2 the defendant, after answer, or in a real or mixed action, after plea, M^ffi § 98;
3 and before the opening of the trial oh the merits, may file in the 1852, 312, §§ 6i,
4 clerk's office or in the office of a justice who has no clerk, or with a g.'s. 129, §§46,
5 trial justice, interrogatories to the adverse party for the discovery of p.'s. 167, §§ 49,
6 facts and documents material to the support or defence of the action. !3Gray, 558.
15 Gray, 545. 100 Mass. 320. 107 Mass. 113. 128 Mass. 293. u Gray> 484-
3 Allen, 110. 104 Mass. 27. Ill Mass. 154. 155 Mass. 433.
5 Allen, 109. 106 Mass. 338. 127 Mass. 226. 163 Mass. 481.
1 X § Section 58. An affidavit of the interrogating party or of flexed"0 be
2 his attorney that he has reason to believe that the interrogating i||i. |||» § i<w.
3 party will derive some material benefit in the action from the dis- g. s. 129, § 47.
4 covery which he seeks, if the discovery is fairly made, and that it 2 Gray, hm.
5 is not sought for the purpose of delay, shall be annexed to such UGT&?>m-
6 interrogatories.
1 % § Section 59. Interrogatories shall be answered, and the an- Answers.
2 swers shall be filed in the clerk's office, within ten days after notice 325*'§ a8' § 101;
3 of the filing thereof has been given to the party interrogated or to gof2' 312' §§ 63'
4 his attorney, unless, upon cause shown either before or after the g. s. 129, §§ 4s,
5 expiration of said ten days, further time is allowed by the court. 1^. s. 167, §§ 51,
1560
PLEADING AND PRACTICE.
[Chap. 173.
V'gv^1 215 158' Answers to interrogatories filed before a police, district or munici-
128 Mass. 293.
136 Mass. 386. .
or trial justices shall respectively order.
pal court or trial justice shall be filed within such time as such courts
6
7
8
X § Section 60. Each interrogatory shall be answered separately
and fully. The answers shall be in writing, under oath, and shall
Form and
contents of
answers.
loi.' ' 'be signed by the party interrogated, who may introduce into his
6?'. ' answer any matter relevant to the issue to which the interrogatory
G.S.129,§§49, relateg>
51
P. S. 167, §§ 52, 54.
13 Allen, 329.
3 Gray, 220.
109 Mass. 209.
8 Gray, 520.
125 Mass. 572.
1
2
3
4
5
X § Section 61. If a corporation is a party to an action, the
Examination
of corporate
officers. adverse party may examine the president, treasurer, clerk or a
g. s. 129, § 50. director, manager or superintendent or other officer thereof as if he
P. S. 167, § 53.
lob Mass. 320." were a party.
109 Mass. 212.
171 Mass. 417.
1
2
3
Protection of
immaterial
matter.
1851, 233, § 105.
1852, 312, § 68.
G. S. 129, § 52.
P. S. 167, § 55.
8 Gray, 529.
X § Section 62. If a document, book, voucher or other writing 1
called for by an interrogatory contains matters not pertinent to 2
the subject of the action, the answer may state such fact and that 3
such part has been sealed up or otherwise protected from exam- 4
ination ; and thereupon such part shall not be inspected by the 5
interrogating party, but he may apply to the court and obtain 6
an order to inspect the part so protected from examination, or 7
so much thereof as the court, upon a hearing, or if necessary, by 8
its own inspection, shall find to have been improperly withheld 9
and concealed. 10
Privileges of
party interro-
gated.
1851, 233, § 106.
1652, 312, § 69.
G. S. 129, § 53.
P. S. 167, § 56.
2 Grav, 558.
3 Allen, 110.
5 Allen, 109.
104 Mass. 27.
X § Section 63. The party interrogated shall not be obliged to 1
answer a question or produce a document if it would tend to criminate 2
him, or to disclose his title to any property the title whereof is 3
not material to the trial of the action in the course of which he is 4
interrogated, or to disclose the names of the witnesses by whom, or 5
the manner in which, he proposes to prove his own case. 6
Irrelevant
matter to be
expunaed.
1851, 233, § 107.
1852, 312, § 70.
G. S. 129, § 54.
P. S. 167, § 57.
139 Mass. 98.
X § Section 64. If an answer contains irrelevant matter, or if it 1
is not full and clear, or if an interrogatory is not answered, and the 2
party interrogated refuses to expunge or amend, or to answer a 3
particular interrogatory, the court or a justice thereof may, upon 4
motion, order such irrelevant matter to be expunged, or such imper- 5
feet answer to be made full and clear, or such interrogatory to be 6
answered, within such time as it may order. 7
Costs upon
irrelevant
answer.
1851, 233, § 108.
1852, 312, § 71.
G. S. 129, § 55.
P. S. 167, § 58.
X § Section 65. If an answer is adjudged irrelevant or insuffi- 1
cient, or if a party is ordered to answer an interrogatory, such 2
order may be made respecting costs, either in the action or other- 3
wise, as the court may direct by general rules or by a special order 4
in each case. 5
Refusal to
answer, etc.
1851, 233, § 109.
1852, 312, § 72.
G. S. 129, § 56.
X § Section 66. If a party neglects or refuses to expunge, 1
amend or answer according to the requirements of this chapter, the 2
court may enter a nonsuit or default. 3
P. S. 167, § 59.
8 Gray, 529.
14 Allen, 9.
127 Mass. 226.
128 Mass. 293.
136 Mass. 291.
139 Mass. 98.
Chap. 173.] pleading and practice. 1561
1 X § Section 67. If the court finds that due diligence has been interroga-
2 used, it may allow interrogatories, with an affidavit stating the rea- trfaf.8 durmg
3 son why they were not filed earlier, to be filed during the trial of jf^) |f|' 1 I41'
4 an action. They shall be answered forthwith or with as little de- p.f^'leo"
5 lay as practicable, and the court may suspend the trial for the ^| Mass* 1^"
6 purpose of having them answered. 136 Mass. 291. 139 Mass. 9s.
Interlocutory Orders.
1 X Section 68. The court may in all cases order either party to statement of
2 file a statement of such particulars as may be necessary to give to uon or defence.
3 the adverse party and to the court reasonable knowledge of the \Hl] 312' § t
4 nature and grounds of the action or defence. p.' I.' 167' | ei'
3 Gray, 266. 11 Allen, 283. 129 Mass. 366.
1 || § Section 69. Orders allowing amendments before trial, or orders, etc.,
2 allowing a supplemental declaration, answer or replication, or en- ?rriai,awheny t0
3 larging time, or any other interlocutory order which is necessary 1851^233, § 45.
4 to prepare the case for trial, may be made by the court or by Jf5! ^ i3^
5 a justice thereof, in any county ; but the several courts shall make jf6""> si-
6 such rules relative to notice, the times and places for motions at 12s iiass. 296.'
7 chambers and other matters, as they shall from time to time find
8 necessary.
Agreements of Parties.
1 || 5 Section 70. Parties may make agreements relative to amend- £sreement,8,;
-ii • f r>T -i • 1 i ti 1 • 1851, 233, § 46.
2 ments and the time 01 filing papers, which shall be equivalent to an 1852, 312, §§ 36,
3 order of the court to the same effect. Any order mentioned in the g.' s. 129, §§ &>,
4 preceding section may be entered by consent in writing signed by p.' s. 167, §§ 63,
5 the parties or their attorneys ; but all agreements of attorneys rel- fallen, 45.
6 ative to an action or proceeding shall be in writing ; otherwise they \^ f^- ||":
7 shall be of no validity. 1.% Mass.' 598.'
1 || § Section 71. If the parties agree to continue a case with- continuances
2 out costs until the next sitting, it shall be continued accordinglv ; 1852, 312, § 88.
3 but the court may by a general or special order regulate the place p.' s.' 167,' § 64.'
4 on the docket in which the case shall stand at the next sitting.
Offer of Judgment.
1 X Section 72. If the defendant in an action at law or a suit in offer of judg-
2 equity, wherein damages only are sought to be recovered, offers in "sl^o, § 1.
3 court and by a writing consents to be defaulted, and to have judg- wi'^'iP'
4 ment rendered against him as damages for an amount therein speci- ^v8';1."?' "36;
5 fied, the writing and the time when it was filed shall be entered of 1893, 396, § 20.
' o 1894 431
6 record; and if the plaintiff within ten days, or such further time 97Mass.'i48.
7 as the court shall allow, after receipt of notice thereof accepts such 165 Mass52ds.
8 offer, the court shall render judgment accordingly, with costs to
9 the date of the notice. Such judgment rendered by a police,
10 district or municipal court or trial justice shall be final.
1 % Section 73. If the plaintiff does not elect to accept such offer, costs to de-
2 and does not recover as damages an amount, excluding interest from non-accept-
ance.
1562
PLEADING AND PRACTICE.
[Chap. 173.
1852, 140, § 2.
G. S. 129, § 63.
P. S. 167, § 66.
97 Mass. 148.
102 Mass. 122.
136 Mass. 359.
148 Mass. 592.
Jury waived
cases and de-
murrers, how
heard.
1851, 233, § 33.
1852, 312, § 23.
G. S. 129, § 64.
1874, 248, § 1.
the date of the offer, larger than the amount so offered by the de- 3
fendant, he shall have judgment for his costs only to the date of the 4
offer, and the defendant shall have judgment for his costs after said 5
date. 6
Hearings, Trial, Evidence.
§ Section 74. Actions in which neither party has filed notice 1
that he desires a trial by jury shall, unless otherwise expressly pro- 2
vided, be heard and determined by the court. Demurrers may in 3
the first instance be heard by one justice. p. s. 167, §§ 67, 69. 4
4 Gray, 62.
10 Gray, 501.
115 Mass. 129.
124 Mass. 227.
132 Mass. 354, 356.
135 Mass. 28, 591.
156 Mass. 88.
170 Mass. 1.
173 Mass. 382.
Frivolous or
immaterial
demurrers.
1851, 233, § 33.
1852, 312, § 23.
G. S. 129, § 65.
P. S. 167, § 68.
4 Gray, 62.
110 Mass. 498.
§ Section 75. If a demurrer is overruled because, it appears to 1
the justice who hears it to be frivolous, immaterial or intended for 2
delay, the case shall proceed to judgment as if no demurrer had 3
been filed, and execution may be awarded or stayed upon terms. 4
If execution is not awarded, any security which has been taken shall 5
stand as if no judgment had been entered until an order is made for 6
final judgment. 7
Decisions on
answers in
abatement,
etc., final.
1840, 87, § 4.
1851, 233, § 33.
1852, 312, § 23.
§ Section 76. Decisions of one justice upon questions raised 1
upon an answer or plea in abatement, upon a motion to dismiss for 2
defect of form of process or upon a demurrer for misjoinder of 3
counts shall be final. 1855, 449, § 5. 1859, 196, § 27. 4
G. S. 115, § 7;
P. S. 153, §8;
150 Mass. 550.
168 Mass. 303.
129, § 64.
167, § 67.
156 Mass. 522.
170 Mass. 569.
1880, 118.
115 Mass. 129.
160 Mass. 256.
175 Mass. 187.
Postponement
of actions on
trial list.
1884, 304.
1890, 154.
§ Section 77. If the parties to an action upon the trial list at a 1
sitting of the superior court file an agreement in writing that such 2
action shall be marked for trial not before a certain day in the same 3
or the succeeding sitting, the action shall, if reached in its order 4
upon said trial list before such day, be postponed thereto, and 5
shall be placed upon the list of actions in order for trial on such day 6
next after the cases, if any, which were on the list for the preceding 7
court day ; but, if it is in order for trial and is reached for trial on 8
the day upon which the agreement is filed, it shall not be postponed 9
except by order of the court. If two or more actions are so post- 10
poned to the same day, they shall be placed upon the trial list for 11
that day in the order in which the agreements for their postpone- 12
ment were filed. Instead of so postponing a case, the parties may, 13
by a writing filed with the clerk, or orally in his presence, agree 14
that the action be passed, and thereupon it may be temporarily 15
stricken from the list, and may be restored thereto on such day 1<>
as the parties shall, by a writing filed with the clerk, agree, or 17
after three days' notice in writing given by either party to the 18
other. 19
Trials not to be
delayed or
postponed, etc.
1851, 233, §§ 28,
29, 102.
1852, 312, §§ 19,
64, 88.
G. S. 129, §§ 68,
69.
% § Section 78. A trial shall not be delayed for want of a reply 1
to the defendant's answer, nor because interrogatories have been 2
filed and the time for answering them has not expired, unless by 3
special order of the court ; nor shall an agreement of parties relative 4
to filing amendments or papers operate to postpone the trial of an 5
Chap. 173.] pleading and practice. 1563
6 action beyond the time at which, by the rules of the court, it would *• s- 167> §§ 71>
7 be tried.
1 § Section 79. The trial of questions of fact shall proceed al- emitter r0"
2 though exceptions have been filed and allowed therein, and such exce^t£Cns°f
3 further proceedings shall be had as the court orders ; but judgment J804- ™5> § «>•
4 shall not be entered unless the exceptions are adjudged immaterial, i82o!79,§5.'
5 frivolous or intended for delay. 33'; k, §13. '
1859, 196, § 28. G. S. 115, § 9. P. S. 153, § 11. 110 Mass. 497.
1 § Section 80. The courts shall not charge juries with respect 3pahctggfo8rbfdt0
2 to matters of fact, but they may state the testimony and the law. d,en-
107 Mass. 329. 139 Mass. 164. 152 Mass. 12. 162 Mass. 242. P." S.' 153,' § 5.'
123 Mass. 248. 140 Mass. 473. 153 Mass. 177. 165 Mass. 153.
1 § Section 81. An attorney of record who is actually engaged Engagements
2 in the trial of a cause in the supreme judicial court or in the supe- ^tt^iej6-
3 rior court, or before an auditor who has been appointed by either wool 418, § 2.
4 of said courts, shall not be required to proceed to the trial of any
5 other cause in either of said courts or before another auditor except
6 by special order of the court.
1 § Section 82. In counties which contain two or more shire Place of trial.
2 towns, the supreme judicial court or the superior court, at the '
3 sitting held on or next after the return day on which an action is
4 entered, may designate the shire town in which it shall be tried,
5 and it shall not then be put on the trial list for sittings held in
6 any other shire town of that county except by agreement of the
7 parties.
1 § Section 83. During the trial of a case in which an official ofwunesses?
2 stenographer takes stenographic notes of the evidence no other 1885> 291> § 5-
3 person shall interrupt the examination of witnesses for the purpose
4 of taking notes of their testimony.
1 || Section 84. If the plaintiff fails to introduce evidence at the counts not
2 trial in support of a count in the declaration, it shall, if not wholly stockenout. e
3 or partly admitted by the answer, be stricken out ; and the court \^l] fff* f l\
4 may, either of its own motion or upon motion of a party, require ^; f.' if?' 1 74.*
5 unnecessary counts and statements to be stricken out of the plead- gQ™y'589-
6 ings, and may impose terms. 3 Alien, 471.
1 t§ Section 85. Pleadings shall not be evidence on the trial, fvf!en?f.s not
2' but the allegations therein shall bind the partv who makes them. ^f-}^>^}h
° A •> 1851, 233, § 112.
P. S. 167, § 75. 108 Mass. 101. 124 Mass. 364. 173 Mass. 433. 1852, 312, § 75.
13 Allen, 460. 109 Mass. 66. 140 Mass. 250. 176 Mass. 363. G. S. 129, § 72.
1 % Section 86. A signature to a written instrument which is Signatures ad-
2 declared on or set forth as a cause of action or as a ground of de- PnuinenessSis
3 fence or set-off, shall be taken as admitted unless the party sought f^us.
4 to be charged thereby files in court, within the same length of time f cush/re! 21*
5 after such instrument is pleaded as is allowed for an answer, a spe- i^iass1^
6 cific denial of the genuineness thereof and a demand that it shall be 129 Mass. 596.
© ^33 Mass. 356.
7 proved at the trial. 136 Mass. 248. 138 Mass. 347. 146 Mass. 378.
1564
PLEADING AND PRACTICE.
[Chap. 173.
Unaccepted
offer of judg.
ment.
1852, 140, § 3.
G. S. 129, § 73.
P. S. 167, § 76.
| § Section 87. An offer or consent which is made in pursuance 1
of sections seventy -two and seventy-three and which is not accepted 2
shall not be evidence against the party who makes it, either in a sub- 3
sequent proceeding in the action or suit in which it is made or in 4
another action or suit. 5
inteiTogltories t § Section 88. The answer of a party to interrogatories filed
trial be read at may ^e reac^ ky the other party as evidence at the trial. The party
1851,233, § no. interrogated may require that the whole of the answers upon any
one subject-matter 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 examination or of the fact that he has been ex-
amined.
X § Section 89. If 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
1852, 312,
§73.
G. S. 129,
§74.
P. S. 167,
§77.
109 Mass
, 209.
176 Mass
.363.
One matter in
answer not evi-
dence of
an-
other.
1826, 107,
§2.
R. S. 100,
§18.
1851, 233,
§112.
Justification in
slander not
proof of
malice.
1826, 107,
§2.
R. S. 100,
§19.
G. S. 129,
§76.
Truth of libel
admissible.
1355, 396.
G. S. 129,
§77.
P. S. 167,
§80.
124 Mass
.338.
127 Mass
. 320.
Retraction of
libel.
1895, 441.
1897, 525,
11.
trial of an issue joined on any other of them.
1852, 312, § 75. G. S. 129, § 75.
P. S. 167, § 78.
$ Section 90. If the defendant in an action for slander or for
publishing a libel justifies that the words spoken or published were
true, such allegation, although not maintained by the evidence, shall
not of itself be proof of the malice alleged in the declaration.
P. S. 167, § 79. 15 Mass. 48. 1 Pick. 1.
I Section 91. The defendant in an action for writing or for pub-
lishing a libel may introduce in evidence the truth of the matter
contained in the publication charged as libellous ; and the truth
shall be a justification unless actual malice is proved.
133 Mass. 471. 151 Mass. 127. 176 Mass. 270.
I Section 92. If, in an action for libel, the defendant, before
the answer is required to be filed therein, gives notice in writing to
the plaintiff or to his attorney of his intention to publish a retraction
of the libel, accompanied by a copy of the retraction which he in-
tends to publish, he ma}r prove such publication in mitigation of
damages. If, upon such notice, the plaintiff does not accept the offer
of retraction, the defendant may prove in mitigation of damages his
offer to publish such retraction and that the offer was not accepted,
and that the alleged libel was published in good faith and without
actual malice ; and unless the plaintiff proves actual malice or want
of good faith, or a failure either to retract or offer to retract as
aforesaid, he shall recover damages only for the actual injury sus-
tained ; but in no action of libel shall exemplary or punitive dam-
ages be allowed.
1
2
3
4
5
6
7
1
2
3
4
1
2
3
4
1
2
3
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Evidence of
other damages.
1897, 525, § 2".
1901, 322.
X Section 93. In an action for libel, the defendant may allege 1
and prove in mitigation of damages that the plaintiff has already 2
recovered damages for, or has received or has agreed to receive 3
compensation in respect of, substantially the same libel as that for 4
which such action was brought. In an action for libel or slander, 5
he may introduce in evidence, in mitigation of damages and in re- 6
Chap. 173.] pleading and practice. 1565
7 buttal of evidence of actual malice, acts of the plaintiff which create
8 a reasonable suspicion that the matters charged against him by the
9 defendant are true.
1 Section 94. If two or more actions for substantially the same consolidation
2 libel, brought by the same plaintiff, are pending, either in the same m,eLtlons for
3 or in different counties, any justice of the court in which the actions 1897>525> §3-
4 are pending may in his discretion make an order that some or all
5 of them be tried together. A separate verdict, or, if the action is
6 tried without a jury, a separate finding, shall be rendered in each
7 action, and judgment shall be rendered in each as if it had been
8 tried separately. If the plaintiff recovers judgment in two or more
9 actions, the court shall make an order for the apportionment of
10 costs between the defendants.
1 f Section 95. In an action upon a judgment obtained by de- Evidence of
2 fault and without the knowledge of the defendant, brought within six Ef actfon' onC''
3 years after the rendition thereof, the court may, in its discretion, d" fa^t.nt by
4 and upon terms, allow the defendant to show in defence any pay- (f 5| \8|y §78
5 ment, satisfaction or extinguishment of the claim, prior to the ob- ^■|J]167'|781-
6 taining of such judgment, or any matter of fraud, which in either
7 case he might have shown upon a writ of review in the original suit.
Appeals to the Full Court.
1 Section 96. A party who is aggrieved by a judgment of the Appeal to fun
2 superior court upon a demurrer which alleges that the facts stated is2of 79, § 4.
3 in the pleadings demurred to do not in law support or answer if |'. s^Imo.
4 the action, if such pleadings are not amended, or a party who is iHf' Ja! S L
5 aggrieved by any other judgment founded upon matter of law i^'lls5! 33s'
6 apparent on the record in any proceeding, except a judgment ren- 1852) 312! § 23!
-. -. . ° V ° -.. '-. 1855 449 §§5 6
7 dered upon an answer in abatement or upon a motion to dismiss i859|i9M§26,'
8 for defect of form of process or except a judgment rendered by three g! s. 114, § 10;
9 justices under the provisions of section five of chapter one hundred p9s?i52, §10;
10 and fifty-seven, may appeal therefrom to the supreme judicial court. iH^I7/ §2
11 An issue of law joined in the superior court shall not be waived by if99^^' 393
12 consent of parties after such appeal has been entered in the su- 99 Mass.' 634."
. -1 . . . 106 Mass 343
13 preme judicial court, but that court may, for good cause, allow 116 Mass! 223!
14 the parties to withdraw or amend their pleadings, and, if they 121 Mass.' 402.
15 result in an issue of fact, the case shall be remanded to the superior il Mail! 25I!
16 court for trial; but no execution shall issue upon the judgment if* Mali! 572!
17 appealed from, unless the appeal is waived, until the case shall have ^0 Mass. 550.
-1 r» i it -i/» • t "it -lOo JM3SS. bt
18 been so remanded. An appeal from a judgment rendered upon a 156 Mass. 34s,
19 demurrer or upon a case stated shall be claimed within thirty days 157'Mass. 386.
20 after the entry of such judgment. 160 Mass. 415. 170 Mass. 569.
Appeals to the Superior Court.
1 % Section 97. A party who is aggrieved by the judgment of a —to superior
2 police, district or municipal court or trial justice in a civil action, \m%, §1.
3 except a judgment rendered in accordance with the provisions of ill!; 11; 1 2!
4 section forty-two of chapter one hundred and sixty, may, within j[3k7805 Vis;
5 twenty-four hours after the entrv of the judgment, appeal there- fM^-L1^!.!8,
r> il 1 ii • , ti JO » i± . {j. is. lib, § St,
b from to the superior court. In such case, no execution shall issue 120, §25.
1566
PLEADING AND PRACTICE.
[Chap. 173.
1876, 196, §§ 1, 2.
P. S. 154, §39;
155, § 28.
1885, 384, § 5.
1S93, 396, § 24.
1894, 431.
Appeal bond.
1862, 217, § 6.
1877, 236, § 1.
1878, 188, § 2.
P. S. 154, §52;
155, § 29.
1882, 95.
1893, 396, § 25.
1894, 431.
1896, 355.
133 Mass. 464.
136 Mass. 560.
137 Mass. 581.
140 Mass. 235.
141 Mass. 154,
218
142Mass. 186.
143 Mass. 76.
146 Mass. 324.
150 Mass. 115,
on the judgment appealed from. The case shall be entered in the 7
superior court for the same county at the return day next after the S
appeal has been taken and shall be there tried and determined as 9
if it had been originally commenced there. 10
11 Cush. 80.
1 Gray, 600.
2 Gray, 555.
9 Gray, 49.
12 Gray, 430.
13 Allen, 78.
125 Mass. 49.
139 Mass. 126.
165 Mass. 238.
171 Mass. 292, 444.
172 Mass. 37.
174 Mass. 327.
t Section 98. No appeal, other than an appeal by a county,
city, town or other municipal corporation, from a judgment of a
police, district or municipal court in any civil action or proceeding,
except an action of summary process under the provisions of chap-
ter one hundred and eighty-one, shall be allowed, except as pro-
vided in sections one hundred and one hundred and one, unless the
appellant, within twenty-four hours after the entry of judgment, or
within such further time as the justice or clerk for cause shown may
allow, files a bond executed by him or by his attorney of record on
his behalf, payable to the appellee in such reasonable sum and with
such surety or sureties as may be approved by the appellee or by
the justice or clerk, conditioned to enter and prosecute his appeal
with effect, and to satisfy any judgment for costs which may be en-
tered against him in the superior court upon said appeal within
thirty days after the entry thereof.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
Appellant to
recognize.
1697,8, §1.
1783. 42, § 6.
R. S. 85, § 14.
G. S. 120, § 26.
1877, 236, § 1.
P. S. 155, § 29.
1896, 355.
5 Allen, 388.
7 Allen, 198.
133 Mass. 464.
136 Mass. 560.
143 Mass.
423.
145 Mass. 537.
76,
* Section 99. No appeal other than an appeal by a county, 1
city, town or other municipal corporation, from a judgment of a 2
trial justice in any civil action or proceeding, except an action of 3
summary process under the provisions of chapter one hundred and 4
eighty-one, shall be allowed, except as provided in the two fol- 5
lowing sections, unless the appellant, within twenty-four hours 6
after the entry of judgment, or within such further time as the 7
trial justice for cause shown may allow, recognizes to the appellee 8
with sufficient surety or sureties, who shall be approved by the ap- 9
pellee or by the justice, in a reasonable sum to be fixed by the 10
justice or approved by the appellee, conditioned to enter and prose- 11
cute his appeal with effect, and to satisfy any judgment for costs 12
which may be entered against him in the superior court upon said 13
appeal within thirty days after the entry thereof. In determining 14
the sufficiency of the sureties upon such recognizance, the justice 15
may examine upon oath the persons who are offered as sureties and 16
all other witnesses who are produced by either party. 17
1893, 396, §§ 26
28.
1894, 431.
160 Mass. 415
?/bond.inlieu $ Section 100. The appellant or any person in his behalf may, 1
p8s' i54§| 393-' ins*eaa °f filing a bond or entering into a recognizance as provided 2
155, ,§§30-32. _' in the two preceding sections, deposit with the clerk, or with the 3
justice if there is no clerk, or with the trial justice, within the time 4
required for filing a bond, a reasonable amount, to be fixed by the 5
clerk or justice or trial justice, as security for the prosecution of 6
the appeal and the payment of costs. A certificate of such deposit 7
shall be issued to the depositor by the clerk or justice or trial 8
justice, and the deposit shall be transmitted by him with the papers 9
to the clerk of the superior court, who shall thereupon deliver a 10
receipt therefor to such clerk or justice or trial justice and shall 11
hold such deposit until the final disposition of the case, when he 12
shall pay it, or any part thereof, to the appellee for his costs, or to 13
Chap. 173.] pleading and practice. 1567
14 the depositor thereof, as the court may order. The superior court
15 may give directions as to the manner of keeping such deposit.
1 X Section 101. If an appeal is claimed by the plaintiff in an No appeal
2 action of replevin, or if an appeal is claimed, or if the removal of w°hen.required'
3 an action is requested, under the provisions of section nineteen of iH2,; ioJ§§4=f"
4 chapter one hundred and sixty-one, by a defendant who has given J^-^i' §33'
5 a bond according to law to dissolve an attachment, no bond, 1^3', 396, § 29.
6 recognizance or deposit shall be required. 150 Mass. 283. 141 Mass. 154.
1 f Section 102. When an appeal is taken from a judgment of o£paS™rsSkm
2 a police, district or municipal court, the clerk or, if there is no clerk, ip|. 217, § 1.
3 the justice shall transmit to the clerk of the superior court the p. s'. 154, § 40.
4 original writ or process, all papers filed in the case, all bonds, and 1894U31'
5 a brief certificate of the proceedings, which shall be there entered l^Mass.1!^,
6 by the appellant. 138 Mass. 349. 400-
1 * Section 103. When an appeal is taken from a judgment of a Production of
2 trial justice, the appellant shall enter in the superior court a copy of appeai.on
3 the record and produce copies of all papers filed in the case, except \^ 42,5§26.
4 that when depositions or other written evidence or documents are g- 1" ilb§s127
5 so filed the originals shall be produced. p. s. 155,' § 34.
12 Cush. 133. 137 Mass. 183. 138 Mass. 349.
1 i Section 104. When such appeal is taken from the iudgment Records in
lower court of
2 of a police, district or municipal court or trial iustice, the names cases appealed.
• 18H2 217 6 2
3 of all the parties thereto, the nature of the action or proceeding, i876|6o.
4 the doings of the court thereon, the final disposition thereof and mi^E^i si'.
5 the amount of costs taxed shall be entered on the docket ; and no 1894> 43L
6 other record thereof shall be required.
Exceptions or Report.
1 § Section 105. A justice of the supreme judicial court or of the Report.
2 superior court, after verdict, or after a finding of the facts by the gPs'/iis,^2.'
3 court, and a majority of the justices of the superior court sitting for Jf^; H; | \]
4 the trial of a cause under the provisions of section five of chapter f8gf'"3\f'|£-
5 one hundred and fifty-seven, may report the case for determination i89i|227!§2.
6 by the full court. If the justice is of opinion that an interlocu- i Alien, 388.
7 tory finding or order made by him ought to be determined by the 113 Mass! 290!
8 full court before any further proceedings in the trial court, he may 310 Mass' 129,
9 report the case for that purpose and stay all further proceedings \H MasB- 49,
10 except such as are necessary to preserve the rights of the parties. 130 Mass. 443.
141 Mass. 577. 167 Mass. 473. 171 Mass. 201.
1 § Section 106. Exceptions may be alleged by any party who Exceptions.
2 is aggrieved by an opinion, ruling, direction or judgment of the ml', i05,§§55.
3 supreme judicial court or of the superior court which is rendered }|^; ]l%\5'
4 upon any matter of law in any civil cause, according to the course r3!™1'^!'-
5 of the common law or otherwise, tried by a jury or heard by the ?|40§1827'554'5
6 court, or upon a motion for a new trial, except in actions tried by isoi', 267, § 2!
7 three justices of the superior court under the provisions of section g.°s. 107, § 13;
8 five of chapter one hundred and fifty-seven and except upon an- "If.5 7; 129'
1568
PLEADING AND PEACTICE.
[Chap. 173.
1863, 180, § 2.
1879, 4.
1880, 118.
P. S. 146, § 34;
153, §§ 8, 9; 167,
§70.
1887, 332, § 4.
1391, 227, § 2.
1S95, 153, § 1.
5 Met. 287.
10 Gray, 400.
1 Allen, 275,
388, 531.
3 Allen, 212.
6 Allen, 150.
10 Allen, 248.
12 Allen, 199.
14 Allen, 495.
99 Mass. 475.
swers in abatement or motions to dismiss for defect of form of 9
process. The exceptions shall be reduced to writing and filed with 10
the clerk, and notice thereof shall be given to the adverse party, in 11
civil cases tried by a jury, within twenty days after the verdict is 12
rendered, and in cases tried without a jury, within twenty days 13
after the notice of the decision has been received, unless further 14
time is allowed by the court. The clerk, immediately on the filing 15
of the exceptions, shall present them to the court, and if, upon ex- 1&
amination thereof by the presiding justice, after hearing the parties, 17
the exceptions are found conformable to the truth, they shall be 18
allowed by him. 19
106 Mass. 51.
110 Mass. 497.
115 Mass. 129.
123 Mass. 579.
124 Mass. 353.
125 Mass. 203, 368.
128 Mass. 349.
134 Mass. 189.
141 Mass. 181.
145 Mass. 234.
147 Mass. 159.
150 Mass. 550.
151 Mass. 158.
156 Mass. 522.
159 Mass. 210.
160 Mass. 256.
167 Mass. 417.
168 Mass. 303.
170 Mass. 569.
174 Mass. 580.
Allowance of
exceptions.
1859, 196, § 27.
G. S. 115, § 8.
P. S. 153, § 10.
124 Mass. 292.
127 Mass. 161.
§ Section 107. Exceptions shall be restored to the files of the 1
court with a certificate, signed by the justice, allowing or disallow- 2
ing them. If they are not so restored within ten days after they 3
have been presented to him, the justice shall also certify the reason 4
therefor. 5
— by another
justice.
1882, 239.
1894, 412.
§ Section 108. If the justice who presides at a trial at which 1
exceptions have been taken fails, by reason of physical or mental 2
disability, death or resignation, to sign or return them, any other 3
justice of the same court may examine and allow or disallow 4
them. 5
Frivolous ex-
ceptions.
1804, 105, § 5.
R. S. 81, §29.
G. S. 115, § 10.
P. S. 153, § 12.
1891, 362.
156 Mass. 61.
§ Section 109. If the justice who presides at the trial of a civil 1
cause finds that the exceptions taken therein are immaterial, frivo- 2
lous or intended for delay, judgment may be entered and execution 3
awarded or stayed, upon terms, notwithstanding the allowance of the 4
exceptions. If execution is not awarded, any security which has 5
been taken shall stand as if no judgment had been entered until an 6
order is made for final judgment. 7
Establishment
of exceptions
disallowed.
R. S. 81, § 28.
1851, 261, §§ 1, 2.
1859, 196, § 29.
G. S. 115, § 11.
P. S. 153, § 13.
1882, 239.
1894, 412.
6 Allen, 557.
98 Mass. 34.
103 Mass. 534.
116 Mass. 432.
117 Mass. 68.
119 Mass. 417.
127 Mass. 162.
§ Section 110. If the presiding justice, or another justice of the 1
same court, under the provisions of section one hundred and eight, 2
disallows or fails to sign and return the exceptions or alters any 3
statement therein, and either party is aggrieved thereby, the truth 4
of the exceptions presented may be established before the full court 5
upon petition stating the grievance, and thereupon, the truth of the 6
exceptions being established, they shall be heard, and the same 7
proceedings taken, as if the exceptions had been duly allowed and 8
entered. The supreme judicial court shall make rules for settling 9
the truth of exceptions alleged and not allowed. 10
130 Mass. 6.
144 Mass. 71.
155 Mass. 232.
163 Mass. 536.
168 Mass. 304.
174 Mass. 253.
Transcripts of
evidence.
1895, 153, § 2.
1896, 451.
§ Section 111. The presiding justice may order the excepting 1
party in civil cases to provide him with a transcript of the evidence 2
and of the instructions to the jury, or such portion thereof as he 3
shall designate, written out by the official stenographer from his 4
notes, within such time, not less than ten days after the date of the 5
order, as the presiding justice designates. 6
Chap. 173.] pleading and peactice. 1569
New Trials.
1 § Section 112. The courts may, at any time before judgment, ^to^V
2 set aside the verdict in a civil action and order a new trial for any R- s. 82, § 19.
3 cause for which a new trial may by law be granted ; but a verdict lpl m, § 32.
4 shall not be set aside except upon a motion in writing by a party p.'s.'isf.'ff."
5 to the cause, stating the reasons relied upon in its support, filed and JTiien%39.
6 heard after notice to the adverse party according to the rules of the if^ls3^.
7 court. A verdict shall not be set aside as excessive until the pre- H ?Jass- ?Ji!-
, . . r 138 Mass. 146.
8 vailing party has first been given an opportunity to remit so much 162 Mass. 397.
9 thereof as the court adjudges is excessive.
1 § Section 113. A new trial may be granted, upon motion, for a -injury
2 mistake of law or for newly discovered evidence in a case heard by i8577267f§82.8*
3 the court. When a decision has been rendered in such a case, the fm,'l™' § 67'
4 clerk shall notify the parties, and a motion for a new trial may be ^'7f§7o3' §9;
5 filed within three days after such notice has been received or within 148 Mass- 522-
6 such further time as the court may allow.
1 § Section 114. If a new trial is refused, the court may impose Terms on re-
2 terms upon the moving party, which shall be taxed as costs. trial ° new
1876, 74. P. S. 153, § 7.
Affirmance of Judgment upon Non-Entry of Appeal or Exceptions.
1 § Section 115. If an appellant or an excepting; party or if the Affirmance of
2 plaintiff in a case reported, at law, in equity or in probate proceed- court appealed
3 ings, neglects to enter the appeal, exceptions or report in the 1820/79, §§ 4, s.
4 supreme judicial court or to take the necessary measures by order- §'. I'. nfcffie.
5 ing proper copies to be prepared or otherwise for the hearing of ^-8f ■ g£0, § 16,
6 the case, or if an excepting party neglects to provide a transcript jg9!' Hi' § 2'
7 of the evidence or of the instructions to the iury within the time i9ooJ372, §i.
3 Cush 57
8 ordered by the justice under the provisions of section one hundred 150 Mass. 56, 57.
9 and eleven, the court in which the appeal was taken or by which i6i Mass! 593'.
10 the exceptions were allowed or the case reported may, upon the 177Mass-525-
11 application of the adverse party and after notice to all parties in-
12 terested, order that the appeal be dismissed, the exceptions over-
13 ruled or the report discharged, and that' the judgment, opinion,
14 ruling, order or decree appealed from, or excepted to, be affirmed.
Waiver of Appeal or Exceptions.
1 I § Section 116. A waiver in writing of an appeal or of excep- waiver of
2 tions in any case at law or in equity may be filed and acted upon in Exceptions.
3 the court in which they were taken at any time before the entry 1900' 372> § 2<
4 thereof in the appellate court.
Transmission of Papers.
1 § Section 117. Copies and papers relating to a question of law Entry of ex-
2 arising in the supreme judicial court or the superior court upon rn^awdocket.
3 appeal, exception, reservation, report or otherwise shall be pre- 27^34*44. §§26,
4 pared by the clerk of the court, and shall thereupon be transmitted n5S§i22'§33;
5 to and entered in the docket of the full court for the proper county ^4, m. ^
6 as soon as may be after such question of law has been reserved and 6 Alien, 240.
1570
PLEADING AND PRACTICE.
[Chap. 173.
nl Mass! If' ^Uty made a matter of record in the court in which the action is
lit'Mass 333 Pending. The entry thereof shall not, except in equity, transfer
133 Mass! 536! the case, but only the question to be determined. 154 Mass. 109. 9
7
8
Arrest of judg-
ment.
1851, 233, § 32.
1352, 312, § 22.
G. S. 129, § 79.
P. S. 167, § 82.
1 Gray, 172.
7 Gray, 543.
13 Gray, 392.
15 Gray, 52.
104 Mass. 373.
118 Mass. 569.
Arrest of Judgment.
% § Section 118. A judgment shall not be arrested for a cause 1
existing before the verdict, unless such cause affects the jurisdiction 2
of the court. After the defendant has appeared and answered to 3
the merits of the action, no defect in the writ or other process by 4
which he has been brought before the court, or in the service 5
thereof, shall be considered to affect the jurisdiction of the court. 6
127 Mass. 321.
144 Mass. 472.
150 Mass. 453.
162 Mass. 339.
Suggestions
entered on
record.
1826, 70.
R. S. 93, § 24.
Judgment
after excep-
tions.
1874, 248, § 2.
P. S. 153, § 14.
123 Mass. 419.
General Provisions.
\ § Section 119. The court may allow suggestions as to changes 1
which occur in an action after its commencement to be entered on 2
the record in such form as it shall approve. 3
G. S. 129, § 80. P. S. 167, § 83.
Identification
of cause of
action, amend-
ment, notice to
parties, appeal,
1851, 233, § 43.
1852, 312, § 33.
G. S. 129, § 82.
P. S. 167, § 85.
6 Cush. 513.
7 Gray, 540.
3 Allen, 528.
5 Allen, 322.
7 Allen, 202.
125 Mass. 72.
127 Mass. 599.
136 Mass. 335.
142 Mass. 124.
150 Mass. 473.
151 Mass. 454.
170 Mass. 260,
262.
§ Section 120. The justice who presides at the trial of a cause
with or without a jury, in which exceptions have been allowed,
an appeal taken or a case reported, may", upon the application of
the excepting party, of the appellant, or of either party upon a case
reported, allow the verdict or judgment to be entered, altered or
modified, or the damages to be increased or reduced, in such manner
as the full court shall determine. In such case, the bill of excep-
tions, record or report shall state the permission given, and the full
court shall make the proper order, direction, judgment or decree for
the further disposition of the case.
X § Section 121. The cause of action shall be considered to be
the same for which the action was brought, if the court finds 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 allow-
ance by the court of an amendment shall be conclusive evidence of
the identity of the cause of action. But no subsequent attaching
creditor or purchaser of property attached or bail or any person
other than the parties to the record shall be bound by such allowance
unless he has had due notice of the application for leave to amend
and an opportunity to be heard thereon, according to an order of
notice to that effect to be issued by the court upon application of the
plaintiff, and such third parties shall have the right of exception or
appeal. 174 Mass. 362.
whenacorpora. t § Section 122. If a corporation is a party to an action or pro-
1852 ifi* § 89ty' cee(^ing under the provisions of this chapter, all precepts, answers,
g. s. 129, § 83. replications or other papers requiring the signature or oath of the
party may be signed or sworn to in behalf of the corporation by an
officer or agent thereunto specially authorized.
1
2
3
4
5
6
7
8
9
10
1
2
3
4
5
6
7
8
9
10
11
12
13
1
2
3
4
5
OTcorPoriteive t § Section 123. If it is alleged in an action at law or suit in 1
muted* unless e(luity that a party is an executor, administrator, guardian, trustee, 2
etc. ' ' assignee, conservator or receiver or is a corporation, such allegation 3
p. s. 167, § 87. shall be taken as admitted unless the party controverting it files in 4
Chap. 173.'] pleading and practice. 1571
5 court, within the time allowed for the answer thereto, or within 133 Mass. 368.
6 ten days after the filing of the paper which contains such allegation, 160Mas8-1-
7 a special demand for its proof.
1 Section 124. Sections seven, ten, eleven, sixteen, seventeen, sections appu.
2 twenty-two, twenty-eight, thirty-two, thirty-six, thirty-nine to and^xeTac-
3 forty-eight, inclusive, fifty to fifty-four, inclusive, fifty -six to sixty- %£?*' exceP*»
4 seven, inclusive, sixty-nine to seventy-one, inclusive, seventy -four jg^' 312' 1 51'
5 to seventy-seven, inclusive, so much of section seventy-eight as ^8f 'm ' § 8*'
6 relates to agreements of parties, seventy-nine to eighty-three, inclu- p- s'. 167, § 88.
_ . . , ,& ~ . , , r ' . /, . • i • 1 See §§ noted
7 sive, eighty-five, eighty-seven to eighty-nine, inclusive, one hun- thus, §.
8 dred and five to one hundred and twenty-three, inclusive, and one
9 hundred and thirty shall apply to real or mixed actions, and no
10 other sections shall so apply unless such actions are expressly
11 named therein.
1 Section 125. Sections one to six, inclusive, eight to twelve, in — tocivn
2 elusive, twenty-three, twenty-nine, thirty, thirty-seven to forty-two, poucefetof,016
3 inclusive, forty-four to forty-six, inclusive, forty-eight, fifty-one, £u>s1ices.lldtrial
4 fifty-three, fifty-four, fifty-seven to sixty-eight, inclusive, seventy- 1!^ 312' § 87
5 two, seventy-three, seventy-eight, eighty-five to ninety-three, in- ^gf^' § 8^-
6 elusive, ninety-seven, one hundred, one hundred and one, one lssi.'m.
7 hundred and four, one hundred and sixteen, one hundred and eight- i893,'396,'§23.'
8 een, one hundred and nineteen, one hundred and twenty-one to lee§§nnoted
9 one hundred and twenty -three, inclusive, and one hundred and thirty thus' *'
10 shall apply to civil actions before police, district or municipal courts
11 and trial justices.
1 Section 126. Sections thirteen to twenty, inclusive, twenty — to civil
2 two, twenty-four to twenty-seven, inclusive, thirty-one, thirty-three police,8 etc.,°re
3 to thirty-six, inclusive, forty-seven, forty-nine, fifty, ninety-five, i^f 396, § 23.
4 ninety-eight, one hundred and two, in addition to those named in fh3u:s§)V10ted
5 the preceding section shall apply to civil actions before any police,
6 district or municipal court.
1 Section 127. Sections twenty-one, ninety-nine and one hundred ^°onsVbefore
2 and three, in addition to those named in section one hundred and g^l^l0^-
3 twenty-five, shall apply to civil actions before trial justices. thus,*.
1 Section 128. Sections sixty-nine to seventy-one, inclusive, and toappfyto0118
2 eighty-four of this chapter, in addition to those named in sections {f^11 ac£ons
3 one hundred and twenty-four and one hundred and twenty-five, mcipai court
4 shall apply to civil actions before the municipal court of the city Boston.1 7 °
5 Of Boston. 1893, 396, § 23. 1894, 431, § 2. See §§ noted thus, ||. P. s'. 167, § 91.
1 Section 129. Except as provided in the four preceding sec- certain sec-
2 tions, the provisions of this chapter shall not apply to actions before appf/toao-
3 police, district or municipal courts or trial justices. poiice^eeftc!f
G. S. 129, § 85. P. S. 167, § 92. courts and trial
juS vlCCS*
Forms.
1 % § Section 130. The forms of pleadings heretofore established £™ author-
2 or used in this commonwealth may continue to be used in the i||i. ||> | ^9-
3 several courts, subject to be changed by general rules of the supreme g. s. 129, § w.
4 judicial court. '
1572
SET-OFF AND TENDER.
[Chap. 174.
CHAPTEE 174.
OF SET-OFF AND TENDER
Sections 1-11. — Set-off.
Sections 12-14. — Tender.
Set-off, when
allowed.
1730-1, 7, § 1.
1732-3, 12, § 1.
1734-5, 4.
1742-3, 19, § 1.
1784, 28, § 12.
1793, 75, § 4.
R. S. 96, §§ 1-5,
7.
G. S. 130, §§ 1-5,
7.
P. S. 168, §§ 1-5,
7.
17 Mass. 66.
SET-OFF.
Section 1. If at the commencement of an action upon a judg- 1
ment or upon a contract, express or implied, for property sold, for 2
money paid, for money had and received, for services performed 3
and for an amount which is liquidated or may be ascertained by 4
calculation, the defendant has in his own right a claim against the 5
plaintiff such as is hereinbefore mentioned or such a claim which 6
has been assigned to him with notice thereof to the plaintiff, it may 7
8
5 Pick. 223.
3 Allen, 111.
119 Mass. 397.
130 Mass. 352,
3 Met. 520.
5 Allen, 36.
122 Mass. 296.
424,436.
4 Met. 430.
9 Allen, 192.
123 Mass. 598.
131 Mass. 277.
9 Met. 341.
10 Allen, 482.
124 Mass. 395, 470.
137 Mass. 181.
11 Met. 136.
103 Mass. 557,
127 Mass. 394.
152 Mass. 108, 260.
13 Met. 132.
114 Mass. 24,
358.
129 Mass. 234.
153 Mass. 544.
— of bonds,
etc.
R. S. 96, § 6.
G. S. 130, § 6.
P. S. 168, § 6.
Section 2. If the claim which is set off is founded on a bond 1
or other contract having a penalty, no more shall be set off than 2
the amount equitably due. 4 Met. 430. 3
Several plain-
tiffs or defend-
ants.
R. S. 96, §§ 8,9.
G. S. 130, §§8,9.
P. S. 168, §§ 8, 9.
11 Mass. 140.
6 Pick. 352.
1 Met. 80.
5 Allen, 371.
105 Mass. 215.
Section 3. If there are several plaintiffs or defendants, the claim 1
set off shall be due from all of the plaintiffs jointly and to all of 2
the defendants jointly, except that in an action by or against part- 3
ners, one of whom is a dormant partner, a claim due to or from the 4
person with whom the contract was made may be set off as though 5
such dormant partner were not a party to the action. t>
168 Mass. 537. 172 Mass. 516.
daim nment of Section 4.
£• 1- 5&A1™ has notice that the claim declared on has been assigned, he shall not
(jr. O. lot), § 10. „ _, . ••-■ -•• i • i • 1
p. s. 168, § io. set on a claim against the original creditor which was acquired
12 Mass 193
195. after SUch notice. 14 Mass. 291. 129 Mass. 234. 151 Mass. 338.
If at the commencement of an action the defendant 1
2
3
4
Actions by
trustee, etc.
R. S. 96, § 11.
G. S. 130, § 11.
P. S. 168, § 11.
8 Pick. 342.
Section 5. In an action brought by one person in trust or for 1
the use or benefit of another, the defendant may set off a claim 2
against the beneficiary. 7Cush. 217. 3
125 Mass. 571.
135 Mass. 558.
— by or against
executors or
administra-
tors.
R. S. 96, §§ 12,
14, 15.
G. S. 130, §§ 12,
14, 15.
P. S. 168, §§ 12,
14, 15.
3 Pick. 452.
9 Pick. 37.
2 Met. 255.
Section 6. In an action by or against an executor, administra- 1
tor or other person in a representative capacity, the defendant may 2
set off a claim due to or from the testator, intestate or person rep- 3
resented, respectively ; but he shall not set off a claim due in his 4
own right to or from the executor, administrator or other person 5
who sues or defends in a representative capacity, nor a claim which 6
did not belong to him at the death of the testator or intestate. 7
6 Met. 537.
9 Met. 509.
4 Gray, 286.
7 Gray, 170.
11 Allen, 101.
146 Mass. 333.
151 Mass. 204.
153 Mass. 544.
Chap. 174.] set-off and tender. 1573
1 Section 7. If, upon such set-off against an executor or admin- Formof judg-
2 istrator, a balance is found due to the defendant, the judgment R^k, § 13.
3 therefor shall be in the same form and have the same effect as if f; |; ifg,' | if."
4 the action had been commenced by the defendant.
1 Section 8. If the defendant relies on a claim of set-off, he Declaration in
2 shall file a declaration in set-off which, with the subsequent plead- 1730-1,' 7, § 2.
3 ings relative thereto, shall be governed by the same rules as if an l^lfci; i9,§§22.
4 action had been brought thereon ; and the plaintiff shall be entitled ™fe ||> | f-
5 to every defence thereto, which he might have had in an action ^fg9^516'
6 against himself. After such declaration in set-off has been filed, 1851,233,* §47.
7 the plaintiff shall not discontinue his action without the consent of g. s. 13d, §§ 16,
8 the defendant.
P. S. 168, §§ 16, 17, 21. 2 Gray, 260. 5 Allen, 37. 112 Mass. 22.
3 Met. 411. 7 Gray, 194. 9 Allen, 192. 116 Mass. 284.
1 Section 9. In the supreme judicial court and the superior court, ™atf ^i&ec'
2 a declaration in set-off shall be filed with the answer. In the 1730-1, 7,' § 2.
3 municipal court of the city of Boston, it may be filed at any time 1742-3' 19, § 2.
4 during the sitting at which the writ is returnable, or within such 1793' t!', 1 12"
5 further time as the court may allow. In other municipal courts *|- s- 96> §§ 16>
6 and in police and district courts or before a trial justice, it shall ll^ ll' § 37'
7 be filed when the action is entered, or within such further time as g. s. 130, §§ 16,
8 the court or trial justice allows.
1870, 330, § 3. 1878, 170. P. S. 168, §§ 16, 22. 126 Mass. 399. 177 Mass. 397.
1 Section 10. The provisions of law relative to the limitation of imitations in
2 actions shall apply to declarations in set-off, and the time limited ij||> ja§ 4^
3 shall be computed from the commencement of the action by the r. s. 96,'§ 20';
• 120 6 19
4 plaintiff. The provisions of this section shall apply to actions g.'s. 136, §18;
5 brought by the commonwealth or for its benefit. ' '
P. S. 168, §18; 18 Pick. 521. 11 Allen, 101. 135 Mass. 558.
197, §§ 20, 21. 4 Gray, 393. 107 Mass. 285.
1 Section 11. Judgment in an action in which a declaration in judgment.
2 set-off has been filed shall be rendered in favor of the party to mtk, I' § I'.
3 whom a balance is found due for the amount of such balance, not rm^%^f^'
4 exceeding the jurisdiction of the court or trial justice, with costs. RS.96, §§21-
5 If the amounts found due to the respective parties are equal, judg- g. s 130, §§19,
6 ment shall be rendered in favor of each for such amounts and an ms, 170.
7 entry shall be made that the judgments are satisfied by the set-off, 20, 22. '
8 with costs to either party, or without costs, as the court orders. i3^Mass51447.
9 If, on the set-off in an action upon a claim assigned to the plaintiff
10 before action is brought, a balance is found due to the defendant,
11 or if a balance is found due from any person other than the plaintiff,
12 judgment shall not be rendered against the plaintiff for the balance.
TENDER.
1 Section 12. The payment or tender of payment of the whole Payment or
2 amount due on a contract for the payment of money after it is dany%rtc.fter
3 due and payable and before action is commenced shall, if pleaded, ill?' 85' §§ x' 2*
4 have the same effect as if made at the time provided in the contract. *|- s- 100> §§ 14~
5 Such payment or tender may also be made after action has been G_- s- 130> §§ w,
6 commenced and at least four days before the return day of the writ, p.'s. 168, §§ 23-
1574
WITNESSES AND EVIDENCE.
[Chap. 175.
17 Pick. 366.
11 Cush. 26.
10 Gray, 351.
11 Allen, 527.
98 Mass. 528.
130 Mass. 277.
with costs to the time of payment or tender. The tender last men- 7
tioned may be made to the plaintiff or to his attorney in the "action, 8
and, if not accepted, the defendant may avail himself of the tender 9
in defence in like manner as if made before the commencement of 10
the action, bringing into court the amount so tendered. 11
Acceptance.
1830, 85, § 2.
R. S. 100, § 17.
G. S. 130, § 26.
P. S. 168, § 26.
Section 13. If such tender is accepted, the plaintiff or his 1
attorney shall, at the request of the defendant, sign a certificate 2
or notice thereof to the officer who has the writ, and deliver it to 3
the defendant ; and if any further costs are incurred for a service 4
made by the officer after the tender and before he receives notice 5
thereof, the defendant shall pay the same to the officer, or the tender 6"
shall be invalid. 7
Land damage
and liens.
1878, 205.
P. S. 168, § 27.
Section 14. A person or corporation against whom damages 1
are claimed for taking or injuring land by authority of law, or upon 2
whose property a lien is claimed, may make a tender or an offer of 3
judgment in any proceedings relative thereto in like manner and 4
with like effect as in matters of contract ; but if an assessment of 5
damages is required before applying for a jury, no tender or offer 6
of judgment shall be made until after such assessment, nor of less 7
amount. The provisions of this section shall not apply to cases 8
under the provisions of chapter one hundred and ninety-six. 9
CHAPTER 175.
OF WITNESSES AND EVIDENCE.
Sections 1-24.
Sections 25-46.
Sections 47-64.
Sections 65-67.
Section 68.
Section 69.
Section 70.
Sections 71-78.
•Witnesses.
•Depositions.
■ Depositions to Perpetuate Testimony.
•Dying Declarations and Declarations of De-
ceased Parties.
Stenographic Transcripts.
• Evidence in Proceedings in Equity.
•Proof of Attested Instruments.
■Proof of Statutes, Laws, etc.
Witnesses,
how sum-
moned.
1701-2, 5, § 4.
1743-4, 24, § 1.
1783,42, §5; 51,
§2.
1784, 28, §§ 5, 6.
1791, 53, § 6.
R. S. 85, §38;
94, §1; 96, §28.
G. S. 131, § 1.
P. S. 169, § 1.
1884, 247.
1885, 141.
1889, 197.
1896, 476.
WITNESSES.
Section 1. A clerk of a court of record, a justice of the peace 1
or a special commissioner may issue summonses for witnesses in all 2
cases pending before courts, magistrates, auditors, referees, arbi- 3
trators or other persons authorized to examine witnesses ; but a 4
justice of the peace or special commissioner shall not issue sum- 5
monses for witnesses in criminal cases except upon the request of 6
the attorney general, district attorney or other person who acts in 7
the case in behalf of the commonwealth or of the defendant. If the 8
summons is issued at the request of the defendant that fact shall 9
be stated therein. The summons shall be in the form heretofore 10
adopted and commonly used, but may be altered from time to time 11
like other writs. 12
Chap. 175.] witnesses and evidence. 1575
1 Section 2. Such summons may be served in any county by an service of
2 officer qualified to serve civil process or by a disinterested person i826,186,n§5.
3 by exhibiting and reading it to the witness, by giving him a copy g. I'. i3i,§§22,
4 thereof or by leaving such copy at the place of his abode. p6|. wl', §1.
1 Section 3. No person shall be required to attend as a witness Tender of fees.
2 in a civil case or for the defendant in a criminal case, unless the 1701-2, 5,'§ V
3 fees allowed by law for one day's attendance and for travel to and nl^t'sff'l.1'
4 from the place where he is required to attend are paid or tendered g. Iii3i§§33
5 to him. P. S. 169, §3. 1885,141. 99 Mass. 177.
1 Section 4. If a person who has been duly summoned and re- Liability
2 quired to attend as a witness under the provisions of the preceding attending.
3 sections fails, without a sufficient excuse, to attend, he shall be 1743I4; li,§§5i.
4 liable to the aggrieved party in an action of tort for all damages *™| ^ §'&•
5 caused by such failure. p. s. 169, §4. 4Cusn.249. g. s. 131, §4.
1 Section 5. Such failure to attend as a witness before a court, Non-attend-
2 justice of the peace, master in chancery, an auditor appointed by a tempt.
3 court, or the county commissioners shall also be a contempt of the 1743^ 24, § i.
4 court, and may be punished by a fine of not more than twenty aft*. 94', §5.
5 dollars. 1838, 42. 1856, 284, §9. 1858, 93, §§ 2, 3.
G. S. 131, § 5. P. S. 169, § 5. 120 Mass. 118.
1 Section 6. The court, justice, master in chancery, auditor or warrant to
2 county commissioners may in such case issue a warrant to bring ance?61 attend"
3 such witness before them to answer for the contempt, and also to r.8!'. ^', §6*.
4 testify in the case in which he was summoned. G- s- 131> §6-
P. S. 169, § 6. 12 Cush. 320. 2 Gray, 410. 166 Mass. 124.
1 Section 7. Witnesses may be summoned to attend and testify Witness before
2 at a hearing before the executive council, or a committee thereof, council™
3 as to matters within its authority; and shall be summoned in the pfs'.i69, §9.
4 same manner, be paid the same fees and in the same manner, and
5 be subject to the same penalties for default, as witnesses before the
6 general court.
1 Section 8. Witnesses may be summoned to attend and testify -before city
2 and to produce books and papers at a hearing before a city council, officers) etc.
3 or either branch thereof, or before a joint or special committee of p6|.i69 §V.
4 the same or of either branch thereof, or before a board of select- ]Hf f^ | \-
5 men or a board of police commissioners, or a board of registrars of ^V6"7' Kh,
6 voters, or before the board of police or of election commissioners
7 for the city of Boston at any hearing before them, as to matters
8 within their authority ; and such witnesses shall be summoned
9 in the same manner, be paid the same fees and be subject to the
10 same penalties for default, as witnesses before police, district and
11 municipal courts. The presiding officer of such council, or of either
12 branch thereof, or a member of any such committee or board may
13 administer oaths to witnesses who appear before such council, or
14 either branch thereof, or any such committee or board, respectively.
1 Section 9. If a witness who has been so summoned and paid ^^fattend-
2 fails to attend in pursuance of such summons, the presiding officer ance-
1576
WITNESSES AND EVIDENCE.
[Chap. 175.
1863, 158, § 2. of such city council, or of either branch thereof, or the chairman
1882,' 26-,' §2,' of such board may issue a warrant to bring such witness before
woo, 267, §2. them, to testify in the case in which he was summoned.
3
4
5
Enforcement
of attendance
by courts.
1879, 155.
P. S. 112, § 25.
1883, 195.
1891, 140.
1901, 286.
141 Mass. 307.
175 Mass. 179.
Section 10. A justice of the supreme judicial court or of the 1
superior court, upon the application of a tribunal which is authorized 2
to summon but not to compel the attendance of witnesses and the 3
giving of testimony before it, ma}'', in his discretion, compel the at- 4
tendance of such witnesses and the giving of testimony before any 5
such tribunal, in the same manner and to the same extent as before 6
said courts. < 7
— of giving of
testimony.
1879, 155.
P. S. 112, § 25.
1898, 374.
1901, 286.
175 Mass. 179.
Section 11. A justice of the supreme judicial court or of the 1
superior court, upon the application of a magistrate or tribunal 2
which is authorized to summon and compel the attendance of wit- 3
nesses may, in his discretion, compel the giving of testimony by 4
them before such magistrate or tribunal, in the same manner and to 5
the same extent as before said courts. 6
Witnesses in
criminal cases
in adjoining
states.
1777-8, 5, § 1.
1873, 319, § 1.
1874, 150.
P. S. 169, § 10.
Section 12. A justice of the peace, upon receipt of a certificate 1
of the clerk of a court of record in the state of Maine or in a state 2
adjoining this commonwealth that a criminal prosecution is pend- 3
ing in such court, and that a resident of this commonwealth is 4
supposed to be a material witness therein, shall issue a summons 5
requiring such witness to appear and testify at the court in which 6
such case is pending. 7
Penalty.
1873, 319, § 2.
P. S. 169, § 11.
Section 13. If the person on whom such summons is served is 1
paid or tendered double the fees allowed by law for travel and at- 2
tendance of witnesses in the supreme judicial court, and double 3
travelling expenses for the whole distance out and home by the 4
ordinary travelled route, he shall, if he neglects, without good 5
cause, to attend as a witness at the court named in such summons, 6
forfeit not more than three hundred dollars. 7
tto™ofoaths. Section 14. Arbitrators, referees and auditors appointed ac- 1
g5I m 7 cording to law may administer oaths or affirmations to all persons 2
p. s.' 169,' § 12. offered as witnesses before them. 3
Mode of ad-
ministering
oaths.
1701-2, 5, § 7.
1797, 35, § 10.
E. S. 94, § 7.
G. S. 131, § 8.
Section 15. The usual mode of administering oaths now prac- 1
tised in this commonwealth, with the ceremony of holding up the 2
nand, shall be observed in all cases in which an oath may be ad- 3
ministered by law, except as hereinafter provided. 4
P. S. 169, § 13.
11 Allen, 243.
1
2
i™™e35^ioct Section 16. If a person to be sworn declares that a different
g !' i!i§§89 m°de of taking the oath is, in his opinion, more solemn and ob-
p7l2i69 Vu ligatoiy than the upholding of the hand, the path may be admin- 3
6 Mass. 262. istered in such mode. 4
nKSi?i!«. Section 17. A Friend or Quaker when called on to take an 1
i797^35l8§f iHo! oatk may solemnly and sincerely affirm under the penalties of 2
lsio; 127, § i'. "perjury. k.s.94,§9. G.s.m, §io. P.s.i69,§i5. 3
Chap. 175.] witnesses and evidence. 1577
1 Section 18. A person who declares that he has conscientious Affirmations.
2 scruples against taking an oath shall, when called upon for that itfs'.gk.uo.
3 purpose, be permitted to affirm in the manner prescribed for p." |; ifg' f k;
4 Quakers, if the court or magistrate on inquiry is satisfied of the f^Mal^^
5 truth of such declaration.
1 Section 19. A person believing in any other than the Christian Persons other
2 religion may be sworn according to the peculiar ceremonies of tlSfsfhow
3 his religion. A person not a believer in any religion shall be re- itot^.Tio-
4 quired to testify truly under the penalties of perjury; and the^l^S1^
5 evidence of his disbelief in the existence of God may be received f6|-r169,'3|17-
6 to affect his credibility as a witness.
1 Section 20. Any person of sufficient understanding, although ^Xe'sses05' °f
2 a party, may testify in any proceeding, civil or criminal, in court, ^fVf3, §97;
3 or before a person who has authority to receive evidence, except 1852, 312, § 60.
„ ,-, ^ J ' r 1856, 188.
4 as follows : 1857, 305, § 1. 1859, 230. g. s. 131, §§ 13, 14, 16.
1864, 304, § 1. 1866, 148, § 5; 260. P. S. 169, § 18.
1865, 207, § 2. 1870, 393, § 1. 142 Mass. 577.
5 First, Neither husband nor wife shall testify as to private con- 14 Gray, 186.
6 versations with each other. 145 Mass. 289. 121 Mass! 137!
152 Mass. 491. 155 Mass. 534. 162 Mass. 412. 177 Mass. 184.
7 Second, Neither husband nor wife shall be compelled to testify 162 Mass. 441.
8 in the trial of an indictment, complaint or other criminal proceed-
9 ing against the other.
10 Third, The defendant in the trial of an indictment, complaint or 97 Mass. 587.
11 other criminal proceeding shall, at his own request, but not other- no Mass! 111!
12 wise, be allowed to testify; but his neglect or refusal to testify n^ Mass! iss!
13 shall not create any presumption against him. 119 Mass. 312.
123 Mass. 239, 273. 137 Mass. 98. 163 Mass. 412. 149 U.S. 60.
130 Mass. 279. 141 Mass. 58. 175 Mass. 152.
1 Section 21. The conviction of a witness of a crime may be witness con-
2 shown to affect his credibility. victed of crIme'
R. S. 94, § 56. G. S. 131, § 13. 128 Mass. 244. 150 Mass. 108.
1851, 233, § 97. 1870, 393, § 3. 137 Mass. 77. 169 Mass. 338.
1852, 312, § 60. P. S. 169, § 19. 146 Mass. 131. 170 Mass. 14.
1 Section 22. A party who calls the adverse party as a wit- £*'£88nexfami-
2 ness shall be allowed to cross examine him. adverse party.
1870, 393, § 4. ' • P. S. 169, § 20.
1 Section 23. The provisions of the three preceding sections witnesses to a
2 shall not apply to the attesting witnesses to a will or codicil. TSl', 233, § 97.
1852, 312, § 60. G. S. 131, § 15. P. S. 169, § 21.
1857, 105, § 3. 1870, 393, § 2. 10 Allen, 153.
1 Section 24. The party who produces a witness shall not im- Party not to
2 peach his credit by evidence of bad character, but may contradict oTrawitnesl
3 him by other evidence, and may also prove that he has made at p6| ^ § 22
4 other times statements inconsistent with his present testimony ; }f® Mass. 526.
5 but before proof of such inconsistent statements is given, the cir- ^ff Ulaes" 191
6 cumstances thereof sufficient to designate the particular occasion 139 Mass! i.
~- 172 Mass 432
7 shall be mentioned to the witness, and he shall be asked if he has 176 Mass! 253!
8 made such statements, and, if so, shall be allowed to explain them.
1578
WITNESSES AND EVIDENCE.
[Chap. 175.
Depositions.
E. 8. 94, § 13.
G. S. 131, § 17.
P. S. 169, § 23.
103 Mass. 318.
DEPOSITIONS.
Section 25. Depositions may be taken as provided in this 1
chapter, to be used before courts, magistrates or other persons 2
authorized to examine witnesses, except in criminal cases. 3
170 Mass. 498.
Section 26. If a witness or party whose testimony is wanted
>r proceeding pending in this commonwealth lives
more than thirty miles from the place of trial, or is about to go
Same subject.
C. L. 158, § 2.
^95-e. 14.§§!. 2- in a civil cause or proceeding pending in this commonwealth lives
179?! 35', § l!
1857," 305, §2.' out of the commonwealth and not to return in time for the trial, or
59. ' is so ill, aged or infirm as to make it probable that he will not be
p. s. 169, §§ 24, akje £Q a^en(j at the trial, his deposition may be taken.
5 Gray, 440. 14 Gray, 130.
1
2
3
4
5
6
Notice to
adverse party.
C L. 158, § 2.
1695-6, 15, § 1.
1797, 35, § 1.
1817, 181, § 1.
R. S. 94, § 15.
G. S. 131, § 19.
P. S. 169, § 25.
1883, 252.
13 Allen, 33.
106 Mass. 338.
Section 27. After an action has been commenced by the 1
service of process, or after it has been submitted to arbitrators or 2
referees, either party may apply to a justice of the peace or 3
special commissioner who shall issue a notice to the adverse party 4
to appear before said justice or commissioner or any other justice 5
of the peace or special commissioner at the time and place appointed 6
for taking the deposition and propose interrogatories. 7
131 Mass. 88.
139 Mass. 295.
Service of
notice.
1797, 35, § 2.
R. S. 94, §§ 16,
17.
Section 28. The notice may be served on the adverse party, 1
his agent or attorney ; and if there are several plaintiffs or defend- 2
ants, on any of them. g. s. jsi, §20. p. s. 169, §26. 7 Pick. 137. 3
Manner of
service.
1695-6, 15, § 1.
1797, 35, § 2,
R. S. 94, § 18.
G. S. 131, § 21.
P. S. 169, § 27.
7 Met. 289.
11 Met. 78.
1 Allen, 343.
Section 29. The notice shall be served by delivering an at- 1
tested copy thereof to the person to be notified, or by leaving such 2
copy at his place of abode, not less than twenty-four hours before 3
the time appointed for taking the deposition, and also allowing not 4
less time than at the rate of one day, Sundays excluded, for every 5
twenty miles' travel to the place appointed. 6
Verbal notice
1817, 181, § 1
Section 30. The justice or commissioner who takes the deposi-
g I" lti^la ^on may »^ve a verDa,l instead of the written notice, or if the ad-
p- s. 169,' § 28.' verse party or his attorney in writing waives notice or if the
defendant does not enter his appearance in the action within the
time required by law, no notice shall be required.
1
2
3
4
5
Deponent, how
sworn and
examined.
Section 31.
The deponent shall be sworn or affirmed to testify 1
, , r , the truth, the whole truth and nothing but the truth, relative to the 2
r9s394§§320 cause for which the deposition is taken. He shall then be exam- 3
p' I' 169' I fi5' *ne(^ kv the justice or commissioner, and the parties if they think 4
1 Alien, 109, 475. fit, and his testimony shall be taken in writing. 8Aiien,i46. 5
Same subject.
R. S. 94, § 21.
G. S. 131, § 24.
P. S. 169, § 30.
Section 32. The party producing the deponent shall be allowed 1
first to examine him, either upon verbal or written interrogatories, 2
on all the points which he considers material ; the adverse party may 3
then examine him in like manner ; after which either party may 4
propose further interrogatories. 5
Chap. 175.] witnesses and evidence. 1579
1 Section 33. The deposition shall be written by the justice, Deposition, by
2 commissioner, deponent or by a disinterested person in the presence written? he
3 and under the direction of the justice or commissioner, shall be 1797^^' |.a'
4 carefully read to or by the deponent, and then subscribed by him. §" i" ili§§2i5
P. S. 169, § 31. 12 Cush. 132.
1 Section 34. The justice or commissioner shall annex to the certificate to
2 deposition a certificate of the time and manner of taking it, the ng^fl^'
3 person at whose request, the cause in which it was taken, the rea- g! I i3i,§§226.
4 son for taking it, and that the adverse party attended, or if he did 2opick9,i6732'
5 not attend what notice was given to him. sMetrra. '
° 11 Cush. 364.
1 Allen, 109, 475. 3 Allen, 358. 8 Allen, 146. 105 Mass. 100.
1 Section 35. The deposition shall be delivered by the justice or Deposition to
2 commissioner to the court, arbitrators, referees or other persons to3 court,™ tcfd
3 before whom the cause is pending, or shall be enclosed and sealed w^ji!,!2'.
4 by him and directed to it or them, and shall remain sealed until r9!'3^'!3^
5 opened by it or them. 8 Gray, 394. 1 Alien, 475. g- g ■ Jfi, § 27.
■*■ " .r . 55. 169, § 03.
1 Section 36. The court may exclude the deposition if it finds —when not to
2 that the adverse party failed without fault to attend the taking i797,sI^'§ 5.
3 thereof, and shall exclude it if it finds that the reason for taking it, <f; |; ilif^.
4 or other sufficient cause for its use, no longer exists. p. s.i69, §34.
6 Cush. 394. 131 Mass. 88.
1 Section 37. Objections to the competency or credibility of the objections to
2 deponent and to the admissibility of any questions asked of him, or hfs'testfmony.
3 of any answers made by him, may be made when the deposition is g! !'. lti,5^.
4 produced in the same manner as if he were personally examined f ^iikm 35'
5 as a witness at the trial ; but if a deposition is taken upon written Rf l^o6'
6 interrogatories, annexed to a commission, all objections to an in- 2 Gray, 279.
7 terrogatory shall be made before the commission issues ; and, unless 7 Gratis!
8 the interrogatory is withdrawn, they shall be noted in the depo- l°AneI'iri>.'
9 sition ; otherwise, they shall not be allowed. 103 Mass. 41,
1 Section 38. If a plaintiff discontinues his action or becomes useofdeposi.
2 nonsuit, and another action is afterward commenced for the same action! anot er
3 cause between the same parties or their respective representatives, b.2!'.^,^^.
4 depositions lawfully taken for the first action may be used in the p- f ■ J|J' 1 |£
5 second in the same manner and subject to the same conditions 22 pick. '309.
6 and objections as if originally taken for the second action, if the
7 deposition was duly filed in the court in which the first action was
8 pending and has remained in the custody of the court from the
9 termination of the first action until the commencement of the second.
1 Section 39. The courts may make rules regulating the time Rules concern.
2 and manner of opening, filing and safe keeping of depositions, and tians.ep0S1"
3 the taking and use thereof. p. s. 169, § 37. 133 Mass. 132. 135 Mass. 586. q\ |; ?ji,§§23i.
1 Section 40. A person may be summoned and compelled to give Deponent may
2 his deposition at a place within twenty miles of his place of abode, to testify. e
3 in like manner and under the same penalties as are provided for a r9s.94,§§429.
4 witness before a court. g. s. 131, § 32. p. s. m, § 38.
1580
WITNESSES AND EVIDENCE.
[Chap. 175.
Non-resident
witness com-
morant here.
1837, 236.
G. S. 131, § 33.
P. S. 169, § 39.
Section 41. A person not a resident of, but found within, this 1
commonwealth may be summoned and compelled to give his depo- 2
sition at any place within ten miles of the place at which the 3
summons is served upon him, in like manner and under the same 4
penalties as he may be summoned and compelled to attend as a 5
witness before a court. 6
Depositions,
how taken out
of state.
1797, 35, § 6.
1829, 125, § 1.
R. S. 94, § 30.
1856, 253, § 1.
G. S. 131, § 34.
P. S. 169, § 40.
6 Met. 270.
103 Mass. 41.
168 Mass. 415.
Section 42. The deposition of a person without this common- 1
wealth may be taken under a commission issued to one or more 2
competent persons in another state or country by the court in 3
which the cause is pending ; or it may be taken before a com- 4
missioner appointed by the governor for that purpose ; and in either 5
case the deposition may be used in the same manner and subject 6
to the same conditions and objections as if it had been taken in this 7
commonwealth. 8
Depositions
to be taken
on written in-
terrogatories.
R. S. 94, § 31.
G. S. 131, § 35.
P. S. 169, § 41.
1883, 188, § 2.
1899, 123, § 1.
Section 43. Unless the court otherwise orders, a deposition 1
taken before commissioners shall be taken upon written interroga- 2
tories, which shall be filed in the clerk's office and notice thereof 3
given to the adverse party or his attorney, and upon cross interroga- 4
tories, if any are filed by him. But if the defendant does not enter 5
his appearance in the action within the time required by law, no 6
notice to him shall be required. The court may in any case order 7
depositions to be taken before commissioners, in the manner pro- 8
vided by law for taking the depositions of witnesses within the 9
commonwealth in actions at law, or in such manner as the court 10
orders, and in such cases shall determine what notice shall be given 11
to the adverse party, his agent or attorney, and the manner of 12
service thereof, may authorize the taking of depositions of wit- 13
nesses not specifically named in the commission, and may limit the 14
extent of the inquiry. The court may order the production before 15
the commisssoner of any books, instruments or papers relative to 16
any matter in issue. 17
Rules for
foreign '
depositions.
1797, 35, § 7.
R. S. 94, § 32.
Section 44. The courts may make rules for the issuing of com- 1
missions, the filing of interrogatories and all other matters relative 2
to depositions taken without the commonwealth. 3
G. S. 131, § 36. P. S. 169, § 42.
Use of foreign
depositions.
1797, 35, §§ 6, 7.
R. S. 94, § 33.
G. S. 131, § 37.
P. S. 169, § 43.
14 Pick. 313.
20 Pick. 167,
441.
24 Pick. 35.
2 Met. 522.
6 Met. 270.
9 Gray, 370.
12 Gray, 26.
5 Allen, 320.
8 Allen, 391.
103 Mass. 41.
162 Mass. 137.
Section 45. Depositions and affidavits taken without the com- 1
monwealth in any manner other than is provided in the three pre- 2
ceding sections, if taken before a notary public or other person 3
authorized by the laws of any other state or country to take dep- 4
ositions, may be admitted or rejected in the discretion of the 5
court ; but such deposition or affidavit shall not be admitted unless 6
the court finds that the adverse party had sufficient notice of the tak- 7
ing thereof, and an opportunity to cross examine the witness, or 8
that from the circumstances of the case it was impossible to give 9
him such notice. 10
Depositions
for courts in
other states,
etc.
Section 46. A person may be summoned and compelled, in 1
like manner and under the same penalties as are provided for a wit- 2
Chap. 175.] witnesses and evidence. 1581
3 ness before a court, to give his deposition in a cause pending in a 1826, 86, §3.
4 court of any other state or government. Such deposition may be G.l'.ilifllk
5 taken before a justice of the peace or special commissioner in this ^"sf," 252.' § **"
6 commonwealth, or before a commissioner appointed under the if$u|£ 243,
7 authority of the state or government in which the action is pending.
8 If the deposition is taken before such commissioner, the witness
9 may be summoned and compelled to appear before him by process
10 from a justice of the peace or special commissioner in this com-
11 monwealth.
DEPOSITIONS TO PERPETUATE TESTIMONY.
1 Section 47. If a person desires to perpetuate his own testi- to^e^etuate
2 mony or the testimony of another person he shall apply in writing testimony.
3 to two iustices of the peace or special commissioners, one of whom «'. s". 131, § 39.
■ x x * 1S74. 2Q7
4 shall be an attorney at law, requesting them to take his deposition p. s'. 169, § 45.
5 or the deposition of the person whose testimony he desires to per-
6 petuate and stating briefly and substantially his title, claim or
7 interest in or to the subject relative to which he desires the evi-
8 dence perpetuated, the names of all other persons interested or
9 supposed to be interested therein and the name of the witness pro-
10 posed to be examined.
1 Section 48. The justices or commissioners shall thereupon cause Notice to
2 notice of the time and place appointed for taking the deposition to ested.n8 mter"
3 be given to all persons named in said statement as interested in the ^ m, f 1."
4 case, in the manner provided in sections twenty-seven to thirty, R-s. 94, §§35,
5 inclusive; and if in the opinion of the justices or commissioners g^I'1^^!'^
6 no sufficient provision is made by law for giving notice to parties 45:
7 adversely interested, they shall cause such reasonable notice to be p.'s. 169, §§ 46,
8 given as they consider proper. A person may be summoned and '
9 compelled to give a deposition in perpetuation of his testimony in
10 like manner and under the same penalties as are provided for a
11 witness before a court.
1 Section 49. If at the time and place so appointed a witness Depositions to
2 or a person interested appears and objects, the justices shall not take tSmonynot
3 the deposition unless upon hearing the parties they find that such ^hen!^613'
4 testimony may be material to the petitioner and is not sought for £p| ^ § ^
5 the purpose of discovery or of using it in an action then pending ^| 297.'
6 or unless the witness is the petitioner in an action thereafter to be
7 brought against said witness, and that the petitioner is in danger of
8 losing the same before it can be taken in any action wherein his
9 right, title, interest or claim can be tried. In all cases the peti-
10 tioner, his agent or attorney, shall, at the request of such witness
11 or of a person interested, be examined on oath relative to his
12 reasons for taking the deposition.
1 Section 50. The deponent shall be sworn and examined, and ^k™n°geof
2 his deposition shall be written, read and subscribed in the manner }™b®L*h
o --in. . 1 . i. •-!• ii 1817, 181, § 2.
6 provided in sections thirty-one to thirty-three, inclusive; and the R. s. 94, §36.
4 iustices shall sign and annex thereto a certificate of the name of i874,"297.'
5 the person at whose request it was taken, the names of all persons 3 pick. '74.
6 Met. 173.
1582
WITNESSES AND EVIDENCE.
[Chap. 175.
who were notified to attend, of all who attended the taking thereof, 6
of the time and manner of taking it, and that it was taken for the 7
purpose of perpetuating the testimony therein. 8
Depositions,
record of.
1797, 35, § 8.
R. S. 94, § 37.
G. S. 131, § 43.
1874, 297.
P. S. 1C9, § 49.
Section 51. The deposition, the certificate and the application 1
of the petitioner shall, within ninety days after the taking of the 2
deposition, be recorded in the registry of deeds in the county or 3
district in which the land lies, if the deposition relates to land ; 4
otherwise in the county or district in which the parties or some of 5
them reside. 6
— use of.
1797, 35, §
1826, 86, §
R. S. 94, §
G. S. 131,
1874, 297.
P. S. 169,
3 Pick. 74
2.
38.
§44.
§50.
Section 52. If, at the time of taking such deposition or after- 1
ward, an action is pending between the petitioner and the persons 2
named in his application or any of those who were notified as afore- 3
said, or any persons claiming under any of said persons, relative 4
to the title, claim or interest set forth in the application, the 5
deposition or a certified copy of it from the registry of deeds, 6
may be used in such action in the same manner and subject to the 7
same conditions and objections as if it had been originally taken 8
therefor. 9
sitionf n dep°" Section 53. Depositions to perpetuate the testimony of persons 1
S-I'«i5^i living without the commonwealth mav betaken without the com- 2
Vjt. S. 131, 5 4b. C3 ... J .,..-. 0
p. s. 169, §52. monwealth, upon a commission issued by the supreme judicial court 3
132 Mass. 171. or the superior court. 4
Statement to
be filed by
applicant.
R. S. 94, § 41.
G. S. 131, § 47.
P. S. 169, § 53.
Section 54. The person who desires to take such deposition 1
shall file in either of said courts the application provided in 2
section forty-seven ; and if the subject of the proposed deposition 3
relates to land within this commonwealth, a copy of the applica- 4
tion with the statement therein shall be filed in the registry* of 5
deeds for the county or district in which the land or any part 6
thereof lies ; otherwise, in the registry of deeds for the county or 7
district in which the parties or some of them reside. 8
Notice to
adverse party.
R. S. 94, § 42.
G. S. 131, § 48.
P. S. 169, § 54.
1882, 140.
132 Mass. 171.
Section 55. The court shall order notice of such application 1
and statement to be served on all the persons named therein as 2
adversely interested and living within the commonwealth fourteen 3
days at least before the time therein appointed for hearing the 4
parties, and shall order reasonable notice to be given to such 5
persons living without the commonwealth. 6
Commission.
R. S. 94, § 43.
G. S. 131, § 49.
P. S. 169, § 55.
Section 56. If, upon hearing the parties who appear, the court 1
finds that there is sufficient cause for taking the deposition, it shall 2
issue a commission therefor in like manner as for taking a deposi- 3
tion to be used in a cause pending in the same court. 4
Deposition,
bow taken and
returned.
R. S. 94, § 44.
G. S. 131, § 50.
P. S. 169, § 56.
Section 57. The deposition shall be taken upon written inter- 1
rogatories filed by the applicant, and cross interrogatories, if any 2
are filed by any party adversely interested, and it shall be taken 3
and returned substantially in the same manner as if taken to be 4
used in a cause pending in the same court. 5
Chap. 175.] witnesses and evidence. 1583
1 Section 58. The supreme judicial court may make rules for Rules for
2 taking depositions to perpetuate the testimony of witnesses without ?n perpetuam.
3 the commonwealth, taken under a commission from the supreme g. li i3i,§§452.
4 judicial court or the superior court, and for the filing or recording p- s- 169> § 6s-
5 of such depositions.
1 Section 59. Depositions to perpetuate the testimony of wit- use of such
2 nesses which are taken without this commonwealth according to the R. s. 94, § 47.
3 provisions of this chapter may be used in like manner as if taken p.' s.' im', § 59!
4 within the commonwealth.
1 Section 60. Depositions to perpetuate the testimony of wit- peerp°t"a^9 in
2 nesses within or without the commonwealth, so that it may be evi- against an
3 dence against all persons, may, after public notice, be taken upon r. s. 94,'§43.
G. S. 131, § 54.
60.
4 a commission issued by the supreme judicial court or the superior p.'s.'iki.'l
5 COUrt. 132 Mass. 171.
1 Section 61. The person who desires to have such deposition Proceedings.
2 taken may apply to either of said courts in the manner provided g. 1'. iii, § 55.
3 in section fifty-four, and the proceedings thereon shall be the same Pt s* 169' § 6L
4 as are provided in sections fifty-five to fifty-seven, inclusive.
1 Section 62. The court shall, in addition to the proceedings same subject.
2 before provided, require the applicant upon oath or otherwise, in g. I'. i3i,§§556.
3 its discretion, to state the names of all persons known or supposed ^'2 Mass. 171."
4 to be interested in the subject matter of the application, and shall
5 in the commission direct the commissioner or commissioners to
6 publish in such newspaper within or without the commonwealth,
7 or both, or in such other manner, as the court orders, such notice
8 of the time and place of taking such deposition, and of the subject
9 matter thereof, as the court approves. Such notice shall be ad-
10 dressed by name to all persons who are known or supposed to be
11 interested in the subject matter of the application, and generally to
12 all others, and shall state that they may attend and propose cross
13 interrogatories to the witness. The court may require additional
14 personal notice of the time and place of taking and of the subject
15 matter of such deposition to be given to such persons and in such
16 manner as it orders.
1 Section 63. After such deposition has been taken, it shall be Record of such
2 returned to the court by whose order the commission issued, which, i^^Tsi.
3 if the deposition is found to have been taken according to law and p ; f " 1I9,' 1 63."
4 the directions contained in the commission, shall order it to be re- 131Mass- 18°-
5 corded within thirty days after the date of the order in the registry
6 of deeds, in the manner provided in section fifty-one.
1 Section 64. A deposition taken and recorded under the pro- use of such
2 visions of the four preceding sections, or a certified copy thereof RepsOS94!0§n52.
3 from the registry of deeds, may be used by the person at whose re- p;|.'i69,'|w.'
4 quest it was taken, or by any person who claims under him, against
5 any person whatever, in any action or process, wherein is brought
6 in question the title, claim or interest set forth in the statement
1584
WITNESSES AND EVIDENCE.
[Chap. 175.
upon which the commission was founded, in the same manner, and 7
subject to the same conditions and objections, as if it had been 8
originally taken for said action or process. 9
Dying declara-
tions.
1889, 100.
165 Mass. 149,
174.
DYING DECLARATIONS AND DECLARATIONS OF DECEASED PARTIES.
Section 65. In prosecutions under the provisions of section 1
fifteen of chapter two hundred and twelve in which the death of a 2
woman is alleged to have resulted from the means therein described, 3
her dying declarations shall be admissible in evidence. 4
^/de^ased8 Section 66. A declaration of a deceased person shall not be 1
per^ns. inadmissible in evidence as hearsay if the court finds that it was 2
5MaJss. 174. made in good faith before the commencement of the action and 3
upon the personal knowledge of the declarant. 4
175 Mass. 137.
— of testators,
etc.
1896, 445.
175 Mass. 137,
177.
Section 67. If the cause of an action brought against an execu- 1
tor or administrator is supported by oral testimony of a promise or 2
statement made by the testator or intestate of the defendant, evi- 3
dence of statements, written or oral, made by the decedent, memo- 4
randa and entries written by him and evidence of his acts and 5
habits of dealing tending to disprove or to show the improbability 6
of the making of such promise or statement shall be admissible. 7
STENOGRAPHIC TRANSCRIPTS.
Stenographic
transcripts.
1894, 424, § 9.
1896, 459, § 7.
Section 68. Transcripts from stenographic notes duly taken in 1
the superior court under the authority of law, when verified by the 2
certificate of the official stenographer or assistant taking them shall 3
be admissible as evidence of testimony given whenever proof of 4
such testimony is otherwise competent. 5
Evidence in
equity.
1852, 312, § 85.
G. S. 131, § 60.
P. S. 169, § 66.
1899, 123, § 2.
12 Cush. 601.
EVIDENCE IN PROCEEDINGS IN EQUITY.
Section 69. The evidence shall be taken in proceedings in 1
equity in the same manner as in actions at law, unless the court 2
otherwise orders ; but the provisions of this section shall not pre- 3
vent such use of affidavits as has been heretofore allowed. 4
13 Allen, 33. 137 Mass. 490.
Section 70.
PROOF OF ATTESTED INSTRUMENTS.
The signature to an attested instrument or writ-
Proof of
ments. ' ing, except a will, may be proved in the same manner as if it were
1897, 386.
not attested.
1
2
3
— of records
of courts
of other states.
R. S. 94, $ 57.
G. S. 131, § 61.
P. S. 169, § 67.
5 Met. 436.
10 Allen, 485.
12 Allen, 98.
PROOF OF STATUTES, LAWS, ETC.
Section 71. The records and judicial proceedings of a court 1
of another state or of the United States shall be admissible in evi- 2
dence in this commonwealth, if authenticated by the attestation of 3
the clerk or other officer who has charge of the records of such 4
court under its seal. 5
103 Mass. 283. 119 Mass. 262.
Chap. 175.] witnesses and evidence. 1585
1 Section 72. Acts of incorporation shall be held to be public Acts of incor-
2 acts and as such may be declared on and given in evidence. puwicTcts?
G. S. 3, § 5. P. S. 169, § 68. R< S- 2' § 3-
1 Section 73. The printed copies of all statutes, acts and resolves Published acts
2 of the commonwealth, public or private, which are published under to berevidence.
3 the authority of the commonwealth, and copies of the ordinances r0!.3^', §5g.
4 of a city, the by-laws of a town or of the rules and regulations of a p.' |; ill' f 69'
5 board of aldermen, if attested by the clerk of such city or town, 1889, 387,'§i.
6 shall be admitted as sufficient evidence thereof in all courts of law,
7 and on all occasions.
1 Section 74. Copies of books, papers, documents and records copies from
ciGDtirtrncuts
2 in the executive or other departments of the commonwealth, or of 1867, 21a.
3 any city or town, authenticated by the attestation of the officer i889,'387,§2. '
4 who has charge of the same, shall be competent evidence in all 175 Mass". 460.
5 cases equally with the originals thereof, if the genuineness of the
6 signature of such officer is attested by the secretary of the common- •
7 wealth under its Seal or by the clerk of such city or town, as the
8 case may be.
1 Section 75. Printed copies of the statute laws of anv other statutes of
2 state or territory or of the United States or of a foreign country, r. s. 94, § 59.
3 which purport to be published under the authority of their re- p.' s." ill', f 71!
4 spective governments, or if commonly admitted and read as evi- foray/iso.
5 dence in their courts, shall be admitted in this commonwealth, in lo^n^5^.
6 all courts of law and on all occasions, as prima facie evidence of 105 Mass. 480.
7 such laws.
1 Section 76. The unwritten or common law of any other of the common law
2 United States, or of the territories thereof, mav be proved as facts r. s. 94, §eo.
3 by parol evidence ; and the books of reports of cases adjudged in p.' s.' 169,' § 72.'
4 their courts may also be admitted as evidence of such law. loo^Mass. "79.'
124 Mass. 85. 135 Mass. 349. 156 Mass. 65. 161 Mass. 111.
1 Section 77. The existence, tenor or effect of all foreign laws Lawsoffor-
2 may be proved as facts by parol evidence ; but if it appears that now proved.68'
3 they are contained in a written statute or code, the court may in g'. s'. isk, § eb.
4 its discretion reject any evidence of such law which is not accom- uMas^'455/
5 panied by a copy thereof.
1 Section 78. All oaths and affidavits administered or taken by oaths before a
2 a notary public, duly commissioned and qualified by authority lsre.'fgi!10*^7'
3 of any other state or government, within the jurisdiction for which p* s" m' § 74,
4 he is commissioned, and certified under his official seal, shall be as
5 effectual in this commonwealth as if administered or taken and
6 certified by a justice of the peace therein.
1586
JURIES.
[Chap. 176.
OHAPTEK 176.
OF JURIES.
Sections 1-3.
Sections 4-9 . •
Sections 10-16.
Sections 17-24.
Sections 25-35.
Sections 36-39.
Section 40. •
■ Qualification and Exemption.
•Jury Lists.
■Venires.
•Drawing and Summoning of Jurors.
■General Provisions.
■Penalties.
■Special Juries.
Qualifications
and exemp-
tions.
C. L. 55, §2;
148, §4; 352.
1784, 7, §§ 2, 9.
1785, 42, § 4.
1802, 92, § 1.
1807, 140, § 1.
1808, 25.
1812, 141, § 2.
R. S. 18, § 17;
95, §§ 1-3.
1338, 21.
1849, 218, § 8.
1851, 204.
1858, 93, § 2.
G. S. 132, §§1,2.
1864, 215.
1874, 320, § 17.
P. S. 170, §§1,2.
1896, 427.
9 Mass. 107.
20 Pick. 1.
121 Mass. 69.
143 Mass. 130.
163 Mass. 453.
QUALIFICATION AND EXEMPTION.
Section 1. A person qualified to vote for representatives to 1
the general court shall be liable to serve as a juror, except that the 2
following persons shall be exempt : 3
The governor ; lieutenant governor ; members of the council ; 4
secretary of the commonwealth ; members and officers of the senate 5
and house of representatives during the session of the general 6
court ; judges and justices of a court, except justices of the peace ; 7
county and associate commissioners ; clerks of courts and assistant 8
clerks and all regularly appointed officers of the courts of the 9
United States and of this commonwealth ; registers of probate and 10
insolvency ; registers of deeds ; sheriffs and their deputies ; con- 11
stables ; marshals of the United States and their deputies, and all 12
other officers of the United States ; attorneys at law ; settled min- 13
isters of the gospel ; officers of colleges ; preceptors and teachers 14
of incorporated academies ; registered practising physicians and 15
surgeons; cashiers of incorporated banks ;. constant ferrymen ; per- 16
sons who are more than sixty-five years old ; members of the vol- 17
unteer militia ; members of the ancient and honorable artillery 18
company ; superintendents, officers and assistants employed in or 19
about a state hospital, insane hospital, jail, house of correction, 20
state industrial school or state prison ; keepers of light houses ; con- 21
ductors and engine drivers of railroad trains ; teachers in public 22
schools ; enginemen and members of the fire department of the city 23
of Boston, and of other cities and towns in which such exemption 24
has been made by vote of the city council or the inhabitants of the 25
town, respectively. 26
To serve,
when.
B. L. 49.
C. L. 87, § 5.
1694-5, 24, § 6.
1741-2, 18, § 3.
1749-50, 5, § 2.
1756-7, 13, § 3.
1759-60, 29, § 3.
1802, 92, § 5.
1807, 140, §§ 1,
4,5.
Limit of ser-
vice in Suffolk.
1822, 13, § 3.
R. S. 86, § 7.
G. S. 132, § 10.
1873, 44.
1879, 76.
Section 2. A person who attends and serves as a juror in any
court in pursuance of a draft shall not be liable to be drawn or to
so serve again within three years after the termination of such ser-
vice, except in the counties of Nantucket and Dukes County, in
which he shall be so liable once in every two years.
1812, 141, § 2.
1824, 119, § 1.
1825, 176, § 1.
R. S. 95, §§ 12, 38.
G. S. 132,
P.S.170,§
§3,4.
!3,4.
16 Mass. 220.
8 Pick. 504.
Section 3. A person shall not serve as a traverse juror in the
county of Suffolk more than thirty days at any sitting of the court,
except to finish a case commenced within that time, nor in the trial
of criminal cases at more than one sitting thereof during the year.
P. S. 170, § 5. 128 Mass. 458.
1
2
3
4
5
1
2
3
4
Chap. 176.] jueies. 1587
jury lists.
1 Section 4. The board of registrars of voters in every city, Preparation
2 except Boston, and in Boston the board of election commis- m^io, § i.
3 sioners, and the selectmen of towns shall annually, in January or 1749^5; ff I;!;
4 February, prepare a list of such inhabitants of the city or town, nH^5132'9§§§f;
5 of good moral character, of sound judgment and free from all *• „
6 legal exceptions, not absolutely exempt from jury service, as they 1802^92, §i
7 think qualified to serve as jurors. Such list shall include not 1812; ui, § 2.
8 less than one for every one hundred inhabitants of the city or i824| 11a, § 2.
9 town, nor more than one for every sixty inhabitants, according r2!'. 95^ '§§!,' 34.
10 to the latest census, state or national, but in the counties of Nan- ^'foT.^6'21'
11 tucket or Dukes County, it may include one for every thirty ^- |^170> §§ 6>
12 inhabitants. i89i, 131. 1897, 515, §1. 7 Met. 326.
1 Section 5. Such list shall be posted by said boards, respec- Posting, etc.,
2 tively, in public places in the city or town ten days at least before 1736-7%, §§1,4.
3 it is submitted for revision and acceptance, and shall then be sub- l^glto,1!,'!! I;*.
4 mitted to the board of aldermen or the single legislative board of 1759-60. 29> §§ x>
5 cities having such board, and in towns, to a town meeting. A Ysft'lh^ti
6 board to which such list is submitted may remove names therefrom 1807,' 146, § i.
7 of persons who have been convicted of crime and have not been r. s. 95,'§ 5.'
8 pardoned on the ground of innocence of such crime or of persons lllH^
9 not qualified for service as jurors and shall not add names thereto, <*• s- 132> §§ 7«
10 except as provided in the following section; but a town may re- p7|'no, §§7
1 1 move therefrom the names of any persons or add thereto the names ^|\23
12 of persons liable to serve. 1894,514, §2. 1897,515, §2.
1 Section 6. If the list as revised and accepted includes less than Revision of
2 one juror for every one hundred inhabitants of a city, said board ^I,i23?ies'
3 of registrars of voters or said board of election commissioners shall 1897, 515> § 3-
4 prepare, post and submit as aforesaid a further list and like pro-
5 ceedings shall be had as in the case of the original list, until the
6 required number of jurors is obtained.
1 Section 7. In cities the board revising the list and in towns Deposit of
2 the selectmen shall cause the names on the list as completed to 173™ t! 10, §1**
3 be written each on a separate ballot and shall roll or fold the bal- 1749^5,' f fill
4 lots so as to resemble each other as much as possible and so that the ItI^o^Vi*'
5 name written thereon shall not be visible on the outside, and shall ]^l^h
6 place the ballots in a box which shall be kept by the city or town is?2! 92' § 1.
rt 1 1 J> xl 1812> 141' § 2-
7 clerk tor the purpose. r. s. 95, §6. g. s. 132, §8.
1876, 207. P. S. 170, §§ 8, 25. 1897, 515, § 5.
1 Section 8 . If a person whose name has been so placed in the withdrawal oi
2 jury box is convicted of a scandalous crime or is guilty of gross r?8V7,'§2.
3 immorality, his name shall be withdrawn therefrom by the board l^] mfh-
4 or selectmen and he shall not be returned to serve as a juror. g. 1'. i32,§§79.
P. S. 170, § 9. 1897, 515, § 6.
1 Section 9. The jury lists in cities shall be published az a pub- ^"ufg^;
2 lie document, with the address and occupation of each juror; and 1897, 515, §4.
3 in towns, the list with the occupation of each juror shall be pub-
4 lished in the annual town report.
1588
JURIES.
[Chap. 176.
Writs of
venire facias.
C. L. 86, § 1.
1699-1700, 1, § 4
2, §4; 3, §5.
1741-2, 18, § 5.
1749-50, 5, § 5.
1756-7, 13, § 5.
1759-60, 29, § 5.
1784, 7, § 1.
1807, 140, § 3.
1817, 63, § 3.
VENIRES.
Section 10. The clerks of the supreme judicial court and the
, superior court shall, before each sitting and at such other times as
' the respective courts may order, issue writs of venire facias for
jurors, requiring their attendance on such day of the sitting as the
court may order. The number of jurors required by such writs
shall be apportioned among the cities and towns, as nearly as may
be, according to their respective populations.
1820, 79, § 8.
R. S. 95, §§ 13, 14.
G. S. 132, §§ 10, 11.
P. S. 170, §§ 10, 11.
Service.
C L. 86, §§ 1, 2.
1694-5, 24, § 1.
1699-1700, 1, § 4;
2, §4; 3, §5.
1741-2, 18, § 5.
1749-50, 5, § 5.
1756-7, 13, § 5.
1759-60, 29, § 5.
Section 11. The venires shall be delivered to the sheriff of the
county to be transmitted by him to a constable in each of the cities
and towns to which they are respectively issued, who shall forth-
with serve them in cities on the board authorized to draw jurors and
in towns on the selectmen and town clerk. 1784, 4, §§ i, 2; i, §§ i, 8.
1802, 92, § 2,
1807, 140, § 4.
1822, 13.
R. S. 95, §§ 15, 35.
G.S. 132, §§12, 22.
P. S. 170, §§ 12, 25.
1897, 515, § 7.
Additional
venires.
1713-4, 5.
1737-8, 20.
1741-2, 18, § 8.
1749-50, 5, § 8.
1756-7, 13, § 8.
Provisions for
Dukes County.
1852, 75.
G. S. 132, § 14.
P. S. 170, § 14.
Section 12. Either court may issue venires for additional jurors
when necessary for the convenient despatch of its business. They
shall be served and returned, and the jurors required to attend on
such days, as the court orders. 1759-60, 29, § 8.
1807, 140, § 7. R. S. 95, § 18. G. S. 132, § 13. P. S. 170, § 13.
Section 13. If a case is pending in the superior court for the
county of Dukes County, in which the inhabitants of a town in said
county are disqualified from serving as jurors, a justice of the court
may order the clerk thereof to issue writs of venire facias for a
sufficient number of jurors to try such case, from any town whose
inhabitants are not so disqualified.
Section 14. At the sittings of the supreme judicial court in the
county of Bristol for which jurors are summoned to attend, one or
more jurors from the county of Nantucket and at least four from
the county of Dukes County shall be summoned, the venires for
which shall be issued by the clerk of the courts for the county of
Bristol. The cost of their travel and attendance shall be paid by
the counties from which they are summoned.
Nan°tucketand Section 15. For the trial of an indictment found and returned
S^isi^Y*7" m ^ne county of Nantucket or Dukes County for a capital crime,
P-S- no, §i6. such number of jurors as a justice of the superior court may order
shall be summoned from said counties, respectively, and the cost
of their travel and attendance shall be paid by the counties from
which they are summoned.
— for Bristol.
1878, 151, § 3.
P. S. 170, § 15.
Venires in
Barnstable.
1889, 173.
Section 16. No venires for the drawing and summoning of
jurors for the sitting of the supreme judicial court for the county
of Barnstable shall be issued unless at the time for their issue there
shall be one or more cases to be tried thereat by jury.
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7
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6
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2
3
4
5
6
7
1
2
3
4
5
6
1
2
3
4
Drawing of
jurors.
1807, 140.
R. S. 95, § 8.
1837, 228.
DRAWING AND SUMMONING OF JURORS.
Section 17. All jurors, except those required to serve in pro- 1
ceedings relative to the commitment of insane persons, shall be 2
selected by drawing ballots from the jury box. 3
1854, 424.
G. S. 132, § 15.
P. S. 170, § 17.
1897, 515, § 7.
Ohap. 176.] JURIES. 1589
1 Section 18. When jurors are to be drawn in a city, the mayor Drawing of
2 and city clerk shall meet with the aldermen, or single legislative cities? m
3 board, as the case may be, at the aldermanic or legislative chamber. r21'.95',§35.
4 The ballots in the jury box shall be shaken and mixed and one of the ^f ■$$! § 22'
5 aldermen or members of the legislative board, designated by the ^bf'su'li25'
6 mayor, shall, without seeing the names written thereon, openly draw 1897i 515.' § ?■
7 a number of ballots equal to the number of jurors required. He
8 shall announce clearly and distinctly the names of the jurors so
9 drawn, and shall then hand the ballots drawn by him to the mayor,
10 who shall examine and verify them. The mayor shall then, hand
11 such ballots to the city clerk, who shall announce clearly and dis-
12 tinctly the names upon the ballots and return the same to the
13 jury box, after making the indorsements thereon required by law,
14 and the names so drawn shall be recorded as part of the proceedings
15 Und shall be published if and when the proceedings are published
16 officially. In the absence of the mayor, the chairman or president
17 of the board of aldermen or of the single legislative board shall per-
18 form the duties required of the mayor by the provisions of this
19 section.
1 Section 19. When jurors are to be drawn in a town, the town —in towns.
2 clerk and selectmen shall meet at the clerk's office or at some 1741-2', is, § i.
3 other public place appointed for the purpose, and, if the clerk is 1756-7, 13' 1 2!
4 absent, the selectmen may proceed without him. The ballots in r^^'^l'. § 2*
5 the jury box shall be shaken and mixed and one of the selectmen, ilof* ffo5^
6 without seeing the names written thereon, shall openly draw there- gs^X9™
7 from a number of ballots equal to the number of jurors required. p. s. 170,' § is!
1 Section 20. If a person drawn as provided in the two preceding Return of
1 r r o names to box.
2 sections is exempt or unable by reason 01 illness or absence irom 1736-7, 10, § 4.
1749-50 5 § 2
3 home to attend as a juror or has so served in any court within the 1756-7, '13! § 2.
4 time provided in section two, his name shall thereupon be returned rkt, 7,'§4.
5 to the box, and another drawn. 1807, 140, §5. r. s. 95, §§ 9, 35. 1793, 63, §5.
G. S. 132, §§ 16, 22. P. S. 170, §§ 18, 25. 1897, 515, § 7. 171 Mass. 459.
1 Section 21. If a person is drawn and returned to serve as a *"d£aisioment
2 juror in a court, the selectmen or the city clerk, respectively, shall 1741-2, is, § 2.
3 indorse on the ballot the date of the draft and return it to the box ; 1756-7, 'is', § 3.
4 and when there is a revision and renewal of the ballots in the box, i78V7,'§§ i, 5."
5 the date of all the drafts made within the time provided in section J^; i4o,§§56.
6 two shall be transferred to the new ballots. r.s. 95, §§11,
G. S. 132, §§ 17, 22. P. S. 170, §§ 19, 25. 1897, 515, § 7.
1 Section 22. If a town at a legal meeting votes that drafts for Names drawn
2 jurors shall be made in open town meeting, they shall be so made ing.
3 by the selectmen in the manner provided in the three preceding 1756-7,13', §3'.
4 sections. When in such town a venire is served upon the select- \^u^n',t\.
5 men, they shall cause a town meeting to be notified and warned for ilof; ilo,§§§*4,
6 the purpose in the manner ordered by the town or otherwise pro- \\ ^ §§ x
7 vided by law. g. s. 132, § is. p. s. 170, § 20. 15.
1 Section 23. The meeting for drawing jurors in a city or town Meetings for
2 shall be not less than seven nor more than twenty-one days before jurors.
3 the day when the jurors are required to attend. 1749-56, 5; §5!
1759-60, 29, § 5. 1807, 140, §4. G. S. 132, §§ 19, 22. 1897, 515, § 7. 1756-7, 13, § 6.
1784, 7, § 5. R. S. 95, §§ 16, 35. P. S. 170, §§ 21, 25.
1590
JURIES.
[Chap. 176.
Summoning of
jurors and re-
turn of venire.
1736-7, 10, § 2.
1741-2, 18, § 5.
1749-50, 5, § 5.
1756-7, 13, § 5.
1759-60, 29, § 5.
1784, 4, §§ 1, 2;
7, §5.
1807, 140, § 6.
R. S. 95, § 17.
G. S. 132, § 20.
P. S. 170, § 22.
ia97, 515, § 7.
Section 24. The constable shall, four days at least before the 1
time when the jurors are required to attend, summon each person 2
who is drawn, by reading to him the venire with the indorsement 3
thereon of his having been drawn, or by leaving at his place of 4
abode a written notice of his having been drawn and of the time 5
and place of the sitting of the court at which he is required to 6
attend, and shall make a return of the venire with his doings thereon 7
to the clerk of the court, before the sitting of the court by which 8
it Was issued. 143 Maes. 80. 9
Impanelling.
1807, 140, § 11.
R. S. 95, §§ 20,
23.
G. S. 132, §§ 23,
25,26.
1881, 300.
P. S. 170, §§ 26,
28-31.
1897, 515, § 8.
6 Met. 235.
135 Mass. 521.
— in capital
cases.
1873, 308.
P. S. 170, § 32.
1897, 515, § 9.
GENERAL PROVISIONS.
Section 25. On the day when the jurors are summoned to at-
tend at court for the trial of civil or criminal cases, except capital
cases, the clerk of the court shall cause the name, place of abode
and occupation of each person so summoned to be written on sep-
arate ballots, substantially of uniform size, and shall cause them to
be placed in a box provided for the purpose. When a case is ready
for trial the clerk in open court, after shaking the ballots thoroughly,
shall draw them out in succession until the names of twelve are
drawn who appear and are not excused or set aside. The twelve
men so drawn shall be duly sworn and impanelled and shall be the
jury to try the issue, and one of them shall be appointed foreman
by the court. The ballots containing names of the jurors so sworn
shall be kept apart by the clerk until the verdict of such jury has
been recorded or such jury has been discharged, when such ballots
shall be returned to the box. If a case is ready for trial before the
verdict in the preceding case has been recorded or the jury dis-
charged, the court may order a jury for the trial of such issue to
be impanelled by the drawing in the manner aforesaid of ballots
from those remaining in the box.
Section 26. When a jury is to be impanelled for the trial of a
capital case, the clerk of the court shall cause the name of each
juror summoned therein to be written on a separate ballot and each
ballot to be folded uniformly in such manner that the name written
thereon shall not be visible, and shall cause such ballots to be placed
in a box provided for the purpose. He shall then in open court
draw the ballots in succession from said box, and the twelve persons
whose names are upon the ballots first drawn and who are not ex-
cused or otherwise set aside, shall be sworn as the jury for the
trial of the case.
Talesmen.
1699-1700,1, §4;
2, §4; 3, §5.
1784, 7, § 6.
1807, 140, § 7.
R. S. 95, §§ 24-
26.
G. S. 132, §§ 27,
28.
P. S. 170, §§ 33,
34.
6 Cush. 174.
Section 27. If, by reason of challenge or otherwise, a sufficient
number of jurors duly drawn and summoned cannot be obtained
for the trial of a case, the court shall cause jurors to be returned
from the bystanders or from the county at large, to complete the
panel, if there are on the jury not less than seven of the jurors
who were originally drawn and summoned as before provided.
The jurors from the bystanders shall be returned by the sheriff or
his deputy or by a disinterested person appointed therefor by the
court, and shall be such as are qualified and liable to be drawn as
jurors.
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Chap. 176.] juries. 1591
1 Section 28. Upon motion of either party, the court shall, or Examination
2 the parties or their attorneys may under the direction of the court, r t^3os"
3 examine on oath a person who is called as a juror therein, to learn 173^.7^.0', §5.
4 whether he is related to either party or has any interest in the case, iytaZf^ 1|' f 7*
5 or has expressed or formed an opinion, or is sensible of any bias or y-m^^&h
6 preiudice, therein ; and the objecting party may introduce other i"84, ?,'§ s!
_ . . © J. •/ «/ 1807 140 5 9
7 competent evidence in support of the objection. If the court finds r. i. 95,'§ 27.
8 that the juror does not stand indifferent in the case, another shall p.'l.ifo'fll'
9 be called in his stead. 13 Met. 120. 5Cush. 295. 6Cush. 174. i68p'ick?'i53.
113 Mass. 297. 139 Mass. 56. 145 Mass. 242. 157 Mass. 195, 510.
118 Mass. 531. 143 Mass. 136. 147 Mass. 585. 159 Mass. 57.
1 Section 29. Upon the trial of an indictment for a crime pun- Peremptory
2 ishable by death or imprisonment for life each defendant shall be m^M*'\ 13.
3 entitled to twenty-two peremptory challenges of the jurors called e^I*. is7,§§^" 3-5.
4 to try the case, and in other criminal cases each defendant shall be ^f'^Yi 3'4-
5 entitled to two such challenges. In every criminal case the com- i||H5f
6 mon wealth shall be entitled to as many such challenges as equal the 187.% 317!
7 whole number to which all the defendants in the case are entitled, p.'s. 170, §§ 36,
8 In a civil case each party shall be entitled to two such challenges. 1895, 12b: ' "
9 Peremptory challenges shall be made before the commencement of ioVMa?s'.546i2.
10 the trial and may be made after the determination that a person \f{ jj^- fjj-
11 called to serve as a juror stands indifferent in the case.
124 Mass. 32. 152 Mass. 397.
1 Section 30. In indictments and penal actions for the recovery interest not to
2 of a forfeiture, it shall not be a cause of challenge to a juror that when?11*7'
3 he is liable to pay taxes' in a county, city or town which may be g. 1. 132,§§230.
4 benefited by such recovery. „ ?MSa'ssTO9o! 38*
9 Met. 572. 1 Gray, 472. 2 Allen, 402. 147 Mass. 583.
1 Section 31. If a party knows of an objection to a juror in time objections,
2 to propose it before the trial and omits so to do, he shall not after- FLhsn9™a§d29.
3 ward make the same objection, unless by leave of the court. p'i.'no.'fS'
21 Pick. 471. 2 Met. 558. 2 Gray, 281. 121 Mass. 93. x Pick- 38> 196-
1 Section 32. No irregularity in a writ of venire facias or in the irregularities.
2 drawing, summoning, returning or impanelling of jurors shall be g'. s". 132, § 32.
3 sufficient to set aside a verdict, unless the objecting party has been fpfCk.'38,§m
4 injured thereby or unless the objection was made before the verdict. ^^^
139 Mass. 381.
1 Section 33. If either party to a case at the sitting at which a Gratuities.
2 verdict is returned, either before or after the trial, gives to any of r. s'. 95,'§ 31."
3 the jurors who try the case anything by way of treat or gratuity, p; |; ifo' | If."
4 the court may, upon motion of the adverse party, set aside the 2Allen> 556-
5 verdict and award a new trial.
1 Section 34. If a jury, after due and thorough deliberation, jury not to be
2 return to court without having agreed on a verdict, the court may thankee?1'6
3 state anew the evidence or any part thereof, explain to them anew i807e,si4of§'i5.
4 the law applicable to the case and send them out for further delib- *$• 1- ^/li
5 eration ; but if they return a second time without having agreed on p p?-^7o'lf 42-
6 a verdict, they shall not be sent out again without their own con- no Mass. 70.
1592
JURIES.
[Chap. 176.
115 Mass. 567.
116 Mass. 367.
122 Mass. 477.
sent, unless they ask from the court some further explanation of the 7
law. 123 Mass. 255, 506. 164 Mass. 440. 8
View by jury.
1746-7, 6.
1784, 7, § 9.
1807, 140, § 8.
R. S. 95, §33;
137, § 10.
G. S. 132, §35;
172, § 9.
P. S. 1"0, §43;
214, § 11.
5 Cusli. 298.
134 Mass. 499.
157 Mass. 579.
174 Mass. 245.
Section 35. The court may, upon motion, allow the jury in a 1
civil case to view the premises or place in question or any property, 2
matter or thing relative to the case if the party making the motion 3
advances an amount sufficient to defray the expenses of the jury 4
and the officers who attend them in taking the view ; which ex- 5
penses shall be taxed as costs, if the party who advanced them pre- 6
vails. The court may order a view by a jury impanelled to try a 7
criminal case. 8
PENALTIES.
Penalty for
neglect to
attend.
C L. 55, § 2.
1694-5, 24,
§§2-4.
1698, 13.
1741-2, 18, § 6.
1749-50, 5, § 6.
Section 36. A person duly drawn and summoned as a juror in 1
a court who neglects to attend without sufficient cause shall be pun- 2
ished by a line of not more than forty dollars, which shall be im- 3
posed by the court to which the juror was summoned, to the use of 4
the county in which the offence is committed. 5
1756-7, 13, § 6.
1759-«0, 29, § 6.
1784, 4, §§ 1, 2; 7, § 7.
1802, 92, § 3.
1807, 140, § 17.
R. S. 95, § 19.
G. S. 132, § 36.
P. S. 170, § 44.
— on officers,
etc., for neg-
lect.
1694-5, 24, §§ 1,
4.
1099-1700,1, §4;
2, §4; 3, §5.
1784, 4, §§ 1, 2;
7, §§ 3, 7.
1807, 140, § 17.
R. S. 95, § 39.
Section 37. If, by reason of the neglect of a person upon whom 1
any duty is imposed by the provisions of this chapter, jurors are 2
not duly drawn and summoned to attend a court, he shall be pun- 3
ished by a line of not more than twenty dollars, which shall be im- 4
posed by the court to which they should have been summoned, to 5
the use of the county in which the offence is committed. 6
G. S. 132, § 37. P. S. 170, § 45.
— in certain
other cases.
R. S. 95, § 40.
G. S. 132, § 38.
P. S. 170, § 46.
Section 38. If such neglect occurs with regard to jurors re- 1
quired to serve on any occasion other than in the supreme judicial 2
court or the superior court, the officer before whom the jurors were 3
required to appear shall report the fact to the superior court for 4
the same county, which, after an examination and a hearing, may 5
impose the line. 6
— for fraud in
drawing
jurors.
1793, 63, § 5.
1807, 140, § 17.
R. S. 95, § 41.
G. S. 132, § 39.
P. S. 170, § 47.
1894, 514, § 4.
Section 39. Whoever is guilty of fraud in the drawing of jurors, 1
either by tampering with the jury box previous to a draft or in 2
drawing a juror, or in returning' to the box the name of a juror 3
lawfully drawn out and drawing or substituting another in his 4
stead, or in striking a name from the jury list, or in any other 5
way, shall be punished by a fine of not more than five hundred 6
dollars. 7
SPECIAL JURIES.
iT^f8' Section 40. The provisions of this chapter shall not affect the 1
p.' 1' ifo' 1 48* Power and duty of any officer or magistrate to summon and im- 2
panel jurors when authorized by other provisions of law. 3
Chap. 177.] judgment and execution. 1593
CHAPTEE 177.
OF JUDGMENT AND EXECUTION.
Sections 1-23. — Entering Judgment ; Awarding and Issuing Execution.
Sections 24-26. — Special Judgments against Bankrupts or Insolvents.
Section 27. — Set-Off of Executions.
Sections 28-35. — Levy of Execution, and Personal Property Exempt There-
from.
Sections 36-45. — Sale of Personal Property taken on Execution.
Sections 46-51. — Levy on Corporate Shares.
Section 52. — Levy on Terms for Years.
Sections 53, 54. — Suspension of Levy.
Sections 55-57. — Death, etc. , of Officer or Party after Commencement of Levy.
Section 58. — Penalty on Officer for Detaining Money Collected.
ENTERING JUDGMENT ; AWARDING AND ISSUING EXECUTION.
1 Section 1 . Judgments in civil actions and proceedings in the Entry of judg.
2 supreme judicial court shall be entered on motion, unless the court R.es!'97, § i.
3 by general or special order otherwise orders. Judgments in civil G^m'.li1'
4 actions and proceedings in the superior court, which are ripe for f^ ^Ia™> \}-
5 judgment, shall, unless the court by general or special order other- igs Mass. 297.'
6 wise orders, be entered by the clerk on the first Monday of each
7 month, or on the next day thereafter if said Monday is a legal
8 holiday, unless the party entitled thereto otherwise requests in
9 writing.
1 Section 2. Judgment in civil actions and proceedings ripe for —in inferior
2 judgment in police, district and municipal courts shall be entered 189^431.
3 at ten o'clock in the forenoon on Friday of each week, but if a legal 1898>488-
4 holiday occurs on Friday, at ten o'clock in the forenoon of the
5 Thursday preceding ; or it may be entered at any time in a case
6 ripe for judgment upon notice and motion.
1 Section 3. Police, district and municipal courts may by rule —in summary
2 establish the time for the entry of judgment in actions of summary ?89M88.
3 process under the provisions of chapter one hundred and eighty-
4 one which are ripe for judgment.
1 Section 4. Every judgment, order or decree of the supreme Judgment
2 judicial court or the superior court shall bear date of the year, im! 89™ |unc'
3 month and day when it is entered ; but the court may order it to §;3)sj }]5' § U;
4 be entered as of an earlier day than the day of the entry. Frif^53' §20;
7 Mass. 395. 106 Mass. 341. 155 Mass. 86. 1885, 384, § 13.
12 Cush. 319. 137 Mass. 221. 173 Mass. 212.
1 Section 5. In an action upon a promissory note or other con- Assessment of
2 tract in which the amount due appears to be undisputed, the debt cierk.seBbythe
3 or damages may be assessed and ascertained by the clerk under a G.!".i33,§§44.
4 general order of the court or by a special reference of the case to p- s- 171> § *•
5 him. The judgment in either case shall be entered in the same
1594
JUDGMENT AND EXECUTION.
[Chap. 177.
form as if it had been awarded by the court on an assessment or 6
computation made by the court. 7
Judgment on
default.
R. S. 100, § 6.
1851, 255, § 1.
G. S. 133, § 5.
P. S. 171, § 5.
12 Cush. 486.
13 Allen, 217.
121 Mass. 347.
Section 6. In an action against two or more defendants upon 1
a contract express or implied, the plaintiff shall be entitled to judg- 2
ment against such defendants as are defaulted and against those 3
who upon trial are found liable, although it is found that all the 4
defendants are not jointly liable. m Mass. 504. 5
Separate exe-
cutions against
different de-
fendants.
1851, 255, § 2.
G. S. 133, § 6.
P. S. 171, § 6.
Section 7. If in such action any defendants are defaulted, and 1
upon trial any of the others are found liable, the court shall render 2
judgment both against those defendants defaulted and those found 3
liable for the debt or damages, with costs to the time of the default, 4
and against those who defend, for all costs which accrue after the 5
default ; and shall issue separate executions on such judgment. 6
Interest on
judgments,
etc.
1847, 153.
1849, 124.
G. S. 133, § 8.
P. S. 171, § 8.
2 Allen, 562.
6 Allen, 244.
116 Mass. 196.
136 Mass. 344.
139 Mass. 362.
Section 8. When judgment is made up upon an award of 1
county commissioners, a committee or referees, or upon the report 2
of an auditor or master in chancery, or upon the verdict of a jury, 3
interest shall be computed upon the amount of the award, report or 4
verdict, from the time when made to the time of making up the 5
judgment. Every judgment for the payment of money shall bear 6
interest from the day of its rendition. The warrant or execution 7
issued on a judgment for the payment of money shall specify the 8
day upon which judgment is rendered, and shall require the col- 9
lection or satisfaction thereof with interest from the day of its ren- 10
dition. 11
Judgment on
forfeiture of a
penalty.
1698, 22, § 1.
1735-6, 2.
1785, 22, § 1.
1798, 77, § 6.
R. S. 100, § 8.
G. S. 133, § 9.
P. S. 171, § 9.
11 Gray, 212.
Section 9. If in an action for a breach of the condition of a
bond, or to recover a penalty for the non-performance of a cove-
nant, contract or agreement, it is found that the condition has been
broken or the penalty forfeited, judgment shall be entered for the
penal sum, but no execution shall issue thereon except as is pro-
vided in the following sections.
97 Mass. 15. ^98 Mass. 516.
- . 12 Allen, 243.
136 Mass. 174. 155 Mass. 203.
1
2
3
4
5
6
— amount of
execution.
1698, 22, § 1.
1785, 22, § 1.
1798, 77, § 6.
R. S. 100, § 9.
G. S. 133, § 10.
P. S. 171, § 10.
13 Grav, 157.
100 Mass. 191.
105 Mass. 48.
135 Mass. 591.
Section 10. The court shall award an execution for so much 1
of the penal sum as is then due and payable in equity and good 2
conscience for the breach of the condition or other non-perform- 3
ance of the contract. The amount shall be determined by the court, 4
unless an assessment by a jury is claimed under the provisions of 5
section seventy-four of chapter one hundred and seventy-three or is 6
ordered by the court. 7
148 Mass. 562.
152 Mass. 569.
155 Mass. 203.
Scire facias to
recover further
damages.
1735-6, 2.
1798, 77, § 6.
R. S. 100, § 10.
G. S. 133, § 11.
P. S. 171, § 11.
Section 11. If a further amount afterward becomes due on such 1
bond or other contract, the plaintiff, his executor or administrator 2
may have a writ of scire facias on the judgment from the court in 3
which it was rendered against the original defendant, his executor, 4
administrator, heirs, devisees or assigns, stating a further breach of 5
the contract and summoning the adverse party to show cause why 6
execution should not be awarded upon the judgment for the dam- 7
ages caused by such further breach. 8
Chap. 177.]
JUDGMENT AND EXECUTION.
1595
1 Section 12. The amount due in such action shall be determined ^tk^toft^.
2 and execution awarded in the same manner as in the original action ; «?«• damages.
3 and such proceedings may be repeated upon further breaches until R. s. ido, §n.
4 the whole of the penalty is exhausted. p.* s." 171,' § 12.'
1 Section 13. The provisions of the four preceding sections shall daCmanesTn
2 not prevent a person from bringing an action for the breach of a stead of
3 covenant or other contract, instead of suing for the penalty by 1798, 77,'§6.
4 which the performance of the covenant or contract was secured. g! s. 133', § 13'.
P. S. 171, § 13.
1
2
3
4
5
6
7
Section 14. If a judgment is rendered for the plaintiff by a Executions in
court or trial justice in an action founded on a judgment rendered judgments,
by a different court or trial justice, execution shall not issue until 1898'489-
the plaintiff files with the court or trial justice rendering the judg-
ment in the later action a transcript of the record of the judgment
in the earlier action under the seal of the court or justice rendering
it, attested by the clerk of such court or by such justice.
1 Section 15. If judgment is rendered in a local action which ^^^^0-
2 has been brought in an erroneous venue, the court shall cause its i^ll6^-,.
3 writ of possession or other writ of execution to be directed to the i852;3i2!§79.'
4 sheriff of the proper county. 102 Mass. 370. 130 Mass. 335. p.' s.' 171,' § u.
1 Section 16. No execution shall be issued within twenty-four — when to
2 hours after the entry of judgment. 1783,57, §1. i784,28,§i5. c.8Le'3, §9.
R. S. 97, § 5. G. S. 133, § 15. P. S. 171, § 15. 8 Met. 496. 1701-2, 5, § 10.
Section 17. Executions issued by a police, district or munic- — to be served
justice may be served
3 every county to which they are directed.
2 ipal court or trial justice may be served and shall be obeyed in jm^-''"muy
1894, 398, § 2; 431. 1895, 380.
. 227, § 2.
P. S. 154, § 32.
1893, 396, § 17.
1
2
3
4
5
Section 18. An original execution shall not be issued after the —to issue
expiration of one year after the party is first entitled to take out y^ar'etc!16
the same ; and an alias or other successive execution shall not be J^J; ff; §
issued after the expiration of five years from the return day of that ^| 5977- §A-
which preceded it. g. s. 133, § 16. p. s. m, § 16. 138 Mass. 72. i859, 16.
1
2
3
4
5
6
Section 19. If a judgment remains unsatisfied after the expira- Remedy after
tion of the time for taking out execution thereon, the creditor may execution?1*1118
have a writ of scire facias to obtain a new execution, or he may at iffili,' 22! § 3*
any time after the judgment, subject to the provisions of section ^.^ ,(®- § L
nineteen of chapter two hundred and two, have an action of con- 1783, 57, § 1.
x 1795, 61, § 1.
tract thereon . R. s. 97, § 8.
G. S. 133, § 17.
P. S. 171, § 17.
114 Mass. 76.
174 Mass. 550.
1
2
3
4
5
6
7
Section 20. If an execution is returned satisfied in whole or in ineffectual
part by the sale of property not liable to such execution, and if im,'u5.
damages are recovered against the judgment creditor or the officer g. I*. llsffts.
who served the execution on account of the seizure and sale of such f Xnen1^!8"
property, the creditor may have a writ of scire facias on his judg-
ment, and shall thereupon be entitled to a new execution for the
amount then remaining due to him.
1596
JUDGMENT AND EXECUTION.
[Chap. 177.
Ineffectual
levy on
stockholder.
1851, 213.
G. S. 133, § 19.
P. S. 171, § 19.
Section 21. If an execution against a corporation is satisfied 1
in whole or in part by service or levy on the person or property 2
of a member thereof, and the property levied on or damages for 3
the service or levy are subsequently recovered by such member 4
from the officer or judgment creditor, the creditor may have a writ 5
of scire facias on his judgment, and shall thereupon be entitled to a 6
new execution for the amount then remaining due to him. 7
Forms of
executions.
C. L. 320, § 2.
1783, 58, § 1.
1784, 28.
R. S. 73, § 54;
97, §§ 10, 11.
1853, 269, § 1.
G. S. 133, §§ 20,
21.
P. S. 171, §§ 20,
21.
10 Met. 330.
3 Cush. 460.
122 Mass. 133.
161 Mass. 135.
Section 22. The forms of execution shall be the same as have 1
heretofore been established by law and the usage and practice of 2
the courts. Executions issued upon judgments in civil actions in 3
favor of the commonwealth shall be in form like those in favor of 4
natural persons. Executions issued by a police, district or munici- 5
pal court or a trial justice for an amount as damages exceeding 6
twenty dollars shall be so framed as to direct a levy upon the 7
lands and tenements of the debtor. Alterations in the forms may 8
from time to time be made by the courts, subject to the final 9
control of the supreme judicial court, which may by general rules 10
regulate such changes in all courts of the commonwealth. 11
Return of
execution.
1736-7, 19, § 1.
Section 23. All executions shall be made returnable within 1
sixty days after their date. 1763-4,7. 2
1783, 57, § 1.
r. s. 97, § 9.
1850, 209.
1852, 312, § 83.
1763-1, 7.
G. S. 133, § 22.
P. S. 171, § 22.
2 Met. 587.
163 Mass. 79.
Special judg-
ments against
bankrupts or
insolvents.
1885, 59.
1892, 209.
140 Mass. 69.
175 Mass. 559.
SPECIAL JUDGMENTS AGAINST BANKRUPTS OR INSOLVENTS.
Section 24. If a plaintiff would be entitled to a judgment or 1
to a decree, except for the bankruptcy or insolvency of the debtor 2
or his discharge therein, and if, more than four months prior to the 3
commencement of proceedings in bankruptcy, or, in voluntary pro- 4
ceedings in insolvency, more than four months prior to the time of 5
the first publication of the notice of the issuing of the warrant, or, 6
in involuntary proceedings, more than four months prior to the first 7
publication of the notice of the filing of the petition, any property, 8
estate, interest or money of a debtor has been attached, or brought 9
within the control of a court of equity by proceedings under the 10
provisions of clause seven of section three of chapter one hundred 11
and fifty-nine, by other proceedings in equity, or by payment into 12
court, the court may at any time upon motion enter a special judg- 13
ment or decree for the plaintiff, for the amount of his debt or dam- 14
ages and costs, or for such other relief as he may be entitled to, to 15
be enforced in the first instance only against the property, estate, 16
interest or money, so attached, or brought within the control of a 17
court of equity. If such property, estate, interest or money shall 18
be insufficient to satisfy the judgment or decree in full, the court 19
may thereafter, if the debtor's discharge shall be refused, or if he 20
shall unreasonably delay to prosecute said proceedings to a dis- 21
charge, order an alias or other successive execution or other process 22
to be issued upon such judgment or decree for such portion thereof 23
as remains unsatisfied. The creditor may also in case of such 24
refusal or delay have a writ of scire facias or action as provided in 25
section nineteen. The provisions of this section shall not impair 26
the powers which courts of equity may otherwise exercise. 27
Chap. 177.] judgment and execution. 1597
1 Section 25. If a plaintiff would be entitled to a judgment, ex- special judg-
2 cept for the bankruptcy or insolvency of a defendant, or his dis- ^entVtc.^has*
3 charge therein, who has given a bond to dissolve an attachment ||Hoiveanto
4 made more than four months prior to the commencement of pro- ^g^e™!"4,
5 ceedings in bankruptcy, or, in voluntary proceedings in insolvency, ^o'2^. §»•
,6 more than four months prior to the first publication of the notice i888,'405,'§i. '
n i- xu ■• c j-i i. • i j. j' • 100 Mass. 450.
7 ot the issuing ot the warrant, or, in involuntary proceedings in in- 112 Mass. 293.
8 solvency, more than four months prior to the first publication of 122 Mass! e??'
9 the notice of the filing of the petition, or, in proceedings in com- ill Mall! 22s'.
10 position in insolvency in which no assignment has been made, more 132 Mass. 40,
11 than four months prior to the notice by the register to the creditors no Mass. 179.
175 JVltiss 559
12 of the debtor's proposal of composition, the court may at any time,
13 upon motion, enter a special judgment for the plaintiff, which shall
14 be a sufficient judgment, within the meaning of chapter one hun-
15 dred and sixty-seven, to enable him to maintain an action against
16 the sureties on said bond.
1 Section 26. The court may enter a like judgment, with like — uponpeti-
2 effect, if a defendant who petitions for a review is adjudged a bank- review.
3 rupt, or against whose estate a warrant in insolvency is issued, or J^o', 246,§§3s.
4 who is discharged upon proceedings in composition if no assign- ^'8f '405' II4"
5 ment has been made, before or after having given the security re-
6 quired upon such petition, and if the attachment in the original
7 action was not made within the time named in the preceding
8 section.
SET-OFE OF EXECUTIONS.
1 Section 27. Executions between the same parties may, if re- setoff of exe-
2 quired by either party, be set off one against the other. In such ?732-3^si2, § 2.
3 case, the debtor in an execution which has been delivered to an of- Ho! 124.
4 ficer to be served shall deliver his execution to the same officer, ^- s- 97> §§ 74_
5 whether it is directed to him or to another officer, and the officer £. s- 133> §§ ^-
6 shall apply the smaller execution, so far as it will extend, to p. s. 171, §§ 25-
7 the satisfaction of the larger execution ; and the balance due on 7 Mass. 140.
8 the larger execution may be collected and paid by him as if there 105 Mass* 333"
9 had been no set-off ; but such set-off shall not be allowed :
10 First, If the creditor in one of the executions is not, in the 9 Met. 509.
11 same capacity and trust, the debtor in the other.
12 Second, If the amount due on the first execution was lawfully 13 Met. 482.
13 and in good faith assigned to another person before the creditor in
14 the second execution became entitled to the amount due thereon.
15 Third, If there are several creditors in one execution, from a
16 part of whom only the amount due on the other is due.
17 Fourth, If there are several debtors in one execution, to a part
18 of whom only the amount due on the other is due.
19 Fifth, As to the portion of either execution which is due to the 13 Mass. 525.
• 22 Pick 210
20 attorney out of the taxable costs therein.
LEVY OF EXECUTION, AND PERSONAL PROPERTY EXEMPT THERE-
FROM.
1 Section 28. If an execution is in the alternative, so that it 2S°ZSt
2 may be lawfully served in any of two or more ways, the creditor |e™ce.
3 or his attorney may require the officer to serve it in any of said o! s*. m, § 26.
1598
JUDGMENT AND EXECUTION.
[Chap. 177.
P. S. 171, § 28.
11 Mass. 317.
3 Cush. 460.
ways ; and the officer shall conform to such directions if it is in his 4
power. 2 Gray, 210. 3 Gray, 497. 5
Levy on land
and personal
property.
R. S. 97, §§ 16,
17.
G. S. 133, § 27.
P. S. 171, § 29.
7 Mass. 123.
Section 29. If the creditor directs an officer to levy his execu- 1
tion on land, the officer shall serve it as provided in the follow- 2
ing chapter. If he directs the officer to levy it on the personal 3
property of the debtor, the officer shall serve it as hereinafter pro- 4
vided. 5
of a^orpora^7 Section 30. An execution against a corporation, if levied upon
r°s'97§42 corporate property, shall be levied in the same manner as other
^•§.133, §28. executions, except as provided in chapters one hundred and nine,
P. S. 171, § 30.
one hundred and fifteen and one hundred and eighteen.
1
2
3
4
toreIecuttonble Section 31. All property which by the common law is liable 1
JM-™!,5*1™ to be taken on execution, may be taken and sold thereon, except 2
(jr. i5. 133, § 29. . .-11 r.
p. s. 171, §31. as otherwise expressly provided. 3
12 Mass. 506. 3 Pick. 368. 116 Mass. 410.
be taken on
ru s^* §°2o!' Section 32. Current gold or silver coin may
g. s. 133, §36. execution, and may be paid to the creditor as money collected.
P. S. 171, § 32. 16 Pick. 567.
Bank notes.
R. S. 97, § 21.
G. S. 133, § 31.
P. S. 171, § 33.
15 Mass. 534.
1 Pick. 271.
147 Mass. 94.
Property ex-
empt from
execution.
1805, 100, § 1.
1817, 108.
1832, 58.
15 Mass. 170.
19 Pick. 470.
10 Met. 506.
1805, 100, § 1.
1874, 38.
4 Cush. 359.
1805, 100, § 1.
1855, 264.
1805, 100, § 1.
1813, 172.
15 Mass. 205.
1805, 100, § 1.
1855, 264.
5 Mass. 313.
13 Mass. 82.
2 Pick. 80.
Section 33. Bank notes and all other bills or evidences of debt,
issued by a moneyed corporation and circulated as money, may be
taken on execution and paid to the creditor at their par value as
money collected, if he will accept them ; otherwise, they shall be
sold like other chattels.
Section 34. The following property of the debtor shall be ex-
empt from seizure on execution :
C L. 104, § 8.
1698, 11, § 5.
1732-3, 7, § 6.
1736-7, 13, § 7.
1737-8, 17, § 7.
1759-60, 12, § 4.
1762-3, 18, § 4.
R. S. 97, § 22.
1857, 235.
G. S. 133, § 32.
P. S. 171, § 34.
12 Gray, 351.
101 Mass. 105.
113 Mass. 333.
135 Mass. 401.
96 U. S. 595.
First, The necessary wearing apparel of himself and of his wife
and children ; one bedstead, bed and the necessary bedding for
every two persons of the family ; one iron stove used for warming
the dwelling house, and fuel not exceeding the value of twenty dol-
lars procured and intended for the use of the family.
Second, Other household furniture necessary for him and his
family, not exceeding three hundred dollars in value.
11 Allen, 582. 167 Mass. 373.
Third, The bibles, school books and library, used by him or his
family, not exceeding fifty dollars in value.
Fourth, One cow, six sheep, one swine and two tons of hay.
11 Gray, 211. 2 Allen, 219. 8 Allen, 583. 134 Mass. 401.
Fifth, The tools, implements and fixtures necessary for carry-
ing on his trade or business, not exceeding one hundred dollars in
Value. 10 Pick. 423. 6 Gray, 298. 7 Gray, 67, 69.
3 Allen, 570.
5 Allen, 43, 148.
6 Allen, 292.
6 Gray, 298.
9 Allen, 156.
14 Allen, 236.
101 Mass. 105.
1
2
1
2
3
4
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
108 Mass. 52.
123 Mass. 194.
173 Mass. 90.
Chap. 177.] judgment and execution. 1599
16 Sixth, Materials and stock designed and procured by him and gGra^^s
17 necessary for carrying on his trade or business, and intended to be Igrajr'6^
18 used or wrought therein, not exceeding one hundred dollars in 10 Gray, 242.
ln -, & to 5 Allen, 148..
19 Value. 6 Allen, 292. 9 Allen, 156. 11 Allen, 582.
20 Seventh, Provisions necessary and procured and intended for 1839, 75.
21 the use of the family, not exceeding fifty dollars in value. ie Gray, 211.
4 Allen, 157. 5 Allen, 158.
22 Eighth, One pew occupied by him or his family in a house of 1851> 262-
23 public worship ; but this provision shall not prevent the sale of a
24 pew for the non-payment of a tax legally laid thereon.
25 Ninth, The boats, fishing tackle and nets of fishermen, actually 1859,142.
26 used by them in the prosecution of their business, not exceeding
27 one hundred dollars in value.
28 Tenth, The uniform of an officer or soldier in the militia and 1809> 108> § u-
29 the arms and accoutrements required by law to be kept by him.
30 Eleventh, Rights of burial and tombs while in use as reposi- 1822> 93> § 8-
31 tories for the dead.
32 Twelfth, One sewing machine, in actual use by each debtor or by i860, 65.
33 his family, not exceeding one hundred dollars in value. linen; 292.'
34 Thirteenth, Shares in co-operative associations formed under 1870, 224, § 53.
35 the provisions of chapter one hundred and ten, not exceeding
36 twenty dollars in value in the aggregate.
1 Section 35. If there is reasonable doubt as to the ownership indemniflca-
2 of the property, or as to its liability to be taken on the execution, ^s.^fif*'
3 the officer may require sufficient security of the creditor to indem- £; |; Jff ' f U'
4 nify him for taking it. 15b Mass. 531.'
SALE OF PERSONAL PROPERTY TAKEN ON EXECUTION.
1 Section 36. Personal property seized on execution shall be saieofprop-
2 safely kept by the officer, at the expense of the debtor, for four tIolon execu"
3 days at least ; and shall be sold by public auction within fourteen ngfi^fo.
4 days next after the seizure, except as hereinafter provided, unless g sisVsIji
5 the debtor before such sale redeems it by otherwise satisfying the £• £• m,' § 36.
J J & 14 Mass. 473.
6 execution. 7Gray,416.
1 Section 37. The officer shall give notice of the time and place Notice of sale.
2 of the sale, by causing notices thereof to be posted forty-eight ito^Iv^'s.
3 hours at least before the time of sale in a public place in the city <?; §; ^i^\%>.
4 or town in which the sale is to be made, or by causing an advertise- p- s- 171« §37-
5 ment of the time and place of sale to be published in a newspaper
6 published in the county.
1 Section 38. If the value of such property to be sold exceeds -if value
2 three hundred dollars, the officer shall, at the request of either hUnfrdedthree
3 party, give notice of the sale by advertisement in a newspaper as E° s!^', § 25.
4 provided in the preceding section ; and the sale may be made at ^; |; j3*- | ff •
5 any time after the expiration of four days, and within thirty days
6 after the seizure on execution.
1 Section 39. If, at the time appointed for the sale, the officer Adjournment
2 considers it for the interest of all persons concerned to postpone the r. |a 97, § 26.
1600
JUDGMENT AND EXECUTION.
[Chap. 177.
G. S. 133, §37.
P. S. 171, § 39.
9 Mass. 265.
sale, he may adjourn it for not more than seven days, and so from 3
time to time, until the sale is completed ; giving notice of every 4
such adjournment by a public declaration thereof at the time and 5
place previously appointed for the sale. 6
Adjournment
upon injunc-
tion.
1884, 175.
Section 40. If a sale of such property or execution is enjoined, 1
it may be adjourned by the court granting the injunction to await 2
the further order of the court and upon the dissolution of the in- 3
junction, the court may order the sale to proceed, and may order 4
additional notice of the adjourned sale. 5
Re-sale.
R. S. 97, § 27.
G. S. 133, § 38.
P. S. 171, § 40.
7 Mass. 392.
Section 41. If the highest bidder for an article at such sale re- 1
fuses to take and pay for it, the officer shall sell it again by auction, 2
at the same time or within ten days thereafter, giving notice of the 3
second sale ; and he shall account for what he receives on the second 4
sale, and for any damages recovered of the first bidder for a loss on 5
the re-sale, as for so much received on the execution. 6
Return of exe-
cution. Lia-
bility for
fraud.
1783, 57, § 5.
R. S. 97, § 28.
G. S. 133, § 39.
P. S. 171, § 41.
102 Mass. 427.
Section 42. The officer who makes such sale shall in his return 1
of the execution particularly describe the property sold and the 2
amount for which each article was sold ; and if he is guilty of fraud 3
in the sale or return, he shall be liable in an action of tort to the 4
party injured for five times the amount of the actual damage sus- 5
tained by reason of such fraud. 6
Disposition of
proceeds of
sale.
1772-3, 12.
1783, 57, § 5.
R. S. 97, § 29.
G. S. 133, § 40.
Section 43. The officer shall apply the money arising from the 1
sale to paying the charges and satisfying the execution, and shall 2
return the residue, if any, to the debtor on demand, or shall apply 3
and pay over the same as provided in the following sections. i
P. S. 171, § 42.
126 Mass. 101.
— among two
or more
creditors.
1804, 83, § 6.
1819, 87.
R. S. 97, § 30.
G. S. 133, § 41.
P. S. 171, § 43.
Section 44. If the property sold on execution has been attached 1
by another creditor, or seized on another execution, either by the 2
same or another officer, or if before the payment of such residue 3
to the debtor another writ of attachment or execution against him 4
is delivered to the officer who made the sale, the proceeds of the 5
sale shall be applied to the discharge of the several judgments 6
in the order in which the respective writs of attachment or execu- 7
tion were served, and the residue, if any, shall be returned to the 8
debtor. 9
— upon suc-
cessive attach-
ments.
1804, 83, § 6.
1819, 87.
R. S. 97, § 31.
G. S. 133, § 42.
P. S. 171, § 44.
9 Mass. 265.
Section 45. If an attachment or seizure on execution is made 1
of a share in an incorporated company or of any other property 2
which may be attached without taking and keeping the exclusive 3
possession thereof, and if the same property is subsequently attached 4
or taken on execution by another officer, he shall give notice thereof 5
to the officer who makes the sale under the first attachment or seiz- 6
ure ; and if the latter, before he receives such notice, pays to the 7
debtor the balance of the proceeds of the sale, he shall not be 8
liable therefor to the person who claims under such subsequent 9
attachment or seizure. 10
Chap. 17 7. J judgment and execution. 1601
LEVY ON CORPORATE SHARES.
1 Section 46. The shares or interest of a stockholder in a corpo- Levy on shares
2 ration which is established under the laws of this commonwealth, tfonsrpora"
3 or of the United States and located or having a general office in r0!'.8^!1^.
4 this commonwealth, may be taken on execution and sold as herein- ?a-J-}B>ki3-
5 after provided. p. s. m, § 45.
1 Section 47. If the property has not been attached in the action Proceedings.
2 in which the execution has been issued, the officer shall leave an r?|.97,§§37.
3 attested copy of the execution with the clerk, treasurer or cashier p.* |; iff; | H."
4 of the company, if there is any such officer ; otherwise, with any
5 officer or person who has the custody of the books and papers of the
6 corporation ; and the property shall be considered as seized on ex-
7 ecution when the copy is so left, and shall be sold in like manner
8 as personal property is sold on execution.
1 Section 48. If the shares or interest have been attached in the same subject.
2 same action, the officer shall proceed in seizing and selling it on the r0s.937,§§38.
3 execution in the same manner as in selling other personal property, p." |." 171,' | II."
1 Section 49. The officer of the company who is appointed to officer of com.
2 keep a record or account of the shares or interest of the stockholders ^ethe'shares
3 therein shall, when the execution is exhibited to him, give a certifi- ilo4,e83,0§4-
4 cate of the number of shares or amount of the interest held by the g l'.i33§§346.
5 judgment debtor, in like manner and upon the like penalty as is p- s- 171> § 4s-
6 provided in chapter one hundred and sixty-seven relative to a writ
7 of attachment.
1 Section 50. An attested copy of the execution and of the New certifi.
2 return thereon shall, within fourteen days after the sale, be left with chaser.pur"
3 the officer of the company whose duty it is to record transfers of r0!.8^', §40.
4 shares ; and the purchaser shall thereupon be entitled to a certifi- j*- §; ffi 1 *7;
5 cate of the shares bought by him upon paying the fees therefor
6 and for recording the transfer.
1 Section 51. If the shares or interest of the judgment debtor are Dividends
2 attached in the action upon which the execution issued, the pur- ment.a
3 chaser shall be entitled to all the dividends which have accrued r0!'. ^I^i
4 after the attachment. g. s. 133, § 48. p. s. 171, § 50.
LEVY ON TERMS FOR YEARS.
1 Section 52. Terms for years, if the original lease was for one Levy on terms
2 hundred years or more, and fifty years or more thereof remain lewf i62,S§ i-
3 unexpired, shall be regarded as real estate, for the levy of an ex- ^f/IJ^f;
4 ecution thereon. Other terms for years shall be seized and sold p; f ; J??; f If;
5 on execution in like manner as personal property, except that the 142 Mass. 212.
6 officer before selling the same shall give fourteen days' notice of the
7 time and place of sale, by leaving a notice thereof in writing with
8 the debtor personally or at his last and usual place of abode, and
9 by posting a notice on the leased premises.
1602
JUDGMENT AND EXECUTION.
[Chap. 177.
Suspension of
levy.
R. S. 97, § 34.
G. S. 133, § 50.
P. S. 171, § 52.
SUSPENSION OP LEVY.
Section 53. If personal property has been seized on execution, 1
and the further service of the execution is suspended by reason of a 2
prior attachment or seizure of the same property, such property 3
shall remain bound by such later seizure until it is sold, in whole 4
or in part, under the prior attachment or seizure, or until that 5
attachment or seizure is dissolved. 6
Same subject.
R. S. 97, § 35.
G. S. 133, § 51.
P. S. 171, § 53.
Ill Mass. 84.
Section 54. If such property is sold in part under the prior 1
attachment or seizure, or if that attachment or seizure is dissolved, 2
the property or such part thereof as remains undisposed of shall 3
continue bound for thirty days thereafter by the seizure on the 4
execution ; and the service of the execution may be completed as 5
if the estate had been first seized thereon within said thirty days 6
although the return day of the execution has passed. 7
Death, etc., of
officer after
beginning of
levy.
R. S. 97, § 13.
G. S. 133, § 52.
P. S. 171, § 54.
1885, 125.
2 Pick. 276.
14S Mass. 501.
DEATH, ETC., OF OFFICER OR PARTY AFTER COMMENCEMENT OF LEVY.
Section 55. If an officer, who has begun to serve an execution, 1
dies or becomes incapable of completing the service and return 2
thereof, the service may be completed by any other officer qualified 3
to serve the execution ; or in case of illness or absence, the judg- 4
ment creditor or the officer who began to serve the execution may 5
delegate any other officer qualified to serve the execution tempo- 6
rarily to act for him during said illness or absence. If the first 7
officer has not made a certificate of his doings, the second officer 8
shall certify whatever he finds to have been done by the first officer 9
and shall add thereto a certificate of his own doings. 10
Removal, etc.,
of officer after
beginning of
levy.
R. S. 97, § 14.
G. S. 133, § 53.
P. S. 171, § 55.
Section 56. If an officer has begun to serve an execution, 1
he may complete the service and return thereof, although he is 2
removed from office or although the service cannot be completed 3
until after the return day. 9 Mass. 393. 3 Met. 253. i66Mass. 36. 4
Death of
party after
beginning of
levy.
R. S. 97, § 15.
G. S. 133, § 54.
P. S. 171, § 56.
9 Mass. 209.
3 Met. 253.
Section 57. If either party dies after any property, real or 1
personal, has been seized on execution, the service thereof may be 2
completed in like manner and with the same effect as if both parties 3
were living and the officer may appoint an appraiser for the de- 4
ceased party. 5
Penalty for de-
taining money
collected.
1736-7, 19, § 2.
1784, 44, § 3.
R. S. 97, § 73.
G. S. 133, § 56.
PENALTY ON OFFICER FOR DETAINING MONEY COLLECTED.
•
Section 58. An officer who, upon demand by the creditor, 1
unreasonably neglects to pay money collected by him on execution 2
shall forfeit to the creditor five times the lawful interest of the 3
money from the time of the demand until it is paid. 4
P. S. 171, § 57. 7 Mass. 464. 4 Met. 149.
Chap. 178.] levy of executions on land. 1603
CHAPTER 178.
OF THE LEVY OF EXECUTIONS ON LAND.
Sections 1, 2. — Land Subject to Levy.
Sections 3-6. — Proceedings upon Levy.
Sections 7-25. — Levy by Set-Off.
Sections 26-30. — Levy by Sale.
Sections 31, 32. — Suspension of Levy.
Sections 33-42. — Right of Redemption.
Sections 43-55. — General Provisions.
LAND SUBJECT TO LEVY.
1 Section 1. All the land of a debtor in possession, remainder Land and
2 or reversion, all his rights of entry into land and of redeeming begteken!ble t0
3 mortgaged land, and all such land and rights which have been mt-$if§i?'
4 fraudulently conveyed by him with intent to defeat, delay or defraud ^"lAf 2' 4
5 his creditors, or which have been purchased or directly or indirectly f^-fy §| V3*--
6 paid for by him but the record title of which has been retained in the ^55, 453!
7 vendor or conveyed to a third person with intent to defeat, delay p.' s." 172' § 1.'
8 or defraud the creditors of the debtor, or on a trust for him, express iAii^'235.'
9 or implied, whereby he is entitled to a present conveyance, may, Jumps'. k».
10 except as provided in chapter one hundred and thirty-one, be taken 1I5 Mass' 278
11 on execution for his debts as hereinafter provided.
150 Mass. 289. 151 Mass. 71. 175 Mass. 373.
1 Section 2. Estates tail may be taken on execution in like Estates tan.
2 manner as estates in fee simple ; and whoever lawfully holds such r. s. 73, §2.
3 land under the execution shall have an estate in fee simple therein, p." f." 172' 1 1."
3 Gray, ie2. '
PROCEEDINGS UPON LEVY.
1 Section 3. When an officer takes land on execution, he shall appircaeisaan1d
2 give notice of the taking to the debtor, if found within his precinct, g. |. 73, § 22.
3 cause the land to be appraised as hereinafter provided, if an ap- p." s." 172' §3.'
. Ill Mass 84
4 praisal is required, and shall complete the levy without unnecessary 124 Mass! 172.
5 delay. 130 Mass. les.
1 Section 4. If land which was not attached on mesne process in Taking of land
2 the action in which the execution issued is taken on execution, the i8°62?i9o?§§M.
3 officer shall forthwith deposit in the registry of deeds for the county {373; 297; § 1
4 or district in which the land lies a copy of the execution with a ^Mass'. 195.
5 memorandum thereon that the execution is in his hands for the
6 purpose of taking the land of the defendant, and no such taking
7 shall be valid against a purchaser in good faith, for value and with-
8 out notice, before such copy is deposited.
1 Section 5. The register shall note on every such copy the day, Entries by
2 hour and minute when he receives it and shall file it in hio office. i8li,si9o', § 2.
3 He shall enter in the book, kept by him for the entry of attach- BAiie^le^.
4 ments of land, the names of the plaintiff and defendant as stated in
5 the copy and the time when the copy was deposited.
1604
LEVY OF EXECUTIONS ON LAND.
[Chap. 178.
Fees.
1862, 190, § 3.
P. S. 172, § 6.
Section 6. The officer shall be entitled to receive for travel 1
four cents a mile from the place where he received the execution to 2
the office of the register and his fee for the copy. The fee of the 3
register shall be twenty-five cents, which shall be paid when the 4
copy is deposited in his office. 5
Appointment
of appraisers.
1716-17, 3, § 1.
1719-20, 9, § 1.
1783, 57, § 2.
R. S. 73, §§ 3,
22.
1851, 257.
1852, 256.
G. S. 103, §§ 3,
24.
P. S. 172, § 7.
8 Mass. 113.
11 Mass. 468.
2 Pick. 382, 443.
8 Met. 599.
Duties of ap-
praisers.
1716-17, 3, § 1.
1719-20, 9, § 1.
1783, 57, § 2.
R.S.73,§§3,
4,7.
1848, 317.
1851, 257.
G. S. 103, §§ 3,
4.7.
P. S. 172, §§8, 9.
7 Mass. 71.
8 Mass. 284.
14 Mass. 143.
2 Pick. 331, 382,
564.
Estate to be
valued as a fee
simple, unless.
R. S. 73, § 8.
G. S. 103, § 8.
P. S. 172, § 10.
14 Mass. 404.
1 Met. 345.
125 Mass. 7.
LEVY BY SET-OFF.
Section 7. The officer shall cause the land to be appraised by
three disinterested persons, one of whom shall be appointed by the
creditor, one by the debtor whose land is taken or, if the debtor is
absent from or does not reside in the commonwealth, by his agent
or attorney if he has any known to the officer, and the third by the
officer. If the debtor is absent from or does not reside in the com-
monwealth and has no agent or attorney known to the officer or if
he neglects within a reasonable time to appoint an appraiser, the
officer shall appoint one for him.
2 Cush. 32.
15 Gray, 28.
2 Allen, 338.
110 Mass. 529.
113 Mass. 347.
114 Mass. 429.
122 Mass. 267.
126 Mass. 93.
Section 8. The appraisers shall be sworn, before a justice of
the peace or the officer, faithfully and impartially to appraise the
land shown to them as taken on the execution, shall, with the officer,
view the same and shall make such examination of it as may be
necessary to form a just estimate of its value. A certificate of
their appraisal signed by them shall be indorsed on the execution ;
but if one of the appraisers who was sworn and acted with the
others refuses to sign the certificate, the certificate of the others
shall be sufficient.
Section 9. The value of the estate of the debtor shall be ap-
praised as an estate in fee simple in possession, unless it is expressly
stated in the description indorsed on the execution to be a less
estate. All the freehold estate and interest which the debtor has
in the land shall be taken and shall pass by the levy, unless it is a
larger estate than is mentioned in said description.
1
2
3
4
5
6
7
8
9
1
2
3
4
5
6
7
8
9
1
2
3
4
5
6
Appraisal of
land subject to
mortgage.
R. S. 73, § 31.
G. S. 103, § 33.
P. S. 172, § 11.
4 Met. 404.
10 Cush. 526.
97 Mass. 339.
Section 10. If a right of redeeming mortgaged land is taken 1
and set off on execution, the appraisers shall deduct the value of the 2
encumbrance or the amount of the mortgage debt, when known, 3
from the appraised value of the land, and the amount so deducted 4
shall be stated in the return of the execution. 125 Mass. 66. 5
— when sev-
eral parcels are
levied on.
R. S. 73, § 6.
G. S. 103, § 6.
P. S. 172, § 12.
7 Mass. 71.
11 Mass. 515.
2 Pick. 382.
10 Allen, 494.
Description of
land in certifi-
cate.
R. S. 73, § 5.
G. S. 103, § 5.
P. S. 172, § 13.
9 Mass. 92.
11 Mass. 515.
4 Met. 404.
Section 11. If the execution is levied at the same time upon 1
several parcels of land, each parcel may be separately appraised, or 2
all may be appraised together. If several parcels are taken succes- 3
sively on the same execution, all the parcels may be appraised by 4
the appraisers first appointed, or appraisers may be appointed for b
each parcel. 6
Section 12. The land levied upon, whether it is an entire parcel 1
or an undivided part, and whether the debtor's estate therein is a fee 2
simple or any less estate, and whether it is in possession, reversion 3
or remainder, shall be described, by metes and bounds or otherwise, 4
with as much precision as is necessary in a deed of land, and in such 5
Chap. 178.] levy of executions on land. 1605
6 manner that the land may be known and identified. Such de- ioMet.62.
7 scription may be contained in the certificate of the appraisers or in f Gray,' m\
8 the return of the officer, and the description in either may be re- 125 Mass- 7\
9 ferred to and adopted in the other.
1 Section 13. If land is held by a debtor in joint tenancy or as a Levy oniand
2 tenant in common, the share thereof which belongs to the debtor ^2"
3 may be taken on execution, and shall thereafter be held in common nfl. %', §9.
4 with the cotenant. If the whole share of the debtor is more than p" f ' Jyf' f 14
5 sufficient to satisfy the execution, the levy shall be made upon such i2Mass.348,
6 undivided portion of such share as will, in the opinion of the ap- 13 Mass. 57.
7 praisers, satisfy the execution, and such undivided portion shall be
8 held in common with the debtor and the other cotenant.
1 Section 14. If the land levied upon cannot be divided without — on land in.
2 damage to the whole and is more than sufficient to satisfy the division.
1 81 8 "II ^ S 1
3 execution, the levy shall be made upon such undivided portion of r. s. 73,'§ 10.
4 the whole as will, in the opinion of the appraisers, satisfy the exe- p.' I; i?l,' § 15.'
5 cution, and such undivided portion shall be held in common with 111Mass-83-
6 the debtor.
1 Section 15. An estate for life may be taken and set off to the — on life estate.
2 creditor like other land at the appraised value or, at the election of §! li io3,Vii.
3 the creditor, the execution may be levied on the rents and profits. loMass^of'
15 Mass. 439.
1 Section 16. If the execution is levied on rents and profits, the —on rents and
2 annual value thereof shall be determined by the appraisers, and the W°i^s, § 12.
3 land shall be set off to the creditor for such time as will satisfy p- §; ™\' f }f;
4 the execution at the rate of rents and profits as determined by the
5 appraisers, if the life estate endures so long, computing interest on
6 the amount due on the execution and deducting the rents and profits
7 as they accrue as so much paid from time to time. If the life estate
8 expires before the end of the term so fixed by the appraisers, the
9 creditor may have a new action on the judgment to recover the
10 amount then due thereon.
1 Section 17. If the land levied upon is under lease to a third ^n<dnlea8ed
2 person, and the reversion of the whole is taken on the execution, gf-7^5*1?!
3 the lessee shall pay to the creditor the rent which accrues after the p." s! 172! § is.
4 levy, except such part thereof as he has paid before notice of the
5 levy.
1 Section 18. If the land is under lease as aforesaid and the same subject.
2 reversion of a part only is taken, the appraisers shall determine g! s! 103, § 14.
3 what portion of the whole annual rent shall be paid to the creditor, n Mas^'439?'
4 and the lessee shall pay the same to him.
1 Section 19. The officer who serves an execution shall deliver officer to de-
2 to the creditor or to his attorney seisin and possession of the land creditor?111 10
3 taken thereon, so far as the nature of the estate and the title of the i™^7,; l't | \\
4 debtor will admit ; but if the estate taken is a remainder, reversion pj8| ^ §§415
5 or right of redemption, the officer shall not oust the person who p* §• Jig' f 20'
6 is lawfully in possession of the land, but shall assign to the creditor 2 Pick. 382.
1606
LEVY OF EXECUTIONS ON LAND.
[Chap. 178.
the right which the debtor had therein, and shall make his return 7
in accordance therewith. 8
Momentary-
seisin, when.
R. S. 73, § 16.
G. S. 103, § 16.
P. S. 172, § 21.
3 Mass. 523.
128 Mass. 427.
Return and
record of
execution.
1696, 10, § 2.
1716-17, 3, § 1.
1719-20, 9, § 1.
1735-6, 9, § 2.
1783, 57, § 2.
R. S. 73, § 17.
G. S. 103, § 17.
P. S. 172, § 22.
1895, 437.
Section 20. If an execution is levied on land of which a person 1
other than the debtor is actually seised, the officer shall deliver to 2
the creditor or to his attorney such momentary seisin and possession 3
of the land as will enable the creditor to maintain an action therefor 4
upon his own seisin ; but the officer shall not oust the tenant then 5
in possession. 6
Section 21. The officer shall return the execution, with a cer- 1
tificate of his doings indorsed thereon, to the court or trial justice 2
to which or to whom it is returnable, and such execution and cer- 3
tificate shall be forthwith recorded. The officer shall also, within 4
three months after the levy has been completed, cause the execution 5
and return to be recorded in the registry of deeds for the county or 6
district in which the land lies . lo Mass. 137. 135 Mass. 65. 14S Mass. 501. 7
Effect of
record.
1853, 269, § 2.
G. S. 103, § 18.
P. S. 172, § 23.
Section 22. Such record in the registry of deeds of an execu- 1
tion issued by a police, district or municipal court or by a trial 2
justice, and of the levy thereon, shall be prima facie evidence of 3
the regularity of the judgment and prior proceedings in the case in 4
which the execution was issued. 5
Officer's re-
turn.
R. S. 73, § 23.
1852, 256.
G. S. 103, § 25.
P. S. 172, § 24.
11 Mass. 515.
13 Mass. 361.
14 Mass. 20, 143.
2 Pick. 330.
9 Met. 413, 476.
10 Met. 62.
2 Cush. 417.
8 Gray, 427.
15 Gray, 28.
16 Gray, 334.
4 Allen, 406.
12 Allen, 543.
97 Mass. 310.
101 Mass. 418.
103 Mass. 151.
Ill Mass. as, 84.
118 Mass. 517.
124 Mass. 172.
125 Mass. 7.
126 Mass. 93.
Levy void,
when.
R. S. 73, § 18.
G. S. 103, § 19.
P. S. 172, § 25.
Section 23. The return of the officer on the execution shall, in 1
addition to the other requirements of law, set forth substantially : 2
First, The time when the land was taken on execution. 3
Second, Either that the appraisers were appointed by the of- 4
ficer, the creditor and the debtor, or that the debtor was absent 5
from, or not resident in, the commonwealth and had no agent or 6
attorney known to the officer, or neglected to appoint an appraiser, 7
and the officer appointed one for him. 8
Third, That the appraisers were duly sworn, unless a certificate 9
of the oath is indorsed on the execution and signed by the justice, 10
special commissioner or officer who administered it. 11
Fourth, That they appraised and set off the land at the value 12
stated. 13
Fifth, That the officer either delivered seisin thereof to the 14
creditor or to a person as his attorney, or assigned the same to him 15
as provided in the case of a remainder or incorporeal estate. 16
Sixth, The description of the land unless it is sufficiently de- 17
scribed in the certificate of the appraisers and the return refers to 18
and adopts that description ; and 19
Seventh, If the appraisal is signed by only two of the appraisers, 20
that all three of them were present and acted in the appraisal. 21
Section 24. If the execution and return are not recorded in 1
the registry of deeds within three months as aforesaid, the levy 2
shall be void as against a creditor who has attached the same land 3
or taken it on execution without notice of such levy, and also as 4
against a purchaser in good faith for value and without such notice ; 5
but if such execution and return are recorded after the expiration 6
of the three months, the levy shall be valid and effectual as against 7
a conveyance, attachment or levy made after such recording. 8
Chap. 178.] levy of executions on land. 1607
1 Section 25. If the execution and return have not been returned Levy valid
against the
2 or recorded as aforesaid, the levy shall be so far valid against the creditor.
3 creditor that he shall not waive the lew and have a new execution, g!s!io3,§2o.
4 except as provided in section fifty. ' '
LEVY BY SALE.
1 Section 26. Land and rights mentioned in section one and ^y5gy§fle-
2 rights of redeeming land sold for the payment of taxes and other 179s) hi', § 3!
3 assessments may, if the creditor so elects, be sold on the execution r. s. 73, §§'37,
4 as hereinafter provided, and, after satisfying the execution with the G.'s/io3,§§39,
5 costs and charges, the surplus proceeds of the sale shall be applied i874,i88,§§i,2.
6 and disposed of as provided upon a sale of personal property on pfjg'.rre §27.
7 execution under the provisions of the preceding chapter. Land or loi^Mass4^
8 rights taken on an execution in favor of the commonwealth shall in 128 Mass. 369!
9 all Cases be SO Sold. 129 Mass. 210. 133 Mass. 374. 140 Mass. 373.
1 Section 27. The officer authorized to serve the execution shall saie.how
made.
2 make the sale by public auction to the highest bidder, and shall gas, 77, §§ 3, 5.
3 convey by deed to the purchaser all the debtor's title to the land or g! s! 103, § 46.
4 rights so sold. Such deed shall, if the execution with the return 10" Met 13!.
5 thereon has been returned, be valid as against the debtor or any linen, 357'.
6 person claiming under him who has actual notice thereof and, if \H Mass! 427!
7 recorded within three months after such sale in the registry of JfgMass
8 deeds for the county or district in which the land lies, shall be
9 valid as against any other person.
65.
148 Mass. 501.
1 Section 28. The officer shall, thirty days at least before the —notice of.
2 sale, deliver to the debtor, if found within his precinct, a written b. s. 73, § 39.
3 notice of the sale and shall post a notice of the sale in a public r.'s!i72>'§29.'
4 place in the city or town in which the land lies and also in two ¥va&.%sl'
5 adjoining cities or towns, if there are so many in the county. The i^Massfisi.
6 officer shall also cause a notice of the time and place of sale to be 164 Ma6s- m-
7 published three weeks successively before the sale in a newspaper,
8 if any, published in the county in which the land lies.
1 Section 29. If, at the time appointed for the sale, the officer —adjournment
2 considers it for the interest of all persons concerned to postpone the 1798, 77, § 4.
3 sale, he may adjourn it for not more than seven days, and so from g!s!io3, §42.
4 time to time until the sale is completed ; giving notice of every such fpfck.'lbl.30"
5 adjournment by a public declaration thereof at the time and place 101Mass.409.
6 previously appointed for the sale.
1 Section 30. The provisions of section forty of chapter one —adjournment
2 hundred and seventy-seven relative to adjournment by order of court i884, i75?ur '
3 shall apply to such sales.
SUSPENSION OF LEVY.
1 Section 31. If land has been seized on execution and the further suspension of
2 service of the execution is suspended by reason of a prior attach- r7s! 97, § 34.
3 ment or seizure of the same land, the officer making the later seizure P; §; mil as."
4 shall cause a record thereof to be made in the same manner as an ^t40^ ^
5 attachment of land on mesne process is recorded. Such record shall ^f^0^
1608 LEvr or executions on land. [Chap. 178.
be sufficient notice of said seizure, and the levy on such land shall 6
be considered as having been made at the time of such seizure if 7
such record is made within three days thereafter ; otherwise, at the 8
time when said record is made. The land shall remain bound by 9
such seizure until it is set off or sold in whole or in part, under the 10
prior attachment or seizure or until that attachment or seizure is 11
dissolved. 12
Tfte^dfssaiu- Seotion 32. If the land is set off or sold in part under the prior 1
attachment* attachment or seizure, or if that attachment or seizure is dissolved, 2
g s i33§«35i ^e *an(^ or SUC^ Par^ thereof as remains undisposed of shall continue 3
p.' s.' i7i,' § 53.' bound for thirty days thereafter by the seizure on execution and the 4
in Mass. 84! service of the execution may be completed as if the land had been 5
first seized thereon within said thirty days although the return day 6
of the execution has passed. 7
EIGHT OF REDEMPTION.
demptfJiT" Section 33. If land or rights have been taken and set off on 1
i735^9f'§§3^" execution the debtor may within one year after the levy or, if such 2
1783, 57, § 3; 58, ian(j or rights have been sold on execution, within one year after 3
1798, 77, § 5. such sale or within the time and upon the terms provided in section 4
k. s'. 73,'§§ 24, forty-seven, redeem the same by paying or tendering to the cred- 5
g! s.'ibs', §§ 26, itor or purchaser, as the case may be, the amount for which they 6
i874?i88,'§3. were so set off or sold with interest thereon from the time of the 7
p.7!'. 172, §§3i, levy> aH amounts paid for lawful taxes and assessments, reasonable 8
fpick 485 expenses incurred for repairs and improvements and, in case of levy 9
I Meth511<i-1 by set-off, all amounts lawfully paid on account of any mortgage or 10
13 Alien, 262. other lien recoverable under the provisions of section forty-eight, 11
and deducting from such amount in each case the rents and profits 12
received or which might have been received by the creditor or pur- 13
chaser and with which he is lawfully chargeable. The creditor or 14
purchaser shall thereupon deliver to the debtor a deed of release, 15
prepared by the debtor or at his expense, of the land or rights so 16
taken and set off or sold. 17
^/amountd^e Section 34. The debtor may in all cases cause the amount due 1
k8| 5"3 §«325 for redemption to be ascertained at his own expense by three jus- 2
g'. s! io3, § 27. tices of the peace in the manner folio wing : one of the justices shall 3
be chosen by the debtor, one by the creditor, and the third by the 4
two first chosen ; or if the creditor neglects to choose one, the jus- 5
tice chosen by the debtor shall appoint the other two. After a 6
hearing before the three justices, they or two of them shall make 7
and sign a certificate of the amount which they adjudge to be due 8
for the redemption of the land, which certificate shall be final and 9
conclusive between the parties. A tender by the debtor of the 10
amount so adjudged to be due shall be a sufficient tender notwith- 11
standing any previous tender. 12
mort^epaid Section 35. If the creditor or, in case of a sale, the purchaser 1
by creditor or pays the debt due on a mortgage to which the land levied on is 2
purchaser. r j o o
1815, 137, §1. subject, the judgment debtor may redeem the mortgage from the 3
36,43.''' creditor or purchaser at the time when, and upon the terms upon 4
38, 45.103' §§ 36~ which, he might have redeemed it from the mortgagee if no execu- 5
166 Mass. 407.
Chap. 178.] levy of executions on land. 1609
6 tion had been levied. If the debtor does not so redeem the mort- **■ s. 172, §§ 34-
7 gage, the creditor or purchaser shall hold the land as an assignee of 22Pick.390.
8 the mortgage and free from any right of redemption, notwithstand-
9 ing the debtor has redeemed or offered to redeem the right taken
10 on the execution. If the debtor does not within one year after
11 the levy redeem the right taken on the execution, the creditor or
12 purchaser shall hold the land against the debtor, notwithstanding the
13 debtor has redeemed or offered to redeem the mortgage.
1 Section 36. Rights of redeeming land sold for the payment of ^t'toredeem
2 taxes or other assessments may, if sold on execution, be redeemed from tax sale.
3 in the same manner as rights of redeeming mortgaged land which p. s'. 172, § 37.
4 is so sold.
1 Section 37. If an execution is levied on the rents and profits —of life estate
2 of an estate for life, the debtor may, at any time before the debt rents and
3 with interest thereon is fully satisfied, redeem the same by paying ms, 57, § 3.
4 or tendering to the creditor the amount then due to him ; and the g! ii Io3,§§332.
5 proceedings relative to such redemption shall be the same as are p-s-172>§38-
6 provided for the redemption of other land.
1 Section 38. If the debtor tenders the amount justly due for re- Remedy if
2 demption, and the creditor or, in case of a sale, the purchaser does not release.68
3 not within seven days after the tender release the land as before Bfl.ra, §§'26,
4 provided, the debtor may recover it, with costs, in a writ of entry g.'s. 103, §§28
5 on his own seisin against the creditor or purchaser as a disseisor ; ^-g m
6 but before judgment therein is entered for him, he shall bring into
7 court for the use of the creditor or purchaser the amount so tendered.
1 Section 39. The debtor may, within the year before limited for suit to redeem.
2 redemption and irrespective of any tender, brine; in the supreme u. ' '
' O OQ 101 &S 9Q
3 judicial court or the superior court in the county in which the land 46. "
4 lies, instead of a writ of entry, a suit in equity for redemption, IcusniVi.40'
5 under the provisions of the two following sections.
1 Section 40. The debtor shall in his bill offer to pay such Proceedings.
2 amount as shall be found due for redemption and may set forth d.
f"1 S 101 &s 10
3 any tender he has made. The court shall determine the amount 46'. '
4 due, unless it has been already ascertained by three justices of the ^b Mass. 201.'
5 peace as provided in section thirty-four, and shall require the
6 debtor, within such time as it may order, to deposit with the clerk
7 for the use of the creditor or purchaser the amount due for re-
8 demption. Upon the debtor's complying with the order, he shall
9 be entitled to judgment and execution for seisin of the land as at
10 common law.
1 Section 41. The court may in such suit award costs to either Rosgts-
2 party. But the creditor or purchaser shall not be required to pay u.
3 costs, unless it appears that he has unreasonably neglected to render, ^.
4 when requested, a just and true account of the amount due on the ^b Mass. 201.'
5 judgment, of the money expended in repairing and improving the
6 land and of the rents and profits thereof ; or unless it appears that
7 a sufficient amount was tendered to him for the redemption of the
8 land, and that he neglected for seven days thereafter to execute and
1610
LEVY OF EXECUTIONS ON LAND.
[Chap. 178.
deliver a release thereof as before required. If the creditor or pur- 9
chaser has, before the commencement of the suit, tendered such a 10
deed of release and alleges such tender and brings the deed into 11
court to be delivered to the debtor, he shall recover costs. 12
Rights of
debtor, cred-
itor or pur-
chaser may he
exercised by
his heirs, etc.
R. S. 73, §§ 46,
47.
G. S. 103, §§ 50,
51.
P. S. 172, §§ 43,
44.
When levy
made.
R. S. 73, §§ 22,
41.
G. S. 103, §§ 24,
43.
P. S. 172, § 45.
1896, 464.
11 Mass. 153.
3 Met. 245.
Notice, how
served.
1881, 207.
P. S. 172, § 46.
130 Mass. 25.
143 Mass. 195.
Fees and
charges added
to deDt.
R. S. 73, § 45.
G. S. 103, § 49.
P. S. 172, § 47.
2 Allen, 562.
9 Allen, 147.
Section 42. Everything required in this chapter to be done by
or to a debtor or by or to a creditor or purchaser relative to the re-
demption of an estate taken and set off or sold on execution may be
done by or to his heirs, assigns, executor, administrator or by or
to any person lawfully claiming under him or them, in like manner
and with like effect as if done by or to him ; except that if an ex-
ecutor or administrator recovers the land, the recovery shall operate
only as a discharge of the lien or encumbrance on the land, and the
heir or other person entitled thereto shall be seised thereof under
his title.
GENERAL PROVISIONS.
Section 43. A levy by set-off or sale shall be considered as
made at the time when the land is taken, and the subsequent pro-
ceedings and the officer's return thereof shall be valid, although
made after the return day or after the removal or other disability
of the Officer. 9 Met. 23. 2 Allen, 562. 9 Allen, 147.
13 Allen, 262. 132 Mass. 332. 155 Mass. 451.
Section 44. Notice to the debtor under the provisions of this
chapter may be served upon him personally or left at his last and
usual place of abode. If the debtor does not reside within the
precinct of the officer who serves the execution, and is not found
by him therein, such officer shall, in addition to such other service
as is required by law, send by mail, postpaid and addressed to the
debtor at his residence as described in the execution, a copy of any
notice service of which upon him would be required if he were
found within such precinct.
Section 45. The fees and charges of levying an execution shall
be added to and shall be considered as part of the amount due on
the execution, in the setting-off or sale of land on execution, in the
redemption thereof and in everything relative to the proceedings
under the execution.
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
1
2
3
4
5
6
7
8
9
1
2
3
4
5-
Levy on right , Section 46. A levy upon a right of redemption of land in differ-
of redemption . ■, /»• «•
of landindif. ent counties may be made by an officer of any of such counties.
ferent coun- J ^ J
ties. G. S. 103, § 47. P. S. 172, § 48.
Action for
possession to
be brought,
when.
1844, 107, § 4.
1855, 453.
G. S. 103, § 48.
1874, 188, §§ 4, 5.
1876, 235.
P. S. 172, § 49.
1886, 86.
3 Allen, 508.
6 Allen, 401.
10 Allen, 144.
12 Allen, 591.
13 Allen, 257.
110 Mass. 273.
132 Mass. 53.
Section 47. If an execution is levied on land or rights the
record title to which fraudulently stands in the name of a person
other than the debtor and such other person is in possession claim-
ing title thereto, the levy shall be void unless the judgment creditor
to whom the land is set off or the purchaser at the sale or a person
lawfully claiming under either of them commences his action to re-
cover possession thereof within one year after the return day of the
execution ; and such land or rights so set off or sold may be re-
deemed by the defendant in said action or by any person lawfully
claiming under him, within three months from the date of the judg-
1
2
1
2
3
4
5
&
7
8
9
10
Chap. 178.] levy of executions on land. 1611
11" ment recovered in said action for possession, in the manner and ac- 139 Mass. 157.
12 cording to the terms and conditions provided in section thirty -three, 149 Mass." 152!
13 upon payment of the costs of such action for possession.
1 Section 48. If, after an execution has been levied by setting Levy on land
2 off land, there proves to be a mortgage or other lien on the land not aeuoweden
3 or an estate of homestead therein, not known or allowed for, or not ft.rs. 73, § 32.
4 fully allowed for, by the appraisers, the creditor shall nevertheless p." |; 172J § 50!
5 be entitled to hold the land by force of the execution, except the
6 estate of homestead, as against the debtor, and may recover, in a
7 new action against the debtor, the amount of the homestead estate
8 or the amount which he may lawfully pay on account of such mort-
9 gage or other lien, or so much thereof as has not been deducted
10 and allowed for in the estimate of the appraisers.
1 Section 49. The right of redeeming land taken on execution — °n right of
o o redeem in st
2 may be taken and sold on another execution, in like manner as the land taken on
3 right of redeeming mortgaged land may be taken and sold; and rxs.U73,§48.
4 the debtor and those claiming under him may redeem the right sold S77/1763.' § 52'
5 under such second execution in like manner as if the right so sold ^ Mas!. Ho.'
6 had been a right of redeeming mortgaged land. All proceedings 130 Ma8S- 205-
7 in levying such second execution, the redemption of the right sold
8 under it and all the rights and obligations of the several parties
9 relative to such levy and redemption shall be substantially the
10 same as if the right taken and sold on such second execution had
11 been a right of redeeming mortgaged land.
1 Section 50. If, before an execution which has been levied on ^^Hy^™*
2 land is returned and recorded, it appears that there is a defect or g'. s! 103, § 21.
PS 172 § 52
3 error in the proceedings which would defeat the levy, or that the 2 Gray, 326.
4 land levied upon cannot be held thereby, the creditor may waive
5 the levy, which shall thereupon be void, and may resort to any
6 other remedy for the satisfaction of his judgment.
1 Section 51. If, after the return of such execution, it appears scire facias on
2 to the creditor that the land levied on, or any part thereof, cannot 1785*6.
3 be held thereby, he may take out from the court from which the g". s! 103, § 22.*
4 execution issued a writ of scire facias requiring the debtor to appear p6|. 172, §53.
"5 and show cause why another execution should not be issued on the f2 ^^"Jf3,
6 same judgment, and the writ may issue although there is a subse- ^Gray. 3|>.
7 quent judgment for a part thereof not satisfied by the levy. If the 143 Mass. 365.
8 debtor, after being duly summoned, does not show sufficient cause 155 Mass! 320!
9 to the contrary, the levy of the former execution may be set aside
10 and another execution issued for the amount then due on the original
11 judgment and not included in a subsequent judgment, but without
12 interest or further costs.
1 Section 52. If at the hearing the court finds that a part only Procedure.
2 of the land levied on is held thereby, a warrant may, if the creditor p." s.' 172,' § 54.'
3 so requires, be issued to an officer qualified to serve the execution,
4 requiring him to cause the part held thereby to be appraised at its
5 value when taken. The officer shall thereupon cause such appraisal
6 to be made in the manner required upon the original levy, and,
7 upon return of said warrant, the levy may be set aside so far as it
1612
LEVY OF EXECUTIONS ON LAND.
[Chap. 178.
Levy on land
of deceased.
1758-9, 37, § 1.
1783, 32, § 7.
R. S. 73, § 49.
G. S. 103, § 53.
P. S. 172, § 55.
3 Mass. 523.
136 Mass. 249.
relates to the part not held thereby, and, if duly recorded, shall be 8
valid as to the remaining part. A new execution may thereupon 9
be issued for the difference between the amount of the original 10
appraisal of the land levied on and the amount of the appraisal of 11
the part held by the levy, without interest or costs. If the court 12
finds that the creditor in proceedings under this or the preceding 13
section had no just cause for such action, the debtor shall recover 14
costs. 15
Section 53. Land of a deceased person may be taken on execu- 1
tion on a judgment against his executor or administrator for the 2
debt of the deceased, for the costs of the action against him if the 3
executor or administrator has not appeared therein, and for the fees 4
and charges of the levy, and such land shall be appraised and set 5
off or sold, in like manner as if execution had been levied against 6
the deceased in his lifetime. 7
andexemp? Section 54. Land taken as provided in the preceding section
1783' 32 §7. may be redeemed by the executor, administrator, heir or devisee
r. s. 73, §§ 50, 0f the deceased, or by any person lawfully claiming under him or
g. s. 103, §§ 54, them, in like manner as if the land had been taken on an execution
55
p.'s. 172, §§56, against the deceased in his lifetime, and thereafter shall not be
3 Mass. 523. again taken on execution for any other debt of the deceased, nor
Dower in land
taken on exe-
cution.
C. L. 42, § 1.
1716-17, 3, § 2.
1783, 57, § 4.
R. S. 73, § 53.
G. S. 103, § 57.
P. S. 172, § 59.
be in any way liable therefor.
Section 55. A surviving husband shall be entitled to curtesy
and a widow to dower in land taken on execution from his wife or
her husband, respectively, or on execution upon a judgment against
her or his executor or administrator, respectively, in like manner
as if the land had been conveyed by the wife or husband in her or
his lifetime without release of curtesy by him or dower by her.
1
2
3
4
5
6
7
1
2
3
4
5
6
TITLE III.
OF REMEDIES RELATING TO REAL PROPERTY.
Chapter 179. — Of the Writ of Entry.
Chapter 180. — Of the Writ of Dower.
Chapter 181. — Of the Summary Process for the Possession of Land.
Chapter 182. — Of Proceedings for the Settlement of Title to Land.
Chapter 183. — Of the Determination of Boundaries of Flats.
Chapter 184. — Of the Partition of Land.
Chapter 185. — Of Waste and Trespass.
Chapter 186. — Of Actions for Private Nuisances.
Chapter 187. — Of the Foreclosure and Redemption of Mortgages.
Chapter 188. — Of Informations by the Commonwealth.
CHAPTEE 179.
OF THE WRIT OF ENTRY.
Sections 1-7 . — Requisites .
Sections 8-10. — Pleadings and Evidence.
Section 11. — Death of Party .
Sections 12-16. — Damages for Demandant.
Sections 17-22. — Allowance to Tenant.
Sections 23-27 . — Set-Off .
Sections 28-34. — Election by Demandant.
Sections 35, 36. — Death of Party after Judgment.
Sections 37-40. — Life Tenant and Remainderman.
Section 41. — Execution to be Recorded.
Sections 42, 43. — Application of Chapter.
REQUISITES.
1 Section 1. All estates of freehold in fee simple, fee tail or for Estates re-
2 life may be recovered by a writ of entry upon disseisin, unless a R.vs.rioi,e§ i.
3 different action is provided by law.
G. S. 134, § 1. P. S. 173, § 1. . 13 Allen, 286. 124 Mass. 468.
1 Section 2. The demandant shall declare on his own seisin Form of
2 within twenty years then last past, without specifying any particu- rasfif. lon'
3 lar day, and shall allege a disseisin by the tenant, but need not S i37,§| 2' 2*
4 aver a taking of the profits. He shall set forth the estate which he g'.I'.wVI'^.'3'
[ 1613 ]
1614
WHIT OF ENTRY.
[Chap. 179.
P. S. 173, § 2.
3 Mass. 352.
6 Gush. 265.
9 Allen, 370.
97 Mass. 34.
101 Mass. 188.
116 Mass. 117.
claims in the land, whether in fee simple, fee tail or for life, and 5
if the latter, whether for his own life or for the life of another, but 6
he shall not be required to set forth the original gift, devise or 7
other conveyance or title by which he claims the estate. 8
128 Mass. 458. 143 Mass. 93. 161 Mass. 91.
Proof of actual
entry not
required.
R. S. 101, § 4.
G. S. 134, § 3.
P. S.173, §3.
21 Pick. 215.
8 Allen, 597.
13 Allen, 346.
113.Mass. 318.
Section 3. The demandant shall not be required to prove an 1
actual entry under his title, but proof that he is entitled to such an 2
estate as he claims in the land and that he has a right of entry 3
therein shall be sufficient to prove his seisin. No writ of entry 4
shall be maintained unless the demandant has at the time of com- 5
mencing his action a right of entry into the land demanded. 6
161 Mass. 91
130 Mass. 384.
Action, how
prosecuted.
R. S. 101, § 8.
G. S. 134, § 7.
P. S. 173, § 4.
13 Mass. 472.
9 Cush. 427.
102 Mass. 374,
512.
139 Mass. 244.
161 Mass. 91.
Section 4. A writ of entry shall be prosecuted in the same 1
manner as if the demandant, at the time of commencing the action, 2
had made an actual entry on the land demanded and had been im- 3
mediately ousted by the tenant. In a trial upon the general issue, 4
if the demandant proves that he is entitled to the estate set forth in 5
the declaration and that he had a right of entry on the day when 6
the action was commenced, he shall recover the land unless the 7
tenant proves a better title in himself. 8
Who may be
considered a
disseisor.
R. S. 101, § 6.
G. S. 134, § 5.
P. S. 173, § 5.
99 Mass. 7.
Section 5 . A person who is in possession of the land demanded 1
in a writ of entry, claiming an estate of freehold therein, may be 2
considered as a disseisor for the purpose of trying the right, irre- 3
spective of the manner of his original entry therein. 4
Same subject.
R. S. 101, § 7.
G. S. 134, § 6.
P. S. 173, § 6.
20 Pick. 45S.
12 Met. 154.
12 Cush. 185.
1 Gray, 416.
2 Gray, 135.
Section 6. If the person in possession has actually ousted the 1
demandant or withheld from him the possession of the land, he 2
may, at the election of the demandant, be considered as a disseisor 3
for the purpose of trying the right, although he claims an estate 4
less than a freehold. 4 Alien, 150. 110 Mass. 419. 5
124 Mass. 307. 126 Mass. 327. 154 Mass. 535. 161 Mass. 91.
Separate or
joint actions.
1783, 52, § 3.
1785, 62, § 3.
1828, 137, § 3.
R. S. 101, § 10.
Section 7. Joint tenants or tenants in common may join in a 1
writ of entry for the recovery of land, or any one of them may sue 2
alone for his share. g. s. 134, § 9. p. s. 173, § 7. 3
6 Gray, 428. 97 Mass. 508. 135 Mass. 231. 155 Mass. 461.
PLEADINGS AND EVIDENCE.
Pleadings and
evidence.
R. S. 101, § 9.
G. S. 134, § 8.
P. S. 173, § 8.
99 Mass. 7.
112 Mass. 536.
123 Mass. 187.
Section 8. The law and practice relative to the pleadings and 1
evidence in a writ of entry upon disseisin, as heretofore recognized 2
and established, shall continue in force, except so far as they are 3
altered by the provisions of this chapter and of chapter one hundred 4
and seventy-three. 5
Same subject.
1828, 137, § 4.
R. S. 101, § 13.
1836, 273, § 1.
G. S. 134, § 12.
P. S. 173, § 9.
2 Met. 293.
Section 9. Non-tenure, disclaimer, several tenancy and sole 1
tenancy may be pleaded in abatement or given in evidence under 2
the general issue, but the party shall be allowed such costs only as 3
accrue after the filing of the plea. i2Met.i54. 4 Gray, 53. 4
6 Gray, 107.
6 Allen, 28.
98 Mass. 500.
108 Mass. 232.
123 Mass. 187.
124 Mass. 307.
133 Mass. 244.
143 Mass. 393.
Chap. 179.] writ of entry. 1615
1 Section 10. The demandant may recover any specific part or Part may be
2 undivided portion of the land to which he proves a sufficient title, r. s. ioi, § u.
3 although it is less than is demanded in the writ. G* s" lu' § 10'
P. S. 173, § 10. 2 Pick. 387. 99 Mass. 7. HI Mass. 386.
DEATH OF PARTY.
1 Section 11. Upon the death of either demandant or tenant, the Deathofparty.
2 action may proceed by or against the survivors and the heirs or g. s. m, § u".
3 devisees of the deceased party in the manner provided in chapter ^Mass.lw.'
4 one hundred and seventy-one. 155 Mass. 46i.
DAMAGES FOR DEMANDANT.
1 Section 12. If the demandant recovers judgment, he shall re- Demandant
2 cover in the same action, subject to the limitations hereinafter cenain^am.
3 provided, damages for the rents and profits of the land from the ifs.'ioi, §u.
4 time when his title accrued and for any destruction or waste of £; |; Jf|; | J|;
5 the buildings or other property for which the tenant is liable. 6Cusii2265
4 Gray, 53. Ill Mass. 388. 124 Mass. 307. 150 Mass. 535.
105 Mass. 328. 114 Mass. 140. 128 Mass. 458.
1 Section 13. If an issue of fact is found for the demandant, the Assessment of
2 jury shall at the same time assess his damages, except as provided ^^gesby
3 in section twenty-one. p. s. 173,§13. 8 Gray, 435. g! s. 134, 1 14'.
1 Section 14. The rents and profits for which the tenant is liable Measure of
2 shall be the clear annual value of the land for the time during which r!cs. loi^f^I8'
3 he was in possession thereof, after deducting all lawful taxes and f- §• J||> | \f
4 assessments on the land which have been paid by him and all the i°j Ma8S- i*j>.
5 necessary and ordinary expenses of cultivating the land or of other-
6 wise collecting the rents, profits or income thereof.
1 Section 15. In determining the rents and profits, the value of R^^oi^n
2 the use by the tenant of any improvements made by him or by those <j. s. 134', § ie.
3 under whom he claims shall not be included.
•
1 Section 16. The tenant shall not be liable for the rents and i^gfx'gffjg:
2 profits for any time more than six years prior to the date of the <j. 1. 134', § 17.
3 writ nor for any waste or other damage committed before said six 9 bush. 427.
104 Mass. 1.
4 years, unless the rents and profits are allowed by way of set-off
5 to his claim for improvements as provided in section twenty-four.
ALLOWANCE TO TENANT.
1 Section 17. If the land demanded has been actually held and ^"^foAm.
2 possessed by the tenant and by those under whom he claims for Pgr0°7ve7me§n|s-
3 six years next before the date of the writ, he shall, if iudgment r. s'. 101, §19.
4 is against him, be entitled to compensation in the manner herein- p.' s.' 173,' § 17.'
5 after provided for the value of any buildings or improvements made i3*Mass.324i.
6 or erected on the land by him or by any person under whom 15Ma88-291-
7 he claims.
5 Pick. 140. 12Cush. 458. 17 Mass. 350. Ill Mass. 386.
15 Pick. 141. 15 Gray, 36. 100 Mass. 177. 117 Mass. 360.
1616 WRIT OF ENTRY. [CHAP. 179.
Allowance to Section 18. The tenant shall also be entitled to the like com- 1
tenant tor lm- ^ •
provements. pensation although the land has not been so held tor six years, if 2
g'. si 134, § 19! he holds it under a title which he had reason to believe to be good. 3
■p o 173 S 1ft
7 MpV <ViO ' 10 Cush. 451. 5 Allen, 319. 109 Mass. 206.
12 Ciish^ 45g^ g A]len) 363i 117 Masg_ 360j 393>
10 Gray, 40. 100 Mass. 177, 270. 128 Mass. 167.
—proceedings Section 19. If the tenant claims allowance for improvements, 1
1807, 75, §3. he shall enter on the record a suggestion of his claim, with a 2
g. s. 134', § 20! request that, if judgment is rendered for the demandant, the value 3
7 Met. 3i'o. ' of the improvements may be ascertained and allowed to him. 4
11 Gray, 217.
I^e^ubject. Section 20. The suggestion shall be entered at the same sit- 1
g'. s". 134', § 21! tine: with the plea unless the court allows it to be entered after- 2
P S 173 5 20 ®
' ' ward ; but if judgment is rendered for the demandant without a 3
plea, the court may allow it to be entered at any time. 4
Allowance, Section 21. If an issue of fact is tried and found for the 1
how and when . .
determined, demandant, the lury shall at the same time determine the amount 2
26. ' "" to be allowed to the tenant for improvements, unless the court, on 3
24'. ' ' the motion of either party, at any time before the verdict on the 4
p.s.173, §§21- ^je ^s record^ postpones the assessment of the amounts due to 5
8 Gray 435. the demandant for the rents and profits or other damages, or to the 6
tenant for improvements, until after the trial of the title and a ver- 7
diet thereon. If such assessment is so postponed, or if no issue of 8
fact is tried and judgment is to be rendered for the demandant, the 9
assessment shall be made by the court, unless, on its own motion 10
or that of either party, the court orders an assessment by a jury. 11
In all cases, if the parties consent, the assessment may be made by 12
assessors appointed by the court. 13
R1snioiti§27>f" Section 22. The amount allowed for improvements shall not 1
p' I ' ill' ! 24' exceed the amount actually expended by the tenant and those 2
under whom he claims, nor shall it exceed the amount to which the 3
value of the land is actually increased thereby at the time of the 4
assessment. 5
SET-OFF.
provements1" Section 23. If an allowance is made to the tenant for improve- 1
against dam. ments, it shall be set off against the amount found due from him 2
r! s. 101, § 28. for rents and profits and other damages ; and the demandant shall 3
p.' s.' 173,' §25.' have judgment and execution for the balance, if any, due from the 4
tenant as well as for seisin of the land. 5
r sfioi^o! Section 24. If the amount found due to the tenant for improve- 1
p.' 1.' if!' § 1' ments exceeds the amount due from him for the rents and profits 2
which have accrued within the six years, he shall be chargeable 3
with the rents and profits which accrued before that time, so far 4
as may be necessary to balance his claim for improvements ; but 5
in such case he shall not be liable to repay the rents and profits in 6
excess of the value of the improvements. 7
Excess of im
provements
Section 25. The demandant shall, except as provided in the 1
over damages, following section, before taking out his execution for seisin of the 2
Chap. 179.] writ of entry. 1617
3 land, pay to the tenant, or to the clerk of the court for his use, r. s. ioi, §29.
4 the balance, if any, due the tenant for improvements after deduct- Sisf/a^* §§§ 1' "2.
5 ing the amount due from the tenant for the rents and profits and ^ Mais', lis.'
6 other damages ; but the tenant or person who claims under him
7 shall not be liable for rents and profits which accrue between the
8 date of the judgment and the payment by the demandant of said
9 balance.
1 Section 26. The demandant may take out a writ of seisin be- writ of seisin
2 fore the amounts due for rents and profits or other damages or for mentf asse86"
3 improvements have been assessed ; but if the tenant has entered on pfl'. 173', |§2s'.2"
4 the record the suggestion of a claim for improvements, the demand-
5 ant, before taking out his writ of seisin, shall furnish such security,
6 or pay into court such amount of money, as the court may order, to
7 secure to the tenant the payment of any balance which may be
8 found due to him for such improvements.
1 Section 27. If a balance is found due to the tenant for such ^nanfhow6
2 improvements, he may have judgment and execution therefor, or coiie ct'ed.
3 he may collect the same, with all reasonable costs and expenses of p. s*. 173, § 29.
4 such collection, out of the security furnished, or may receive the
5 same out of the money paid into court, and the residue thereof
6 shall be returned to the demandant.
ELECTION BY DEMANDANT.
1 Section 28. If the tenant claims an allowance for improve- Determination
2 ments as before provided, the demandant may, by an entry on the estate without
3 record, require that the value of his estate in the land demanded, isoT^s,6^-1118
4 without the improvements, be determined by the court, jury or ||- s- 101> §§ 32>
5 assessors in the manner provided for the assessment of rents and o. s. 134, §§ 30,
6 profits and improvements. Such value shall be the value which, at p.'s. 173, §§30,
7 the time of assessment, the land would have had if the improve- 11 'pick. 219.
8 ments had not been made by the tenant or a person under whom
9 he claims.
1 Section 29. After said determination of said value the demand- unq^sh estate.
2 ant may, at the sitting at which judgment is entered for him, enter j^g' ioi§ §§ 34-
3 upon the record his election to relinquish his estate in the land to 36. '
4 the tenant at said value ; and upon his motion for further time in 33'.
5 which to make such election the court may postpone the entry of 33.
6 judgment without further costs for him.
1 Section 30. If the demandant elects to relinquish the land as Tenant to hold
the- c-ftf'ifrc if
2 before provided, the tenant shall thenceforth hold all the estate he pays such
3 that the demandant had therein at the date of the writ, if he pays Jfovrc, § 3-
4 said value thereof in three equal instalments on or before the expira- j^l. 101, §§ 37,
5 tion of one, two and three years, respectively, from the time when |?;s 134§§34
6 said election was entered on the record, with interest therefrom on 3^.g 173' '
7 the amount unpaid.
1 Section 31. Said payments shall be made to the demandant or Failure to
/■» TTifltf finch
2 to the clerk of the court for his use ; and if the tenant fails to payment.
1618
WRIT OF ENTRY.
[Chap. 179.
1807,75, §3. make any of such payments within the times limited therefor, the
r. s. lo'i, §§ 39, demandant may, at any time within three months after such default
g.' s. 134, §§ 36, of payment, take out his writ of seisin on the judgment recovered
P.S.173, §§35, by him, and shall take and hold the land without allowance for
36- any improvements made thereon.
3
4
5
6
7
^fiTfans" the Section 32. If the tenant or his heirs or assigns, after the land 1
r°s' ioi§§ « ^s so relinquished to him, are evicted therefrom by force of a better 2
g. s'. 134, § 38. title than that of the original demandant, the person so evicted 3
may recover from such demandant, or his executor, administrator, 4
heirs or devisees the amount so paid for the land in an action for 5
money had and received by the demandant in his lifetime for the 6
use of the plaintiff, with interest from the time of such payment. 7
i8ao?e75U§3ect' Section 33. If the tenant or the person who holds under him,
gs 134 111* wnen impleaded in an action for the recovery of the land, gives
p.' s.' 173,' § 38.' notice thereof to the person so liable to refund the purchase money,
and permits him to defend the action, a judgment against the
tenant shall be conclusive upon his right to recover the amount so
paid for the land.
1
2
3
4
5
6
Same subject.
R. S. 101, § 43.
G. S. 134, § 40.
P. S. 173, § 39.
Section 34. If the person impleaded does not give such notice 1
to the person so liable to refund the money paid for the land and 2
permit him to defend the action, the latter may, in any action 3
afterward brought against him for such money deny the title upon 4
which the eviction was had ; and the party so evicted shall not 5
recover such money unless he proves that he was evicted by force 6
of a better title than that of the original demandant. 7
DEATH OF PARTY AFTER JUDGMENT.
paerattya0fteerther Section 35. If, after judgment for the demandant, either party
judgment and dies before the writ of seisin is executed, or before the case is
before final '
settlement. otherwise settled according to the foregoing provisions, any money
r. s'. lo'i, § 44. payable by the demandant or tenant, respectively, may be paid by
p.' s.' 173,' § 40." him or his executor or administrator, or by a person who is entitled
to the estate under him, to the tenant or demandant, respectively,
or his executor or administrator.
1
2
3
4
5
6
7
Same subject.
R. S. 101, § 45.
G. S. 134, § 42.
P. S. 173, § 41.
Section 36. The writ of seisin issued in such case shall be in
the name of the original demandant against the original tenant,
although either or both of them are dead, and when executed it
shall inure to the benefit of the demandant or of the person who is
entitled to the land under him, as if it had been executed on the
day when the judgment was rendered.
1
2
3
4
5
6
life tenant or remainderman.
Recovery by
life tenant
Section 37. If a demandant who claims an estate for life only 1
d?rmarnmain' in the land Pa7s an amount allowed to the tenant for improve- 2
g. 1.134' fit. n}ents' ne or nis executor or administrator shall, at the determina- 3
P.S.173,' §42.' tion of his estate, be paid by the remainderman or reversioner the 4
Chap. 179.] writ of entry. 1619
5 value of the improvements as they then exist, shall have a lien on
6 the land for said value as if it had been mortgaged for the payment
7 of such value and may keep possession of the land until such pay-
8 ment is made.
1 Section 38. If the amount due from the remainderman or Amount, how
2 reversioner is not agreed on by the parties, it may be determined and™covered.
3 in a suit in equity brought by the remainderman or reversioner ; §'. I*. 134', f u.
4 and the proceedings shall be the same as in a suit for the redemption Pl S- 173' § 43-
5 of a mortgage.
1 Section 39. The remainderman or reversioner, or those claim- same subject.
2 ing under him, shall not recover from the adverse party the excess, g'. s'. 134! 1 45".
vJ ■*■ *" * tj cj 1 pro e a a
3 if any, of the rents and profits of the land which accrued after the ' ' /d,s**-
4 determination of the estate for life, over the amount due for the
5 improvements.
1 Section 40. The remainderman or reversioner, or those claim- Limitation.
2 ing under him, shall be considered as disseised at the determination 49. '
3 of the life estate, and the suit in equity and all other remedies by 46' '
4 action or by entry for the recovery of the land shall be barred as in p< S- 173» § 45-
5 other cases of disseisin, and the limitation of three years provided
6 for the redemption of a mortgage shall not apply.
execution to be recorded.
1 Section 41. The officer who serves an execution issuing upon Execution for
2 a judgment for possession shall, within three months after the ser- Eere^OTded.0
3 vice, and before the return of the execution into the clerk's office, G?s'.1i33,§§55.
4 cause such execution with his return thereon to be recorded in the ^Gray3^46'
5 registry of deeds for the county or district in which the land affected
6 thereby is situated, and the expense thereof shall be added to his
7 charge for service.
APPLICATION OF CHAPTER.
1 Section 42. The provisions of this chapter shall not prevent Demandant's
/» remedy
2 the demandant from maintaining an action of trespass for mesne against tres-
3 profits, or for damage done to the land, against any person, except dieted.110
4 the tenant in the writ of entry. p. s. 173, § 47. 6Cush.265. g. !'. 134, 1 29!
1 Section 43. The provisions of this chapter relative to the rents certain pro-
2 and profits to be recovered in a writ of entry, the allowance for apply to °
3 improvements made on the land demanded and the value of the land mortgagees.
4 without the improvements shall not apply to an action brought by R°s'.7ioif §50.
5 a mortgagee, his heirs or assigns, against a mortgagor, his heirs or p|]f|'|^
6 assigns, for the recovery of the land mortgaged.
1620
WRIT OF DOWER.
[Chap. 180.
CHAPTEE 180.
OF THE WRIT OF DOWER.
When it may-
be brought.
C. L. 42, § 1.
1700-1, 22, § 1.
1783, 40, §■ 1.
R. S. 60, §5;
102, § 1.
G. S. 135, § 1.
Section 1. A woman entitled to dower, if it is not set out to 1
her by the heir or other tenant of the freehold to her satisfaction 2
according to law nor assigned to her by the probate court, may 3
recover the same by a writ of dower as hereinafter provided. 4
P. S. 174, § 1. 1 Pick. 189, 314. 116 Mass. 69.
Demand for
dower.
1700-1, 22, § 1.
1783, 40, § 1.
1828, 137, § 5.
R. S. 102, § 2.
G. S. 135, § 2.
1878, 67.
P. S. 174, § 2.
Section 2. She shall demand her dower of the person seised of 1
the freehold at the time when she makes such demand, unless such 2
person is unknown to her or absent from the commonwealth. She 3
shall not commence an action before the expiration of one month, 4
nor after the expiration of one year, from such demand ; but she 5
may make a new demand and commence an action thereon. 6
— how made.
1855, 438.
G. S. 135, § 3.
P. S. 174, § 3.
12 Met. 557.
6 Cush. 196.
Section 3. A demand of dower shall be sufficient if it is in 1
writing, signed by the widow or by her agent or attorney, containing 2
a general description of the land in which the dower is claimed and 3
is given to the tenant of the freehold or left at his last and usual 4
place of abode. 5
Damages for
detention of
dower.
1700-1, 22, § 2.
1783, 40, § 2.
R. S. 102, § 3.
G. S. 135, § 4.
1869, 418, § 1.
P. S. 174, § 4.
Section 4. If the demandant recovers judgment for her dower, 1
she shall in the same action recover damages for its detention, 2
which shall be assessed by a jury under the direction of the court, 3
unless the parties file in court a written agreement that the damages 4
shall be assessed by the commissioners as hereinafter provided. 5
116 Mass. 69. 129 Mass. 417.
Commissioners
to set out
dower.
C L. 42, § 1.
1700-1, 22, § 3.
1783, 40, § 2.
R. S. 102, § 6.
G. S. 135, § 7.
1869, 418, §§2,3.
P. S. 174, § 5.
9 Allen, 254.
Section 5. If the court finds that the demandant is entitled to
her dower, it shall award the interlocutory judgment therefor and
issue its warrant to three disinterested commissioners to set out said
dower equally and impartially and as conveniently as may be and,
if an agreement has been filed as provided in the preceding section,
to award damages for its detention.
1
2
3
4
5
6
Proceedings.
1700-1, 22, §3.
1783, 40, § 2.
R. S. 102, §6.
G. S. 135, § 7.
1869, 418, §§4,6.
P. S. 174, § 6.
Section 6. Said commissioners, before entering upon their 1
duties, shall be sworn faithfully and impartially to execute the 2
warrant, a certificate of which oath shall be made on the warrant 3
by the person who administers it. They shall give notice to the 4
parties of the time and place appointed for setting out the dower, 5
and all of the commissioners shall meet for the performance of any 6
of their duties, but a majority may act. 7
Signers?0111" Section 7. The commissioners shall make and sign a report
i869,34ilf fint' °f tneir doings, with any damages assessed by them, and return it
fee^L'. i278* w*^ tneir warrant to the court from which said warrant was issued.
§83. If their report is confirmed, judgment shall be rendered that the
assignment of dower shall be firm and effectual during the life of the
demandant, and for the damages as assessed by said commissioners.
1
2
3
4
5
6
Chap. 181.] summary process for possession or land. 1621
1 Section 8. A party aggrieved by a judgment rendered under Appeal.
2 the provisions of section five, or upon a report of the conimissioners pfs'. 174, §8.
3 under the provisions of the preceding section, may appeal there-
4 from in any matter of law apparent upon the record to the supreme
5 judicial court ; but an appeal from the judgment rendered under
6 the provisions of the preceding section shall not draw in question
7 the interlocutory judgment.
1 Section 9. When final judgment has been recovered by the Execution.
2 demandant, execution shall issue thereon for possession and for iffl) Hoi § 9*
3 costs and, if the judgment is for damages also, for damages. p. s. 174, §9.
1 Section 10. The action shall be brought against the person Tenant's
2 who is tenant of the freehold at the time when it is commenced, damages?01
3 If the demand was not made on him, he shall be liable for damages g s 135 If 5' 6*
4 only for the time during which he held the land ; but if the de- J- s- 174> §§ i°.
5 mandant recovers her dower and damages in the writ of dower,
6 she may thereafter recover in an action of tort against the prior
7 tenant of the freehold, on whom her demand was made, the rents
S and profits for the time during which he held the land after the
9 demand.
1 Section 11. If the land cannot be divided without damage to Assignment
2 the whole, the dower may be assigned out of the rents or profits, R%°io2,n§87.
3 which shall be received by the demandant as tenant in common ^ ." i." iff' § 12.
4 with the other owners.
1 Section 12. The provisions of chapter one hundred and thirty- certain provi-
2 two relative to the land out of which dower may be claimed and ?kwe.app
3 the manner in which it may be barred, and those of section one of g! 1; 135' 1 16.
4 chapter one hundred and eighty-five relative to the liability of the p- s- in> § u-
5 tenant for waste, shall apply to proceedings under this chapter.
CHAPTEE 181.
OF THE SUMMARY PROCESS FOR THE POSSESSION OF LAND.
1 Section 1 . If a forcible entry into land or tenements has been Persons en-
2 made, if a peaceable entry has been made and the possession is mary process.
3 unlawfully held by force, if the lessee of land or tenements or a $0^1,14! §1.
4 person holding under him holds possession without right after the JJJ*- %f}'i.
5 determination of a lease by its own limitation or by notice to quit *p| «*• 2
6 or otherwise, if the court of land registration has entered a decree ^•'^•'|^
7 for confirmation and registration of the title to land, or if a mort- g. s\ m', §§ 2,
8 gage of land has been foreclosed by a sale under a power therein &* 237.
9 contained or otherwise, the person entitled to the land or tenements im',120!^1'
10 may recover possession thereof as hereinafter provided. 6Cush.563.
8 Cush. 33. U Allen, 43. 139 Mass. 54. 165 Mass. 481.
11 Cush. 227. 121 Mass. 85. 151 Mass. 543. 168 Mass. 442.
15 Gray, 319. 126 Mass. 292. 152 Mass. 440. 170 Mass. 29.
6 Allen, 74. 132 Mass. 122, 196. 101 Mass. 335. 172 Mass. 412.
13 Allen, 281. 130 Mass. 111. 103 Mass. 477. 175 Mass. 213.
1622
SUMMARY PROCESS FOR POSSESSION OF LAND. [CHAP. 181.
Section 2. Such person may take from a police, district or 1
municipal court, or from a trial justice, a writ in the form of an 2
original summons which shall summon the defendant to answer 3
to the complaint of the plaintiff, that the defendant is in possession 4
of the land or tenements in question, describing them, which he 5
holds unlawfully and against the right of the plaintiff; and no 6
fCu'8h75i!i 2'3' other declaration shall be required. The action shall be brought 7
in the county in which the land or tenements are situated. 8
Form of writ.
1700-1, 14, § 1.
1784, 8, § 1.
1825, 89, § 1.
R. S. 104, §§ 4,
13.
1841, 55, § 2.
1851, 233, §§ 79-
81.
G. S. 137, § 5.
1866, 47.
exelutfontand Section 3. If the court finds that the plaintiff is entitled to the 1
i^84 8 88 13 possession of the land or tenements, he shall have judgment- and 2
i82o|89, §i! * execution for the possession and for his costs. If the plaintiff be- 3
■p q 104. SS fi 7
i85i,'233,'§88.' ' comes nonsuit, or fails to prove his right to the possession, the 4
O O "1*3*7 KK 7 Q ^
p." s.' 175, §5.' ' defendant shall have judgment and execution for his costs. 5
8Cush. 124. 13 Gray, 272. 98 Mass. 309, 503. 121 Mass. 257.
Storage of
property
removed.
1899, 412, § 1.
Section 4. If an officer, in the service of an execution issued on 1
a judgment for the plaintiff for the possession of land or tenements, 2
removes personal property, which belongs to a person other than 3
the plaintiff, from the land or tenements and places it upon the side- 4
walk, street or way on which the land or tenements abut, he may 5
forthwith and before the expiration of the time limited in any city 6
ordinance or town by-law for the removal of obstructions in the 7
street remove such property and cause it to be stored for the benefit 8
of the owners thereof. Whoever accepts the same on storage from 9
such officer shall have a lien thereon for reasonable storage fees and 10
for the reasonable expenses of removing it to the place of storage. 11
But if the owner of such property is present and claims it when it 12
is so removed from the land or tenements, the officer shall not re- 13
move it from the street and store it, and his act of placing such 14
property upon the sidewalk or street shall be held to be the act of 15
the owner thereof, who alone shall be held to answer therefor. 16
Enforcement
of lien.
1899, 412, § 2.
Appeal or
removal.
Bond.
1825, 89, § 2.
R. S. 104, § 10.
1848, 142, § 1.
G. S. 137, § 9.
1871, 315, § 2.
1874, 271, § 8.
P. S. 175, § 6.
1885, 384, § 5.
1888, 325, § 1.
10 Met. 1.
2 Gray, 309.
121 Mass. 82.
146 Mass. 324.
176 Mass. 236.
Section 5. The lien given by the provisions of the preceding 1
section for the cartage and storage of personal property shall not 2
be enforced by sale of the property stored until it has been kept on 3
storage for at least six months. 4
Section 6. If the defendant appeals from a judgment rendered 1
for the plaintiff for the possession of the land or tenements demanded 2
or if the defendant removes the case as provided in section nineteen 3
of chapter one hundred and sixty-one, he shall, except as provided 4
in the following section, before such appeal or removal is allowed, 5
give a bond in such sum as the court orders, payable to the plaintiff, 6
with sufficient surety or sureties approved by the plaintiff, court or 7
trial justice, conditioned to enter the action in the superior court for 8
that county at the return day next after the appeal is taken or the 9
removal requested, and to pay to the plaintiff, if final judgment is 10
in his favor, all rent which has accrued at the date of the bond, 11
all intervening rent, and all damage and loss which he may sustain 12
by reason of the withholding of the possession of the land or tene- 13
ments demanded and by reason of any injury done thereto during 14
such withholding, with all costs, until the delivery of the possession 15
thereof to him. Upon final judgment for the plaintiff, all money 16
Chap. 182.] settlement of title to land. 1G23
17 then due to him may be recovered by an action of contract upon
18 the bond.
1 Section 7. If the action is for the possession of land after the Appeal or
2 foreclosure of a mortgage thereon, the condition of the bond shall Bond!al"
3 be for the entry of the action and the payment to the plaintiff, if final p.7|. 175 § 7.
4 judgment is in his favor, of all costs and of a reasonable amount as 1888> 325> § 2-
5 rent of the land from the day when the mortgage was foreclosed
6 until possession of the land is obtained by the plaintiff.
1 Section 8. If the case is removed upon a plea or suggestion by Liability of
2 the defendant which draws in question the title to the freehold, and frivolous Viea,
3 the court in which the action is determined finds that the defendant f^is, 89, § 3.
4 originally entered on the land under a lease from the plaintiff or g- 1- ^ | {J-
5 from a person under whom the plaintiff claims, or that he held it fggf-gjg'ff-
6 under such a lease, and that his said plea or suggestion is frivolous
7 and intended for delay, the court shall cause a certificate thereof to
8 be entered on the record, and the defendant shall thereupon be
9 liable for double the yearly value of the leased land or tenements
10 from the time of the notice to quit the same, which may be recov-
11 ered by an action of contract upon his bond.
1 Section 9. The judgment in an action under the provisions of ^e^g't
2 this chapter shall not be a bar to anv action thereafter to be brought R- =• 104, *§ 12.
. ^ ® 1851 233 6 93.
3 by either party to recover the land or tenements in question , or to g. s. 137, § 11.
4 recover damages for any trespass thereon; but the amount recov-
5 ered for rent according to the provisions of sections six and eight
6 shall be deducted in any assessment of damages in such subse-
7 quent action by the original plaintiff.
1 Section 10. There shall be no recovery under the provisions No recovery
2 of this chapter of any land or tenements of which the defendant, sionfor three
3 his ancestors or those under whom he holds the land or tene- [7e0o^- u §4
4 ments have been in quiet possession for three years next before the J78*? 8'0| 3: 3
5 commencement of the action unless the defendant's estate therein i|S6, ^ §'i^g
6 is ended. P. S. 175, §10. 12 Gray, 206. 175 Mass. 213. G. S. 137, § 4.
CHAPTEE 182.
OF PROCEEDINGS FOE, THE SETTLEMENT OF TITLE TO LAND.
Sections 1-5. — Petition to Require Action to try Title.
Sections 6-10. — Suits in Equity to Quiet Title.
Sections 11-14. — Determination of Validity of Certain Encumbrances.
Section i5. — Discharge of Mortgages.
PETITION TO REQUIRE ACTION TO TRY TITLE.
1 Section 1. If the record title of land is clouded by an adverse Petition to
2 claim, or by the possibility of such claim, a person in possession of plS^fannant
3 such land who claims an estate of freehold therein or an unexpired ^i^smw.
4 term of not less than ten years, and a person who by force of the &f|.8^§§«.
5 covenants in a deed or otherwise may be liable in damages, if 1878, 178.
1624
SETTLEMENT OF TITLE TO LAND.
[Chap. 182.
P.S. 176, §§1,2.
1893,340, §§1,3.
114 Mass. 340.
137 Mass. 147,
376.
145 Mass. 112,
148 Mass. 552.
150 Mass. 73.
153 Mass. 42.
162 Mass. 438.
168 Mass. 201,
384.
171 Mass. 46,
367.
177 Mass. 501.
Proceedings
upon petition.
1851, 233, § 66.
1852, 312, § 53.
G. S. 134, § 49.
P. S. 176, § 2.
1893, 340, § 2.
such claim should be sustained, may file a petition in the superior 6
court stating his interest, describing the land, the claims and the 7
possible adverse claimants so far as known to him, and praying 8
that such claimants may be summoned to show cause why they 9
should not bring an action to try such claim. If no better de- 10
scription can be given, they may be described generally, as the 11
heirs of A B or the like. Two or more persons who have separate 12
and distinct parcels of land in the same county and hold under 13
the same source of title, or persons who have separate and distinct 14
interests in the same parcel or parcels, may join in a petition against 15
the same supposed claimants. If the supposed claimants are resi- 16
dents of this commonwealth, the petition may be inserted like a 17
declaration in a writ, and served by a copy, like a writ of original 18
summons. Whoever is in the enjoyment of an easement shall be 19
held to be in possession of land within the meaning of this section. 20
Section 2. If the petition is not so served, the court shall order 1
notice of such petition to be given by publication to the supposed 2
claimants, whether residents or non-residents of this commonwealth. 3
Such notice shall bind all the world, but the court may also require 4
personal or other notice, and if, upon return of the order of notice 5
duly executed, the parties notified do not appear within the time 6
limited or, having appeared, disobey the lawful order of the court 7
to try their claim, the court shall enter a decree that they be forever 8
barred from having or enforcing any such claim adversely to the 9
petitioner, his heirs or assigns, in the land described. 10
— upon ap-
pearance.
1851, 233, §§ 66,
67.
1852, 312, §§ 52,
53.
G. S. 134, §§ 49,
50.
Pi S. 176, § 2.
1S93, 340, § 3.
4 Gray, 82.
102 Mass. 374.
103 Mass. 144.
137 Mass. 150.
145 Mass. 112.
148 Mass. 552.
160 Mass. 471.
Section 3. If the persons notified or summoned appear and dis-
claim all right and title adverse to the petitioner, they shall recover
their costs. If they claim title, they shall by answer show why
they should not be required to bring an action to try such title ;
and the court shall enter an appropriate decree relative to bringing
and prosecuting such action. If the party or parties against whom
a judgment or decree for a conveyance, release or acquittance
may be rendered by any court in this commonwealth do not com-
ply therewith, within the time therein limited, such judgment or
decree shall, subject to the provisions of the following section, have
the same effect as if the conveyance, release or acquittance had
been executed conformably thereto.
Rights of party
against whom
Section 4. A party against whom, without other notice than
dicrelTjas1 °r PUDli°ation in a newspaper, a judgment or decree has been ren-
^n3r4e0Qdered. dered under the provisions of the two preceding sections and whose
right is barred thereby may recover from the party or parties in
whose favor such judgment or decree was entered, their heirs or
devisees, the value at the time action is brought of any interest or
right, except of improvements made by the defendants, of which he
may have been deprived by such judgment or decree, unless at the
date of bringing such action an action which, but for such judg-
ment or decree, he might have maintained for the recovery of
such interest or the enforcement of such right would have been 11
barred by the statute of limitations. Such judgment or decree may 12
require the giving of a bond to respond to any such action brought 13
within five years after the entry of such judgment or decree. 14
1
2
3
4
5
6
7
8
9
10
11
12
1
2
3
4
5
6
7
8
9
10
Chap. 182.] settlement of title to land. 1625
1 Section 5. The provisions of the four preceding sections shall ArpP]i(?.atlj>n of
2 not apply to any property, right, title or interest of the common- sections."
3 Wealth. " 1893, 340, §7.
SUITS IN EQUITY TO QUIET TITLE.
1 Section 6 . If in a suit in equity to quiet or establish the title to suits in equity
2 land situated in this commonwealth or to remove a cloud from the isVf^i^fi6."
3 title thereto, it is sought to determine the claims or rights of any HH'tH'
4 persons who are unascertained, not in being, unknown or out of ito Mass. 328.
5 the commonwealth, or who cannot be actually served with process
6 and made personally amenable to the decree of the court, such per-
7 sons may be made defendants and, if they are unascertained, not in
8 being or unknown, they may be described generally, as the heirs or
9 legal representatives of A B, or such persons as shall become heirs,
10 devisees or appointees of C D, a living person, or persons claiming
11 under A B. It shall not be necessary for the maintenance of such
12 suit that the defendants shall have a claim or the possibility of a claim
13 resting upon an instrument the cancellation or surrender of which
14 would afford the relief desired ; but it shall be sufficient that they
15 claim or may claim by purchase, descent or otherwise, some right,
16 title, interest or estate in the land which is the subject of the suit
17 and that their claim depends upon the construction of a written in-
18 strument or cannot be met by the plaintiffs without the production
19 of evidence. Two or more persons who claim to own separate and
20 distinct parcels of land in the same county by titles derived from a
21 common source, or two or more persons who have separate and dis-
22 tinct interests in the same parcel, may join as plaintiffs in any suit
23 brought under the provisions of this section.
1 Section 7. If in such suit the court finds that actual service Notice.
2 cannot be, or has not been, made upon a defendant, it may at the 1897>522>§2-
3 request of the plaintiff order notice of the suit to be posted in a
4 conspicuous place on the land or to be published in a newspaper
5 within or without the commonwealth, or both, or to be given in such
6 other manner as it considers most effectual, and may also require
7 personal notice to be given. Notice given under the provisions of
8 this section shall be constructive service on all the defendants.
1 Section 8. If, after notice has been given or served as provided utemdianad
2 in the preceding section and the time limited in such notice for the 1897> 522> § 3-
3 appearance of the defendants has expired, the court finds that there
4 are or may be defendants who have not been actually served with
5 process within the commonwealth and who have not appeared in
6 the suit, it may of its own motion, or on the representation of any
7 party, appoint a guardian ad litem or next friend of any such de-
8 fendant, and if any such defendants have or may have conflicting
9 interests, it may appoint different guardians ad litem or next friends
10 to represent them.
1 Section 9. The cost of appearance of any such guardian ad "^ai-ance of,
2 litem or next friend, including the compensation of Lis counsel, }j°,^eter-
3 shall be determined by the court and paid by the plaintiff, against 1897, saa, § 4.
4 whom execution may issue therefor in the name of the guardian ad
5 litem or next friend.
1626 SETTLEMENT OF TITLE TO LAND. [CHAP. 182.
Effect of Section 10. After all the defendants have been served with 1
1897, 522, § 5. process or notified as provided in section seven and after the ap- 2
pointment of a guardian ad litem or next friend, if such appoint- 3
ment has been made, the court may proceed as though all the 4
defendants had been actually served with process. Such suit shall 5
be a proceeding in rem against the land, and a decree establishing 6
or declaring the validity, nature or extent of the plaintiff's title 7
may be entered, and shall operate directly on the land and shall 8
have the force of a release made by or on behalf of all defendants 9
of all claims inconsistent with the title established or declared 10
thereby. The provisions of this and the four preceding sections 11
shall not prevent the court from also exercising jurisdiction in per- 12
sonam against the defendants who have been actually served with 13
process and who are personally amenable to its decrees. 14
DETERMINATION OF VALIDITY OF CERTAIN ENCUMBRANCES.
^/termination Section 11. If the title to land appears of record to be af- 1
possible en- fected by a possible condition, restriction, reservation, stipulation 2
1889,442, §§i, 2. or agreement made or imposed more than thirty years prior to the 3
1890 427 $2
173 Mass. 68! commencement of the proceedings hereinafter provided for, a per- 4
son who has a freehold estate, vested or contingent, in possession, 5
reversion or remainder, in said land, or in any undivided or any ali- 6
quot part thereof, or any interest therein which may become a free- 7
hold estate, and any person who has conveyed such estate or any 8
such interest therein with covenants of title or warranty, may file 9
a petition under oath in the superior court for the purpose of deter- 10
mining the validity, or denning the nature and extent, of such pos- 11
sible condition or other encumbrance, against any person who might 12
be entitled in any event to enforce it or avail himself thereof. Two 13
or more persons who own in severalty different portions of such es- 14
tate or different interests therein may join in such petition, or two 15
or more such defects of the same general character in the title to the 16
same parcel of land or to different portions of the same parcel of 17
land may be set forth in the same petition, and if the petition is 18
contested the court shall make an appropriate order for separate 19
issues. 20
SCon%ente.°f Section 12. If it is averred in the petition that there are neces- 1
1889, 442, § 2. sary or pr0per respondents whose names are unknown to the peti- 2
tioner, they may be described generally, as heirs, or devisees of a 3
person deceased, as persons claiming under certain persons named, 4
as the owners of certain land, or otherwise, and if it is so averred 5
that the true name of a respondent cannot be ascertained, he shall 6
be described as accurately as practicable. If it is so averred that 7
there are classes of necessary or proper respondents whom it is 8
impracticable and unnecessary to name and to serve with process 9
individually, they may be described generally. The court may, if 10
in its opinion the petitioner can and should do so, require him by 11
amendment to name or describe respondents more particularly. 12
fppoTntoent Section 13. The court shall prescribe the notice to be given to 1
i8f89,S442,'§3. non-resident respondents, to respondents whose residences are un- 2
known, to unknown or unnamed respondents, and to any other re- 3
Chap. 183.] determination of boundaries of flats. 1627
4 spondents upon whom for any reason service cannot be made. If
5 the court finds that there are respondents to be affected by the
6 decree, who have not had actual notice of the petition, it shall
7 appoint a disinterested person to act for them.
1 Section 14. Upon service of such notice, the court shall have Decree.
2 jurisdiction of all persons who are made respondents to the petition 1889>442'§§*>6'
3 in the manner above provided, and shall, upon a hearing, make a
4 decree determining the validity, nature or extent of any such pos-
5 sible condition or other encumbrance, which shall be effectual to
6 exclude all the respondents from any claim thereunder contrary to
7 such determination, and shall have the same effect as a release by
8 such respondents of such claims. The court may award costs in
9 its discretion.
DISCHARGE OF MORTGAGES.
1 Section 15. If the record title of land is encumbered by an Discharge of
2 undischarged mortgage, and the mortgagor and those having his issl*!^8'
3 estate therein have been in uninterrupted possession of the land, isloi III ,' § i.
4 either for twenty years after the expiration of the time limited in Jj>5 Mass. 57^
5 the mortgage for the full performance of the condition thereof, or
6 for twenty years from the date of a mortgage which was not given
7 to secure the payment of money or a debt but to secure the mort-
8 gagee against a contingent liability which has so ceased to exist
9 that no person will be prejudiced by the discharge thereof, the
10 mortgagor, or those having his estate in the land or any person
11 named in section eleven may file a petition in the superior court ;
12 and if, after such notice by publication or otherwise as the court
13 orders, no evidence is offered of a payment on account of the debt
14 secured by said mortgage within twenty years after the expiration
15 of the time limited for the performance of the condition thereof or
16 of any other act within said time in recognition of its existence as a
17 valid mortgage, or if the court finds that such contingent liability
18 has ceased to exist and that the mortgage ought to be discharged,
19 it may enter a decree, reciting the facts and findings, which shall,
20 within thirty days after its entry, be recorded in the registry of
21 deeds for the county or district in which the land lies, and no
22 action to enforce a title under said mortgage shall thereafter be
23 maintained. IVo or more persons who own in severalty different
24 portions or different interests such as are described in section eleven
25 in the land subject to the mortgage may join in one petition and
26 two or more defects arising under different mortgages affecting one
27 parcel of land may be set forth in the same petition. If the petition
28 is contested, the court shall make an appropriate order for separate
29 issues.
CHAPTER 183.
OF THE DETERMINATION OF BOUNDARIES OF FLATS.
1 Section 1. One or more persons who hold land or flats adjacent j^Jtt^;§51>3.
2 to or covered by high water may apply by petition to the superior J8^'^'§§1'2'
3 court for the county in which any part of such land or flats lies for r. s. 'in', § 1.'
1628
DETERMINATION OF BOUNDARIES OF FLATS. [CHAP. 183.
14 Alien, 71. the settlement and determination of the lines and boundaries of their 4
117 Mass. 593. , . . , _ • _
ownership in such Eats. • 5
Proceedings
1864, 306, § 3.
1871,338, "
P. S. 177, §§ 2-4
Section 2. Upon such petition the court may by a warrant 1
|^- appoint one or more commissioners who shall, before entering upon 2
their duties, be sworn to faithfully and impartially execute the war- 3
rant, and a certificate of such oath shall be made on the warrant by 4
the person who administers it. They shall notify all persons inter- 5
ested, by personal service or by publication as the court orders, to 6
appear at a time and place named and be heard relative to a pro- 7
posed survey of such flats, and thereafter they shall survey the flats 8
of the petitioners and all adjacent flats owned by other parties 9
whose rights may be affected by a determination of the lines of the 10
flats of the petitioners, shall determine the boundary lines thereof 11
and report to the court the boundaries established for each owner, 12
with a plan of the several portions of flats showing the lines estab- 13
lished for each owner, which, after its approval, shall by order of the 14
court be recorded in the registry of deeds for the county or district 15
in which said flats lie. The proceedings upon such petitions shall 16
be according to sections two and four to seven, inclusive, of chapter 17
one hundred and eighty-four, so far as said sections are applicable 18
thereto. 19
Effect of report
and plan.
1871, 338, § 3.
P. S. 177, § 3.
Section 3. When the report and plan of said commissioners 1
has been accepted by the court and recorded as aforesaid, it shall 2
forever fix and determine the rights of all persons and parties, 3
except where definite boundary lines have been established by par- 4
ties legally authorized to establish them. 5
Costs.
1871, 338, § 5.
P. S. 177, § 5.
129 Mass. 413.
Section 4. The expenses and charges of the commissioners 1
shall be allowed by the court ; the other costs shall be taxed in the 2
usual manner, and the whole shall be apportioned by the court 3
among all parties interested in the determination of the boundary 4
lines over such flats, and shall be paid in proportion to the value 5
of the interests which they, respectively, hold in such flats. 6
Subsequent
purchasers,
etc., may be
made parties.
1878, 103.
P. S. 177, § 6.
Section 5. Whoever, during the pendency of proceedings for 1
the division of flats, acquires by purchase, devise or descent, or 2
by the enforcement of a mortgage or lien an interest or title in 3
or to any flats which are the subject matter of such proceedings, 4
may by order of the court be made a party to such proceedings, 5
and shall be chargeable with such share of the expenses as the 6
court orders. 7
So?nweaifth0m' Section 6. Proceedings under the provisions of this chapter 1
aift; iii; 1 1: sl3a11 not a^ect any right or title of the commonwealth to any land 2
p. s. 177', §7. or flats, unless it consents to become a party to such proceedings. 3
Chap. 184.] partition of land. 1629
CHAPTER 184.
OF THE PARTITION of land.
Section 1 . — Who may have.
Sections 2-30. — In the Superior Court.
Sections 31-33. — In the Probate Court.
Sections 34-45. — Of Estates of Deceased Persons.
Sections 46-57. — General Provisions.
Sections 58, 59. — Division of Water Rights.
WHO MAY HAVE.
1 Section 1. Joint tenants or tenants in common of land may Who may
2 be compelled to divide such land as provided in this chapter ; and im,'s, § i.
3 the writ of partition at common law is hereby abolished. §7|3'41' §1; 62'
R. S. 103, § 1. 5 Met. 1. 8 Allen, 186. 135 Mass. 317. 1785> 62' § 2'
G. S. 136, § 1. 10 Met. 408. 10 Allen, 144. 140 Mass. 82.
P. S. 178, § 1. 3 Gray, 111. 109 Mass. 181, 513. 163 Mass. 325.
14 Mass. 434. 15 Gray, 499. 112 Mass. 42. 170 Mass. 60.
IN THE SUPERIOR COURT.
1 Section 2. Joint tenants or tenants in common who, except as pro- Petition to
2 vided in section fifty, have, respectively, an estate in possession of i74^-™24,c§ "!*'
3 land may file a petition for partition thereof in the superior court for nif^i'i.1"
4 a county in which any part of the land lies, and said court may there- Jlif," a2f §§i.2' 3'
5 upon cause partition of any land so held within the commonwealth, ^" f" 173' lll'l"
6 the partition of which is sought by said petition, to be made, and isss, 346,'§i-'
7 the shares of the petitioners to be set off and assigned. The residue 1 Mass. 503.'
13 Pick 237 251
8 of the land shall remain for the person entitled thereto, and be sub- 13 Met/462.'
9 ject, if more than one person is so entitled, to a future partition. 32Gray^iii?"
7 Allen, 196. 109 Mass. 181, 513. 163 Mass. 325.
1 Section 3. A tenant for years, unless at least twenty years of y"ears<!enantfor
2 his term remain unexpired, shall not maintain such petition against a g- 1" 136' II 4' I'
3 tenant of the freehold ; but if two or more persons hold jointly or p- s. nd, \ i 4.'
4 in common as tenants for a term of years, any of them may have
5 their shares set off from the others, and such partition shall con-
6 tinue in force only for so long as the estate set off endures.
1 Section 4. The petition shall set forth the rights and titles, so -form of.
2 far as known to the petitioner, of all persons interested who would g. si 136,' § 6.*
3 be bound by the partition, stating whether they have an estate of gAiien.m*
4 inheritance, for life or for years, whether in possession, remainder
5 or reversion, and whether vested or contingent. If the petitioner
6 holds an estate for life or years, the remainderman or reversioner
7 shall be so interested and shall be entitled to notice,
1 Section 5. A summons to appear and answer to the petition, Notice.
x 1. ■*■ "p c 103 GS 7
2 signed by the clerk of the court to which it is addressed, shall be n'.
3 served upon each of the parties named in the petition as interested «-s-136>§§8>
4 in the land, if he can be found in this commonwealth, by delivering f0- s- 178> §§ 7>
1630
PARTITION OF LAND.
["Chap. 184.
to him or leaving at the place of his abode fourteen days at least 5
before the return day a copy of the petition and summons, attested 6
by the clerk or by the officer who serves the process. Such further 7
notice, if any, as the court shall order shall be given. 8
Notice to
absent and
unknown
persons.
1742-3, 24, § 3.
1748-9, 12, § 2.
1753-4, 18. § 2.
1783, 41, § 3.
K. S. 103, §§ 9,
10.
G. S. 136, §§ 10,
11.
P. S. 178, § 9.
Section 6. If any of the persons named in the petition as in- 1
terested in the land are absent from the commonwealth, or if the 2
names of any persons so interested who would be bound by the par- 3
tition are unknown to the petitioner, the court shall order notice to 4
be given to such persons by a publication of the petition or of the 5
substance thereof, with the order of the court thereon, in one or 6
more newspapers designated in the order, or by delivering to any 7
absent party who is known an attested copy of the petition and 8
order, or in such other manner as the court may order. 9
Continuance in
certain cases.
R. S. 103, § 12.
G. S. 136, § 13.
P. S. 178, § 11.
Section 7. If at any stage of the proceedings it appears to the 1
court that any person interested, whether named in the petition or 2
not, is out of the commonwealth and has not had opportunity to 3
appear and answer, the petition shall be continued until such 4
person has had time to appear and answer. 5
Who may
appear and
answer.
1786, 53, § 1.
R. S. 103, § 14.
G. S. 136, § 16.
P. S. 178, § 14.
9 Pick. 66.
Section 8. Any person interested in the land may appear and 1
may plead or answer, either separately or jointly with any other 2
respondents, any matter tending to show that the petitioner ought 3
not to have partition as prayed for, either in whole or in part, and 4
the further pleadings shall be as in actions at common law. 5
tionertoplr-' Section 9. If a person not named in the petition appears and 1
Rnsnio3na« is" P^ea(^s or answers, the petitioner may reply that the respondent has 2
is. ' ' ' no estate or interest in the land and mav also in the same replica- 3
tion include any other answer which he might have made if he had 4
not disputed the respondent's right to appear. If upon such repli- 5
cation it is found that the respondent has no estate or interest in 6
the land, his plea or answer shall not be further considered. 7
18.
P. S. 178, § 15
148 Mass. 42.
If two or more
respondents
Section 10.
If two or more respondents claim the same share, 1
shaaretnesame the court shall, by issues to a jury or otherwise, determine which 2
r. s. io3, §§ 4i, shall be admitted to appear; and if partition is made, the share so 3
g.' s. 136, §§ 38, claimed shall be left and shall be ultimately set off to whichever 4
p." s. 178, §§i6, of the parties in an action brought between themselves proves his 5
title. A party who is not permitted to appear shall be concluded 6
by the partition and assignment of shares, but may bring an action 7
as provided in section twenty-six against the other claimants. 8
Costs of trial.
1786, 53, § 1.
R. S. 103, § 17.
G. S. 136, § 19.
P. S. 178, § 18.
4 Pick. 246.
19 Pick. 539.
11 Allen, 104.
Section 11. If upon the trial of an issue, it is found that the 1
petitioner is entitled to have partition as prayed for, he shall recover 2
and have execution for his costs of the trial against the party who 3
objected to such partition. If such issue is found against him, in 4
whole or in part, the respondent shall recover against him and have 5
execution for his costs of the trial ; but the petitioner may have 6
judgment for partition and assignment to him of such part of the 7
land, if any, as he is found to be entitled to. 8
Chap. 184.] partition or land. 1631
1 Section 12. If it is found that the petitioner is entitled to have interlocutory
2 partition for the share claimed or for any less share, the court shall iv&fjsffi.
3 award the interlocutory judgment that partition be made. The <f' !" is!' f 20"
4 petition shall not be defeated by the payment by a party of a mort- P^f,^,'|119,
5 gage, lien, tax or other encumbrance upon the land if the other 3 Mass. 299. "
11 Gush 168
6 parties are entitled to redeem from such payment ; but the inter-
7 locutory judgment shall contain such terms and conditions relative
8 to redemption from a contribution on account of such payments as
9 may be in accordance with the rules of equity.
1 Section 13. The court shall thereupon appoint and issue a commission-
2 warrant to three or five disinterested commissioners to make the 1742-3,24, §§1,2.
3 partition and to set off to the petitioner the share belonging to i^gZ^iVi.
4 him, which share shall be expressed in the warrant. The commis- rs| io'3§ls'2o'
5 sioners before entering upon their duties shall be sworn to faithfully 22-24. 29.'
6 and impartially execute the warrant, a certificate of which oath shall 24', 29. '
7 be made on the warrant by the person who administers it. They 24'. '
8 shall give notice of the time and place appointed for making the il Mass! 137!
9 partition to all known persons within the commonwealth interested
10 therein. All the commissioners shall meet for the performance of
11 any of their duties, but a majority may act. The commissioners
12 shall make and sign a report of their doings and return it with their
13 warrant. If their report is confirmed, judgment shall be rendered
14 that the partition be firm and effectual forever.
1 Section 14. The expenses and charges of the commissioners costs.
2 shall be allowed by the court ; the other costs shall be taxed in the i857,'i49.' '
3 usual manner; and the whole, except the costs of a trial of issues, f$ s' 136, §§ u'
4 shall be paid in such manner as the court may order. If there is p7^™! §§29
5 more than one petitioner, each shall pay such share of the costs and so.
6 charges as is proportionate to his interest. If it is found that the 11 Alien, 104.
<D xr sr 236 Mass 126
7 petitioner is entitled to have partition as prayed for, he shall re-
8 cover against the respondent named in the petition who opposes
9 the partition costs after the filing of the plea or answer, which shall
10 be taxed as in other civil cases.
1 Section 15. Petitioners may at their election have their shares shares set off
2 set off together or in severalty, e. s. 103, § 21. g. s. 136, § 25. p. s. 178, § 25. severalty^ '
1 Section 16. If a part of the land cannot be divided without Partition of
* lii land maivis-
2 great inconvenience to the owners or is 01 greater value than the ibie.
3 share of any party, or if all the land cannot be divided without 1783, 41', § 2.
4 such inconvenience, the whole or any part thereof may be set off to 26-.S' °3'
5 any one or more of the parties, upon payment by him or them to p- |; j^; | |j;
6 any one or more of the others of such amounts of money as the u Gray> 49°-
7 commissioners may award to make the partition just and equal ; or
8 the commissioners may assign the exclusive occupancy and enjoy-
9 ment of the whole, or of the part, to each of the parties succes-
10 sively for certain specified times in proportion to their respective
11 interests.
1 Section 17. If the whole or any specific part of the land is Effect of ex.
2 thus assigned, the person entitled for the time being to the exclusive pttUncy?0'
1632
PARTITION OF LAND.
[Chap. 184.
r. s. 103, §27. occupancy shall be liable to his cotenants in an action of tort 3
p." I.' ire,' 1 27.' brought by them jointly or severally, for any injury to the land 4
caused by his misconduct, as a tenant for years under a common 5
lease without express covenants would be liable to his landlord. 6
Rights against
trespassers.
R. S. 103, § 28.
G. S. 136, § 28.
P. S. 178, § 28.
Section 18. While the land is in the exclusive occupancy of a 1
cotenant under such assignment, he shall have the same remedy 2
against trespassers or other tort feasors as a lessee for the term 3
assigned and he and all other tenants in common may recover such 4
other and further damages as they have sustained by the same tres- 5
pass or injury, as if they were lessees of the land. Joint damages 6
recovered by such tenants in common under the provisions of this 7
or the preceding section shall be divided among them, according to 8
their respective interests, by the court in which the judgment is 9
recovered. 10
Improve-
ments.
1850, 278, § 1.
G. S. 136, § 46.
P. S. 178, § 31.
12 Cush. 170.
105 Mass. 412.
131 Mass. 480.
135 Mass. 317.
Section 19. If the petitioner recovers judgment and it appears 1
by the pleadings that the respondent denied the right and title of 2
the petitioner to any part of the land and claimed the same as his 3
own estate in fee, and if it is found that the respondent held the 4
same under a title which he believed to be good, he shall be enti- 5
tied to compensation for the value of any buildings or improvements 6
on the land made or erected by himself or by any other person 7
under whom he claims, and such value shall be ascertained as 8
provided for tenants in real actions by chapter one hundred and 9
seventy-nine ; and he shall in like manner be liable for the peti- 10
tioner's share of the rents, profits and other damages mentioned in 11
said chapter. 12
Same subject.
1850, 278, § 2.
G. S. 136, § 47.
P. S. 178, § 32.
Section 20. If any amount remains due to the respondent for 1
improvements, after deducting the rents, profits or other damages 2
for which he is found liable, the petitioner shall not have judgment 3
for partition until he pays such amount to the respondent, or to the 4
clerk of the court for his use ; and the petitioner shall not be enti- 5
tied to any rents or profits which. may accrue after verdict and 6
before he makes such payment. The provisions of this and the 7
preceding section shall apply to all processes of partition. 8
P. S. 178, § 33.
r?<Pe53,'§2. Section 21. A party who is aggrieved by a judgment rendered 1
r. s. io3, §§ 19, in the superior court under the provisions of section twelve, or 2
G- §■ M> 1 ?o. upon a report of commissioners under the provisions of this chapter, 3
may appeal therefrom in any matter of law apparent upon the record 4
to the supreme judicial court ; but an appeal from the judgment 5
upon the report of commissioners shall not draw in question the 6
interlocutory judgment. 7
Conclusiveness
of final judg-
ment.
R. S. 103, § 33.
G. S. 136, § 32.
P. S. 178, § 35.
1889, 468, § 2.
2 Mass. 462.
8 Met. 196, 596.
2 Allen, 118.
138 Mass. 436.
176 Mass. 454.
Section 22. The final judgment upon a petition for partition, 1
which shall not be entered until the court finds that the terms and 2
conditions of the interlocutory judgment have been complied with, 3
shall, except as hereinafter provided, be conclusive as to the rights 4
of property and possession of parties and privies to the judgment, 5
including all persons who might by law have appeared and an- 6
swered. 7
Chap. 184.] paktition of land. 1633
1 Section 23. If any person who was a part owner with the peti- ^^^T-
2 tioner, and for whom a share is left upon the partition, is out of the r^s-a) w, H*
3 commonwealth when the summons or notice to him is served and R. s. 103, §§ 34,
4 does not return in time to appear and answer, he may, within three g.' s. 136, § 33.
5 years after the final judgment, apply to the same court for a new p" s' 178' § 36,
6 partition ; and if, upon a hearing of all parties interested, it is
7 found that the share left for the applicant was less than he was enti-
8 tied to, or that the part left for him was not at the time equal in
9 value to his share of the land, the court may order a new partition
10 which shall be made in the manner before provided.
1 Section 24. In such new partition the commissioners shall not ^^J1*^-
2 be required to make a new division of all the land, but may »• |'- 10'3> § 36.
3 take from any share or shares and add to any other or others so p.' s.' 178,' § 37.'
4 much as is necessary to make the partition just and equal, valuing
5 the whole in the state in which it was when first divided ; or if an
6 equal partition cannot be made without inconvenience to the own-
7 ers, the commissioners may award money to be paid by one party
8 to another, as before provided, to make the partition just and equal.
1 Section 25. A person, who has not appeared and answered and ^£f4r claim-
2 who claims to hold in severalty any part of the land, shall not be ingin sev-
3 concluded bv the iudgment, but mav bring; an action for the land r. s.'ik, § 38.
4 claimed by him against any or all of the petitioners or respondents p." s! ire,' § 38.'
5 or of the persons holding under them within the time in which he 5 Met.S335.2'
6 might have brought such action if the judgment for partition had
7 not been rendered.
1 Section 26. A person, who has not appeared and answered and ^mfnr<?ager
2 who claims the share assigned to or left for any of the supposed ^p^f^Q'
3 part owners in the iudgment for partition, shall be concluded bv 40-
GS 136 66 36
4 the iudgment, so far as it relates to the partition and the assignment 37.
5 of the shares, as if he had been a party to the action but he may 40'. '
6 bring his action for the share claimed by him against the person to
7 whom it was assigned or for whom it was left. Such action shall
8 be brought against the tenant in possession, as if the demandant
9 had originally claimed the specific parcel demanded instead of an
10 undivided part of the land ; and it may be brought within the time
11 in which it might have been brought if no such judgment for par-
12 tition had been rendered.
1 Section 27. A person, who has not appeared and answered and coming afer
2 who claims part of the land as a part owner with any of those }f g0^1"^,
3 who were parties to the action, shall, if the share so claimed was «■ '
4 not known or not allowed and left for him in the process of parti- p.' s." ire,' § a.
22 Pick 316
5 tion, be concluded by the judgment so far as it relates to the par-
6 tition, but may bring an action for the share claimed by him against
7 each of the persons holding any part of the land under the judgment
8 for partition and, if he prevails, shall recover against each the same
9 proportion of the part so held that he was entitled to claim out of
10 all the land before the partition.
1 Section 28. The heir or devisee of a person for whom a share Death of part
2 was left or assigned and who died before the partition shall not be the partition.
1634
PARTITION OF LAND.
[Chap. 184.
R. "S. 103, § 45.
G. S. 136, § 41.
P. S. 178, § 42.
Party evicted.
R. S. 103, § 46.
G. S. 136, § 42.
P. S. 178, § 43.
barred from claiming the share which belonged to the ancestor or
devisor because the ancestor or devisor was a party to the action,
but shall have the same rights and remedies as if the ancestor or
devisor had not been such party and had not had notice of the pro-
ceedings.
Section 29. If a person to or for whom a share has been 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
action, the person so evicted may have a new partition of the resi-
due, as if partition had not been made.
3
4
5
6
7
1
2
3
4
5
Mortgagee,
etc., of part
owner.
R. S. 103, § 47.
G. S. 136, § 43.
P. S. 178, § 44.
154 Mass. 181.
Section 30. A person having a mortgage, attachment or other 1
lien on the share of a part owner shall be concluded by the judg- 2
ment, so far as it relates to the partition and the assignment of the 3
shares ; but his lien shall remain in full force upon the part assigned 4
to or left for such part owner. 5
Jurisdiction.
1869, 121, § 1.
1874, 266, § 1.
P. S. 178, § 45.
IN THE PROBATE COURT.
Section 31. Probate courts shall have concurrent jurisdiction 1
with the superior court of petitions for partition of land held by 2
joint tenants or tenants in common if the shares do not appear to 3
be in dispute or uncertain. 4
raperior^OTirt. Section 32. If it is found by the probate court in which such
p7| us l§462' Potion is filed that the shares are in dispute or uncertain, the court
may, or, at the request of any party in interest, shall, order the case
to be removed to the superior court. The petitioner shall enter the
petition in the superior court for the same county at the return day
next after the order for removal, with certified copies of all. papers
filed in the case, and the petition shall be tried and determined as
if originally commenced therein.
1
2
3
4
5
6
7
8
Proceedings in
probate courts.
1874, 266, § 3.
P. S. 178, § 47.
Section 33. If partition is made in the probate court, it shall 1
be made as hereinafter provided for partition of the estate of a de- 2
ceased person ; and if a party dies during the pendency of the par- 3
tition, the share or proportion belonging to him may be assigned in 4
his name to his estate, to be held and disposed of as if the petition 5
had been made prior to his decease. 6
Partition be-
tween heirs,
devisees, etc.
1742-3, 29, § 1.
1752-3, 13, § 1.
1783, 36, § 12.
1817, 190, § 24.
R. S. 103, §§ 50,
53.
G. S.136, §§48,
51.
Notice.
R. S. 103, § 53.
G. S. 136, § 51.
P. S. 178, § 51.
1882, 55.
OF ESTATES OF DECEASED PERSONS.
Section 34. The probate court in which the estate of a deceased
person is in course of settlement or has been settled may, upon peti-
tion of any party interested, make partition of all the land of such
deceased person, lying within the commonwealth, among his heirs
or devisees and all persons who hold under them by conveyance
or otherwise as hereinafter provided. p. s. 178, § 48. 13 Mass. 413.
21 Pick. 101. 3 Gray, 536. 148 Mass. 594. 159 Mass. 470.
Section 35. Notice of the petition shall be given to all parties
interested by serving the same fourteen days at least before the
time appointed for the hearing on the parties personally, if they
1
2
3
4
5
6
1
2
3
Chap. 184.] partition of land. 1635
4 can be found within the commonwealth, and, if not, it shall be pub-
5 lished once in each of three successive weeks in such newspaper or
6 newspapers as the court shall order.
1 Section 36. The court shall appoint a disinterested person to Agent and
2 act for any heir, devisee or other person interested in the land, who f?i^^,'§3.
3 is absent from the commonwealth, in all things relative to the par- YwA' if 1 2'
4 tition ; and if an infant or insane person is interested in the land igrf'woVI;
5 and has no guardian within the commonwealth, it shall appoint a f- s'- 103'> § s4-
6 guardian ad litem. g. s. 136, §§ 52, 53.
1877, 158, § 2. P. S. 178, §§ 52, 53, 62. 11 Mass. 507.
1 Section 37. The court shall by warrant appoint three or five commission-
2 disinterested commissioners to make the partition who, before en- 1742-3, 29, § 1.
3 teringupon their duties, shall be sworn to faithfully and impartially i^i^f 12*'
4 execute the warrant and shall, except as herein otherwise provided, 1817, 190, §§24,
5 proceed as if appointed by the superior court. p. s. 178, §49. g'I'iv' I*1'
1 Section 38. If the land lies in different counties, the iud^e if land lies in
2 may issue a separate warrant and appoint different commissioners tieseren coun"
3 for each county ; and the partition shall be made of the land in §; 1'. 13I, | fo'.
4 each county as if there was no other land to be divided. p. s. 178, §50.
2
1 Section 39. If partition is made upon the application of an wnatsnaiibe
heir or a person holding under him it shall be of all the land which ™rtition.ln
3 descended from the ancestor which any party interested requires to §; |; \H't | |f;
4 have included ; and if made upon the application of a devisee or p- s- 178> § 54-
5 person holding under him, it shall be of all the land held by the
6 applicant jointly or in common with others holding under the tes-
7 tator which he or any other devisee so requires.
1 Section 40. Upon such partition the court may set off to the Residue to be
2 petitioner his share and leave the residue of the land for the per- leJs1. e ' un~
3 sons entitled thereto, subject to a future partition; or it may set §! ii 136, 1 55.
4 off to the persons entitled to said residue their respective shares ^'8f-2938.'§55'
5 therein. If two or more of such persons consent to hold their
6 shares undivided such shares may be so set off.
1 Section 41. If a part of the land cannot be divided without £^2gv£
2 great inconvenience to the owners or is of greater value than the jbie.
3 share of any party or if all the land cannot be divided without such r/83, sfe, §'§ e, is.
4 inconvenience, the whole or any part thereof may be set off to any 29/'
5 one or more of the parties, upon payment by him or them to any f^H;™' § 57'
6 one or more of the others of such amounts of money as the com- g. s. 136, §§ 56,
7 missioners may award to make the partition just and equal. p. s. 178, §56.
1 Section 42. The expenses and charges of the proceedings shall ~^8t8' how
2 be allowed by the court and paid by all the parties interested in {jf^^*
3 proportion to their respective interests, and the court may issue wi7J 3uw, § so.
4 execution therefor. p. s. 178, §58. 11 Alien, i87. 133 Mass. 413. g. s. m, § 59.
1 Section 43. The court shall not make partition if it finds that -
2 the shares of the respective parties are in dispute or are uncertain 1742-3,21), §
3 by reason of depending upon the construction or effect of a devise 1783, m, '§'13'
if shares are
ncertaiu.
2.
8.
1636
PARTITION OF LAND.
[Chap. 184.
1817, 190, § 28.
R. S. 103, § 61.
G. S. 136, § 60.
or conveyance or upon other questions which the court considers 4
should be determined by another tribunal. 5
P. S. 178, § 59. 11 Allen, 187. 159 Mass. 471.
Partition of
estate of de-
ceased from
that of co-
tenant.
1752-3, 13, § 2.
1760-1, 13, § 1.
1783, 36, § 13.
1817, 190, § 25.
1820, 54, § 1.
R. S. 103, §§ 64,
65.
G. S. 136, §§ 61,
62.
P. S. 178, §§ 60,
61.
Section 44. If a part of the land of the deceased lies in com- 1
mon and undivided with that of another person, the probate court 2
may, before making partition among those claiming under the de- 3
ceased, cause the land of the deceased to be set off from the part 4
held by such cotenant. A notice of the intended partition, con- 5
taining a description of the land to be divided and a statement of the 6
share claimed to belong to the estate of the deceased and of the 7
time and place appointed for a hearing, shall be served by deliv- 8
ering to the cotenant an attested copy, or by leaving such copy at 9
the place of his abode in this commonwealth fourteen days at least 10
before the time appointed for the hearing. 11
Effect of par-
tition.
1817, 190, § 26.
R. S. 103, §§ 68,
69.
G. S. 136, §§ 64,
65.
1881, 180.
P. S. 178, § 63.
1882, 6, § 2.
11 Allen, 26.
12 Allen, 600.
Section 45. The partition, when finally confirmed and estab- 1
lished, shall be conclusive on all the heirs and devisees of the 2
deceased, and all persons claiming under them ; and on all other 3
persons interested in the land who appeared and answered in the 4
case or assented in writing to the proposed partition or upon whom 5
notice of the petition was served, personally or by publication, as 6
before provided or who waived notice, or for whom an agent was 7
appointed, and upon all persons claiming under them or any of 8
them. All other persons may pursue their legal remedies for re- 9
covering the land, or any part thereof, and for obtaining partition 10
of the same, as if the proceedings in the probate court had not 11
been had. 12
Jurisdiction
retained, when.
R. S. 103, § 72.
G. S. 136, § 70.
P. S. 178, § 64.
16 Mass. 167.
11 Allen, 187.
GENERAL PROVISIONS.
Section 46. When proceedings for
obtaining
partition are
lawfully commenced in either of the courts mentioned in this chap-
ter, the court in which they are so commenced shall retain jurisdic-
tion of the case.
1
2
3
4
66
1894, 104.
140 Mass. 82.
162 Mass. 385
i87o 257land' Section 47. In any case of partition, the court may, at the 1
1877' i5s' 1 1 ^me °f aPPom^m& commissioners, or subsequently by agreement 2
p. s. ire, §§ 65, of parties, or at any time after notice to all persons interested, 3
order the commissioners to sell and convey the whole or any part 4
of the land which cannot be advantageously divided, upon such 5
terms and conditions and with such securities for the proceeds of 6
such sale as the court may order, and to distribute and pay over 7
the proceeds of the sale in such manner as to make the partition 8
just and equal. If the court orders such sale before the commis- 9
sioners are appointed, it may appoint one commissioner to make 10
such sale, conveyance and division of its proceeds. Such sale shall 11
be made by public auction, after like notice as is required for the 12
sale of land by an administrator, and the evidence thereof may be 13
perpetuated in like manner by returns filed with the clerk or register 14
of the court in which the proceedings are had. The conveyance 15
shall be conclusive against all parties to the proceedings for parti- 16
tion and those claiming under them. The provisions of section 17
nineteen of chapter one hundred and forty-eight shall apply to such 18
sales. ~ 19
Chap. 184.] partition or land. 1637
1 Section 48. If a distributive share of the money arising from Disposal of
2 such sale remains unpaid at the time of confirming the proceedings cKId8 un"
3 or of establishing the partition, the commissioners shall deposit it p^.i^IIv
4 in the name of the judge of probate for the county in which the
5 proceedings are had in such savings bank or other like institution
6 as the court may order, to accumulate for the persons entitled
7 thereto. The deposit shall be subject to the provisions of section
8 twenty -three of chapter one hundred and fifty.
1 Section 49. If it appears that an estate for life or for years in Appointment
2 any part of the land divided belongs to one person and the remainder l^^m?'
3 thereon to another person, the probate court of the county in which
4 the proceedings are pending may upon petition of any party inter-
5 ested therein appoint a trustee to receive, hold, manage and invest any
6 distributive share of the money arising from the partition to which
7 such persons may be entitled. The annual income of such share
8 shall be paid to the life tenant or tenant for years for the period
9 such estate might have continued, and the principal after the ter-
10 mination of such estate shall be paid to the remainderman when
11 ascertained. The trustee shall, before entering upon the duties of
12 his trust, give to the judge of probate a bond with sufficient surety
13 and in such penal sum as the judge may order, conditioned for the
14 faithful performance of his duties, and, upon breach of the condi-
15 tion, an action may, by order of the probate court, be brought for
16 the use of the persons interested in the trust property as upon a
17 bond of an administrator.
1 Section 50. The existence of a lease of the whole or a part of Lease not to
r.-11-i-iT-ii-i-n .. t i prevent parti-
2 the land to be divided shall not prevent a partition under the pro- tion.
3 visions of this chapter ; but the rights of the lessee shall not be g. s. 136, § 67.
4 prejudiced thereby. p. s.i78, §68. 6Cush. 472. 150 Mass. 85.
1 Section 51. The fact that a tenant in common is, alone or Trusteeship,
2 jointly with others, a trustee, attorney or guardian of another ten- vent potion6"
3 ant shall not prevent a partition under the provisions of this chapter, ofl.^les.
P. S. 178, § 69. 9 Cush. 405.
1 Section 52. If remainders or other estates in the land to be if persons not
2 divided are devised or limited to or in trust for persons not in being interested.
3 at the time of the application for partition, notice setting forth the 1853', 257!
4 origin and nature of the remainder or interest so devised or limited ^fl.^e, § 69.
5 shall be given as provided in sections five and six to the persons ^,9 Mais. Ii3°.'
6 who may be parents of such persons not in being, and the court
7 shall appoint a person to appear and act as the next friend of such
8 persons not in being in all proceedings relative to the partition ;
9 the cost of whose appearance and services, including the compen-
10 sation of his counsel to be determined by the court, shall be paid
11 by the persons who apply for partition, and execution may be
12 issued therefor in the name of the person appointed. The partition
13 made in such case shall be conclusive upon all persons to whom
14 such estate or remainder is devised or limited as if they had been
15 in being and had appeared and answered or had assented to the
16 partition.
1638
WASTE AND TRESPASS.
[Chap. 185.
Payment or
security if
money
awarded.
1850, 239.
G. S. 136, § 71.
P. S. 178, § 71.
16 Mass. 122.
7 Pick. 209.
Section 53. If money is awarded by the commissioners to make 1
the partition just and equal, the partition shall not be established 2
by the court until all the money is paid to the parties who are 3
entitled thereto, or secured to their satisfaction or that of the court 4
before which the matter is pending. 8 Met. 365. 3 Gray, 536. 5
Section 54. If after a first partition improvements have been 1
made on a part of the land which by a new partition is taken from 2
the share of the party who made the improvements, he shall be en- 3
titled to compensation therefor, which shall be determined and 4
awarded by the commissioners and paid by the party to whom such 5
part of the land is assigned on the new partition, and the court 6
may issue an execution therefor. 7
evtete<ir80ri Section 55. A person who holds land under a partition made 1
g! I'. 136 1 73. under the provisions of this chapter shall, in case of an eviction, be 2
p. s. 178, §73. entitled to compensation for improvements made thereon, as pro- 3
vided in chapter one hundred and seventy-nine. 4
Improvements
made before
new partition.
1742-3, 24, § 4.
1748-9, 12, § 5.
1783, 41, § 3.
R. S. 103, §§ 37,
70.
G. S. 136, § 72.
P. S. 178, § 72.
sefalid ™ay be Section 56. The court may in all cases set aside the return of
r.s.io3,§§3o, the commissioners and commit the case anew to the same or to
p' I' lis' 1 74' °ther commissioners, with the same powers as those originally ap-
11 Allen,' 187. pointed . 152 Mass. 137.
Record of
return.
1742-3, 24, §1;
29, § 1.
1748-9, 12, § 1.
1752-3, 13, § 1.
1783, 41, § 1.
1817, 190, § 26.
1820, 54, § 2.
Section 57. The return of the commissioners, when accepted,
shall remain in the office of the clerk or register, as the case may
be; and a copy of the return, certified by the clerk or register,
shall be recorded in the registry of deeds for each county or district
in which the land lies. r. s. 103, § 59.
1847, 170. G. S. 136, § 75. P. S. 178, § 75. 1888, 346, § 3.
1
2
3
4
1
2
3
4
5
DIVISION OF WATER RIGHTS.
Division of in.
corporeal
hereditaments.
1854, 74.
Section 58. Joint tenants or tenants in common of a mill
privilege, water right or other incorporeal hereditament may be
p' I' ire' 1 76* compelled to divide the same, either by suit in equity in the
I Erah* 486 superior court or in the manner hereinbefore provided for the divi-
10 Gray, 14.' sion of land. In the latter case, the commissioners appointed to
make partition shall set forth in their return the best method of
setting off to the several parties their respective shares, and there-
upon the court may make all such orders and decrees as might be
made in equity.
18^128 bject' Section 59. Under the provisions of the preceding section, par-
pi I.' iff' 1 77.' titi°n may be made of the water of a natural stream, not navigable,
the banks of which are owned by different riparian proprietors.
1
2
3
4
5
6
7
8
9
1
2
3
CHAPTEE 185.
OF WASTE AND TRESPASS.
Action of
waste.
1700-1, 22, § 5.
1783, 40, § 3.
Section 1. If a tenant in dower, by the curtesy, for life or
for years commits or suffers waste on the land so held, the person
having the next immediate estate of inheritance may have an action
1
2
Q
O
Chap. 185.] waste and trespass. 1639
4 of waste against such tenant to recover the place wasted and the r. s. 60, §15;
5 amount of the damage, and such action shall be subject to the G.s?9o,~§'i4;
6 provisions of law relative to trial by jury. An heir may bring p^isaf § ifi;
7 such action for waste done in the lifetime of his ancestor. I p'ick/m
7 Pick. 152. 8 Pick. 309. 138 Maes. 472. 152 Mass. 561.
1 Section 2. A person who has the next immediate estate of in- Action of tort
2 heritance, or a remainder or reversion in fee simple or fee tail after R.VTiao5, §§4,5.
3 an intervening estate for life, or who has a remainder or reversion p lira,' If m!
4 for life or for years, may have an action of tort in the nature of lo^nenfleo.
5 waste to recover the amount of the damage against the tenants
6 named in the preceding section.
1 Section 3. If such action of tort was commenced in the lifetime — may *>e
2 of the tenant, it may be prosecuted against his executor or admin- against
3 istrator or it may be commenced against the executor or adminis- r. s.uio5,'§e6.'
C1 **l -|OQ C (*
4 trator of the tenant for waste committed or suffered in the tenant's p.' s.' 179,' §5.'
5 lifetime.
1 Section 4. A joint tenant or tenant in common of undivided et°cintlitae°1gnft'r
2 land who cuts down, destroys or carries away any trees, timber, triple dam.
3 wood or underwood standing or lying on such land, or who digs up 1727/18, § 1.
4 or carries away any stone, ore or other valuable thing found there, i783~52? u?'
5 or who commits any other waste, without first giving thirty days' Kfs'.ws? § 7.
6 notice in writing under his hand to all other persons interested p.f.'if^fg."
7 therein or to their respective agents or attorneys of his intention ^Masfsi
8 to enter upon and improve the land, or who does any of said acts us Mass. 494.
9 during the pendency of a petition or other proceeding for the par-
10 tition of the land shall forfeit three times the amount of the damages
11 assessed therefor.
1 Section 5. Such damages may be recovered in an action of tort such damages,
how recovered*
2 by one or more of the other cotenants, without naming any one 1727, is, §1.
1 7^7— A ft S 9
3 except the plaintiff, one-half to the use of the cotenants who 17^3, 52, '§ 1. '
4 associate themselves with the plaintiff in bringing the action, and k.l^ioMk
5 the other half to their use and that of all the other cotenants except p." |; iff; 1 1;
6 the defendant, to be divided among them in each class in propor- fj™* ;-34|95/
7 tion to the value of their respective interests in the land.
1 Section 6. If, during the pendency of an action for the recovery waste during
2 of land, the tenant or person in possession, with knowledge thereof, actionncyo
3 commits waste, the demandant, if he recovers judgment, may after- 1795' 75' § 3'.
4 ward recover in an action of tort three times the amount of the g; §; ^ | ^
5 damages assessed therefor. p. s. 179, § 8. 2 cusn. 401.
*er
1 Section 7. A person who without license wilfully cuts down, Liability for
2 carries away, girdles or otherwise destroys any trees, timber, wood ting trees, etc.
3 or underwood on the land of another shall be liable to the owner in kIu7,' i§o?'§ 1.
4 an action of tort for three times the amount of the damages assessed l^H'f.1,
5 therefor; but if it is found that the defendant had good reason to ^,\^;§§10>
6 believe that the land on which the trespass was committed was his u g
7 own or that he was otherwise lawfully authorized to do the acts j^y™'|j'
8 complained of, he shall be liable for single damages only. m Mast 443!
1640
ACTIONS FOR PRIVATE NUISANCES.
[Chap. 186.
Involuntary
trespass.
1786, 52, § 2.
R. S. 105, §§ 12,
13.
G. S. 138, §§ 11,
12.
P. S. 179, §§ 10,
11.
6 Met. 261.
16 Gray, 285.
Section 8. A trespasser, if the trespass was casual and involun- 1
taiy, may, before an action is commenced, tender the damages and, 2
upon action brought, disclaim title and allege the tender and that 3
the trespass was casual and involuntary ; and if it is found that the 4
allegations are true and if he has deposited with the court the 5
amount of his tender at the time of filing his answer and the dam- 6
ages assessed are not more than the amount tendered, he shall re- 7
cover his costs. Such tender may, subject to the same provisions, 8
be made after the action has been commenced with like effect, if it 9
covers the costs to the time of tender. 10
Injunction to
stay waste by
person whose
land is
attached, etc.
1740-1, 14.
1829, 121.
R. S. 105, §§ 17,
18.
1551, 233, § 71.
1552, 312, § 54.
1856, 278.
G. S. 138, §§ 15-
17.
P. S. 179, §§ 12-
14.
Section 9. If a person whose land is attached commits any act 1
of waste thereon or threatens or makes preparations so to do or if 2
a real action is brought to foreclose a mortgage or for possession 3
thereunder or for the recovery of land and any waste, or act in the 4
nature of waste, on the land has been committed or threatened by 5
the tenant or by any one who claims under him or acts by his per- 6
mission, the court in which the action is pending shall, upon motion 7
of the plaintiff or demandant, have jurisdiction in equity to enjoin 8
such waste or act. In such case the court may require the plaintiff 9
or demandant to give bond in such sum as it orders to the adverse 10
party, with sufficient sureties, conditioned that he will, if the in- 11
junction is dissolved, pay all damages which may arise from the 12
issuing thereof. 13
CHAPTER 186.
OF ACTIONS FOR PRIVATE NUISANCES.
Judgment for
abatement of
nuisance.
1828, 137, § 6.
R. S. 106, §§ 1, 2.
G. S. 139, § 1.
P. S. 180, § 1.
11 Pick. 452.
7 Allen, 431.
150 Mass. 482.
Section 1. If the plaintiff prevails in an action of tort for a 1
nuisance, the court may, in addition to the judgment for damages 2
and costs, enter judgment that the nuisance be abated and removed 3
and may issue an execution for the damages and costs and a separate 4
warrant to the proper officer, requiring him to abate and remove 5
the nuisance at the expense of the defendant in like manner as public 6
and common nuisances are abated and removed. 7
fant.ofwar" Section 2.
g". I' 139' § I* a stay °f sucn warrant for not more than six months, to give him
p.' s." 180,' § 2.' opportunity to remove the nuisance, upon his undertaking so to do
within the time ordered. 4
The court may, upon motion of the defendant, order 1
2
3
Second action.
R. S. 106, § 4.
G. S. 139, § 3.
P. S. 180, § 3.
Expense of
abatement,
Section 3. If the plaintiff recovers judgment in a second action
for the continuance or repetition of the same nuisance, whether
there was in the former action a judgment for abatement and re-
moval or not, he shall be entitled as of right to a judgment for
abatement and removal and to a warrant as "hereinbefore provided.
Section 4.
The expense of abatement and removal shall be col-
how recovered, lected by the officer in the manner in which damages and costs are
1786, 81, § 6. ...
R. S. 106, § 5.
G. S. 139, § 4.
P. S. 180, § 4.
collected upon execution, except that the materials of buildings,
fences or other things so removed may be sold by the officer as
goods are sold on execution for the payment of debts. The officer
1
2
3
4
5
1
2
3
4
5
Chap. 187.] foreclosuee and redemption of mortgages. 1641
6 shall apply the proceeds of the sale to defray the expense of the
7 removal and shall upon demand pay over any balance to the de-
8 fendant. If the proceeds are not sufficient to defray the expenses,
9 he shall collect the residue from the defendant.
1 Section 5. The superior court may in an action of tort for a injunction to
2 nuisance pending therein enjoin such nuisance as in equity. k?I. wmT5'
G. S. 139, § 6. P. S. 180, § 6.
CHAPTEK 187.
OF the foreclosure and redemption of mortgages.
Sections 1-10. — Foreclosure by Entry or Action.
Sections 11-17. — Foreclosure by Sale.
Sections 18-34. — Redemption.
Sections 35, 36. — General Provisions.
Sections 37-40. — Mortgages to the Commonwealth.
FORECLOSURE BY ENTRY OR ACTION.
1 Section 1. A mortgagee may, after a breach of the condition of Foreclosure by
2 a mortgage of land, recover possession of the land mortgaged by an i785,y22^§ 2.101
3 open and peaceable entry on the land, if not opposed by the mort- g'.s'.uo', §1!
4 gagor or other person claiming it, or by action as hereinafter pro- f cush^o!.1'
5 vided ; and such possession so obtained, if continued peaceably for 5°Grayh,'39i98.163'
6 three years, shall forever foreclose the right of redemption. 9Grly,6389s
16 Gray, 149. 102 Mass. 298. 121 Mass. 139. 157 Mass. 272.
3 Allen, 324. 103 Mass. 475. 131 Mass. 464. 165 Mass. 123.
8 Allen, 161, 466. 110 Mass. 311. 139 Mass. 506. 170 Mass. 120.
1 Section 2. If an entry for breach of condition is made without Record of cer-
f'TnOflt'P OT
2 a judgment, a memorandum of the entry shall be made on the entry.
3 mortgage deed and signed by the mortgagor or by the person g! s". uo, § 2!
4 claiming under him, or a certificate, under oath, of two competent FoMetk!.2'
5 witnesses to prove the entry shall be made. Such memorandum or ^cush.1!^.
6 certificate shall within thirty days after the entry, except as pro- f^ray3!^
7 vided in section sixty-two of chapter one hundred and twenty-eight, l6^8/'^1-
8 be recorded in the registry of deeds for the county or district in 9 Alien', 530'.
• ■ 100 Mass 108
9 which the land lies, with a note of reference, if the mortgage is 109 Mass! 230!
10 recorded in the same registry, from each record to the other. 145 Mass! 224!
11 Unless such record is made, the entry shall not be effectual for the 165Ma88-359-
12 purposes mentioned in the preceding section.
1 Section 3. The mortgagee in an action for possession may Declaration
2 declare on his own seisin, stating that it is in mortgage ; and if the l^t^lT11*'
3 court finds upon verdict or otherwise that the plaintiff is entitled R?|.io'7f§3.
4 to the possession of the land for breach of condition, it shall upon Jf ^312, § 2,
5 motion of either party, except as provided in the following section, ^f-^f-f f;
6 award the conditional iudgment hereinafter mentioned. 7 Mass. 354.
•> ° 10 Met. 172.
9 Allen, 69. 11 Allen, 39. 122 Mass. 135. 131 Mass. ?79, 464. 2 Cusli. 374.
1 Section 4. Unless the defendant is the mortgagor or his as- conditional
2 signee, or entitled to hold or claim the land under the mortgagor r1. sao^H.
1642
FORECLOSURE AND REDEMPTION OF MORTGAGES. [CHAP. 187.
G. S. 140, § 4.
P. S. 181, § 4.
or his assignee, he shall not redeem the land nor have a conditional 3
judgment rendered, except with the consent of the plaintiff, but the 4
action shall be conducted like a writ of entry, and in all cases the 5
judgment for the plaintiff may be entered for possession as at com- &
mon law, unless one or the other of the parties moves for the con- 7
ditional judgment. 8
Conditional
judgment,
form of.
1698, 22, § 1.
1785, 22, § 1.
R. S. 107, § 5.
G. S. 140, § 5.
P. S. 181, § 5.
7 Met. 576.
11 Met. 384.
5 Gray, 423.
11 Gray, 271.
12 Gray, 60.
Section 5. If the conditional judgment is to be entered, the 1
court shall determine the amount due to the plaintiff on the mort- 2
gage, and shall enter judgment that if the defendant within two 3
months after the judgment pays to the plaintiff such amount with 4
interest and the costs, the mortgage shall be void, and the defend- 5
ant shall hold the land discharged thereof; otherwise, that the &
plaintiff shall have execution for possession and for costs. 7
9 Allen, 69.
10 Allen, 76.
102 Mass. 475.
114 Mass. 360.
118 Mass. 497.
123 Mass. 100, 441.
140 Mass. 49.
Same subject.
R. S. 107, § 6.
G. S. 140, § 6.
P. S. 181, § 6.
11 Met. 384.
» Allen, 69.
Section 6. If the condition of the mortgage is not for the pay- 1
ment of money, or if a part only of the money, the payment of 2
which is secured by the mortgage, is due, the court shall vary the 3
terms of the judgment as the case may require, but shall award 4
execution as before provided unless the defendant within two 5
months after the judgment performs the conditions thereof. 6
Discharge of
mortgage if
execution
satisfied.
1848, 144, § 2.
G. S. 140, § 35.
P. S. 181, § 7.
Section 7. If, after an execution on a judgment for possession 1
has been levied, the amount due on the mortgage and the costs are 2
paid in full, the mortgagee, his executor, administrator or assigns 3
shall, at the expense of the mortgagor, enter on the margin of the 4
record of the execution an acknowledgment of satisfaction or make 5
to the mortgagor a deed of release, which shall be recorded with &
notes of reference to the execution discharged thereby. 7
Entry of
action, against
and by whom.
1788, 51, § 1.
R. S. 107, §§ 7, 8.
G. S. 140, §§ 7, 8.
P. S. 181, §§ 8, 9.
17 Pick. 118.
12 Met. 154.
13 Gray, 198,
506.
15 Gray, 461.
Section 8. The entry may be made or the action brought by 1
an assignee of the mortgagee. The action for possession may be 2
brought like a writ of entry against the tenant of the freehold, and 3
shall be conducted as if brought by the original mortgagee. The 4
mortgagor may be joined therein as a defendant irrespective of his 5
estate in the land ; but if he has no estate in the land and makes no 6
defence to the action, he shall not be liable for costs. 7
16 Gray, 485. 131 Mass. 464.
Section 9. The provisions of this chapter shall not prevent a 1
mortgagee or a person claiming under him from entering on the 2
land or from recovering possession thereof before breach of the 3
condition of the mortgage, if there is no agreement to the contrary ; 4
but if the debt is afterward paid or the mortgage redeemed, the 5
amount of the clear rents and profits from the time of the entry 6
shall be accounted for and deducted from the amount due on the 7
mortgage. 8
andredlmp. Section 10. A mortgagee, or a person claiming under him, in 1
before breach.- possession as provided in the preceding section may, after breach 2
r. s. 107, §§io- of condition, make a new formal entry for breach of condition, or 3
g. s. ho, §§io- bring an action, as provided in section one, with the same effect as 4
p." s. i8i, §§n- if he were not in possession; or he may foreclose the right of 5
Entry before
breach.
R. S. 107, § 9.
G. S. 140, § 9.
P. S. 181, § 10.
3 Mass. 138.
16 Mass. 39.
11 Met. 458.
1 Gray, 512.
Chap. 187.] foreclosure and redemption of mortgages. 1643
6 redemption by giving after breach of condition to the mortgagor, 12 Mass. 513.
7 or the person claiming under him, a notice in writing that he will fcuehfbf9'
8 thenceforward hold the land for the purpose of foreclosure and
9 causing a certificate in proof thereof to be recorded within thirty
10 days after such notice as provided in the case of an original entry.
11 If such notice is given and recorded the three years limited for
12 redemption shall run from the date of the giving of the notice.
FORECLOSURE BY SALE.
1 Section 11. If a conditional judgment has been entered upon order for
2 a mortgage which contains a power of sale, the court shall, instead i85l,"377, §1.
3 of issuing a writ of possession, at the request of the plaintiff make p." |; it?' f if.'
4 an order that the property be sold pursuant to such power. The
5 plaintiff shall thereupon execute the power and do all things re-
6 quired by it or by the court.
1 Section 12. The person selling shall, within ten days after the sale confirmed
2 sale, file in the clerk's office a report under oath of the sale and of im%ii, §%
3 his doings, and the court may confirm the sale or set it aside and p.' I.' is?,' 1 15.'
4 order a re-sale. Any person interested may appear or be sum-
5 moned, and the order of the court confirming the sale shall be
6 conclusive evidence against all persons that the power of sale was
7 duly executed.
1 Section 13. Unless the defendant is seised in fee simple in Parties in-
2 possession of the whole equity of redemption of the land demanded, equity to be
3 an order for a sale shall not be made until all parties interested in isI^tt^-
4 the equity of redemption and whose estate or interest therein p.'jf.i^i'f ";
5 would be affected by such sale, including a person having a right or
6 possibility of curtesy or dower, have been summoned to appear.
1 Section 14. The mortgagee or a person who has his estate in sale without
2 the land mortgaged or a person authorized by the power of sale 1857, 229^ §ri.er
3 may, upon a breach of the condition and without action brought, Stt^is!' § 42"
4 do all the acts authorized or required by the power ; but no sale f^f/^81' § 17-
5 under such power shall be effectual to foreclose a mortgage, unless, ijji Mass. 291.
6 previous to such sale, notice thereof has been published once in
7 each of three successive weeks, the first publication to be not less
8 than twenty-one days before the day of sale, in a newspaper, if
9 any, published in the city or town in which the land lies ; other-
10 wise, in a newspaper published in such county.
1 Section 15. The person selling shall, within thirty days after Recd0ard.°f
2 the sale, cause a copy of the notice and his affidavit stating his acts evidence.
3 fully and particularly to be recorded in the registry of deeds for G.0k2Hd,§§§'42,
4 the county or district in which the land lies, with a note of refer- p;s.18i)§i8.
5 ence thereto on the margin of the record of the mortgage deed, if f^jjf^^o.
6 the mortgage is recorded in the same registry. If the affidavit ^ Mass. 89^
7 shows that he has in all respects complied with the requirements
8 of the power of sale and of the statute, the affidavit, or a certified
9 copy of the record thereof, shall be admitted as evidence that the
10 power of sale was duly executed.
1644
FOEECLOSURE AND REDEMPTION OF MORTGAGES. [CHAP. 187.
Sale a bar to
dower and
curtesy.
1854, 377, § 1.
1857, -2-29, § 2.
G. S. 140, § 44.
P. S. 181, § 19.
Section 16. If the mortgagor had at the time of the execution 1
of the mortgage no husband or wife or if, being married, the hus- 2
band or wife joined in the deed in token of his or her release of 3
curtesy or dower, the sale in either of the modes aforesaid shall bar 4
all right and possibility of curtesy or dower in the land. 5
Effect of con.
veyance by
mortgagor.
G. S. 140, § 39.
P. S. 181, § 20.
Section 17. A sale or transfer by the mortgagor shall not im- 1
pair or annul any right or power of attorney given in the mortgage 2
to the mortgagee to sell or transfer the land as attorney or agent 3
4
of the mortgagor
Who may re-
deem, and
when.
169S, 22, §§ 4, 5.
1712-13, 8, § 2.
1785, 22, § 2.
1798, 77, § 1.
R. S. 107, § 13.
G. S. 140, § 13.
P. S. 181, § 21.
22 Pick. 401.
6 Gray, 128.
13 Allen, 60.
REDEMPTION.
Section 18. The mortgagor or a person claiming or holding 1
under him may, after breach of condition, redeem the land mort- 2
gaged, unless the mortgagee, or a person claiming or holding 3
under him, has obtained possession of the land for a breach of con- 4
dition and has continued that possession for three years, or unless 5
the land has been sold pursuant to a power of sale contained in the 6
mortgage deed. 7
105 Mass. 564.
112 Mass. 352.
148 Mass. 540.
159 Mass. 356.
Debt to be paid
or tendered.
1698, 22, § 4.
1785, 22, § 2.
1798, 77, § 1.
R. S. 107, § 14.
G. S. 140, § 14.
P. S. 181, § 22.
5 Pick. 259.
5 Met. 95.
7 Gray, 148.
139 Mass. 407.
Section 19. The person who is entitled to redeem shall pay 1
or tender to the mortgagee, or to the person claiming or holding 2
under him, the whole amount then due and payable on the mort- 3
gage, and shall perform or tender performance of every other 4
condition contained therein ; and if there has been an action to 5
recover the land he shall pay or tender the costs of such action if 6
unpaid. 7
Account of
mortgagee.
1698, 22, § 4.
1785, 22, § 2.
1798, 77, § 1.
R. S. 107, § 15.
G. S. 140, § 15.
P. S. 181, § 23.
5 Pick. 259.
10 Pick. 398.
4 Met. 246, 498.
7 Met. 157.
2 Cush. 400.
7 Cush. 220.
5 Gray, 423.
Section 20. If the mortgagee or a person claiming or holding 1
under him has had possession of the land, he shall account for the 2
rents and profits, and be allowed for all amounts expended in 3
reasonable repairs and improvements, for all lawful taxes and 4
assessments paid and for all other necessary expenses in the care 5
and management of the land. A balance of such account, if due 6
from him, shall be deducted from the debt due on the mortgage ; 7
if due to him, shall be added to the debt, and shall be paid or ten- 8
dered as such. 9
6 Gray, 556.
14 Gray, 132.
4 Allen, 538.
5 Allen, 78.
12 Allen, 120.
100 Mass. 270.
104 Mass. 400.
114 Mass. 498.
124 Mass. 242.
126 Mass. 146.
139 Mass. 77.
148 Mass. 300.
Tender and
suit by mort-
gagor.
1698, 22, § 4.
1798, 77, § 2.
1821, 85, § 1.
R. S. 107, §§ 16,
17.
1857, 105, § 2.
G. S. 140, §§ 16-
18.
P. S. 181, §§ 24-
26.
97 Mass. 459.
143 Mass. 49.
Section 21. The tender may be made before the expiration of
the three years limited for redemption, and before or after entry
for breach of condition, and before a sale pursuant to a power con-
tained in the mortgage ; but if the mortgagee or the person claim-
ing or holding under him does not accept the tender and discharge
the mortgage, the tender shall not prevent the foreclosure unless,
within one year after the tender is made the mortgagor or the
person claiming or
holding under him commences a suit for re-
demption and when he commences his suit pays to the clerk of the
court the amount tendered for the use of the party who is entitled
thereto.
1
2
3
4
5
6
7
8
9
10
11
Suit without
previous
tender.
Section 22. The person who is entitled to redeem may, before
the expiration of the three years limited for the redemption, and
1
2
Chap. 187.] foreclosure and redemption of mortgages. 1645
3 before or after an entry for breach of condition, and before a sale i82i, 85,§i.
4 pursuant to a power contained in the mortgage, commence a suit r3|. io7,§§ is.
5 for redemption without a previous tender, and may in such suit p.'|;ili'.||f;
6 offer to pay such amount as shall be found due from him, or to J^V33- nt.t
„ t , , , ' 10b Mass. 254.
7 perform such other condition as the case may require ; but a mort- \f Mass. 49.
8 gagee who has published a notice of sale prior to the commence- 540.
9 ment of such suit may proceed with said sale unless the amount
10 due is paid into court or the sale is enjoined.
1 Section 23. The court may determine, by a reference to a order for pay-
2 master or otherwise, whether any and what amount due on the amount not in
3 mortgage is not in dispute, and may by an interlocutory decree is^ios, § 1.
4 order it to be paid to the mortgagee, or for his use to the clerk of p; f.' ill,' f 1L"
5 the COUrt. 143 Mass. 144. 158 Mass. 375.
1 Section 24. The court may award costs in the suit for redemp- costs.
1821 85 S 1
2 tion to either party ; but if the suit is brought without a previous 1833,' 201, § 2.
3 tender and it is found that the condition of the mortgage has not g. li 140, 1 21!
4 been performed, the plaintiff shall pay the costs of suit, unless the fpfctko,2^.
5 court finds that the defendant has unreasonably refused or neglected, \ ^^ 2f596-
6 when requested, to render a just and true account of the money }g£ra^> JfJ-
7 due upon the mortgage and of the rents and profits and the amounts
8 paid for taxes, repairs, improvements and other necessary expenses,
9 or that he otherwise by his default prevented the plaintiff from
10 performing or tendering performance of the condition before the
11 commencement of the suit.
1 Section 25. If the suit was commenced before the expiration insufficient
2 of the three years limited for redemption, and before or after entry Rns.eio7, § 20.
3 for breach of condition, the plaintiff shall, although the tender p.'i.'iti.'ffo.'
4 alleged is found to be insufficient, be entitled to a decree for redemp-
5 tion as if no previous tender had been alleged.
1 Section 26. A suit for redemption shall be brought in the Jurisdiction
2 county in which the land or any part thereof lies. If the bill is in- nfent o?su1t.ce"
3 serted in a writ and the writ or a copy thereof, attested by the ]%\ f^ f \\
4 officer, with or without the bill but with a description of the land ^•5f;311067: § 21"
5 sought to be redeemed is deposited, within three days after the day g. s. 140, §§ 23,
6 on which the service is made, in the office of the clerk of the court p. s.i8i,§§3i,
7 to which the writ is returnable, the service shall be the commence- 7 Met. 157.
8 ment of the suit ; otherwise, the depositing of such copy or writ ray'
9 shall be the commencement of the suit.
1 Section 27. If the court finds that the plaintiff is entitled to Form of
2 redeem, it shall determine what amount is due on the mortgage 1698,22, §4.
3 or what condition the plaintiff is bound to perform for the redemp- F^/oVf §23.
4 tion of the land, and shall enter a decree that, upon the payment of p.'ijijjf f£
5 such amount or the performance of such condition within such time Ifp^f^
6 as it shall order, the plaintiff shall have an execution for possession 7 Cush. 220.
7 of the land and shall hold it discharged of the mortgage. 10 Alien, 74.'
110 Mass. 57. 122 Mass. 76.
1 Section 28. If the court finds that the mortgagee has not unrea- interest.
2 sonably neglected or refused to render a true account of the rents g. s. i4o, § 26.
J G P. S. 181, § 34.
1646
FORECLOSURE AND REDEMPTION OF MORTGAGES. [CHAP. 187.
and profits of the land mortgaged, it may award to him the balance 3
found due on the mortgage, with interest thereon at a rate of not 4
more than twelve per cent a year from the expiration of three years 5
after the entry to the date of the decree. 6
Execution.
1698, 22, § 4.
1798, 77, § 2.
R. S. 107, § 24.
G. S. 140, § 27.
P. S. 181, § 35.
Section 29. The court may at the same time decree that, if the 1
defendant neglects or refuses to accept the money or other act 2
required by the decree to be paid or performed, the money shall be 3
left for his use with the clerk of the court, or such other act done 4
as the case may require ; and the plaintiff, after having performed 5
all acts required of him by the decree of the court, may have an 6
execution for possession of the land. 7
Judgment for
balance.
1818, 98, § 2.
R. S. 107, § 25.
G. S. 140, § 28.
P. S. 181, § 36.
6 Mass. 264.
143 Mass. 410.
Section 30. If the court finds that the defendant has received 1
from the rents and profits of the land or otherwise more than is due 2
on the mortgage, it shall award judgment and execution against 3
him for such amount as is due to the plaintiff; and if there are 4
several defendants, such judgment and execution may be awarded 5
against them, either jointly or severally, for the amounts received 6
by them or any of them, respectively. 7
Deductions
from money
tendered and
paid into court.
1818, 9S, § 3.
R. S. 107, § 26.
G. S. 140, § 29.
P. S. 181, § 37.
Section 31. The court may order the amount found due the 1
plaintiff for rents and profits or costs, if any, to be deducted from 2
the amount found due the defendant, to whom the balance only shall 3
be paid from any money tendered or brought into court, and the 4
residue thereof, if any, shall be restored to the plaintiff. 5
ihisT^Ti8' Section 32. If a person other than the parties to a suit for 1
g's'i4o'!!i' reaemption is interested therein, the court may, upon terms, cause 2
p.' s.' i8i,' § 38. him to be made a party and may order a subpoena to be issued and 3
served on him to appear and answer. 4
?feealu?ty°Wner Section 33. If the owner of an equity of redemption dies, his 1
r. s. 107, §§ 30, heirs, devisees, executor or administrator may make a tender or 2
g.' s. 140, §§ 32, commence or prosecute a suit for redemption which the deceased 3
p.' s. i8i, §§39, might have made, commenced or prosecuted. 4
104 Mass. 277. 117 Mass. 403. 170 Mass. 120.
Tender to
guardian.
R. S. 107, § 32.
G. S. 140, § 34.
Section 34. A tender may be made to a guardian, who may, 1
upon satisfaction, execute a release of the mortgage. 2
P. S. 181, § 41. 12 Mass. 16.
Foreclosure,
how opened.
R. S. 107, § 33.
G. S. 140, § 36.
P. S. 181, § 42.
1896, 203.
136 Mass. 463.
GENERAL PROVISIONS.
Section 35. If, after the foreclosure of a mortgage not con-
taining a power of sale, the person who is entitled to the debt
recovers judgment for any part of it on the ground that the value
of the land mortgaged at the time of the foreclosure was less than
the amount due, such recovery shall open the foreclosure, and the
person entitled may redeem the land although the three years
limited therefor have expired, if suit for redemption is brought
within one year after the recovery of such judgment.
1
2
3
4
5
6
7
8
Chap. 188.] informations by commonwealth. 1647
1 Section 36. If a mortgagee or a person claiming or holding Action for
2 under him receives from the rents and profits of the land or upon a andeproflts?etc!
3 tender made to him, or in any other manner, more than is due on R.^ioVf §27.
4 the mortgage and no suit for redemption is brought against him, p'f'ifi'ff^
5 the mortgagor or other person who is entitled to such excess may 9 i"ick- 171-
6 recover it in an action of contract.
MORTGAGES TO THE COMMONWEALTH.
1 Section 37. If a mortgage is made or assigned to the common- Payment and
2 wealth, the treasurer and receiver general may demand and receive So4,hi^e§i.
3 the money due, and upon payment shall make and acknowledge a g I' ho Its'
4 discharge. " P.' si isi,' § 45."
1 Section 38. If the condition of such mortgage is not duly per- Foreclosure.
2 formed, the treasurer and receiver general may cause an entry for g'. s'. ho' § 46'.
3 breach of condition to be made in the name and behalf of the com- p" s" 181' § 46'
4 monwealth by himself or by a person whom he appoints or he may
5 bring an action in the name of the commonwealth to recover pos-
6 session of the land mortgaged ; and possession obtained by entry
7 or by action shall have the same effect in foreclosing the right of
8 redemption as a similar possession by any other mortgagee.
1 Section 39. The mortgagor or his assigns may redeem the Redemption.
2 land in like manner and upon like terms as if it were held by r. s'. 107, § 37.
3 any other mortgagee, and the payment or performance of the con- p.' |; is?,' 1 47!
4 dition shall be made or tendered to the treasurer and receiver
5 general.
1 Section 40. If the treasurer and receiver general and the per — suit for.
2 son who applies to redeem the mortgage do not agree upon the r. s'. 107, §§ 38,
3 amount due, the person so applying may bring in the supreme |9' s. ho, § 48.
4 judicial court or the superior court, for the county of Suffolk, a f2'7 Mais'. I348'
5 suit in equity against the commonwealth for the redemption. The
6 process shall be served on the treasurer and receiver general, who
7 shall appear and answer in behalf of the commonwealth ; and like
8 proceedings shall be had and like judgment rendered as are pro-
9 vided in the case of other mortgagees, except that the treasurer
10 and receiver general shall accept any payment due to the com-
11 monwealth, and upon the receipt thereof, or upon the performance
12 of such other condition as the court orders, shall discharge the
13 mortgage in like manner as when the debt is paid without suit.
CHAPTER 188.
OF INFORMATIONS BY THE COMMONWEALTH.
1 Section 1. If a person unlawfully enters upon or holds land ^SwfSi
2 which belongs to the commonwealth, it may be recovered upon an g*
3 information filed by the attorney general or by a district attorney UBJtfJ.U'. .
i • ,1 . , • , ° 1 •■> • .1 i j J i.i- „ R. S. 108, §§1, <
4 in the superior court in any county, describing the land and setting g. s. hi, §1.
5 forth the title and claim of the commonwealth thereto. A summons 9 bray, 451. '
1648 INFORMATIONS BY COMMONWEALTH. [CHAP. 188.
returnable in the county in which the land lies shall thereupon issue 6
to the defendants. 7
order of gen- Section 2. If the title of the commonwealth is founded on a 1
eral court in ,„■....
certain cases, forfeiture for the breach of a condition in a grant or conveyance 2
i79eU-' made by the commonwealth or by the province or colony of Massa- 3-
b.'s'.io8,§§6,7. chusetts Bay, no action for the recovery of such land shall be com- 4
p." I.' 1I2, |||t; menced unless by an order of the general court; but in all other 5
cases the attorney general or district attorney may prosecute an 6
action therefor if he has good reason to believe that the claim of 7
the commonwealth can be established. 8
mrasCetcfBum" Section 3. The service of the summons and all other proceed- 1
g9i. is, §i- ings shall, except as otherwise provided, be substantially the same 2
g'. s'. mi', § 2. as in real actions. p. s. 182, § i. 3
FTai1^11^06' Section 4. If, in case of a supposed escheat, no person appears 1
r" i'' ui' 1 5' as ^e keu" °f the person last seised, or if in any case there is reason 2
p." s.' 182,' § 5.' to suppose that there is a person who claims an estate or interest in 3
the land, whose name is unknown, who is absent from the common- 4
wealth or who cannot be found therein to be served with process, 5
the court shall, in addition to any other service, order the substance 6
of the information with the order of the court thereon to be pub- 7
lished once in each of three successive weeks in a newspaper 8
designated by it, the first publication to be ninety days at least 9
before the time appointed for the appearance of the parties. 10
pear as defend- Section 5. A person who claims an estate or interest in the 1
Rnts' i08°l§89 land> although not named in the information nor served with 2
10'. ' ' ' process, may appear and answer thereto ; but a defendant who is 3
p.'s!i82',§§6|7'. not named shall not recover costs against the commonwealth, unless 4
it appears that he has an estate or interest in the land, although the 5
commonwealth fails to establish its claim thereto. If there are 6
several defendants, the court may award costs for or against any 7
one, in like manner as if he were the sole defendant. 8
taprovements. Section 6. If the commonwealth prevails, the defendant shall 1
g 1' 141' 1 11* ^e c^argeable f°r the rents and profits and be entitled to an allow- 2
p. s. 182,' §s. ance for improvements as provided in chapter one hundred and 3
seventy-nine. 4
weaithTeised Section 7. The commonwealth shall be actually seised and 1
without execu- possessed of the land as soon as judgment is rendered in its favor, 2
1791, 13, § 3. without a writ of possession. r. s. ios, § 5. g. s. hi, § 9. p. s. 182, § 9. 3
of ?udgmln1t?ss Section 8. The judgment shall be conclusive between the com- 1
r9s io8§§i2 monwealth and the defendants who appear and answer, and against 2
p' I" 1I2' I io" evelT person named as a defendant upon whom the summons has 3
been duly served within the commonwealth and against all persons 4
who claim under such defendants. 5
b^rpe?8o™Mt Section 9. A person who is not concluded by a judgment for 1
R0nsclio8ed§ 13 ^e commonwealth according to the provisions of the preceding 2
g- f- wi', § li. section may, until his claim is barred by the law for the limitation 3
ir. S. lo2j § 11. *
Chap. 188.]
INFORMATIONS BY COMMONWEALTH.
4 of real actions or otherwise, bring a writ of entry to recover the
5 land from the commonwealth or from any person who may then
6 hold under it. He may deny and disprove any facts alleged and
7 proved in the first action and allege and prove any other facts in sup-
8 port of his claim and shall, if it appears that he is entitled to the
9 land, have judgment and execution therefor.
1649
Section 10.
If the commonwealth continues seised of the land ^ufhwrit^mTi
1
2 at the time when such new action is commenced, such action shall |e]f™fh5\4
3 be brought against the tenant or occupant of the land, and, in addition u'l si ui', § 12!
■ PS 182 6 12
4 to the service on him, a copy of the original writ or summons shall ' '
5 be left with the attorney general or district attorney fourteen days
6 at least before the return day. If the commonwealth has granted
7 away the land, the action shall be brought against the tenant of the
8 freehold. In either case it shall be conducted and disposed of as if
9 no such information had been filed.
1
2
3
4
5
Section 11. If the demandant recovers judgment, he shall be Rents and
entitled to the rents and profits and chargeable for improvements ires™™™118'
as provided in chapter one hundred and seventy-nine, although the g! si 141, § 13'.
land has not been held and possessed for six years under the adverse P- s> 182' § 13*
title.
1 Section 12. Costs shall be awarded and taxed for the prevail- i^i*8^.
2 ing party. If judgment is in favor of the commonwealth, an exe- gsmi fii
3 cution for costs shall issue ; if it is in favor of the defendant, the P.s.i82,'§u.
4 costs shall be paid by the commonwealth.
1650 TRUSTEE PROCESS. [CHAP. 189.
TITLE IV.
OF CERTAIN" WRITS AND PROCEEDINGS IN SPECIAL CASES.
Chapter 189. — Of the Trustee Process.
Chapter 190. — Of the Replevin of Property.
Chapter 191. — Of Habeas Corpus, Personal Replevin and Personal Liberty.
Chapter 192. — Of Audita Querela, Certiorari, Mandamus and Quo Warranto.
Chapter 193. — Of the Writ of Error, of Vacating Judgment and of the Writ
of Review.
Chapter 194. — Of Reference to Arbitration.
Chapter 195. — Of the Improvement of Meadows and Swamps.
Chapter 196. — Of Mills, Dams and Reservoirs.
Chapter 197. — Of Liens on Buildings and Land.
Chapter 198. — Of Mortgages, Conditional Sales and Pledges of, and Liens
upon, Personal Property.
Chapter 199. — Of Recognizances for Debts.
Chapter 200. — Of Seizing and Libelling Forfeited Property.
Chapter 201. — Of Claims against the Commonwealth.
CHAPTEE 189.
OF THE TRUSTEE PROCESS.
Sections 1-8. — Commencement and Service of Process.
Sections 9-18. — Appearance and Answer of Trustee.
Sections 19-31. — Property liable to Attachment by the Trustee Process.
Sections 32-34. — Adverse Claimants.
Sections 35-38.- -Proceedings if Action Pending against Trustee.
Sections 39-44. — Judgment and Execution.
Sections 45-49. — Scire Facias against Trustee.
Sections 50-54. — Death of Parties.
Sections 55, 56. — Proceedings if an Executor is Charged as Trustee.
Sections 57-64. — Proceedings if Trustee has Specific Property.
Sections 65, 66. — Dissolution of Attachment by the Trustee Process.
Sections 67-82. — Costs. •
COMMENCEMENT AND SERVICE OF PROCESS.
niay°be8TOm-ch Section 1. All personal actions, except actions of tort for 1
trusted bro malicious prosecution, for slander or libel or for assault and battery 2
ess. and actions of replevin, may be commenced by the trustee process, 3
1728-9; 3,' § i! and any person or corporation may be summoned as trustee of the 4
1753^4; 28*. ' defendant therein ; but a person who is not an inhabitant of the 5
1758-9, 10. commonwealth, or a corporation which is not established under its 6
Chap. 189. J trustee process. 1651
7 laws, shall not be so summoned unless he or it has a usual place of Hit' ie4 Vi
8 business in the commonwealth. r. s. 109, §§ i, 4, 6, 71, 76, 77. 1833>' 171'
1835, 141, § 1. 16 Mass. 299. 10 Allen, 463. 150 Mass. 560.
1839, 158. 3 Pick. 302. 11 Allen, 357. 151 Mass. 501.
G. S. 142, §§ i, 75. 15 Pick. 445. 121 Mass. 380. 152 Mass. 64.
1870, 194. 13 Met. 471. 129 Mass. 444. 161 Mass. 287.
P. S. 183, § 1. 9 Allen, 570. 134 Mass. 347. 176 Mass. 48, 113.
1 Section 2. If, in an action commenced in the supreme judicial J^™0*
2 court or the superior court by the trustee process, all the persons jj9f f^Jv
3 named in the writ as trustees dwell or have usual places of business i852,'2S7.'
4 in one county, the writ shall be returnable in such county; other- p.'s.183,'§3.'
5 wise, it may be returnable in any county in which any one of them 22 P^ck8.'25o2.'
6 dwells or has a usual place of business. i2Cush.284. 6Cush.*56o!
7 Gray. 282. 1 Allen, 286. 11 Allen, 357. 150 Mass. 560.
1 Section 3. If, in an action, suit or proceeding commenced in the —change of.
2 supreme judicial court or the superior court by the trustee process, 4 Mass. h.
3 the court finds that the trustee was made a party for the purpose of
4 giving to the court jurisdiction of the cause in the county in which
5 the trustee dwells or has a usual place of business, and that neither
6 the plaintiff nor the principal defendant dwells or has a usual place of
7 business therein, it may, upon motion of the defendant at any time
8 before the trial, order the cause and all the papers relating thereto
9 to be transferred to a county in which some one of the principal
10 parties dwells or has a usual place of business upon terms. The
11 cause shall thereupon be entered and prosecuted in the same court
12 for that county as if originally returnable therein, and all prior
13 proceedings otherwise regularly taken shall thereafter be valid.
1 Section 4. No person shall be held to answer as a trustee in an -in inferior
2 action before a police, district or municipal court, except as provided r.us. 109, § 72.
3 in section fifty-nine of chapter one hundred and sixty, or before w]f,'in,'i™'
4 a trial justice, in any county other than that in which he dwells or f Hbf ,' 3^' § 13.
5 has a usual place of business ; and if a person who is summoned ^4> 398> § v>
6 as trustee before such a court or justice is out of the county at the
.7 time of the service of the original writ upon him, and does not
8 return before the final judgment in the action, he shall not be charge-
9 able as trustee.
1 Section 5. An attachment of the goods and estate of the defend- ^[Jteewits.
2 ant in his own hands and possession, if any, upon a trustee writ J^|» 7>| f
3 shall be made in the manner provided in chapter one hundred and nsj-s! 15, § 2.
4 sixty-seven and the writ shall be further served upon each of the 1794, 65. § 1. '
• R S 104 § 8
5 trustees and upon the defendant in the manner provided for the im,'m!
6 service of an original summons without an attachment. 16 Mass. 473. p.'s.'i83,§6.'
13 Met. 471. 8 Cush. 518. 119 Mass. 142. 129 Mass. 444. 6 Mass. 60.
1 Section 6. A trustee writ issued by a police, district or munic- Provision for
Ti'iiRiPO writs
2 ipal court or trial justice shall be returnable not more than thirty issued from
3 days after the date thereof and shall be served seven days at least g£ioe court8>
4 before the return day. If co-partners are so summoned as trustees p.7|. 1I3, § V.
5 and the partnership is properly described in the writ, service of J||;^
0 the writ upon one partner shall be sufficient. J|^> |*>. | f-
1 Section 7. The plaintiff may at any time insert the names of JSSwSfe.
2 other trustees in the writ and cause the writ to be served upon gg» § 2
3 them; and, after service upon a trustee, he may cause the writ to R.s. 109J9.
1652
TRUSTEE PEOGESS.
[Chap. 189.
G. S. 142, § 6.
P. S. 183, § 8.
22 Pick. 250.
142 Mass. 447.
be again served upon him in like manner and with the same effect 4
as if it had not been previously served. A writ which is served 5
upon a trustee after service upon the defendant shall be again served &
upon the defendant. 7
Proceedings if
trustees are
discharged.
1794, 65, § 4.
1798, 5, § 1.
R. S. 109, § 10.
G. S. 142, § 7.
Section 8. The plaintiff may proceed in the action against the 1
defendant if the writ has been served upon him or if he has had 2
notice of the action or has appeared and answered thereto, although 3
all the trustees have been discharged. p. s. 183, §9. i Pick. 389. 4
13 Met. 471. 6 Cush. 560. 5 Gray, 309. 119 Mass. 142. 139 Mass. 471.
Answer of
trustee, tiling.
1851, 233, § 73.
1852, 312, § 56.
G. S. 142, § 8.
P. S. 183, §§ 10,
11.
1885, 384, § 9.
12 Pick. 167.
4 Cush. 267.
12 Gray, 431.
14 Gray, 453.
10 Allen, 160.
97 Mass. 110.
APPEARANCE AND ANSWER OF TRUSTEE.
Section 9. A person who is summoned as trustee in the su- 1
preme judicial court or the superior court shall appear and file his 2
answer within ten days, or in a police, district or municipal court 3
or before a trial justice, within three days, after the return day of 4
the writ, unless further tune is allowed by the court or justice. 5
The answer shall disclose plainly, fully and particularly what goods, 6
effects or credits, if any, of the defendant were in the hands or 7
possession of the trustee when the writ was served upon him. 8
— to be under
oath, except.
1794, 65, § 3.
R. S. 109, § 11.
1851, 233, § 73.
1852, 312, § 56.
G. S. 142, §§ 8,
79.
P. S. 183, §§ 11,
13.
157 Mass. 309.
Section 10. Such answer shall be signed and sworn to by the 1
trustee, except that in a police, district or municipal court or before 2
a trial justice it may be signed by the trustee or his attorney, with- 3
out being sworn to, if the alleged trustee declares that he had not 4
in his hands or possession at the time of the service of the writ upon 5
him any goods, effects or credits of the defendant, and submits 6
himself thereupon to examination under oath. 7
Interrogato-
ries.
1817, 148, § 2.
R. S. 109, § 12.
1851, 233, § 74.
1852, 312, § 57.
G. S. 142, §§ 9,
80.
P. S. 183, §§ 12,
21Pick. 21.
3 Met. 297.
8 Cush. 518.
131 Mass. 231.
Section 11. The plaintiff may from time to time examine the 1
alleged trustee upon written interrogatories filed in the clerk's 2
office or with the justice. The answers thereto shall be signed, 3
sworn to and filed in the clerk's office or with the justice within 4
seven days after notice to the trustee or his attorney of the filing of 5
the interrogatories, unless the court or justice otherwise orders. If 6
the answers are not so filed, the court or justice may make such 7
order as the case may require. 136 Mass. 407. 8
Discharge of
trustee.
1794, 65, § 3.
R. S. 109, § 11.
G. S. 142, § 79.
P. S. 183, § 13.
9 Cush. 530.
Admission of
funds by
trustees.
R. S. 109, § 13.
1851, 233, § 73.
1852, 312, § 57.
G. S. 142, § 81.
P. S. 183, § 15.
Section 12. If it appears by the answer of the alleged trustee 1
that at the time of the service of the writ upon him he had not in 2
his hands or possession any goods, effects or credits of the defend- 3
ant, and the plaintiff declines to examine him, or if upon examina- 4
tionhis answer appears to be true, he shall be discharged. 5
Section 13. A person who is summoned as trustee and who 1
admits that he has in his hands any goods, effects or credits of the 2
defendant, or who wishes to submit the question to the court or jus- 3
tice whether he is chargeable upon the facts, may make a statement 4
in writing, under oath, of such facts as are material. The plaintiff 5
may then examine him, under oath, upon written interrogatories, 6
and the statement, interrogatories and answers shall be filed with 7
the court or justice. 8
Chap. 189.] tkustee peocess. 1653
1 Section 14. A corporation which is summoned as trustee may Answer by
2 appear and answer by its cashier, treasurer, secretary or such other l^iet^ i8'
3 officer as it shall appoint or as the court or justice shall require to g! ii uf,' | io.
4 attend for that purpose, and his answer and examination, under p- s- 183> § 16-
5 oath, shall be received as the answer and examination of the corpo-
6 ration.
1 Section 15. The answer and statements of a trustee, under oath, Answers of
2 shall be considered as true in determining how far he is chargeable ; takings true.
3 but either party may allege and prove any facts, not stated or denied r^s'.wI'.Vis.
4 by the trustee, which may be material in determining such question, p." |; iff; | \]\
4 Cush. 314. 97 Mass. 110. HI Mass. 154. 140 Mass. 271. 2 Met 376-
9Cush.530. 99 Mass. 311, 469. 126 Mass. 535. 145 Mass. 195.
10 Cush. 104. 107 Mass. 116. 127 Mass. 136. 166 Mass. 152.
1 Section 16. A question of fact which arises upon such addi- Trial of <pjs-
2 tional allegations may be tried and determined by the court or arising on
3 justice, or it may be submitted to a jury in such manner as the isn, m, §i.
4 court orders. r. s. 109, §16. g. s. 142, §12. p. s. 183, § is.
1 Section 17. A person who, being duly summoned as a trustee, Default of
2 neglects to appear and answer as hereinbefore provided shall be r/ls8-9,eio, § 4.
3 defaulted and adjudged a trustee. i85i, 233, § 73. 1352, 312, § 56. k?s'.w9§§m.
G. S. 142, § 13. P. S. 183, § 19. 10 Mass. 25. 6 Allen, 584.
1 Section 18. If a person who is summoned as trustee, his Penalty for
2 executor or administrator, or if an officer, agent or other person byfruXe!er
3 who appears and answers for a corporation which is so summoned, k.9s.6io9?§'78.
4 knowingly and wilfully swears falsely in his answer or upon his p1; f ; iff ' f 20.'
5 examination, he shall be liable in an action of tort to the plaintiff ££ush.457.
. . . * p i 8 Cush. 199.
6 in the trustee process, or to his executor or administrator, tor the 4 Alien, 391.
7 full amount due on the judgment recovered therein, with interest,
S to be paid out of his own goods and estate.
PROPERTY LIABLE TO ATTACHMENT BY THE TRUSTEE PROCESS.
1 Section 19. The goods, effects or credits of the defendant Effect of
2 which have been intrusted to, or deposited in the hands or pos- trustee proc
3 session of, a person who is summoned as his trustee shall, except 1708-9,7, §1.
4 as hereinafter provided, be attached and held to respond to the nllg,'^1'
5 final judgment, as if they had been attached upon an original writ "H^1^1,
6 of attachment. r. s.109, §4. g. s. 142, §21. 1794, 65, §1.
P. S. 183, § 21. 7 Cush. 487. 104 Mass. 164. 151 Mass. 501.
4 Mass. 102. 6 Gray, 116. 120 Mass. 86. 152 Mass. 64.
5 Pick. 28, 178. 16 Gray, 70. 122 Mass. 296. 153 Mass. 14.
8 Pick. 298. 6 Allen, 572. 124 Mass. 98, 366. 164 Mass. 127.
9 Tick. 561. 9 Allen, 570. 129 Mass. 577. 172 Mass. 133.
4 Cush. 314. 99 Mass. 302. 149 Mass. 167. 174 Mass. 208.
1 Section 20. Debts, legacies, goods, effects or credits due from Liability of
2 or in the hands of an executor or administrator as such may be at- astrustees.6 "'
3 tached in his hands by the trustee process. g. s. 142, § 22'.
P. S. 183, § 22.
3 Met. 507.
2 Gray, 251.
136 Mass.
501.
19 Pick. 354.
10 Met. 459.
6 Allen, 397.
150 Mass.
234.
20 Pick. 563.
2 Cush. 111.
104 Mass. 275.
151 Mass.
501.
1 Met. 476.
7 Cush. 406.
122 Mass. 296.
1 Section 21. After a dividend on the estate of an insolvent -of assignees
2 debtor has been declared, it may, unless it is upon a claim for estates.
1654
TRUSTEE PROCESS.
[Chap. 189.
1858,40. wages which would have been exempt from attachment by the 3
p.' s." 183,' § 23.' trustee process in the hands of the insolvent debtor, be so attached 4
in the hands of the assignee. 5
Liability Section 22. Funds, credits or dividends which are due from 1
of receivers. .tit/.- • ., i , i ^
1881, 123. or in the hands oi receivers appointed by a court may be so 2
attached after an order has been made for their distribution. 3
P. S. 183, § 24.
115 Mass. 67.
119 Mass. 157.
Attachment of
money, etc.,
due but not
payable.
R. S. 109, § 34.
G. S. 142, § 24.
P. S. 183, § 25.
14 Pick. 81.
4 Met. 6.
Section 23. Money or any other thing which is due to the 1
defendant absolutely and without any contingency may be so at- 2
tached before it has become payable, but the trustee shall not be 3
compelled to pay or deliver it before the time appointed by the 4
Contract. 99 Mass. 550. 131 Mass. 363. 149 Mass. 167. 5
Trustee charge-
able if convey-
ance to him
fraudulent.
R. S. 109, § 35.
G. S. 142 § 25.
P. S. 183; § 26.
151 Mass. 501.
Section 24. A person summoned as trustee who has goods,
effects or credits of the defendant in his possession which he holds
by a conveyance or title which is void as to the creditors of the
defendant may be adjudged a trustee, although the defendant could
not maintain an action therefor against him.
172 Mass. 133.
1
2
3
4
5
Mutual de-
mands between
defendant and
trustee.
R. S. 109, §§ 36,
37.
G. S. 142, §§ 26,
27.
P. S. 183, § 27.
16 Mass. 473.
19 Pick. 20.
5 Met. 266.
12 Met. 567.
7 Gray, 153.
122 Mass. 296.
Section 25. A trustee may retain or deduct from the goods, 1
effects or credits in his hands all demands against the defendant of 2
which, had he not been summoned as a trustee, he could have 3
availed himself by way of set-off on a trial or by the set-off of 4
judgments or executions between himself and the defendant, and 5
he shall be liable for the balance only after all mutual demands, 6
excluding therefrom any claim on either side for unliquidated dam- 7
ages for wrongs or injuries, between him and the defendant have 8
been adjusted. 132 Mass. 61, 427. 149 Mass. 14. 9
Trustee not
chargeable for
payment
before knowl-
edge of service.
R. S. 109, § 5.
G. S. 142, § 28.
P. S. 183, § 28.
3 Met. 301.
5 Cush. 544.
4 Allen, 485.
98 Mass. 142.
132 Mass. 61.
156 Mass. 1.
Section 26. If, after the service of process on the trustee, but 1
before he has knowledge thereof, he makes any payment in good 2
faith or becomes liable to a third person by reason of the goods, 3
effects or credits in his hands, or delivers such goods, effects or 4
credits to the defendant or to any other person who may be entitled 5
thereto, he shall be allowed therefor in the same manner as if the 6
payment or delivery had been made, or as if the liability had been 7
incurred, before the service of the writ. 8
Wages exempt
from attach-
ment, when.
1842, 91.
1855, 300, § 2.
1S57, 200, § 2.
G. S. 142, § 29.
1878, 260, § 3.
P. S. 183, § 30.
1900, 191.
14 Gray, 487.
5 Allen, 210.
6 Allen, 572.
7 Allen, 264.
9 Allen, 106.
142 Mass. 447.
160 Mass. 32.
Section 27. If wages for the personal labor and services of a 1
defendant are attached for a debt or claim, other than for necessaries 2
which have been furnished to him or to his family, an amount not 3
exceeding twenty dollars shall be reserved in the hands of the 4
trustee and shall be exempt from such attachment. If such wages 5
are attached on a claim for such necessaries and the writ contains a 6
statement to that effect, an amount not exceeding ten dollars shall 7
be so reserved ; but if the writ contains no such statement, an 8
amount not exceeding twenty dollars shall be so reserved. 9
oler of jiKig. Section 28. If, after wages for personal labor or services have 1
1878 *26o §§45 been attacned an(l before the entry of the writ, the defendant tenders 2
p.s'. 183, § si". ' to the plaintiff or to his attorney the whole amount due and recover- 3
Chap. 189.] trustee process. 1655
4 able in the action and the fees of the officer for serving the writ, the
5 plaintiff shall recover no costs, except the fees of the officer ; and
6 if the defendant is defaulted without an appearance or if he files an
7 offer of judgment on the return day of the writ in accordance with
8 section seventy-two of chapter one hundred and seventy-three, and
9 the plaintiff accepts such offer or fails to secure more than the
10 amount thereof and of the interest thereon from its date, the
11 plaintiff shall recover no costs, except the entry fee and the officer's
12 fees.
1 Section 29. Whoever wilfully causes, or aids and abets in caus- Penalty for
2 ing, such wages for personal services as are exempt from attach- ^ge^elempt
3 ment to be attached by the trustee process for the purpose of ment.attach
4 unlawfully hindering or delaying their payment to the person to p7|^\232
5 whom they belong shall, on complaint of the person injured thereby
6 or of the guardian or other person having the lawful custody of any
7 such person who is incompetent to act, be punished by a fine of not
8 more than fifty dollars to the use of the person injured thereby.
1 Section 30. If a savings bank is charged as trustee, and the Bond by plain.
2 court finds that the answer creates a doubt as to the identity of the nify Savings
3 defendant, it may require the plaintiff to give bond with surety who iJsofis.
4 shall be approved by the court, conditioned to indemnify such bank ^; f • J||> 1 1£
5 from any loss by reason of a payment by it pursuant to the order of 164 Mass- 124-
6 the court.
1 Section 31. No person shall be adjudged a trustee in the fol- atfichabfeby
2 lowing cases : fs»stee Proc-
3 First, By reason of having drawn, accepted, made or indorsed a wj, 65, §: 12^
4 negotiable bill, draft, note or other security payable on time and 1842/91. '
c T J G.S. 142, §§ 29,
0 not overdue. 1868,95. p. s. 183, §§ 29, 34. 1886,194. 31.
1890, 289. 2 Mass. 377. Ill Mass. 550. 151 Mass. 383.
6 Second, By reason of having received or collected money or any
7 other thing as a sheriff or other officer upon an execution or other
8 legal process in favor of the defendant in the trustee process, al-
9 though it may have been demanded of him by the defendant.
10 Third, By reason of having money in his hands as a public 3 Mass. 289.
11 officer, for which he is accountable to the defendant merely as such i^Grayfm
12 Officer. 147 Mass. 92. 153 Mass. 14. 174 Mass. 335. ^Mass^ge.
13 Fourth, By reason of money or any other thing due from him to 4 Mass. 235.
14 the defendant, unless it is, at the time of the service of the writ upon i6 Mass! 341!
15 him, due absolutely and without any contingency. 4 Met. '486.'
12 Met. 14. 13 Gray, 200. 117 Mass. 238, 551. 147 Mass. 293.
6 Cush. 264, 558. 1 Allen, 394. 131 Mass. 363. 157 Mass. 565.
7 Gray, 153. 99 Mass. 187. 135 Mass. 397.
16 Fifth, By reason of a debt due from him upon a judgment, so long ««to.m.
17 as he is liable to an execution thereon. 124 Mass. 98. 15 Gray, 532.
18 Sixth, By reason of money or credits due for the wages of the
19 personal labor or services of the wife or minor children of the
20 defendant.
21 Seventh, By reason of money or credits due or accruing to the 132 Mass. 56.
22 defendant as wages or lay as a seaman ; but the provisions oi mis
23 clause shall not apply to the wages or lay due or accruing to a fish-
24 erman.
1656
TRUSTEE PROCESS.
[Chap. 189.
Proceedings if
goods are
claimed by
third person.
1817, 148, § 1.
R. S. 109, §§ 17-
19.
1839, 107, § 19.
G. S. 142, §§ 15-
17.
P. S. 183, §§35-
37.
8 Pick. 470.
10 Met. 180.
5 Gray, 50.
7 Gray, 546.
11 Gray, 225.
2 Allen, 124.
6 Allen, 582.
Ill Mass. 281,
506, 532.
ADVERSE CLAIMANTS.
Section 32. If a person who claims, by assignment from the 1
defendant or otherwise, goods, effects or credits in the hands of a 2
supposed trustee enters an appearance, he shall be admitted as a 3
party to the action for the purpose of determining his title to such 4
goods, effects or credits, and may allege and prove any facts which 5
have not been stated nor denied by the supposed trustee. Such 6
allegations shall be tried and determined as provided in section 7
sixteen upon depositions or oral testimony as the court orders. If 8
he does not voluntarily enter an appearance, the court may issue an 9
order of notice to him. 10
113 Mass. 382.
118 Mass. 406.
123 Mass. 358.
125 Mass. 475.
126 Mass. 536.
127 Mass. 34.
132 Mass. 161.
137 Mass. 339.
143 Mass. 226.
147 Mass. 287.
162 Mass. 524, 562.
169 Mass. 502.
— upon assign-
ment by de-
fendant as
security for
debt.
1865, 43, § 1.
P. S. 183, § 38.
1888, 345.
123 Mass. 283.
131 Mass. 518.
142 Mass. 375.
Section 33. If it appears that the claimant holds a valid assign- 1
ment from the principal defendant only as security for a debt, the 2
court shall, at the request of the plaintiff, ascertain and determine 3
the amount due upon such debt at the time of the service of the writ 4
upon the trustee, and the claimant shall have judgment and execu- 5
tion for the amount so found to be due him and for his costs ; and 6
after said judgment and execution have been satisfied, the residue, if 7
any, of the goods, effects or credits in the hands of the trustee shall 8
be subject to be held by the attachment in the trustee process. If 9
judgment by default has been rendered against the trustee and it 10
appears that he has paid over, upon the execution issued on the origi- 1 1
nal judgment, any part of the goods, effects or credits in his hands 12
which are liable to attachment, he shall be liable to the adverse 13
claimant only for the residue in his hands. 14
Assignment of
future earn-
ings.
1865, 43, §§ 2, 3.
P. S. 183, § 39.
102 Mass. 233,
235.
105Mass. 442.
110 Mass. 204.
115 Mass. 165.
320 Mass. 94.
121 Mass. 167.
431.
Section 34. An assignment of future earnings shall not be valid 1
against a trustee process, unless, before the service of the writ upon 2
the alleged trustee, the assignment has been recorded in the office 3
of the clerk of the city or town in which the assignor resides at the 4
time of such record. Such record shall not affect the rights or 5
liability of the person or corporation from whom such earnings are 6
due, otherwise than is provided in this section. 7
123 Mass. 353. 124 Mass. 162. 131 Mass. 534.
Proceedings if
action pending
by the
defendant
against the
trustee.
E. S. 109, §§ 31,
32.
G. S. 142, §§ 18,
19.
P. S. 183, § 40.
6 Pick. 120.
97 Mass. 107.
99 Mass. 313.
161 Mass. 109.
PROCEEDINGS LP ACTION PENDING AGAINST TRUSTEE.
Section 35. If, while an action is pending, the defendant is 1
summoned in another action as the trustee of the plaintiff, the earlier 2
action may proceed so far as to ascertain by a verdict, award or 3
otherwise the amount due from the defendant, and it shall not be 4
delayed on account of the trustee process, unless the court continues 5
it for judgment until the termination of the trustee process or until 6
the attachment therein is dissolved by the discharge of the trustee, 7
by the satisfaction of the judgment or otherwise. The court may, 8
upon application of the plaintiff in the trustee process, so continue 9
such pending action upon terms. 10
chargeable,110 Section 36. If the action is not so continued and judgment is 1
when. rendered against the defendant, he shall not afterward, so long as he 2
Chap. 189.] trustee process. 1657
3 is liable to an execution thereon, be adjudged a trustee on account R-|.io9, §32.
4 of the demand so recovered against him. p." s." 183,' § 41!
1 Section 37. If, before final judgment in such pending action, Proceedings if
2 the defendant therein is adjudged a trustee in the trustee process, fudled^Lus-
3 and pays thereon the money demanded in the pending action, or any judgment in
4 part thereof, such fact shall be stated on the record of such action, rucs iq"0^
5 and judgment therein shall be rendered for the costs due to the plain- g- s. 142', § 20!
6 tiff and for such part of the debt or damages as remains due and us Mass. 163.*
r- -j ° 125 Mass. 319.
( unpaid .
1 Section 38. If, while an action is pending, the plaintiff is sum — if claim
2 moned as trustee of the defendant on account of a demand which trustee is the
3 is filed in set-off in such action, such pending action shall be subject !e£off*of a
4 to the provisions of the three preceding sections in the same manner pfl'.ill', §43.
5 and with the same effect as if it were an action brought upon such
6 demand in set-off by the defendant against the plaintiff.
JUDGMENT AND EXECUTION.
1 Section 39. If a person is adjudged a trustee, it shall not be Formof judg.
2 necessary to specify in the judgment the amount for which he is trustee. &Tgmg
3 chargeable. P.S.183, §44. ll Gray, 19. 2 Allen, 566. 136 Mass. 407. 162 Mass. 524. G. 1'. 142, § 32.
1 Section 40. If the goods, effects and credits in the hands of a Further attach.
2 person who has been adjudged a trustee are not demanded of him when.0 g0(
3 by force of the execution within thirty days after final judgment, **. s- 109, §§ 43,
4 they shall be liable to another attachment, whether made before or g. s- 142, §§ 33,
5 after the judgment ; or if there has been no such second attachment, J Qr'ayVi45'
6 they may be recovered by the defendant.
1 Section 41. If no such second attachment of the goods, effects Liability of
2 and credits has been made, and if no action has been brought thirty days,
3 therefor by the defendant, and if they have not been paid or deliv- R.s?k>,§45.
4 ered to the defendant before they are demanded of the trustee by £; f ; }ff; f fl"
5 the officer, the trustee shall be liable to pay and deliver the same, e Gray, 241.
6 when so demanded, although said thirty days have expired.
1 Section 42. If the trustee cannot be found in the common- Demand on
2 wealth by the officer to whom the execution, is committed for service, r. s. 109, § 46."
3 a copy of the execution left at his dwelling house or at his last and r.' s." ill,' I It."
4 usual place of abode, with a notice to him, indorsed thereon and m Mass- m-
5 signed by the officer, that he is required to pay and deliver, toward
6 satisfying the execution, the goods, effects and credits for which he
7 is liable shall be a sufficient demand for all the purposes of the two
8 preceding sections.
1 Section 43. The judgment against a trustee shall acquit and ^entagffi?"
2 discharge him from all demands by the defendant, his executor or J™** -6
3 administrator, for all goods, effects and credits paid, delivered or 1728-9! < § 5'.
4 accounted for by the trustee by force of such judgment. rrcs-tfio. §7-
G. S. 142, §37. 13 Gray, 51. 99 Mass. 530. 116 Mass. 210. Rs'. 109, §*47.
P. S. 183, §48. 1 Allen, 286. 100 Mass. 453. 131 Mass. 518.
7 Gray, 269, 505. 2 Allen, 123. 105 Mass. 340 164 Mass. 124.
1658
TRUSTEE PROCESS.
[Chap. 189.
£usteerfobar Section 44. If a person who is summoned as trustee is dis- 1
to action by charged, the judgment shall be no bar to an action brought against 2
r. s. 109, §46. him by the defendant for the same demand. p. s.i83, §49. 3
G. S. 142, § 38. J
Scire facias
against trustee.
1708-9, 7, § 5.
1728-9, 3, § 3.
1748-9, 6.
1758-9, 10, § 5.
1794, 65, §§ 5, 6.
R. 8. 109, §§ 38,
61.
G. S. 142, §§ 39,
83.
1878, 260, § 6.
P. S. 183, § 50.
16 Mass. 473.
4 Cush. 420.
9 Cush. 289.
2 Allen, 566.
99 Mass. 530.
122 Mass. 64.
135 Mass. 397.
Proceedings
upon default
of trustee on
scire facias.
1708-9, 7, § 5.
1728-9, 3, § 3.
1748-9, 6.
1758-9, 10, § 5.
1794, 65, § 7.
R. S. 109, § 39.
Same subject.
R. S. 109, § 40.
G. S. 142, § 41.
P. S. 183, § 52.
156 Mass. 166.
SCIRE FACIAS AGAINST TRUSTEE.
Section 45. If a person who is adjudged a trustee does not,
upon demand, pay over to the officer goods, effects or credits suffi-
cient to satisfy the execution and if the execution is not otherwise
satisfied, the plaintiff may sue out from the court in which the judg-
ment was rendered a writ of scire facias against him or all, or a
separate writ against each, of the trustees, to show cause why judg-
ment and execution should not be awarded against them or him
and their or his own goods and estate for the amount remaining
unsatisfied on the judgment against the defendant. Such writ may
be issued by the court or justice by which the judgment was ren-
dered, although the amount of the debt and costs therein exceeds
the jurisdiction of such court or justice.
Section 46. If a trustee, who has been duly served with the
scire facias, neglects to appear and answer, he shall be defaulted ;
and if he did not answer, and was not examined in the original
action, judgment shall be rendered against him upon such default
for the whole amount which remains unsatisfied on the judgment
against the defendant. g. s. 142, § 40. p. s. 183, § 51.
151 Mass. 17.
Section 47. If a trustee who is defaulted on the scire facias
has Been examined, or has answered and not been examined, in the
original action, judgment in the scire facias shall be rendered upon
the facts stated upon such examination, or in such answer, respec-
tively, for any part remaining in his hands of the goods, effects or
credits for which he was chargeable as a trustee, or for so much
thereof as then remains unsatisfied on the original judgment.
1
2
3
4
5
6
7
8
9
10
11
12
1
2
3
4
5
6
1
2
3
4
5
6
7
Proceedings
upon appear-
ance of trustee.
1794, 65, § 6.
R. S. 109, §§ 41,
42.
G. S
42.
P. S. 183, § 53.
4 Cush. 431.
10 Gray, 164,
371.
9 Allen, 90.
Section 48. If the trustee appears and answers to the scire facias,
he may be examined therein ; but if he has been examined in the
original action, he shall be examined anew only by order of the
142, §§32, court. He may prove any matter which may be necessary or
proper for his defence in the action on the scire facias. A judg-
ment against a trustee on scire facias shall express the amount for
which he is chargeable. in Mass. 154. ne Mass. 299.
134 Mass. 232. 149 Mass. 49. 156 Mass. 1. 173 Mass. 439.
Section 49. A writ of scire facias shall not be maintained against
a person who is adjudged a trustee, unless it is served upon him
within two years after judgment in the original action ; or if the
money or other thing is not payable when the judgment is ren-
dered, unless served upon him within one year after such money or
other thing becomes so payable.
Limitation of
action on scire
facias.
1846, 40, § 1.
G. S. 142, § 43.
P. S. 183, § 54.
4 Gray, 343.
1
2
3
4
5
6
7
1
2
3
4
5
6
DEATH of parties.
Section 50. If a person who is summoned as trustee in his own
Death of trus-
tee before
M^om 63. right dies before the judgment recovered by the plaintiff has been
p.'!.'if,i55.' fully satisfied, the goods, effects and credits in his hands at the time
1
2
3
Chap. 18i).] teustee process. 1659
4 of the attachment shall remain bound thereby, and his executor or
5 administrator shall be liable therefor as if the writ had been origi-
6 nally served on him.
1 Section 51. If a person who is so summoned dies before judg- Proceedings.
2 ment in the original action, his executor or administrator may r.s'.kw;§64.
3 appear voluntarily or may be cited to appear, as in other cases. p'.i'.m'JeH'.
4 The further proceedings shall then be conducted in the same man-
5 ner as if the executor or administrator had been originally sum-
6 moned as a trustee, except that the examination of the deceased, if
7 any has been filed, shall have the same effect as if he were living.
1 Section 52. If the executor or administrator does not appear, same subject.
2 the plaintiff, instead of suggesting the death of the trustee, may 66. '
3 take judgment against him by default or otherwise as if he were <*. s. 142, §§ «,
4 living and the executor or administrator shall pay upon the execu- i^s.i83, §§57,
5 tion the amount which the deceased would have been liable to pay 149 Mass- 49-
6 to the defendant, and shall be thereby discharged for the amount so
7 paid. If he does not voluntarily pay the amount in his hands, the
8 plaintiff may proceed against him by a writ of scire facias.
1 Section 53. If a person who is summoned as trustee dies after Death of true-
2 judgment in the original action, his executor or administrator may ment. er]U g"
3 pay upon the execution the amount which the deceased would have Rf|'.io9?§67.
4 been liable to pay were he living, and he shall be discharged from r." I.' ill' 1 59."
5 all further demands on account thereof in the manner before men- 15 Mass. 473.
6 tioned. If he refuses to make such payment, the plaintiff may pro-
7 ceed against him by a writ of scire facias.
1 Section 54. If a person, against whom as trustee execution has same subject.
2 been issued, is not living at the expiration of thirty days after final g! ii m, 1 49."
3 judgment in the trustee process, a demand, for the purpose of hold- p- s- 183> § 60.
4 ing the attachment, may be made upon the executor or administrator
5 of such deceased person at any time within thirty days after his
6 appointment, and shall have the same effect as if made within thirty
7 days after the judgment.
PROCEEDINGS IT AN EXECUTOR IS CHARGED AS TRUSTEE.
1 Section 55. If an executor or administrator as such is adjudged fu^Vhen*™
2 a trustee, the execution shall not be served on his own goods or ^^^
3 estate nor on his person, and he shall be liable for the amount in his ^adjudged a
4 hands only in like manner and to the same extent as he would have r. s. 169, § 69.
5 been liable to the defendant if there had been no trustee process, pjs.'iss.'feif
149 Mass. 49.
1 Section 56. If, after final judgment against an executor or ad- R0e™de^e°xne?_
2 ministrator for a sum certain due from him as trustee, he neglects utOTnegectog
3 to pay the same, the original plaintiff in the trustee process shall for which he is
4 have the same remedy for recovering the amount, either upon a r. s. 109, § 70.
5 suggestion of waste or by a suit on the administration bond, as the P; s; 1Kt; § 62>*
6 defendant in the trustee process would have had upon a judgment
7 recovered by himself for the same demand against the executor or
8 administrator.
1660
TRUSTEE PROCESS.
[Chap. 189.
Proceedings if
trustee is
charged for
specific
property.
1794, 65, § 10.
R. S. 109, § 22.
G. S. 142, §52.
P. S. 183, § 63.
7 Cush. 487.
104 Mass. 164.
PROCEEDINGS IF TRUSTEE HAS SPECIFIC PROPERTY.
Section 57. If a person is charged as trustee by reason of per- 1
sonal property other than money, which he holds or is bound to 2
deliver to the defendant, he shall deliver it, or so much thereof as 3
may be necessary, to the officer holding the execution, who shall 4
sell the property and apply and account for the proceeds in the 5
same manner as if the property had been taken on execution. 6
Sams subject.
1794, 65, § 10.
E. S. 1U9, § 23.
G. S. 142, § 53.
P. S. 183, § 64.
6 Mass. 60.
173 Mass. 439.
Section 58. The value of any property so delivered shall be 1
ascertained and fixed, as between the trustee and defendant, in like 2
manner and upon the same principles as if it had been delivered to 3
the defendant. Upon the application of either party, the court or 4
justice may, pending the original action or upon the scire facias, 5
determine the value, and make any other order relative to such 6
property and to the delivery thereof as may be necessary or proper 7
to protect the rights of the trustee and of the defendant. 8
Delivery by
trustee of
specific prop-
erty according
to contract.
E. S. 109, § 24.
G. S. 142, § 54.
P. S. 183, § 65.
6 Mass. 60.
6 Gray, 320.
104 Mass. 165.
Section 59. If a person who is summoned as trustee is bound 1
by contract to deliver specific property to the defendant at a certain 2
time and place within the commonwealth, he shall not be required 3
by reason of the trustee process to deliver it at any other time or 4
place ; and he may, notwithstanding such process, tender or deliver 5
it to the person entitled thereto under the contract at the time and 6
place therein mentioned, unless he has been previously adjudged a 7
trustee on account thereof. 8
Tender by
plaintiff of
amount for
which trustee
holds property
as security.
1829, 124, § 1.
E. S. 109, § 25.
G. S. 142, § 55.
P. S. 183, § 66.
9 Gray, 46.
11 Allen, 354.
Section 60. If the court finds that such property in the hands of 1
a person who is summoned as trustee is mortgaged, pledged or is 2
in any way liable for the payment of a debt to the person so sum- 3
moned, it may allow the attaching creditor to pay or tender the 4
amount due to the trustee, who shall thereupon deliver the prop- 5
erty, in the manner before provided, to the officer who holds the 6
execution. 154 Mass. 34. 173 Mass. 439. 7
— if held for
other purpose
than as secur-
ity.
1829, 124, § 1.
E. S. 109, § 26.
G. S. 142, § 56.
P. S. 183, § 67.
1 Met. 172.
Section 61. If the court finds that the property in such case is 1
held for any purpose other than to secure the payment of money 2
and that the contract, condition or other thing to be performed is 3
such that it can be performed by the attaching creditor without 4
damage to the other parties, it may make an order for the per- 5
formance thereof by him. Upon such performance, or upon a tender, 6
the trustee shall deliver the property in the manner before provided, 7
to the officer who holds the execution. 8
Disposal of
property by
officer.
1829, 124, § 2.
E. S. 109, § 27.
G. S. 142, § 57.
P. S. 183, § 68.
Section 62. Property which has been received by the officer 1
under the provisions of the two preceding sections shall be sold and 2
disposed of in the same manner as if it had been taken on an execu- 3
tion, except that from the proceeds of the sale the officer shall repay 4
to the attaching creditor the amount paid by him to the trustee for 5
the redemption of the property, with interest thereon, or shall in- 6
demnify the creditor for any other act or thing by him done or 7
performed pursuant to the order of the court for the redemption of 8
the property. 9
Chap. 189.] trustee process. 1661
1 Section 63. The provisions of the preceding sections shall not of16^^^66
2 prevent the trustee from selling the property in his hands for the Pe]d aB 8ecur-
3 payment of the claim for which it is mortgaged, pledged or other- itfs?iC09, §28.
4 wise liable at any time before the amount due to him is paid or p.' 1.' m, f It
5 tendered as before mentioned, if such sale would be authorized as
6 between him and the defendant.
1 Section 64. If a trustee refuses or neglects to deliver any Liability of
2 property in his hands when thereunto lawfully required by the neglect torde-
3 officer who serves the execution, he shall, after deducting the fOTwhic^'hefs
4 amount of any lien he has on such property, be liable to the plain- ira^l|d§ 6.
5 tiff upon a scire facias. g. s. i42,§59. p. s. 183, §70. 173 Mass. 439. r2| wt' l^
DISSOLUTION OF ATTACHMENT BY THE TRUSTEE PROCESS.
1 Section 65. A person who has an interest by assignment or Dissolution of
2 otherwise in money or credits which have been attached by the trustee%1rocby
3 trustee process in an action against another may, at any time before ff^ 97 §§ 1( 2>
4 final judgment, dissolve such attachment or a part thereof by giving ^ MaS IJ91'
5 bond, in a sum not exceeding the damages demanded, with sufficient ^j j|Jass- {21-
6 sureties who shall be approved in writing by the plaintiff or his
7 attorney, by a master in chancery or by a justice of a court of record,
8 if the attachment is made within the jurisdiction of such justice,
9 conditioned to pay to the plaintiff, within thirty days after final
10 judgment, or after a special judgment entered in accordance with
11 the provisions of section twenty-five of chapter one hundred and
12 seventy-seven, the amount for which the trustee may be charged, not
13 exceeding the value of the property in his hands, or so much thereof
14 as will satisfy the amount which may be recovered by the plaintiff.
15 If there are several trustees, such bonds may be made to apply to
16 one or more. The provisions of sections one hundred and twenty-
17 one and one hundred and twenty-two of chapter one hundred and
18 sixty-seven, relative to notice, hearing, fees and the filing of the
19 bond, shall apply to bonds given under the provisions of this
20 section.
1 Section QQ. After the filing of such bond, the trustee may deliver Delivery of
2 to the person by whom or in whose behalf as principal the bond trustee/ y
3 was given the money or other thing in his hands, or that part pJs'. isfef §72.
4 thereof to which the bond applies, and shall not after such delivery
5 be liable to the plaintiff therefor, nor shall any execution therefor
6 issue against him. No action on such bond shall be commenced
7 after the expiration of six years from the date thereof.
COSTS.
1 Section 67. If a person who is summoned as a trustee in the costs of trus-
2 supreme judicial court or the superior court appears and answers 1708-9, 7, § 5.
3 pursuant to the provisions of this chapter, he shall be allowed his $ff$ jj; § 4<
4 costs for travel and term fees, and such further amount for counsel ™y°§'|.3-
5 fees and other necessary expenses as the court may allow. If he ^1,^1%.
6 is so summoned in a police, district or municipal court, or before a g. s. H2,' §§ eo,
7 trial justice, he shall be allowed the costs fixed by section twenty- *• JjU^fe
8 eight of chapter two hundred and three. If there has been a trial 414. Ic
1662
19 Pick. 354.
12 Met. 397.
14 Gray, 453.
15 Gray, 70.
6 Allen, 122.
TRUSTEE PROCESS. [CHAP. 189.
between the plaintiff and the alleged trustee upon any issue of fact, 9
the court may award costs to either party. 10 Alien, wo. 10
99 Mass. 501, 551. 117 Mass. 91. 123 Mass. 319. 128 Mass. 20.
Costs payable
out of effects,
when.
1829, 128, § 2.
1845, 188.
R. S. 109, § 50.
G. S. 142, § 61.
P. S. 183, § 74.
10 Met. 580.
12 Cush. 131.
11 Grav, 19.
2 Allen, 568.
Section 68. If a person who is so summoned is adjudged a trus- 1
tee, his costs and charges shall be deducted from the goods, effects 2
and credits in his hands, and he shall be chargeable for the balance 3
only to be paid on the execution. If such goods, effects and credits 4
are not of sufficient value to discharge the costs taxed in his favor, 5
he shall have judgment and execution against the plaintiff for the 6
balance of such costs, after deducting the amount disclosed, in 7
the same manner as if he had been discharged. 8
"laSS? when Section 69. If a person who is so summoned is discharged, he 1
1708-9, 7' §5. shall have iudgment and execution for his costs and charges against 2
1728-9, 3, §4. . J & a
1748-9,6. the plaintiff. 1758-9, 10, § 3. 1794, 65, §4. r. s. 109, §51. o
G. S. 142, § 62. P. S. 183, § 75. 3 Cush. 341. 11 Cush. 466.
— of person
absent from
common-
wealth.
R. S. 109, § 52.
G. S. 142, § 63.
P. S. 183, § 76.
10 Mass. 25.
Section 70. If a 'person who is so summoned in an action pend-
ing in the supreme judicial court or the superior court is out of the
commonwealth at the time of the service of the original writ upon
him, and appears and answers within ten days after his return, or if
he is so summoned in an action pending in a police, district or
municipal court or before a trial justice, and appears and answers
within three days after his return, he shall be allowed his costs and
charges.
1
2
3
4
5
6
7
8
— of person
summoned
out of countv.
1794, 65, §§ 3,"6.
R. S. 109, § 53.
1852, 287.
G. S. 142, § 64.
P. S. 183, § 77.
12 Pick. 529.
Section 71. If a person who is so summoned, does not dwell or
have a usual place of business in the county in which the writ is
returnable, he shall, if he appears at any time in the original action
or upon a scire facias, be allowed his costs and charges, which shall
be retained or recovered as before provided.
1
2
3
4
5
Liability of
trustee neg-
lecting to ap-
pear.
1794, 65, § 3.
R. S. 109, § 54.
1852, 287.
G. S. 142, § 65.
P. S. 183, § 78.
5 Mass. 209.
Section 72. A person so summoned, who dwells or has a usual 1
place of business in the county in which the writ is returnable, and 2
who neglects, without sufficient reason, to appear and answer within 3
the time herein provided, shall be liable, if the plaintiff recovers 4
judgment and does not otherwise receive his costs, for all costs for 5
the plaintiff's travel and term fees until he appears. 6
Recovery of
costs.
R. S. 109, § 55.
G. S. 142, § 66.
P. S. 183, § 79.
Section 73. If a person who is so summoned does not pay the 1
costs when demanded by the officer who serves the execution, the 2
officer shall state the fact in his return, and if it also appears by 3
the return that the costs have not been paid, the court shall award 4
a new execution against him for the costs. 5
Liability of
several trus-
tees for plain-
tiff's costs.
1794, 65, § 3.
R. S. 109, § 56.
G. S. 142, § 67.
P. S. 183, § 80.
16 Mass. 475.
Section 74. If there are several persons who are summoned as 1
trustees and who are liable for costs under the provisions of the two 2
preceding sections, the second execution shall be awarded against 3
them jointly ; and if any one pays more than his proportion, the 4
others shall contribute equally to indemnify him for the excess. 5
Chap. 189.] trustee process. 1663
1 Section 75. If, while an action by the trustee process is pend- costs inaction
2 ing, the original defendant therein or any other person brings an i^ssH&i.
3 action against the alleged trustee to recover the goods, effects or
4 credits or any part thereof in his hands or possession, the costs in
5 the later action shall be in the discretion of the court.
1 Section 76. If a person summoned as trustee, who dwells or Liability ot
2 has a usual place of business in the county in which the writ is re- costseon scire
3 turnable, is defaulted in the original action, and if a writ of scire i794?65,!§3%.
4 facias issues against him, he shall be liable out of his own goods and q] |; \^ 1 |£
5 estate for all costs on the scire facias, although he is not adjudged fpfct8^!81'
6 a trustee, except as hereinafter provided.
1 Section 77. He shall not be liable for costs on the scire facias, same subject.
2 nor shall he be entitled to recover costs, if the court finds that he r. s. 109; §58.
3 had goods, effects or credits in his hands liable to attachment, and p.' I.' is!,' § si.'
4 has paid and delivered, on the execution issued on the original
5 judgment, the whole amount thereof.
1 Section 78. He shall not be liable for costs on the scire facias same subject.
2 if he was prevented from appearing in the original action by his fm^iiit
3 absence from the commonwealth or by any other sufficient cause, g^uI, §70.
4 but the court may allow him his costs as if he had appeared in the p- s< 183> § 83-
5 original action.
1 Section 79. If a person who is summoned as trustee is held ^fsagafnstr
2 liable to pay from his own estate the costs on the scire facias as ^1*^ 560
3 before provided, and if he is at the same time liable for the plaintiff's o! s." 142,' § 71.'
PS 183 5 84
4 costs in the original action, one execution shall be issued against '
5 him for both amounts.
1 Section 80. If there are several trustees who are liable to the costs against
2 writ of scire facias, and the plaintiff, without sufficient reason, sues tees.
3 out two or more writs when he might have joined all the trustees g. s. 142,' § 72!
4 in one writ, he shall recover no more costs than if he had sued out p-s-183>§85-
5 only one writ, and the court may apportion the costs among all the
6 trustees liable therefor.
1 Section 81. If an adverse claimant is admitted as a party, the -in case of
2 court may award costs between him, the plaintiff and the supposed ant.
1817 14.8 S 1
3 trustee, or any of them. g. s. 142, §73. r. s'. 109, § 21.
P. S. 183, § 86. 6 Allen, 122. Ill Mass. 28. 134 Mass. 251.
15 Gray, 70. 99 Mass. 501. 123 Mass. 319. 176 Mass. 124.
1 Section 82. If the damages which are recovered in an action t1*^™*1^
2 brought under the trustee process do not exceed ten dollars, exclu- tendoiiars.
3 sive of all costs which have accrued in any former action, the plain- isst! loo! § i!
4 tiff shall recover no costs. issi, 216, §1. p. s. 183, §§ 87, 88. ' ' ,s '
1664
REPLEVIN.
[Chap. 190.
CHAPTER 190.
OF THE REPLEVIN OF PROPERTY.
Sections 1-7. — Replevin of Beasts Distrained.
Sections 8-14. — Replevin of other Property.
Sections 15-24. — General Provisions.
Replevin of
beasts dis-
trained.
B. L. 32.
C. L. 18, §3;
132, § 1.
1789, 26, § 1.
R. S. 113, § 17.
G. S. 143, § 1.
Bond.
C. L. 132, § 1;
162, § 4.
1701-2, 3.
1720-1, 13, § 2.
1789, 26, § 1.
R. S. 113, § 19.
G. S. 143, § 3.
P. S. 184, § 3.
100 Mass. 122.
136 Mass. 515.
Appraisal
of property
replevied.
1824, 106, § 1.
R. S. 113, § 20.
G. S. 143, § 4.
P. S. 184, § 4.
Return of writ,
1789, 26, § 1.
1824, 106, § 1.
R. S. 113, § 21.
G. S. 143, § 5.
P. S. 184, § 5.
12 Met. 516.
97 Mass. 316.
REPLEVIN OF BEASTS DISTRAINED.
Section 1. A person whose beasts have been distrained or im-
pounded in order to recover a penalty or forfeiture supposed to have
been incurred by their going at large or to obtain satisfaction for
damages alleged to have been done by them may cause them to be
replevied. P. S. 184, §1. 2Cush. 88. 7Cush. 355.
Section 2. Before the officer serving the writ delivers the beasts
to the plaintiff, he shall take from the plaintiff or a person in his
behalf a bond payable to the defendant in a sum equal to double
the value of the beasts, with sufficient sureties, conditioned to prose-
cute the replevin to final judgment and to pay such damages and
costs as the defendant shall recover and to return the beasts if such
shall be the final judgment.
Section 3. The writ shall require that the bond be given for
double the value of the beasts, but shall not express the amount for
which it shall be given. If the parties do not agree as to the value
of the beasts, it shall be ascertained by three disinterested ap-
praisers, who shall be appointed and sworn by the officer, and the
penalty of the bond shall be double the value ascertained by such
appraisers or by a majority of them.
Section 4. The officer shall return such bond with the writ to
the justice or court to which the writ is returnable, for the use of
the defendant ; and he shall include in his return, indorsed on the
writ, a certificate of the appointment of the appraisers, of the ap-
praisal and of the expenses thereof.
mernTf°or3udg" Section 5. If the court or justice finds that the beasts were
rfsg^rfi lawfully taken or distrained, the defendant shall have judgment for
r. s. 113, §§ 22, the amount found to be due from the plaintiff for the penalty or for-
p'l'isf 'l§6,7' ^e^ure or ^or tne damages for which the beasts were impounded,
' ' with the legal fees, costs, charges and expenses incurred by reason
of the distress, and with the costs of the action of replevin ; or in-
stead thereof the court may render a judgment for a return of the
beasts, to be held by the defendant irrepleviable by the plaintiff,
and for the damages for the taking of the beasts by the replevin and
for the defendant's costs. If so returned, the beasts shall be held 10
and disposed of as if they had not been replevied. 11
vii^t^' Section 6. If the court or justice finds that the beasts were 1
g. I. IS 1 14' unlawfully taken or distrained, the plaintiff shall have judgment for 2
p. s. 184,' § 8.' damages caused by such taking and detaining and for costs. 3
1
2
3
4
5
1
2
3
4
5
6
7
1
2
3
4
5
6
7
1
2
3
4
5
1
2
3
4
5
6
7
8
9
Chap. 190.] replevin. 1665
1 Section 7. If, in an action before a trial justice, it is found that Removal of
2 the amount demanded for the penalty, forfeiture or damages ex- perior court.
3 ceeds three hundred dollars, or that the title of the beasts is in R.s'.ii3;§26.
4 question and that their value exceeds three hundred dollars, the case p.' I." ill; 1 1;
5 shall, at the request of either party, be transferred to the superior
6 court, as provided in sections nineteen, twenty and twenty-one of
7 chapter one hundred and sixty-one.
REPLEVIN OF OTHER PROPERTY.
1 Section 8. If goods exceeding twenty dollars in value are un- Replevin of
2 lawfully taken or detained from the owner or person entitled to fui°iyStakenor
3 their possession, or if goods of that value, which have been attached c"^1^' § i
4 on mesne process or taken on execution, are claimed by a person g8|> f^Jf-^
5 other than the defendant in the action in which they have been g. s. m, § 10!
6 so attached or taken, the owner or such other person may cause 15 Mass/359. '
7 them to be replevied. "cusTss?6-
3Cush. 261. 16 Gray, 213. 116 Mass. 371. 155 Mass. 539.
11 Cush. 218. 9 Allen, 116. 121 Mass. 107. 156 Mass. 141.
9 Gray, 216. 105 Mass. 113, 306. 146 Mass. 329. 166 Mass. 146.
1 Section 9. Before the officer serving the writ delivers the goods Bond.
2 to the plaintiff, he shall take from the plaintiff or a person in his vist,'^ I.1'
3 behalf a bond payable to the defendant in a sum equal to double <■>; |; \$ | f^
4 the value of the goods, with sufficient sureties, conditioned to pros- fi^f^
5 ecute the replevin to final judgment and to pay such damages and 14 ¥ass; 3.13-
6 costs as the defendant shall recover and to return the goods if lMet'sos.'
7 such shall be the final judgment. The officer shall appraise the 6 Gray, 363.
8 goods and return the writ in the manner provided in sections three l^iass.4^.'
9 and four; but if the writ is returnable to the superior court, the J^ Mass! 519!
10 bond shall be left with the clerk of the court for the use of the 165 Maes: 505:
11 defendant.
0
1 Section 10. If the court or justice finds that the defendant is Formofjudg-
2 entitled to a return of the goods, judgment shall be rendered there- defendant.
3 for and for the damages caused by the taking by the replevin and for r.8!. mf §30.
4 COStS. P. S. 184, § 13. 14 Gray, 449. G- S- 143' § 13-
3 Allen, 429. 104 Mass. 328. 114 Mass. 458.
98 Mass. 515. 109 Mass. 265. 136 Mass. 128.
1 Section 11. If the goods when replevied had been taken on ex- Damages, how
2 ecution, or if they had been attached and judgment is afterward i*m*m% 4.
3 rendered for the attaching creditor, and if in either case the service §! ii ill i il'.
4 of the execution is delayed by reason of the replevin, the damages fMas'tusil.14"
5 to be assessed for the defendant upon a judgment for a return shall 12 Mass.4mj.
6 be at the rate of not less than twelve per cent a year on the value
7 of the goods for the time during which the service of the execution
8 was so delayed.
1 Section 12. Money recovered by an officer in an action of re- Disposal of
2 plevin for goods attached or taken on execution by him or recov- ereSYy^raoer
3 ered by him in an action upon the replevin bond shall be applied as oftgoodslevm
4- follows- attached, etc.
t IOllOWb . R s ]13 § 32.
5 First, To pay the lawful fees and charges of the officer and the «■ |- i«. 1 1|-
6 reasonable expenses of the action of replevin and of the action on
1666
REPLEVIN.
[Chap. 190.
Disposal of
money recov-
ered by officer
after replevin
of goods
attached, etc.
the bond, so far as such expenses are not reimbursed by the costs 7
recovered. 8
Second, To pay to the creditor at whose suit the goods were at- 9
tached or taken on execution the amount recovered bv him in that 10
action, or so much thereof as remains unpaid, with interest thereon 11
at the rate of twelve per cent a year for the time during which the 12
money has been withheld from him, or the service of his execution 13
has been delayed by reason of the replevin. 14
If the attaching creditor in such case does not recover judg- 15
ment in the action in which the attachment was made, or if a 16
balance remains of the money so recovered by the officer after pay- 17
ing what is due to the creditor, such money shall be applied in the 18
same manner as the surplus, if any, of the proceeds of sale would 19
and ought to have been applied had the goods been sold on ex- 20
ecution. 21
Same subject.
R. S. 113, § 33.
G. S. 143, § 16.
P. S. 184, § 16.
Section 13. All amounts received by such creditor from the 1
proceeds of the sale of goods attached or taken on execution and 2
afterward returned, or received by him for the value of goods not 3
returned, or recovered, from the officer for the insufficiency of the 4
sureties on the bond, shall be applied to the discharge of the judg- 5
ment recovered by the creditor ; and all amounts received as interest 6
or damages for the delay of his execution shall be applied, one-half 7
to the sole use of the creditor, and the other half in discharge of 8
the judgment. 9
men?for3piafn. Section 14. If the court or justice finds that the goods were 1
Rffs 113 34 unlawfully taken or attached or unlawfully detained by the defend- 2
r ' f ' i14!' § l7- an^' ^ne plaintiff shall have judgment for his damages caused thereby 3
8 Allen, 93. ' and for COStS. 120 Mass. 543. * 4
GENERAL PROVISIONS.
Approval of
sureties on
Section 15. Sureties on a replevin bond may be approved in
il7oe309 §Td' writing by the officer who serves the writ or by the defendant or
p. s'. 184, §i8. by a justice of a police, district or municipal court or by a master
142' Mass. 519. in chancery, and, if approved otherwise than by the officer, he shall
not be responsible for their sufficiency.
1
2
3
4
5
Proceedings.
1870, 309, § 2.
P. S. 184, § 19.
1895, 388, § 2.
Section 16. If such sureties are to be approved by a justice of 1
a police, district or municipal court or by a master in chancery, the 2
officer who serves the writ shall give notice in writing to the de- 3
fendant or to the person from whose custody the property has been 4
taken, stating the time and place of hearing thereon and the names 5
and residences of the proposed sureties, allowing not less than one 6
hour before the time appointed for the hearing and at the rate of 7
one hour additional for each mile of travel. 8
Fees of master.
1870, 309, § 3
Section 17. The fee of the master for the hearing and decision 1
p. s. 184, §20. shall be one dollar; and, if the bond is approved, such fee shall be 2
taxed in the plaintiff's costs, if he prevails in the action. 3
boendCnotncause Section 18. An action of replevin shall not be dismissed by
for dismissal, reason of a defect in the form or substance of the bond taken there-
1
2
Chap. 190.] replevin. 1667
3 in, if the court or justice is satisfied that such bond was intended in 1878, 273.
4 good faith as a compliance with the law requiring a bond to be P' s" 184' § 2L
5 taken before service of the writ and if the plaintiff, within such time
6 and upon such terms as the court orders, files a new bond such as is
7 required by law, approved by the court or in the manner provided
8 in section four of chapter one hundred and sixty-nine.
1 Section 19. An action shall not be maintained against a surety Limitation of
2 on a replevin bond, unless the writ is served on him within one sufete*!?11181
3 year after the final judgment in the action of replevin. If the writ R°sdii3, §40.
4 of replevin is not entered, an action on the bond shall not be main- £; f ; JJf ' f ff •
5 tained unless it is entered within one year after the return day of
6 the writ of replevin.
1 Section 20. Damages in replevin shall be assessed by the jury Assessment of
2 by which the cause is tried, if there is a trial by jury ; otherwise, Rasafi38,'§35.
3 by the court or justice or by a jury impanelled for the purpose. p.' f.' if!,' f 23.'
1 Section 21. If the goods replevied had been attached, they Proceedings
2 shall, upon a judgment for a return, be held liable to the attach- "^return™!11*
3 ment until final judgment in the action in which they were attached, |t°cod8atta«ned,
4 and for thirty days thereafter, so that they may be taken on execu- ^8| ^3§ jh6
5 tion. If such final judgment is rendered before the return of the pf^fHo?-
6 goods, or if the goods when replevied were seized and held on ex-
7 ecution, they shall be held subject to the same attachment or
8 seizure for thirty days after the return, in order that the execution
9 may be served thereon, or the service thereof completed, in like
10 manner as it might have been if the goods had not been replevied.
1 Section 22. If the officer to whom the writ of return" is com- writ of re-
2 mitted cannot find the beasts or goods which were replevied, so as 1789*26, §7.
3 to deliver them to the defendant, he shall make a return of that g. i'. 143', f 22.
4 fact upon the writ of return ; and the defendant shall, upon motion, p-s-184> §25-
5 be entitled to a writ of reprisal to take the beasts or goods of the
6 plaintiff and deliver them to the defendant to be held and disposed
7 of according to law.
1 Section 23. The writ of return in actions of replevin shall be Form of writs
2 substantially in the form heretofore established and used in like reprisal.
3 cases, and the writ of reprisal shall be substantially in the form of r8|\ mflls7'
4 a writ of withernam. p.' I.' isI,' 1 26.'
1 Section 24. The foregoing provisions shall not preclude the Effect of fore-
o o ■■■ * groin0- provi-
2 defendant from his remedv on the replevin bond, nor, except as sions0.
3 provided in section fifteen, from his remedy against the officer for g! s.' 143! § 21!
4 the insufficiency of the sureties on the bond, to recover the value of g^etafe? 27"
5 the goods and the loss or damage caused by the replevin, although
6 he has endeavored to recover the same by the writs of return and
7 of reprisal as before provided.
1668
HABEAS CORPUS.
[Chap. 191.
CHAPTEE 191.
OF habeas corpus, personal replevin and personal liberty.
Sections 1-34. — Habeas Corpus.
Sections 35-47. — Personal Replevin.
Sections 48-53. — Personal Liberty.
Writ of habeas
corpus as of
right.
1784, 72, § 1.
R. S. Ill, §§1,2.
1855, 489, §§2, 20.
G. S. 144, §§1,2.
P. S. 185, §§1,2.
2 Pick. 172.
12 Cush. 598.
2 Gray, 406.
167 Mass. 11.
— by whom
issued.
1784, 72, § 1.
R. S. Ill, §§7, 8.
1855, 489, § 3.
G. S. 144, § 3.
P. S. 185, § 3.
19 Pick. 339.
habeas corpus.
Section 1. Whoever is imprisoned or restrained of his liberty 1
may, as of right and of course, prosecute a writ of habeas corpus, 2
according to the provisions of this chapter, to obtain release from 3
such imprisonment or restraint, if it proves to be unlawful, unless : 4
First, He has been committed for treason or felony, or on sus- 5
picion thereof, or as accessory before the fact to a felony, and the 6
cause has been plainly expressed in the warrant of commitment. 7
Second, He has been convicted or is in execution upon legal 8
process, civil or criminal. 9
Third, He has been committed on mesne process in a civil 10
action in which he was liable to arrest and imprisonment, unless 11
excessive and unreasonable bail was required. 12
Section 2. The writ may be issued, irrespective of the county 1
in which the person is imprisoned or restrained, by the supreme 2
judicial court or the superior court, by a probate, police, district 3
or municipal court, by a judge of any of said courts, or by a justice 4
of the peace if none of said judges is known to such justice to be 5
within five miles of the place where the person is imprisoned or 6
restrained. 7
— form of peti-
tion for.
1784, 72, § 1.
R. S. ill, §3.
G. S. 144, § 4.
P. S. 185, §4.
161 Mass. 46.
— issue of.
1784, 72, § 2.
1808, 80.
R. S. Ill, § 4.
1855, 489, § 3.
.1859, 291, § 1.
G. S. 144, § 5.
1861, 91, § 1.
P. S. 185, § 5.
161 Mass. 46.
Section 3. The petition for the writ shall be in writing, signed 1
and sworn to by the person for whose release it is intended, or 2
by a person in his behalf, and shall state by whom and where the 3
person is imprisoned or restrained, the name of the prisoner and 4
of the person detaining him, if their names are known, or a de- 5
scription of them, if their names are not known, and the cause 6
or pretence of such imprisonment or restraint, according to the 7
knowledge and belief of the petitioner. 8
If the imprisonment or restraint is by virtue of a warrant or 9
other process, a copy thereof shall be annexed, unless it appears 10
that such copy has been demanded and refused or that, for a suffi- 11
cient reason, a demand therefor could not be made. 12
Section 4. The court or magistrate to whom the petition is 1
presented shall, without delay, issue a writ of habeas corpus, substan- 2
tially in the form heretofore established and used in this common- 3
wealth, and returnable forthwith to the supreme judicial court, or 4
a justice thereof, at such place as shall be designated in the writ. 5
1784°™, §§i,2. Section 5. If the imprisonment or restraint is not by a sheriff, 1
deputy sheriff or jailer, the writ shall be in the following form : — 2
G. S. 144, § 6. P. S. 185, § 6.
R. S. Ill, § 5.
1859, 291, § 2.
Chap. 191.] habeas corpus. 1669
Commonwealth of Massachusetts.
[seal.] To the sheriffs of our several counties and to their respective deputies,
Greeting.
We 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 at immediately after
the receipt of this writ, to do and receive what our said justice shall then and
there consider concerning him in this behalf ; and summon said then and
there to appear before our said justice to show the cause of the taking and de-
taining of said ; and have you there this writ with your doings thereon.
Witness at this day of in the year
1 Section 6. If the writ is issued by the court when sitting for How signed
2 the transaction of business, it shall be signed by the clerk, other- B°s.sm,e*6.
3 wise by the magistrate issuing it, and may be served in any county p."f;i85('f ?;
4 by a sheriff or deputy sheriff thereof or of any other county.
1 Section 7. The person who has the custody of the prisoner may Description of
2 be designated by his office or by his own name, or, if they are un- prisoner!10*
3 known or uncertain, he may be described by a fictitious name and g*. 1". iii', 1 1?'
4 the person upon whom the writ is served shall be held to be the p- s- 185> § 8
5 person intended.
1 Section 8. The person restrained shall be designated by his —of prisoner.
2 name, if known ; otherwise, he may be so described as to identify g. s. m, §9.'
3 him. P. S. 185, §9.
1 Section 9. If the person restrained is confined in jail or is in Advances prior
2 the custody of a civil officer, the court or magistrate granting the writ.rvlce of
3 writ shall certify thereon the amount to be paid for the expense of Rf|\mf §12.
4 transporting him from the place of imprisonment, and the officer p* §' Jig' f i^
5 shall not be bound to obey the writ unless that amount is paid or
6 tendered to him.
1 Section 10. Any person to whom the writ is directed shall re- Return of writ.
1784. 79 S ^t
2 ceive it, and, upon payment or tender of the charges demandable r. s'.in, §13.
3 for the execution of it, shall make due return thereof within five days £; |; J^; | JJ;
4 after receiving it.
1 Section 11. The person in whose custody the prisoner is found ^e°t°trennt8 of
2 shall state in writing, plainly and unequivocally, to the court or «• _s- m> §§ 1*.
3 justice before whom the writ is returnable : — g. s.i44, §§12,
4 First, Whether the prisoner is in his custody or power or under p.'s.i85, §§12,
5 his restraint.
6 Second, If the prisoner is in his custody or power or under his
7 restraint, his specific authority for and the true and whole cause of
8 such imprisonment or restraint, with a copy of the writ, warrant or
9 other process, if any, upon which the prisoner is detained.
10 Third, If the prisoner has been in his custody or power or under
11 his restraint, and has been transferred to that of another, particularly
12 to whom, when, why and by what authority such transfer was made.
13 The statement shall be signed by him and, unless he is a sworn
14 public officer and makes the statement in his official capacity, shall
15 be sworn to by him.
1670
HABEAS CORPUS.
[Chap. 191.
The person who makes the statement shall at the 1
2
3
4
Prod°ifctdto be Section 12.
1784, 72, §3. same time produce the prisoner, if in his custody or power or under
g". s'. 144', § i4*. his restraint, according to the command of the writ, unless prevented
p. s. 185, § 14. kv tke illness or infirmity of the prisoner.
Provision if
prisoner is ill,
etc.
B. S. Ill, § 17.
G. S. 144, § 15.
P. S. 185, § 15.
Section 13. If by reason of the illness or infirmity of the pris- 1
oner he cannot without danger be taken to the place appointed for 2
the return of the writ, that fact shall be stated in the statement and, 3
if proved, the judge may proceed to the place where the prisoner is 4
confined and there make his examination ; or he may postpone the 5
examination or may make such other order in the case as law and 6
justice require. 7
Return of writ.
1784, 72, § 4.
R. S. Ill, § 9.
G. S. 144, § 36.
P. S. 185, § 16.
161 Mass. 46.
Section 14. If the court to which the writ is returnable is not 1
sitting for the transaction of business when the writ is returned, 2
the return shall be made before a justice thereof. If the writ is 3
returned before a justice when the court is sitting for the transac- 4
tion of business, he may adjourn the case into the court, to be there 5
heard and determined. 6
Examination
of causes of
imprisonment.
1784, 72, § 5.
B. S. HI, §§ 18,
21.
G. S. 144, §§ 17,
18.
P. S. 185, §§ 17,
18.
Section 15. After the writ has been returned, the prisoner may 1
deny any of the facts set forth in the statement and may allege any 2
other material facts ; and the court or justice shall examine sum- 3
marily and without delay the causes of the imprisonment or restraint, 4
hear the evidence produced by any persons interested or authorized 5
to appear and dispose of the prisoner as law and justice require, 6
and may adjourn the examination from time to time. 7
Mn'intCTested Section 16. If it appears from the return of the writ or other-
in detention of wjse that the prisoner is detained on a process under which another
prisoner. \ . ......
r. s. in, § i|. person has an interest in continuing his imprisonment or restraint,
p.' s.' 185,' §19.' he shall not be discharged until notice has been given to such other
person or his attorney, if within the commonwealth or, if without
the commonwealth, if the court orders notice.
1
2
3
4
5
6
— to attorney
general if
prisoner held
for crime.
R. S. HI, § 20.
G. S. 144, § 23.
P. S. 185, § 20.
Section 17. If it appears from the return of the writ or other- 1
wise that the prisoner is imprisoned on a criminal accusation, he 2
shall not be discharged until notice has been given to the attorney 3
general or other attorney for the commonwealth. 4
Custody of
prisoner pend-
ing examina-
tion.
R. S. Ill, § 26.
G. S. 144, § 24.
P. S. 185, § 21.
Section 18. Until judgment is given, the court or justice may 1
remand the prisoner, bail him to appear from day to day, commit 2
him to the sheriif of the county, or place him under such other care 3
and custody as the circumstances of the case require. 107 Mass. 172. 4
Release of
prisoner on
bail.
1784, 72, § 5.
R. S. Ill, § 23.
G. S. 144, § 25.
P. S. 185, § 22.
Section 19. If the prisoner is detained for a cause or crime for 1
which he is bailable, he shall be admitted to bail if sufficient bail is 2
offered ; and if not, he shall be remanded with an order of the court 3
or justice expressing the amount in which he shall be held to bail 4
and the court at which he shall be required to appear ; and any 5
magistrate authorized to admit to bail may, at any time before the 6
sitting of said court, bail the prisoner pursuant to such order. 7
j
Chap. 191.] habeas corpus. 1671
1 Section 20. If the prisoner has been committed on mesne proc- Baiiof pris-
2 ess in a civil action for want of bail, and it appears that the amount °n crv»™™ion
3 for which bail was required is excessive and unreasonable, the court banwantof
4 or justice shall decide how much bail is reasonable, and shall order pL^\i2ii§§24.
5 that on giving such bail the prisoner shall be discharged. p^i'ist'fls'
1 Section 21. If a person is committed to jail on a criminal ac- —on criminal
2 cusation for want of bail, a justice of the superior court, or of a i8i2,'3o'.
• 1821 10Q
3 police, district or municipal court or a trial justice, may issue a b. s'. 87,'§3;
4 writ of habeas corpus and cause the prisoner to be brought before g!'s? 144, § 30.
5 him, when it is necessary for the purpose of admitting him to bail FGrayfio!.27'
6 pursuant to the provisions of chapter two hundred and seventeen.
1 Section 22. If the prisoner is lawfully imprisoned or restrained remanded0 be
2 and is not entitled to be admitted to bail, he shall be remanded to ah|nin $25
3 the person from whose custody he was taken or any other person p-f-JJt'ffJ-
4 or officer authorized by law to detain him.
1 Section 23. If no legal cause is shown for the imprisonment ^[tob^disL
2 or restraint, the court or justice shall discharge the prisoner. 1784, 72, § 5.
J or- K s n, § 22.
G. S. 144, § 28. P. S. 185, § 25. 10 Gray, 240. 161 Mass. 46.
1 Section 24. No person who has been discharged upon a habeas second impris-
r. i n i • • • n j. • j A ' ±a onment after
2 corpus shall be again imprisoned or restrained tor the same cause, discharge.
3 unless indicted therefor, convicted thereof, or committed for want Rff.ii'if^ti.
4 of bail by a court of record having jurisdiction of the cause ; or p.' |; ill,' | H."
5 unless, after a discharge for defect of proof or for some material 153 Mas8- 154-
6 defect in the commitment in a criminal case, he is again arrested
7 on sufficient proof and committed by legal process.
1 Section 25. The provisions of this chapter shall not affect the Limitation of
2 power of the supreme judicial court, or of a justice thereof, to issue te°.pe ° c p
3 a writ of habeas corpus at discretion, and thereupon to bail a person r. s. in; §§ 35,
4 for whatever cause he has been committed or restrained or to dis- g.' s. 144, §§ 31,
5 charge him as law and justice require, unless he has been committed |?-s 185) §§ 2gj
6 by the governor and council, the senate or the house of representa- |^Ma8S 187
7 tives, in the manner and for the causes mentioned in the constitu-
8 tion ; nor affect the power of any court or magistrate to issue a
9 writ of habeas corpus, when necessary to bring before it or him a
10 prisoner for trial in a criminal case pending before it or him ; or
11 bring in a prisoner to be examined as a witness in a suit or pro-
12 ceeding, civil or criminal, pending before it or him, if the personal
13 attendance and examination of the witness is necessary for the at-
14 tainment of justice.
1 Section 2Q. An officer who refuses or neglects for six hours to renaityOT.^
2 deliver a true copy of the warrant or process by which he detains a copy of war.
3 prisoner to any person who demands such copy and tenders the fees 1784,72, §6.
4 therefor shall forfeit two hundred dollars to such prisoner. g. s! 144', § 33!
P. S. 185, § 30.
1 Section 27. If a person to whom a writ of habeas corpus is JJ^S^Si
2 directed refuses to receive it, or neglects to obey and execute it to obey writ.
1672
HABEAS CORPUS.
[Chap. 191.
1784, 72, §§ 7, 8.
R. S. Ill, § 28.
G. S. 144, § 34.
P. S. 185, § 31.
according to the provisions of this chapter and no sufficient excuse 3
is shown therefor, the court or justice before whom the writ was 4
returnable shall forthwith by process of attachment, as for a con- 5
tempt, compel obedience to the writ, and punish the person guilty 6
of the contempt. 7
Proceedings
upon rei'usal
to obey writ.
R. S. ill, §29.
G. S. 144, § 35.
P. S. 185, § 32.
Section 28. If such attachment is issued against a sheriff or his 1
deputy, it may be directed to a special sheriff or to some other 2
person designated therein, who shall have full power to execute it ; 3
and if the sheriff or his deputy is to be committed upon such proc- 4
ess, he may be committed to the jail of any county other than his 5
own. 6
Same subject.
R. S. Ill, § 30.
G. S. 144, § 36.
P. S. 185, § 33.
Section 29. Upon the refusal or neglect of the person to whom 1
the writ of habeas corpus is directed, the court or justice may also 2
issue a precept to any officer or other person designated therein, 3
commanding him to bring the prisoner forthwith before such court 4
or justice, who shall thereupon discharge, bail or remand the prisoner 5
as if he had been brought in upon the writ of habeas corpus. 6
Penalty for
refusing to
obey writ.
1784, 72, § 7.
R. S. HI, § 31.
Section 30. Whoever refuses or neglects to receive and exe- 1
cute a writ of habeas corpus shall forfeit four hundred dollars to 2
the party aggrieved thereby. g. s.144, §37. p. s. 185, §34. 3
ete!,18of^rita Section 31. Whoever resists the service of the writ of habeas 1
is^sT' corpus, or disobeys it when served, shall be liable to attachment as 2
p' I' 185' §35' f°r a contempt of the court or justice before whom the writ is re- 3
turnable. 4
Section 32. Whoever, having in his custody or power a person
Penalty for
removing or
prfsoenerng entitled to a writ of habeas corpus, transfers him to the custody, or
g. 1. 144' § 39' places nmi under the power or control, of another person, conceals
p. s. 185,' § 36. him or changes the place of his confinement, with intent to evade
the service of such writ or to avoid the effect thereof, whether the
writ has been issued or not, shall forfeit four hundred dollars to the
party aggrieved thereby.
1
2
3
4
5
6
7
— not to bar
action for false
Section 33. The recovery of any penalty imposed by the fore- 1
eTc?rlsonment' Somo provisions of this chapter shall not bar an action at common 2
g s ill' § 40' ^aw ^or ^se imprisonment, or for a false return to the writ of 3
p. s. 185,' § 37.' habeas corpus, or for any other injury or damage sustained by the 4
aggrieved party. 5
Same subject.
1861, 91, § 3.
P. S. 185, § 39.
Section 34. The provisions of this chapter shall not authorize 1
the taking of a person by writ of habeas corpus out of the custody 2
of the United States marshal, or his deputy, who holds him by legal 3
and sufficient process issued by any court or magistrate of compe- 4
tent jurisdiction ; but the provisions of this section shall not affect 5
the authority of the supreme judicial court or of its justices, in ac- 6
cordance with the provisions of the constitution of the United 7
States and of this commonwealth, to investigate and determine 8
the validity and legal effect of any process which may be relied on 9
to defeat the writ, or any other matter properly arising. 10
Chap. 191.] personal replevin. 1673
PERSONAL REPLEVIN.
1 Section 35. Whoever is imprisoned, restrained of his liberty or Persons en-
2 held in duress, unless in the custody of a public officer of the law personal^.'0
3 by force of a lawful warrant or process, civil or criminal, issued by me™i § i.
4 competent authority, shall be entitled as of right to the writ of per- mf'Ml'ii8'
5 sonal replevin . p. s. 185, § 40. 8 Met. 102. G- s- Ui- § 42-
1 Section 36. The writ shall be issued fourteen days at least Form, issue,
2 before the return day from the superior court in the countv in which return of writ.
3 the plaintiff is confined, shall be directed to the sheriff, deputv 183"! 221, §§ 2-4.
f~* Cl \AA. RR A*i
4 sheriff or special sheriff of the county, shall be served without delay 45'. '
5 by him to whom it is delivered and shall be in the following form : — f^.8' 185, §§41~
Commonwealth of Massachusetts. .
ss. To the sheriff of our county of or his deputy, or to the
[L. s.] special sheriff thereof, Greeting.
We command you that justly and without delay you cause to be replevied
CD., who (as it is said) is taken and detained at , within our said county,
by the duress of G. H., that said CD. 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 CD. shall before his deliverance give bond to said G. H. in
such amount as you shall judge reasonable, with at least two sureties having
sufficient within your county, and with condition to appear at our said court to
prosecute his replevin against said G. H. and to have his body there ready to be
re-delivered, if thereto ordered by the court ; and to pay all such damages and
costs as shall be then and there awarded against him. Then, and not otherwise,
are you to deliver him. And if said C. D. is by you delivered at any day before
the sitting of our said court, you are to summon said G. H. by serving him with
an attested copy of this writ, that he may appear at our said court to answer to
said C D.
Witness A. M., Esq., at Boston the day of in the year
J. A. W., Clerk.
1 Section 37. The prisoner shall not be released from his impris- Bond prerequi.
2 onment or restraint by force of such writ until he gives bond as 1786,58™ 2as<
3 required by such writ. The bond shall be returned with the writ g?s'.m4, §46.
4 like a bail bond, and shall be left in the clerk's office, to be deliv- p- s- 185> § u-
5 ered to the defendant upon demand.
1 Section 38. The officer who serves the writ shall be answerable officer serving
2 for the insufficiency of the sureties on the bond, in like manner as he sureties.
3 is answerable for taking insufficient bail in a civil action, under the g3s.?44,§§47.
4 provisions of section three of chapter one hundred and sixty-nine, p- 8- 185> § 45-
5 and the bond may be approved in the same manner as a bail bond,
6 under the provisions of section four of said chapter.
1 Section 39. If it appears that the plaintiff was unlawfully im- Dmcharge of
2 prisoned or restrained, he shall be discharged, and shall recover &37.n22i,"§ 7.
3 costs and damages for the imprisonment and detention. p.'s.'i85,'§46."
1 Section 40. If the plaintiff does not maintain his action, the J»^™e°**°J
2 defendant shall have judgment for costs and for any damages he has costeand
3 sustained by reason of the replevin. i?w, $?, i s.
1837, 221, § 8. G. S. 144, § 49. P. S. 185, § 47.
1674
PERSONAL REPLEVIN.
[Chap. 191.
Judgment for
defendant for
re-delivery
of body of
plaintiff.
1786, 58, § 3.
1837, 221, § 9.
G. S.144, §50.
P. S. 185, § 48.
Section 41. If it appears that the defendant is bail for the 1
plaintiff, or is entitled to the custody of the plaintiff, as his child, 2
ward, servant, apprentice or otherwise, he shall have judgment for 3
a re-delivery of the body, to be held and disposed of according to 4
law. 5
Proceedings if
defendant
secretes, etc.,
plaintiff.
1786, 58, § 4.
1837, 221, § 10.
G. S. 144, § 51.
P. S. 185, § 49.
Section 42. If it appears from the return of the writ that the 1
defendant has secreted or conveyed away the plaintiff, so that the 2
officer cannot deliver him, the court shall on motion issue a capias 3
to take the defendant and him safely keep, so that he may be had 4
at the next sitting of the court, to traverse the return of the writ ; 5
but the defendant may give bail for his appearance as in a civil 6
case, in such amount as the officer may judge reasonable. 7
Same subject.
1786, 58, § 4.
1837, 221, § 11.
G. S. 144, § 52.
P. S. 185, § 50.
Section 43. At the sitting at which the capias is returned, the 1
defendant may deny by answer the return on the writ ; and if it 2
appears on the trial that he is not guilty of secreting or conveying 3
away the plaintiff as set forth in the return, he shall be discharged 4
and shall recover his costs. 5
Same subject.
1786, 58, § 4.
1837, 221, § 12.
G. S.144, §53.
P. S. 185, § 51.
Section 44. If the defendant does not traverse the return, or if 1
upon a traverse the issue is found against him, an alias writ of capias 2
shall be issued, and he shall thereupon be committed to jail until he 3
produces the plaintiff or proves him to be dead. If the defendant 4
suggests such death at any time after committal as aforesaid, the 5
court shall at his expense impanel a jury to try the fact, and if the 6
death is proved, the defendant shall be discharged. 7
Same subject.
1786, 58, § 4.
1837, 221, § 13.
G. S. 144, § 54.
P. S. 185, § 52.
Section 45. If, at any time after such return of secreting and 1
conveying away, the defendant produces the plaintiff in the court 2
to which the writ of personal replevin was returned or in which the 3
action is pending, the court shall deliver the plaintiff from restraint, 4
upon his giving bond agreeably to the condition of the writ, and, for 5
want of such bond, the plaintiff shall be committed to abide the judg- 6
ment on the replevin ; and in either case the action shall proceed as 7
if the plaintiff had been delivered on the writ of personal replevin. 8
Writ may be
sued out by
whom.
1786, 58, § 6.
1837, 221, § 15.
G. S. 144, § 56.
P. S. 185, § 54.
Section 46. The writ may be sued out by any person for and 1
in behalf of the plaintiff, and may be prosecuted to final judgment 2
without any express power for that purpose ; but the person so ap- 3
pearing shall, when required during the pendency of the action, 4
give security in such manner as the court orders for the payment 5
of all damages and costs awarded against the plaintiff. 6
Knlr!011 °f Section 47. If the name of the defendant or person to be deliv- 1
cfs' 2i44 1 57 ere(^ *s unknown or uncertain, he may be described in the writ of 2
p. s. 185,' § 55. personal replevin or in any process under the same as in a writ of 3
habeas corpus under the provisions of sections seven and eight. 4
Personal lib-
erty, how
secured.
1894, 536, § 1.
PERSONAL LIBERTY.
Section 48. No person shall be deprived of his liberty or held 1
in custody by any person or in any place against his will or, if he 2
is a minor, against the will of his parents, guardian or other person 3
Chap. 191.] personal liberty. 1675
4 entitled to his custody, except by due process of law ; but the pro-
5 visions of this section shall not apply to persons who have been
6 legally convicted of crime and are serving sentence therefor.
1 Section 49. Whoever has reason to believe that another person Proceedings
2 is deprived of his liberty or held in custody in violation of the pro- f0n&\meny'.
3 visions of the preceding section may file a petition under the oath 1894> 536' § 2*
4 of the petitioner in the probate court for the county in which such
5 person is believed to be detained, stating his name, age and general
6 description, where, when and under what circumstances he was de-
7 prived of his liberty, where he is believed to be detained, the name
8 of the person so depriving him of his liberty, if known, the name
9 of his supposed custodian and any other material facts and cir-
10 cumstances.
1 Section 50. Upon the filing of such petition, the court shall Notice to
ottstodiuiis etc
2 cause notice to be served upon all the supposed custodians or per- 1894, 536, § 3.
3 sons who are alleged in said petition to detain or hold said person
4 in custody, or otherwise known, ordering them to appear before
5 said court at a time and place named therein, to be examined as
6 said court shall order ; and may in its discretion cause said person
7 to be brought before it for examination as to his desire to be re-
8 leased and as to any other relevant matters.
1 Section 51. The court may examine the witnesses separately Examination
of "witnPHftPB
2 and may permit the petitioner, parent, guardian or other person en- 1894, 536, § 4."
3 titled to the custody of a person deprived of his liberty, in person
4 or by counsel, to examine publicly his alleged custodian as to the
5 condition of such person and the place where he is detained or held
6 in custody ; and may also examine separately and apart, or pub-
7 licly, such person, and may make orders for his release or permit-
8 ting correspondence or personal interviews between him and his
9 friends or relatives, and may modify its orders from time to time
10 upon notice to the parties.
1 Section 52. The probate court may request the district attor- Probate «mrt
2 ney for the district in which it is held to attend the examination the district
3 under the provisions of the four preceding sections, and to conduct conducTexam-
4 or assist in conducting the examination. If the court is unable to ism,1^,6^.
5 obtain satisfactory information, or to satisfactorily determine the
6 questions involved or to furnish proper relief, it shall notify the
7 district attorney, who may institute proceedings under the provi-
8 sions of this chapter or such other proceedings as the nature of the
9 case may require, and the provisions of said sections shall apply to
10 all proceedings under the provisions of the four preceding sections
11 so far as appropriate.
1 Section 53. The expense for the service of process and notices Payment of
2 and for summoning witnesses shall, upon the approval of the court regulated.
3 or district attorney, be paid by the county in which such person is
4 detained, if the petitioner is not able to pay them.
1676
AUDITA QUERELA, CERTIORARI.
[Chap. 192.
CHAPTEE 192.
OF AUDITA QUERELA, CERTIORARI, MANDAMUS AND QUO WARRANTO.
Sections 1-3. — Audita Querela.
Section 4 . — Certiorari.
Section 5 . — Mandamus .
Sections 6-13. — Quo Warranto.
Writ of audita
querela.
1780, 47, §§ 1, 3,
10, 11.
R. S. 112, §§ 1-4,
6.
G. S. 145, §§ 1-1.
P. S. 186, §§ 1-3,
6.
5 Met. 230.
7 Gray, 206.
9 Allen, 572.
14 Allen, 172.
100 Mass. 244.
161 Mass. 327.
AUDITA QUERELA.
Section 1. The writ of audita querela for the purpose of pre- 1
venting, setting aside or annulling any proceedings upon a judg- 2
ment or execution shall be sued out of and be returnable to the 3
court in which the judgment was rendered. It shall be sued out and 4
served like an original writ, the forms of process shall be the same 5
as those heretofore established and used in this commonwealth, the 6
proceedings so far as appropriate shall be the same as in personal 7
actions and the court, after the writ has been sued out, may issue 8
an injunction. 9
Damages, etc.
1780, 47, § 9.
R. S. 112, § 5.
G. S. 145, § 5.
P. S. 186, § 4.
Section 2. If the plaintiff prevails upon a writ sued out to set 1
aside or annul proceedings upon an execution, he shall recover the 2
damages sustained by said proceedings, and the judgment upon the 3
audita querela shall be a bar to any other action thereafter brought 4
for the same damages. 5
Siprlsonment. Section 3. If the plaintiff is imprisoned on the execution or
R8s.ii'2,§§§27-9. other process complained of, the court may release him upon his
p.'l is!' §§56,7' giyin& bond to the defendant in such sum as the court orders, with
two or more sureties who shall be approved by the court, condi-
tioned that if final judgment upon the audita querela is rendered
for the defendant, he will, within thirty days thereafter, surrender
himself to the jailer or other officer by whom he was imprisoned
to be detained in custody under the former execution or process or
shall within that time pay the amount due on the former execution
or process, with the costs. If the plaintiff so surrenders himself, he
shall be in custody under the execution or other process on which
he was imprisoned as if the writ had not been sued out.
1
2
3
4
5
6
7
8
9
10
11
12
Petition, writ,
decree and
costs.
R. S. 112, §§21-
23
1858, 109.
G. S. 145, §§ 8-
12.
1870, 119.
1873, 355.
P. S. 186, §§ 7-
12.
4 Mass. 565.
11 Mass. 462.
6 Allen, 131.
103 Mass. 120.
112 Mass. 206.
116 Mass. 193.
CERTIORARI.
Section 4. A petition for a writ of certiorari to correct errors 1
in proceedings which are not according to the course of the com- 2
mon law may be presented to a justice of the supreme judicial court 3
and he may, after notice, hear and determine the same. The writ 4
shall not be issued unless the petition therefor is presented within 5
six years next after the proceedings complained of. It may be is- 6
sued from the clerk's office in any county and shall be returnable 7
as the court orders. Upon such writ the court may quash or affirm 8
the proceedings or enter such judgment as it or the tribunal below 9
should have rendered, or make any appropriate order, judgment or 10
Chap. 192.] mandamus, quo wakranto. 1677
11 decree, and at anytime after the petition is presented may issue an 122 Mass. 290.
12 injunction. Upon the petition, and also upon the final adjudicating, 134Ma88,313-
13 costs may be imposed upon any party.
MANDAMUS.
1 Section 5. A petition for a writ of mandamus may be presented ^J^b* man"
2 to a justice of the supreme judicial court and he may, after notice, i|w> 233. §§ si-
3 hear and determine the same. Upon the return of the order of no- 1852,312, §§38-
4 tice, the person who is required to appear shall file an answer show- g.'s. 145, §§ 13-
5 ing cause why the writ should not issue, and the petitioner may mn, 355.
6 traverse any material facts alleged in the answer or may demur ^ 8- 186> §§ 13"
7 thereto. The court may require a third person who has or claims a 104 Ma8B- 498-
8 right or interest in the subject matter to appear and answer and to
9 stand as the real party. If the petitioner prevails, his damages shall
10 be assessed and judgment shall be rendered therefor, with costs, and
11 for a peremptory writ of mandamus ; otherwise, the party answering
12 shall recover costs of the petitioner. No action shall be maintained
13 for a false answer. All writs and processes may be issued from the
14 clerk's office in any county and shall be returnable as the court
15 orders.
QUO WARRANTO.
1 Section 6. A person whose private right or interest has been Application
2 injured or is put in hazard by the exercise of a franchise or privi- tionin nature
3 lege not conferred by law by a private corporation or by persons ?fnqto° war"
4 claiming to be a private corporation, whether he is a member of is^i, 233, §§ 55,
5 such corporation or not, may apply to a justice of the supreme i»52, 312, §§ 42,
6 judicial court in any county for leave to file an information in the g. s. 145, §§ 16,
7 nature of a quo warranto. i87i,3C6.
P. S. 186, §§ 17, 18. 1 Gray, 341. 103 Mass. 138. 169 Mass. 229.
9 Cu6h. 596. 5 Allen, 221. 163 Mass. 446. 170 Mass. 71.
1 Section 7. The court shall give a summary hearing and if it p]faati0^°etap'
2 appears that there is probable cause to believe that the respondent ijpi?233.^57-
3 has exercised a franchise or privilege not conferred by law, where- lm, 312, §§ 44,
4 by the private right or interest of the complainant has been injured g.' s. 145, §§ 18,
5 or is put in hazard, shall grant leave to file the information, which p.'s. 186, §§19,
6 shall be filed in the county in which the respondent has its princi- 20-
7 pal place of business. A copy of the information, with an order
8 of notice returnable, and to be served, when and as the court may
9 order, shall be served on the respondent and on the attorney
10 general.
1 Section 8. If leave is given to file such information, the court, injunction.^
2 at any time before final judgment, may issue a writ of injunction 1852! 312) § 46.
3 restraining the respondent from exercising the franchise or privilege P; s.' 186) § 21.'
4 in question until the further order of the court.
1 Section 9. If the attorney general believes that there has Attorney gen-
2 been a usurpation of a franchise or privilege not conferred by laAV, intervene.
3 he may intervene, have control of the subsequent proceedings and K fil f 49!
4 demand a judgment of fine and forfeiture, and the complainant shall £; J ; jg* | g;
5 no longer be liable for costs. The court shall enter judgment ac-
6 cording to the principles of the common law.
1678
WRIT OF ERROR.
[Chap. 193.
Judgment.
1851, 233, § 60.
1852, 312, § 47.
G. S. 145, § 22.
P. S. 186, § 23.
Section 10. If the attorney general does not intervene, and the
court finds that the respondent has exercised a franchise or privilege
not conferred by law, judgment of forfeiture shall not be entered,
but judgment shall be entered that the corporation, or the persons
claiming to be such, be perpetually excluded from the exercise of
such franchise or privilege, and that the directors, managers, or
agents, guilty of the usurpation pay the costs of the complainant.
1
2
3
4
5
6
7
Respondent's
costs.
Section 11. Tf the court finds that the respondent has not exer- 1
i85i, 233, §§ 6i, cised a franchise or privilege not conferred by law, he shall recover 2
1852, 312, § 48. COStS. G. S. 145, § 23. P. S. 186, § 24. O
Informations.
1899, 376.
163 Mass. 446.
Section 12. The supreme judicial court shall have jurisdiction
of informations in the nature of quo warranto filed by the attorney
general against a person holding or claiming the right to hold an
office or employment, the salary or compensation of which is pay-
able by the commonwealth, a county, city or town.
1
2
3
4
5
Effect of chap-
ter.
1851, 233, § 64.
1852, 312, § 50.
G. S. 145, § 24.
Section 13. The provisions of this chapter shall not affect the 1
duty of the attorney general to proceed in all cases in which he 2
might otherwise act. p. s. 186, §25. 170 Mass. 71. 3
CHAPTEE 193.
OF THE WRIT OF ERROR, OF VACATING JUDGMENT AND OF THE WRIT
OF REVIEW.
Sections 1-13. — Writs of Error.
Sections 14-20. — Motions and Petitions to Vacate Judgment.
Sections 21-37. — Writs of and Petitions for Review.
Writs of error.
K. S. 112, § 10.
G. S. 146, § 1.
P. S. 187, § 1.
WRITS OF ERROR.
Section 1. Writs of error in civil and criminal cases shall issue 1
as of course from and be returnable to and be heard and determined 2
by the supreme judicial court. 3
Proceedings.
R. S. 112, § 15.
G. S. 146, § 18.
P. S. 187, § 15.
5 Met. 334.
141 Mass. 194.
168 Mass. 297.
170 Mass. 152.
Judgments,
etc., review-
able on writ
of error.
R. S. 82, § 20.
1840, 87, § 4.
G. S. 146, § 2.
P. S. 187, § 2.
10 Met. 172.
5 Cush. 611.
Section 2. The proceedings upon writs of error, as to the 1
assignment of errors, the scire facias, pleadings, judgment and all 2
other matters not expressly provided for, shall be according to the 3
course of the common law as modified by practice and usage in 4
this commonwealth and by the general rules of the supreme judi- 5
cial court. 6
Civil Cases.
Section 3. A judgment in a civil action may be re-examined, 1
reversed or affirmed upon a writ of error in the county in which it 2
was rendered for any error in law or in fact, except as hereinafter 3
provided. If the judgment is reversed, such judgment shall be 4
rendered as the court below should have rendered. 5
10 Cush. 415.
3 Gray, 508.
9 Gray, 311.
4 Allen, 94.
152 Mass. 585.
154 Mass. 157.
155 Mass. 86.
164 Mass. 239.
Chap. 193.] writ of error. 1679
1 Section 4. A judgment in a civil action shall not be reversed Judgments
•J, ° . . not review-
2 on a writ of error for error arising- upon a plea or answer in abate- a5le on writ
3 ment or for a defect of form which might by law have been amended ; R. s. 100, § 24.
4 nor by reason of a mistake relative to the venue of the action; 115 .' m' m'
5 nor because the judgment is not in conformity with the pleadings, }lf' ,312' §§ 77'
6 if it is in conformity with the verdict ; nor for any error in law if p.' |; iff' |§33,* *"
7 the defendant appeared and a verdict was rendered, unless it oc- f |^|t' 590"
8 curred after verdict. But the provisions of this section shall not is oay, 392.
9 prevent either party from assigning an error affecting the jurisdic- ire Mass'. 4s.'
10 tion of the court.
1 Section 5 . A judgment in a civil action shall not be reversed Limitation of
C. 1 1 •• 1 • 1 • • tlme t01' Wrlt
2 upon a writ of error, unless the writ is sued out within six vears of error.
J 1805 35
3 after the entry of the judgment ; but if an action of contract or r. s. 112, §§ 19,
4 writ of scire facias has been brought on the judgment, the writ of g.'s.i46,§§5,6.
5 error may be sued out at any time within six years after the bring- p" s' 187, § 4'
6 ing of such action or writ.
1 Section 6. A writ of error shall not stay or supersede the stayofexecu-
2 execution, unless the plaintiff in error or a person in his behalf r° s. 112, §§ 11,
3 gives bond to the defendant, with one or more sureties, conditioned g.'s.i46,§§7,8.
4 that the plaintiff shall prosecute his writ to effect, and shall pay f^as^iM.5'
5 and satisfy such judgment as may be rendered thereon. The suffi-
6 ciency of the sureties and the amount of the bond shall be deter-
7 mined by a justice of the supreme judicial court or by the clerk
8 from whose office the writ issued.
1 Section 7. Such bond shall be filed in the clerk's office for the Filing of bond,
2 use of the defendant in error and no execution shall be thereafter r? s. nf, §ei3.
3 issued upon the judgment while the writ of error is pending. If p." f.' ill," | e."
4 execution has been already issued, the clerk shall make an entry
5 of the issuing of the writ of error and of the filing of the bond,
6 and issue a certificate thereof; and after notice of such entry to the
7 officer holding the execution, all further proceedings thereon shall
8 be stayed.
1 Section 8. The prevailing party shall be entitled to costs and, ^^Laen8d
2 if the judgment is affirmed, the court shall award to the defendant §". i". 146 i lo".
3 in error damages for his delay at a rate of not less than six nor P.s.i87,'§7.
it ±. j x. iv 4 Mass. 436.
4 more than twelve per cent a year on the amount recovered by tne 6 Mass. 4.
5 former judgment ; and may award him double costs.
Criminal Cases.
1 Section 9. A judgment in a criminal case may be re-examined etc^vfew-
2 and reversed or affirmed upon a writ of error for any error in law ^cases' on
3 Or in fact. 1832,130, §5. R. S.82, §31. 1840, 87, §4. 1842,54. writs of error.
G. S. 146, §11. P. S. 187, §8. 3 Gush. 212. 158 Mass. 164.
1 Section 10. Writs of error in such cases may be brought at venue, etc., of
2 any time after judgment and may be entered in any county. After M4| m^§§A*>
3 the writ has been returned, the court shall examine the case with- i'^wt^s 9. '
4 out delay ; but may adjourn the examination from time to time.
1680
VACATING JUDGMENT.
[Chap. 193.
mra^taT^ase Section 11. A writ of error upon a judgment for a capital 1
b. s. 112, §§ 16-^ crime shall not issue, unless allowed by a justice of the supreme 2
g.'s. 146, §§13- judicial court after notice to the attorney general or other attorney 3
p.' s. 187, §§io- for the commonwealth; but a writ of error upon a judgment in 4
n' any other criminal case shall issue as of course, but it shall not stay 5
or delay the execution of the judgment or sentence, unless by an 6
express order of a justice of the supreme judicial court, who may 7
make a further order for the custody of the plaintiff in error or 8
for releasing him on bail. 9
Proceedings
upon reversal
of judgment.
1842, 54, § 3.
1851, 87.
G. S. 146, §§ 16,
17.
P. S. 187, §§ 13,
14.
Section 12. If a final judgment is reversed by reason of error 1
in the sentence, such judgment shall be rendered in the case as the 2
court below should have rendered, or it may be remanded for that 3
purpose to said court. If the plaintiff in error is discharged, the 4
costs shall be paid by the county in which he was convicted. 5
2 Met. 419. 167 Mass. 11. 172 Mass. 264. 177 U. S. 155.
Validity of
conviction not
affected by
age.
1892, 266.
146 Mass. 489.
Section 13. Upon a writ of error or other proceeding to reverse
or avoid a conviction of a crime or to obtain the discharge of a per-
son who is held in custody thereunder, the fact that he was under
the age of seventeen years at the time of the conviction shall not
affect the validity of the conviction nor entitle the person to be dis-
charged.
1
2
3
4
5
6
Vacating judg.
ment.
1875, 33.
P. S. 187, § 17.
1893, 396, § 33.
1895, 234, § 1.
118 Mass. 61.
145 Mass. 18.
154 Mass. 157.
MOTIONS AND PETITIONS TO VACATE JUDGMENT.
Section 14. If final judgment has been rendered in a civil 1
action in the supreme judicial court, the superior court or a police, 2
district or municipal court, the court in which the judgment was 3
entered may,, within three months thereafter, if the execution has 4
not been satisfied in whole or in part, vacate such judgment, upon 5
the motion in writing of the prevailing party, and dispose of the 6
case as if such judgment had not been entered. Such motion shall 7
be filed in the case and, except by special order of the court, no 8
bond shall be required. 9
— on petition
of either party.
1875, 33.
P. S. 187, §§ 17,
18.
1893, 396, § 33.
1895, 234, § 2.
141 Mass. 20.
151 Mass. 321.
155 Mass. 581.
158 Mass. 381.
165 Mass. 238.
175 Mass. 558.
Section 15. If a final judgment has been entered in any of the 1
courts named in the preceding section and the execution has not 2
been satisfied in whole or in part, either party, or any one or more 3
of several plaintiffs or defendants, within one year thereafter may 4
file in the court in which such judgment was rendered a petition to 5
vacate such judgment. In the supreme judicial court or in the 6
superior court, the petition shall be filed in the county in which the 7
judgment was entered. 8
Order of notice
and super-
sedeas.
1875, 33.
P. S. 187, § 18.
1893, 396, § 33.
1895, 234, § 3.
168 Mass. 445.
Section 16. The court may thereupon order notice thereof re- 1
turnable when, and to be served as, the court orders, and may issue 2
a stay or supersedeas of an execution issued on such judgment and 3
an order for a return thereof with a certificate of the proceedings 4
thereon. Upon the hearing of such petition, the court may vacate 5
such judgment, and dispose of the case as if the judgment had not 6
been entered. 7
Bond
1875, 33.
Section 17. The petitioner shall, except as hereinafter pro- 1
p. s". 187, §§ 19, vided, before judgment is vacated under such petition and before 2
39
Chap. 193.] writ of review. 1681
3 execution is stayed or superseded, give bond to the adverse party isss, 405, §3.
4 with security approved by the court, conditioned, if the obligor is {||; 1§|; | f;
5 the prevailing party, that if final judgment shall be thereafter ren- 1^ Mats! 301!
6 dered for the obligee, the obligor shall pay his costs and, if the
7 obligee is the prevailing party, that if the judgment is not vacated
8 on said petition, the obligor shall satisfy said judgment and all
9 costs accrued on any execution issued thereunder, and that if it is
10 so vacated, he shall satisfy the execution that shall issue in favor
11 of the obligee on any judgment thereafter rendered in said action,
12 or if a special judgment shall be entered in favor of the obligee in
13 accordance with the provisions of section twenty-six of chapter one
14 hundred and seventy-seven, he will pay to the plaintiff within
15 thirty days after the entry of such judgment the amount for which
16 said judgment shall be entered.
1 Section 18. If the petitioner had no actual knowledge before Judgment
2 the judgment was entered that the action was pending against him out security^'
3 and there was no attachment of property in the original action, the m^-ug.
4 judgment may be vacated and the execution stayed or superseded 1895» 2Si>^5-
5 without security ; but if there was such attachment, the amount of
6 the bond shall be fixed at the actual value of the property attached,
7 as agreed upon by the parties or as determined by the court upon
8 a summary hearing after notice to the adverse party.
1 Section 19. The court may impose costs or terms upon either Terms on
2 party to a motion or petition to vacate a judgment. 1875, 33Der'
P. S. 187, § 19. 1895, 234, § 6.
1 Section 20. The liability upon an attachment made, bond fttlchmfnt?f
2 given or bail taken in the original action shall not continue after adjudgment
3 the original judgment has been vacated, except that if a judgment is ™?»ted.
4 vacated under the provisions of section fourteen within thirty days p.'s'. is'?, §20.
5 after the entry thereof, such liability shall, if a subsequent judg- iei' Mass. 301.
6 ment is rendered, continue during such time thereafter as it would
7 have continued upon the original judgment had it not been vacated.
WRITS OF AND PETITIONS FOR REVIEW.
1 Section 21. If judgment is rendered, as provided in chapter writ of review
2 one hundred and seventy, upon the default of a defendant upon i758-9™l5, § s.
3 whom service has not been made by reason of his being out of the 1817) It
4 commonwealth or by reason of his residence being unknown, he R2s\5y32', §4;
5 may, within one year after the judgment, as of right and without l?;!.1^ §20.
6 any petition therefor, take a writ of review out of the court in Fj.m,'|n.
7 Which the judgment Was rendered. 104 Mass. 367. 165 Mass. 238. 4Al'len,94.
1 Section 22. After the entry of final judgment in a civil action -upon peti-
2 in the supreme judicial court, the superior court or a police, dis- c.L.152, §1;
3 trict or municipal court, the court in which the judgment was en- fSgi-afc, §1.
4 tered may, upon petition, grant a writ of review. After the entry i||^; ||; | J;
5 of final judgment by a trial justice, the superior court may, upon JgSMlU-
6 petition, grant a writ of review. If judgment was rendered in mi', vf, §1 2, z.
7 the absence of the petitioner and without his knowledge, the peti- tp|j (n!
8 tion shall be filed within one year after the petitioner first had 99^ §§ lrfio, 'as-
1682
WRIT OF REVIEW.
[Chap. 193.
1S52, 126.
G. S. 146, §§ 21,
24.
P. S. 187, §§ 22,
25.
1893, 396, § 33.
1895, 234, § 9.
14 Mass. 360.
notice of the judgment ; otherwise, within one year after the judg- 9
ment was rendered. In the supreme judicial court or in the 10
superior court, the petition shall be filed in the county in which 11
the judgment was entered. 12
19 Pick. 60.
1 Met. 288.
3 Gray, 136, 415.
10 Gray, 92.
8 Allen, 23, 568.
104 Mass. 367.
Ill Mass. 281.
114 Mass. 54.
116 Mass. 313.
117 Mass. 281.
126 Mass. 523.
135 Mass. 122.
147 Mass. 240.
151 Mass. 17.
155 Mass. 581.
157 Mass. 306.
164 Mass. 239.
165 Mass. 234, 238.
169 Mass. 157.
170 Mass. 360.
Order of
notice and
supersedeas.
1732-3, 13, § 1.
1751-2, 13, § 1.
R. S. 99, § 21.
G. S. 146, § 22.
1875, 33.
Section 23. After the filing of the petition for a writ of review, 1
the court may order notice thereof returnable when, and to be 2
served as, the court orders, and may issue a stay or supersedeas of 3
an execution on such judgment and an order for the return thereof 4
to the court with a certificate of the proceedings thereon. 5
P. S. 187, §§ 18, 23.
1895, 234, § 10.
Bond.
1732-3, 13, § 1.
1751-2, 13, § 1.
1786, 66, §§ 1,
5,6.
1817, 85.
E. S. 99, §§ 12,
22, 23.
G. S. 146, § 38.
1875,33; 68, §4.
P. S. 187, §§ 19,
39.
1888, 405, § 3.
1895, 234, § 11.
10 Allen, 346.
14 Allen, 66.
108 Mass. 356.
Ill Mass. 279.
118 Mass. 470.
Section 24. The petitioner for a writ of review shall, except 1
as hereinafter provided, before execution is stayed or superseded, 2
give bond to the adverse party with security approved by the 3
court, conditioned that if a writ of review is not granted the 4
obligor shall satisfy the judgment originally entered and all costs 5
accrued on any execution issued thereon, and that if a writ of re- 6
view is granted, he will forthwith prosecute a review to final judg- 7
ment and will satisfy such execution as may be issued against him 8
on the review, or if a special judgment shall be entered against him 9
in accordance with the provisions of section twenty-six of chapter 10
one hundred and seventy-seven, he will pay to the plaintiff within 11
thirty days after the entry of such judgment the amount for which 12
said judgment shall be entered. 13
Supersedeas
without secu-
rity, when.
1895, 234, § 12.
Section 25. If the petitioner had no actual knowledge before 1
the judgment was entered that the action was pending against him 2
and there was no attachment of property in the original action, the 3
execution may be stayed or superseded without security ; but if 4
there was such attachment, the amount of the bond shall be fixed 5
at the actual value of the property attached, as agreed upon by the 6
parties or as determined by the court upon a summary hearing after 7
notice to the adverse party. Except as provided in this and the 8
preceding section, the execution shall not be stayed or superseded 9
by the writ of review. 10
Terms.
1788, 11, § 5.
R. S. 99, § 24.
Section 26. The court may grant a writ of review upon terms
and if the review is not granted may impose costs.
G. S. 146, § 22.
1875, 33.
P. S. 187, § 19.
1895, 234, § 13.
1
2
™, how'and Section 27. The writ of review shall be sued out within three
i7oiiS6e§diout* montns after the order granting the petition ; otherwise, such order
nil' li'ii^'i' an(^ any s^a^ or suPersedeas previously ordered in the proceedings
1822', 6i'. ' shall be thereby vacated and the original iudgment shall be in full
R. S. 99, § 2. /. J a j &
force. P. S. 187, §26.
G. S. 146, § 25.
1895, 234, § 14.
148 Mass. 562.
163 Mass. 528.
1
2
3
4
5
R.fs.r99,°§f3. Section 28. It shall not be necessary to recite at length the 1
p !' m' 1 27* declaration ana other proceedings in the original action , but the form 2
1895,' 234,' § is; of writ of review shall be substantially as follows : — 3
Chap. 193.] writ or review. 1683
Summon A to answer to B in the review of an action of contract, (tort or re-
plevin) brought by said A against said B, in which action said A by the considera-
tion of the justices of our court, held at C within and for our said county of
M on the day of , recovered judgment against said B for the
sum of dollars, debt (or damages), dollars costs, which judgment
said B says is wrong and erroneous.
4 Or the former judgment may be briefly described in any manner
5 provided by the rules of the courts.
1 Section 29. If the original judgment was entered by a trial m°nt etcjU(if*
2 justice, the plaintiff in review shall file in the superior court certi- ^ justice to
3 tied copies of the writ, judgment and all proceedings in the former 1701-2,6, §1.
4 action, and the originals or copies of all depositions and other 1817', 85'.
5 papers used and filed therein. p. s. i87, §28. 1895, 234, § 16. §! s! i46,§§27.
1 Section 30. The writ shall be served in the same manner as an service of writ
2 original writ, except that if the defendant is not an inhabitant of i7ll766^§'§§5f7.
3 the commonwealth, or is not found therein, it may be served on ™7g5^ \ |
4 the person who appeared as his attorney in the original action, <j.|. i^>.||8-
5 and the court may continue the case to enable the absent party to i895,'234,'§i7."
6 appear and answer.
1 Section 31. If the writ is sued out by the original plaintiff, he Attachment on
2 may cause the defendant's goods and estate to be attached as they RfL'99, §§6,12.
3 might have been in the original action, and for this purpose the p! I; ill; | fo."
4 writ of review may be so framed as to require an attachment in the ^lVass. 301!
5 common form, and that the defendant be summoned. An attach-
6 ment made, bond given or bail taken in the original suit shall not
7 be held to satisfy the judgment on the review.
1 Section 32. If an issue of fact was joined in the original action, Procedure
2 the case shall be tried on the review upon the same issue, unless the of ?ssnem '
3 court allows such amendments of the original pleadings by either <?; |; 1^/30.
4 party as might have been allowed in the original action. p. s. ist, §31.
1895, 234, § 19. 3 Cush. 381. 3 Gray, 415. 117 Mass. 291.
1 Section 33. If judgment in the original action was rendered ^iu^n0nfon-
2 without a joinder of issue, the parties shall plead or answer upon ^u°2,6)§1.
3 the review in like manner as they might have done in the original nse, 66, '§ 2.
4 action, and the cause shall be tried upon any issue of fact or law r. s'. 99, §§ 8, 9.
_ . . -, , , , . G. S. 146, § 31.
0 joined upon such pleadings or answer. p. s.m, §32.
1895, 234, § 20. 8 Cush. 299.
1 Section 34. Judgment shall be given upon the review as the Judgment
,, ./vt ° , -, i,i • t • ta* At, upon review.
2 merits of the case upon the law and the evidence require. It tne 1720-1,11.
3 amount recovered by the plaintiff in the original action is reduced $f|; 8 |S4?' 8"
4 on the review, the original defendant shall have judgment and g^J §§ 10>
5 execution for the difference, with costs; or, if the former judg- Jf - |4U6> §§ 32f
6 ment has not been satisfied, one judgment may be set off against ^;8#187>§§88t
7 the other, and an execution issued for the balance. If the original 35^ 234>'§§21>'
8 plaintiff recovers a greater amount than was awarded to him in 28. ' '
9 the original action, he shall have iudgment and execution for the uMet.m
in », ™ 5 Allen, 582.
10 eXCeSS. 117 Mass. 281. 133 Maes. 587.
1684
REFERENCE TO ARBITRATION.
[Chap. 194.
Costs.
1786, 66, § 4.
1788, 11, § 5.
Procedure in
replevin, etc.
R. S. 99, § 15.
G. S. 146, § 35.
P. S. 187, § 36.
1895, 234, § 24.
One of several
defendants
may review.
1786, 66, §§ 3-6.
1817, 85.
R. S. 99, § 16.
G. S. 146, § 36.
P. S. 187, § 37.
1895, 234, § 25.
Section
35. The prevailing party shall recover costs unless the
court in granting the review otherwise orders.
1817, 85.
R. S. 99, § 11.
G. S. 146, § 33.
P. S. 187, § 34.
1895, 234, § 22.
4 Mass. 614.
11 Met. 266.
133 Mass. 587.
Section 36. In actions of replevin and in actions in which a
set-off is filed, the original defendant shall be considered, relative
to everything contained in this chapter, as a plaintiff in other
actions, so far as respects any damages awarded to him either in
the original action or upon the review.
Section 37. If judgment was recovered against several defend-
ants in the original action, one or more of them may review in like
manner as if he or they had been the only defendants, and if the
amount recovered in the original action is increased or reduced, the
court shall make such order as will carry into effect the two judg-
ments according to the rights of all parties.
1
2
1
2
3
4
5
1
2
4
5
6
Submission of
controversies
to arbitration.
R. S. 114, § 1.
G. S. 147, § 1.
— form of
agreement of.
1786, 21, § 1.
R. S. 114, § 2.
G. S. 147, § 2.
1863, 157, § 2.
P. S. 188, § 2.
1899, 178, § 5.
20 Pick. 480.
6 Cush. 108.
10 Cush. 114.
8 Gray, 425.
4 Allen, 17.
100 Mass. 319.
101 Mass. 359.
113 Mass. 67.
152 Mass. 416.
CHAPTEK 194.
OF REFERENCE TO ARBITRATION.
Section 1. Controversies which might be the subject of a per-
sonal action at law or of a suit in equity may be submitted to the
decision of one or more arbitrators, as provided in this chapter.
P. S. 188, § 1.
8 Mass. 1.
2 Gray, 407.
13 Gray, 298.
113 Mass. 67.
119 Mass. 490.
140 Mass. 508.
152 Mass. 416.
1
2
3
Section 2. The parties shall appear in person or by their law- 1
ful agents or attorneys before a justice of the peace or special com- 2
missioner and shall there sign and acknowledge an agreement in 3
substance as follows : — 4
Know all men that , of , and , of , hereby agree to
submit the demand, a statement whereof is hereto annexed, (and all other
demands between them, as the case may be,) to the determination of
and , the award of whom, or of a majority of whom, being made
and reported within one year from this day to the superior court for the county
of , the judgment thereon shall be final ; and if either of the parties neg-
lects to appear before the arbitrators, after due notice given to him of the time
and place appointed for hearing the parties, the arbitrators may proceed in his
absence. Dated this day of in the year
The justice or special commissioner, either of whom may be one 5
of the arbitrators, shall annex to the agreement a certificate, in 6*
substance as follows : — 7
ss. . Then the above-named and personally appeared,
(or the above-named personally, and said by , 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 or Special
Commissioner.
fpeclflcde-0* Section 3. If a specific demand is submitted to the exclusion 1
mands. 0f others, it shall be set forth in the statement annexed to the 2
Chap. 194.] reference to arbitration. 1685
3 agreement ; otherwise, it shall not be necessary to annex any state- r. s. in, §3.
4 ment of a demand, and the submission may be of all demands be- p.' |.' m, 1 1
5 tween the parties or of all demands which either has against the
6 other. The submission may be varied in this respect in any other
7 manner, according to the agreement of the parties.
1 Section 4. An agreement to submit all demands shall include Effectof agree-
2 only such as might be the subject of a personal action at law or of a anedemVnd8mit
3 suit in equity. g. s. ut, §3. p. s. iss, §4. r.s. iu, §4.
1 Section 5. The time within which the award shall be made and fo™ma<kinime
2 reported may be varied according to the agreement of the parties, Rwgrc}i4 8fi
3 but no award made after the time fixed by the agreement shall g'- s. ui', § 5.
4 have any legal effect, unless made upon a recommitment by the i3Gray,'302.'
5 court to which it is reported. 144 Mass. 165. 4 Alien, 17.
1 Section 6. Neither party may revoke the submission without Revocation of
r»i n i • /• • i !• submission.
2 the consent 01 the other ; and 11 either neglects to appear after due Hearing ex
3 notice, the arbitrators may hear and determine the cause ex parte. &. sfiu, §5.
6. S. 147, § 6. P. S. 188, § 6.
1 Section 7. All the arbitrators shall meet and hear the parties, Hearing by an
2 but an award by a majority of them shall be valid, unless the con- but award by s'
3 currence of all is expressly required in the submission. R.as?rii4,'§ 11.
G. S. 147, § 7. P. S. 188, § 7. 113 Mass. 67. 148 Mass. 367.
1 Section 8. The award shall be delivered by one of the arbi- returad^nto
2 trators to the court designated in the agreement, or shall be enclosed ^^ §3
3 and sealed by the arbitrators and transmitted to the court, and shall R- 1'- iw, |V.
4 remain sealed until opened by the clerk.
P. S. 188, § 8. 119 Mass. 489. 158 Mass. 69.
1 Section 9. The award mav be returned at any time limited in Proceedings
UDOI1 SUCD.
2 the submission, and the parties shall attend without any express return.
3 notice for that purpose ; but the court may require actual notice to g! s! 147; § 9. '
4 be given to either party before it acts upon the award. 153 Mass. 36i. sMet^w?9'
1 Section 10. The court shall have cognizance of the award in the Powers of
2 same manner, and may proceed thereon, as if it had been made by to award.
3 referees appointed by a rule of court, and may accept, reject or R8s'.ii4,§§3§'s,9.
4 recommit it to the same arbitrators for a rehearing. When accepted g; §; }g | J°-
5 and confirmed by the court, judgment shall be rendered thereon as J1^n3'^9>
6 upon a like award by referees. 4 Alien, 20.
6 Allen, 333. 109 Mass. 306. 123 Mass. 129, 135 Mass. 26.
106 Mass. 365. 121 Mass. 150. 190, 552, 587. 151 Mass. 279.
1 Section 11. If there is no provision in the submission relative Payment of
2 to costs and expenses, the arbitrators may make an award relative penses.'etc.
_§_ 7 « X? C 11/4 C 1()
3 thereto, including compensation for their own services; but the G*. s'. 147', § n'.
4 court may reduce the charge for compensation. 153 Mass. 36i. 135 Mass. U1'
1 Section 12. An appeal founded on matter of law apparent upon Appeal and
2 the record shall be allowed from any order or judgment of the su- "9lV"°'
3 perior court on an award made under the provisions of this chapter ; g; s; $; | H;
1686
IMPROVEMENT OF MEADOWS AND SWAMPS. [CHAP. 195.
P. S. 188, § 12.
106 Mass. 365.
129 Mass. 158.
or a party aggrieved may bring a writ of error for any error in law 4
or fact as in other cases. The supreme judicial court shall thereupon 5
render such judgment as the court below ought to have rendered. 6
Pees of justice,
1786, 21, § 2.
R. S. 114, § 14.
p'i'lts'lif' cents, and the fees in court shall be the same as for like services
i899,'i78,'§6. ' relative to an award made under a rule of court. 4
Section 13. The fees of the justice or special commissioner for 1
the agreement of submission and acknowledgment shall be forty 2
3
CHAPTER 195.
OF THE IMPROVEMENT OF MEADOWS AND SWAMPS.
Sections 1-16. — Improvement of Low Land.
Sections 17-25. — Construction of Roads, etc., to Swamps, etc.
Improvement
of low land.
1702, 11, § 1.
1795, 62, § 1.
R. S. 115, § 1.
G. S. 148, § 1.
P. S. 189, § 1.
16 Gray, 428.
148 Mass. 1.
154 Mass. 582.
Petition.
1702, 11, § 1.
1795, 62, § 1.
R. S. 115, § 2.
G. S. 148, § 2.
1869, 387.
1876, 228.
P. S. 189, § 2.
11 Met. 321.
119 Mass. 583.
IMPROVEMENT OF LOW LAND.
Section 1. If it is necessary or useful to drain or flow a 1
meadow, swamp, marsh, beach or other low land which is held by 2
several proprietors or to remove obstructions in rivers or streams 3
leading therefrom, such improvements may be made as hereinafter 4
provided. 5
Section 2. Such proprietors, or a majority in interest, either 1
in value or area, may file a petition in the superior court for the 2
county in which the land or any part thereof lies, setting forth the 3
proposed improvements and the reasons therefor. The court shall 4
thereupon cause notice of the petition to be given in such manner 5
as it may order to any proprietors who have not joined in the 6
petition. In the county of Dukes County the probate court shall 7
have concurrent jurisdiction of such petition and parties shall have 8
therein the same rights of appeal and exception as in the superior 9
court. 10
Commission-
ers, appoint-
ment of.
1702, 11, § 1.
1795, 62, § 1.
R.S. 115, §§3, 4.
G. S. 148, § 3.
P. S. 189, § 3.
Section 3. If, upon a hearing, the court finds that the improve- 1
ments proposed will be for the general advantage of the propri- 2
etors, it may appoint three, five or seven commissioners, who shall be 3
sworn to the faithful performance of their duties, shall view the 4
land, notify parties concerned, hear them as to the best manner of 5
making the improvements and prescribe the measures to be adopted 6
for such purpose. 7
— duties and
powers of.
1795, 62, § 1.
R. S. 115, § 5.
G. S. 148, § 4.
P. S. 189, §4.
22 Pick. 422.
Section 4. The commissioners shall, according to the peti- 1
tion and the order of the court, cause dams or dikes to be erected 2
on the land at such places and in such manner as they shall direct, 3
may order the land to be flowed thereby for such periods of each 4
year as they shall consider most beneficial and may cause ditches 5
to be opened on the land and obstructions in any rivers or streams 6
leading therefrom to be removed. The}^ shall meet from time to 7
time as may be necessary to cause the work to be completed ac- 8
cording to their directions. 9
Chap. 195.] improvement of meadows and swamps. 1687
1 Section 5. They may employ suitable persons to erect the Commission.
2 dams or dikes or to perform the other work under their direction, powCTStof.and
. 3 for such reasonable wages as they may agree upon, unless the pro- r.9!. u'5?§6.
4 prietors themselves do the same in such time and manner as the p."|."i||;||;
5 commissioners shall order.
1 Section 6. They shall apportion and assess the whole charge Assessment of
2 and expense of the improvements and of executing the commission i7§2?ii,e§'i.
3 upon the proprietors of the land, according to the quantity, quality Rfl'.n'sf §V.
4 and situation of each person's part thereof and to the benefit that he £• f • \*&> | *•
5 will derive from the improvements.
1 Section 7. They may appoint a collector of the assessments, collection of
2 and shall give him a warrant to collect, pay over and account for 1702, 11, § 1. '
3 the same to such person as they may appoint. The collector shall r.s. 115, §'s.
4 have the same power and proceed in like manner in collecting the p." I." in!,' 1 7 *
5 assessments as is provided for the collection of town taxes. 4Grayfi°5o.
1 Section 8. If the collector neglects, for twenty days after being same subject.
2 so required by the commissioners, to account for and pay over the r.s. n'5; § 9.
3 money he has collected, he shall be liable to the commissioners in p." 1; ill; 1 1;
4 an action of contract for the whole amount committed to him for
5 collection ; and the money so recovered, after deducting the expenses
6 of recovery, shall be applied and accounted for by the commission-
7 ers as if it had been collected and paid over by the collector pursuant
8 to his warrant.
1 Section 9. The compensation of the commissioners shall be compensation.
2 determined by the court, and that of the collector shall be agreed 1795! g-2, § 3!
3 upon between him and the commissioners.
R. S. 115, § 10. G. S. 148, § 9. P. S. 189, § 9.
1 Section 10. The commissioners shall, as soon as may be after commission-
2 the completion of the business, make a return to the court of their 1795,62, §3'.
3 doings under the commission, including an account of all money g. s". ul, i 10.
4 assessed and collected by their order and of the disbursement fpfck8io7§.10'
5 thereof.
1 Section 11. If the commissioners find that a part of the land is Apportion.
2 held by a tenant for life or years, they shall apportion and assess tenant and re-
3 the expense upon the tenant and the remainderman or reversioner, ™95"62,r§ \an"
4 unless the parties agree on an apportionment ; and every such g; |; JjJ | ^;
5 tenant, remainderman and reversioner shall be considered a pro- p.s. 189, §11.
6 prietor.
1 Section 12. A mortgagor or mortgagee in possession shall ^r^ec*
2 be considered a proprietor, and all amounts paid by a mortgagee ™- «${•,,_
3 by order of the commissioners shall be allowed to him under the g'. s'. us, § 12'.
4 provisions of section twenty of chapter one hundred and eignty-
5 seven.
1 Section 13. If the commissioners find it necessary or expedient ^™^eon*r8
2 to reduce or raise the water to obtain a view of the land or for the open dams, etc.
1688
IMPROVEMENT OF MEADOWS AND SWAMPS. [CHAP. 195.
1745-6, 16, §§1,4.
1795, 62, § 5.
E. S. 115, § 14.
G. S. 148, § 13.
P. S. 189, § 13.
more convenient or expeditious removal of obstructions, they may 3
open the flood gates of any mill, or make other needful passages 4
through or around the dam thereof, or erect a temporary dam on 5 ■
the land of a person who is not a party to the proceedings, and may 6
maintain such dam or passages for the water as long as may be nee- 7
essary for such purposes. 8
1745^6 gi6S,'§ 2. Section 14. Damages so caused shall be determined by the 1
™i> 62. §5. commissioners, unless agreed on between them and the parties, and 2
R. S. 115, § 15. ' o i
g. s. 148, § 14. shall be paid by the commissioners out of the money to be assessed 3
and collected by them as before provided. 4
Notice before
erecting or
opening dam,
R. S. 115, § 18.
G. S. 148, § 17.
P. S. 189, § 15.
1885, 384, § 5.
Section 15. The commissioners, before proceeding to open flood 1
gates, or to make other passages for water through or around a dam 2
or to erect a dam on the land of a person who is not a party to the 3
proceedings, shall give him reasonable notice in writing of their in- 4
tention . If such person appeals from their decision and gives notice 5
in writing of his appeal to the commissioners or to any of them, 6
they shall suspend all proceedings upon his land until the appeal is 7
determined, if it is entered at the return day next after the expira- 8
tion of seven days from the time of claiming the same. 9
m£,eii,§i. Section 16. If a party to the proceedings or a person otherwise 1
i795"6216§6' 4' mterested therein or affected thereby is aggrieved by any doings of 2
r. s. ii5, §§' 16, the commissioners, he may enter an appeal in the court in which the 3
g.' s. 148, §§ 15, petition was filed at the return day next following that at which 4
p.'s. 189, §§ 16, the return of the commissioners was filed ; and the court may affirm, 5
reverse or alter any adjudication or order of the commissioners, and 6
may make any appropriate order. Questions of fact arising upon 7
the appeal shall, upon motion of either party, be tried by a jury in 8
such manner as the court orders. 9
1885, 384, § 5.
11 Met. 321.
Roads, etc., to
swamps, etc.
1855, 104, § 1.
G. S. 148, § 19.
P. S. 189, § 19.
3 Allen, 7.
CONSTRUCTION OF ROADS, ETC., TO SWAMPS, ETC.
Section 17. A city, town, person or corporation owning low 1
land, ponds, swamps, quarries, mines or mineral deposits, which, 2
on account of adjacent land belonging to other persons or occupied 3
as a highway, cannot be approached, worked, drained or used in 4
the ordinary manner without crossing such land or highway, may 5
construct roads, drains, ditches, tunnels and railways thereto as 6
hereinafter provided. 7
Petition and
bond.
1855, 104, § 2.
G. S. 148, § 20.
P. S. 189, § 20.
Notice.
1855, 104, § 3.
G. S. 148, § 21.
P. S. 189, § 21.
Section 18. The party which desires to make such improvements 1
shall file a petition therefor with the county commissioners for the 2
county in which the land lies, setting forth the names of the per- 3
sons interested, if known to the petitioner, and also in detail the 4
nature of the proposed improvement and the situation of the ad- 5
joining land. Such petition shall be accompanied by a bond satis- 6
factory to said commissioners for the payment of the expenses to be 7
incurred in the prosecution of the petition. 8
Section 19. The commissioners, at their first meeting after the 1
filing of the petition and bond, shall order notice of the time and 2
Chap. 195.] improvement of meadows and swamps. 1689
3 place of meeting to consider the petition to be published once in
4 each of three successive weeks in a newspaper, if any, published
5 in the county ; otherwise, in a newspaper published in an adjacent
6 county. They shall also give notice thereof to the clerk of each
7 city or town in which the land lies.
1 Section 20. If, after examination, inspection and a hearing, Powers of
2 they find that the improvements prayed for are necessary, they commission.
3 shall so lay out and establish the same as to do as little injury as Gfs'.ug V22.
4 practicable, assess the damages sustained by the proprietor of the p-s. 189, §22.
5 adjacent land and apportion them among all parties to be benefited
6 according to the benefits each' will receive. Such award shall be
7 conclusive upon the parties charged with such payment unless an
8 appeal is taken within one year.
1 Section 21. A party who is aggrieved by the award may appeal ^p^ §6
2 therefrom, and thereupon like proceedings shall be had as are pro- p" |'" i|o' I ^
3 vided in chapter forty-eight.
1 Section 22. If it is necessary to repair an improvement so Repairs of
2 made, a majority of the persons benefited by it may cause such ls^fioi.T"*8
3 repairs to be made, and may compel contribution on the basis of p* f." ill,' | H."
4 the award from each person benefited.
1 Section 23. If the land mentioned in section seventeen lies Petition to
2 entirely in one city or town, the petition may be made to the Teiectmen.'' °r
3 mayor and aldermen or selectmen thereof, who shall proceed g5s'.w28,§|§258,'
4 thereon in all respects as above provided for county commissioners, p.'s. i89,§§25,
5 except that they need not give notice to their city or town. Such 26-
6 petition shall be filed in the office of the city or town clerk before
7 proceedings are had thereon ; and the petition with the order or
8 award thereon shall be recorded in said office within two months
9 after the order or award has been made.
1 Section 24. The mayor and aldermen or selectmen shall each f8|^-292> §§ 3 ^
2 receive two dollars for each day's services upon such petition and <j. |. lg, 1 27.
3 the city or town clerk shall receive for recording a petition, order or
4 award thereon the same fees as are provided for registers of deeds
5 by section twenty-nine of chapter two hundred and four.
1 Section 25. A party aggrieved by such order or award, or by complaint to
2 the refusal of the mayor and aldermen or selectmen to make such missioned."
3 order or award, may, within one year thereafter, complain to the g?s. U8,§28.
4 county commissioners, who shall thereupon proceed in all respects p- s- 189> § 28-
5 as though the petition had been originally filed with them.
1690
MILLS, DAMS AND RESERVOIRS.
[Chap. 196.
CHAPTEK 196.
OF MILLS, DAMS AND RESERVOIRS.
Sections 1-38.-
Sections 39-41.-
Sections 42, 43.
Sections 44-50.-
Sections 51-62.-
Sections 63, 64.
-Mills and Mill-Dams.
- Cranberry Land and Ice Ponds.
-Dams of Reservoir Corporations.
-Safety of Reservoirs and Dams.
Repairing and Rebuilding Mills and Mill-Dams.
-Millers.
MILLS AND MILL-DAMS.
Erection of
mill and dam.
1795, 74, § 1.
R. S. 116, § 1.
G. S. 149, § 1.
P. S. 190, § 1.
Section 1. A person may, as hereinafter provided, erect and 1
maintain a water mill and a dam to raise water for working it, 2
upon and across an v stream not navigable. scusn. 113. 3
12 Allen, 89. Ill Mass. 464. 154 Mass. 581. 162 Mass. 422. 113 U. S. 9.
Dam not to
injure existing
mill, etc.
K. S. 116, § 2.
1841, 18.
G. S. 149, § 2.
P. S. 190, § 2.
17 Mass. 289.
10 Pick. 348.
22 Pick. 312.
23 Pick. 216.
10 Met. 359.
2 Allen, 355.
13 Allen, 10.
99 Mass. 480.
102 Mass. 463.
Section 2. Such dam shall not be erected to the injury of a 1
mill lawfully existing above or below it on the same stream, nor 2
to the injury of a mill-site on the same stream on which a mill or 3
mill-dam has been lawfully erected and used, unless the right to 4
maintain a mill on such last-mentioned site has been lost by aban- 5
donment or otherwise ; nor shall a mill-dam be erected or raised 6
to the injury of any such mill-site which has been occupied as 7
such by the owner thereof, if, within a reasonable time after com- 8
mencing such occupation, he completes and puts in operation a 9
mill for the working of which the water of such stream is applied ; 10
nor shall a mill or dam be placed on the land of any person with- 11
out such grant, conveyance or authority from the owner as would 12
be necessary to convey land. 13
Height of
water, etc.
1795, 74, § 4.
R. S. 116, § 3.
G. S. 149, § 3.
P. S. 190, § 3.
Section 3. The height to which the water may be raised and 1
the period of time for which it may be kept up in each year may 2
be determined by a jury. 3
12 Met. 142. 4Cusn. 549. 7 Gray, 294. 142 Mass. 4S2.
Petition for
overflow, etc.,
of land.
1713-14, 15, § 2.
1795, 74, § 2.
1825, 109, § 2.
R.S. 116, §§4, 5.
1840, 87, § 2.
G. S. 149, « 4, 5.
P. S. 190, §§4, 5.
9 Pick. 62.
3 Met. 357.
10 Met. 203.
11 Met. 570.
Section 4. The owner or occupant of land which has been over- 1
flowed or otherwise injured by such dam may obtain compensa- 2
tion therefor if, within three years after such injury, he files a 3
petition in the superior court for the county in which the land or 4
any part thereof lies describing the land alleged to have been over- 5
flowed or injured and stating the damage sustained so that the 6
record will show with sufficient certainty the matter heard and de- 7
termined. 12 Met. 182. 6 Cush. 170,303. 13 Gray, 146. 8
16 Gray, 43.
2 Allen, 350.
12 Allen, 455.
102 Mass. 458.
108 Mass. 160.
116 Mass. 138.
131 Mass. 337.
177 Mass. 46.
i797X,C63, § i. Section 5. Notice of the filing of such petition shall be given
R2I'.ii6 Ue 7 ky an officer qualified to serve civil process by delivering, four-
p'I'i9o'ft6'7' *een ^ays a* least before the return day thereof, to the owner or
" occupant of such mill or dam or leaving at his place of abode or, if
he is not found within the commonwealth and has no place of abode
therein, at the mill, an attested copy of the petition.
1
2
3
4
5
6
Chap. 196.] mills, dams and reservoirs. 1691
1 Section 6. The respondent may answer in bar that he has a Pleadings and
2 right to maintain such dam, that the petitioner has no interest in jm'es, § 2.
3 the land alleged to be flowed or injured or any other matter which g! si 149 if!' 9"
4 may show that the petitioner cannot maintain the petition ; but he J^f • 190'|| 8> 9-
5 shall not answer that the land described is not injured by the dam. 6 Mass- sas!
6 If a plea or answer is filed, the subsequent pleadings and the trial 12 cush. 259.
7 shall be conducted as in an action at law. 7 Grayi 294.
16 Gray, 187. 123 Mass. 301. 9 Gray' 177'
1 Section 7. If the respondent is defaulted or if the issue is Jury.
2 decided in favor of the petitioner, the court shall issue a warrant 1795^74, §52.§2'
3 for a jury, as provided in chapter forty-eight, or the case may be fsii'mf3'
4 tried by a jury in the superior court ; and, if either party requires ^2|' ^ §§|u
5 it, the jury shall, under the direction of the court, view the land 13>1*-
a 11 J \ u ■ ' A G. S. 149, §§ 11,
b alleged to be injured. p. s. 190, §§ 11-13. 2Cush.34i. 13-15.
1 Section 8. The jury shall assess the amount of damages sus- Assessment of
2 tained within three years last preceding the filing of the petition judgment
3 and to the date of their verdict, taking into consideration any mt/fe^k?3'
4 damage caused by the dam to other land of the petitioner as well J|||» \lf 1 1*
5 as the damage caused thereby to the land overflowed ; and they *£• s'. 116, §§ 15-
6 shall also allow by way of set-off any benefit caused by such dam g. s. 149, §§ 16-
7 to the petitioner relative to his land. Upon the acceptance and p." s. 190, §§ 14-
8 recording of their verdict, judgment and execution shall be issued lfpick.ss.
9 in accordance therewith. 16 Gray, 46. 2 Alien, 436.
102 Mass. 458. 108 Mass. 160. 113 Ma6S. 88.
1 Section 9. If it is alleged in the petition that the dam has Jury to deter.
2
3
mine height of
been raised to an unreasonable height, or that it ought not to be dam, etc?
kept up and closed during the whole year, the jury shall determine iJJg; i22,§§4i
4 by their verdict how much the dam shall be lowered and whether §; |; J]$» | J|;
5 it shall be left open during any part of the year, and, if so, during f2'cUsh%5417'
6 what part.
1 Section 10. They shall also determine by their verdict what ~n°af|ens^
2 amount, if any, to be paid annually to the petitioner, would be grossdamages.
3 a iust and reasonable compensation for the damages that may be 1795, 74, § 2.
4 thereafter caused by the dam, so long as it is used in conformity r. s'. ne', § 19.
5 with the verdict ; and also what amount in gross would be a just £; f ; 1$', | is.'
6 and reasonable compensation for all damages thereafter to be caused no Ma6S- 298-
7 by such use of the dam and for the right to maintain and use it
8 forever as aforesaid.
1 Section 11. The petitioner may, within three months after the Petitioner
2 verdict has been allowed and recorded, elect, by a writing filed in take gross.
3 the clerk's office, to take the amount so awarded in gross, instead imjm. §2.
4 of such annual compensation. g.s. 149, §21. R. S.ne, §20.
P. S. 190, § 19. 4 Met. 603. 126 Mass. 458. 131 Mass. 572.
1 Section 12. The owner or occupant of the mill or dam shall, {JUggF"'
2 within three months after such election, pay to the petitioner or gjgj™"
3 secure to his satisfaction said amount with interest from the date of W2| B| §&
4 the verdict. After the expiration of said three months, and until g'.s'.ii^, §22'.
1692
MILLS, DAMS AND RESERVOIRS.
[Chap. 196.
payment of said damages and interest, such owner or occupant shall 5
lose all benefit of the provisions of this chapter. 6
Annual com-
pensation if
no election.
1795, 74, § 3.
R. S. 116, § 22.
G. S. 149, § 23.
P. S. 190, § 21.
Section 13. If the petitioner does not within said three months 1
make his election, as aforesaid, he and all persons claiming under 2
him shall, so long as the dam is kept up and maintained, be entitled 3
to receive from the owner or occupant of the mill the annual com- 4
pensation so established by the jury, unless the amount is increased 5
or diminished upon a new petition, as hereinafter provided. 6
Lien on mill,
etc., for pay-
ment of dam-
ages.
R. S. 116, § 23.
G. S. 149, § 24.
P. S. 190, § 22.
Section 14. The person who is entitled to receive said annual 1
compensation or gross damages shall have a lien therefor, from the 2
time of the filing of the original petition, on the mill and mill- 3
dam with their appurtenances and on the land under and adjoining 4
the same and used therewith ; but such lien shall not extend to any 5
amount due more than three years before the commencement of an 6
action therefor. 7
Action to re-
cover damages
and enforce
lien.
1713-14, 15, § 3.
1795, 74, § 3.
R. S. 116, § 24.
G. S. 149, § 25.
P. S. 190, § 23.
4 Met. 426.
Section 15. Such person may recover in an action of contract
in the superior court from the person who owns or occupies the
mill when the action is brought, the whole amount due and unpaid
for the three years last preceding, and costs, although the amount
recovered is less than twenty dollars.
10 Met. 359. 13 Met. 172. 4 Cush. 245. 2 Gray, 407.
tton. °n execu" Section 16. The execution issued on such judgment, if not
r. s. ii6, §§ 25, otherwise satisfied, may, within thirty days after judgment, be
g. s. 149, §§ 26, levied on the land so subject to the lien ; and the officer may there-
upon sell, in the manner provided for the sale of land on execu-
tion, such land or so much thereof as is necessary to satisfy the
execution and the expenses of the levy. Such sale shall be valid
against any claim which has accrued within the time covered by
the lien.
P. S. 190, § 24.
123 Mass. 183.
1
2
3
4
5
1
2
3
4
5
6
7
8
Right of re-
demption.
R. S. 116, § 27.
G. S. 149, § 28.
P. S. 190, § 25.
Section 17. A person who is entitled to the land so sold may 1
redeem the same within one year after the sale, upon paying to the 2
purchaser or to the person holding under him the amount paid there- 3
for, with interest at the rate of twelve per cent a year. 4
mf-wf 15, § 4. Section 18. The party prevailing upon such petition shall be
1797', 63', §§42' 3' entitled to costs, except as otherwise provided. The court shall
r. s\ii6, §§10, determine the compensation of the person who presides at the trial
G.'s.'ug, §§ 10, before a sheriff's jury, and of the officer who executes the warrant,
p.' s. i9o, §§ 10, which shall, with the pay of the jurors and other like charges, be
2 Met. 506. advanced by the petitioner and taxed in his costs.
2 Gray, 497. 2 Allen, 436.
prohiwted6 l' Section 19. No action shall be maintained at common law for
g. I: H9, 1 12: tae recovery of damages for the erection, maintenance or use of a
i2M'et9i42.28' mil1 or mill-dam, if a remedy therefor is provided in this chapter.
2 Allen, 350. 12 Allen, 89.
Existing mills
and dams not
affected, ex-
cept, etc.
1
2
3
4
5
6
1
2
3
Section 20. The provisions of this chapter shall not, except as 1
herein expressly provided, affect the right to keep up, maintain 2
Chap. 196. ] mills, dams and reservoirs. 1693
3 and use any lawfully existing water mill and mill-dam ; but if R- s- 116> § 28-
4 the owner or occupant thereof makes any material change by rais- ?■ a." wo,' § 29.'
5 ing the dam or by altering the machinery or the manner of using lisMass.4^,
6 the water, so as to cause additional damage to the land of another, 238,
7 it shall be considered a new mill or dam, in respect to such ad-
8 ditional damage, and the remedy for compensation therefor shall be
9 substantially the same as in the case of a new dam.
1 Section 21. If either party is dissatisfied with the annual com- ciaimofnew
2 pensation established by proceedings upon a petition under the R.TiTeTfk
3 provisions of this chapter or the corresponding provisions of earlier p." f." 190,' | lo."
4 laws, a new petition may be filed for the increase or diminution | Met 'an3-
5 of such compensation or for ascertaining the gross amount of the ^^^n
6 damages, and the proceedings shall be conducted substantially in the 126 Mass. 503.
7 manner provided for an original petition ; but if a petitioner has
8 declined to accept gross damages which have been awarded to him,
9 they shall not be again assessed within ten years thereafter.
1 Section 22. Such new petition may be maintained by and f^^f1^*-
2 against either of the parties to the original petition or by and against vw' is, § 3.
3 a person lawfully holding under either of them, but it shall not be 35.
4 brought until the expiration of one month after the payment of 36'.
5 the year last preceding was due. p. s. 190, §31.
1 Section 23. The owner of the mill or dam may, within said ^osert^ty
2 month, offer in writing to the owner of the land any increase of said j^^enwition
3 annual compensation ; and if the owner of the land does not agree 1^99, 78, § 1.
4 to accept such offer, but files a new petition to obtain an increase, g'. s". w', § 37!
5 he shall pay the costs, unless he recovers a greater annual com-
6 pensation than was so offered.
1 Section 24. The owner of the land may within said month ^^° smaller
2 offer in writing to the owner of the mill or dam to accept a smaller ££mp7e8nB§a2 on"
3 amount than that established as said annual compensation ; and if R- 1- nj, § 37.
4 the owner of the mill or dam does not agree to pay such reduced p.' s.' 190,' §33.'
5 compensation, but files a new petition to obtain a diminution
6 thereof, he shall pay the costs, unless the annual compensation is
7 reduced by the verdict to an amount less than the offer.
1 Section 25. Such offers may be made by or to the respective £ft|r t0 ten-
2 tenants or occupants of the land and of the mill or dam, in like 1799,' 78, §§ 1, 2.
3 manner and with like effect as if made by or to the respective g'. s! 149* § 39.
4 owners, except that no agreement founded thereon shall bind said
5 owners unless made with their consent.
1 Section 26. If the offer so made by either party is accepted by Effect of ac-
2 the other., it shall establish the annual compensation to be there- °j&*-m
3 after paid, as if it had been established by a judgment upon a new u! s. 149; § 40!
4 petition, if a memorandum of such offer and acceptance and of p*
5 the agreement, signed by the respective parties or by persons
6 authorized by them, is filed and recorded in the office of the clerk
7 of the court in which the former judgment was rendered, with a
8 note of reference on the record of the former judgment to the book
9 in which the agreement is recorded.
1694
MILLS, DAMS AND RESERVOIRS.
[Chap. 196.
Verdict not to
bar new peti-
tion, when.
R. S. 116, § 40.
G. S. 149, § 41.
P. S. 190, § 36.
10 Mass. 72.
Section 27. If, upon a petition by the owner of the land, the
jury return a verdict that he is not entitled to any annual compen-
sation, the judgment thereon shall not bar a new petition for dam-
ages alleged to have arisen after such verdict and for compensation
for damages thereafter sustained.
1
2
3
4
5
Tender to stop
costs.
1824, 153, § 4.
1825, 109, § 1.
R. S. 116, § 41.
G. S. 149, § 42.
P. S. 190, § 37.
7 Gray, 186.
Section 28. In every original petition brought by the owner 1
of land alleged to be injured by a mill-dam, the respondent may 2
bring into court and there tender any amount which he considers 3
proper to be paid to the petitioner for the damages incurred up 4
to the time of such tender, and may also offer to pay any certain 5
annual compensation for the damages which may be thereafter 6
caused by the dam. If the petitioner does not accept the amount 7
so tendered with his costs to that time, he shall, unless he recovers 8
greater damages or greater annual compensation than was so offered, 9
be entitled to his costs to the time of the tender, and the re- 10
spondent shall be entitled to his costs after said time. 11
uponaccept- Section 29. If the petitioner accepts the amount so offered for 1
Rn<s iib*1?^' ^ne Pas^ damage and f°r future annual compensation, he shall have 2
g'. s! 149; § 43. judgment therefor and for costs to that time ; or the petitioner may 3
P S 190 6 38
accept either the amount tendered for past damages or the offer 4
for future annual compensation, and proceed to trial on the residue 5
of the petition under the same liability for costs. 6
Who may join
in petition.
1841, 86.
G. S. 149, § 44.
P. S. 190, § 39.
Section 30. Two or more persons who are jointly or separately 1
interested in the land injured may join in a petition, and the jury 2
may assess joint or several damages as the interest and title of the 3
petitioners may require ; and judgment and execution shall con- 4
form thereto. 5
melft8 in abate" Section 31. The provisions of chapter one hundred and seventy- 1
k-3|- U6, §43. three relative to pleas in abatement shall apply to petitions under 2
g.s. 149, §§'45, the provisions of this chapter; and if new respondents are sum- 3
moned in pursuance of said provisions, the petitioner may have a 4
verdict against such of the respondents as he proves are liable, 5
although he fails as to the rest. A petition shall not be abated 6
by the death of any party, but it may be prosecuted or defended 7
by the surviving petitioners or respondents or by the executor or 8
administrator of the deceased. 9
46,
P. S. 190, § 40.
9 Gray, 177.
16 Gray, 187.
New petition
after abate-
ment.
R. S. 116, § 43.
G. S. 149, § 46.
P. S. 190, § 41.
Section 32. If a petition is abated or otherwise defeated for 1
any matter of form or if a judgment for the petitioner is reversed 2
for error, the petitioner, or any person claiming under him, may 3
file a new petition for the same cause within one year after the 4
abatement or other determination of the original petition or after 5
the reversal of the judgment and recover all damages sustained 6
during the three years last preceding or at any time after the filing 7
of the first petition. 8
Petition when
public way is
to be over-
flowed.
1873, 144, § 1.
P. S. 190, § 42.
119 Mass. 356.
Section 33. If a person who owns, erects or maintains a water 1
mill or a dam to raise water for working such mill upon or across 2
a stream not navigable desires to raise, erect or maintain a dam at 3
such a height or in such a manner as to overflow or otherwise injure 4
Chap. 196.] mills, dams and reservoirs. 1695
5 an existing public way, he may apply by petition to the county
6 commissioners of the county in which such way is located, stating
7 the height at which it is desired to maintain such dam and the ways
8 which may be injured thereby, and asking for the alteration, change
9 of grade or specific repairs of such ways.
1 Section 34. Notice of the hearing upon such petition shall be Notice.
2 given to the cities and towns in which the ways are situated and to pJl.ito, §«.
3 the owners or occupants of the land affected thereby, in like manner
4 as notice of the laying out of highways is given.
1 Section 35. Said commissioners may, after a hearing, order commissioners
2 such alteration, repairs or change of grade of such ways as will in change^/
3 their judgment enable the petitioner to raise, erect and maintain ^ray8e' etc' of
4 such dam without overflowing or otherwise injuring such ways, and p7! \^ |L
5 they may give written direction and authority to the petitioner to
6 make at his own expense such alterations, changes of grade and
7 repairs within a reasonable time. They shall record all such orders
8 and shall cause certified copies thereof to be filed and recorded in
9 the office of the clerk of each city and town in which such altera-
10 tions, changes of grade or repairs are ordered.
1 Section 36. The commissioners shall assess and order the peti- ^ages89
2 tioner to pay all damages sustained by any person, corporation, Jf^'J^M2-
3 city or town by reason of the alterations, changes of grade or re- p. s'. 190, § 45.
. . 119 Mass 356
4 pairs ordered by them, and any person, corporation, city or town
5 aggrieved by such assessment may, on application within one year
6 from the entry of such order, have the damages assessed by a jury
7 in the manner provided for the assessment of damages caused by the
8 laying out or discontinuance of highways.
1 Section 37. The costs of proceedings under the provisions of f^l*8^ §3
2 the four preceding sections shall be paid by the petitioners, who p. s'. 190', § 46.
3 may be required by the county commissioners to recognize with
4 sufficient sureties for the payment thereof.
1 Section 38. The order of the county commissioners, duly issued p^lc^to
2 under the provisions of section thirty-five, shall authorize the peti- j^^f1^
3 tioner to do all acts necessary to be done in compliance therewith ; p. s. 190', § it.
4 and if it is shown that the petitioner has substantially complied
5 with such order, no indictment shall be maintained for the flowage
6 of, or injury to, the ways mentioned in such order, which may be
7 caused by the dam.
CRANBERRY LAND AND ICE PONDS.
1 Section 39. An owner or lessee of land appropriated or which **£&$w
2 he desires to appropriate to the cultivation and growth of the cran- ^bf206
3 berry may erect and maintain a dam upon and across a stream to p.Jf. wo, § «.
4 flow and irrigate said land, subject to the provisions of this chapter 117 Mass. 213.
/. fti.,, , ■ -. 1 ti j. i • j. ' J 1'26 Mass. 458.
5 so far as applicable ; but he shall not erect and maintain a dam m Mass. 207.
6 across a navigable stream or across the outlet of a great pond,
7 without a license therefor from the board of harbor and land com-
8 missioners.
1696
MILLS, DAMS AND RESERVOIRS.
[Chap. 196.
Apportion-
ment of ex-
pense.
1871, 163.
P. S. 190, § 49.
Section 40. If a dam has been so erected or maintained or if a 1
person has at his own expense made, kept open or repaired any 2
ditches or drains for the improvement or cultivation of such tract 3
of land, any owner or lessee of a like tract, who uses such dam, 4
ditches or drains or who by more remote means receives benefit 5
thereby for the flowing, irrigating or draining of such last-mentioned 6
tract, shall pay to the person who has erected or maintained such 7
dam or incurred such expense his proportionate part thereof, which 8
shall be determined by the selectmen of the town as provided in 9
sections four and thirty-seven to forty, inclusive, of chapter forty- 10
nine. But no covenants or agreements by or between the owners 11
or lessees of such land shall be affected by the provisions of this 12
section. 13
Ice ponds.
1898, 480.
Section 41. An owner or lessee of land which is used for an 1
ice pond may erect and, between the first day of November and the 2
first day of March, maintain a dam across a stream not navigable, 3
for the purpose of making an ice pond by flowing adjoining land, 4
subject to the provisions of this chapter so far as applicable, if he 5
annually pays to the owner of land which may be overflowed or in- 6
jured thereby the amount of the tax which may from time to time 7
be assessed on such land ; but such dam shall not be erected with- 8
out the consent of all of the owners of the land which would be 9
flowed by it, unless the person or corporation proposing to erect it 10
shall furnish to such owners as do not consent to the erection 11
security, satisfactory to them or approved by a justice of a court 12
of record or by a master in chancery, for the payment of any 13
damages which may be caused by flowing the land of such owners. 14
Land flowed
by reservoir
corporation.
1869, 383, § 1.
P. S. 190, § 50.
Security.
1869, 383, § 2.
P. S. 190, § 51.
DAMS OF RESERVOIR CORPORATIONS.
Section 42. A domestic reservoir corporation may flow the 1
land of other persons by its reservoir dam, and a person whose land 2
or property has been flowed or injured by such dam, unless com- 3
pensation has been otherwise made, may obtain compensation there- 4
for as provided in this chapter. 5
Section 43. The court in which a petition for such compen- 1
sation is pending, shall if requested by the petitioner, require such 2
corporation to give satisfactory security for the payment of all 3
damages and costs which may be awarded upon such petition ; and 4
if, upon petition and notice to the corporation, the court finds that 5
the security has become insufficient, it shall require the corpora- 6
tion to give further security. If the corporation neglects for one 7
month or for such further time as the court allows to comply with 8
any such order, it shall lose all rights under the provisions of this 9
chapter, and the court may restrain it from flowing or injuring 10
such land or property until such security has been given. 11
SAFETY OF RESERVOIRS AND DAMS.
Section 44. A reservoir, reservoir-dam or mill-dam shall not 1
. be constructed nor materially altered until plans and specifications 2
pJs'.igo'fW of tlie ProPosed work have been filed with and approved by the 3
Reservoir, etc.,
not to be con-
structed or
Chap. 196.] mills, dams and reservoirs. 1697
4 county commissioners of the county in which it is situated. Said
5 commissioners shall retain and record such plans and specifications
6 and shall inspect the work during its progress ; and if at any time
7 it appears that the plans and specifications are not faithfully ad-
8 hered to, they may appoint an inspector to be constantly engaged
9 at the expense of the owners in the supervision of the work.
10 Upon a refusal of the owners or of their agents to adhere to said
11 plans and specifications, said inspector may order the discontinu-
12 ance of the work. The provisions of this and the six following
13 sections shall not apply to small dams, constructed for irrigation
14 or for other purposes, the breaking of which would involve no risk
15 to life or property.
1 Section 45. The county commissioners shall, as often as once in Examination
2 three years, if in their judgment the public good requires it, thor- dam.servoir or
3 oughly examine every reservoir, reservoir-dam and mill-dam, by the Jf5!'.3^' §§47.
4 breaking of which loss of life or damage to a road or bridge is liable ^7| ^ |^
5 to be caused, and they shall at any time make such examination upon i||i. jus.'
6 written application by the mayor and aldermen of the city or select-
7 men of the town in which such damage is liable to be caused or by
8 a person whose property is liable to be so damaged. Such exam-
9 ination shall be made after notice to the owner of such reservoir
10 or dam or to his agent and, if made upon such application, it shall
11 be by the commissioners personally with the aid of a competent
12 engineer. In other cases, the commissioners may cause it to be
13 made by a competent engineer, who shall report to them in writing
14 whether he considers it safe and in good condition and, if not, its
15 condition in detail and the work or change required for safety and
16 the public good. The engineer shall be allowed by the commis-
17 sioners a reasonable compensation for his services, which shall be
18 paid by the county.
1 Section 46. If, upon such examination, the structure is not, in Alterations or
2 the judgment of the commissioners, sufficiently strong to resist the 1^327, § 1.
3 action of the water under any circumstances which may reasonably fsit'iil'i^'
4 be expected to occur, they shall, with the advice of an engineer, fggf/gl^l.54"
5 determine and direct what alterations or repairs are required to
6 make the structure permanent and secure, and shall in writing
7 order the owners thereof to make such alterations or repairs within
8 a reasonable time, and the results of such examination and the
9 orders thereon shall be duly recorded by said commissioners.
1 Section 47. If the owner of a reservoir or dam which has been Proceedings
2 so examined and adjudged to be unsafe refuses or neglects to tocompiy with
3 make such alterations or repairs as the commissioners order, they ^54, 327, T§ 2, 3.
4 shall cause such reservoir or dam, or such parts thereof as they <*• s- 149> §§ 49»
5 may consider necessary for the safety of life, property, roads or wr| }^t\%.
6 bridges on the stream below, to be removed or the water to be
7 drawn off. After such removal, no structure shall be erected except
8 in compliance with the provisions of the three preceding sections ;
9 and after the water has been drawn off, the reservoir shall not be
10 filled again until the orders of the commissioners have been com-
11 plied with.
1698
MILLS, DAMS AND RESERVOIRS.
[Chap. 196.
i854t8327 §4 Section 48. The commissioners shall make such orders as to 1
o. sVi49, § si. the costs of all proceedings under the provisions of the three pre- 2
1875, 178, §5. L . & ., . F , .,, , .r
p. s. loo, §56. ceding sections as they may consider just; but it the reservoir or 3
dam is adjudged unsafe, said costs shall be paid by the owner. 4
Acts of com-
missioners not
to impair lia-
bility, etc.
1875, 178, § 6.
P. S. 190, § 57.
Section 49. No order, approval, request or advice of the 1
county commissioners shall impair the legal duties and obligations 2
of the owners of reservoirs, reservoir-dams or mill-dams or their 3
liability for the consequences of their illegal acts or of the neglect 4
or mismanagement of their agents or servants. 5
i8ly-i8w3tion' Section 50. The supreme judicial court and the superior court 1
g. s. 149, § 52. shall have iurisdiction in equity to enforce the provisions of the six 2
1875, 178, §7. J ^ J r Q
p. s. 190, § ss. preceding sections. o
Power of
majority to
repair, etc.
1709-10, 3, § 1.
1795, 74, § 6.
B. S. 116, § 44.
G. S. 149, § 53.
P. S. 190, § 59.
Meeting of
proprietors.
1709-10, 3, § 1.
1795, 74, § 5.
R. S. 116, § 45.
G. S. 149, § 54.
P. S. 190, § 60.
Notice.
1709-10, 3, § 1.
1795, 74, § 5.
R. S. 116, §§ 46,
47.
G. S. 149, § 55.
P. S. 190, § 61.
REPAIRING AND REBUILDING MILLS AND MILL-DAMS.
Section 51. If a mill which is owned by joint tenants or tenants 1
in common, or the dam or appurtenances of such mill, require 2
repairs or rebuilding in whole or in part, and all the proprietors do 3
not agree to join therein, a majority in interest of the proprietors 4
may cause the work to be done at the expense of the whole in 5
proportion to their respective interests. 6
Section 52. One or more of the proprietors may call a meeting 1
by a notice signed by the person or persons who call it, addressed 2
to each of the other proprietors, stating that the mill, dam or ap- 3
purtenances require repairs or rebuilding and that their attendance 4
is requested at a meeting of the proprietors thereof at the mill 5
at a time named to consult and agree upon the measures to be 6
taken for such purpose. 7
Section 53. The notice shall be served by an officer qualified 1
to serve civil process by delivering an attested copy thereof to 2
each proprietor, or by leaving such copy at his last and usual place 3
of abode, not less than seven nor more than thirty days before the 4
day appointed for the meeting, and such officer's return, specifying 5
the persons on whom he has served the notice and the time and 6
manner of the service on each, shall be sufficient evidence thereof. 7
Proceedings.
1709-10, 3, § 2.
1795, 74, § 6.
R. S. 116, § 48.
G. S. 149, § 56.
P. S. 190, § 62.
Section 54. At such meeting, or at any adjournment thereof,
the majority in interest of the proprietors of the mill may take
measures to cause the mill or the dam or appurtenances thereof to
be repaired or rebuilt, as they shall consider most for the interest
of all concerned therein.
Section 55. Each proprietor shall, upon demand, after the
Apportion-
ment of ex- -' — pv(...vn,. ""»") ~J.,~*-. — ,
i7eo^io°V§°2!k' work *s completed, pay to the proprietors by whom it has been
r9| ni/f'49 a(*vance(* n*s Just an(* equal part of the expense of such repair or
g'. |'. 149, § 57'. rebuilding, in proportion to his share or interest in the mill, with
• 190, §63. interest from the time of the advance.
1
2
3
4
5
1
2
3
4
5
Jayme0nrtsuch Section 56. The proprietors who advance the money so ex- 1
R9s'.n'6?§-50. Pendea snaU have a lien therefor on the rents and profits of the 2
p's'igo'llf' m^ an(* may retam so mucn thereof as belongs to any proprietor 3
Chap. 1^6. j mills, dams and reservoirs. 1699
4 indebted to them for such advance, to be applied to the payment
5 of his debt ; or they may maintain an action for the debt or for as
6 much thereof as has not been paid out of the rents and profits.
1 Section 57. The guardian of a proprietor may act for him in proprietor
2 calling or attending a meeting of the proprietors, and may there d?an?bfp.ar~
3 vote and do all such other acts as the ward could do if competent k.9|. W §51
4 tO act. G. S. 149, § 59. P. S. 190, § 65.
1 Section 58. If part of the mill is held by a tenant for life or Apportion-
2 years, the amount due for the repairs and other expenses on that Sfpeifses
3 part of the mill shall be apportioned on the tenant for life or years ten^nffor life
4 and on the remainderman or reversioner in proportion to the value reminder"1
5 of their respective interests ; and the person to whom the money man-7,
6 is due from such remainderman or reversioner shall have a lien on r. s. ii6, §'53.
7 the rents and profits belonging to him after his estate comes into p." s." 190,' § 66.'
8 possession, if not sooner paid, notwithstanding any limitation by
9 lapse of time.
1 Section 59. A mortgagee in possession shall be considered a if proprietor
2 proprietor for the purposes of this chapter ; but if the action is hf88inte?egst?ed
3 brought against the mortgagor before his right of redemption has Relief §54.
4 been foreclosed, he shall also be liable for all amounts so due on p.'f."^'!!?."
5 account of his share of the mill, so far as the same have not been
6 recovered from the mortgagee. All amounts paid on this account
7 by the mortgagee shall be allowed, between him and the mort-
8 gagor, as so much paid for repairs or improvements.
1 Section 60. A tenant in tail of a part of a mill shall, for the Tenant m tan.
2 purposes of this chapter, be considered the proprietor thereof in fee r. s'. 116; §55.
3 simple. g. s. 149, §62. p. s. 190, §68.
1 Section 61. All amounts due from one proprietor to another Recovery of
2 for money advanced under the provisions of this chapter may be fOTreplFrsl
3 recovered in an action of contract ; and if two or more proprietors §'. I', m, | fs.
4 are so indebted, by a suit in equity. The amount so recovered p-s. 190, § 69.
5 shall be apportioned by the court among the plaintiffs, if more
6 than one, according to their respective rights.
1 Section 62. The provisions of this chapter shall not affect any contracts be-
2 contract or agreement by or between the proprietors of a mill as to lp^ic^T'
3 the repair or rebuilding thereof, g. s. 149, § 64. p. s. 190, § 70. 4 Mass. 559. b?|. i*'6* § '58.
millers.
1 Section 63. A miller occupying and using a gristmill who Miners to keep
2 neglects to provide himself with scales and weights or a vibrating c.L.io6,§2.
3 steelyard to weigh corn, grain and meal to and from the mill, when 1723-9, V§§l* 2.
4 required, or who refuses so to weigh corn, grain or meal when re- JStV||.
5 quired, shall for each offence forfeit to any person who sues there- g;|;Eg;{{jjj;
6 for not more than five dollars. p. s. 190, §71.
1 Section 64. The toll for grinding any kind of grain shall not £<>£.
2 exceed one-sixteenth part thereof. ms^'of §S2?'
1762-3, 19, § 6. 1795, 74, § 9. R. S. 116, § 60. G. S. 149, § 66. P. S. 190, § 72.
1700
LIENS ON BUILDINGS AND LAND.
[ClLAP. 197.
CHAPTEE 197.
OF LIENS ON BUILDINGS AND LAND.
Sections 1-5 . — Persons Entitled.
Sections 6-24 . — Proceedings .
Sections 25-27. — Attaching Creditors.
Sections 28-31. — Dissolution.
Sections 32, 33. — General Provisions.
Lien for labor
and materials.
1819, 156, § 1.
R. S. 117, § 1.
1851, 343, § 1.
1852, 307, § 1.
1855, 431, § 1.
G. S. 150, § 1.
P. S. 191, § 1.
1900, 256.
13 Gray, 311.
5 Allen, 406, 540.
101 Mass. 435.
106 Mass. 228,
528.
114 Mass. 476.
116 Mass. 374.
126 Mass.
131 Mass.
140 Mass.
526.
148.
177.
,256,
PERSONS ENTITLED.
Section 1. A person to whom a debt is due for labor per- 1
formed or furnished or for materials furnished and actually used in 2
the erection, alteration, repair or removal of a building or structure 3
upon land, by virtue of an agreement with or by consent of the 4
owner of such building or structure or of a person having authority 5
from or rightfully acting for such owner in procuring or furnishing 6
such labor or materials, shall, subject to the provisions of this 7
chapter, have a lien upon such building or structure and upon the 8
interest of the owner thereof in the lot of land upon which it is 9
situated to secure the payment of the debt so due to him and of the 10
COStS of enforcing SUCh lien. 141 Mass. 523. 143 Mass. 105. 11
144 Mass. 534. 158 Mass. 552. 165 Mass. 113. 171 Mass. 294.
148 Mass. 104. 160 Mass. 48. 168 Mass. 467. 174 Mass. 404.
155 Mass. 549. 162 Mass. 593. 169 Mass. 257, 351. 175 Mass. 432.
156 Mass. 205.
164 Mass. 146.
170 Mass. 50.
176 Mass. 237.
— for labor
upon entire
contract.
1872, 318, § 1.
P. S. 191, § 2.
7 Allen, 412.
126 Mass. 169,
309.
141 Mass. 280.
Section 2. If such agreement is for labor performed or fur- 1
nished and for materials furnished under an entire contract and 2
for an entire price, a lien for the labor alone may be enforced, 3
if the value of such labor can be distinctly shown ; but it shall not 4
be enforced for an amount greater than the entire contract price. 5
147 Mass. 493. 158 Mass. 71. 159 Mass. 206. 162 Mass. 593.
Notice of lien
for materials.
1855, 431, § 1.
G. S. 150, § 2.
1872, 318, § 3.
P. S. 191, § 3.
2 Allen, 424.
155 Mass. 549.
159 Mass. 124.
Section 3. The lien shall not attach for materials unless the 1
person who furnishes them, before so doing, gives notice in writing 2
to the owner of the property to be affected by the lien, if such owner 3
is not the purchaser of such materials, that he intends to claim 4
SUCh lien. 168 Mass. 435. 173 Mass. 332. 5
No lien if
notice by
owner.
1855, 431, § 4.
G. S. 150, $ 4.
P. S. 191, § 4.
5 Cush. 119.
105 Mass. 345.
Section 4. If the owner of a building or structure which is 1
in process of erection, alteration, repair or removal is a person 2
other than the party by whom or in whose behalf a contract for 3
labor and materials has been made, he may prevent the attaching 4
of a lien for labor not then performed, or for materials not then 5
furnished, by giving notice in writing to the person who performs 6
or furnishes such labor or furnishes such materials, that he will not 7
be responsible therefor. 8
Lien invalid
against prior
mortgage.
1852, 307, § 1.
G. S. 150, § 3.
P. S. 191, § 5.
Section 5. The lien shall not avail against a mortgage actually 1
existing and duly recorded prior to the date of the contract under 2
which the lien is claimed. losMass. 470. io9Mass. 411. 3
117 Mass. 167, 176.
120 Mass. 408.
144 Mass. 534.
161 Mass. 462.
103 Mass. 470.
168 Mass. 538.
170 Mass. 311.
109 Mass. 411.
172 Mass. 553.
177 Mass. 506.
Chap. 197.] liens on buildings and land. 1701
proceedings.
1 Section 6. The lien shall be dissolved unless the person claim- Lien dissolved
2 ing it, within thirty days after he ceased to labor on or to furnish nfenus^ied.
3 labor or materials for the building or structure, files in the registry il||' ||f * f f
4 of deeds for the county or district in which it is situated a state- §7f'-3\|%§25-
5 ment, signed and sworn to by him or a person in his behalf, giving 187*; sai; §"*!
6 a just and true account of the amount due him, with all just r.'s'.i9i;§6.
7 credits, a description of the property intended to be covered by uzr^'m.
8 the lien sufficiently accurate for identification and the name of iioMass59i°i6.
9 the owner or owners of such property, if known. If a lien is il? Ma1s! 179!
10 claimed for labor only performed or furnished under an entire J^5JasB-ti9-
j-i.-i.-i-i-iji-ii t . 120 Mass. 58,
11 contract which includes both labor and materials at an entire price, 51°-
• ■■■124 Mass 404
12 the contract price, the number of days of labor performed or fur- 5ie, 548. '
13 nished and the value of the same shall also be stated. The state- m Mass! so*'
14 ment shall not be invalid or insufficient solely by reason of an 154 Mais! lo!
15 inaccuracy in stating or failing to state the contract price, the I2 Mass! Hi
16 number of days of labor performed or furnished, and the value of iglMass'lio
17 the same, if it is shown that there was no intention to mislead and wiMass. 136.
18 that the parties entitled to notice of the statement were not in fact 171 Mass.' 231.
in • 1 J xi v. 175 Mass. 175,
19 misled thereby. 176 Mass. 164, 233. 193.
1 Section 7. The validity of the lien shall not be affected by inaccuracy m
2 an inaccuracy in the statement relative to the property to which i855^T3ei?§ I te'
3 it attaches, if such property can be reasonably recognized from the p.' |.' 191' 1 8.'
4 description, nor by an inaccuracy in stating the amount due for f3(Gr'ay5iob
5 labor or materials, unless it is shown that the person filing the | Ai^n'flt'
6 statement has wilfully and knowingly claimed more than is due to 8 Alien; 590!
108 Mass. 103.
7 him. 162 Mass. 432. 163 Mass. 7. 164 Mass. 410. 168 Mass. 435. 176 Mass. 83. 141 Mass! 273!
1 Section 8. The statement shall remain in the custody of the Duties of
2 register and be open to public inspection. He shall record it in a lsfs^li, § 2.
3 book to be kept for the purpose, but the items of the account, ex- ^l^o50, § 5'
4 cept the total amount claimed to be due, may be omitted from the P7s'. wif §7.
5 record.
1 Section 9. The lien shall be dissolved unless a petition to en- Petition to en-
2 force it is filed within ninety days after the person claiming it has im?w?i i-
3 ceased to perform labor on or to furnish labor or materials for the i^vf ; ill; | §3f * 5*
4 building or structure. The petition shall contain a brief statement (ffl,5^ §§ 7>
5 of the contract on which it is founded and of the amount due ^^ lffl §§9>
6 thereon, a description of the premises subject to the lien and all Jjy^'.j
7 other material facts and circumstances, and shall pray that the 4Cush. 532.'
8 premises may be sold and the proceeds of the sale applied to the 176 Mass! 83. '
9 discharge of the debt. The date of the filing of the petition shall
10 be the commencement of the proceeding to enforce the lien.
1 Section 10. The superior court for the county in which the jurisdiction.
2 building or structure is situated shall have jurisdiction to enforce r. §. ui, § i.
3 liens under the provisions of this chapter; but if the building or US; ft?; ft:
4 structure affected by the lien is situated within their respective g^-™, '§§8,9.
5 jurisdictions, a trial justice shall have original and concurrent p. a'. 191, §§10,
6 jurisdiction with the superior court if the amount claimed does not un, 396. § 12.
7 exceed three hundred dollars, a police, district or municipal court, liii fcass. \u.
1702
LIENS ON BUILDINGS AND LAND.
[Chap. 197.
except the municipal court of the city of Boston, shall have like 8
jurisdiction if the amount claimed does not exceed one thousand 9
dollars, and the municipal court of the city of Boston shall have 10
like jurisdiction if the amount claimed does not exceed two thousand 11
dollars. The parties shall have like rights of appeal as in other 12
civil cases. 13
Who may join.
1852, 307, § 2.
G. S. 150, § 13.
P. S. 191, § 15.
Section 11. If two or more persons have actually performed 1
labor on or furnished labor or materials for one or more buildings 2
or structures upon different lots of land for the same owner, con- 3
tractor or other person, they may join in one petition to enforce 4
their respective liens ; and the proceedings shall be the same, and 5
the respondent may defend as to each petitioner, as if each peti- 6
tioner had filed a separate petition. 7
Summons.
1819, 156, § 3.
B. S. 117, § 7.
G. S. 150, § 14.
1871, 78.
P. S. 191, § 16.
1888, 344, § 2.
5 Cueh. 119.
118 Maes. 595.
Section 12. The court or justice shall issue a precept to an 1
officer qualified to serve civil process, commanding him to summon 2
the owner of the building or structure to appear and answer said 3
petition and to give notice of the filing of said petition to the 4
debtor, if he is not the owner of the building or structure, and to 5
all creditors who have a lien of the same kind upon the same 6
estate. Such precept shall be in substance as follows : — 7
COMMONWEALTH OF MASSACHUSETTS.
[l. s.] ss. To the sheriffs of our several counties or their deputies, [or
to any constable of the city or town of in said county] greeting.
We command you to summon the alleged owner of a certain building or
structure on real estate [description] to appear before court at
within [and for] our said county of on then and there in our said
court to answer unto a petition for lien which petitioner hath filed in
said court to enforce a lien upon said building or structure and the interest of
said alleged owner in the lot of land upon which the same is situated to secure
payment of a debt amounting to dollars and cents alleged to be due
said petitioner [for labor performed on said building or structure, or for labor
furnished, or for materials furnished and actually used on said building or
structure, as the case may be'] and the costs which may accrue in enforcing such
lien.
And we further command you to notify the debtor in said petition men-
tioned and all creditors other than the petitioner having liens of the same kind
upon the same estate that said petition has been filed in our said court. And
have you there this precept with your doings therein.
Witness Esquire, at this day of in the year of our
Lord one thousand nine hundred and
[Clerk or Justice.]
An attested copy of such precept shall be served upon said
owner, debtor and each of said creditors and shall be posted upon
said building or structure fourteen days at least before the return
day thereof. The fees of the officer shall be fifty cents for each
person upon whom service is made and thirty cents for each copy,
with fees for travel as in the service of other civil process. If the
petition is filed in a police, district or municipal court or before a
trial justice, the day for the appearance and answer shall be fixed
at not more than sixty days from the day of entry.
8
9
10
11
12
13
14
15
16
EmJhms!06' Section 13. If the court or justice finds that a person who is 1
E.s.ii7,§§8,9. entitled to notice is absent from the commonwealth or that it is 2
Chap. 197.] liens on buildings and land. 1703
3 probable that he cannot be found to be served with the precept or g. s. 150, §§ is,
4 notice, the petition shall be continued until such notice as the court mo 2ie.
5 or justice orders has been given. If, at the time assigned for the ^- *. 191, §§ 17,
6 hearing, it appears that a person interested has not had sufficient f^i^'Jg3-
7 notice of the petition, the court may order further notice. 103 Mass. 227.
1 Section 14. A creditor who has a lien under the provisions of other creditors
0 Al»- u 4. 4-1, 1 i • may intervene;
2 this chapter upon the same property may appear and prove his amendments.
3 claim, and the owner and each creditor may contest the claim of b. s'. 117, § 10.
"tQpre JOT £ it
4 any other creditor. The court may allow amendments to the G.s'.i5d,§§i2,
5 pleadings as in actions at law. 17'
P. S. 191, §§ 19, 20. 141 Mass. 273. 168 Mass. 436.
1 Section 15. The court shall determine all claims in a summary Trial.
2 manner, but every material question of fact arising in the case in R^IAn', §§3io['
3 the superior court shall be tried by a jury, if such trial is required &; s. 150 §§ 17
4 by a party or is ordered by the court upon a question stated, upon J?-s 191§U9'
5 an issue framed or otherwise, as the court may order. 170 Mass. 1. 21-
1 Section 16. A claim due absolutely and without condition, claims
2 although not payable at the time of determination, shall be allowed i8i97ie56*, § 4.
3 with a rebate of interest to the time when it would become payable. §;s< 117' §§ n>
4 If the owner has failed to perform his part of the contract and by ^ s- 150> §§ 19»
5 reason of such failure the other party is without his own default J- s- 191. §§ 22>
6 prevented from completely performing his part thereof, he shall be 106 Mass. 205.
7 entitled to a reasonable compensation for as much as he has per-
8 formed, in proportion to the price stipulated for the whole.
1 Section 17. If a lien is established the court shall order a sale sale.
2 of the property to be made by an officer qualified to serve civil Ks.m.lf w.
3 process. The court may order a sale of a part of the property g.' s. 150, §§ 21,
4 sufficient to satisfy the claims allowed, if such part can be set off p2s. 191 §§24
5 from the residue and sold without damage to the whole. 25-
"o
1 Section 18. The officer shall give notice of the time and place —notice of.
2 of sale as provided for sales of land on execution or as ordered by R.l.m'.lie.
3 the court. & £261 ft
1 Section 19. An interest in land which is sold under the pro- Redemption.
2 visions of this chapter may be redeemed, as provided for sales of r. s'. 117, § 17.
3 land on execution. p.' I.' 191,' 1 27.'
1 Section 20. If all the claims against the property covered by Distribution.
2 the lien were ascertained at the time of ordering the sale and if the r. s\ 117, §§'is-
3 proceeds of the sale are sufficient therefor, the court may order <?; Si 160j §§ ^
4 the officer to distribute them, after deducting all lawful charges and |?;s m> §§ ^
5 expenses, to and among the several creditors to the amount of their 3<x ^ J ^
6 respective debts, with interest, or, if insufficient, to distribute the J^j^-jjf'
7 same among the creditors in proportion to the amount due to each.
8 If all the claims were not ascertained at the time of ordering the
9 sale or other sufficient cause is shown, the court may order the offi-
10 cer to bring the proceeds of the sale into court to be disposed of
11 according to its decree. If the whole cannot be conveniently dis-
12 tributed at one time, the court may make successive orders of dis-
1704:
LIENS ON BUILDINGS AND LAND.
[Chap. 197.
tribution. If there is a surplus of the proceeds of the sale after 13
making all the payments before mentioned, it shall be paid over to 14
the owner of the property ; but, before it is so paid over, it may 15
be attached or taken on execution in like manner as proceeds from 16
a sale on execution. 17
E°st8ii7 §32. Section 21. The costs shall, except as herein otherwise pro- 1
p* I" i9i' ! Ii' vi^ed, be in the discretion of the court, and shall be paid from the 2
proceeds of the sale or by any of the parties, as it may order. 3
Petition
against heirs
or assigns of
original owner.
R. 8. 117, § 27.
G. S. 150, § 34.
P. S. 191, § 37.
5 Cush. 119.
Section 22. If the person for whom the labor has been per- 1
formed or furnished or the materials have been furnished dies or 2
conveys away his estate or interest before the filing of the petition, 3
it may be filed and prosecuted against his heirs or against the per- 4
sons holding the estate or interest which he had in the land at the 5
time when the labor or materials were performed or furnished. If 6
the petition was filed in the lifetime of such person, it may be pros- 7
ecuted against his executor, administrator, heirs or assigns as if the 8
estate or interest had been mortgaged to secure the debt. 9
ecutororead. Section 23. If the creditor dies without having filed such peti- 1
ofinietttfoner tion, it may be filed and prosecuted by his executor or administra- 2
R.s.117, §28. tor; or if he dies after having filed it, it may be so prosecuted. 3
G. S. 150, § 35. P. S. 191, § 3S.
onecreditOT or" Section 24. If the petition was filed by the creditor before his
petition tiled right of action accrued or after it was barred, or if he becomes
by another. o < »
r. s. 117, §§ 30, nonsuit or fails to establish his claim, it may be prosecuted by any
31
g.' s. 150, §§ 37, other creditor having such lien, who, at or after the time of filing
p." s. i9i, §§39, the original petition, might have filed a like petition on his own
claim. If the petition was filed by the creditor before his right of
action accrued and it is so prosecuted by such other creditor, the
claim of the petitioning creditor may be allowed, but he shall not
recover costs, and the court may order him to pay a part or the
whole of the costs of the debtor.
1
2
3
4
5
6
7
8
9
10
ATTACHING creditors.
prior tilling Section 25. If the interest of the owner in the building, 1
ilifig^r* structure or land is under attachment when the statement of the 2
r. s. 117, §§ 2i, account is filed, the attaching creditor shall be preferred to the 3
g.' s. i5o, §§ 28, extent of the value of the buildings and land as they were at 4
29 •
i86i, 131. the time when the labor was commenced or the materials furnished 5
32. ' for which the lien is claimed; and the court shall determine, as 6
provided in section fifteen, what proportion of the proceeds of the 7
sale shall be held subject to the attachment, as derived from the 8
value of property at such time. If the attaching creditor recovers 9
judgment, the proceeds so held subject to his attachment, or as 10
much thereof as may be necessary, shall be applied upon his exe- 11
cution and the residue, if any, in the same manner as if there had 12
been no such attachment. 13
of statement Section 26. If the interest of the owner of the property is at- 1
r. s.u7, §23. tached after the filing of the statement, the proceeds of the sale, 2
Chap. 197.] liens on buildings and land. 1705
3 after discharging all prior liens and claims, shall be applied to sat- g. s. 150, § 30.
4 isfy the execution of the attaching creditor, in the manner provided ' ' §33'
5 in chapter one hundred and seventy-seven for two or more suc-
6 cessive attachments or seizures on execution of a right of redemp-
7 tion.
1 Section 27. Attaching creditors, as between themselves, shall CTedftoragand
2 be paid according to the order of their attachments. If several claimants of
3 creditors who are entitled to the lien have equal rights as between pafd,' as be-
4 themselves and the fund is insufficient to pay them in full, they seives.them"
5 shall share the fund in proportion to their respective debts. g! ii 150; 1 32!
Pi S'. 19l| § 35'.
DISSOLUTION.
1 Section 28. A person who has an interest in property upon Dissolution by
2 which the lien has been claimed may at any time before final judg- S^lm, §§ 1-3.
3 ment dissolve the lien upon his interest in the whole or any part p/s'.iti^'J'
4 of the property by giving bond to the party claiming the lien, with ^ 404'
5 sureties who shall be approved in writing by him or his attorney, 120 Mass. 346.
6 by a justice of a police, district or municipal court or by a master
7 in chancery, conditioned to pay to such person within thirty days
8 after final judgment an amount fixed as the value of said interest
9 or so much thereof as may be necessary to satisfy the amount for
10 which said interest may be found to be subject to such lien. If the
11 parties do not agree as to the value of said interest, it may be fixed
12 in accordance with the provisions of sections one hundred and
13 twenty-one and one hundred and twenty-two of chapter one hundred
14 and sixty-seven. The bond shall contain a description of the prop-
15 erty or interest to be released and the obligor shall, within ten days
16 after its approval, cause it to be recorded in the registry of deeds
17 for the county or district in which the property lies. The lien shall
18 not be dissolved until the bond has been so recorded, after which
19 the bond may be taken by the obligee from the registry.
1 Section 29. The clerk of the court in which the petition is certificate.
2 pending shall forward to the register of deeds for the county or p.7s'.i9if§44.
3 district in which the property lies a certificate of the fact and man-
4 ner of a dissolution of the lien, whenever such dissolution appears
5 of record therein. The register shall file such certificate with the
6 statement mentioned in section six, and shall make a record thereof
7 with the record of said statement.
1 Section 30. A person to whom a debt for performing or fur- Dissolution by
2 nishing labor or furnishing material on property would be payable mofsss.
3 if no lien existed thereon in behalf of another person under the pro-
4 visions of this chapter may dissolve any such existing lien, except
5 one solely for the personal labor of the petitioner, by giving
6 bond as provided in the two preceding sections, conditioned to
7 pay to the person claiming the lien within thirty days after final
8 judgment the amount, if any, for which such lien shall be estab-
9 lished, with costs upon the petition. Unless the bond is approved
10 by the party claiming the lien or his attorney, the sureties thereon
11 shall not be approved unless the magistrate finds that each surety,
12 if there are two only, is worth in excess of his debts an amount
1706
MORTGAGES, CONDITIONAL SALES, ETC. [CHAP. 198.
equal to twice that for which the lien is claimed or that the sure- 13
ties, if there are more than two, are together so worth four times 14
that amount. 15
Dissolution by
payment.
1819, 156, § 6.
R. S. 117, § 35.
1843, 343, § 5.
G. S. 150, § 41.
P. S. 191, § 45.
1891, 244.
Section 31. If a debt secured by the lien has been paid, the 1
creditor or his attorney shall, at the expense of the debtor, enter 2
a discharge of Ms lien on the margin of the record of the state- 3
ment or shall execute a release which may be recorded in the reg- 4
istry in which the statement is recorded. 5
Sale of estate
less than a fee
simple.
R. S. 117, § 26.
G. S. 150, § 33.
P. S. 191, § 36.
101 Mass. 435.
103 Mass. 470.
177 Mass. 506.
GENERAL PROVISIONS.
Section 32. If the person for whom the labor has been per- 1
formed or furnished or the materials have been furnished has an 2
estate less than a fee simple in the land or if the property is sub- 3
ject to a mortgage or other encumbrance, the lien shall bind such 4
person's whole estate and interest in the property, and such estate 5
or interest may be sold and the proceeds applied according to the 6
provisions of this chapter. 7
noifbarradaw Section 33. The provisions of this chapter shall not prevent 1
fts'iRo'ltn" a Persotl entitled to a lien under it from maintaining an action at 2
law as if he had no lien. 3
G. S. 150, § 40.
P. S. 191, § 46
CHAPTEE 198.
OF MORTGAGES, CONDITIONAL SALES AND PLEDGES OF, AND LIENS
UPON, PERSONAL PROPERTY.
Sections 1-7.-
Sections 8-10.'
Sections 11-13.-
Sections 14-22.-
Sections 23-30.-
■Mortgages.
•Pledges.
■Conditional Sales.
■Liens on Vessels.
•Other Liens.
Mortgages
of personal
property to be
recorded.
1832, 157, § 1.
R. S. 74, § 5.
1843, 72, § 2.
G. S. 151, § 1.
1874, 111, § 1.
1875, 14.
P. S. 192, §§ 1, 2
1883, 73.
2 Pick. 607.
1 Met. 436.
10 Met. 481.
13 Met. 200,
358.
6 Ciista. 298.
12 Cush. 109.
16 Gray, 379.
1 Allen, 373.
97 Mass. 452.
99 Mass. 397.
103 Mass. 482.
104 Mass. 249.
121 Mass. 435.
137 Mass. 460.
146 Mass. 226.
151 Mass. 300.
173 Mass. 88.
304,
MORTGAGES.
Section 1. Mortgages of personal property shall, within fifteen 1
days from the date written in the mortgage, be recorded on the 2
records of the city or town in which the mortgagor resides when 3
the mortgage is made, and on the records of the city or town in 4
which he then principally transacts his business or follows his trade 5
or calling. If the mortgagor resides out of the commonwealth, 6
and the property mortgaged is within the commonwealth when the 7
mortgage is made, the mortgage shall be recorded on the records 8
of the city or town in which the property then is. If a record in 9
two different places is required and the mortgage is recorded in 10
one within said fifteen days, it may be recorded in the other within 11
ten days after the date of the first record. Unless the property 12
mortgaged has been delivered to and retained by the mortgagee, the 13
mortgage shall not be valid against a person other than the parties 14
thereto until it has been so recorded ; and a record made subse- 15
quently to the time limited shall be void. 16
Chap. 198.] mortgages, conditional sales, etc. 1707
1 Section 2. The provisions of the preceding section shall not Mortgages
2 apply to a mortgage of, or other instrument relative to, a ship or 1832,157, §i.
3 vessel of the United States, or to goods at sea or abroad if the is'si.'st.'-
4 mortgagee takes possession of such goods as soon as may be after p." I." lli,' 1 1."
5 their arrival in this commonwealth. 5 Alien, 280.
1 Section 3. City and town clerks shall, upon payment of their Duties of city
2 fees, record in books kept for the purpose mortgages of personal clerks.^11
3 property or assignments of future earnings delivered to them, r3!'.^'^2;
4 noting in such books and on each mortgage or assignment the time f^'^'J^'s
5 when such mortgage or assignment is received; and such mortgage ^■2s';i83'§3'9;"
6 or assignment shall be held to be recorded at the time when it is 105'Mass. 442.
7 left for that purpose in the clerk's office. The fees for recording
8 and for all other services relative thereto shall be the same as are
9 allowed to registers of deeds for like services.
1 Section 4. The mortgagor or a person lawfully claiming under Redemption.
2 him may, after breach of condition, redeem the mortgaged property 41. s' 107' §§4°*
3 at any time before it is sold in pursuance of the contract between p.'lii^ffsle!
4 the parties, or before the right of redemption is foreclosed. The ill Mass' to9'
5 person entitled to redeem shall pay or tender to the mortgagee
6 or to the person claiming under him the amount due on the mort-
7 gage, or shall perform or oifer performance of the condition, and
8 shall pay all reasonable and lawful charges and expenses incurred
9 in the care and custody of the property or otherwise arising from
10 the mortgage ; and if upon such payment or performance, or upon
11 tender thereof, the property is not forthwith restored, the person
12 entitled to redeem may recover it in an action of replevin, or
13 damages for its conversion in any appropriate action.
1 Section 5. The mortgagee or his assigns may, after breach of tention°toin'
2 condition and subject to the provisions of section fifty-four of chap- f^f0^8!^
3 ter one hundred and two, give to the mortgagor, or to the person ^l™- '6
4 in possession of the property claiming the same, written notice of p." s.' 192' § 7.'
5 his intention to foreclose the mortgage for breach of the condition 2 Gray, 203.'
6 thereof, which shall be served by leaving a copy with the mort-
7 gagor or person in possession of the property claiming the same,
8 or by publishing it at least once in each of three successive weeks
9 in one of the principal newspapers, if any, published in the city
10 or town in which the mortgage is properly recorded or in which
11 the property is situated ; otherwise, in one of the principal news-
12 papers published in such county.
1 Section 6. The notice, with an affidavit of the service thereof, ^sd-
2 shall be recorded wherever the mortgage is recorded, and such g.|.ira,jT.
3 notice and affidavit, if so recorded, or a copy of the record thereof, %2^£%^
4 shall be evidence of the giving of the notice.
1 Section 7. If the condition is not performed or tender of per- Foreclosure.
2 formance made within sixty days after such notice is so recorded, o.|. 151. §|.
3 the right to redeem shall be foreclosed. 122 Mass. 129.
1708
MORTGAGES, CONDITIONAL SALES, ETC.
[Chap. 198.
Notice of in-
tention to sell.
G. S. 151, § 9.
P. S. 192, § 10.
Sale.
G. S. 151, § 10.
P. S. 192, § 11.
175 Mass. 320.
PLEDGES.
Section 8. The holder of personal property in pledge for the 1
payment of money or for the performance of any other thing may, 2
after failure to pay or perform, give written notice to the pledgor 3
that he intends to enforce payment or performance by a sale of the 4
pledge, and such notice shall be served and, with an affidavit of 5
the service, be recorded in the office of the clerk of the city or 6
town in which the pledgee resides, in the manner and with the 7
effect provided in sections five and six for notices of foreclosure. 8
Section 9. If the money to be paid or thing to be done is not 1
paid or performed, or tender thereof made, within sixty days after 2
such notice has been so recorded, the pledgee may sell the pledge 3
by public auction and apply the proceeds to the satisfaction of the 4
debt or demand and of the expenses of the notice and sale. Any 5
surplus shall be paid on demand to the party who is entitled 6
thereto. 7
Contract rights
not affected.
G. S. 151, § 11.
P. S. 192, § 12.
Section 10. The provisions of the two preceding sections shall 1
not authorize the pledgee to dispose of the pledge contrary to the 2
terms of the contract under which it is held, nor shall they limit 3
his right to dispose of it in any other manner allowed by the con- 4
tract or by law. 5
Redemption in
case of default.
1881, 222.
P. S. 192, § 13.
Conditional
sales of furni-
ture, etc.
1884, 313, § 1.
165 Mass. 130.
CONDITIONAL SALES.
Section 11. If a contract for the sale of personal property is 1
made on condition that the title thereto shall not pass until the 2
purchase money has been fully paid and the vendor upon default 3
takes from the vendee possession of the property, the vendee may, 4
within fifteen days after such taking, redeem the property so taken 5
by paying to the vendor the full amount then unpaid, with interest 6
and all lawful charges and expenses due to the vendor. 7
Section 12. Such contracts for the sale of furniture or other 1
household effects in the form of a lease or otherwise shall be in 2
writing and a copy thereof shall be furnished to the vendee by the 3
vendor at the time of such sale ; and all payments made by or in 4
behalf of the vendee and all charges in the nature of interest or 5
otherwise, as they accrue, shall, if the vendee so requests, be in- 6
dorsed by the vendor or his agent upon such copy. A failure of 7
the vendor through negligence to comply with any of the pro- 8
visions of this section shall suspend his rights under the contract 9
while the failure continues. His refusal or wilful or fraudulent 10
failure so to comply shall be a waiver by him of the condition of 11
the sale. 12
— foreclosure
of.
1884, 313, § 2.
1892, 411.
1898, 545.
Section 13, Thirty days at least before taking possession of 1
said furniture or effects for default of the vendee, the vendor shall 2
demand in writing of the vendee or other person in charge of said 3
furniture or effects the balance then due, and shall furnish to said 4
vendee or other person an itemized statement of the account show- 5
ing the amount due thereon. If said vendee or other person can 6
by the exercise of reasonable care and diligence be found by the 7
Chap. 198.] mortgages, conditional sales, etc. 1709
8 vendor, the fifteen days during which his right of redemption exists
9 under the provisions of section eleven shall not begin to run until
10 said demand has been made, said statement furnished and said thirty
11 days have expired. If seventy-five per cent or more of the con-
12 tract price has been paid by a vendee whose right of redemption
13 has expired, the furniture or effects shall, if the vendee or his
14 legal representative in writing so requests the vendor, be sold by
15 public auction after due advertisement, which shall be published at
16 least three days prior to the sale in one of the principal newspa-
17 pers, if any, published in the city or town, otherwise in one of the
18 principal newspapers published in the county, in which the furni-
19 ture or effects are situated. If the vendor refuses or neglects to
20 make the sale as provided herein, the right of redemption shall not
21 be foreclosed. If a balance of the proceeds of the sale remains
22 after deducting the actual expenses of the sale by auction and paying
23 from said proceeds to the vendor the balance of the contract price
24 due him, it shall be paid to the vendee or his legal representative.
LIENS ON VESSELS.
1 Section 14. If by virtue of a contract, express or implied, Reason
2 with the owners of a vessel or with the agents, contractors or sub- j8tf.|j.5i-
3 contractors of such owners, or with any of them, or with a person g. s'. isi, § 12.
PS 192 § 14
4 who has been employed to construct, repair or launch a vessel or i3Gray,'i29, '
5 to assist therein, money is due for labor performed, materials used II Gray, 234.
6 or labor and materials furnished in the construction, launching or 7 AiieS,' Isfl
7 repairs of, or in the construction of the launching ways for, or for H fi^m.'
8 provisions, stores or other articles furnished for or on account of 100 Mass .409.
1 ' . . . 103 Mass. 227.
9 such vessel in this commonwealth, the person to whom such money 115 Mass. 170.
10 is due shall have a lien upon the vessel, her tackle, apparel and fur- 134 Mass! m.
11 niture to secure the payment of such debt, and such lien shall be 137
12 preferred to all others on such vessel, except that for mariners'
13 wages, and shall continue until the debt is satisfied.
1 Section 15. Such lien shall be dissolved unless the person -dissolved,
unless
2 claiming it within thirty days after the vessel departs from the port 1848, 290, § 2.
3 at which she was when the debt was contracted, files in the office of g. s'. 151, § 13.
4 the clerk of the city or town in which the vessel was at such time, is^m! § 15-
5 a statement, subscribed and sworn to by him or by a person in his ^iifcfn/J^'
6 behalf, giving a true account of the demand claimed to be due to Jf^jjfgff^
7 him, with all just credits, the name of the person with whom the
8 contract was made, the name of the owner of the vessel, if known,
9 and the name of the vessel or a description thereof sufficient for
10 identification. The statement shall be recorded by such clerk in a
11 book kept by him for that purpose, and the fees therefor shall be
12 the same as for recording mortgages.
1 Section 16. A place in which the vessel is wholly or partly -^accuracies
2 constructed shall be held to be the port at which she was when the g. s. in, § u.
3 debt was contracted. The lien shall not be affected by any inac- 8 Alien, b. '
4 curacy in the description of the vessel, if she can be recognized 119Ma8Sl'
5 thereby, nor in stating the amount due for labor or materials, un-
6 less it is found that the person filing the statement has knowingly
7 claimed more than is due.
1710
MORTGAGES, CONDITIONAL SALES, ETC.
[Chap. 198.
Liens on ves-
sels may be
enforced by
petition, etc.
1855, 231, § 3.
G. S. 151, §§ 15,
17.
P. S. 192, §§ 17,
20.
3 Allen, 207.
103 Mass. 227.
109 Mass. 576.
157 Mass. 525.
159 Mass. 60.
167 U. S. 606.
Section 17. A person having such lien, unless the contract 1
described in section fourteen is a maritime contract and the enforce- 2
ment of the lien is within the exclusive jurisdiction of the courts 3
of the United States, may file a petition to enforce the lien in the 4
superior court for the county in which the vessel was at the time 5
when the debt was contracted or in which she is at the time of 6
filing the petition , or such petition may be inserted in a writ of orig- 7
inal summons with an order of attachment, and served, returned 8
and entered like other civil actions. The subsequent proceedings 9
shall, except as hereinafter provided, be as prescribed in chapter 10
one hundred and ninety-seven so far as applicable. Upon the 11
filing of the petition, a process of attachment against such vessel, 12
h'er tackle, apparel and furniture shall issue, and the attachment 13
may be dissolved as in a civil action, but such dissolution shall 14
not dissolve the lien. The pleadings may be amended as in actions 15
at law. 16
Form ol
petition.
G. S. 151, § 16.
P. S. 192, § 18.
Section 18. The petition shall contain a brief statement of the 1
labor, materials or work done or furnished, or of the stores, pro- 2
visions or other articles furnished, and of the amount due therefor, 3
with a description of the vessel which is subject to the lien, and all 4
other material facts and circumstances, and shall pray that the vessel 5
may be sold and the proceeds of the sale applied to the discharge 6
of the debt. 7
^petnfon'0"1 Section 19. Two or more persons who have such liens upon 1
g5| 2i5i Vis ^ne same vessel may j°m m a petition to enforce them, and the 2
p.' 3." 192,' § 19.' proceedings shall be the same and the respondent may defend as to 3
each petitioner as if each had filed a separate petition. 4
Distribution of
proceeds of
sale.
1855, 231, § 5.
G. S. 151, § 19.
P. S. 192, § 21.
Section 20. If money is due to more than one person holding 1
such lien and all parties interested have been cited to appear and 2
answer, the claims of all shall be marshalled, and the court shall 3
make such order or decree as may be necessary to prevent the en- 4
forcement of a double lien for the same labor, materials, stores, 5
provisions or other articles, and to secure the rights of each. The 6
proceeds from the sale of the vessel, after deducting all costs and 7
expenses, shall be distributed among the several claimants accord- 8
ing to the amount of their respective debts, except that, if such 9
proceeds are insufficient to satisfy the liens of all, those who have 10
liens for labor shall receive a percentage on their respective claims 11
one-third greater, as near as may be, than those who have liens for 12
materials, stores or other articles. 13
own™reof by Section 21. If a contractor or sub-contractor unreasonably 1
i862Sei85 neglects or refuses to pay for labor procured by him to be per- 2
p. s'. 192, § 22. formed in constructing, repairing or launching a vessel upon which 3
a lien exists therefor and the owner or other person who made the 4
agreement with such contractor or sub-contractor pays the debt 5
secured by the lien, he shall have the same claim against such con- 6
tractor or sub-contractor as if the lien had been enforced by judg- 7
ment. 8
Chap. 198.] mortgages, conditional sales, etc. 1711
1 Section 22. The provisions of the eight preceding sections other nens not
2 shall not affect any lien on foreign v essels which exist independent l^^i' § 6
3 of statute. S-£-35&f»-
P. S. 192, § 23.
OTHER LIENS.
1 Section 23. A person who has a lien, which is not described in other Hens,
2 chapter one hundred and ninety-seven or in the nine preceding sec- g° sAsvlff?.'
3 tions, for money due to him on account of work and labor, care and ^'8f '2|2' §24'
4 diligence, or money expended on or about personal property under w Alien, 139.
5 a contract express or implied, if such money is not paid within sixty
6 days after a demand in writing delivered to the debtor or left at his
7 usual place of abode, if within this commonwealth, or made by let-
8 ter addressed to him at his usual place of abode without the com-
9 monwealth and deposited, postpaid, in the post office, may file a
10 petition in the superior court, a police, district or municipal court
11 or with a trial justice in the county in which the petitioner resides
12 or has his usual place of business for an order for the sale of the
13 property in satisfaction of the debt.
1 Section 24. The court or iustice shall thereupon issue a notice Notice.
p ft K1 R 9«>
2 to the owner of the property to appear at a time and place desig- p.' s! 192,' § 25.'
3 nated, which shall be served by an officer qualified to serve civil 170 Ma88, 21°"
4 process or by a disinterested person by delivering to the owner or
5 by leaving at his usual place of abode, if within the commonwealth,
6 a copy thereof fourteen days before the hearing. The return, if
7 not made by an officer, shall be under oath.
1 Section 25. If the owner or his usual place of abode is un- —if owner or
2 known, the petition may be filed sixty days after the money be- known or outn'
3 comes due, and the notice describing the property may be issued wealth!"011"
4 "to the unknown owner", or to the owner, naming him, "whose ^. s. 151, §§ 23,
5 usual place of abode is unknown". If the owner resides out of the fggf^l^26-
6 commonwealth or he or his usual place of abode is unknown, the
7 notice may be given by publication, as provided in section five.
1 Section 26. If, upon default or a hearing, it is found that a order for sale,
2 lien exists upon the property and that the property ought to be tion of pro- "
3 sold for the satisfaction of the debt, the court or justice may make efsfisi, §§ 25,
4 an order for such sale, determine and record the amount then due p3; f 8 192) §§ 27,
5 and award costs to the prevailing party. Any surplus of the pro- 28> 30-
6 ceeds of the sale, after satisfying the debt and costs and charges,
7 shall be paid to the owner upon demand.
1 Section 27. A party may appeal from the final order of a ApgeaL
2 police, district or municipal court or trial justice as in other civil p.' s.' 102,' § 29.'
3 actions to the superior court, which shall make an appropriate order.
4 If the respondent appeals, he shall give bond or recognize for the
5 prosecution of his appeal and for the payment, if judgment is
6 rendered against him, of any balance of the debt, with costs, which
7 may remain unsatisfied after a sale of the property.
1 Section 28. Boarding house or lodging house keepers shall have Lien of board.
2 a lien on the baggage and effects brought to their houses and be- house keepers?
1712 RECOGNIZANCES FOR DEBTS. [CHAP. 199.
g5I 23i §29. longing to their guests, boarders or lodgers, except mariners, for 3
wot '292' §31, a^ ProPer charges due for fare and board or lodging, which may 4
10 Alien', 360. be enforced as provided in the five preceding sections. 5
110 Mass. 158. 115 Mass. 70.
urfngfboSrd!* Section 29. Persons having proper charges due them for past- 1
ing and keep, uring, boarding or keeping horses or other domestic animals which 2
animals. are brought to their premises or placed in their care by or with 3
1877 96
i878| 208. the consent of the owners thereof, shall have a lien on such animals 4
p. s. 192, §§ 32, £or giick charges? which may be enforced as provided in sections 5
ill Mass.' 7ef" twenty-three to twenty-seven, inclusive, except that the petition 6
i6i Mall'. 512! mav De file<l a* *ne expiration of ten days after a demand in writ- 7
ing, and the notice issued thereon may be served seven days before 8
the hearing. 9
se^aonsnot Section 30. The provisions of the preceding sections shall not 1.
G^in^'ao restrict the right of a person who has a lien upon property to hold 2
p. s. 192,' § 34.' or dispose of it in any other lawful manner. 3
CHAPTEE 199.
of recognizances for debts.
ft>er°dfbt.zarice Section 1. A person who is competent to contract by bond 1
1782' li' i may subject his person and property to be taken on execution by 2
b. s'. us, §§ i-3. entering into a recognizance before the superior court in any county, 3
P.' s!l93;§§ 1-3." Substantially as follows : 134 Mass. 525. 151 Mass. 393. 4
Be it remembered that on this day of , , of , per-
sonally appeared before and acknowledged himself to be indebted to
of in the sum of to be paid to said on the
day of , (or in years, or in months, from this day) with
interest from this day ; and, if not then paid, to be levied upon his goods,
chattels, lands and tenements, and, for want thereof, upon his body. In witness
whereof said hath hereto set his hand.
The clause as to the payment of interest may be altered or omitted 5
according to the agreement of the parties ; but, unless the recogni- (3
zance otherwise expressly provides, interest shall be allowed for 7
any delay after the time for payment. 8
wrdebde,etc. Section 2. The recognizance shall be attested by the clerk of 1
i782| 21,' § 2. tne court5 snall be recorded at length in a book kept for the purpose 2
b. s. us, §§4, and the original shall then be delivered to the conusee. It shall 3
g.s. 152, §4. not be taken unless the iustice who takes it knows or has sat- 4
istactory evidence that the person offering to enter into it is the 5
person whom he represents himself to be and who is described as 6
the conusor. 7
?7!ie,C36tion' Section 3. If the debt is not paid at the time named in the 1
Kft.ifefSe, rec°gnizance> tne court may issue an execution in favor of the 2
G.'sti52 §§5 conusee for the amount due, which shall be directed, served and 3
s, 12.' '"■" J * returned in like manner and have like effect as an execution issued 4
P. S. 193, § 4.
Chap. 199.] recognizances for debts. 1713
5 upon a judgment of said court. Such execution may be levied and f -J- 193> §§ 6»
6 shall be obeyed in any county to which it is directed. The conusee
7 shall be entitled to an alias and other successive executions, as in a
8 civil action.
1 Section 4. Before such execution issues, the original recogni- ^ffgg1011-
2 zance shall be filed with the clerk, who shall compute the amount, ^ 21,' § 2.
"R S 118 S& 7 fi
3 deducting any payments indorsed, and shall issue an execution g! s*. 152', § V '
4 therefor in common form except that it shall recite the recognizance fkase^ra! '*
5 and state the amount then due. Such execution may be issued by
6 the clerk without a special order of the court.
1 Section 5. If the conusee dies before the debt is paid, his Death of
2 executor or administrator may, upon exhibiting to the clerk his l^ll6'
3 letters testamentary or of administration, take out the execution r8|.2111,8§|21'3^
4 and the form thereof shall be altered accordingly. g. 1. 152; § 9.
1 Section 6. If the conusor dies before the debt is fully paid, no -of conusor.
2 execution therefor shall be issued as of course, but his estate shall g. iiwlfio!
3 be liable for the debt in like manner as if judgment therefor had p- s- 193> § 10-
4 been rendered against him in his lifetime ; and the conusee or his
5 executor or administrator may recover the same from the executor,
6 administrator, heirs or devisees of the conusor in an action of con-
7 tract or by a scire facias.
1 Section 7. If one or more of several conusees or conusors dies — ofoneofsev.
2 before the debt is fully satisfied, the rights and obligations of the or conusees.
^^ ^^ T78Q 91 K 9
3 survivors and the proceedings for the recovery of the debt shall be r. s. n's, § 17.
4 substantially the same as in the case of the death of one or more p.' |; jgf; f if;
5 joint judgment creditors or debtors.
1 Section 8. No original execution shall be issued as of course Limitation of
2 upon such recognizance after the expiration of three years from the of original
3 time therein named for payment of the debt or from the time of i7si?36.011
4 the last payment indorsed thereon, but the conusee or his execu- Rff.iVsffis.
5 tor or administrator may after that time have a scire facias or an £; f • ]|f; | JJ;
6 action of contract on it against the party liable, in like manner and
7 with like effect as upon a judgment.
1 Section 9. A person who is injured by the wrongful issue or Remedy for
2 levy of an execution under the provisions of this chapter may have execution.
3 a writ of audita querela or other remedy as if the execution had i^; &.' § 4.
4 been issued upon a judgment; and, except as otherwise expressly §: il 152', I ll
5 provided, the parties to such recognizance and their representatives p.s.mb,§ia.
6 shall be entitled and liable to the remedies provided for judgment
7 creditors and debtors.
1 Section 10. The fee for taking and recording a recognizance f«bb.
2 shall be fifty cents ; and for all other services under the provisions 1782; 21* § s.
3 of this chapter the same fees shall be paid as for like services in g; |; £|; j \l
a ±u P. 8. 198, §15.
4 other cases.
1714
SEIZING AND LIBELLING FORFEITED PROPERTY. [CHAP. 200.
CHAPTER 200.
OF SEIZING AND LIBELLING FORFEITED PROPERTY.
Seizure of for-
feited prop-
erty.
1793, 43, § 1.
R. S. 118, § 20.
G. S. 153, § 1.
P. S. 194, § 1.
103 Mass. 456.
155 Mass. 10.
Section 1. Property which has been forfeited for an offence 1
may, if no other provision is made, be seized by a person entitled to 2
enforce the forfeiture or, except as otherwise provided, by a police 3
officer or constable of the city or town in which the forfeited prop- 4
erty is found, and shall be safely kept by him until it is disposed of 5
as hereinafter provided. 6
Libel by per-
son making
seizure.
1793, 43, § 2.
R. S. 118, § 21.
G. S. 153, § 2.
P. S. 194, § 2.
15 Gray, 166.
Section 2. The person who makes the seizure shall, within four- 1
teen days thereafter, file a libel in the superior court, in a police, 2
district or municipal court or with a trial justice, stating briefly the 3
cause of the seizure without the details, and praying for a decree of 4
forfeiture . 5
Jurisdiction
and venue of
libel.
1793, 43, §§ 2, 3.
R. S. 118, §§ 22,
24.
G. S.153, §§2,3.
P. S. 194, § 3.
Section 3. If the value of the property seized exceeds twenty 1
dollars, the libel may, and if such value exceeds one hundred dol- 2
lars, shall, be filed in the superior court in the county in which the 3
offence was committed ; otherwise, it shall be filed in a police, dis- 4
trict or municipal court, or with a trial justice, having jurisdiction 5
of the offence. The value for such purpose shall be ascertained by 6
an appraisal as hereinafter provided. 7
Notice if libel
is filed in su-
perior court.
1793, 43, § 2.
E. S. 118, § 23.
G. S. 153, § 4.
P. S. 194, § 4.
1885, 384, § 1.
Section 4. Upon the filing of a libel in the superior court, the 1
clerk shall issue an order of notice, stating briefly the substance of 2
the libel, which the libellant shall cause to be published twice at 3
least in a newspaper published in the county, the first publication 4
to be not less than fourteen days before the return day. 5
etc" courts,06' Section 5. If the libel is filed in a police, district or municipal 1
1793 43 §3 court or with a trial justice, the court or justice shall issue an order 2
r. s.118, §§31, of notice, stating briefly the substance of the libel and the time and 3
g.' s.153, §§i3, place appointed for the hearing, which the libellant shall cause to be 4
p.'s. 194, §§ 12, posted in a public place within the jurisdiction of such court or jus- 5
tice not less than seven days before the time appointed for the 6
hearing. 7
F793C43?§nfs' Section 6. The libel shall be entered and conducted as a civil
r. s.118, §§24, action; and if after notice no claimant appears, the court or trial
p' I'm II l'l' ins^ce sHa.ll , upon a hearing, decree a forfeiture, restoration or other
' appropriate disposition of the property. If a claimant appears, he
may allege and answer any matter material for his defence, and
either party shall be entitled to claim a jury trial upon issues of fact
as in other civil actions.
Decree.
1793, 43, § 2.
R. S. 118, § 26.
G. S. 153, § 7.
P. S. 194, § 7.
Section 7. If the libellant maintains his action, the court shall
decree a forfeiture and sale of the property and a distribution of the
proceeds, or other appropriate disposition thereof. If he fails to
maintain it, the court shall decree a restitution of the property to
the claimant.
1
2
3
4
5
6
7
1
2
3
4
5
Chap. 200.] seizing and libelling forfeited property. 1715
1 Section 8. If property is sold under such decree, the proceeds Disposition of
2 shall be applied under the direction of the court to the payment of &™sf ik^ 8.
3 the expenses of the seizure, prosecution and sale ; and in default of p-s-194> &8-
4 any other provision for the disposition of the residue, it shall be
5 paid to the person who made the seizure.
1 Section 9. If it is found that the seizure was groundless seizure with.
2 and without probable cause, reasonable damages shall be assessed causPerobable
3 for the claimant, and the court shall render judgment for such dam- r.9|. n8§§27.
4 ages with costs. g. s. 153, §9. p. s. 194, §9.
1 Section 10. In all other cases the court shall award costs to costs.
2 the prevailing party or may order the costs and charges of keeping e?I. n'sf §28.
3 and selling the property or any part thereof, to be paid out of the p." I." iff; 1 10.*
4 proceeds.
1 Section 11. Property which is alleged to have been forfeited ^"^2 °*
2 may, after its seizure, be delivered to the owner, or a person en- « i|im4a,nt;
3 titled to claim the same, upon his giving to the person who made r. s'. 118, §36.
4 the seizure a bond in double the value of the property, with sum- p.' s! 194,' § i6-.
5 cient surety, conditioned to restore the property, or pay the ap-
6 praised value thereof if it is decreed forfeited, and to abide by and
7 perform the final order, decree or judgment.
1 Section 12. The value of the property shall be determined by Appraisal on
2 three disinterested persons appointed by the parties or by a justice clamant11 °
3 of the peace to whom the claimant applies therefor, or if the ap- r.9|*. nsf §37.
4 praisal is made after the libel has been filed, by the court or justice f; f; 194' | if."
5 before whom it is pending.
1 Section 13. The person who makes the seizure shall forthwith, uonVf^rson
2 unless an application for an appraisal has been made by a claimant, making seiz.
3 apply to a justice of the peace, who shall appoint three disinterested 1793, 43, § 1.
4 persons to make an inventory and appraisal of the property seized, g! s'. 153, § 19.
5 Such appraisers shall be sworn and shall return their inventory and
6 appraisal to the court or justice before whom the libel is pending.
1 Section 14. The appraisal, under the provisions of section —to be conciu.
2 twelve, if any, otherwise, under the provisions of section thirteen, diction. ° jm
3 shall be conclusive as to the jurisdiction of the court in which the b9|'. n'y§ §1-39.
4 libel is to be filed. p.i:ift!£
1 Section 15. If appraisers who are appointed under the pro- sale of perish-
2 visions of section thirteen certify that property so seized is perish- r. s.gi°i8, §§ 40,
3 able and liable to depreciate in value by being kept any police, g.'s.158, §§21,
4 district or municipal court or any trial justice may order a sale by p;s.194i§§2o,
5 auction of such property at such time and after such notice as the 21.
6 order, which shall be indorsed on the inventory, shall direct ; but
7 the provisions of this section shall not affect the power of the court
8 in which the libel is pending to order a sale of the property for
9 sufficient cause at any time during the pendency of the libel.
1716
CLAIMS AGAINST THE COMMONWEALTH.
"Chap. 201.
CHAPTER 201.
OF CLAIMS AGAINST THE COMMONWEALTH.
Jurisdiction of
petition; ser-
vice.
Section 1. The superior court for the county of Suffolk shall 1
have jurisdiction of all claims at law or in equity against the com- 2
p. s'. i9s| §§ l, 2! monwealth. Such claims may be enforced by petition stating clearly 3
and concisely the nature of the claim and the damages demanded, 4
and such petition shall be served by the sheriff of the county of 5
Suffolk or any of his deputies by leaving an attested copy thereof 6
in the hands or in the office of the attorney general, and a like copy 7
in the hands or in the office of the secretary of the commonwealth, 8
thirty days at least before the return day thereof. 9
1887, 246,
152 Mass. 28.
174 Mass. 335,
Proceedings.
1879, 255, §§ 2, 3.
P. S. 195, § 3.
1887, 246.
174 Mass. 335.
Section 2. The provisions of law relative to tender, offer of 1
judgment, set-off and recoupment shall apply to such petition, and 2
the case shall be tried by the court without a jury and, if the amount 3
claimed is more than one thousand dollars, by three justices of said 4
court. All hearings shall be in open court and questions of law may 5
be taken to the supreme judicial court as in other cases. 6
Decision in
favor of claim-
ant.
1879, 255, § 4.
P. S. 195, § 4.
Section 3. If the final decision is in favor of the claimant, the 1
chief justice of the superior court shall certify to the governor the 2
amount found due, with the legal costs ; and the governor shall 3
draw his warrant for such amount on the treasurer and receiver 4
general, who shall pay the same from any appropriations made for 5
the purpose by the general court. 6
Judgment in
favor of com-
monwealth.
1879, 255, § 4.
P. S. 195, § 5.
Section 4. If the decision is in favor of the commonwealth, 1
judgment for costs and execution thereon shall issue in its favor 2
against the claimant ; and if such judgment is final, the claim shall 3
be forever barred. 4
ttae!tationof Section 5. The provisions of law relative to the limitation of 1
p.7|.2i595, §6. acti°ns sna^ aPply to claims against the commonwealth and to the 2
remedy herein provided. 3
TITLE Y.
CHAPTEE 202.
OF THE LIMITATION OF ACTIONS.
Sections 1-19. — Limitation of Personal Actions.
Sections 20-30. — Limitation of Keal Actions and Rights of Entry.
Section 31. — Proceedings upon Failure of Original Action.
LIMITATION OF PERSONAL ACTIONS.
1 Section 1. The following actions shall be commenced only Limitation of
2 within twenty years next after the cause of action accrues : me£i?J,T™'
3 First, Actions upon contracts under seal. R8|.5i20§ §§ i
4 Second, Actions upon bills, notes or other evidences of indebted- ^-s 155' '
5 ness issued by a bank. 4,7.
PS 197 66 1
(3 Third, Actions upon promissory notes which have been signed 6,V ' '
7 in the presence of an attesting witness, if brought by the original s Pick.8246. '
8 payee or by his executor or administrator. }l p^k! II6'
9 Fourth, Actions upon contracts which are not limited by the pro- f Met 219,' 587.
10 visions of the following section or by any other provision of law. \\ ^- ^>
4 Cush. 176. 10 Cush. 92. 124 Mass. 149. 142 Mass. 12.
5 Cush. 442. 1 Gray, 261. 125 Mass. 446. 150 Mass. 166.
6 Cush. 493. 115 Mass. 584, 126 Mass. 342. 167 Mass. 74.
8 Cush. 365. 594, 599. 134 Mass. 245. 170 Mass. 286.
1 Section 2. The following actions shall, except as otherwise —of six years.
2 provided, be commenced only within six years next after the cause mo^ifi^'u^.
3 of action accrues : Yiio-t, l7,'^±
4 First, Actions of contract founded upon contracts or liabilities, jj8! i2o§u
5 express or implied, except actions limited by the provisions of the p,|"J^'|J-
6 preceding section or actions upon iudgments or decrees of courts i3'pick.4i8.'
• 4 Met 164
7 of record of the United States or of this or of any other state of 7 Met! m! 227.
8 the United States. 4 Gray, sss.
9 Second, Actions of tort. 7 Alien1; 499.
10 Third, Actions Of replevin. HO Mass. 345, 454. 117 Mass. 359. 106 Mass. 563.
130 Mass. 373. 150 Mass. 158. 162 Mass. 412. 170 Mass. 63.
142 Mass. 383. 159 Mass. 17. 168 Mass. 133, 234. 173 Mass. 233.
1 Section 3. Actions against sheriffs for the misconduct or negli- ~£*sfour
2 gence of their deputies shall be commenced only within four years ^9|7^- ._8.
3 next after the cause of action accrues. g. s. 155, §3. 12b, §3.'
P. S. 197, §2. 10 Met. 244. 12 Cush. 161. . 4 Gray, 295.
1 Section 4. Actions for assault and battery, for false imprison- -of two years.
2 ment, for slander or libel and actions against executors, adminis- mo-il 9', §V
3 trators, guardians, trustees, sheriffs, deputy sheriffs, constables or afl.ilb,§|2.
4 assignees in insolvency, for the taking or conversion of personal S«f."x^P*S5lia.
5 property, shall be commenced only within two years next after the J^^li;
6 cause of action accrues.
[1717]
1718
LIMITATION OF ACTIONS.
[Chap. 202.
Actions for
penalties.
1788, 12, § 1.
R. S. 120, §§ 21,
22.
G. S. 155, §§ 20,
21.
P. S. 197, §§4, 5.
11 Cush. 512.
6 Gray, 338.
134 Mass. 471.
145 Mass. 311.
Section 5. Actions for penalties or forfeitures under penal 1
statutes, if brought by a person to whom the penalty or forfeiture 2
is given in whole or in part, shall be commenced only within one 3
year next after the offence is committed. But if the penalty or for- 4
feiture is given in whole or in part to the commonwealth, an action 5
therefor by or in behalf of the commonwealth may be commenced 6
within two years after the offence is committed. 7
Mutual current
account.
R. S. 120, § 5.
G. S. 155, § 5.
P. S. 197, § 8.
3 Pick. 96.
3 Met. 216.
11 Cush. 258.
Section 6. In an action of contract brought to recover the bal- 1
ance due upon a mutual and open account current, the cause of 2
action shall be held to have accrued at the time of the last item 3
proved in the aCCOUnt. 4 Allen, 108. 97 Mass. 476. 118 Mass. 486. '4
136 Mass. 30. 144 Mass. 35. 154 Mass. 472. 173 Mass. 233.
Disabilities.
1718-19, 10, § 2.
1740-1, 4, § 4.
1748-9, 17, § 2.
1770-1, 9, § 6.
1786, 52, § 4.
R. S. 120, § 6.
Section 7. If the person entitled thereto is a minor, or is in<- 1
sane or imprisoned when a right to bring such action first accrues, 2
the action may be commenced within the time hereinbefore limited 3
after the disability is removed. 4
G. S. 155, §6. 1880,13. P. S. 197, § 9. 136 Mass. 564.
Same subject.
R. S. 120, § 8.
G. S. 155, § 8.
P. S. 197, § 10.
Section 8 . If a person is disabled from commencing an action 1
by reason of his being a subject or citizen of a country which is at 2
war with the United States, the time of the continuance of such 3
war after the cause of action accrues shall be excluded in deter- 4
mining the period herein limited for the commencement of the 5
action. 6
Suspension in
case of non-
resident
defendant.
1748-9, 17, § 3.
1770-1, 9, § 7.
1786, 52, § 4.
R. S. 120, § 9.
G. S. 155, § 9.
1880, 98.
P. S. 197, § 11.
1 Pick. 263.
5 Gray, 397.
15 Gray, 349.
10 Allen, 433.
100 Mass. 167.
109 Mass. 40,
416.
118 Mass. 337.
Section 9. If, when a cause of action hereinbefore mentioned 1
accrues against a person, he resides out of the commonwealth, the 2
action may be commenced within the time herein limited after he 3
comes into the commonwealth ; and if, after a cause of action has 4
accrued, the person against whom it has accrued resides out of the 5
commonwealth, the time of such residence shall be excluded in &
determining the time limited for the commencement of the action ; 7
but no action shall be brought by any person upon a cause of action 8
which was barred by the laws of any state, territory or country 9
while he resided therein. 10
125 Mass. 574.
145 Mass. 370.
146 Mass. 20.
147 Mass. 81.
Extension of
time in case of
death.
1793, 75, § 3.
R. S. 120, § 10.
G. S. 155, § 10.
P. S. 197, § 12.
11 Met. 445.
5 Allen, 27.
109 Mass. 416.
145 Mass. 489.
146 Mass. 20.
Section 10. If a person who is entitled to bring or liable to any 1
action before mentioned dies before the expiration of the time herein 2
limited, or within thirty days after the expiration of said time, and 3
the cause of action by law survives, the action may be commenced 4
by the executor or administrator at any time within the period 5
within which the deceased might have brought the action or within 6
two^ years after his giving bond for the discharge of his trust and 7
against the executor or administrator in accordance with the limita- 8
tions provided by chapter one hundred and forty-one, relative to 9
the limitation of actions against the executor or administrator by 10
creditors of the deceased. 11
fraudulent f Section 11. If a person who is liable to a personal action 1
concealment, fraudulently conceals the cause of such action from the knowledge 2
p'f'197'f if" of the Person wno is entitled to bring it, the period prior to the dis- 3
Chap. 202.] limitation of actions. 1719
4 covery of his cause of action by the person who is so entitled shall | ££*. 212.
5 be excluded in determining the time limited for the commencement 8 Alien, 136.
a ^^.l „„i.« 118 Mass. 147.
D 01 tne action. 138 Mass. 570. 144 Mass. 313. 134 Mass. 372.
145 Mass. 484. 162 Mass. 412.
1 Section 12. No acknowledgment or promise shall be evidence Acknowiedg.
2 of a new or continuing contract whereby to take an action of con- pronmi08e.new
3 tract out of the operation of the provisions of this chapter or to r3!'. 120, \\s.
4 deprive a party of the benefit thereof, unless such acknowledgment p.' f ; J97; | if;
5 or promise has been made by, or is contained in, a writing signed l^t^m6'
6 by the party who is chargeable thereby. 8 Met- 432-
3Cush. 355. 7 Gray, 274, 387. 137 Mass. 504. 168 Mass. 133,
6 Cush. 151. 116 Mass. 529. 159 Mass. 245. 134, 249.
1 Section 13. The provisions of the preceding section shall not Ef ^ n! part
2 alter or impair the effect of a payment of principal or interest made ip4, i82,'§§i,3.
3 by any person ; but no indorsement or memorandum of any such g! s! 155; § 17'.
4 payment, written or made upon a promissory note, bill of exchange 2 Met.1 ws.§ 16'
5 or other writing by or on behalf of the party to whom such payment 1 Met! 352!
6 has been made, or purports to have been made, shall be sufficient ecush4!^.
7 proof of the payment to take the case out of the provisions of this ^f^27,^387,
8 Chapter. 122 Maes. 558. 123 Mass. 588. 97 Mass.' 8.
124 Maes. 174. 130 Mass. 199. 132 Mass. 30. 154 Mass. 472.
1 Section 14. A joint contractor or his executor or administrator Promise or
2 shall not lose the benefit of the provisions of this chapter so as to jolntcoD- y
3 be chargeable by reason only of an acknowledgment or promise l^isCfi.
4 made or signed, or by reason of a payment made by, any other b. s. 120, §§ u,
5 joint contractor or his executor or administrator. p.' I.' 197,' | n.'
14 Pick. 387. 2 Allen, 245. 123 Mass. 588. 156 Mass. 34.
1 Section 15. If, in actions against two or more joint contractors Judgment in
2 or against the executor or administrator of a joint contractor, it 1334, i8>, § 1.
3 appears that the plaintiff is barred by the provisions of this chapter q] |; Ji; | \t
4 as to one or more of such contractors, but is entitled to recover p- s- 197, § 18-
5 against any other or others of them by virtue of a new acknowledg-
6 ment or promise or otherwise, judgment shall be given for the plain-
7 tiff as to the defendants against whom he is entitled to recover, and
8 for the defendant or defendants who are not liable.
1 Section 16. An answer in abatement which alleges the non- Plea in abate-
2 joinder of a party defendant to an action of contract shall be over- Slf, iw, § 2.g
3 ruled if it appears, upon issue joined, that the action as against him G'. s'. 155', § ie'.
4 was barred by limitation. p. s. 197, §19.
1 Section 17. The limitations of the preceding sections of this £*2£™J7
2 chapter, and of section thirty-one so far as it applies to personal jSjT" ^
3 actions, shall apply to actions brought by the commonwealth or for G'. s. 155; § u.
4 its benefit. p. s. 197, § 21.
1 Section 18. If a special provision is otherwise made relative to §£Jg[01ia<
2 the limitation of any action, the provisions of this chapter which are nw, b, j 5.
3 inconsistent therewith shall not apply.
B. S. 120, §§ 4, 23. G. 8. 155, § 22. P. S. 197, $ 22.
1720
LIMITATION OF ACTIONS.
[Chap. 202.
Presumption
of satisfaction
of judgment.
R. S. 120, § 24.
G. S. 155, § 23.
P. S. 197, § 23.
22 Pick. 533.
136 Mass. 280.
Section 19. A judgment or decree of a court of record of the 1
United States or of this or any other state of the United States shall 2
be presumed to be paid and satisfied at the expiration of twenty 3
years after it was rendered. 4
Actions for
recovery of
land.
1786, 13.
1S07, 75, § 1.
R. S. 119, § 1.
G. S. 154, § 1.
P. S. 196, § 1.
7 Met. 24.
8 Met. 87.
142 Mass. 389.
LIMITATION OF REAL ACTIONS AND RIGHTS OF ENTRY.
Section 20. An action for the recovery of land shall be com- 1
menced, or an entry made thereon, only within twenty years after 2
the right of action or of entry first accrued, or within twenty years 3
after the demandant or the person who makes the entry, or those 4
under whom they claim, have been seised or possessed of the prem- 5
ises, except as hereinafter provided. i56Mass. 280. 172 Mass. 395. 6
When the
twenty years
begin to run.
R. S. 119, § 2.
G. S. 154, § 2.
P. S. 196, § 2.
Section 21. If such right or title first accrued to an ancestor or 1
predecessor of the person who brings the action or makes the entry, 2
or to any other person under whom he claims, the twenty years 3
shall be computed from the time when the right or title so first 4
accrued. 5
Same subject.
R. S. 119, § 3.
G. S. 154, § 3.
P. S. 196, § 3.
9 Mass. 508.
15 Mass. 471.
8 Met. 87.
10 Cush. 241.
15 Grav, 322.
14 Allen, 516.
11:1 Mass. 161.
119 Mass. 414.
150 Mass. 297.
Section 22. In the construction of sections twenty to thirty,
inclusive, of this chapter, the right of entry or of action to recover
land shall be held to have first accrued at the times, respectively,
hereinafter mentioned :
First, If a person has been disseised, at the time of such disseisin.
Second, If he claims as heir or devisee of a person who at his
death was seised, at the time of such death ; but if a tenancy by the
curtesy or other estate intervened after the death of such ancestor or
devisor, at the time when such intermediate estate expired or would
have expired by its own limitation.
Third, If there has been such intermediate estate or if a person
claims under a remainder or reversion, so far as his right is affected
by the limitation herein prescribed, at the time when the inter-
mediate or precedent estate would have expired by its own limita-
tion, notwithstanding any forfeiture thereof for which he might have
entered at an earlier time. The provisions of this clause shall not
prevent a person from entering if entitled so to do by reason of
any forfeiture or breach of condition ; but in such case, his right
shall be held to have accrued when the forfeiture was incurred or
the condition was broken.
Fourth, In all cases in which no other express provision is
made, at the time when the claimant or the person under whom he
claims first became entitled to the possession of the premises under
the title upon which the entry or the action is founded.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Corporation
sole.
1828, 137, § 1.
R. S. 119, § 4.
G. S. 154, § 4.
P. S. 196, § 4.
Section 23. If a corporation sole is disseised, any of its succes- 1
sors may enter upon the premises, or commence an action for the 2
recovery thereof, within five years after the death, resignation or 3
removal of the disseisee. 4
Disabilities.
1697, 22, § 1.
1786, 13, § 4.
R. S. 119, § 5.
G. S. 154, § 5.
Section 24. If, when such right of entry or of action first accrues, 1
the person who is entitled thereto is a minor, or is insane, impris- 2
oned or absent from the United States, he, or a person who claims 3
Chap. 202.] limitation or actions. 1721
4 under him, may make the entry or commence the action within ten p. s. i96, § 5.
5 years after such disability is removed. .4 Mass. i82.
2 Allen, 306. 3 Allen, 328. 10 Allen, 557.
1 Section 25. If the person who is first entitled to such right Death during
2 of entry or of action dies while under any of the disabilities men- R.Bi. liaf § 6.
3 tioned in the preceding section and there has been no determina- r.' I." 196,' f &
4 tion of, or judgment upon, the title, right or action which accrued
5 to him, the entry may be made or the action commenced by his
6 heirs, or by any other person who claims under him, within ten
7 years after his death.
1 Section 26. If, when such right of entry or of action first ac- successive
2 crues, the person who is entitled thereto is under any of such dis- R8sbii9,e§sV.
3 abilities and dies without having' recovered the premises, no further p-!-!^'!?-
4 time for making such entry or commencing such action than is 6 Mass. m
5 hereinbefore prescribed shall be allowed by reason of the disability
6 of any other person.
1 Section 27. No person shall be held to have been in possession Requisites of
2 of land within the meaning of this chapter merely by reason of R^niTiT7'
3 having made an entry thereon, unless he has continued in open and p.'f'jjjl'f g-
4 peaceable possession thereof for one year next after such entry or | Met" III"
5 unless an action has been commenced upon such entry and seisin
6 within one year after he was ousted or dispossessed.
1 Section 28. If the right of entry or of action of a tenant in Estates tan.
2 tail, or of a person who is entitled to a remainder in tail, is barred G\ %'. 154,' § 9]
3 by the provisions of this chapter, the estate tail and all remainders p- s- 196, § 9-
4 and reversions expectant thereon shall also be barred, as fully as
5 they might have been by a conveyance made by the tenant in tail
6 in the manner provided in chapter one hundred and twenty-seven.
1 Section 29. If a person who is entitled to recover land as a same subject.
2 tenant in tail or as a remainderman dies before the expiration of g! s". 154', § 10*.
3 the period hereinbefore limited for making an entry or commencing
4 an action therefor, no person who claims any estate which the tenant
5 in tail or remainderman might have barred shall make an entry or
6 commence an action to recover such land, except within the period
7 during which the tenant in tail or remainderman, if he had so long
8 lived, might have made such entry or commenced such action.
P. S. 196, § 10.
1 Section 30. No action for the recovery of land shall be com- Actions by the
2 menced by or in behalf of the commonwealth, except within twenty wealth.""
3 years after its right or title thereto first accrued, or within twenty Siii&IS
4 years after it or those under whom it claims have been seised or |f ^ _«J § n
5 possessed of the premises ; but the provisions of this section shall jjg^jy^
6 not apply to the province lands in the town of Provincetown lying 152 Mass. 450.
7 north and west of the line fixed by section four of chapter ninety-
8 six, to the Back Bay lands, so called, in the city of Boston, nor to
9 any property, right, title or interest of the commonwealth below
10 high water mark or in the great ponds.
1722 LIMITATION OF ACTIONS. [CHAP. 202.
PROCEEDINGS UPON FAILURE OF ORIGINAL ACTION.
Externum of Section 31. If, in an action which has been duly commenced 1
time in case of ,, ' . . ,. . . . _ „ •'_ „.
abatement. within the time limited in this chapter, the writ tails of a sufficient 2
1793, 75, §2.' service or return by reason of an unavoidable accident or of a 3
Sbf§ ii9' § 15' default or neglect of the officer to whom it is committed, or if the 4
ie>5,S§ iiM' § 15' writ is abated or if the action is otherwise avoided or defeated by 5
i97S§ia!' §12; the death of a party thereto or for any matter of form, or if, after a 6
82cush In verdict for the plaintiff or demandant, the judgment is arrested, or 7
l Gray, 580. if a judgment for the plaintiff or demandant is reversed, the plain- 8
130 Mass. m. tiff or demandant or any person who claims under him may com- 9
mence a new action for the same cause within one year after the 10
abatement or other determination of the original action, or after the 11
reversal of the judgment; and if the cause of action by law sur- 12
vives, the executor or administrator of the plaintiff or the heir or 13
devisee of the demandant may commence such new action within 14
said year. 15
TITLE VI.
OF COSTS, AND OF THE FEES OF CERTAIN OFFICERS.
Chapter 203. — Of Costs in Civil Actions.
Chapter 204. — Of the Fees of Certain Officers.
CHAPTER 203.
OF COSTS IN CIVIL ACTIONS.
1 Section 1 . In civil actions the prevailing party shall recover his Prevailing
2 costs, except as otherwise provided. cover coste".
R. S. 121, § 1. 7 Met. 590. 4 Gray, 201. 102 Mass. 122. 1784> 28> § 9-
G. S. 156, § 1. 8 Met. 272. 1 Allen, 212. 123 Mass. 318.
P. S. 198, § 1. 2 Cush. 325. 3 Allen, 468. 126 Mass. 232, 290.
1 Section 2. If a discontinuance or a nonsuit is entered in an costs if defend-
2 action solely in consequence of an answer of the defendant which lSi'"^^4'
3 alleges his discharge in bankruptcy or insolvency, the defendant ifil'it?.
4 shall recover no costs. If issue is joined upon such defence solely p'l'^g'ftl'f'
5 and judgment is rendered for the defendant, he shall recover his 4Cush.5oo. '
6 costs after, but not before, the joinder of such issue.
1 Section 3. If, in a civil action before a police, district or —on appeals
2 municipal court or a trial justice, the plaintiff appeals from a judg- courtsTetc.6
3 ment in his favor or if the defendant appeals from a judgment in his r2|.9iIi, §2.
4 favor upon a demand in set-off and does not recover in the superior f^f'^'^f;
5 court a greater amount for debt or damages than he recovered by p- s- 198> § 4-
6 the first judgment, he shall recover no costs arising after the ap-
7 peal, and shall pay the costs of the appellee arising after the appeal.
1 Section 4. If, in an action of contract or replevin which is —in supreme
2 commenced in the supreme judicial court, the plaintiff does not 1859/196, §3_o.'
3 recover, either in damages or in the value of the property claimed, p.' s.' 198,' | s."
4 an amount equal to three hundred dollars, which shall be assessed
5 by the jury which tries the cause, by an assessor agreed upon by the
6 parties, or by an award of arbitrators, he shall recover no costs.
1 Section 5. If, in a personal action, except an action of replevin -^superior
2 or an action under the provisions of section fifteen of chapter one lmo-i, .», § 8.
3 hundred and ninety-six, which is commenced in the superior court, nse.&As."
4 the plaintiff does not recover final judgment for more than twenty r^.k/.^Js,
5 dollars for debt or damages, he shall recover no costs, unless the J^u> 16B( § 2
6 right to an easement or the title to land is drawn in question and gj^jlf?'"6'6-
7 the justice before whom the action is tried so certifies, or unless the j^^'^m.
[1723]
1724
COSTS IN CIVIL ACTIONS.
[Chap. 203.
6 Cush. 275.
8 Cush. 280.
12 Cush. 457.
1 Gray, 625.
2 Gray, 336.
plaintiff's claim, as established on the trial, exceeds twenty dollars 8
and is reduced to that amount or less by set-offs which could not 9
have been proved in payment. 10
11 Gray, 486.
2 Allen, 268.
10 Allen, 68.
11 Allen, 352.
14 Allen, 159.
100 Mass. 191.
133 Mass. 470.
134 Mass. 14.
fendant brings Section 6. If a defendant brings money into court and offers 1
money into = jt jn satisfaction of the damages, the plaintiff shall recover the costs 2
r. s. i2i, §14. which had previously accrued, although he may not recover a larger 3
amount than is so brought into court. 4
S. 156, § 8.
S. 198, § 9.
— in real ac-
tions and in
replevin.
R. S. 121, § 13.
G. S. 156, § 9.
Section 7. The prevailing party in a real action or in an action 1
of replevin shall, except as provided in section four, recover costs 2
irrespective of the amount of damages recovered. p. s. 198, § 10. 3
— in unneces-
sary actions.
1743-1, 23.
1784, 28, § 12.
R. S. 121, § 15.
G. S. 156, § 10.
1879, 226, § 2.
P. S. 198, § 11.
10 Cush. 303.
Section 8. A plaintiff who brings several actions in the same or 1
in different courts against the same defendant upon causes of action 2
which might have been joined in one action, or who brings separate 3
actions against defendants who might have been joined, shall re- 4
cover costs in one action only, unless the court, after a hearing, 5
otherwise orders. 6
— in cases
tried together.
1892, 231.
Section 9. If two or more cases are tried together in the su-
preme judicial court, in the superior court or in a police, district
or municipal court, the presiding judge may reduce the witness fees
and other costs ; but not less than the ordinary witness fees and
other costs recoverable in one of the cases which are so tried to-
gether shall be allowed.
1
2
3
4
5
6
— if plaintiff
pi-evails on
certain counts
only.
R. S. 121, § 16.
G. S. 156, § 11.
P. S. 198, § 12.
1 Met. 291.
2 Met. 599.
2 Cush. 180.
4 Cush. 148.
170 Mass. 162.
Section 10. If a verdict is rendered for the plaintiff upon one 1
or more counts upon several and distinct causes of action, and for 2
the defendant upon any other or others, each party shall recover 3
costs for the travel and attendance of witnesses, for depositions and 4
for other evidence produced, examined or used on the trial of the 5
counts upon which the verdict is in his favor, but shall not recover 6
for the like charges incurred on the trial of the other counts. 7
Second action
for same cause
stayed, when.
1829, 128, § 3.
R. S. 121, § 17.
G. S. 156, § 12,
P. S. 198, § 13.
100 Mass. 409.
Section 11. If a judgment for costs upon a nonsuit or discon- 1
tinuance remains unsatisfied, the court in which a second action for 2
the same cause is brought may order proceedings therein to be 3
staj^ed until such costs have been paid, and may further order that 4
the action be dismissed unless they are paid within a time expressed 5
in the order. 6
doubfi^r0* Section 12. If double or treble costs are allowed, the witness 1
i8|blio508§i ^eeS' ^e COst °^ taking depositions, of procuring evidence and of 2
r. s. 121, § is. copies and all court dues, shall be taxed and recovered singly, and 3
p'. s. 198,' § u! the remainder only of the taxable costs shall be doubled or trebled. 4
Costs in suits
for discovery.
1841, 129.
G. S. 156, § 15.
P. S. 198, § 16.
1 Met. 237.
Section 13. In suits in equity in which, as to one or more of 1
the defendants, the plaintiff seeks merely for a discovery of facts 2
which are material to his rights and interests in a pending or antici- 3
pated suit, and not for a decree against them, the court shall allow 4
such defendants all their reasonable costs and expenditures, accord- 5
ing to the usual course of proceedings in equity in like cases, 6
Chap. 203.] costs in civil actions. 1725
7 although the plaintiff prays for a decree, if the court is satisfied
8 that the prayer is frivolous, a mere pretence, or is not essentially
9 connected with the subject matter of the discovery.
1 Section 14. In suits in equity and in other civil actions and costs in di8.
2 proceedings in which no provision is expressly made by law, the court, when.
3 costs shall be wholly in the discretion of the court, but no greater pfs\m,§§520.
4 amount shall be taxed therein than is allowed for similar charges in p.' f; m, f n."
5 actions at law. 1 Allen, 212. 104 Mass. 363.
1 Section 15. In civil actions and in proceedings which are insti- —in actions by
~ . . j , ■ ,, fit ii i , vae common.
2 tuted by, or in the name 01, the commonwealth, and not at the wealth.
3 relation, in behalf, or for the use, of a private person, the com- g! s! ioe* § 17.
4 mon wealth shall be liable for costs in the manner and to the same f Gr"ay9825§. 18'
5 extent as a natural person.
1 Section 16. A private person at whose relation, for whose use —in such ac-
2 or in whose behalf an action or proceeding is commenced in the in behalf ol
3 name of the commonwealth or of the attorney general shall be liable feusaili)e§23n'
4 for costs in the manner, and to the same extent, as if the action or p.' f; Iff; f Jf;
5 proceeding had been begun in his own name.
1 Section 17. If a judgment for costs is rendered against the —judgments
2 commonwealth, the treasurer of the county to which the costs in the'common-
3 such case would have been paid had the judgment been in favor of r?s. m, § 24.
4 the commonwealth shall pay it upon the production of an attested ^,'iu! § 19'
5 copy thereof ; but if the costs would have been paid into the F- s- ly8> § 20-
6 treasury of the commonwealth had the judgment been in favor of
7 the commonwealth, the treasurer and receiver general shall pay it
8 upon the production of an attested copy thereof.
1 Section 18. If costs are taxed for the commonwealth, no fees no travel for
2 shall be taxed or allowed for the travel of the attorney general or era"™*
18m 182 5 2
3 of any other attorney for the commonwealth.
R. S. 121, § 25. G. S. 156, § 20. P. S. 198, § 21.
1 Section 19. The provisions of this chapter shall not take away Powers of
2 or control the power of arbitrators or referees to award costs ; nor courts" °
3 the power of a court to require costs to be paid by either party as R8s'.5il'if f§ 21,
4 the condition of an amendment, continuance or other order which <f.'s.i56,§2i.
5 is passed upon his motion, or to withhold and refuse costs on like "j* ■J{{*j*f>J12*-
6 Occasions. 103 Mass. 580. 108 Mass. 232.
1 Section 20= Costs shall be taxed by the clerk of the court, or, ^Y^™^
2 in actions before a court which has no clerk, or before a trial justice, notice, etc.^
3 by the justice. No costs shall be taxed without notice to an ad- uml&H'
4 verse party who gives seasonable notice in writing to the clerk or Gi s; ,,-,„; § ^
5 justice of his desire to be present at the taxation, or who causes such Ji&J&J 23-
6 notice to be entered on the docket. Notice given by or to the attor- « Alien, m.
7 ney in the action shall be equivalent to notice by or to the party.
1 Section 21. Either party may appeal from the taxation by the Apgegfrom
2 clerk to the court in which the action is pending, or to a justice j«3%iL
3 thereof. P. S. 198, §24. 1 Gray, 420. 104 Mass. 363. G. S. IX, § 23*.
1726
COSTS IN CIVIL ACTIONS.
[Chap. 203.
Costs, execu-
tion for, pend-
ing appeal.
1829, 52, § 1.
R. S. 121, § 30.
G. S. 156, § 25.
P. S. 198, § 26.
148 Mass. 603.
Section 22. If the appellant is liable for the costs, the appellee 1
may take out execution and cause it to be satisfied, if he first gives 2
bond with sufficient surety or sureties, who shall be approved by 3
the clerk, in a sum equal to the costs, payable to the appellant, con- 4
ditioned to repay such part of the costs as may be disallowed upon 5
the appeal, and to perform such other order as the court or justice 6
shall make thereon. 7
— of such
appeal, allow-
ance of, etc.
1829, 52, § 2.
R. S. 121, § 31.
G. S. 156, § 26.
P. S. 198, § 27.
102 Mass. 116.
135 Mass. 570.
Section 23. The costs incurred by the appeal may be allowed 1
to either party by the court or justice before whom such appeal is 2
heard, and they may be added to or deducted from the costs awarded 3
in the principal action or may be collected upon a separate execu- 4
tion. 158 Mass. 274. 5
— items of,
in supreme
judicial court
and superior
court.
1701-2, 7, § 3.
1786, 73.
1795, 41, § 1.
R. S. 121, §§ 32-
34, 36.
1842, 67.
1851, 233, § 118.
1852, 312, § 81.
1855, 449, § 7.
1856, 246.
G. S. 156, § 27.
1861, 163.
P. S. 198, § 28.
1882, 264, § 1.
1 Met. 293.
16 Gray, 287.
102 Mass. 80.
119 Mass. 83.
137 Mass. 138.
174 Mass. 67.
— when place
for trial is
designated.
1882, 264, § 2.
Section 24. There shall be allowed as costs in a civil action in 1
the supreme judicial court or in the superior court, in addition to 2
other disbursements allowed by law, as follows : — 3
For the entry fee, three dollars. 4
For the declaration, fifty cents. 5
For an attorney's fee, if an issue in law or fact is joined, two 6
dollars and fifty cents ; if not, one dollar and twenty-five cents. 7
For a term fee, five dollars for each sitting while the action is 8
pending, not exceeding three sittings, except by an order of the 9
court. If an action or if any question of law therein is carried to 10
the full court, two additional term fees may be allowed. If the de- 11
fendant is defaulted without having appeared, only one term fee 12
shall be allowed. 13
For travel, except to carry to, or to take from, the clerk's office 14
any writ or process, thirty-three cents for every ten miles,, not ex- 15
ceeding eighty miles out and home, unless the party, his agent or 16
attorney actually travels more than forty miles for the express pur- 17
pose of attending the court in such cause. In such case, allowance 18
may be made, in the discretion of the court, according to the dis- 19
tance actually travelled. 20
Section 25. If the shire town in which a case shall be tried has 1
been designated under the provisions of section eighty-two of chap- 2
ter one hundred and seventy-three, no costs shall be allowed for 3
sittings held in any other town than the town so designated unless 4
the action is actually tried in such other town by agreement of the 5
parties. 6
— of printing
briefs.
1865, 33.
P. S. 198, § 29.
Section 26. The prevailing party shall be allowed not more 1
than ten dollars, as the court considers reasonable, for expenses 2
actually incurred in printing the briefs which may be required for 3
the argument of the case at the law sitting of the supreme judicial 4
court. 5
— items of, in
police courts,
etc.
1786, 73.
1795, 41, § 1.
R. S. 121, §§ 32-
34,36.
G. S. 156, § 27.
1870, 151, § 3.
1876, 227, § 5.
P. S. 198, § 30.
Section 27. There shall be allowed as costs in a civil action in 1
a police, district or municipal court or before a trial justice, except 2
actions by the trustee process, in addition to other disbursements 3
allowed by law, as follows : — 4
To the plaintiff or complainant, — 5
For a writ and declaration, petition or complaint, one dollar. 6
Chap. 203.] costs in civil actions. 1727
7 For an attorney's fee, if there is an appearance for the defendant,
8 two dollars and fifty cents ; if not, one dollar and twenty-five
9 cents.
10 For a term fee in a police, district or municipal court, three dol-
11 lars, if there is an appearance for the defendant; and if not, one
12 dollar ; before a trial justice, one dollar.
13 For travel, the fees allowed therefor by section twenty-four.
14 For attendance, thirty- three cents for each day's actual attend-
15 ance by him or his attorney ; but not for more than three days'
16 attendance, if the defendant is defaulted without having appeared,
17 or for attendance after the day on which the action is finally dis-
18 posed of for the sitting, which day shall be entered on the docket.
19 To the defendant, —
20 For travel, the fees allowed therefor by section twenty-four.
21 For attendance, thirty-three cents for each day's attendance by
22 him or his attorney ; but not for attendance after the day on which
23 the action is finally disposed of for the sitting, which dajr shall be
24 entered on the docket.
25 For a term fee, three dollars ; but before trial justices, one dollar.
26 For an attorney's fee, two dollars and fifty cents.
1 Section 28. There shall be allowed as costs in an action by the costs, items of,
2 trustee process in a police, district or municipal court or before Interprocess
3 a trial justice, in addition to the other disbursements allowed by SurtsCetc
4 law, as follows:— grf'm'/f"
5 To the plaintiff, — p- s'- 198'> § 31-
6 For a writ and declaration, one dollar.
7 For an attorney's fee, one dollar and fifty cents.
8 For a term fee, if there is an appearance, one dollar ; and if not,
9 seventy -five cents.
10 For travel and attendance, the same fees as are allowed to a
11 plaintiff by the preceding section.
12 To the defendant, —
13 For an attorney's fee, one dollar and fifty cents.
14 For travel and attendance, the same fees as are allowed to a de-
15 fendant by the preceding section.
16 To the trustee, —
17 For an attorney's fee, fifty cents.
18 For an answer in writing, twenty-five cents.
19 For travel and attendance, the same fees as are allowed to a de-
20 fendant by the preceding section.
21 For an answer to interrogatories, such costs as the court may
22 allow.
23 To an adverse claimant, —
24 Such costs as the court may allow.
1 Section 29. In a proceeding before a police, district or munici- -££$£]£?
2 pal court or before a trial justice under the bastardy laws, the g| p«g .J*,
3 costs shall be the same as in civil cases.
1 Section 30. If a corporation is entitled to costs, travel shall be computation
2 computed from the place in which the corporation is situated, if it fevorofa
3 is in its nature local ; otherwise, from the place in which its business ffii, §n»5.
4 is chiefly or commonly transacted. g.s.156,§28. p.s.198,§33.
1728 FEES OF CERTAIN OFFICERS. [CHAP. 204.
CHAPTEK 204.
OF THE FEES OF CERTAIN OFFICERS.
Section 1. — Justices of the Peace.
Sections 2-5. — Police, District and Municipal Courts and Trial
Justices.
Sections 6-9. — Clerks of the Courts.
Sections 10-16. — Sheriffs, Deputy Sheriffs and Constables.
Sections 17-24. — Jurors, Witnesses, Appraisers, Commissioners, etc.
Section 25. — Town Clerks.
Section 26. — Ministers, etc., for Marriages.
Sections 27, 28. — Secretary of the Commonwealth.
Section 29. — Registers of Deeds.
Section 30. — Registers of Probate and Insolvency.
Section 31. — Notaries Public .
Section 32. — Commissioners in Other States.
Sections 33-55. — General Provisions.
JUSTICES OF THE PEACE.
onhe f eaceiC6S Section 1. The fees of justices of the peace shall be as fol- 1
1795, 4iT§ie' lows: — 2
g!s.'i57,'§§i,2. For a subpoena for one or more witnesses, ten cents. 3
For taking a deposition, fifty cents; for writing the deposition 4
and caption, at the rate of twelve cents a page ; for notice to the 5
adverse party, twenty cents. The justice shall certify his fees and 6
the deponent's fees on the deposition. 7
1866, 193, § 2. For administering an oath required by law, except on a trial or 8
examination before him, to one or more persons at one time, twenty- 9
five cents. 10
For the acknowledgment of a deed by one or more grantors, if 11
taken at one time, twenty-five cents. 12
For granting a warrant of appraisal, twenty cents. 13
1879* 254! * 1- For issuing a warrant under the provisions of sections three and 14
four of chapter one hundred and sixty-one, one dollar. 15
For taking a deposition to perpetuate testimony, each justice shall 16
be entitled to the fees prescribed, for all services which are per- 17
sonally rendered by him. 18
police, district and municipal courts and trial justices.
coeuit8,fete!ice Section 2. The fees of police, district and municipal courts, 1
?4v-il,?8«ef shall be as follows : — 2
l/9o, 41, § 1.
r. s. 122, § 2. In civil actions, — 3
is5s; 449,* § 14. For a blank writ of original summons or attachment and sum- 4
1859,241. \a j. k
g. s\ 157, §2. mons, five cents. 5
is??) m' 1 1" For tne entry of an action, except a bastardy complaint, or for 6
1879' 226 i' ^e ^mS °f a petition, including filing of papers, entering up and 7
p. s'. 199, § 2. recording judgment, one dollar. 8
For each order of notice and rule of reference, fifty cents. 9
1899) 333; 1 1. For an alias or renewed execution, twenty-five cents. 10
Chap. 204.] fees of certain officers. 1729
11 For approving an appeal bond, including principal and surety,
12 twenty cents.
13 In bastardy cases, — Bastardy
14 For approving each bond given by a respondent, one dollar.
cases.
1 Section 3. A special justice, when not holding court, shall be Fees of special
2 paid by the county one dollar for each warrant issued by him. 187M54.
P. S. 199, § 3.
1 Section 4. In bastardy cases, police, district or municipal courts copies in
2 or their clerks shall make no charge for copies for transmission to without7 cases
3 the superior court of the complaint, warrant, record or taxed bill ls^H's, §2.
4 of costs, or for the transmission of the bond of the respondent.
1 Section 5 . The fees of trial justices shall be as follows : — Fees of trial
~ r . .7 , . justices. Civil
2 In civil actions, — cases.
3 For a blank writ of original summons or attachment and sum- R9|'.mf§i.
4 mons, seventeen cents. gPI.'iw, § 2.
5 For the entry of an action, except a bastardy complaint, or for ij^j'^'ff;
6 the filing of a petition, including filing of papers, examining, allow-
7 ing and taxing costs for the plaintiff, entering up and recording
8 judgment, one dollar.
9 For the trial of an issue, one dollar.
10 For each order of notice, fifty cents.
11 For taxation of costs for the defendant, except in the trustee proc-
12 ess, twenty-five cents.
13 For taxation of costs for the defendant, trustee or claimant in the
14 trustee process, ten cents.
15 For a writ of execution, twenty-five cents.
16 For taking a recognizance to prosecute an appeal, including prin-
17 cipal and surety, twenty cents.
18 In criminal cases, — casesCnmmal
19 For receiving complaint, administering the oath, issuing a war- me, 227, 1 4.
20 rant, entering the complaint, rendering and recording judgment, i89i', 325| § 2.
21 examining, allowing and taxing costs, filing papers, issuing a sub- 1892'200i§
22 poena for one or more witnesses, for a trial or for a hearing on any
23 plea whatever, for discharging without complaint a person arrested
24 for drunkenness, for taking a recognizance of principal, sureties
25 and witnesses, for a mittimus and for notice in cases of juvenile
26 offenders, three dollars, which shall be paid by the county.
27 For copies upon appeal or for the grand jury, two dollars.
28 For necessary travel, the actual expenses incurred, which shall be
29 paid by the county.
30 In bastardy cases, — casesbaBtar y
31 For approving each bond given by the respondent, one dollar.
CLERKS OF THE COURTS.
1 Section 6. The fees of clerks of the courts shall be as fol- ^courts.8
n 1 171*5, 41, § 1.
2 lows : — a. s. \k\ § 2.
3 For a blank writ of attachment and summons or an original sum- l««, gra.
4 mons, five cents. p.s.'w'fl"
5 For a subpoena for one or more witnesses, ten cents. \m, '$v}\ii «.
6 For a venire facias for jurors, six cents. see; wo.
1730
FEES OF CERTAIN OFFICERS.
[Chap. 204.
1891, 87.
1899,91; 333, §1.
1900, 372, § 3.
161 Mass. 594.
168 Mass. 304.
For a writ of review or other writ in civil proceedings, not before 7
mentioned, five cents. 8
For the entry of an action or suit, except a bastardy complaint, 9
or of a libel for divorce, or of a petition in the supreme judicial 10
court or the superior court or for filing a petition to the county 11
commissioners, for taxing costs, for issuing a subpoena, injunction 12
or execution, except an alias or renewed execution, and for issuing 13
any order of notice or other mesne, interlocutory or final order, 14
rule, decree or process authorized by law, three dollars, which shall 15
be paid by the plaintiff, libellant, petitioner or appellant as the case 16
may be. 17
For the entry, record and transmission of papers of each question 18
or cause in the supreme judicial court for the commonwealth, three 19
dollars. 20
For a rule to an auditor, master, referee or assessor, one dollar. 21
For an alias or renewed execution, twenty -five cents. 22
For a certificate of the proof of a deed in court, twenty cents. 23
For the warrant for a county tax, twenty cents. 24
In civil actions in which the commonwealth or a county is the 25
plaintiff, no entry fee shall be paid, but if the plaintiff prevails, it 26
shall be taxed against the defendant. 27
Copies.
1879, 300, § 2.
P. S. 199, § 5.
[1 Op. A. G.
622.]
Additional
fees for record
of judgment.
1888, 257, § 7.
Fees collected
in advance.
Section 7. When clerks cause copies which they are required 1
by law to furnish to be printed, they shall make no charge for such 2
printed copies in excess of the amount actually paid for the printing 3
thereof. They may require the estimated cost of said printing to 4
be paid in advance, and they shall supervise the printing and cor- 5
rect the proofs without charge. All written copies, including such 6
as are prepared for printing, shall be charged for at the rate of 7
twenty cents a page. 8
Section 8. When a judgment or decree is entered up, and upon 1
inspection it appears that the record thereof or the record of the 2
proceedings will be of unusual length, the court may order the pre- 3
vailing party to pay such amount, in addition to the entry fee, as 4
may be just and equitable. 5
Section 9. Clerks of the courts shall collect all fees in advance. 1
1888, 257, § 8. 168 Mass. 304.
Fees of
sheriffs, etc.
Service of
writs.
1795, 41, § 1.
E. S. 122, § 5.
G.S.157, §§4,7.
1860, 191, § 1.
1865, 101.
1877, 177, § 1.
1878, 272, § 1.
P. S. 199, § 6.
102 Mass. 514.
122 Mass. 541.
139 Mass. 296.
155 Mass. 259.
SHERIFFS, DEPUTY SHERIFFS, AND CONSTABLES.
Section 10. The fees of sheriffs, deputy sheriffs and constables 1
shall be as follows : — 2
For the service of an original summons or scire facias, either by 3
reading it or by leaving a copy thereof, fifty cents for each defend- 4
ant upon Avhom service is made. 5
For the service of a capias, of an attachment with summons or of 6
a trustee process, fifty cents for each defendant or trustee upon 7
whom service is made ; but the fee for the service of a trustee proc- 8
ess returnable before a police, district or municipal court or trial 9
justice, upon each trustee after the first shall be twenty-five cents, 10
and the fee for each copy after the first shall be ten cents. If the 11
officer by the direction of the plaintiff or his attorney makes a 12
special service of a writ, either by attaching personal property or 13
Chap. 204.] fees or certain officers. 1731
14 arresting the body, he shall be entitled to one dollar for each de-
15 fendant upon whom the writ is so served.
16 For the custody of personal property attached or taken on execu-
17 tion, not more than two dollars for each day of twenty-four hours
18 for the keeper while he is in charge, and not more than fifty cents
19 a day for the officer for a period not longer than ten days. But
20 the officer may be allowed a greater compensation for himself or for
21 his keeper, or compensation for a longer period, by the written
22 consent of the plaintiff and the defendant who owns the property,
23 or by order of the court upon a hearing.
24 For taking bail and furnishing and writing the bail bond, one Fees for taking
25 dollar, which shall be paid by the defendant, and taxed in his bail'etc-
26 bill of costs, if he prevails.
27 For serving an execution in a personal action, and collecting — for serving
28 damages or costs on an execution, warrant of distress or other like execx,tlons'etc-
29 process, for an amount not exceeding one hundred dollars, four
30 cents for every dollar ; all above one hundred dollars, and not ex-
31 ceeding five hundred dollars, two cents for every dollar ; and all
32 above five hundred dollars, one cent for every dollar; but such
33 percentage shall be allowed only upon the amount actually col-
34 lected, and if payment is made by the debtor on demand, or with-
35 out levy of the execution upon his property or body, the fees shall
36 be one-half only of the above rates.
37 For serving a writ of seisin or possession in a real action, one
38 dollar and ten cents. If served on more than one parcel of land,
39 seventy-five cents for each parcel after the first.
40 For serving an execution upon a judgment for partition, or for
41 assignment of dower or curtesy, one dollar a day.
42 For serving a warrant of capias in a criminal proceeding, fifty ~^^ine
43 cents, and of a summons upon the defendant, ten cents, for each P^cess.
44 person upon whom the same is served. i88i| m, § 2'.
45 For serving a writ of habeas corpus, mittimus, state prison war-
46 rant, venire or notice to jurors for attendance upon any court,
47 civil or criminal, and for service of process issued during the pen-
48 dency of a prosecution, except subpoenas, thirty cents for each
49 person upon whom the service is made.
50 For summoning witnesses, ten cents for each witness. _ s^S/naJ.lng
51 For dispersing treasurer's warrants and proclamations of all kinds, \m, 216, §'e.
52 eight cents each, without allowance for travel.
53 "For a copy of a mittimus, warrant or other precept required by -ftr copies.
54 law in criminal cases, twenty-five cents. 1865) 259; §1.
55 For travel in the service of original writs, executions, warrants, - for travel
56 subpoenas and like processes, four cents a mile each way, to be com- 6^7. ^
57 puted from the place of service to the court or place of return ; and i^sis!
58 if the same precept is served upon more than one person, the travel
59 shall be computed from the most remote place of service, with such
60 further travel as was necessary in serving it ; if the distance from
61 the place of service to the place of return exceeds twenty and does
62 not exceed fifty miles, four cents a mile one way only shall be
63 allowed for all travel exceeding twenty miles, and, if it exceeds
64 fifty miles, only one cent a mile one way shall be allowed for all
^5 travel exceeding that distance.
66 For travel in summoning witnesses in criminal cases ten cents a
67 mile each way for a distance of not more than twenty miles, and
1732 FEES OF CERTAIN OFFICERS. [CHAP. 204.
for any excess over twenty miles, five cents a mile each way, and 68
no more. The distance shall be computed from the most remote 69
place of service to the place of return, but upon a subpoena, the 70
court shall reduce the fee for travel to a reasonable amount for 71
the service performed if the travel charged has not been actually 72
performed by the officer who made the service. 73
1862, 216, §i. Yor travel in the service of venires and notices to jurors, five 74
cents a mile from the place of service to the place of return. 75
tamel by man. Section 11. If the person who delivers or forwards a process to 1
p7| 199 §7 an °fficer f°r service requests him to return it by mail or express, 2
compensation shall not be allowed for more than twenty miles' 3
travel in the service, unless the officer actually and necessarily 4
travels more than that distance in serving the same, exclusive of 5
travel from the place of service to the place of return ; and an 6
officer in such case, who properly directs such process to the place 7
of return and delivers it prepaid at the post office, or to an express 8
company, shall not be liable for damages if it fails to reach its 9
destination. 10
antcai^rialL Section 12. If it is necessary for an officer in the service of 1
pfl. lit §V. c*vil process to use a horse and carriage for a distance exceeding 2
122 Mass. 543. two miles one way, he shall be allowed therefor twelve cents a mile 3
one way for a distance not exceeding twenty miles. 4
Expense in of Section 13. In the service of precepts in criminal cases, the 1
^jo1'^*1 § 38es- officer shall be allowed the actual, reasonable and necessary ex- 2
p6| 199 19 Penses incurred in going or returning with the prisoner, and if he 3
1885,' 254.' necessarily uses his own horse and carriage, he shall be allowed there- 4
for fifteen cents a mile for the distance travelled one way, and if he 5
uses the horse and carriage of another person, he shall be allowed 6
the amount actually expended by him therefor ; but no allowance 7
for the use of a horse and carriage shall be made unless the officer 8
certifies that it was necessary for him to use a horse and carriage 9
and that he actually used them for the distance, and paid therefor the 10
amount, stated in his certificate. If, in the service of a mittimus, 11
the journey from the town where the prisoner is held to the town 12
where he is to be committed can be made by railroad, no allowance 13
shall be made for the use of a horse and carriage. 14
"er
upon inferior Section 14. The fee for attending before a police, district or 1
KOUsrti22, § 5. municipal court or trial justice shall be one dollar a day, upon one 2
1111; i|.§ 2- warrant only, if there are two or more against the same defendant 3
fm,'m'it at tne same time; but if a trial is continued upon the arraign- 4
p8s'i99§io ment without examination, no fee upon the day of arraignment 5
shall be allowed. If the defendant in a criminal case is brought in 6
by a summons, the fee for attendance shall be the same as that 7
taxed upon a warrant. 8
commissioners. Section 15. A deputy sheriff shall be allowed three dollars a 1
P^s'.mf §5. day f°r attendance upon a meeting of the county commissioners by 2
1856; i85.§2' their order> and five cents a mile for travel out and home once a 3
G.s.i57,§4. Week during the attendance, to be paid by the county. 4
1866, 190. p. S. 199, § 11.
Chap. 204.] fees of certain officers. 1733
1 Section 16. Sheriffs and other officers shall be paid by the Fees for serv-
2 commonwealth, for serving precepts for the election of representa- fof HeSl
3 tives in congress, fifty cents each, and for the service of subpoenas |usP6,Yio.
4 issued by order of the general court or either branch thereof, the }fg; |g § 4
5 same fees as are allowed for the service of subpoenas issued bv a §-lf-"f»f *•
n , ■*■ ^ Jr. h. 199, § 12.
6 COUrt. 1899, 218.
JURORS, WITNESSES, APPRAISERS, COMMISSIONERS, ETC.
1 Section 17. A grand juror or traverse juror in any court or - of jurors.
2 before a sheriff shall receive three dollars a day for attendance, and llo^lHi:
3 eight cents a mile for travel out and home. A juror who serves r.°s,.i2V§1w.
4 in court shall also be allowed the amount of the expense necessarily \lf^ f|J; § I#
5 incurred by him for transportation by railroad or stage from his fgj-ffi § 8-
6 home to the court and return, in excess of the said allowance for i869;73.'
- , , 1873,36.
7 travel. 1879, m p. s. 199, § 13. 1899, 383.
1 Section 18. Officers who serve subpoenas or other processes in —for service
2 connection with inquests held by police, district or municipal courts, ?eiativeeto
3 shall be paid their fees and expenses by the county as in criminal is^o^'h.
4 cases, in the same manner as the fees of witnesses are paid in crim-
5 inal cases in said courts.
1 Section 19. In cases against juvenile offenders, an officer who —incases
2 attends as a witness at a place other than his residence may be juvenile
3 allowed by the court or justice his increased necessary expenses, not l^^a.8'
4 exceeding the witness fee before such court or justice, and the
5 reasonable necessary expense of serving a mittimus.
1 Section 20. If an officer, whose compensation for services in -for arrests
2 criminal proceedings is derived from taxable fees, makes an arrest for ness.
3 drunkenness and the person arrested is discharged without being [io'p. a.g.' '
4 taken into court or before a trial justice, he shall be entitled to the 597-J
5 same fees as if a complaint had been made against the person ar-
6 rested. If the arrest is made without a warrant, the officer shall
7 make a statement of his fees in writing, under oath, in the nature
8 of a return upon a precept, and shall send it to the court or trial
9 justice having jurisdiction of the offence. Special police officers
10 who make arrests for drunkenness in cities and towns in which the
11 police officers or constables receive salaries shall be entitled to no
12 fees under the provisions of this section.
1 Section 21. The fees for attending as a witness in a civil case -of witnesses.
2 in the supreme judicial court, superior court, probate court or court }^.|.§2-
3 of insolvency or to persons, except the debtor, who are examined K.s.122, §10.
4 under the provisions of section eighty-two of chapter one hundred {^; fl\
5 and sixty-three, unless fraudulent conduct is charged and proved g$.3ff$;
6 against them, shall be one dollar and fifty cents a day ; for attend- J«J g. § i-
7 ing before either of said courts in a criminal case, before county g^^|Ui
8 commissioners or a sheriff's jury, or before the general court, one }mM
1 n 1, -\' t- f i. ' 1 1»S Maes. aw.
9 dollar and twenty-five cents a day ; for attending be.ore a trial m Mass. se.
10 justice, or police, district or municipal court, referee, arbitrator, or
11 on any other occasion for which no express provision is made, fifty
12 cents a day ; and in all cases, five cents a mile for travel out and
1734
FEES OF CERTAIN OFFICERS.
[Chap. 204.
home. Each witness shall certify in Avriting the amount of his 13
travel and attendance. . 14
nee8esfhdd'm Section 22. A witness who is detained in jail under the provi- 1
jail. sions of section fifty of chapter two hundred and seventeen shall 2
be allowed a witness fee of not less than one dollar and fifty cents 3
for each day of his detention, unless the court otherwise orders. 4
Interpreters.
1893, 385.
— ofapprais- Section 23. The court shall determine the compensation of 1
1795. 4i," §1. private persons who perform service required by law, or in the ex- 2
g". s". 157, §8." ecution of legal process, if no other provision therefor is made. 3
P. S. 199, § 15. 1886, 135.
Section 24. Police, district and municipal courts and trial jus- 1
tices may allow reasonable compensation to interpreters and to wit- 2
nesses from without the commonwealth in criminal proceedings 3
before them, which shall be paid by the county in the same manner 4
as witness fees. 5
Pees of town
clerks.
1795, 41, § 1.
R. S. 122, §§ 11,
12.
1849, 202, § 2.
1850, 121, § 4.
G. S. 157, § 9.
P. S. 199, § 16.
TOWN CLERKS.
Section 25. The fees of town clerks shall be as follows : — 1
For entering notice of an intention of marriage and issuing the 2
certificate thereof, and for entering the certificate of marriage which 3
is filed by persons married out of the commonwealth, fifty cents, 4
which shall be paid by the parties. 5
For a certificate of a birth or death, ten cents. 6
Fee for mar-
riages.
1795, 41, § 1.
R. S. 122, § 11.
MINISTERS, ETC., FOR MARRIAGES.
Section 26. The fee for lawfully solemnizing and certifying a 1
marriage shall be one dollar and twenty-five cents.
G. S. 157, § 10.
P. S. 199, § 17.
Pees of secre-
tary of the
common-
wealth.
1795, 41, § 1.
R. S. 122, § 13.
G. S. 157, § 11.
— for examina.
tion of the
records, etc.
1863, 231, § 3.
P. S. 199, § 19.
SECRETARY OF THE COMMONWEALTH.
Section 27. The fees of the secretary of the commonwealth
for copies furnished to any private person shall be at the same rate
by the page as is allowed to registers of deeds, and twenty-five
cents additional shall be allowed for the secretary's certificate.
1863, 231, § 1.
1865, 259, § 1.
P. S. 199, § 18.
Section 28. Every person upon whose application an examina-
tion of records or papers is made by direction of the secretary of
the commonwealth shall pay to the secretary therefor the actual
expense* of such examination, and of copying the manuscript or
record required ; but any person whom the secretary considers to
be entitled to exemption from said fees shall receive such service
and copies for such reduced fees, or without fee, as the secretary
decides that the case requires.
1
2
3
4
1
2
3
4
5
6
7
8
Fees of regis-
ters of deeds.
1795, 41, § 1.
R. S. 122, § 15.
1855, 311, § 1.
REGISTERS OF DEEDS.
Section 29. The fees of registers of deeds shall be as follows : — 1
For entering and recording a deed or other paper, certifying the 2
same on the original, and indexing it, and for all other duties per- 3
Chap. 204.] fees of certain officers. 1735
4 taining thereto, twenty -five cents. If it contains more than one G.s.i57,§i2
5 page, at the rate of twenty cents for each page after the first, fmim':!™''
6 The fees shall be paid when the instrument is left for record.
7 For all copies, at the rate of twenty cents a page.
8 For entering in the margin a discharge of a mortgage, twenty-
9 five cents.
10 For entering a discharge of an attachment or of a lien on build-
11 ings and land, if such discharge is certified by them, twenty-five
12 cents.
13 For entering a partial release of an attachment, twenty-five cents.
REGISTERS OF PROBATE AND INSOLVENCY.
1 Section 30. The fees of registers of probate and insolvency Feesofregie-
2 shall be as follows : — aend ufsoi te
3 For copies of records or other papers in their charge, the fees ilJ^g §2
4 which are provided by this chapter for similar copies unless the fees
5 are otherwise fixed by law.
NOTARIES PUBLIC.
1 Section 31. The fees of notaries public shall be as follows : — —of notaries
2 For the protest of a bill of exchange, order, draft or check for r^i^, § i6.
3 non-acceptance or non-payment, or of a promissory note for non- Jf3| 93;7 § 13
4 payment, if the amount thereof is five hundred dollars or more, p- s- 199' § 21-
5 one dollar ; if it is less than five hundred dollars, fifty cents ; for
6 recording the same, fifty cents ; for noting the non-acceptance or
7 non-payment of a bill of exchange, order, draft or check or the
8 non-payment of a promissory note, seventy-five cents ; and for
9 each notice of the non-acceptance or non-payment of a bill, order,
10 draft, check or note, given to a party liable for the payment thereof,
11 twenty-five cents ; but the whole cost of protest, including neces-
12 sary notices and the record, if the bill, order, draft, check or note
13 is of the amount of five hundred dollars or more, shall not exceed
14 two dollars, and if it is less than five hundred dollars, shall not
15 exceed one dollar and fifty cents ; and the whole cost of noting,
16 including recording and notices, shall in no case exceed one dollar
17 and twenty-five cents.
COMMISSIONERS IN OTHER STATES.
1 Section 32. The fees of commissioners appointed under the pro- -of commiB-
2 visions of section nine of chapter seventeen shall be as follows : — other^tates,
3 For administering oaths and certifying the same under their f& 76>
4 official seals, one dollar for each; for taking acknowledgments of f^,* 88.423."
5 deeds and other instruments and certifying the same under their
6 official seals, one dollar for each ; for each written page contained in
7 any deposition or affidavit taken by them, fifty cents ; for admin-
8 istering the oath or affirmation to each deponent, one dollar ; for
9 authenticating, sealing up and directing each deposition, one dollar ;
10 for services not hereinbefore specified, the same fees as are allowed
11 to justices of the peace in this commonwealth for like services ; but
12 the court to which a deposition is returnable shall order further
13 allowance therefor if it appears proper to do so.
1736
FEES OF CERTAIN OFFICERS.
[Chap. 204.
Fees in cases
not specified.
JR. 8. 122, § 21.
1855, 311, § 3.
G. S. 157, § 14.
GENERAL PROVISIONS.
Section 33. The fees of public officers for any official duty or 1
service shall, except as otherwise provided, be at the rate pre- 2
scribed in this chapter for like services. 3
P. S. 199, § 23. 1893, 469, § 2.
— for copies.
1865, 259, § 1.
P. S. 199, § 24.
1893, 469, § 2.
Section 34. Public officers who are required by law to furnish 1
copies of records or other papers shall receive fees for such copies 2
at the same rate as is allowed to registers of deeds, unless otherwise 3
provided. 4
"Page "de-
fined.
1795, 41, § 1.
Section 35. A page, when used as the measure of computation, 1
shall mean two hundred and twenty -four words. 2
R. S. 122, §22. G. S.157, §15. P. S. 199, § 25. 1893, 469, § 2.
bepo°stefdeinto Section 36. Each of the officers before mentioned, who keeps 1
public offices. a public office, shall always keep posted in a conspicuous and con- 2
r. s. 122, § 17. venient place in his office a printed or written list of the fees pre- 3
p.' s.' 199,' §26.' scribed in this chapter, so far as they relate to him. 1893,469, §2. 4
Officer to spec-
ify items if
required.
1795, 41, § 5.
R. S. 122, § 18.
G. S. 157, § 17.
P. S. 199, § 27.
1893, 469, § 2.
Section 37. An officer receiving fees for any official duty or 1
service, who, upon request of the person paying them, refuses or 2
neglects to make out in writing a particular account of such fees, 3
specifying for what they respectively accrued, shall forfeit to such 4
person three times the amount so paid. 5
Indorsement
of fees on writ.
Certificate of
use of horse
and carriage.
1795, 41, § 1.
R. S. 122, § 9.
G. S. 157, § 18.
1864, 274, §§ 2, 3.
P. S. 199, §§ 28,
29
110 Mass. 426.
Section 38. No fees for the service of any writ or precept of 1
which the officer is required to make a return shall be allowed, 2
unless indorsed on the writ or precept ; and no allowance for the 3
use of horse and carriage in the service of a civil process shall be 4
made, unless the officer certifies that it was necessary for him to use 5
a horse and carriage, and that he actually used such conveyance the 6
distance set forth in his certificate. An officer who makes a false 7
certificate under the provisions of this section shall forfeit thirty 8
dollars for each offence, to the use of the commonwealth ; but a suit 9
therefor shall be commenced within two years after the offence was 10
committed. 11
Return of
expense in
criminal cases
under oath.
1862, 216, §§ 4,
5 12.
I5. s! 199, §§ 30,
31.
1890, 440, § 7.
Section 39. No fees shall be allowed upon the return of an
officer upon a precept in a criminal case, in which expenses are
charged, unless every item of expense incurred and the name of
the person to whom each amount was paid is set forth under oath
in the return ; and no item of expense which may be considered
unreasonable shall be allowed by the court or trial justice without
satisfactory proof that the expense was necessarily incurred and the
amount reasonable. But the superior court, with the approval in
writing of the district attorney, or a police, district or municipal
court or a trial justice, may, upon the petition of an officer named
in sections forty-two and forty-three, allow extra compensation for
any meritorious service for which the fees allowed by law are
manifestly inadequate. No allowance shall be made for aid in the
service of a mittimus, unless it is first authorized in writing by
the court which issues it. Justices, clerks and assistant clerks of
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
•Chap. 204.] fees of certain officers. 1737
16 courts shall administer the oath to officers upon their returns, at
17 their request; and no fee shall be allowed to an officer for such
18 oath, and no justice of the peace shall be entitled to a fee for
19 administering such oath.
1 Section 40. If more than one criminal process is served upon single fees
2 the same defendant at one time, or on the same day, or if two or y?c^,etc.forf
3 more prisoners are conveyed at one time by the same officer, by fame «meat
4 virtue of a mittimus, habeas corpus or state prison warrant, either p6!^'!^
5 on one process or on several processes, one travelling fee and one
6 service only shall be allowed in conveying such additional prisoner
7 or prisoners, in addition to the actual reasonable expense necessarily
S incurred.
1 Section 41. No fee shall be allowed to a trial justice for issu- No fee for
2 ing more than one mittimus, nor to an officer for the service of slrvinfmore
3 more than one mittimus, in cases in which two or more persons are muT etc mitti"
4 jointly convicted and sentenced to the same place of imprisonment ; p86! f£> ls&
5 and if the superior court is of opinion that a trial justice has im-
6 providently issued two or more warrants against the same defend-
7 ants for similar offences, no fees shall be allowed to the justice upon
8 any of said warrants.
1 Section 42. No officer in attendance on any court, sheriff, officerenot to
2 deputy sheriff, jailer, constable, city marshal or other police officer be paid fees,
3 who receives a salary or an allowance by the day or hour from the 1862, 216, §§'io,
4 commonwealth or from a county, city or town shall, except as 1876, 215; 227,
5 otherwise hereinafter provided, be paid any fee or extra compensa- !\'s. 199, §§ 34,
6 tion for official services performed by him in any criminal case ; or f|g9> 469
7 for aid rendered to another officer ; or for testifying as a witness J89°> m> §§ *•
8 in a criminal case during the time for which he receives such salary i89i, 325, §1.
9 or allowance ; or for services or as a witness at an autopsy or inquest ; 594, m.]'
10 or in proceedings for commitment of insane persons ; but his ex-
11 penses, necessarily and actually incurred, and actually disbursed by
12 him in a criminal case tried in the superior court, shall be paid by
13 the county in which the trial is held, and in a criminal case tried in
14 a police, district or municipal court or before a trial justice, by the
15 city or town in which the crime was committed. Whoever receives
16 extra compensation or a witness fee in violation of the provisions
17 of this section shall be punished by a fine of not more than one
18 hundred dollars.
1 Section 43. The fees and expenses of officers, other than those Fees and ex.
2 named in the preceding section, in a criminal case tried in the E^n
3 superior court, shall be paid by the county in which the trial is gg!g §c?2'
4 held, and in a criminal case tried in a police, district or municipal isH.saUi.
5 court or before a trial justice, by the city or town in which the
6 crime was committed.
1 Section 44. Any officer named in section ftvty-two who -ofcertain
2 attends as a witness at a place other than his residence, shall, 1890,%, § c.
3 instead of his expenses, be allowed by the day the witness fee in
4 the court or before the trial justice where he testifies. A police
ses.
1738
FEES OF CERTAIN OFFICERS.
[Chap. 204.
officer on duty at night who attends the superior court as a witness 5
for the commonwealth shall be paid the same fees as any other wit- G
ness. A police officer who is a witness for the commonwealth, and 7
who under the direction of the district attorney aids in securing the 8
attendance of other witnesses, may receive, instead of his expenses, 9
the witness fee for one day's attendance. Police officers shall serve 10
subpoenas upon witnesses when requested by the district attorney, 11
and their returns of service shall have the same force and effect as 12
the return of a deputy sheriff or constable. 13
Compensation
of officers for
attending
superior court
in criminal
cases.
1890, 440, § 7.
Section 45. A deputy sheriff or other officer attending the 1
superior court for criminal business, who serves any subpoena or 2
capias between the daily sessions of said court, may receive such 3
extra compensation as the district attorney may allow. The officers 4
shall make return, under oath, of the time actually occupied and 5
of all expenses actually incurred and paid in performing such extra 6
service. 7
Fees of rail-
road police.
1890, 440, § 9.
Section 46. Eailroad police shall not be entitled to any fees 1
for attendance upon a trial as witnesses for the commonwealth, but 2
they may be allowed their necessary expenses therefor. . 3
— of district
police.
1868, 338.
1870, 326, § 1.
1879, 305.
P. S. 199, § 36.
Lx4?-A-G-
Section 47. A district police officer or an officer of the com- 1
monwealth whose salary is fixed by law, shall not be entitled to a 2
witness fee before any court or trial justice of this commonwealth 3
in a cause in which the commonwealth is a party. An officer whose 4
compensation is derived solely from fees shall not be entitled to re- 5
ceive more than one fee as a witness for a day's attendance on court 6
under one or more summonses in behalf of the commonwealth, and 7
the said fee shall be apportioned by the clerk among the cases in 8
which he is so summoned. 9
Officers may
be allowed
expenses.
1870, 326, § 2.
P. S. 199, § 37.
Section 48. If it appears on oath that a salaried officer of the 1
commonwealth has attended court as a witness in behalf of the 2
commonwealth, at a place other than his residence, and that his 3
necessary expenses have been increased by such attendance, the 4
court or trial justice may allow such increased necessary expenses, 5
not exceeding one dollar and fifty cents a day in all, for such actual 6
and necessary attendance. 7
Penalty.
1870, 326, § 3.
P. S. 199, §38.
1890, 440, § 12.
Section 49. Whoever receives a witness fee or allowance for 1
increased necessary expenses in violation of the provisions of the 2
three preceding sections shall be punished by a fine of not more 3
than one hundred dollars. Every clerk of a court and trial justice 4
shall report forthwith to the district attorney for his county every 5
violation of said sections which comes to his knowledge, and said 6
district attorneys shall institute prosecutions therefor. 7
Witnesses'
fees appor-
tioned in
certain cases.
1855, 180, § 2.
G. S. 157, § 20.
1860, 191, § 6.
P. S. 199, § 39.
Section 50. If witnesses are in attendance in two or more crim- 1
inal cases pending at the same time before the same court, they shall 2
not be allowed full travel and attendance in each case, but the 3
justice or clerk of the court or trial justice may reduce and appor- 4
tion the same, allowing at least one travel and attendance. 5
Chap. 204.] fees of certain officers. 1739
1 Section 51. If, on the trial of a criminal case, it appears that a witnesses' fees
2 witness has induced the defendant to commit the crime with which incertamsed
3 he is charged with intent to appear as a witness against him, the SKb.
4 court or magistrate may in his discretion refuse to allow him his S-f- 31 £•
5 fees. r.b.i99,Ho.
1 Section 52. A sheriff, deputy sheriff or other officer who takes officers not to
2 the certificates of witnesses in criminal cases shall not purchase or ordwsfeV
3 discount or have any interest in orders drawn or demands upon the ofLwr §§322
4 treasury by such witnesses. P.s.i99,'§«.
1 Section 53. Whoever, with intent to defraud, signs or pro- Penalty for
2 cures to be signed a certificate of attendance or travel as a witness eatllofw^
3 before a court, trial justice or reference founded upon a rule of ?8e54Se38oetc'
4 court, in any case in which the witness did not so attend, or for a p'f'^g'fff*
5 greater number of days than he actually attended, or for a greater
6 number of miles than he actually travelled, upon which certificate
7 the attendance or travel so claimed is allowed as a part of the
8 expenses of prosecution, shall forfeit thirty dollars for each offence,
9 to be recovered on complaint or indictment to the use of the county,
10 or by action of tort to the use of any person against whom such
11 excessive costs were taxed, with four times the whole amount
12 taxed for attendance or travel on such false certificate, and double
13 costs in the action of tort. Such complaint, indictment or action
14 shall be commenced within two years after the offence was com-
15 mitted.
1 Section 54. If the administration of justice or the progress of f^todefin-
2 business in criminal proceedings is delayed, obstructed or prevented J^^ff •
3 by the negligence of a magistrate in certifying and returning recog- g. s. 157, § 19.
4 nizances, records or other official papers which it is his duty to
5 transmit to a higher court, or in omitting the formalities required
6 by law, the district attorney, with the approval of the court, may
7 refuse to allow the fees, either in whole or in part, to which such
8 magistrate would otherwise be entitled.
*taJ
1 Section 55. If the court finds that a complaint in a criminal -to complain-
2 case is unfounded, frivolous or malicious, it may refuse to allow isoo, 440, § 13.
3 any fees to the complainant.
1740
RIGHTS OF PERSONS ACCUSED OF CRIME. [CHAP. 205.
PART IV.
OF CRIMES, PUNISHMENTS, PROCEEDINGS IN CRIM-
INAL CASES, AND PRISONS.
TITLE I.
OF CRIMES AND PUNISHMENTS.
Chapter 205.
Chapter 206.
Chapter 207.
Chapter 208.
Chapter 209.
Chapter 210.
Chapter 211.
Chapter 212.
Chapter 213.
Chapter 214.
Chapter 215.
-Of the Rights of Persons accused of Crime.
- Of Crimes against the Sovereignty of the Commonwealth.
- Of Crimes against the Person.
■ Of Crimes against Property.
• Of Forgery and Crimes against the Currency.
-Of Crimes against Public Justice.
- Of Crimes against the Public Peace.
• Of Crimes against Chastity, Morality, Decency and Good
Order.
-Of Crimes against the Public Health.
-Of Crimes against Public Policy.
-Of Felonies, Accessories and Attempts to commit Crimes.
CHAPTER 205.
OF THE RIGHTS OF PERSONS ACCUSED OF CRIME.
Person ar-
rested to be
informed of
charge.
1852, 224, § 1.
G. S. 15S, § 1.
P. S. 200, § 1.
Section 1. Whoever is arrested by virtue of process, or 1
whoever is taken into custody by an officer, has a right to know 2
from the officer who arrests or claims to detain him the true ground 3
on which the arrest is made ; and an officer who refuses to answer 4
a question relative to the reason for such arrest, or answers such 5
question untruly, or assigns to the person arrested an untrue rea- 6
son for the arrest, or neglects upon request to exhibit to the person 7
arrested, or to any other person acting in his behalf, the precept by 8
virtue of which such arrest has been made shall be punished by a 9
fine of not more than one thousand dollars or by imprisonment for 10
not more than one year. 11
Penalty for
arrest on false
pretence.
1852, 224, § 2.
G. S. 158, § 2.
P. S. 200, § 2.
Section 2. An officer who arrests or takes into or detains in
custody a person, pretending to have a process if he has none,
or pretending to have a different process from that which he has,
shall be punished by a fine of not more than one thousand dol-
lars or by imprisonment for not more than one year.
1
2
3
4
5
Chap. 206.] crimes against sovereignty of commonwealth. 1741
1 Section 3. No person shall be held to answer in any court for Prosecution of
2 an alleged crime, except upon an indictment by a grand jury, upon DecLoi Rights,
3 a complaint before a police, district or municipal court or trial jus- ^s]%3 §1
4 tice or upon proceedings before a court-martial. p. s. 200, § 3. G- s- 158>> § 3-
1 Section 4. A person who is accused of crime shall at his trial be counsel for
2 allowed to be heard by counsel, to defend himself, to produce wit- Dedfof iaights,
3 nesses and proofs in his favor and to meet the witnesses produced Rrts!2i23 § 2.
4 against him face to face. g. s.iss, §4. p. s. 200, §4.
1 in-
1 Section 5. A person who is indicted for a crime shall not be Persons i
2 convicted thereof except by confessing his guilt in open court, by convfc'ted.w
3 admitting the truth of the charge against him by his plea or demurrer q\ f ; j||' 1 f;
4 or by the verdict of a jury which has been accepted and recorded by ^inl^'M"
5 the court.
1 Section 6. A person shall not be held to answer on a second fceuittaf°rmer
2 indictment or complaint for a crime of which he has been acquitted g^^V;
3 upon the facts and merits ; but he may plead such acquittal in bar g! s! 158, § e!
"P S 900 fi fi
4 of any subsequent prosecution for the same crime, notwithstanding 12 Gray,' 171.'
5 any defect in the form or substance of the indictment or complaint in Mass' 404'
6 on which he was acquitted. 113 Mass. 200. 160 Mass. 276.
1 Section 7 . If a person has been acquitted by reason of a - when not a
2 variance between the indictment or complaint and the proof, or by Rars. 123, § 5.
3 reason of a defect of form or substance in the indictment or com- £; f ; 200,' f 7.'
4 plaint, he may be again arraigned, tried and convicted for the same J| Alien IIIL
5 crime on a new indictment or complaint, notwithstanding such for- 105 Mass- 1*>9.
6 mer acquittal.
1 Section 8. A person shall not be punished for a crime unless no person to
2 he has been legally convicted thereof by a court having competent untuUconhed
3 jurisdiction of the cause and of the person. R.cs!di23, § 6
G. S. 158, § 8. P. S. 200, § 8.
CHAPTER 206.
OF CRIMES AGAINST THE SOVEREIGNTY OF THE COMMONWEALTH.
1 Section 1. Treason against this commonwealth shall consist Treason de-
2 onlv in levying war against it, or in adhering to the enemies Deci.pf Rights,
J JO O ' -1.111 1_ V. •! 1_1 art- *»•
3 thereof, giving them aid and comfort, and it shall not be bailable, c. l. 15, § 12;
' & to 263, § 2.
1696, 255, §1. 1776-7, 32, §§2, 3. 1852, 259, § 4. 1871, 61.
1744^5, 6, j 1. R. S. {24, § 1. G. S. 159, § 1; 170, § 54. P. S. 201, § 1; 212, § 72.
1 Section 2 . Whoever commits treason against this common — punishment
2 wealth shall be punished by imprisonment in the state prison for b.'l. m. § 12.
3 life. 1696,255, §1. 1744-5, 6, § 1. 1776-7, 32, § 2.
R. S.124, §2. 1852, 259, § 1. G. S. 159, § 2. P. S. 201, § 2.
1 Section 3. Whoever, having knowledge of the commission of -"**«*■
2 treason, conceals the same and does not as soon as may be disclose g'ffifM^8,
3 and make known such treason to the governor, or to a justice of aj.us!j8.
1742
CRIMES AGAINST THE PERSON.
[Chap. 207,
the supreme judicial court or the superior court, shall be guilty of 4
misprision of treason, and shall be punished by a fine of not more 5
than one thousand dollars or by imprisonment in the state prison 6
for not more than five years, or in jail for not more than two years. 7
treason.f Section 4. No person shall be convicted of treason except by 1
Ri*s\u'$l1' ^ne testimony of two witnesses to the same overt act of treason 2
o!s! 15M*. whereof he stands indicted, unless he confesses the same in open 3
1'. S. 201, § 4. ' v .
court. 4
Misuse of flag.
1899, -254.
1901, 153.
Section 5. Whoever publicly mutilates, tramples upon, de- 1
faces or treats contemptuously the flag of the United States or of 2
Massachusetts, whether such flag is public or private property, or 3
whoever displays such flag or any representation thereof upon 4
which are words, figures, advertisements or designs, shall be pun- 5
ished by a fine of not less than ten nor more than one hundred 6
dollars ; but a flag which belongs to a grand army post, to a camp 7
of the legion of Spanish war veterans or which is the property of or 8
is used in the service of the United States or of this commonwealth 9
may have the names of battles and the name and number of the 10
organization to which such flag belongs inscribed thereon. Trial 11
justices shall have jurisdiction of violations of the provisions of this 12
section. 13
Display of
foreign flag.
1895, 115.
Section 6. Whoever displays the flag or emblem of a foreign 1
country upon the outside of a state, county, city or town building 2
or public school house shall be punished by a fine of not more than 3
twenty dollars ; but the provisions of this section shall not apply 4
when a citizen of such foreign country becomes the guest of the 5
United States or of this commonwealth, if the governor by procla- 6
mation authorizes the flag of the country of which such guest is a 7
citizen to be displayed upon public buildings other than school 8
houses. 9
CHAPTEK 207
of crimes against the person.
Murder
defined.
1784, 69.
R. S. 133, § 15
1858, 154, §§ 1-
G. S. 160, §§ 1-
P.S.202, §§ 1-
7.
16 Gray, 1.
12 Allen, 155.
118 Mass. 36.
Section 1. Murder committed with deliberately premeditated 1
malice aforethought, or with extreme atrocity or cruelty, or in the 2
|. commission or attempted commission of a crime punishable with 3
' death or imprisonment, for life, is murder in the first degree. 4
' Murder which does not appear to be in the first degree is murder 5
in the second degree. Petit treason shall be prosecuted and pun- 6
ished as murder. The degree of murder shall be found by the jury. 7
126 Mass. 253. 165 Mass. 45. 174 Mass. 246.
Section 2. Whoever is guilty of murder in the first degree
Punishment
for murder. ,-,
c.L.'iiHtl: shal* suffer the punishment of death, and whoever is guilty of mur-
iK 44,'§ 1. der in tne second degree shall be punished by imprisonment in the
4
1784, 44, §1. . " "-
1804, 123, §1. state prison for life.
R. S. 125, § 1.
1858, 154, §§ 4, 5.
G. S. 160, §§ 4, 5.
P. S. 202, §§ 4, 5.
1
2
3
Chap. 207.] crimes against the person. 1743
1 Section 3. An inhabitant or resident of this commonwealth *rui;der iD a
2 who, by previous appointment or engagement made within the common-0
3 commonwealth, fights a duel outside its jurisdiction, and in so Res.i25, §3.
4 doing inflicts a mortal wound upon a person whereof he dies within p." I.' 202,' f 9.'
5 the commonwealth shall be guilty of murder within this common-
6 wealth, and may be indicted, tried and convicted in the county in
7 which the death occurs.
1 Section 4. An inhabitant or resident of this commonwealth ^^Baory in
2 who, by previous appointment or engagement made within the g- 1- ^5, § 4.
3 same, becomes the second of either party in such duel and is pres- p.' s.' 202,' §10.'
4 ent as a second when a mortal wound is inflicted upon a person
5 whereof he dies within this commonwealth shall be an accessory
6 before the fact to murder in this commonwealth, and may be in-
7 dieted, tried and convicted in the county in which the death occurs.
1 Section 5. A person who is indicted under either of the two Former con-
2 preceding sections may plead a former conviction or acquittal of the lutotcom-'
3 same crime in any other state or country; and if his plea is ad- bar?whenha
4 mitted or established, it shall be a bar to all further proceedings §! i" 1I0' I ii
5 against him for the same crime within this commonwealth. p- s- 202-' § n-
1 Section 6. Whoever engages in a duel with a deadly weapon, Engaging in
2 although no homicide ensues, or challenges another to fight such fnu|, etchalleng"
3 duel, or sends or delivers a written or verbal message purporting "IH^'is; § 1.
4 or intended to be such challenge, although no duel ensues, shall be ™**> ;y§§\2-
5 punished by imprisonment in the state prison for not more than R- 1- ^i § 6^
6 twenty years or by a fine of not more than one thousand dollars p. s. 202,' § 12.
7 and imprisonment in jail for not more than three years ; and shall
8 be incapable of holding or of being elected or appointed to any
9 place of honor, profit or trust under the constitution or laws of this
10 commonwealth for twenty years after such conviction.
1 Section 7. Whoever accepts or knowingly carries or delivers Accepting or
2 any such challenge or message, whether a duel ensues or not, and cSfenfe and
3 whoever is present at the fighting of a duel with deadly weapons as i^fisf a§t.iel'
4 an aid, second or surgeon, or advises, encourages or promotes such giiiiRlu.
5 duel, shall be punished by imprisonment for not more than one p. s. 202, §13.
6 year or by a fine of not more than five hundred dollars ; and shall
7 be incapable, as provided in the preceding section, for five years
8 after such conviction.
1 Section 8. Whoever posts another, or in writing or print p°8£n£ranot
2 uses any reproachful or contemptuous language to or concerning flghtin^duei.
3 another, for not fighting a duel or for not sending or accepting a «•§;«$ j }J;
4 challenge shall be punished by imprisonment for not more than
5 six months or by a fine of not more than one hundred dollars.
1 Section 9. Whoever, by previous appointment or arrange- f^e fighting.
2 ment, engages in a fight with another person shall be punished by G.|.ijfo, j'w.
3 imprisonment in the state prison for not more than ten years or 7Gny,fcL '
4 by a fine of not more than five thousand dollars. U.f'
1744
CRIMES AGAINST THE PERSON.
[Chap. 207.
Aiding, advis-
ing, etc., prize
fight.
1849, 49, § 2.
G. S. 160, § 16.
P. S. 202, § 16.
7 Gray, 324.
Leaving com-
monwealth
to fight.
1849, 4-9, § 3.
G. S. 160, § 17.
P. S. 202, §17.
108 Mass. 302.
Section 10. "Whoever is present at such fight as an aid, second 1
or surgeon, or advises, encourages or promotes such fight, shall be 2
punished by imprisonment in the state prison for not more than 3
five years or by a fine of not more than one thousand dollars and 4
by imprisonment in jail for not more than three years. 5
Section 11. An inhabitant or resident of this commonwealth 1
who, by previous appointment or engagement made in this com- 2
monwealth, leaves the same and engages in a fight with another 3
person outside the limits thereof shall be punished by imprison- 4
ment in the state prison for not more than five years or by a fine 5
of not more than five thousand dollars. 6
Boxing
matches for
reward.
1896, 422.
Section 12. Whoever engages in or gives or promotes a public 1
boxing match or sparring exhibition, or whoever engages in a private 2
boxing match or sparring exhibition for which the contestants have 3
received or have been promised any pecuniary reward, remuneration 4
or consideration whatsoever, directly or indirectly, shall be pun- 5
ished by a fine of not more than two hundred dollars or by im- 6
prisonment for not more than three months, or by both such fine 7
and imprisonment. 8
i78£44,u§g2ter' Section 13. Whoever commits manslaughter shall be punished 1
lsis' ill' II' ky imprisonment in the state prison for not more than twenty 2
r. s'. 125, § 9. years or by a fine of not more than one thousand dollars and im- 3
p.' s.' 202,' § is.' prisonment in jail for not more than three years. 4
Mayhem.
B. L. 87.
1804, 123, § 4.
R. S. 125, § 10.
G. S. 160, § 19.
P. S. 202, § 19.
133 Mass. 571.
Assault with
intent to mur-
der, maim, etc.
1784, 65, § 3.
1804, 123, § 5.
1818, 124, § 3.
R. S. 125, § 11.
G. S. 160, § 20.
P. S. 202, § 20.
10 Gray, 11.
162 Mass. 495.
Attempt to
murder by
poisoning, etc.
1832, 62.
R. S. 125, § 12.
G. S. 160, § 21.
P. S. 202, § 21.
170 Mass. 18.
Section 14. Whoever, with malicious intent to maim or dis-
figure, 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 disables a limb or member, of another person, and who-
ever is privy to such intent, or is present and aids in the commis-
sion of such crime, shall be punished by imprisonment in the state
prison for not more than twenty years or by a fine of not more
than one thousand dollars and imprisonment in jail for not more
than three years.
Section 15. Whoever assaults another with intent to commit
murder, or to maim or disfigure his person in any way described
in the preceding section, shall be punished by imprisonment in the
state prison for not more than ten years or by a fine of not more
than one thousand dollars and imprisonment in jail for not more than
three years.
Section 16. Whoever attempts to commit murder by poison-
ing, drowning or strangling another person, or by any means
which does not constitute an assault with intent to commit murder,
shall be punished by imprisonment in the state prison for not more
than twenty years or by a fine of not more than one thousand dol-
lars and imprisonment in jail for not more than three years.
Section 17. Whoever, being armed with a dangerous weapon,
Robbery, being
armed, etc. - ■■ — — . ~-j ~~..»..& ^^^v* .nuu i* v^»..&v
iPi.HjS.Vis. assaults another and robs, steals and takes from his person money
1839,127.' or other property which may be the subject of larceny, with intent
1
2
3
4
5
6
7
8
9
1
2
3
4
5
6
1
2
3
4
5
6
1
2
3
Chap. 207.] crimes against the person. 1745
4 if resisted to kill or maim the person robbed, or, being so armed, pl^'fl'
5 wounds or strikes the person robbed, shall be punished by impris- n' Alien,' 20. '
r> j. • at- j. x ■ ■ £ tit J 165 Mass. 1&3.
6 onment in the state prison for life.
1 Section 18. Whoever, being armed with a dangerous weapon, Assault with
2 assaults another with intent to rob or murder shall be punished by etce,nbeing0b'
3 imprisonment in the state prison for not more than twenty years. 1^2'n § 1
1784, 52, §2. 1818, 124, §3. G. S. 160, § 23. 8 Gray, 387.
1804, 143, § 9. R. S. 125, § 14. P. S. 202, § 23.
1 Section 19. Whoever, not being armed with a dangerous Robbery, not
2 weapon, by force and violence, or by assault and putting in fear, ceiLgi2™4d'
3 robs, steals and takes from the person of another money or other milfoil i!
4 property which may be the subject of larceny, shall be punished iTgJ'ifc21*'!1'
5 by imprisonment in the state prison for life or for any term of ^°| J^. §j-
6 years. 7 Mass. 242. 8Cush. 215. 12 Allen, 541. 126 Mass. 252. G. S. 16o| § 24!
J P. S. 202, § 24.
1 Section 20. Whoever, not being armed with a dangerous Assault with
2 weapon, assaults another with force and violence and with intent etc^no1" being
3 to rob or steal shall be punished by imprisonment in the state i804,e?43, §9.
4 prison for not more than ten years. r. s. 125, §16. g. s. 160, §25.
P. S. 202, § 25. 12 Cush. 270. 14 Gray, 393. 167 Mass. 442.
1 Section 21. Whoever, with intent to commit larceny or any confining or
2 felony, confines, maims, injures or wounds, or attempts or threat- aptersonmf0trar
3 ens to kill, confine, maim, injure or wound, or puts any person steabng^ete.0*
4 in fear, for the purpose of stealing from a building, bank, safe, p87|.|002)§26.
5 vault or other depository of money, bonds or other valuables, or Jj^j^f;^;
6 by intimidation, force or threats compels or attempts to compel 168 Mass. 222.'
7 any person to disclose or surrender the means of opening any
8 building, bank, safe, vault or other depository of money, bonds or
9 other valuables, or attempts to break, burn, blow up or otherwise
10 injure or destroy a safe, vault or other depository of money, bonds
11 or other valuables in any building or place, shall, whether he suc-
12 ceeds or fails in the perpetration of such larceny or felony, be
13 punished by imprisonment in the state prison for life or for any
14 term of years.
1 Section 22. Whoever ravishes and carnally knows a female by a^ g
2 force and against her will shall be punished by imprisonment in leW/is.'
3 the state prison for life or for any term of years. 1852, 259, § 2. xm\ <J7; § 1.
G.S.160, §26. P. S. 202, §27. ' 1888,391. 8 Gray, 489. R. S. 125, § 18.
. 1871, 55. 1886, 305. 1893, 466, § 1. 105 Mass. 376.
1 Section 23. Whoever unlawfully and carnally knows and - £ _<*"*-17#
2 abuses a female child under the age of sixteen years shall be pun- leg, w.
3 ished by imprisonment in the state prison for life or for any term wjwfcl}-M
4 of years, or for any term in any other penal institution in the gB| «$'(&'
5 commonwealth. p. s. 202, § 27. 1886, 305. 1888, 391. lsVi.'as. '
1893, 466, § 2. 4 Gray, 7. 165 Mass. 66. 170 Mass. 194.
1 Section 24. Whoever assaults a female with intent to commit T^u^om?
2 a rape shall be punished by imprisonment in the state prison for ^ (;r, f .,.
3 life or for any term of years or by a fine of not more than one Jfjg* |J» » 8-
4 thousand dollars and imprisonment in jail for not more than three g.g. !&,«».
5 years. 4 Met. 354. 116 Mass. 346. 143 Mass. 32. 162 Mass. 466. 165 Mass. 66. P.' 8.' 202,' §28.'
1746
CRIMES AGAINST THE PERSON.
[Chap. 207.
Attempt to
extort money,
etc., by threat.
R. S. 125, § 17.
1853, 412.
G. S. 160, § 28.
P. S. 202, § 29.
12 Cush. 88.
101 Mass. 27.
106 Mass. 9.
108 Mass. 15.
122 Mass. 19.
128 Mass. 55.
130 Mass. 59.
145 Mass. 181.
148 Mass. 27.
163 Mass. 291.
Section 25. Whoever, verbally or by a written or printed com- 1
munication, maliciously threatens to accuse another of a crime or 2
offence, or by such communication maliciously threatens an injury 3
to the person or property of another, with intent thereby to extort 4
money or any pecuniary advantage, or with intent to compel the 5
person so threatened to do any act against his will, shall be pun- 6
ished by imprisonment in the state prison for not more than fifteen 7
years, or in the house of correction for not more than ten years, or 8
by a fine of not more than five thousand dollars, or by both such 9
fine and imprisonment. 10
Kidnapping,
etc.
B. L. 94, § 10.
C. L. 15, § 10.
1784, 72, § 10.
1787, 48, § 1.
R. S. 125, § 20.
G. S. 160, § 30.
P. S. 202, § 30.
1901, 428.
12 Met. 56.
9 Gray, 262.
5 Allen, 518.
Venue.
R. S. 125, § 21.
G. S. 160, § 31.
P. S.202, §31.
Section 26. Whoever, without lawful authority, forcibly or 1
secretly confines or imprisons another person within this common- 2
wealth against his will, or forcibly carries or sends such person out 3
of this commonwealth, or forcibly seizes and confines or inveigles 4
or kidnaps another person, with intent either to cause him to be 5
secretly confined or imprisoned in this commonwealth against his 6
will, or to cause him to be sent out of this commonwealth against 7
his will or in any way held to service against his will, and who- 8
ever sells or in any manner transfers for any term the service or 9
labor of a negro, mulatto or other person of color who has been 10
unlawfully seized, taken, inveigled or kidnapped from this com- 11
monwealth to any other state, place or country, shall be punished 12
by imprisonment in the state prison for not more than ten years 13
or by a fine of not more than one thousand dollars and imprison- 14
ment in jail for not more than two years. Whoever commits any 15
offence described in this section with the intent to extort money or 16
other valuable thing thereby shall be punished by imprisonment in 17
the state prison for not more than twenty-five years. 18
Section 27. A crime described in the preceding section may 1
be tried in the county in which it is committed or in any county 2
in or to which the person so seized, taken, inveigled, kidnapped 3
or sold, or whose services are so sold or transferred, is taken, con- 4
fined, held, carried or brought ; and upon the trial of any such 5
crime, the consent thereto of the person so taken, inveigled, kid- 6
napped or confined shall not be a defence unless the jury finds that 7
such consent was not obtained by fraud nor extorted by duress or 8
threats. 9
Poisoning
food, medicine,
spring, etc.
R. S. 125, § 22.
G. S. 160, § 32.
P. S.202, §32.
140 Mass. 443.
Section 28. Whoever mingles poison with food, drink or medi- 1
cine with intent to kill or injure another person, or wilfully poisons 2
any spring, well or reservoir of water with such intent, shall be 3
punished by imprisonment in the state prison for life or for any 4
term of years. 5
Assaults not
before men-
tioned.
R. S. 125, § 23.
G. S. 160, § 33.
P. S. 202, § 33.
Section 29. Whoever assaults another with intent to commit 1
a felony shall, if the punishment of such assault is not herein- 2
before provided, be punished by imprisonment in the state prison 3
for not more than ten years or by a fine of not more than one thou- 4
sand dollars and imprisonment in jail for not more than three years. 5
Kherson Section 30. Whoever, having the management or control of or 1
having care of over a steamboat or other public conveyance which is used for the 2
Chap. 208.] crimes against property. 1747
3 common carriage of persons, is guilty of gross negligence in or public convey.
4 relative to the management or control of such steamboat or other i8^'4i8.
5 public conveyance, while being so used for the common carriage of £; |; Jgjf | ff-
6 persons, shall be punished by a fine of not more than five thousand
7 dollars or by imprisonment in jail for not more than three years.
1 Section 31. A driver of a stage coach or other vehicle for the Driver of
2 conveyance of passengers for hire, who, when a passenger is within Itc^y^ng
3 or upon such coach or vehicle, leaves the horses thereof without a char-l"etchout
4 suitable person to take the charge and guidance of them, or without Iff \i%4
5 fastening them in a safe and prudent manner, shall be punished by G- s- wo, § 36.
6 imprisonment for not more than two months or by a fine of not
7 more than fifty dollars.
CHAPTER 208.
OF CRIMES AGAINST PROPERTY.
1 Section 1. Whoever wilfully and maliciously burns the dwell- ^houle^te1"
2 ing house of another or a building adjoining such dwelling house, c. l.52, §'i.
o _ c J o^ o ' 1705-6, y.
3 or wilfully and maliciously sets fire to a building by the burning ns4, 58, §§ i, 2.
• 1804 131 §61 2
4 whereof such dwelling house is burned, shall be punished by 1830) 72, '§ 1. '
5 imprisonment in the state prison for life or for any term of years. ismJIj,'!^!'2"
1871,76. 3Cush. 525. 110 Mass. 403. 150 Mass. 332. G. S.161, §1.
P. S. 203, § 1. 10 Cush. 478. 131 Mass. 421. 151 Mass. 491.
1 Section 2. Whoever wilfully and maliciously burns in the —in night
2 night time a meeting house, church, court house, town house, col- C.1/.52, §1.
3 lege, academy, jail or other building which has been erected for rrs4, 58, '§ 2.
4 public use, or a banking house, warehouse, store, manufactory or r^'.^VI'.
5 mill of another being with the property therein of the value of one ^f^1' $ 2-
6 thousand dollars, or a barn, stable, shop or office of another within £■ jf 203. §2-
' ' ' r ., ... 10Cush.480.
7 the curtilage of a dwelling house, or any other building by the 2 Alien, 159.
8 burning whereof anv building mentioned in this section is burned 172 Mass! 187!
9 in the night time, shall be punished by imprisonment in the state
10 prison for life or for any term of years.
1 Section 3. Whoever wilfully and maliciously burns in the day -in day time.
2 time a building, the burning of which in the night time might be 1705-6', 9.
3 punished under the provisions of the preceding section, shall be lW, i3'i,'§3.
4 punished by imprisonment in the state prison for not more than as! Mills!
5 ten years. p. s. 203, §3.
1 Section 4. Whoever wilfully and maliciously burns a banking Burning of
2 house, warehouse, store, manufactory, mill, barn, stable, shop, lees value than
_ ' , ' , ., ,. „ ,1 i • 1 • j. i -i j one thousand
3 office, outhouse or other building of another, which is not described dollars, etc.,
4 in section two, or a bridge, lock, dam, flume, ship or vessel of Bhipf^
5 another, shall be punished by imprisonment in the state priBon SJA,L
6 for not more than ten years. r.s.126,§6. lbo*' i&,§fi
G. S.161, §4. 1 Met. 258. 15 Gray, 480. 151 Mass. 491.
P . S. 203, § 4. 1 Gray, 495. 150 Mass. 332. Km Maes. 420.
1 Section 5. Whoever wilfully and maliciously burns or other- -"f,^;//^
2 wise destroys or injures a pile or parcel of wood, boards, timber or ^^tree,'
1748
CRIMES AGAINST PROPERTY.
[Chap. 208.
C. L. 51, § 2;
52, § 1.
1705-6, 9.
1784, 58, §§ 3, 4.
1804, 131, § 4.
R. S. 126, § 6.
G. S. 161, § 5.
P. S. 203, § 5.
other lumber, or any fence, bars or gate, or a stack of grain, hay 3
or other vegetable product, or any vegetable product severed from 4
the soil and not stacked, or any standing tree, grain, grass or other 5
standing product of the soil, or the soil itself, of another, shall be 6
punished by imprisonment in the state prison for not more than five 7
years or by a fine of not more than five hundred dollars and im- 8
prisonment in jail for not more than one year. 9
wiic n.-ibie for Section 6. The provisions of the preceding sections shall apply 1
to a married woman who commits any of the crimes therein de- 2
scribed, although the property burned or set fire to belongs partly 3
or wholly to her husband. 4
burning prop
erty of hus-
band.
R. S. 126, § 7.
G. S. 161, § 6.
P. S. 203, § 6.
Setting fire to
trees.
1882, 163.
Section 7. Whoever by wantonly or recklessly setting fire to 1
any material causes injury to, or the destruction of, any growing or 2
standing wood of another shall be punished by a fine of not more 3
than one hundred dollars or by imprisonment for not more than six 4
months. 5
Setting fires
negligently.
1886, 296, § 1.
Section 8. Whoever wilfully or without reasonable care sets 1
a fire upon land of another whereby the property of another is in- 2
jured, or whoever negligently or wilfully suffers any fire upon his 3
own land to extend beyond the limits thereof, whereby the woods 4
or property of another are injured, shall be punished by a fine of 5
not more than two hundred and fifty dollars. 6
Same subject.
1897, 254, §§ 1, 9.
Section 9. Whoever in a town which accepts the provisions of 1
this section or has accepted the corresponding provisions of earlier 2
laws sets a fire on land which is not owned or controlled by him 3
and before leaving the same neglects to entirely extinguish such 4
fire, or whoever wilfully or negligently sets a fire on land which is 5
not owned or controlled by him whereby property is endangered 6
or injured, or whoever wilfully or negligently suffers a fire upon 7
his own land to escape beyond the limits thereof to the injury of 8
another, shall be punished by a fine of not more than one hundred 9
dollars, or by imprisonment in jail for not more than one month, 10
or by both such fine and imprisonment ; and shall also be liable for 11
all damages caused thereby. Such fine shall be equally divided 12
between the complainant and the town. 13
Burning in-
sured prop-
erty.
R. S. 126, § 8.
G. S. 161, § 7.
P. S. 203, § 7.
114 Mass. 272.
155 Mass. 68.
177 Mass. 267.
Section 10. Whoever, with intent to injure the insurer, burns 1
a building or any goods, wares, merchandise or other chattels be- 2
longing to himself or another, and which are at the time insured 3
against loss or damage by fire, shall be punished by imprisonment 4
in the state prison for not more than twenty years. 5
Cutting bell
rope, etc.,
before fire.
1855, 446, § 1.
G. S. 161, § 8.
P. S. 203, § 8.
Section 11. Whoever, within twenty-four hours prior to the 1
burning of a building or other property, wilfully, intentionally 2
and without right cuts or removes a bell rope in the vicinity of 3
such building or property or cuts, injures or destroys an engine or 4
hose or other apparatus belonging to an engine in said vicinity shall 5
be punished by a fine of not more than five hundred dollars or by 6
imprisonment for not more than two years. 7
Chap. 208.] crimes against property. 1749
1 Section 12. Whoever, during the burning of a building or cutting ben
2 other property, wilfully and maliciously cuts or removes a bell durin|fire,
3 rope in the vicinity of such building or property, or otherwise pre- aira?mVrnt'ng
4 vents an alarm being given, or whoever cuts, injures or destroys an £nctl?n of **re-
5 engine, or hose or other apparatus belonging to an engine, in said ofs. lei, §9.
6 vicinity, or otherwise wilfully and maliciously prevents or obstructs
7 the extinction of a fire shall be punished by imprisonment in the
8 state prison for not more than seven years or in jail for not more
9 than three years or by a fine of not more than one thousand dollars.
1 Section 13. Whoever wantonly or maliciously injures a fire injuring are
2 engine or the apparatus belonging thereto shall be punished by a tm^.'
3 fine of not more than five hundred dollars or by imprisonment for §; |; ^ 1 1;
4 not more than two years, and shall be further ordered to recognize p-s,35> §26-
5 with sufficient surety or sureties for his good behavior during such
6 term as the court shall order.
1 Section 14. Whoever breaks and enters a dwelling house in Burglary,
2 the night time, with intent to commit a felony, or whoever, after makfngan*1 °r
3 having entered with such intent, breaks such dwelling house in the a8!^, § i.
4 night time, any person being then lawfully therein, and the offender iv?§z5e 1f* §4-
5 being armed with a dangerous weapon at the time of such breaking ]lft7& "*• § 2-
6 or entry, or so arming* himself in such house, or making- an actual lso^ioi, §i.
O ' C RS 126 5 9
7 assault on a person lawfully therein, shall be punished by impris- i839,"i27.'
S onment in the state prison for life or for any term of not less than mi,^1' § 10'
i) ten years. 1S88, 135, §1. 22 Pick. 1. 4 Met. 357. 105 Mass. 588. P. S. 203, § 10.
1 Section 15. Whoever breaks and enters a dwelling house in —not being
2 the night time, with such intent, or, having entered with such intent, ™! 13? §°i.
3 breaks such dwelling house in the night time, the offender not being mf^f: §4'
4 armed, nor arming himself in such Tiouse, with a dangerous weapon, i^-"^.16' § 3<
5 nor making an assault upon a person lawfully therein, shall be pun- i|05, ^.J*-
6 ished by imprisonment in the state prison for not more than twenty R- 1- i&s, § 10.
7 years and, if he shall have been previously convicted of any crime i\ si 203; § 11*.
8 named in this or the preceding section, for not less than five years. 4 Met. 357.
1 Section 16. Whoever, in the night time, breaks and enters a Breaking in
2 building, ship or vessel, with intent to commit a felony, shall be orSshV" ™S
3 punished by imprisonment in the state prison for not more than SfcwuiJi
4 twenty years.
1804, 143, § 4. 1851, 156, § 1. 3 Met. 316. 6 Cush. 181.
R. S. 126, § 11. G. S. 161, § 12. 6 Met. 238. 108 Mass. 1.
1839, 31. ' P. S. 203, § 12. 12 Met. 240. 130 Mass. 45.
1 Section 17. Whoever, in the night time, enters without break- Entering in
_ , , . ■ .1 -i , • i"it l- i night without
2 ing, or breaks and enters in the day time, a building, ship or vessel, breaking, or
3 with intent to commit a felony, the owner or any other person law- j^ij-'tfrm-!' ''
4 fully therein being put in fear, shall be punished by imprisonment &92AI4.
5 in the state prison for not more than ten years. umJmms.
R.S.126, §12. 1851,156, §2. G. S. 161, § 13. P. S. 203, § 13.
1 Section 18. Whoever, in the night time, enters a dwelling Jjjjjgj,^^
2 house without breaking, or breaks and enters in the day time a jnni|ht,or
3 building, ship or vessel, with intent to commit a felony, no person ^.Lllum!' '
4 lawfully therein being put in fear, shall be punished by imprison- tins iu feur-
1750
CRIMES AGAINST PROPERTY.
[Chap. 208.
1784, 66, § S.
1805, 101, § 4.
R. S. 126, § 13.
1851, 156, § 3.
G. S. 161, § 14.
merit in the state prison for not more than ten years or by a fine 5
of not more than five hundred dollars and imprisonment in jail for 6
not more than two years. 1869,386. p. s. 203, § 15. 122 Mass. 454. 7
Breaking and
entering rail-
road car, etc.
1874, 70; 372,
§158.
P. S. 203, § 14.
Section 19. Whoever breaks and enters, or enters in the night 1
time without breaking, a railroad car, with intent to commit a 2
felony, shall be punished by imprisonment in the state prison for 3
not more than ten years or by a fine of not more than five hundred 4
dollars and imprisonment in the house of correction for not more 5
than two years. 6
Stealing in
building, ship,
1804, 143, § 6.
1830, 72, § 3.
R. S. 126, § 14.
1843, 1, § 1.
Section 20. Whoever steals in a building, ship, vessel or rail- 1
road car shall be punished by imprisonment in the state prison for 2
not more than five years or by a fine of not more than five hundred 3
dollars or by imprisonment in jail for not more than two years. 4
1845, 28.
1851, 156, § 4.
G. S. 161, § 15.
P. S. 203, § 16.
1896, 389.
2 Cush. 583.
6 Cush. 181.
3 Gray, 450.
8 Gray, 469.
Ill Mass. 429.
129 Mass. 101.
135 Mass. 269.
Refusal to
deliver stolen
property, etc.
1879, 168.
P. S. 203, § 17.
Section 21. Whoever, having been convicted, either as prin- 1
cipal or accessory, of burglary or robbery, or of any of the crimes 2
described in sections seventeen to twenty, inclusive, of chapter two 3
hundred and seven, or of breaking and entering or of entering a 4
building with intent to commit robbery or larceny, has in his 5
possession or control money, goods, bonds or bank notes, or any 6
paper of value, or any property of another, which was obtained or 7
taken by means of such crime, and, upon being requested by the 8
lawful owner thereof to deliver the same to him, refuses or fails so 9
to do while having power to deliver the same, shall be punished by 10
imprisonment in the state prison for not more than five years or in 11
the jail or house of correction for not more than two years. 12
Embezzling,
etc., of prop-
erty, at a fire,
to be deemed
larceny.
1711-12, 5, § 4.
1744-5, 30, § 4.
1796, 88, § 4.
R. S. 18, § 8.
G. S. 24, § 8.
P. S. 35, § 8.
Section 22. Whoever steals, conveys away or conceals any 1
furniture, goods, chattels, merchandise or effects of persons whose 2
houses or buildings are on fire or are endangered thereby, and does 3
not, within two days thereafter, restore the same or give notice of 4
his possession thereof to the owner if known, or, if unknown, to 5
the mayor or one of the aldermen, selectmen or firewards of the 6
place, shall be guilty of larceny. 7
Stealing at a
fire.
R. S. 126, § 15.
G. S. 161, § 16.
P. S. 203, § 18.
Section 23. Whoever steals in a building which is on fire, or 1
steals property which has been removed in consequence of an alarm 2
caused by fire, shall be punished by imprisonment in the state 3
prison for not more than five years or by a fine of not more than 4
five hundred dollars and imprisonment in jail for not more than 5
two years. 6
Larceny from
the person.
1784, 66, § 2.
1804, 143, § 8.
R. S. 126, § 16.
G. S. 161, § 17.
P. S. 203, § 19.
Section 24. Whoever commits larceny by stealing from the 1
person of another shall be punished by imprisonment in the state 2
prison for not more than five years or in jail for not more than two 3
years. 3Cush. 235. 12 Allen, 182. 99 Mass. 431. 105 Mass. 169. 138 Mass. 483. 4
Subjects of
larceny.
1784, 66, § 1.
1804, 143, § 1.
R. S. 126, § 17.
G. S. 161, § 18.
Section 25. Larceny may be committed of a bank note, bond, 1
promissory note, bill of exchange or other bill, order or certificate, 2
or of a book of accounts for or concerning money or goods due or 3
Chap. 208.] crimes against property. 1751
4 to become due or to be delivered, or of a deed or writing contain- p. s. 203, §20.
5 ing a conveyance of land, or of any other valuable contract in flttlk ni'
6 force, or of a receipt, release or defeasance, or of a writ, process, ^Grayflie.
7 certificate of title or duplicate certificate issued under the provisions f0o $$» m-
8 of chapter one hundred and twenty-eight, or of a public record. 103 Mass! 425!
1 Section 26. Whoever steals, or, with intent to defraud, obtains simple iar.
2 by a false pretence, or whoever unlawfully and, with intent to steal c!Y."i3, §§2,3.
3 or embezzle, converts or secretes with intent to convert, the money ito|"V85 1 3'
4 or personal chattel of another, whether such money or personal Jgj}*' \&> § \-
5 chattel is or is not in his possession at the time of such conversion 1834) i86| §§ i, 3.
6 or secreting, shall be guilty of larceny and shall, if the value of 29-32.
7 the property stolen exceeds one hundred dollars, be punished by g. s'.m, §§ is,
8 imprisonment in the state prison for not more than five years or by p.' lf'203' f§ 20,"
9 a fine of not more than six hundred dollars and imprisonment in jail f8g£°'J$; 58' m'
10 for not more than two years ; or, if the value of the property stolen ^MafsM L
11 does not exceed one hundred dollars, shall be punished by impris- $?p\17j-
12 onment in jail for not more than one year or by a fine of not more 21 Pick. 515!
13 than three hundred dollars ; or, if the property was stolen from the 9 Gray, 114.
14 conveyance of a common carrier or of a person or corporation car- 5 i lien,' 502!
15 rying on an express business and does not exceed the value of one 266AHen' 233'
16 hundred dollars, shall be punished by imprisonment in the state j^Mass 4886
17 prison or jail for not more than three years or by a fine of not more |?| ^as8, f?,-
18 than five hundred dollars, or by both such fine and imprisonment. 124 Mass. 449!
126 Mass. 467. 129 Mass. 104. 141 Mass. 571. 166 Mass. 513.
127 Mass. 446. 130 Mass. 285. 149 Mass. 179. 169 Mass. 89.
128 Mass. 79. 132 Mass. 16. 165 Mass. 526. 172 Mass. 248.
1 Section 27. Whoever by a false pretence, with intent to de- Fraiiduientiy
2 fraud, obtains the signature of a person to a written instrument, natui°mg Blg"
3 the false making whereof would be a forgery, shall be punished by G.s.iei'ii".
4 imprisonment in the state prison for not more than ten years, or by f10sMa°88g'. ||9'
5 a fine of not more than five hundred dollars and imprisonment in 114 Mass- 325-
6 the jail for not more than two years.
1 Section 28. The provisions of the two preceding sections shall ^J**^^
2 not apply to a purchase of property by means of a false pretence 8|^i0^f-
3 relative to the purchaser's means or ability to pay, if, by the terms G.|.i6i,§M.
4 of the purchase, payment therefor is not to be made upon or before i899,_3i6,'§2.'
5 the delivery of the property purchased, unless such pretence is
6 made in writing and is signed by the person to be charged.
1 Section 29. Whoever steals or for any fraudulent purpose de- Larceny ana
2 stroys, mutilates or conceals a will, codicil or other testamentary ^?iB.
3 instrument shall be punished by imprisonment in the state prison & s- 161' §i
4 for not more than five years or in the house of correction for not .£s-203- §§ 21»
5 more than two years. An indictment for a violation of the pro- is90,8»i.
6 visions of this section need not contain any allegation of value or
7 ownership; and in the trial of such an indictment, no disclosure
8 made by any person under the provisions of section fifteen of chap-
9 ter one hundred and thirty-five shall be used in evidence against
10 him.
1 Section 30. Whoever is convicted by a police, district or mu- Larceny <.f
a. U1JV11V" "v' .,../.,!• i property not
2 nicipal court or before a trial justice of stealing money or goods exceeding flve
1752
CRIMES AGAINST PROPERTY.
[Chap. 208.
dollars in
value.
1784, 66, § 4.
1804, 143, § 2.
1834, 151, §§ 2, 3.
1835, 54, § 1.
R. S.126, §18;
143, §§ 5, 6.
1837, 217.
1851, 346.
G.S. 120, §41;
161, § 21.
1'. S. 203, § 23.
Common and
notorious thief.
1784, 66, §§ 6, 7.
1804, 143, § 3.
R. S. 126, § 19.
G. S. 161, § 22.
P. S. 203, § 24.
22 Pick. 1.
3 Met. 457.
4 Met. 361.
11 Met. 575, 581.
12 Met. 246.
175 Mass. 202.
Second convic-
tion of larceny
of a bicycle.
1897, 409.
not exceeding the value of five dollars may be committed to the 3
house of correction or workhouse in the city or town in which 4
the crime was committed, for not more than six months ; or he 5
may be punished by a fine of not more than fifteen dollars, either 6
with or without a condition, that, if it is not paid within a time 7
specified, he shall be so committed for a term designated in the 8
sentence. 9
Section 31. Whoever, having been convicted, upon indict- 1
ment, of larceny or of being accessory to larceny before the fact, 2
afterward commits a larceny or is accessory thereto before the fact, 3
and is convicted thereof upon indictment, and whoever is convicted 4
at the same sitting of the court, as principal or accessory before 5
the fact, of three distinct larcenies, shall be adjudged a common 6
and notorious thief, and shall be punished by imprisonment in the 7
state prison for not more than twenty years or in jail for not more 8
than three }rears. 9
Section 32. Whoever is convicted of a second offence of the 1
larceny of a bicycle shall, if the value of the bicycle stolen ex- 2
ceeds ten dollars, be punished by imprisonment in the state prison 3
for not more than five years or by a fine of not more than two 4
hundred dollars or by imprisonment in jail for not more than two 5
years. 6
Section 33. Whoever commits larceny of a printed piece of 1
paper or blank designed for issue by any incorporated bank or 2
banking company in the United States as a bank bill, certificate 3
or promissory note, or printed by means of an engraved plate 4
designed for printing such pieces of paper or blanks, with intent 5
to injure or defraud either by uttering or passing the same, or 6
causing or allowing the same to be uttered or passed as true, either 7
with or without alteration or addition, shall be punished by im- 8
prisonment in the state prison for life or for any term of years. 9
Section 34. Whoever, having been employed to print or having 1
assisted in printing a printed piece of paper or blank described in 2
the preceding section, or having been intrusted with the care or 3
custody thereof, retains it in his possession without the knowledge 4
and consent of the corporation for which it was printed, with intent 5
to injure or defraud either by uttering or passing it or causing or 6
allowing it to be uttered or passed as true, either with or without 7
alteration or addition, shall be punished by imprisonment in the 8
state prison for life or for any term of years. 9
SSLed Section 35. Whoever by a trespass, with intent to steal, takes 1
MnhMM§>i'-8 an(* carr*es away anything which is parcel of the realty or is an- 2
g. s'. lei, §§ 25- nexed thereto, the property of another and of value, against his 3
P.S.203, §§ 27- will, shall be guilty of such simple or aggravated larceny as he 4
would be guilty of if such property were personal property. Any 5
person may become an accessory to such larceny before or after the 6
fact, or may become a receiver of the property stolen, in like 7
manner as if the property stolen were personal, and shall be pun- 8
ished accordingly. The same courts and justices as would have 9
Larceny of
paper designed
for bank bills,
etc
1858, 67, § 1.
G. S. 161, § 23.
P. S. 203, § 25.
Printer, etc.,
retaining such
paper, etc.,
with intent to
pass, etc.
1858, 67, § 2.
G. S. 161, § 24.
P. S. 203, § 26.
Chap. 208.] crimes against property. 1753
10 jurisdiction if the property stolen were personal property shall
11 have jurisdiction of such crimes.
1 Section 36. The stealing of such real property may be a lar- From whom
2 ceny from one or more tenants, sole, joint or in common, in fee, mi^isi^Ts-
3 for life or years, at will or sufferance, mortgagors or mortgagees, ^,s-161' §§ 28,
4 in possession of the same, or who may have an action of tort ^ s- 203> §§ 30>
5 against the offender for trespass upon the property, but not from
6 one having only the use or custody thereof. The larceny may be
7 from a wife in possession, if she is authorized by law to hold such
8 property as if sole, otherwise her occupation may be the possession
9 of the husband. If such property which was of a person deceased
10 is stolen, it may be a larceny from any one or more heirs, de-
ll visees, reversioners, remaindermen or others, who have a right
12 upon such decease to take possession, but not having entered, as it
13 would be after entry. The larceny may be from a person whose
14 name is unknown, if it would be such if the property stolen were
15 personal, and may be committed by those who have only the use or
16 custody of the property, but not by a person against whom no
17 action of tort could be maintained for acts like those constituting
18 the larceny.
1 Section 37. Whoever, without the consent of the owner and ^sTorbird.
2 with a felonious intent, takes a beast or bird which is ordinarily gso. ^ 30
3 kept in confinement and is not the subject of larceny at common P- s. 203,' § 32.
4 law shall be guilty of larceny.
1 Section 38. Whoever wrongfully removes the collar from or Removing coi-
2 steals a dog which is licensed and collared as provided in chapter ing,°ete° dog.
3 one hundred and two shall be punished by a fine of not more than i|y; 2I5,' I§2i, 5.
4 fifty dollars ; and whoever wrongfully kills, maims, entices or car- £; |; io2,§§ss-
5 ries away such dog shall be liable to its owner for its value in an
6 action of tort. Whoever distributes or exposes a poisonous sub-
7 stance, with intent that it shall be eaten by a dog, shall be punished
8 by a fine of not less than ten nor more than fifty dollars.
1 Section 39. An officer who arrests a person charged as principal aS"to aking
2 or accessory in a robbery or larceny shall secure the property which ^X'stoien.
3 is alleged to have been stolen, annex a schedule thereof to his return gJVife'.li'.
4 and be answerable for the same ; and, upon conviction of the offend- g'.|. m£|8l
5 er, it shall be restored to the owner. 4 Gray, 41s. 6 Alien, 299. 21 pick. W
1 Section 40. If a person who is arrested upon a charge of ^StS^&
2 burglary, robbery or larceny, forfeits his recognizance or escapes ™°|.™asnce»
3 after having been committed to jail for trial, the court before which ^.wi, § 33.
4 the case would have been tried shall have the same authority to pis! 203,' §35.'
5 order a recompense and allowance to the prosecutor, and to the
6 officer who has secured and kept the property, as is provided in the
7 preceding section.
1 Section 41. Whoever makes or mends, or begins to make or Making how-
2 mend, or knowingly has in his possession, an engine, machine, tool burglarious
o»/ •*- •iii.** instrument
3 or implement adapted and designed for cutting through, torcmg or ^ 1!(t.
4 breaking open a building, room, vault, safe or other depository, in o.s.iffl.184.
1754
CRIMES AGAINST PROPERTY.
[Chap. 208.
P. S. 203, § 36.
8 Gray, 375.
138 Mass. 186.
order to steal therefrom money or other property, or to commit any 5
other crime, knowing the same to be adapted and designed for the 6-
purpose aforesaid, with intent to use or employ or allow the same 7
to be used or employed for such purpose, shall be punished by im- 8
prisonment in the state prison for not more than ten years or by a 9
fine of not more than one thousand dollars and imprisonment in 10
jail for not more than three years. 11
Making, hold-
ing, using, etc.,
by employee
in state treas-
ury.
1791, 59, § 5.
R. S. 13, §23;
126, § 28.
Section 42. A person employed in the treasury of this com- 1
monwealth who commits a fraud or embezzlement therein shall be 2
punished by a fine of not more than two thousand dollars or by 3
imprisonment in the state prison for life or for any term of years. 4
G. S. 161, § 36. P. S. 203, § 38.
— by city,
town or county
officer.
1855, 487.
G. S. 161, § 37.
P. S. 203, § 39.
Section 43. A county, city or town officer who embezzles or 1
fraudulently converts, or who fraudulently takes or secretes with 2
intent so to do, effects or property which belong to or are in pos- 3
session of said county, city or town, shall be punished by imprison- 4
ment in the state prison for not more than ten years or by a fine of 5
not more than one thousand dollars and imprisonment in jail for 6
not more than two years. 7
— by officer,
etc., of bank.
1783, 53, § 1.
1824, 51.
1828, 96, § 26.
R. S. 126, § 27.
1846, 171, § 1.
G. S. 161, § 39.
P. S. 203, § 41.
8 Met. 247.
1 Allen, 557.
97 Mass. 50.
101 Mass. 204.
116 Mass. 1.
137 Mass. 98.
173 Mass. 541.
Section 44. An officer of an incorporated bank, or a person in 1
the employment of such bank, who fraudulently converts, or fraud- 2
ulently takes and secretes with intent so to do, any bullion, money, 3
note, bill or other security for money which belongs to and is in 4
possession of such bank, or which belongs to any person and is 5
deposited therein, shall, whether intrusted with the custody thereof 6
or not, be guilty of larceny in said bank, and shall be punished by 7
imprisonment in the state prison for not more than ten years or by 8
a fine of not more than one thousand dollars and imprisonment in 9
jail for not more than two years. 10
Taking by
accomplice
deemed taking
by officer of
bank, etc.
1834, 186, § 2.
R. S. 133, § 10.
1845, 215.
1846, 171, §§ 2, 3.
G. S. 161, §§ 40,
42.
1878, 186.
P. S. 203, §§ 42,
8 Met. 247.
Section 45. In prosecutions for such crimes, the fraudulent 1
taking or receiving by any person of bullion, money, notes, bills 2
or other security for money which belongs to such bank, by reason 3
of an unlawful confederacy or agreement between him and an 4
officer of said bank or any person in the employment thereof, with 5
intent to defraud the same, shall be deemed to be a fraudulent taking 6
by such officer or person in the employment of the bank to his own 7
use, within the meaning of the preceding section ; and it shall not 8
be necessary, upon the trial, to identify the particular bullion, 9
money, note, bill or security for money which is so taken or re- 10
ceived. Upon the trial of the crime of embezzling, fraudulently 11
converting or fraudulently taking and secreting, with intent so to 12
embezzle or convert, the bullion, money, notes, bank notes, checks, 13
drafts, bills of exchange, obligations or other securities for money 14
of any person, bank, corporation, partnership, county, city or town 15
by a cashier or other officer, clerk, agent or servant of such person, 16
bank, corporation, partnership, county, city or town, evidence may 17
be given of any such embezzlement, fraudulent conversion or taking 18
with such intent committed within six months after the time stated 19
in the indictment. 20
Chap. 208.] crimes against property. 1755
1 Section 46. A receiver or other officer appointed by a court Embezzlement
2 of record, who embezzles or fraudulently converts, or fraudulently etc.™'''''0,
3 takes or secretes with intent so to do, effects or property which p.'s'.203, §45.
4 is in his possession by virtue of such appointment shall be guilty of
5 larceny, and shall be punished by imprisonment in the state prison
6 for not more than ten years, or by a fine of not more than one
7 thousand dollars and imprisonment in jail for not more than two
8 years.
1 Section 47. A broker, or officer, manager or agent of a corpo- —by broker,
2 ration doing the business of brokers, who, having been intrusted, 1892, 138.
3 solely or jointly, with money, stock or security for the payment
4 of money, with any direction in writing to invest, dispose of,
5 apply, pay or deliver such money, stock or security, or any part
6 thereof, or the proceeds or any part of the proceeds thereof, in any
7 manner, for any purpose or to any person mentioned or specified in
8 such direction, in violation of good faith and contrary to the terms
9 of such direction, embezzles or fraudulently converts such money,
10 stock or security, or any part thereof, or the proceeds or any part
11 of the proceeds thereof, shall be punished by imprisonment in the
12 state prison for not more than five years or in jail for not more
13 than three years or by a fine of not more than five hundred dollars.
1 Section 48. A trustee under an express trust created by a —by trustee,
2 deed, will or other instrument in writing, or a guardian, executor ministratbr,
3 or administrator, or any person upon or to whom such a trust has 1877, 231.
4 devolved or come, who embezzles or fraudulently converts or ap- ' ' s '
5 propriates money, goods or property held or possessed by him for
6 the use or benefit, either wholly or partially, of some other person
7 or for a public or charitable purpose, to or for his own use or
8 benefit or to or for the use or benefit of any person other than such
9 person as aforesaid, or for any purpose other than such public or
10 charitable purpose as aforesaid, or who otherwise fraudulently dis-
11 poses of or destroys such property, shall be guilty of larceny, and
12 shall be punished by imprisonment in the state prison for not more
13 than ten years or by a fine of not more than two thousand dollars
14 and imprisonment in jail for not more than two years.
1 Section 49. Whoever, being an officer, agent, clerk or servant ^^socia^
2 of a voluntary association or society, embezzles or fraudulently jggn174
3 converts, or fraudulently takes or secretes with intent so to do,
4 effects or property which belong to such association or society,
5 or which have come to his possession or are under his care by virtue
6 of his office or employment, shall be guilty of simple larceny.
1 Section 50. Whoever embezzles or fraudulently converts, or same subject
2 secretes with intent to embezzle or fraudulently convert, money,
3 goods or property or any part thereof which has been delivered to
4 him, which may be the subject of larceny and which belong to
5 any organization of the volunteer militia, post of the grand army
6 of the republic, or other voluntary association, shall be guilty of
7 simple larceny, although he is a member of such organization or
8 voluntary association and, as such, entitled to an interest in the
9 property thereof. In a prosecution under the provisions of this
1756 CRIMES AGAINST PROPERTY. [ClIAP. 208.
section, it shall be sufficient to describe such organization or asso- 10
ciation by the name by which it is generally known and as a volun- 11
tary association. 12
Buying or re- Section 51. Whoever buys, receives or aids in the conceal- 1
ceivmg stolen t i
goods. ment of stolen or embezzled property, knowing it to have been 2
1723^,9. stolen or embezzled, or whoever with intent to defraud buys, re- 3
18041 U3, § io. ceives or aids in the concealment of property knowing it to have 4
fs^'iuiiu' been obtained from a person by a false pretence of carrying on 5
g. s. lei, §§ 43, business and dealing in the ordinary course of trade, shall be 6
p6| 2ol' §§§"48 Punished by imprisonment in the state prison for not more than five 7
51, ei- ' ' years or by a fine of not more than five hundred dollars and im- 8
7 Met.' 460. prisonment in iail for not more than two years. 9
5 Gray, 82. x J J
117 Mass. 141. 120 Mass. 198. 121 Mass. 373. 136 Mass. 170. -
union of stolen Section 52. If, upon a first conviction under the provisions of 1
property the preceding section, it is shown that the act of stealing the prop- 2
1804, us, § 13. ertv was a simple larceny and if the convict makes restitution to 3
g. s. i6i', § 44'. the person injured to the full value of the property stolen and 4
p. s. 203, §49. no^ restored, he shall not be imprisoned in the state prison. 5
ceiver of stolen Section 53. Whoever is convicted of buying, receiving or 1
soods. aiding in the concealment of stolen or embezzled property, know- 2
r. s'. 126, § 22. ing it to have been stolen or embezzled, having been before con- 3
1S53 184 §2.t • •
g. s. 161, §47. victed of the like offence, and whoever is convicted at the same 4
' ' s " sitting of the court of three or more distinct acts of buying, receiv- 5
ing or aiding in the concealment of money, goods or property 6
stolen or embezzled as aforesaid, shall be adjudged a common re- 7
ceiver of stolen or embezzled goods and shall be punished by 8
imprisonment in the state prison for not more than ten years. 9
takin^f Section 54. Whoever wilfully, mischievously and without right 1
c^w es 5 takes or uses a boat or vehicle, or takes, drives, rides or uses a 2
1854,295. horse, ass, mule, ox or any draught animal which is the property 3
g. s'. lei, §48. of another, without the consent of the owner or other person who 4
' has the legal custody, care or control thereof, shall be punished 5
by a fine of not more than three hundred dollars or by imprison- 6
ment for not more than six months ; but the provisions of this 7
section shall not apply to the property of another which is taken 8
with intent to steal it, or if it is taken under a claim of right, or 9
with the presumed consent of the owner or other person who has 10
the legal control, care or custody thereof. 11
hwng^horse, Section 55. Whoever hires a horse or carriage and, with intent 1
1882 236. ^° cnea* or defraud the owner thereof, makes to him or to his agent 2
at the time of such hiring a false statement of the distance which 3
he proposes to travel with such horse or carriage, or whoever, with 4
such intent, makes to the owner or his agent, after the use of a horse 5
or carriage, a false statement of the distance which he has actually 6
travelled with such horse or carriage, and whoever, with such 7
intent, refuses to pay for the use of a horse or carriage the lawful 8
hack or carriage fare established therefor by any city or town, shall 9
be punished by a fine of not more than twenty dollars or by im- 10
Chap. 208.] crimes against property. 1757
11 prisonment for not more than two months, or by both such fine
12 and imprisonment.
1 Section 56. An officer, agent, clerk or servant of a corpora- unauthorized
2 tion, or any other person, who issues or signs with intent to issue lslefm.Ti*'
3 a certificate of stock in a corporation, or who issues, signs or in- g5!.1/^ §49.
4 dorses with intent to issue, a bond, note, bill or other obligation p- s- 203> § 54-
5 or security in the name of such corporation, beyond the amount
6 authorized by law or limited by the legal votes of such corporation
7 or its proper officers, or negotiates, transfers or disposes of such
8 certificate with intent to defraud, shall be punished by imprison-
9 ment in the state prison for not more than ten years or in the
10 house of correction for not more than one year.
1 Section 57. An officer, agent, clerk or servant of a corpora- Fraudulent
2 tion, or any other person, who fraudulently issues or transfers a ^ueof8tock»
3 certificate of the stock of a corporation to a person who is not Gfl/ifi'.llo.
4 entitled thereto, or who fraudulently signs such certificate, in blank p-s-203. §55-
5 or otherwise, with the intent that it shall be so issued or trans-
6 ferred by himself or any other person, shall be punished by impris-
7 onment in the state prison for not more than ten years or in the
8 house of correction for not more than one year.
1 Section 58. An officer of a corporation or an agent, clerk or False entry,
2 servant of a person, firm or corporation, who makes a false entry oTcoi^oratfon.
3 or omits to make a true entry in any book of such person, firm or <f?t.ief,s§5i.
4 corporation, with intent to defraud, and any person whose duty it ^gf'Hf;556,
5 is to make a record or entry of the transfer of stock, or of the
6 issuing or cancelling of certificates thereof, or of the amount of
7 stock issued by a corporation, in any book thereof, who, with in-
8 tent to defraud, omits to make a true record or entry thereof, shall
9 be punished by imprisonment in the state prison for not more than
10 ten years or in the house of correction for not more than one year.
1 Section 59. Upon the trial of a person for a crime under the Books of cor-
2 provisions of the three preceding sections, the books of any person, evident'.
3 firm or corporation to which he had access or the right of access G^'.ifi.Vk
4 shall be admissible in evidence. p. s. 203, §57.
1 Section 60. Whoever, not being a member of the Military unlawful use
2 Order of the Loyal Legion of the United States, of the Grand iss^f™*'
3 Army of the Eepublic, of the Sons of Veterans, of the Woman's ifgi; if; n7.
4 Eelief Corps, of the Union Veterans' Union, of the Union Veteran 19M>151-
5 Legion, of the Military and Naval Order of the Spanish- American
6 War or of the Legion of Spanish War Veterans, wilfully wears or
7 uses the insignia, distinctive ribbons or membership rosette or
8 button thereof for the purpose of representing that he is a member
9 thereof shall be punished by a fine of not more than twenty dollars
10 or by imprisonment for not more than thirty days, or by both such
11 fine and imprisonment.
1 Section 61. Whoever, with intent to defraud, by a false pre- ow^ning^
2 tence of carrying on business and dealing in the ordinary course of false pretence
1758
CRIMES AGAINST PROPERTY.
[Chap. 208.
of carrying on trade, obtains from any person goods or chattels shall be punished 3
1863, 248,'§ 2. ' by imprisonment in the state prison for not more than five years 4
108 Mass. 309.* or by a fine of not more five hundred dollars and imprisonment in 5
jail for not more than two years. 6
153 Mass. 588.
157 Mass. 486.
Fraudulent^ Section 62. An officer, agent, clerk or servant of a corpora- 1
of corporation, tion which is organized or doing business in this commonwealth, 2
p. s'. 203, § 62. who wilfully uses the name of such corporation, or his own name 3
as such officer, agent, clerk or servant, to obtain money upon the 4
credit of such corporation for his own use or benefit, without au- 5
thority from such corporation, or who fraudulently lends, invests or 6
appropriates the money or disposes of the property of such corpora- 7
tion, or fraudulently converts it, shall be punished by imprisonment 8
in the state prison for not more than ten years. 9
Obtaining
property by
trick, etc.
1855, 135, § 1.
G. S. 161, § 57.
P. S. 203, § 65.
117 Mass. 112.
125 Mass. 384.
138 Mass. 484.
Section 63. Whoever, by a game, device, sleight of hand, pre- 1
tended fortune telling or by any trick or other means by the use 2
of cards or other implements or instruments, fraudulently obtains 3
from another person property of any description shall be punished 4
as in the case of larceny of property of like value. 5
Gross fraud,
etc., at com-
mon law.
1785, 21, § 4.
1815, 136, § 2.
R. S. 126, § 33.
G. S. 161, § 58.
Section 64. Whoever is convicted of any gross fraud or cheat 1
at common law shall be punished by imprisonment in the state 2
prison for not more than ten years or in jail for not more than 3
two years or by a fine of not more than four hundred dollars. 4
P. S. 203, § 66.
Sale of sterling
and coin silver.
1894, 292.
Section 65. Whoever makes or sells, or offers to sell or dis- 1
pose of, or has in his possession with intent to sell or dispose of, 2
any article of merchandise marked, stamped or branded with the 3
words " sterling", " sterling silver", " coin" or " coin silver", or 4
encased or enclosed in any box, package, cover or wrapper or other 5
thing in or by which the said article is packed, enclosed or other- 6
wise prepared for sale or disposition, having thereon any engraving 7
or printed label, stamp, imprint, mark or trade mark, indicating or 8
denoting by such marking, stamping, branding, engraving or print- 9
ing, that such article is silver, sterling silver, solid silver, coin or 10
coin silver, shall, unless nine hundred and twenty-five one-thou- 11
sandths of the component parts of the metal of which the said 12
article so marked, stamped or branded with the words "sterling" 13
or " sterling silver" is manufactured are pure silver, or unless nine 14
hundred one-thousandths of the component parts of the metal of 15
which the article so marked, stamped or branded with the words 16
" coin" or " coin silver" is manufactured, are pure silver, be pun- 17
ished by a fine of not more than one hundred dollars for each 18
offence. 19
cumb"eredgiand Section (j6. Whoever conveys land, knowing that an encum-
i85M77,n§°2!Ce' brance exists thereon, without informing the grantee, before the
r ' I' 203' § e?- consideration is paid, of the existence and nature of such encum-
i|.«ray,'i89.'- brance, so far as he has knowledge thereof, shall be punished by
287. ' imprisonment for not more than one year or by a fine of not more
than one thousand dollars.
1
2
3
4
5
6
Chap. 208.] crimes against property. 1759
1 Section 67. Whoever, knowing that his land is attached on selling at-
2 mesne process, sells and conveys it without giving notice of the wftnout Notice.
3 attachment to the grantee, and with intent to defraud, shall be pun- g. ii ilii f 6o.'
4 ished by imprisonment in the state prison for not more than three P- s- 203' § 6S-
5 years or in jail for not more than one year.
1 Section 68. Whoever, with a fraudulent intent to place per- concealing
2 sonal property which is subject to a mortgage beyond the control "ersoSfiVop.
3 of the mortgagee, removes or conceals or aids or abets in removing m&'.m.
4 or concealing the same, and a mortgagor of such property who p.' |.' 203' § 69."
5 assents to such removal or concealment, shall be punished by a fine J°J ^ass. 12^
6 of not more than one thousand dollars or by imprisonment for not
7 more than one year.
1 Section 69. A mortgagor of personal property who sells or con- saieby mort-
2 veys the same or any part thereof without the consent of the mort- fofsentof out
3 gagee in writing, and without informing the vendee or grantee that ig^fsf66'
4 the same is mortgaged, shall be punished by a fine of not more than p.'!;^'! 70."
5 one hundred dollars or by imprisonment for not more than one 8 Allen> 518-
6 year. 10 Allen, 81. 105 Mass. 580.
1 Section 70. A hirer or lessee of personal property who sells —by hirer,
2 or conveys the same or any part thereof without the consent in any without011'
3 writing of the owner or lessor, and without informing the vendee is§^/m.
4 or grantee that it is so hired or leased, shall be punished by a fine f; |; 203,' |n.'
5 of not more than one hundred dollars or by imprisonment for not
6 more than one year.
1 Section 71. Whoever, holding collateral security deposited ^liatlmi of
2 with him for the payment of a debt which may be due to him, security before
debt due etc.
3 sells, pledges, lends or in any way disposes of the same before 1855,213.'
4 such debt becomes due and payable, without the authority of the p." s." 203,' § 72.'
5 depositor thereof, shall be punished by a fine of not more than five ™ Mass! I31.
6 hundred dollars or by imprisonment in jail for not more than two
7 years.
1 Section 72. Whoever, with intent to defraud, buys, receives Buying, etc.,
2 or aids in concealing personal property, knowing it to be hired or etce propei
3 leased or held as collateral security, shall be punished by a fine of p6!'. 203, §73.
4 not more than one hundred dollars or by imprisonment for not
5 more than one year.
1 Section 73. Whoever, being in possession of personal property sale of person-
2 received upon a written and conditional contract of sale, with in- conditional11
3 tent to defraud, sells, conveys, conceals or aids in concealing the i87o,'26i.
4 same before performance of the conditions precedent to acquiring f50 Mass'. It!4'
5 the title thereto, shall be punished by a fine of not more than one
6 hundred dollars or by imprisonment for not more than one year.
1 Section 74. A consignee or factor who, in violation of good ££n8jf°®d'u_
2 faith and with intent to defraud the owners thereof, deposits or lentiy deposit-
• ill- '. , , . ing or pledging
3 pledges, as security for money borrowed by him, a negotiable 111- property, etc.
4 strument received by him, merchandise consigned or intrusted to g.s. lei, §65.
5 him, or a bill of lading, certificate or order for the delivery of ps-203^75-
1760
CRIMES AGAINST PROPERTY.
[Chap. 208.
merchandise ; or who, in like violation and with like intent, disposes 6
of or applies such property or evidence of property to his own 7
use ; or who, in like violation and with like intent, disposes of or 8
applies to his own use money which has been raised or a negotiable 9
instrument which has been acquired by the sale or other disposition 10
of such property or evidence/ of property, shall be punished by a 11
fine of not more than five thousand dollars and imprisonment for 12
not more than five years. 13
Falsely pre-
tending to hold
a degree, etc.,
or granting
degrees with-
out authority.
1893, 355, § 1.
Section 75. Whoever, in a book, pamphlet, circular, adver- 1
tisement or advertising sign, or by a pretended written certificate 2
or diploma, or otherwise in writing, knowingly and falsely pretends 3
to have been an officer or teacher, or to be a graduate or to hold 4
any degree of a college or other educational institution of this com- 5
mon wealth or elsewhere, which is authorized to grant degrees, or &
of a public school of this commonwealth, and whoever, without the 7
authority of a special act of the general court granting the power 8
to give degrees, offers or grants degrees as a school, college or as a 9
private individual, alone or associated with others, shall be punished 10
by a fine of not more than one thousand dollars or by imprisonment 11
for not more than one year, or by both such fine and imprisonment. 12
Falsely claim-
ing indorse-
ment.
1893, 355, § 2.
Obtaining or
giving a raise
pedigree of
animals.
1887, 143.
1890, 334, § 2.
Malicious
destruction of
boundary
monument,
mile stone, etc.
1785, 28, § 2.
1823, 113, § 1.
E. S. 126, § 43.
G. S. 161, § 66.
P. S. 203, § 76.
1901, 268, § 2.
Section 76. Whoever, in a book, pamphlet, circular, adver- 1
tisement or advertising sign, or otherwise in writing, makes any 2
false and fraudulent statement or assertion of indorsement, author- 3
ity, approval or sanction of an incorporated college, university or 4
professional school in this commonwealth or elsewhere, or of ofii- 5
cers or instructors thereof, as a commendation or advertisement of 6
a person or of his services, or of goods, wares, commodities, proc- 7
esses or treatment, shall be punished by a fine of not more than 8
one thousand dollars or by imprisonment for not more than one 9
year, or by both such fine and imprisonment. 10
Section 77. Whoever, by a false pretence, obtains from any 1
club, association, society or company for improving the breed of 2
cattle, horses, sheep, swine or other domestic animals, the registra- 3
tion, or a certificate thereof, of any animal in the herd register, 4
or any other register of such club, association, society or company, 5
or a transfer of such registration, or whoever knowingly makes, 6
exhibits or gives a false pedigree in writing of any animal, shall be 7
punished by imprisonment for not more than two years or by a 8
fine of not more than five hundred dollars, or by both such fine and 9
imprisonment. 10
Section 78. Whoever wilfully, intentionally and without right 1
breaks down, injures, removes or destro}^ a monument which has 2
been erected for the purpose of designating the boundaries of a 3
city or town or of a tract or lot of land, or a tree which has been 4
marked for that purpose, or so breaks down, injures, removes or 5
destroys a mile stone, mile board or guide board which has been 6
erected upon a public way or railroad, or wilfully, intentionally and 7
without right defaces or alters the inscription on any such stone or 8
board, or wilfully, intentionally and without right mars or defaces 9
a building or sign board, or extinguishes a lamp, or breaks, destroys 10
Chap. 208.] crimes against property. 1761
11 or removes a lamp, lamp post, railing or post which has been erected
12 on a bridge, sidewalk, public way, court or passage, shall be pun-
13 ished by imprisonment for not more than six months or by a fine of
14 not more than fifty dollars.
1 Section 79. Whoever wilfully or maliciously removes, dis- Malicious
2 places, destroys, defaces, mars or injures any monument, tablet or o! historical
3 other device which has been erected to mark an historic place or to i8^9™8!nt'
4 commemorate an historic event shall be punished by a fine of not
5 more than one hundred dollars or by imprisonment for not more
6 than one year.
1 Section 80. Whoever wilfully, intentionally and without right pefacmg, etc.,
n j c ■ ■ 4-u ii • *-• ±1, 4. e building of the
2 defaces, mars or injures the walls, wainscoting or any other part oi common.
3 the state house or of any other building which belongs to the com- 1I33, m.
4 mon wealth, or the appurtenances thereof, by cutting, writing or g. I'. 5*'§§ii'.
5 otherwise, shall be punished by a fine of not less than five nor more ^bi,"268,'§§3.7*
6 than one hundred dollars.
1 Section 81. Whoever wilfully mars or injures the walls, wain — bunding
2 scoting or any other part of a court house, or of any other building iI^i^i 1.
3 or room used for county business, or the appurtenances thereof, by
4 cutting, writing or otherwise, shall be punished by imprisonment
5 for not more than sixty days or by a fine of not more than fifty
6 dollars.
1 Section 82. Whoever wilfully, intentionally and without right, wjifun^ur^,
2 or wantonly and without cause, destroys, defaces, mars or injures a house, church,
3 school house, church or other building which has been erected or used ture, etc.
4 for purposes of education or religious instruction, or for the general g. s\ iei, § 67.
5 diffusion of knowledge, or an out-building, fence, well or appurte- mi'.wi'Jl?'
6 nance of such school house, church or other building, or furniture, 2Allen> 159-
7 apparatus or other property which belongs to or is connected with
8 such school house, church or other building, shall be punished by
9 a fine of not more than five hundred dollars or by imprisonment
10 for not more than one year.
1 Section 83. Whoever wilfully, intentionally and without right, £0e*£f ™tcnt00/
2 or wantonly and without cause, writes upon, injures, defaces, tears libraries.
3 or destroys a book, plate, picture, engraving, map, newspaper, 1872U2!
4 magazine, pamphlet, manuscript or statue which belongs to a law, i883,*8i.
5 city, town or other public or incorporated library shall be pun- 1901' 268' § 4-
6 ished by a fine of not less than five nor more than fifty dollars or
7 by imprisonment for not more than six months.
1 Section 84. Whoever wilfully, intentionally and without right, j^|nt0^n of
2 or wantonly and without cause, detains a book, newspaper, maga- paries.
3 zine, pamphlet, or manuscript which belongs to a law, city, town 1901', 268, § 4.
4 or other public or incorporated library for thirty days after a
5 notice in writing from the librarian thereof, containing a copy of
6 this section and given after the expiration of the time which, by the
7 regulations of such library, such book, newspaper, magazine, pam-
8 phlet or manuscript may be kept, shall be punished by a fine of
9 not less than one nor more than twenty-five dollars or by imprison-
10 ment for not more than six months.
1762
CRIMES AGAINST PROPERTY.
[Chap. 208.
Malicious
explosion.
1851, 129, § 1.
G. S. 161, § 68.
P. S. 203, § 80.
1901, 268, § 4.
Section 85. "Whoever wilfully, intentionally and without right, 1
by the explosion of gunpowder or of any other explosive, unlaw- 2
fully destroys or injures a dwelling house, office, shop or other 3
building, or a ship or vessel, shall be punished by imprisonment in 4
the state prison for not more than twenty years or in jail for not 5
more than five years or by a fine of not more than one thousand 6
dollars. 7
Throwing ex-
plosives into
dwelling, etc.
1851, 129, § 2.
G. S. 161, § 69.
P. S. 203, § 81.
1901, 268, § 4.
Section 86. Whoever wilfully, intentionally and without right 1
throws into, against or upon, or puts, places or explodes or causes 2
to be exploded in, upon or near a dwelling house, office, shop, build- 3
ing or vessel gunpowder or other explosive, or a bomb shell, tor- 4
pedo or other instrument filled or loaded with an explosive, with 5
intent unlawfully to destroy or injure such dwelling house, office, 6
shop, building or vessel, or any person or property therein, shall 7
be punished by imprisonment in the state prison for not more than 8
ten years or in jail for not more than five years or by a fine of not 9
more than five hundred dollars. 10
— oil of vitriol,
coal tar, etc.
1851, 129, §3.
G. S. 161, §70.
P. S. 203, § 82.
1901, 268, § 4.
Injury to
building.
1862, 160.
P. S. 203, § 83.
1901, 268, § 5.
110 Mass. 401.
Raising water
so as to injure
mill.
1849, 98.
G. S. 161, § 71.
P. S. 203, § 84.
Section 87. Whoever wilfully, intentionally and without right 1
throws into, against or upon a dwelling house, office, shop or other 2
building, or into, against or upon a vessel, or puts or places therein 3
or thereon oil of vitriol, coal tar or other noxious or filthy sub- 4
stance, with intent unlawfully to injure, deface or defile such 5
dwelling house, office, shop, building or vessel, or any property 6
therein, shall be punished by imprisonment in the state prison for 7
not more than five years or in jail for not more than three years or 8
by a fine of not more than three hundred dollars. 9
Section 88. Whoever wilfully, intentionally and without right 1
destroys, injures, defaces or mars a dwelling house or other build- 2
ing, whether upon the inside or outside, shall be punished by im- 3
prisonment for not more than sixty days or by a fine of not more 4
than fifty dollars. 5
Section 89. Whoever, by erecting or maintaining- a dam, either 1
within or without this commonwealth, knowingly causes the water 2
of a river or stream so to be raised as to flow upon or injure a mill 3
lawfully existing in this commonwealth and belonging to a citizen 4
thereof, without right as against the owner of such mill, shall be 5
punished by a fine of not more than one thousand dollars or by im- 6
prisonment for not more than six months ; but the provisions of 7
this section shall not apply to cases in which the courts of this 8
commonwealth have jurisdiction to abate a dam so raised or main- 9
tained. 10
Injury to dam,
reservoir, etc.
1727-8, 3.
1829, 98.
R. S. 126, § 40.
1857, 160.
G. S. 161, § 72.
1875, 101.
P. S. 203, § 85.
1901, 268, § 4.
Section 90. Whoever wilfully, intentionally and without right 1
breaks down, injures, removes or destroys a dam, reservoir, canal 2
or trench or a gate, flume, flash boards or other appurtenances 3
thereof, or a wheel, or mill gear, or machinery of a water mill or 4
steam mill, or wilfully or wantonly, without color of right, draws 5
off the water contained in a mill pond, reservoir, canal or trench, 6
or obstructs such water from flowing out of the same, shall be pun- 7
ished by imprisonment in the state prison for not more than five 8
Chap. 208.] crimes against property. 1763
9 years or by a fine of not more than five hundred dollars and im-
10 prisonment in jail for not more than two years.
1 Section 91. AYhoever wilfully and without right pulls down Puiiingdown
2 or removes any portion of a stone wall or fence which is erected i9of,e29sa118'
3 or maintained for the purpose of enclosing land shall be punished
4 by a fine of not more than ten dollars.
1 Section 92. Whoever wilfully, intentionally and without right injury, etc.,
n t . , . . i i • i i ® to ice taken as
2 or license, cuts, injures, mars or otherwise damages or destroys ice merchandise.
3 upon waters from which ice is or may be taken as an article of g. s. i6i, § 73.
4 merchandise, whereby the taking thereof is hindered or the value miim'J^'
5 thereof diminished for that purpose, shall be punished by a fine of
6 not more than one hundred dollars.
1 Section 93. Whoever wilfully, intentionally and without right — to bridge,
2 breaks down, injures, removes or destroys a public bridge, or a R- s.126, §<n.
3 lock, culvert or embankment of a canal, or wilfully, intentionally p.* s.' 203,' f 87.'
4 and without right makes an aperture or breach in such embankment 1901' 268, § h
5 with intent to destroy or injure the same, shall be punished by
6 imprisonment in the state prison for not more than five years or by
7 a fine of not more than five hundred dollars and imprisonment in
8 jail for not more than two years.
1 Section 94. Whoever casts away, burns, sinks or otherwise Destroying
2 destroys a ship or vessel, with intent to injure or defraud an owner fraud owner.
3 thereof, or of any property laden on board the same, or an insurer iso2^i36,e§'i.
4 of such ship, vessel or property, or of any part thereof, shall be ^pf ^ H-5
5 punished by imprisonment in the state prison for not more than ten g-f-^'f J<>-
n -t* o* 20o, § 89.
6 years.
1 Section 95. Whoever lades, equips or fits out, or assists in Pitting out
2 lading, equipping or fitting out, a ship or vessel, with intent that tent to desfroy
3 it shall be wilfully cast away, burnt, sunk or otherwise destroyed, il'ol^se, § 2.
4 and with intent to injure or defraud an owner or insurer of such ^2|> ^ ||6
.5 ship or vessel, or of any property laden on board the same, shall ^' |- 203* 1 90"
6 be punished by imprisonment in the state prison for not more than
7 twenty years or by a fine of not more than five thousand dollars
5 and imprisonment in jail for not more than three years.
1 Section 96. An owner of a ship or vessel, or of property laden False invoice,
2 or pretended to be laden on board the same, or any other person toCdefraCudg°
3 concerned in the lading or fitting out of a ship or vessel, who i^rf36,e§3.
4 makes out or exhibits, or causes to be made out or exhibited, a false g. 1. i6i' I Is'.
5 or fraudulent invoice, bill of lading, bill of parcels or other false p. s. 20s' § 91.
6 estimates of any goods or property laden or pretended to be laden
7 on board such ship or vessel, with intent to injure or defraud an
8 insurer of such ship, vessel or property or of any part thereof, shall
9 be punished by imprisonment in the state prison for not more than
10 ten years or by a fine of not more than five thousand dollars and
11 imprisonment in jail for not more than two years.
1 Section 97. A master, officer or mariner of a ship or vessel ^g^SSV^.
2 who makes or causes to be made or swears to a false affidavit or R- s- 126> § w.
1764
CRIMES AGAINST PROPERTY.
[Chap. 208.
G. S.
P. S.
161, § 79.
203, § 92.
protest, or an owner of or other person concerned in such ship or 3
vessel, or the owner of or the person concerned in the goods or 4
property laden on board the same, who procures such false affidavit 5
or protest to be made, or exhibits the same, with intent to injure, 6
deceive or defraud an insurer of such ship or vessel, or of any 7
goods or property laden on board the same, shall be punished by 8
imprisonment in the state prison for not more than ten years or 9
by a fine of not more than five thousand dollars and imprisonment 10
in jail for not more than two years. 11
Malicious
killing or
poisoning of
cattle.
1804, 131, § 4.
R. S. 126, § 39.
G. S. 161, § 80.
P. S. 203, § 93.
1 Mass. 59.
3 Cush. 558.
9 Gray, 299, 304.
105 Mass. 460.
Cutting timber,
wood, grain,
1698, 7, §§ 1, 2.
1723-4, 10, §§1,2.
1726-7, 3, §§ 1, 2.
1727, 8.
1785, 28, § 1.
181S, 3, §§ 2, 4.
R. S. 126, §§ 44,
45.
G. S. 161, §§ 81,
84.
1868, 321.
P. S. 203, §§ 94,
97.
141 Mass. 241.
Section 98. Whoever wilfully and maliciously kills, maims or 1
disfigures any horse, cattle or other beast of another person, or 2
wilfully and maliciously administers or exposes poison with intent 3
that it shall be taken or swallowed by any such beast, shall be 4
punished by imprisonment in the state prison for not more than 5
five years or by a fine of not more than one thousand dollars and (>
imprisonment in jail for not more than one year. 7
Section 99. Whoever wilfully cuts down or destroys timber 1
or wood standing or growing on the land of another, or carries 2
away any kind of timber or wood cut down or lying on such land, or 3
digs up or carries away stone, ore, gravel, clay, sand, turf or mould 4
from such land, or roots, fruit or any plant there being, or cuts 5
down or carries away sedge, grass, hay or any kind of corn, stand- 6
ing, growing or being on such land, or carries away from a wharf 7
or landing place any goods in which he has no interest or property, 8
without the license of the owner thereof, shall be punished by im- 9
prisonment for not more than six months or by a fine of not more 10
than five hundred dollars, and if the offence is committed on the 11
Lord's day or in disguise or secretly in the night time the impris- 12
onment shall not be less than five days nor the fine less than five 13
dollars. 14
Malicious
injuries to
trees, fences,
etc.
1698, 7, § 1.
1785, 28, § 1.
1829, 63.
R. S. 126, § 42.
G. S. 161, § 82.
1868, 321.
P. S. 203, § 95.
11 Cush. 414.
127 Mass. 1.
Injury to
plants or
objects of
ornament or
utility.
1856, 256, § 2.
G. S. 46, § 7.
P. S. 54, § 7.
Section 100. Whoever wilfully and maliciously cuts down, 1
destroys or injures a tree which is not his own, standing for any 2
useful purpose, or whoever wilfully and maliciously breaks glass in 3
a building which is not his own, or whoever wilfully and mali- 4
ciously breaks down, injures, mars or defaces a fence belonging to 5
or enclosing land which is not his own, or wilfully and maliciously 6
throws down or opens a gate, bars or fence, and leaves the same 7
down or open, or maliciously and injuriously severs from the free- 8
hold of another any produce thereof or anything attached thereto, 9
shall be punished by imprisonment for not more than six months 10
or by a fine of not more than five hundred dollars. 11
Section 101. Whoever wilfully and maliciously injures, de- 1
faces or destroys a shrub or plant or an object or fixture of orna- 2
ment or utility in a public way or place or in any enclosure shall 3
forfeit not less than five nor more than one hundred dollars, one- 4
half to the use of the complainant and one-half to the use of the 5
owner of the property injured, defaced or destroyed. 6
Section 102. Whoever wilfully and maliciously injures, defaces 1
1 ' ' 2
— to a shade
tree in a public j
i899C,e33o, §§6,7. or destroys an ornamental or shade tree in a public way or place, or
Chap. 208.] crimes against property. 1765
3 negligently or wilfully suffers an animal, driven by or for him or
4 belonging to him and lawfully in a public way or place, to injure,
5 deface or destroy such tree, or whoever, by any other means, neg-
6 ligently or wilfully injures, defaces or destroys such tree, shall
7 forfeit not less than five nor more than one hundred dollars, one-
8 half to the use of the complainant and one-half to the use of the
9 city or town in which said act is committed ; and shall in addition
10 thereto be liable to said city or town or other person interested in
11 said tree for all damages caused by such act.
1 Section 103. Whoever negligently or wilfully suffers an ani- g^Ttreein
2 mal, driven by or for him or belonging to him knd lawfully on the highway.
3 highway, to injure, deface or destroy a tree which is not his own, g. s'.46,'§8.
4 standing for use or ornament on the highway, or whoever, by any i899,'436.
5 other means, negligently or wilfully injures, defaces or destroys
6 such tree, shall forfeit not less than five nor more than one hundred
7 dollars, one-half to the use of the complainant and one-half to the
8 use of the city or town in which said act is committed ; and shall
9 in addition thereto be liable in damages to the owners or tenant of
10 the land in front of which the tree stands.
1 Section 104. Whoever affixes to a tree in a public way or place Affixing
2 a playbill, picture, announcement, notice, advertisement or other Sees68*0
3 thing, whether in writing or otherwise, or cuts, paints or marks ifj|; ^ §§ 5 8#
4 such tree, except for the purpose of protecting it and under a
5 written permit from the officer having the charge of such trees in
6 a city or from the tree warden in a town, shall be punished by a
7 fine of not more than fifty dollars for each offence. The tree
8 warden shall enforce the provisions of this and the preceding two
9 sections in towns.
1 Section 105. Whoever wilfully and maliciously enters an Trespass in
2 orchard, nursery, garden or cranberry meadow, and takes away, den etc! '
3 mutilates or destroys a tree, shrub or vine or steals, takes and i698,"t!3§ i. '
4 carries away any fruit or flower, without the consent of the owner G?s'A56i, § 83.
5 thereof, shall be punished by a fine of not more than five hundred p6||o3 §96.
6 dollars or by imprisonment for not more than six months. 6 Gray, 349.
1 Section 106. Whoever wilfully and maliciously, and without ^.^fa^lt^f
2 permission of the owner or person having control thereof, enters ^|h|nt£u]t,4t0,
3 upon the orchard, garden or other improved land of another, with r. s'. 126, §'45.
4 intent to cut, take, carry away, destroy or injure the trees, grain, i868,-32i.'
5 grass, hay, fruit or vegetables there growing or being, shall be
6 punished by imprisonment for not more than six months or by a
7 fine of not more than five hundred dollars ; and if the offence is
8 committed on the Lord's day, or in disguise, or secretly in the
9 night time, the imprisonment shall not be less than five days nor
10 the fine less than five dollars.
1 Section 107. Whoever, having the charge or custody of sheep, suffering
2 goats, cattle, horses, swine or fowl, wilfully suffers or permits trespass on
3 them to enter on, pass over or remain on any orchard, garden, J^'ies.
4 mowing land or other improved or enclosed land of another, after p87|'. 203, § 98.
5 being forbidden in writing or by notice posted thereon by the
1766
CRIMES AGAINST PROPERTY.
[Chap. 208.
owner or occupant thereof, or by the authorized agent of such 6
owner or occupant, shall be punished by a fine of not more than 7
ten dollars. 8
Transporta-
tion of injuri-
ous insects.
1890, 95, § 7.
1891, 210, § 7.
1898, 544, § 3.
Section 108. Whoever knowingly brings the insects which are 1
known as the ocneria dispar or gypsy moth or as the brown-tail 2
moth, or their nests or eggs, into this commonwealth, or whoever 3
knowingly transports said insects or their eggs or nests from one 4
city or town to another city or town in the commonwealth, except 5
when engaged in, and for the purpose of, destroying them shall be 6
punished by a fine of not more than two hundred dollars or by im- 7
prisonment for not more than sixty days, or by both such fine and 8
imprisonment. 9
Trespass on
improved or
enclosed land.
1862, 89.
1876, 181.
P. S. 203, §§ 99,
100.
1890, 410.
162 Mass. 584.
164 Mass. 495.
Section 109. Whoever, without right, enters or remains in or 1
upon the dwelling house, buildings or improved or enclosed land 2
of another, after having been forbidden so to do by the person 3
who has the lawful control of said premises, either directly or by 4
notice posted thereon, shall be punished by a fine of not more than 5
twenty dollars. A person who is found committing such trespass 6
may be arrested by a sheriff, deputy sheriff, constable, watchman 7
or police officer and kept in custody in a convenient place, not 8
more than twenty-four hours, Sunday excepted, until a complaint 9
can be made against him for the offence, and he be taken upon a 10
warrant issued upon such complaint. 11
w?th^rearmsd Section 110. Whoever, without right, enters upon the land of 1
1890, 403, § i. another with firearms, with intent to fire or discharge them thereon, 2
and, having been requested by the owner or occupant of such land 3
or by his agent to leave such land, remains thereon, shall be pun- 4
ished by a fine of not more than two hundred dollars or by impris- 5
onment for not more than two months, or by both such fine and 6
imprisonment. 7
nottcee^a?nstf Section 111. Whoever wilfully tears down, removes or defaces 1
i89oP40S3Se§62 any n°tice posted on land by the owner, lessee or custodian thereof, 2
warning persons not to trespass thereon, shall be punished by a fine 3
of not more than twenty-five dollars. 4
Spappurte- Section 112. Whoever wilfully trespasses upon land which be-
et!?1 t0 prison' longs to the commonwealth and is appurtenant to the state prison,
1885,303. Massachusetts reformatory or reformatory prison for women, or
upon land which belongs to any county and is appurtenant to a jail
or house of correction, or, after notice from an officer of any of said
institutions to leave said land, remains thereon, shall be punished
by imprisonment for not more than three months or by a fine of
not more than fifty dollars.
Malicious
injury to legal
notice.
1883, 156.
Section 113. Whoever wilfully and maliciously, or wantonly
and without cause, tears down, removes or defaces a warrant for a
town meeting, list of jurors or other notice or paper which has
been posted in compliance with law shall, except as otherwise pro-
vided, be punished by a fine of not more than ten dollars.
1
2
3
4
5
6
7
8
1
2
3
4
5
Chap. 208.] crimes against property. 1767
1 Section 114. Whoever wilfully and maliciously removes, de- Malicious
2 stroys or mutilates a show bill, placard, programme or other adver- £?1j1uryt08how
3 tisement posted upon a wall, fence, bill board or structure not pJs'.lol' § 101.
4 lawfully under his control, of an exhibition, show or amusement
5 licensed under the provisions of section one hundred and seventy-
6 two of chapter one hundred and two, before such exhibition, show
7 or amusement has taken place, shall be punished by a fine of not
8 more than ten dollars.
1 Section 115. Whoever paints, or puts upon, or in any man- Defacing natu-
2 ner affixes to, any fence, structure, pole, rock or other object which i873^ery'
3 is the property of another, whether within or without the limits of ^'9f '|^.' § 102'
4 the highway, any words, device, trade mark, advertisement or no-
5 tice which is not required by law to be posted thereon, without
6 first obtaining the written consent of the owner or tenant of such
7 property, shall, upon complaint of such owner, or of his tenant,
8 or of any municipal or public officer, be punished by a fine of not
9 more than ten dollars. Any word, device, trade mark, advertise-
10 ment or notice which has been painted, put up or affixed within the
11 limits of a highway in violation of the provisions of this section
12 shall be considered a public nuisance, and may be forthwith removed
13 or obliterated and abated by any person.
1 Section 116. Whoever wilfully and maliciously destroys or Malicious
2 injures the personal property of another in any manner or by any ^"sona/prop-
3 means not particularly described or mentioned in this chapter shall f^l; ]26 § 39-
4 be punished by imprisonment in the state prison for not more than J|4| 5*>f jf-g5
5 five years or by a fine of not more than one thousand dollars and ?jf v2?,3,' § 103-
6 imprisonment in nail for not more than one year ; but if the value 3 Cusii. 558.
7 of the property so destroyed or injured is not alleged to exceed 7 Alien, 577".
8 fifteen dollars, the punishment shall be by a fine of not more than 10! Maes! 304!
9 fifteen dollars or by imprisonment for not more than thirty days.
1 Section 117. Whoever, without the consent of the owner Defacing milk
2 thereof, knowingly and wilfully effaces, alters or covers over, or 1885^133.
3 procures to be effaced, altered or covered over the name, initial
4 or device of any dealer in milk, marked or stamped upon a milk
5 can, or whoever, with intent to defraud and without such consent,
6 detains or uses in his business any such can having the name, initial
7 or device of any dealer in milk so marked or stamped thereon, shall
8 be punished b}^ a fine of not more than ten dollars.
1 Section 118. Whoever, without the consent of any owner who —registered
2 has complied with the provisions of section nineteen of chapter Soo,35V§ 3.
3 seventy-two, wilfully destroys, mutilates or defaces any can, jug,
4 bottle or jar bearing such owner's name, mark or device, or wilfully
5 erases, mars, covers or changes any word or mark branded, en-
6 graved, blown or otherwise produced, in a permanent manner in
7 or upon any such can, jug, bottle or jar, shall, for the first offence,
8 be punished by a fine of not more than five dollars or by imprison-
9 ment for not more than sixty days, for each can, jug, bottle or
10 jar so destroyed, mutilated or defaced, or for each can, jug, bottle
11 or jar upon which any word or mark has been erased, marred,
12 covered or changed, as aforesaid r and, for any subsequent offence,
1768
CRIMES AGAINST PROPERTY.
[Chap. 208.
by a fine of not more than ten dollars, or by imprisonment for not 13
more than six months, for each can, jug, bottle or jar so destroyed, 14
mutilated or defaced, or for each can, jug, bottle or jar upon which 15
any word or mark has been erased, marred, covered or changed, as 16
aforesaid. 17
Injury of prop-
erty at state
prison.
1891, 295.
1396, 344.
Section 119. If a convict in the state prison wilfully and ma- 1
liciously destroys or injures the property of the commonwealth at 2
such prison or the property of any person who furnishes materials 3
for the employment of the prisoners, he may be punished by im- 4
prisonment in the state prison for not more than three years ; or if 5
he is serving a sentence of imprisonment for life, he may be pun- 6
ished by imprisonment at solitary labor for not more than one year 7
or by solitary imprisonment for not more than five days, or by 8
both, and such punishment shall be inflicted at such time as the 9
court orders. 10
Arrest without
warrant of
trespasser on
Lord's day.
1851. 246.
1852, 245.
G. S. 161, $ 86.
P. S. 203, § 104.
p~enai°institu- Section 120. If a convict at the Massachusetts reformatory, at 1
i896S344 ^ie ref°rmatory prison for women, at the state farm, at any jail or 2
house of correction wilfully and maliciously injures or destroys the 3
property of the commonwealth, or of any county, or the property 4
of any person who furnishes materials for the employment of the 5
prisoners in any of said institutions, he may be punished by im- 6
prisonment for not less than six months nor more than three years. 7
Section 121. Whoever is discovered in the act of wilfully in- 1
juring a fruit or forest tree or of committing any kind of malicious 2
mischief on the Lord's day may be arrested without a warrant by 3
a sheriff, deputy sheriff, constable, watchman, police officer or 4
other person, and detained in jail or otherwise until a complaint 5
can be made against him for the offence, and he be taken upon a 6
warrant issued upon such complaint ; but such detention without 7
warrant shall not continue more than twenty-four hours. 8
Section 122. "Whoever wilfully kills pigeons upon, or frightens 1
them from, beds which have been made for the purpose of taking 2
them in nets, by firing guns, or by any other method, within one hun- 3
dred rods of the same, except on land lawfully occupied by himself, 4
shall be punished by imprisonment for not more than thirty days 5
or by a fine of not more than twenty dollars ; and shall also be liable 6
for the actual damages to the owner or occupant of such beds. 7
pro1prertytof' t0 Section 123. Whoever unlawfully enters a house or hut which 1
fo'Sety6 *s *^e ProPerty of the Humane Society of the Commonwealth of 2
cf!'3iei6S8 Massachusetts and wilfully injures, destroys, removes or carries 3
p.' s." 203,' §106. away any food, fuel, oil, candles, furniture, utensils or other prop- 4
erty which belongs to said society, or unlawfully or wilfully enters 5
any boat house of said society and carries away, removes or injures 6
any life boat, car, or any of the ropes, tackle, oars or any appur- 7
tenance thereof, or wilfully iujures or destroys or unlawfully uses 8
or commits any trespass upon, the property of said society which is 9
intended or kept for the purpose of saving or preserving human 10
life, or commits any trespass upon such hut or boat house, shall 11
be punished by a fine of not more than two hundred dollars or 12
Killing or
frightening
pigeons.
1848, 85.
1849, 29.
G. S. 161, § 87.
P. S. 203, § 105.
€HAP. 209.] FORGERY, CRIMES AGAINST THE CURRENCY. 1769
13 by imprisonment for not more than six months ; but the penalties
14 of this section shall not apply to persons for whose use said boats,
15 houses and other property are intended and kept. Pilots, com-
16 missioners of wrecks, sheriffs and their deputies, and constables,
17 shall make complaint against all persons guilty of a violation of
18 the provisions of this section. One-half of any fine paid under
19 the provisions of this section shall be paid to the person who gives
20 information upon which a conviction shall be obtained.
1 Section 124. Whoever, between the first day of April and the setting are to
2 first day of October, sets fire to a coal pit or pile of wood, for the woocSaneun
3 purpose of charring the same, on any woodland in the cities of New ScT^twe^n'
4 Bedford or Fall River or in the towns of Dartmouth, Freetown, ocatobernd
5 Fairhaven, Middleborough or Rochester, shall forfeit one hundred i?3^1*8,- 858q_
6 dollars. Whoever, between the times aforesaid, sets fire to any 91'.
— I* S 203 6S 107—
7 brushwood or bushes on any part of such woodland, or on land 109.'
8 adjoining thereto, so as to cause the burning of such brushwood or
9 bushes, shall forfeit fifty dollars. All forfeitures under the pro-
10 visions of this section shall be equally divided between the city or
11 town in which the offence is committed and the person who sues
12 therefor.
1 Section 125. Whoever moors or in any manner makes fast a Mooring
2 vessel, scow, boat or raft to a buoy, beacon or floating guide placed to jfbuoy^'etc.
3 by the government of the United States in the navigable waters p^'Jof^f/iid
4 of this commonwealth shall be punished by a fine of not more m-
5 than fifty dollars ; and whoever wilfully destroys, injures or re-
6 moves any such beacon or guide shall be punished by a fine of not
7 more than one hundred dollars or by imprisonment for not more
8 than three months. One-third of all fines which accrue under the
9 provisions of this section shall be paid to the complainant and two-
10 thirds to the county.
1 Section 126. A baggage master, express agent, stage driver, injury, etc., to
2 hackman or other person, whose duty it is to handle, remove or haffmin^etc.
3 take care of the baggage of passengers, who wilfully or recklessly p6l\ 203, § 112.
4 destroys or injures a trunk, valise, box, package or parcel, while
5 loading, transporting, unloading, delivering or storing the same,
6 shall be punished by a fine of not more than fifty dollars.
CHAPTER 209.
OF FORGERY, AND CRIMES AGAINST THE CURRENCY.
1 Section 1. Whoever, with intent to injure or defraud, falsely Forgery of
2 makes, alters, forges or counterfeits a public record, or a certificate, tract] etc°n"
3 return or attestation of a clerk or register of a court, public regis- wg^fisf's.
4 ter, notary public, justice of the peace, town clerk or any other 17H' |i' § 3.
5 public officer, in relation to a matter wherein such certificate, re- i«$ J?), §1.
*- # # _ - - _ _ loUi>. 00, § 1.
6 turn or attestation may be received as legal proof; or a charter, r. s. 127, §1.
7 deed, will, testament, bond or writing obligatory, letter of at- i874,'78. '
8 torney, policy of insurance, bill of lading, bill of exchange or lsbs, '^2,' 1 113.
1770
FORGERY, CRIMES AGAINST THE CURRENCY. [CHAP. 209.
1901, 371, § 1.
3 Cush. 150.
3 Gray, 441.
2 Allen, 161.
101 Mass. 32.
114 Mass. 278,
311.
120 Mass. 358.
124 Mass. 327.
129 Mass. 124.
148 Mass. 296.
157 Mass. 386.
promissory note ; or an order, acquittance or discharge for money 9
or other property ; or an acceptance of a bill of exchange, or an 10
indorsement or assignment of a bill of exchange or promissory 11
note for the payment of money ; or an accountable receipt for 12
money, goods or other property ; or a certificate of stock, or any 13
evidence or muniment of title to property ; or a certificate of title, 14
duplicate certificate of title, certificate issued in place of a duplicate 15
certificate, the registration book, entry book, or any indexes pro- 16
vided for by chapter one hundred and twenty-eight, or the docket 17
of the recorder ; shall be punished by imprisonment in the state 18
prison for not more than ten years or in jail for not more than two 19
years. Whoever, with intent to injure or defraud, falsely makes, 20
alters, forges or counterfeits a railroad ticket, railroad mileage book 21
or railroad pass shall be punished by imprisonment in the state 22
prison for not more than three years or in jail for not more than 23
two years, or by a fine of not more than five hundred dollars. 24
Forgery of
6tamp or seal.
1S98, 562, § 114.
1901, 371, § 3.
Section 2. Whoever forges or procures to be forged, or assists 1
in forging, the seal of the court of land registration, or, without 2
lawful authority, stamps or procures to be stamped, or assists in 3
stamping, any document with such forged seal or with the genuine 4
seal of said court, shall be punished as provided in the preceding 5
section. Whoever forges or procures to be forged, or assists in 6
forging, the stamp of any railroad company or of any railroad ticket 7
agent, or stamps or procures to be stamped, or assists in stamping, 8
any railroad ticket or railroad mileage book with such forged stamp, 9
or with a genuine stamp of any railroad company or railroad ticket 10
agent without being duly authorized thereto shall be punished by 11
imprisonment in the state prison for not more than three years or 12
in jail for not more than two years, or by a fine of not more than 13
five hundred dollars. 14
Uttering
forged record
or contract.
1692-3, 18, § 8.
1784, 67.
1785, 21, § 3.
1804, 120, § 1.
1805, 88, § 1.
K. S. 127, § 2.
G. S. 162, § 2.
P. S. 204, § 2.
1901, 371, § 2.
9 Gray, 123.
10 Gray, 477,
483.
2 Allen, 165.
Forging note
of treasurer
and receiver
general, etc.
1804, 120, § 2.
R. S. 127, § 3.
G. S. 162, § 3.
P. S. 204, § 3.
— bank bill or
note:
1781, 34.
Section 3. Whoever, with intent to injure or defraud, utters 1
and publishes as true a false, forged or altered record, deed, instru- 2
ment or other writing mentioned in the two preceding sections, 3
knowing the same to be false, altered, forged or counterfeit, shall 4
be punished by imprisonment in the state prison for not more than 5
ten years or in jail for not more than two years. Whoever, with 6
intent to injure or defraud, utters and publishes as true a false, forged 7
or altered railroad ticket, railroad mileage book or railroad pass 8
mentioned in section one, knowing the same to be false, altered, 9
forged or counterfeited, shall be punished by imprisonment in the 10
state prison for not more than three years or in jail for not more 11
than two years, or by a fine of not more than five hundred dollars. 12
Section 4. Whoever, with intent to injure or defraud, falsely
makes, alters, forges or counterfeits a note, certificate or other bill
of credit issued by the treasurer and receiver general, or by any
commissioner or other officer authorized to issue the same for a
debt of this commonwealth, shall be punished by imprisonment in
the state prison for life or for any term of years.
Section 5. Whoever, with intent to injure or defraud, falsely
makes, alters, forges or counterfeits a bank bill or promissory
1
2
3
4
5
6
1
2
Chap. 209.] forgery, crimes against the currency. 1771
3 note payable to the bearer thereof or to the order of any person, 1783,53, §2.
4 issued by an incorporated banking company established in this com- \m', i2o,§§52.
5 monwealth or elsewhere, shall be punished by imprisonment in the iiiilel'fl"
6 state prison for life or for any term of years. iiGray,306. I'Sa204'^ 4"
1 Section 6. "Whoever has in his possession at the same time ten recession of
2 or more similar false, altered, forged or counterfeit notes, bills of counterfeit6
3 credit, bank bills or notes, such as are mentioned in any of the ^ten^etc
4 preceding sections, payable to the bearer thereof, or to the order ^ ^ § |-
5 of any person, knowing the same to be false, altered, forged or <*'• s. 162) § 5!
6 counterfeit, with intent to utter or pass the same as true, and 2 Mass. 132. "
7 thereby to injure or defraud, shall be punished by imprisonment in 4 piek.m107*
8 the state prison for life or for any term of years. 97 Mass. 571.
1 Section 7. Whoever utters or passes or tenders in payment as Passing coun.
2 true any such false, altered, forged or counterfeit note, certificate forged note*
3 or bill of credit for any debt of this commonwealth, or a bank bill 1720^1' fo.§ 1-
4 or promissory note payable to the bearer thereof or to the order of ]]%£$' l\ j
5 any person, issued as aforesaid, knowing the same to be false, i775-M8,§§i,3.
6 altered, forged or counterfeit, with intent to injure or defraud, shall ms-ii, 25,' §§ i',2.
7 be punished by imprisonment in the state prison for not more than 1783; 53; §3.
8 five years, or by a fine of not more than one thousand dollars and \m', i2o,§§53.
9 imprisonment in jail for not more than one year. §; |; ^ 1 1'.
■ 11 Mass. 136. 11 Gray, 306. 2 Allen, 165. 4 Allen, 305. P" S> 204' § 6-
1 Section 8. Whoever, having been convicted of the crime men- second convic-
2 tioned in the preceding section, is again convicted of the like crime convictions at?
3 committed after the former conviction, and whoever is at the same nijfe!11*11^'
4 sitting of the court convicted upon three distinct charges of such ^°| ^ |37-
5 crime, shall be adjudged a common utterer of counterfeit bills, p'|-3|Z*
6 and be punished by imprisonment in the state prison for not more
7 than ten years.
1 Section 9. Whoever brings into this commonwealth or has Havin
terfeitbil],
g o
bil
2 in his possession a false, forged or counterfeit bill or note, in the with intent,
3 similitude of the bills or notes, payable to the bearer thereof or to iloi, 120, § 4.
4 the order of any person, issued by or for a bank or banking com- 1^127 §§ 8.
5 pany, established in this commonwealth or elsewhere, with intent J*3**? *>§§ J5. 16-
n i 11 > *
6 to utter or pass the same or to render the same current as true, p. s. 204, §8.
2 Mass 138
7 knowing the same to be false, forged or counterfeit, shall be pun- 7 pick.' 137.'
8 ished by imprisonment in the state prison for not more than five $ Met'. 235!
9 years or by a fine of not more than one thousand dollars and im- 10 Alien,* 84.
10 prisonment in jail for not more than one year.
1 Section 10. Whoever engraves, makes, or mends or begins to Making or
2 engrave, make or mend, a plate, block, press or other tool, instru- efc^forcoun-
3 ment or implement, or makes or provides paper or other material ^ten^ei^™**
4 adapted to and designed for the forging or making of a false and JZ^> ^§ L
5 counterfeit note, certificate or other bill of credit, purporting to Jpjjj^Jf-.!
6 be issued by lawful authority for a debt of this commonwealth, or 1776-7^44' § 1.
7 a false and counterfeit note or bill in the similitude of the notes or 1804; 120, § 5.
8 bills issued by a bank or banking company established in this ^'.m', §9.
9 commonwealth or elsewhere, and whoever has in his possession p.'s.'-Iol'll).'
10 such a plate or block engraved in any part, or a press or other
1772
FORGERY, CRIMES AGAINST THE CURRENCY. [CHAP. 209.
tool, instrument or implement, or paper or other material, adapted 11
and designed as aforesaid, with intent to use the same or to cause 12
or permit the same to be used in forging or making such false and 13
counterfeit certificates, bills or notes, shall be punished by im- 14
prisonment in the state prison for not more than ten years or by a 15
fine of not more than one thousand dollars and imprisonment in 16
jail for not more than two years. 17
Testimony of
president, etc.,
of bank, dis-
pensed with in
certain cases.
1818, 110.
1833, 222, § 3.
R. S. 127, § 10.
G. S. 162, § 10.
P. S. 204, § 10.
2 Pick. 47.
5 Cush. 605.
Section 11. In prosecutions for forging or counterfeiting notes 1
or bills of the banks before mentioned, or for uttering, publish- 2
ing or tendering in payment as true forged or counterfeit bank 3
bills or notes, or for being possessed thereof with intent to utter and 4
pass the same as true, the testimony of the president and cashier 5
of any such bank may be dispensed with, if their place of residence 6
is out of this commonwealth or more than forty miles from the 7
place of trial ; and the testimony of any person acquainted with 8
the signature of such president or cashier, or who has knowledge 9
of the difference in the appearance of the true and the counterfeit 10
bills or notes of such banks, may be admitted to prove that such 11
bills or notes are counterfeit. 12
Sworn certifi-
cates of certain
officers made
evidence.
1791, 61.
R. S. 127, § 11.
G. S. 162, § 11.
P. S.204, §11.
Section 12. In prosecutions for forging or counterfeiting a 1
note, certificate, bill of credit or other security issued on behalf 2
of the United States, or on behalf of any state or territory, or for 3
uttering, publishing or tendering in payment as true such forged 4
or counterfeit note, certificate, bill of credit or security, or for 5
being possessed thereof with intent to utter or pass the same as 6
true, the certificate under oath of the secretary of the treasury, or 7
of the treasurer of the United States, or of the secretary or treas- 8
urer of any state or territory, on whose behalf such note, certificate, 9
bill of credit or security purports to have been issued, shall be 10
admitted as evidence for the purpose of proving the same to be 11
forged or counterfeit. 12
Affixing ficti-
tious signa-
ture.
R. S. 127, § 13.
G. S. 162, § 12.
P. S. 204, § 12.
2 Mass. 77.
Section 13. If a fictitious or pretended signature, purporting 1
to be the signature of an officer or agent of a corporation, is fraud- 2
ulently affixed to an instrument or writing purporting to be a note, 3
draft or other evidence of debt issued by such corporation, with 4
intent to pass the same as true, it shall be a forgery, although no 5
such person may ever have been an officer or agent of such corpo- 6
ration, or ever have existed. 7
Counterfeiting
coin, or having
ten counterfeit
pieces, etc.
1702-3, 2, §§ 1, 2.
1749-50, 22, § 1.
1753-4, 20.
1S04, 120, § 6.
R. S. 127, § 15.
G. S. 162, § 14.
P. S. 204, § 14.
8 Mass. 59.
21 Pick. 523.
Section 14. Whoever counterfeits any gold or silver coin cur-
rent by law or usage within this commonwealth, or has in his pos-
session at the same time ten or more pieces of false money, or coin
counterfeited in the similitude of any gold or silver coin current
as aforesaid, knowing the same to be false and counterfeit, and
with intent to utter or pass the same as true, shall be punished by
imprisonment in the state prison for life or for any term of years.
8» Met. 315.
10 Met. 256.
13 Met. 515.
1 Gray, 566.
Having less
than ten
1
2
3
4
5
6
7
hi Section 15. Whoever has in his possession any number of 1
Fntent,' etcth pieces, less than ten, of the counterfeit coin mentioned in the 2
uttering coun- preceding section, knowing the same to be counterfeit, with intent 3
terteit coin. ° -o '
Chap. 209.] forgery, crimes against the currency. 1773
4 to utter or pass the same as true, or utters, passes or tenders in iso4, 120, § 7.
5 payment as true any such counterfeit coin, knowing the same to <j. 1'. i!', f \l\
6 be false and counterfeit, shall be punished by imprisonment in the apick452315'
7 state prison for not more than ten years or by a fine of not more JgMet'iii'
8 than one thousand dollars and imprisonment in jail for not more 1 Gray, 566.
9 than two years.
1 Section 16. Whoever, having been convicted of any of the second convic
2 crimes mentioned in the preceding section, is again convicted of convictions ate
3 the same crimes committed after the former conviction, and who- ff^lo^f'
4 ever is at the same sitting of the court convicted upon three dis- g- 1- f^ § J7,-
5 tinct charges of said crimes, shall be adjudged a common utterer of p- s.' 204,' § is.
. ... 13 Met 514
6 counterfeit coin, and punished by imprisonment in the state prison
7 for not more than twenty years.
1 Section 17. Whoever casts, stamps, engraves, makes or mends, Making, mend-
2 or knowingly has in his possession a mould, pattern, die, puncheon, tofi f w coYn-*
3 engine, press or other tool or instrument, adapted to and designed tent^tchin"
4 for coining or making counterfeit coin, in the similitude of any ]|0|> x|*« §8-
5 gold or silver coin current by law or usage in this commonwealth, g! s! 162; § 17.'
6 with intent to use or employ the same or to cause or permit the 6 Met. 221.
7 same to be used or employed in coining or making any such false
8 and counterfeit coin as aforesaid, shall be punished by imprison-
9 ment in the state prison for not more than ten years or by a fine
10 of not more than one thousand dollars and imprisonment in jail
11 for not more than two years.
1 Section 18. Whoever issues or passes a note, bill, order or issuing or
2 check, other than foreign bills of exchange, the notes or bills of a as currency?
3 bank incorporated by the laws of this commonwealth, of the United ^;> excePt»
4 States, of some one of the United States or of any of the British 7^ |°66- 70
5 Provinces of North America, with the intent that the same shall be §• §• 3 f ^j-
6 circulated as currency, shall be punished by a fine of fifty dollars
7 for each offence.
1 Section 19. Whoever issues or passes a note, bill, order or - small note,
2 check, other than the notes or bills of a bank incorporated under re£cy?eCxcept,
3 the authority of this commonwealth, of the United States or of f^; 58> §§ 1} 2;
4 some one of the United States, for an amount less than five dollars, ^^33 §7
5 or whereon a less amount than five dollars is due at the time of such g. s. 162, § 19.
6 issuing or passing thereof, with intent that the same shall be circu-
7 lated as currency, shall be punished by a fine of fifty dollars for each
8 offence.
1 Section 20. Whoever receives or puts in circulation as currency circulation of
2 a bank note or bill which is, or a part of which is, for any fractional 1853, 392?§ 2!
3 part of a dollar shall be punished by a fine of twenty-five dollars, p! 1: 204,' f 20.'
1 Section 21. Whoever fraudulently connects different parts of connecting"7
2 several bank notes or other genuine instruments in such manner as imT^ of sev-
o t . 1 . era' bank
3 to produce one additional note or instrument, with intent to pass notes, etc.
4 all of them as genuine, shall be guilty of forgery, in like manner as g. s. 102', § 21!
5 if each of them had been falsely made or forged. 10 Mass. 34. ' '
1774
FORGERY, CRIMES AGAINST THE CURRENCY.
"Chap. 209.
Wilful and
malicious in-
jury to bank
bill.
1852, 64.
G. S. 162, § 22.
P. S. 204, § 22.
— gathering
up, etc., bills
of bank for
purpose of in
juring busi-
ness, etc.
Penalty.
1859, 116, §§ 3,
G. S. 162, § 23
P. S. 204, § 23
4.
Section 22. Whoever wilfully and maliciously tears, cuts or 1
in any manner damages and impairs the usefulness for circulation 2
of a bank bill or note of a bank in this commonwealth shall be 3
punished by a fine of not more than ten dollars for each offence ; 4
but the possession or uttering of a bill so injured shall not be evi- 5
dence against a party charged, unless connected with other circum- 6
stances tending to prove that the bill or note was injured by him. 7
Section 23. Whoever maliciously gathers up or retains or 1
maliciously aids in gathering up or retaining bills or notes of a 2
bank or banking company, current by law or usage in this com- 3
monwealth, for the purpose of injuring or impeding the circulation 4
or business of such bank or banking company, or of compelling it 5
to do any act out of the usual course of its business, shall be 6
punished by a fine of not more than five hundred dollars or by im- 7
prisonment for not more than two years ; and in the prosecution 8
of any such crime it shall not be necessary to set out and describe 9
each bill, but it shall be sufficient to aver and prove any amount 10
of the bills of any bank which have been so gathered up or retained. 11
Possession of
worthless bills,
not current,
1857, 231, § 1.
G. S. 162, § 24.
P. S. 204, § 24.
Section 24. Whoever has in his possession at the same time 1
five or more bank bills or notes not current which are worthless as 2
bank bills or notes, knowing the same to be worthless as aforesaid, 3
or has papers not bank bills or notes, but made in the similitude 4
of bank bills or notes, or papers purporting to be the bills or notes 5
of a bank which has never existed, knowing the character of such 6
papers, with intent to pass, utter or circulate the same, or to pro- 7
cure any other person so to do, for the purpose of injuring or 8
defrauding, shall be punished by imprisonment in the state prison 9
for not more than five years or by a fine of not more than five 10
hundred dollars and imprisonment in the house of correction for 11
not more than three years. 12
Uttering or
passing such
bill, etc.
1857, 231, § 2.
G. S. 162, § 25.
P. S.204, §25.
7 Allen, 537.
Section 25. Whoever utters or passes or tenders in payment 1
as true any such worthless bank bill or note not current or any 2
paper not a bank bill or note but made in the similitude of a bank 3
bill or note, or any paper purporting to be the bill or note of a 4
bank which has never existed, knowing the same to be worthless 5
and not current, as aforesaid, with intent to injure and defraud, 6
shall be punished by imprisonment in the state prison for not more 7
than five years or by a fine of not more than five hundred dollars 8
and imprisonment in the house of correction for not more than 9
three years. 10
Engraving,
etc., shop Dill,
resembling-
bank bills.
1849, 5.
G. S. 162, § 26.
1862, 63.
P. S. 204, § 26.
Section 26. Whoever engraves, prints, issues, utters or circu- 1
lates a shop bill or advertisement, in similitude, form and appear- 2
ance like a bank bill, on paper similar to paper used for bank bills, 3
and with vignettes, figures or decorations used on bank bills, or 4
having the general appearance of a bank bill, or in similitude, 5
form and appearance, like a treasury note, note, certificate, bill of 6
credit or other security issued by or on behalf of the United States, 7
on paper similar to paper used for the same, respectively, and with 8
vignettes, figures or decorations' used thereon, or having the gen- 9
eral appearance of a treasury note, note, certificate, bill of credit 10
CHAP. 210.] CRIMES AGAINST PUBLIC JUSTICE. 1775
11 or other security issued by or on behalf of the United States, shall
12 be punished by a fine of not more than fifty dollars or by impris-
13 onment in jail for not more than ninety days.
1 Section 27. When false, forged or counterfeit bank bills or sheriff, etc., to
2 notes, or forged or counterfeit notes or bonds of any state or cor- flu bfnsI'etcV
3 poration, or plates, dies or other tools, instruments or implements illf; 111' 1 3!
4 used by counterfeiters, or designed for the forging or making of g-„s -™2> § 27-
5 false or counterfeit notes, coin or bills, or worthless bank bills or p. s'. 204, § 27.
6 notes not current described in sections twenty-four and twenty-five,
7 come to the knowledge of a sheriff, constable, police officer or
8 other officer of justice, he shall immediately seize and take posses-
9 sion of and deliver them into the custody of the superior court
10 which shall cause them to be destroyed by an officer of the court,
11 who shall make return to the court of his doings in the premises.
1 Section 28. Upon a conviction of any crime mentioned in compensation
2 sections four, five, fourteen, fifteen, seventeen and twenty-five or etc^/forgersl
3 also upon forfeiture by persons prosecuted for any such crime of i7i3_i4) 11; § 1.
4 any recognizance for their appearance to answer to the same, the Yilt-w 22' § 5.
5 superior court may order compensation to the prosecutor and to 1^04,120, §9.
6 the officer who has secured and kept the evidence of the crime, not R. s\ 12V, § 19.
7 exceeding their actual expenses, with a reasonable allowance for 1846J142!
8 their time and trouble, which shall be paid by the county. i860,' 191,' §10."
P. S. 204, § 28.
CHAPTER 210.
or crimes against public justice.
1 Section 1. Whoever, being lawfully required to depose the Perjury.
2 truth in a judicial proceeding or in a proceeding in a course of c.'l.'i5,§u.'
3 justice, wilfully swears or affirms falsely in a matter which is itsI'I'i^'i.9'
4 material to the issue or point in question, or whoever, being re- ilai' xli §§1il
5 quired by law to take an oath or affirmation, wilfully swears or ]^'H' §2-
6 affirms falsely in a matter relative to which such oath or affirmation r. s.94', §12;
7 is required, shall be guilty of perjury. Whoever commits perjury g. fe. 163, §'§ 1, 2.
8 on the trial of an indictment for a capital crime shall be punished 1892,' 123'.
9 by imprisonment in the state prison for life or for any term of years, i^m*?!!.' Jr"2'
10 and whoever commits perjury in any other case shall be punished Jooiass.4!!}.
11 by imprisonment in the state prison for not more than twenty years ^^ass'ies
12 or by a fine of not more than one thousand dollars or by imprison- 166 Mass. 174.
13 ment in jail for not more than three years, or by both such fine and
14 imprisonment in jail.
1 Section 2. Whoever is guilty of subornation of perjury, by — suboma-
2 procuring another person to commit perjury, shall be punished as 1692-3, is, § 9.
3/» • 1784, 51, § 2.
tor perjury. R. S. 12S, §3. G. S. 163, §3. P. S. 205, §3. ll Allen, 243. 152 Mass. 498. 1812, 144, § 2.
1 Section 3. Whoever attempts to incite or procure another per — inciting to.
2 son to commit perjury, although no perjury is committed, shall be W ui, §3.
3 punished by imprisonment in the state prison for not more than five G'. s'. m, § 1
4 years or in jail for not more than one year. iei Mass. 120. p. s. 205, §4.
1776
CRIMES AGAINST PUBLIC JUSTICE.
[Chap. 210.
o^resump* Section 4. If it appears to a court of record that a party or a 1
tion of perjury, witness who has been legally sworn and examined, or has made an 2
o". s'. 163, § 5'. affidavit, in any proceeding in a court or course of justice has so 3
testified as to create a reasonable presumption that he has com- 4
mitted perjury therein, the court may forthwith commit him or 5
may require him to recognize with sureties for his appearance to 6
answer to an indictment for perjury ; and thereupon the witnesses 7
to establish such perjury may, if present, be bound over to the 8
superior court, and notice of the proceedings shall forthwith be 9
given to the district attorney. 10
Papers, etc.,
may be
secured.
R. S. 128, § 7.
G. S. 163, § 6.
P. S. 205, § 8.
Section 5. If perjury is reasonably presumed, as aforesaid, 1
papers, books or documents which have been produced and which 2
are considered necessary to be used on a prosecution for such per- 3
jury may by an order of the court be detained from the person 4
who produces them so long as may be necessary for their use in 5
such prosecution. G
Bribe to officer.
R. S. 128, § 8.
G. S. 163, § 7.
P. S. 205, § 9.
1891, 349, § 1.
135 Mass. 530.
156 Mass. 480.
170 Mass. 228.
Section 6. Whoever corruptly gives, offers or promises to a 1
legislative, executive, judicial, county or municipal officer, after 2
his election or appointment, either before or after he has qualified 3
or has taken his seat, any gift or gratuity whatever, with intent to 4
influence his act, vote, opinion, decision or judgment upon any 5
matter, question, cause or proceeding which may be then pending, G
or which may by law come or be brought before him in his official 7
capacity, or as a consideration for any speech, work or service in 8
connection therewith, shall be punished by imprisonment in the 9
state prison for not more than five years or by a fine of not more 10
than three thousand dollars and imprisonment in jail for not more 11
than one year. 12
bribery officer. Section 7. A legislative, executive, judicial, county or munic-
g 1' 163 1 8 *Pa^ °^cer wno corruptly requests or accepts a gift or gratuity
P- s^|.'|io. or a promise to make a gift or to do an act beneficial to him, under
an agreement or with an understanding that his vote, opinion or
judgment shall be given in any particular manner, or upon a par-
ticular side of any question, cause or proceeding, which is or may
be by law brought before him in his official capacity or as a con-
sideration for any speech, work or service in connection therewith,
or that, in such capacity, he shall make any particular nomination or
appointment, shall forfeit his office, be forever disqualified to hold
any public office, trust or appointment under the constitution or
laws of this commonwealth, and be punished by imprisonment in
the state prison for not more than ten years or by a fine of not
more than five thousand dollars and imprisonment in jail for not
more than two years.
mMo!,^™:, Section 8. An officer or agent of, or a person employed by,
offi?eUrblic tne commonwealth, or by a county, city, town or by any public in-
pll'^fii2" stitutkm not mentioned in section eleven who, being authorized to
1893,' 271,' §1. ' procure materials, supplies or other articles either by purchase or
contract, or to employ service or labor, receives, directly or indi-
rectly, for himself or for another, a commission, discount, bonus,
present or reward from the person who makes such contract, fur-
1
2
3
4
5
G
7
8
9
10
11
12
13
14
15
1
2
3
4
5
6
7
Chap. 210.] crimes against public justice. 1777
8 nishes such materials, supplies or other articles, or from a person
9 who renders service or labor under such contract, or a person who
10 gives or offers such commission, discount, bonus, present or reward,
11 shall be punished by a fine of not less than ten nor more than five
12 hundred dollars or by such fine and imprisonment for not more than
13 one year.
1 Section 9. A member of the general court, or of the executive Taking com-
2 council, or of a state commission, who is personally interested, di- by member0''
3 rectly or indirectly, in a contract made by the general court or by cityecouncife'
4 either branch thereof or by such commission or by its authority, in ^ 274
5 which the commonwealth is an interested party ; or a person who ™7£ %&■
6 alone or with others represents the commonwealth in making such [l'op.A'. g. '
7 contract who is so interested ; or such member or person who re-
8 ceives a commission, discount, bonus, present or reward from a per-
9 son or persons making or performing such contract ; or a member of
10 either branch of a city council or of a municipal board of a city who
11 is personally interested, directly or indirectly, in a contract made
12 by the city council or by either branch thereof or by such board or
13 by authority derived therefrom, in which the city is an interested
14 party ; or a person who alone or with others represents a city in
15 making such contract who is so interested ; or such member or per-
16 son who, directly or indirectly, for himself or for another receives
17 a commission, discount, bonus, present or reward from any person
18 or persons making or performing such contract, shall be punished
19 by a fine of not less than fifty nor more than one thousand dollars,
20 or by such fine and by imprisonment for not more than one year.
1 Section 10. A county officer who is personally interested, di- ^1^™™**
2 rectly or indirectly, in a contract made by the county treasurer, 1893> 271> § 2-
3 county commissioners, or by their authority, in which the county
4 is an interested party, or a person who alone or with others repre-
5 sents a county in making such contract, who is so interested, or
6 such officer or person who, directly or indirectly, for himself or
7 for another, receives a commission, discount, bonus, present or re-
8 ward from a person making or performing such contract, shall be
9 punished as provided in the preceding section.
1 Section 11. An officer who is connected with a prison, house Bribery of
2 of correction, insane asylum or hospital or other public charitable lie charitable"
3 institution who is personally interested, directly or indirectly, in a W2,m?n'e
4 contract, purchase or sale made on account of such institution, or p-s-205> §13-
5 who corruptly accepts a bribe, present or gratuity from any person
6 interested in such contract or a person who is interested, directly
7 or indirectly, in a contract connected with any such institution who
8 corruptly gives, offers or promises to an officer of such institution
9 a bribe, gift or gratuity, shall be punished by imprisonment in the
10 state prison for not more than three years or by a fine of not more
11 than one thousand dollars or by imprisonment in jail for not more
12 than two years or by both such fine and imprisonment in jail.
1 Section 12. Whoever corrupts or attempts to corrupt a master corrupting
c ■ i -,., , ./ , . n V • • juror, arbitra-
2 in cnanceiy, auditor, juror, arbitrator, umpire or referee by giving, tor, etc.
3 offering or promising any gift or gratuity whatever, with intent to g'. s! m, §9.*
° ° J G & J P. S. 205, §14.
1778
CRIiMES AGAINST PUBLIC JUSTICE.
[Chap. 210.
Acceptance of
bribe by juror,
arbitrator, etc.
R. S. 128, § 11.
G. S. 163, § 10.
P. S. 205, § 15.
174 Mass. 79.
Aiding escape
from prison,
and rescuing
prisoner.
C. L. 127, § 4.
1700-1, 2, §§ 3, 4.
1784, 41, §2.
1805, 113, §§ 6, 8.
1811, 32, § 8.
1827, 118, § 24.
K. S.128, §12;
144, § 41.
G. S. 163, §11;
179, § 57.
P. S.205, §16;
221, § 40.
119 Mass. 347.
Escape from
state prison.
1805, 113, §§ 9,
1811,32, §§9, 10.
1827, 118, §§ 11,
R.' S. 144, §§ 37,
38.
G. S. 179, §§ 53,
54.
1873, 73, § 1.
P. S. 221, §§36,
37.
5 Allen, 131.
101 Mass. 223.
bias the opinion or influence his decision, relative to a cause or mat- 4
ter pending in the court, or before an inquest, or for the decision 5
of which he has been chosen or appointed, shall be punished by 6
imprisonment in the state prison for not more than five years or 7
by a fine of not more than one thousand dollars and imprisonment 8
in jail for not more than one year. 9
Section 13. A person Avho, being summoned as a juror or chosen 1
or appointed as an arbitrator, umpire or referee, or who, being a 2
master in chancery or auditor, corruptly takes anything to give his 3
verdict, award or report, or corruptly receives any gift or gratuity 4
from a party to a suit, cause or proceeding for the trial or decision 5
of which such juror has been summoned, or for the hearing or de- 6
termination of which such master in chancerv, auditor, arbitrator, 7
umpire or referee has been chosen or appointed, shall be punished 8
by imprisonment in the state prison for not more than five years 9
or by a fine of not more than one thousand dollars and imprison- 10
ment in the jail for not more than one year. 11
Section 14. Whoever conveys into the state prison, the Massa- 1
chusetts reformatory or reformatory prison for women or into a 2
jail, house of correction, house of reformation or like place of con- 3
finement, a disguise, instrument, tool, weapon or other thing which 4
is adapted or useful to aid a prisoner in making his escape, with 5
intent to aid the escape of a prisoner, or whoever, by any means, 6
aids or assists such prisoner in an attempt to escape therefrom, 7
whether such escape is eifected or attempted or not, and whoever 8
forcibly or fraudulently rescues or attempts to rescue a prisoner who 9
is held in custody upon a conviction or charge of crime, shall, if 10
the person whose escape or rescue was effected or intended is a 11
convict under sentence in the state prison, be punished by impris- 12
onment in the state prison for not more than ten years or by a 13
fine of not more than five hundred dollars ; but if he is a convict 14
under sentence in any other of said institutions, by imprisonment in 15
the state prison for not more than seven years, and if he is charged 16
with a misdemeanor, then by imprisonment in jail for not more than 17
two years or by a fine of not more than five hundred dollars. 18
Section 15. A convict who escapes from the state prison, or 1
who attempts by violence to escape, or who assaults the warden or 2
other officer or person employed in the prison, shall, in addition to 3
his former sentence, if he is under sentence for a term of years, be 4
punished by imprisonment in said prison for not more than ten years 5
and by solitary imprisonment for not more than one year, to be ex- 6
ecuted forthwith or at such time or times either before or after the 7
expiration of any former sentence as the court orders ; and, if he is 8
under sentence of imprisonment for life, by solitary imprisonment 9
for not more than one year, to be executed at such time or times as 10
the court orders. 11
— from prison
for women.
1885, 94,
Section 16. A convict in the reformatory prison for women who 1
2> 3- escapes or attempts to escape therefrom or who, while being taken 2
therefrom for any purpose, escapes or attempts to escape ft-om the 3
land appurtenant thereto shall be punished by imprisonment in said 4
Chap. 210.] crimes against public justice. 1779
5 prison or in the house of correction in the county of Middlesex for
6 not more than two years. The first district court of southern Mid-
7 dlesex shall have jurisdiction concurrent with the superior court of
8 violations of the provisions of this section.
1 Section 17. Whoever, being lawfully imprisoned in a penal in- other escapes.
2 stitution, except the state prison, the state farm or the reformatory 1I3I; HI] f 14.
3 prison for women, breaks therefrom and escapes, or breaks there- k. s- 143, §§ 49-
4 from with intent to escape, or by force or violence attempts to es- q5!'93^ §46
5 cape therefrom, shall be punished by imprisonment in the state P^s -2|o'§ 50.
6 prison for not more than five years or in the jail or house of cor- 5 Met! 555"!
7 rection for not more than three years or by a fine of not more than 133 Mass! 399.
8 one thousand dollars.
1 Section 18. Whoever, being imprisoned in a penal institution, Escapes when
2 except the state prison, is taken outside of such institution by an ins«tutionSde
3 officer thereof for the purpose of performing labor on any public 1882' 198,
4 land or building belonging to the commonwealth or to the county,
5 city or town in which such institution is located, escapes or at-
6 tempts to escape from the custody of such officer shall be deemed
7 to have escaped from such institution and shall be punished by im-
8 prisonment for not more than six months.
1 Section 19. Whoever gives, sells or delivers spirituous or in- Furnishing
2 toxicating liquor to a person who is confined in any prison or other prisoner!
3 place of confinement, or to a person who is in the custody of a 1^.143! 37.
4 sheriff, constable, police officer, warden of a prison, or other master q5!9^ §43
5 or keeper of a place of confinement, or has in his possession, within p. s. 222,' § 2.
6 the precincts of any prison or other place of confinement, any such
7 liquor, with intent to convey or deliver it to any person who is con-
8 fined therein, unless under the direction of the physician appointed
9 to attend such prisoner, shall be punished by a fine of not more
10 than fifty dollars or by imprisonment for not more than two months.
1 Section 20. A sheriff, jailer, master of a house of correction same subject.
2 or other officer or under keeper of a prison who, under any pre- 1I2I; ill' 11 1| *!
3 tence, gives, sells or delivers or knowingly permits to be given, 1834, 151, §§ 20,
4 sold or delivered to a prisoner in his custody who has been com- J£- s- 143> §§ 36>
5 mitted to jail for debt and is there supported at the expense of the g. s. its, §§ 42,
6 creditor, or to a prisoner who is detained upon a conviction or p.' s. 220, §§ 47,
7 charge of crime, any spirituous liquor or mixed liquor a part of
8 which is spirituous, or wine, cider or strong beer, unless the physi-
9 cian of the prison certifies in writing that the health of the prisoner
10 requires it ; or such sheriff, jailer, master of a house of correction
11 or other officer or under keeper of a prison who willingly or negli-
12 gently suffers such prisoner to have or drink any spirituous, fer-
13 mented or other strong or mixed liquor or who places or keeps
14 together prisoners in his custody of different sexes or classes, con-
15 trary to the provisions of section seventeen of chapter two hundred
16 and twenty-five, shall forfeit twenty-five dollars for the first offence
17 and fifty dollars for any subsequent offence which is committed
18 after the first conviction, and, upon such second conviction, shall
19 be further sentenced to be removed from office, and to be incapable
20 of holding the office of sheriff, deputy sheriff, jailer, master or
1780
CKEMES against public justice.
[Chap. 210.
Aiding escape
from an officer.
1811, 32, § 8.
1827, 118, § 24.
R. S. 128, § 13.
G. S. 163, § 12.
P. S. 205, § 17.
119 Mass. 291.
keeper of any prison for five years thereafter. If the physician 21
certifies that the health of the prisoner requires such liquor, the 22
prisoner shall be allowed the quantity prescribed and no more. 23
Section 21. Whoever aids or assists a prisoner in escaping or 1
attempting to escape from an officer or person who has the lawful 2
custody of such prisoner shall be punished by imprisonment for not 3
more than two years or by a fine of not more than five hundred 4
dollars. 5
Disturbance
of penal
institutions.
1885, 303.
Illicit convey-
ance of articles
to or from
reformatory.
1805, 113, § 8.
1825, 84, § 4.
R. S. 144, § 42.
1838, 152, § 1.
G. S. 179, § 58.
1878, 133.
1879, 294, § 34.
P. S. 221, § 41.
1887, 339.
Section 22. Whoever wilfully disturbs the state prison, the 1
Massachusetts reformatory, the reformatory prison for women, or 2
a jail or house of correction, or in any manner seeks to attract the 3
attention of, or without the permission of the officer in charge has 4
communication with, an inmate thereof shall be punished by impris- 5
onment for not more than three months or by a fine of not more 6
than fifty dollars. 7
Section 23. Whoever delivers or procures to be delivered, or 1
has in his possession with intent to deliver, to a convict confined in 2
the state prison, the Massachusetts reformatory or the reformatory 3
prison for women, or whoever deposits or conceals in or about the 4
prison or reformatories or the dependencies thereof, or upon any 5
land appurtenant thereto, or in any boat, carriage or other vehicle 6
going into the premises belonging to the prison or reformatories, 7
any article or thing, with intent that a convict shall obtain or re- 8
ceive it, and whoever receives from a convict any article or thing 9
with intent to convey it out of the prison or reformatory, contraiy 10
to the rules and regulations thereof, and without the knowledge and 11
permission of the board of prison commissioners, of the warden of 12
the state prison or the superintendents of said reformatories, respec- 13
tively, shall be punished by imprisonment in the state prison or jail 14
for not more than three years or by a fine of not more than five 15'
hundred dollars. 16
\v\thrpeorncee Section 24. Whoever opens a signal box connected with a
i8l8a29iy8tems' P°^ce signal system for the purpose of giving or causing to be
1901', 527. given a false alarm, or interferes in any way with such box by
breaking, cutting, injuring or defacing the same ; or whoever,
without authority, opens, tampers or meddles with such box, or
with any part or parts thereof, or with the police signal wires, or
with anything connected therewith, or whoever, with such purpose,
wantonly and without cause tampers or meddles with a signal box
connected with a fire signal system or with any part or thing con-
nected therewith, shall be punished by a fine of not more than five 10
hundred dollars or by imprisonment for not more than two years 11
or by both such fine and imprisonment. 12
IscaUpnetary Section 25. A jailer or other officer who, except as provided in
i78M'i?'§§36' ^ne f°ll°wmg section, voluntarily suffers a prisoner in his custody
g 1' 163' § is uPon conviction or upon a charge of crime to escape shall suffer the
p.' s.' 205,' § is.' punishment and penalties to which the prisoner whom he suffered
to escape was sentenced or would be liable to suffer upon conviction
of the crime wherewith he stood charged.
1
2
3
4
5
6
Chap. 210.] crimes against public justice. 1781
1 Section 26. An officer or other person, who, being employed Sltt^frfso™
2 in the state prison, voluntarily suffers a convict confined therein to }%£> 113, § 6.
c\ • 1 i iiii »it A"*'i Wo, § 22.
3 escape, or in anyway consents to such escape, shall be punished R- s. 144, § 39.
4 by imprisonment in said prison for not more than twenty years. p.' s.' 221J § 3s!
1 Section 27. A jailer or other officer who, through negligence, Negligent es-
2 suffers a prisoner in his custody upon conviction or upon a charge fusai t» receive
3 of crime to escape, or wilfully refuses to receive into his custody c^l??"^ 2.
4 a prisoner lawfully directed to be committed thereto upon convic- ^g^'AV7"
5 tion, upon a charge of crime, or upon a lawful process, shall be g- 1'- 1||» § i|-
6 punished by imprisonment for not more than two years or by a fine p.' s.' 205,' §19.'
7 of not more than five hundred dollars.
1 Section 28. An officer or person who, being employed in the Leaving pris-
2 state prison, su%rs a convict under sentence of solitary imprison- \m, ii3,a§rf f '
3 ment to be at large or out of the cell assigned to him, or suffers i^ !i8,§§723.
4 any convict who is confined in the prison to be at large out of the p- f • m> 1 1|-
5 prison, or to be visited, conversed with or in any way relieved or
6 comforted, contrary to the regulations of the prison, shall be pun-
7 ished by a fine of not more than five hundred dollars.
1 Section 29. An officer who wilfully delays service of a warrant Delay of
J •/ S6rviC6 Ox
2 of arrest or a search warrant which has been committed to him for warrant.
1899 389
3 service, shall be punished by a fine of not more than fifty dollars.
1 Section 30. An officer who, being authorized to serve process, Refusal to ar.
2 wilfully and corruptly refuses to execute a lawful process directed rngescapeUffer"
3 to him and requiring him to apprehend or confine a person con- §1 s! ll', I ill
4 victed of or charged with crime, or wilfully and corruptly omits or rs-205, §20.
5 delays to execute such process, whereby such person escapes, shall
6 be punished by imprisonment for not more than one year or by a
7 fine of not more than five hundred dollars.
1 Section 31. Whoever, being required in the name of the com- —to aid
2 mon wealth by a sheriff, deputy sheriff, constable, police officer or i795,e6s, § 1.
3 watchman, neglects or refuses to assist him in the execution of his ^'if8' § 17'
4 office in a criminal case, in the preservation of the peace or in the p- 1; 205,' 1 21!
5 apprehension or securing of a person for a breach of the peace, or
6 in a case of escape or rescue of persons arrested upon civil process,
7 shall be punished by imprisonment for not more than one month
8 or by a fine of not more than fifty dollars.
1 Section 32. Whoever, being required by a justice of the —to arrest
2 peace, upon view of a breach of the peace or of any other offence oTaVsticeof
3 proper for his cognizance, to apprehend the offender, refuses or i^el?! 3.
4 neglects to obey such justice, shall be punished as provided in the §; fl li; f 1?;
5 preceding section ; and no person to whom such justice is known p- s- 205> § 22-
6 or declares himself to be a justice of the peace shall plead any
7 excuse on pretence of ignorance of his office.
1 Section 33. Whoever falsely assumes or pretends 10 be a jus- Falsely assum-
2 tice of the peace, special commissioner, sheriff, deputy sheriff, jufticeofthe
3 medical examiner, associate medical examiner, constable, police $95^8® §&
4 officer or watchman, and acts as such or requires a person to aid I'.i'.Sfil:
1782
CRIMES AGAINST PUBLIC JUSTICE.
[Chap. 210.
or assist him in a matter pertaining to the duty of such officer,
i f «
by a fine of not more than four hundred dollars.
1877, 200, § 24.
1898,' lis!' § 23' shall be punished by imprisonment for not more than one year or
1899J 178, § 7.
10 Cush. 61.
Acting as
justice of the
peace, etc.,
after expira-
tion of com-
mission.
1865, 231, § 2.
P. S. 205, § 24.
1899, 178, § 8.
Section 34. Whoever presumes to act as a justice of the peace,
special commissioner or notary public after the expiration of his
or her commission, and after receiving notice of such expiration,
shall be punished by a fine of not less than one hundred nor more
than five hundred dollars.
5
6
7
1
2
3
4
5
Disguising to
resist execu-
tion of the
law.
1809, 123, § 2.
R. S. 128, § 20.
G. S. 163, § 19.
P. S. 205, § 25.
Section 35. Whoever disguises himself with intent to obstruct 1
the due execution of the law, or to intimidate, hinder or interrupt 2
an officer or other person in the lawful performance of his duty, 3
or in the exercise of his rights under the constitution or laws of 4
this commonwealth, whether such intent is effected or not, shall be 5
punished by imprisonment for not more than one year or by a fine of 6
not more than five hundred dollars, and may also be bound to good 7
behavior for one year after the expiration of such imprisonment. 8
Unauthorized
use of seal of
Section 36.
1881, 9.
P. S. 205.
Whoever, without being duly authorized thereto,
city or town, or prints, stamps, engraves or affixes, or causes to be printed, stamped,
of badge of ^ » ^ ' » ' _j- i j. j.' i
• engraved or affixed to any paper or other article a representation ot
§ 26. the seal of a city or town in this commonwealth, with intent to
give to such paper or article an official character which it does not
possess, or, without being duly authorized thereto, and with intent
to assume an official character which he does not possess, casts,
stamps, engraves, makes or has in his possession a badge or thing
in the likeness of an official badge of a police officer, member of a
fire department, or other officer appointed by a city or town in this
commonwealth, or by any department of such city or town, shall
be punished by a fine of not more than fifty dollars.
Concealing and
compounding
felony.
R. S. 128, § 21.
G. S. 163, § 20.
P. S. 205, § 27.
16 Mass. 91.
4 Allen, 534.
12 Allen, 557.
Section 37. Whoever, having knoAvledge of the commission
of a felony, takes money, or a gratuity or reward, or an engage-
ment therefor, upon an agreement or understanding, express or
implied, to compound or conceal such felony, or not to prosecute
therefor, or not to give evidence thereof, shall, if such crime is
punishable with death or imprisonment in the state prison for life,
be punished by imprisonment in the state prison for not more than
five years or in jail for not more than one year ; and if such crime
is punishable in any other manner, by imprisonment in jail for not
more than two years or by a fine of not more than five hundred
dollars.
1
2
3
4
5
6
7
8
9
10
11
12
1
2
3
4
5
6
7
8
9
10
11
Officer taking
bribe for
neglecting
his duty.
R. S. 128, § 22.
G. S. 163, § 21.
P. S. 205, § 28.
Section 38. A sheriff, constable or other officer who, being 1
authorized to serve legal process, receives from a defendant or from 2
any other person any money or other valuable thing as a consid- 3
eration, reward or inducement for omitting or delaying to arrest 4
a defendant, or to carry him before a magistrate, or for delaying 5
to take a person to prison, or for postponing the sale of property 6
under an execution, or for omitting or delaying to perform any 7
duty appertaining to his office, shall be punished by a fine of not 8
more than three hundred dollars or by imprisonment for not more 9
than three months. 10
Chap. 211.] crimes against the public peace. 1783
1 Section 39. A recording officer who wilfully and corruptly Extortion of
2 demands and receives a greater fee for an official duty or service leg!!] 37?! 2.
3 than is allowed by law shall forfeit fifty dollars for each offence; R9|.m§§'i9;
4 and any other person who wilfully and corruptly demands and \^^{\2
5 receives for the performance of an official duty or service, for p. s\ 163, § 22.
P. S. 205 § 29.
6 which a fee or compensation is allowed and provided by law, a lkass.^
7 greater fee or compensation than is so allowed and provided shall 17 Mass.' «o.'
8 forfeit thirty dollars for each offence. Such penalties may be re- 7 pick. 279!
9 covered by complaint or indictment to the use of the county, or
10 by action of tort to the use of any person who sues therefor ; but
11 such prosecution or action shall be commenced within one year
12 after the offence has been committed.
CHAPTER 211.
OF CRIMES AGAINST THE PUBLIC PEACE.
1 Section 1. If twelve or more persons, being armed with clubs suppression
2 or other dangerous weapons, or if thirty or more persons, whether assembi^1
3 armed or not, are unlawfully, riotously or tumultuously assembled ire^'s^'i.1'
4 in a city or town, the mayor and each of the aldermen of such city, ^3|> ^ i\
5 each of the selectmen of such town, every justice of the peace liv- S-f-M'f/-
6 ing in any such city or town and the sheriff of the county and his lOMass.W
7 deputies shall go among the persons so assembled, or as near to
8 them as may be with safety, and in the name of the commonwealth
9 command all persons so assembled immediately and peaceably to
10 disperse ; and if they do not thereupon immediately and peace-
11 ably disperse, each of said magistrates and officers shall command
12 the assistance of all persons there present in suppressing such riot
13 or unlawful assembly and arresting such persons.
1 Section 2. Whoever, being present and being so commanded ^fgal'^fssis?"
2 to assist in arresting such rioters or persons so unlawfully assem- ?78Jf 4i8P|rse'
3 bled, or in suppressing such riot or unlawful assembly, refuses or 1835^ wo, § i.
4 neglects to obey such command, or, if required by such magistrate &'. s*. iei' § 2!
5 or officer to depart from the place, refuses or neglects so to do, p-s-206>§2-
6 shall be considered one of the rioters or persons unlawfully assem-
7 bled, and may be prosecuted and punished accordingly.
1 Section 3. A mayor, alderman, selectman, justice of the peace, Neglect of
2 sheriff or deputy sheriff who, having notice of any such riotous or officer torsuper
3 tumultuous and unlawful assembly in the city or town in which he i^Vm 2.
4 lives, neglects or refuses immediately to proceed to the place of q. |'. i64', i 3.
5 such assembly, or as near thereto as he can with safety, or omits or p-s. 206, §3.
6 neglects to exercise the authority conferred upon him by the pro-
7 visions of this chapter for suppressing such assembly and for arrest-
8 ing the offenders, shall be punished by a fine of not more than
9 three hundred dollars.
1 Section 4. If any persons who are so riotously or unlawfully officers may
2 assembled, and who have been commanded to disperse, as before assembly 'by u
3 provided, refuse or neglect to disperse without unnecessary delay, n5<£Vi£'§2.
1784:
CRIMES AGAINST THE PUBLIC PEACE.
[Chap. 211.
1786, 38, § 3.
1835, 140, § 3.
R. S. 129, § 4.
G. S. 164, § 4.
P. S. 206, § 4.
98 Mass. 444.
any two of the magistrates or officers before mentioned may require 4
the aid of a sufficient number of persons, in arms or otherwise as 5
may be necessary, and shall proceed, in such manner as in their 6
judgment is expedient, forthwith to disperse and suppress such 7
assembly, and seize and secure the persons composing the same, so 8
that they may be proceeded with according to law. 9
Armed force, if Section 5. When an armed force, called out in the manner
called, out, to
obey orders of provided by chapter sixteen to suppress a tumult or riot, or to
fudge, etc. disperse a body of men acting together by force and with intent to
g'. I". 164, § 5. commit a felony, or to offer violence to persons or property, or with
p. s. 206, § 5. intent by force or violence to resist or oppose the execution of the
laws of this commonwealth, arrives at the place of such unlawful,
riotous or tumultuous assembly, its members shall obey such orders
for suppressing the riot or tumult, and for dispersing and arresting
all persons who are committing any of said offences, as they have
received from the governor, or a judge of a court of record, or the
sheriff of the county, and also such orders as they there receive
from any two of the magistrates or officers before mentioned.
Officers, etc.,
guiltless, if
death ensues.
1750-1, 17, § 1.
1786, 38, § 1.
1835, 140, § 3.
R. S. 129, §6.
1839, 54, § 1.
G. S. 164, § 6.
P. S. 206, § 6.
7 Allen, 541.
Section 6. If, by reason of the efforts 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 composing the
same who have refused to disperse, though the number remaining
may be less than twelve, any such person or any other person then
present is killed or wounded, the magistrates and officers, and all
persons acting by their order or under their directions, and all per-
sons acting under the provisions of the two preceding sections,
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 direc-
tion of any of the officers before mentioned, is killed or wounded,
all persons so assembled, and all other persons who, when com-
manded or required, refused to aid and assist said magistrates or
officers, shall be held answerable therefor.
1
2
3
4
5
6
7
8
9
10
11
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Riotously de-
stroying dwell-
ing house, etc.
1750-1, 17, § 3.
1786, 38, § 3.
R. S. 129, § 7.
G. S. 164, § 7.
P. S. 206, § 7.
Section 7. If any of the persons so unlawfully assembled de- 1
molishes, pulls down or destroys, or begins to demolish, pull down 2
or destroy, a dwelling house or other building, or a ship or vessel, 3
he shall be punished by imprisonment in the state prison for not 4
more than five years or by a fine of not more than one thousand 5
dollars and imprisonment in jail for not more than two years, and 6
shall also be liable in an action of tort to any person injured. 7
fewnSc-ffor Section 8. If property of the value of fifty dollars or more 1
destroyed. ' is destroyed or if property is injured to that amount by twelve or 2
G3s'i64§!«2839 more Persons who are riotously or tumultuously assembled, the 3
p.' s.' 206,' §§»,' 9! city or town within which the property was situated shall, if the 4
owner of such property uses all reasonable diligence to prevent its 5
destruction or injury, and to procure the conviction of the offend- 6
ers, be liable to indemnify the owner thereof in an action of tort 7
to the amount of three-fourths of the value of the property de- 8
stroyed or of the amount of such injury thereto, and may recover 9
the same against any or all of the persons who destroyed or in- 10
jured such property. 11
Chap. 212.] crimes against chastity, etc. 1785
1 Section 9. Whoever, when arrested upon a warrant for an al- ^nJihot etc
2 leged crime and whoever, when arrested while committing- a crime ^5<H?4' §1-
° ■, -I. /.l IT • 1-1 ^°2> 2^6> § 1-
3 or a breach or disturbance of the public peace, is armed with or 1859,199.
4 has on his person any slung-shot, metallic knuckles, billy or other p.' s." 20c.' § 10.'
5 dangerous weapon, shall be punished by a fine of not more than 103 Massf^.
6 fifty dollars or by imprisonment for not more than one year.
1 Section 10. Whoever manufactures or causes to be manufact- f£an£tf!lct^r-
2 ured, or sells or exposes for sale, an instrument or weapon of the shot, etc.
. 1850 194 5 2
3 kind usually known as slung-shot, or metallic knuckles, shall be g. s\ 164, § 11.
4 punished by a fine of not less than fifty nor more than two hundred ' ' 206' § 1L
5 dollars, or by imprisonment for not more than six months.
1 Section 11. Whoever is concerned in causing or making a Bonfires.
2 bonfire within ten rods of a house or building shall be punished by 1756-?! u, § 3'.
3 a fine of not more than twenty dollars, or by imprisonment for not Isl?; itV^/i!
4 more than one month. g. s. 164, §12. p. s.206, §12.
1 Section 12. Whoever, without reasonable cause, by outcry or False alarm of
2 the ringing of bells, or otherwise, makes or circulates or causes to 18*37, 177. § 2.
3 be made or circulated a false alarm of fire shall be punished by a £; f ; 20I; | \t
4 fine of not more than one hundred dollars or by imprisonment for 1897> 385-
5 not more than six months.
CHAPTEE 212.
OF CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER.
1 Section 1. Whoever fraudulently and deceitfully entices or Abduction of
2 takes away an unmarried female under the age of sixteen years from femS^under
3 her father's house or wherever else she may be found, without the pu^os/of the
4 consent of the parent, guardian or master, if any, under whose care Jg^sf ?"
5 and custody she is living, for the purpose of effecting a clandestine p* f ■ 207' 1 1'
6 marriage of such female without such consent, shall be punished by 152 Mass. 1.
7 imprisonment for not more than one year or by a fine of not more
8 than one thousand dollars, or by both such fine and imprisonment.
1 Section 2. Whoever fraudulently and deceitfully entices or -of unmar-
2 takes away an unmarried woman of a chaste life from her father's etc., for the '
3 house or wherever else she may be found, for the purpose of prosti- p'roTutu^n.
4 tution or for the purpose of unlawful sexual intercourse at a house g4!'.2^^1^
5 of ill fame or assignation or elsewhere, and whoever aids and assists ^'m'si'
6 in such abduction for such purpose, shall be punished by imprison- j898^-/ 1-
7 ment in the state prison for not more than three years or in jail for 131 Mass. 224.
8 not more than one year or by a fine of not more than one thousand
9 dollars, or by both such fine and imprisonment in jail.
1 Section 3. Whoever applies, administers to or causes to be Administering
2 taken by a woman or girl any drug, matter or thing with intent lssefkg, § 2.
3 to stupefy or overpower her so as thereby to enable any person to
4 have unlawful sexual intercourse with her shall be punished by im-
5 prisonment in the state prison, jail or house of correction for not
1786
CRIMES AGAINST CHASTITY, ETC.
[Chap. 212.
more than three years or by a fine of not more than one thousand 6
dollars, or by both such fine and imprisonment in jail or the house 7
of correction. 8
uSawflnnter. Section 4. Whoever induces any person under the age of 1
course.^ eighteen years of chaste life to have unlawful sexual intercourse 2
1898', 444', § i. shall be punished as provided in the preceding section. 3
camai knowi- Section 5. Whoever has unlawful sexual intercourse with a 1
1886, 329, §4.* female idiot or imbecile under circumstances which do not consti- 2
tute rape shall, if he had reasonable cause to believe that she was 3
an idiot or imbecile, be punished as provided in section three. 4
Penalty on
owner of
premises, etc.
1886, 329, § 5.
Section 6. Whoever, being the owner of a place or having or 1
assisting in the management or control thereof, induces or know- 2
ingly suffers a female under the age of twenty-one years to resort 3
to or be in or upon such place, for the purpose of unlawfully having 4
sexual intercourse, shall be punished as provided in section three. 5
Evidence and
limitation.
1886, 329, §§ 6, 7.
Section 7. A person shall not be convicted under any of the 1
five preceding sections upon the evidence of one witness only, 2
unless his testimony is corroborated in a material particular, and 3
prosecution for a violation of any of said sections shall not be 4
commenced more than one year after the commission of the crime. 5
Sending a
female to
house of ill
fame.
1888, 311, § 1.
Section 8. Whoever knowingly sends, or aids or abets in send- 1
ing, a woman or girl to enter as an inmate or a servant, a house of 2
ill fame or other place resorted to for the purpose of prostitution shall 3
for each offence be punished by a fine of not less than one hundred 4
nor more than five hundred dollars, or by imprisonment for not less 5
than three months nor more than two years. Whoever as proprie- 6
tor or keeper of an intelligence or employment office, either per- 7
sonally or through an agent or employee, sends a woman or girl 8
to enter as aforesaid a house of ill fame or other place resorted to 9
for the purpose of prostitution, the character of which on reasonable 10
inquiry could have been ascertained by him, shall for each offence 11
be punished by a fine of not less than fifty nor more than two hun- 12
dred dollars. 13
Detaining a
female in
house of ill
fame.
1888, 311, § 2.
Section 9. Whoever, for any length of time, unlawfully de- 1
tains or attempts to detain, or aids or abets in unlawfully detaining 2
or attempting to detain, or administers or aids or abets in adminis- 3
tering any drug for the purpose of detaining, a woman or girl in a 4
house of ill fame or other place resorted to for the purpose of pros- 5
titution, shall for each offence be punished by imprisonment in the 6
state prison for not more than five years or in the house of correction 7
for not less than one year nor more than three. years or by a fine of 8
not less than one hundred nor more than five hundred dollars. 9
B.^glfi 9. Section 10. A married man who has sexual intercourse with
1694-5^5, §§ i,2. a woman not his wife, an unmarried man who has sexual in-
ns!"^2 §"i tercourse with a married woman and a married woman who has
!' s 165' \\ sexua^ intercourse with a man not her husband shall be guilty of
p. s.' 207,' § 3.' adultery and shall be punished by imprisonment in the state prison
1
2
3
4
5
Chap. 212.] crimes against chastity, etc. 1787
6 for not more than three years or in the jail for not more than two 21 Pick. 509.
7 years, or by a fine of not more than five hundred dollars. 5 Met 535!
97 Mass. 59. 147 Mass. 294. 157 Mass. 415. 163 Mass. 499. \ £U8£- ijjj1'
b cusn. 78.
1 Section 11. Whoever, having a former husband or wife living, Polygamy.
2 marries another person or continues to cohabit with a second hus- i698,i95,§§3"5'
3 band or wife in this commonwealth shall be guilty of polygamy, R.^i3b,§§§2,3.
4 and be punished by imprisonment in the state prison for not more r." i." 207* || t' il
5 than five years or in jail for not more than three years or by a fine ac'ush 553
6 of not more than five hundred dollars ; but the provisions of this 4Cush. 49.'
7 section shall not apply to a person whose husband or wife has con- 10 Alien, 196.
8 tinually remained beyond sea, or has voluntarily withdrawn from 12 Alien; 133.
9 the other and remained absent, for seven consecutive years, the 1^ Mais! 45s!
10 party marrying again not knowing the other to be living within that ^ Mais! IT.
11 time, nor to a person who has been legally divorced from the bonds ^Mass'li6'
12 of matrimony and who is not the guilty cause of such divorce, nor 163 Mass. 453.
13 to any person who has been legally divorced after the expiration
14 of two years from the time of the entry of the absolute decree of
15 divorce.
1 Section 12. A man and woman who, not being married to each habitation
2 other, lewdly and lasciviously associate and cohabit together, or a a?<i lewdness.
3 man or woman, married or unmarried, who is guilty of open and r. s\ 130, §4.
4 gross lewdness and lascivious behavior, shall be punished by im- p." s." 207' § 6.'
5 prison ment in the state prison for not more than three years or in ioCMass.4i53.
6 jail for not more than two years or by a fine of not more than three 127 Ma66, 459'
7 hundred dollars. 128 Mass. 52. 159 Mass. 61.
1 Section 13. Persons within the degrees of consanguinity within incest.
2 which marriages are prohibited or declared by law to be incest- r. s/130, § 13.
3 uous and void, who intermarry or have sexual intercourse with each p.' |; 207,'! 7.'
4 other, shall be punished by imprisonment in the state prison for not 10 Met- i51-
5 more than twenty years or in jail for not more than three years.
1 Section 14. Whoever commits fornication shall be punished by Fornication.
2 imprisonment for not more than three months or by a fine of not 1692-3, is, § 5. '
3 more than thirty dollars. r. s. 130, §5. g. s.i65, §s. p. s. 207, §8. rra5,66, §1.
1 Section 15. Whoever, with intent to procure the miscarriage unlawful at-
2 of a woman, unlawfully administers to her, or advises or prescribes ^procure'
3 for her, or causes any poison, drug, medicine or other noxious thing ilf™™age~
4 to be taken by her or, with the like intent, unlawfully uses any p' f ; 207' § 9.'
5 instrument or other means whatever, or, with like intent, aids or }] £ray> '55.
14 oriiv 419.
6 assists therein, shall, if she dies in consequence thereof, be pun- 15 Gray', w!
7 ished by imprisonment in the state prison for not less than five nor ios Mass. 4<>i.
8 more than twenty years ; and, if she does not die in consequence 343. <1SS- '
9 thereof, by imprisonment in the state prison for not more than seven J|| ^lass! 429!
10 years and by a fine of not more than two thousand dollars. 155 Mass. 274.
157 Mass. 519. 165 Mass. 13, 59.
1 Section 16. Whoever knowingly advertises, prints, publishes, Advertising,
2 distributes or circulates, or knowingly causes to be advertised, ete!! of means
3 printed, published, distributed or circulated, any pamphlet, printed Portion™3
4 paper, book, newspaper, notice, advertisement or reference, con- 1847.83-
1788
CRIMES AGAINST CHASTITY, ETC.
[Chap. 212.
p'f'207'fio' taining words or language giving or conveying any notice, hint or 5
reference to any person, or to the name of any person, real or ficti- 6
tious, from whom, or to any place, house, shop or office where, any 7
poison, drug, mixture, preparation, medicine or noxious thing, or 8
any instrument or means whatever, or any advice, direction, infor- 9
mation or knowledge, may be obtained for the purpose of causing or 10
procuring the miscarriage of a woman pregnant with child shall be 11
punished by imprisonment in the state prison or jail for not more 12
than three years or by a fine of not more than one thousand 13
dollars. 14
Concealment
by mother of
death of
bastard.
1696, 11.
1784, 42, § 2.
R. S. 130, § 6.
<J. S. 165, § 11.
P. S. 207, § 11.
Joinder of
murder and
concealment.
1784, 42, § 3.
R. S. 130, § 7.
G. S. 165, § 12.
P. S. 207, § 12.
Keeping house
of ill fame.
C. L. 208, § 2.
1720-1, 7, § 3.
1793, 59, § 8.
Section 17. A woman who conceals the death of issue of her
body, which if born alive would be a bastard, so that it cannot be
ascertained whether it was born alive or, if born alive, whether it
was murdered, shall be punished by a fine of not more than one
hundred dollars or by imprisonment for not more than one year.
Section 18. A woman indicted for the murder of her infant
bastard child may also be charged in the same indictment with the
crime described in the preceding section ; and if she is acquitted of
murder, she may be convicted of the concealment.
Section 19. Whoever keeps a house of ill fame which is resorted
to for the purpose of prostitution or lewdness shall be punished by
imprisonment for not more than two years.
R. S. 130, § 8.
P. S. 207, § 13.
11 Gray, 48.
132 Mass. 1.
1849, 84.
3 Pick. 26.
1 Allen, 7.
150 Mass. 314
1855, 405.
1 Met. 151.
12 Allen, 177.
165 Mass. 5S8
G. S. 165, § 13.
2 Gray, 356.
124 Mass. 26.
Sale of obscene
literature.
1711-12, 6, § 19.
R. S. 130, §§ 10,
12.
G. S. 165, §§ 15,
17.
1862, 168, §§ 1, 3.
1880, 97.
P. S. 207, §§ 15,
16.
1890, 70.
1894, 433.
1895, 162.
139 Mass. 382.
164 Mass. 162.
Section 20. Whoever imports, prints, publishes, sells or dis-
tributes a book, pamphlet, ballad, printed paper or other thing con-
taining obscene, indecent or impure language, or manifestly tending
to corrupt the morals of youth, or an obscene, indecent or impure
print, picture, figure or description, manifestly tending to corrupt
the morals of youth, or introduces into a family, school or place of
education, or bujrs, procures, receives or has in his possession any
such book, pamphlet, ballad, printed paper or other thing, either for
the purpose of sale, exhibition, loan or circulation or with intent
to introduce the same into a family, school or place of education
shall be punished by imprisonment for not more than two years and
by a fine of not less than one hundred nor more than one thousand
dollars, one-half of which shall be paid to the complainant.
— of criminal
literature.
1885, 305.
1
2
3
4
5
1
2
3
4
1
2
3
1
2
3
4
5
6
7
8
9
10
11
12
13
Section 21. Whoever sells, lends, gives away or has in his 1
possession with intent to sell, lend, give away or distribute or offers 2
to sell, lend, give away or distribute to a minor a book, pam- 3
phlet, magazine, newspaper or other printed paper which is devoted 4
to the publication or principally made up of criminal news, police 5
reports or accounts of criminal deeds, or pictures and stories of lust 6
or crime ; or exhibits upon the street or highway or in any other 7
place within the view or which may be within the view of a minor, 8
or employs a minor to sell, lend, give away or distribute or, having 9
the custody or control of a minor, permits him to sell, lend, give 10
away or distribute any such book, pamphlet, magazine, newspaper 11
or printed paper, shall be punished by imprisonment for not more 12
Chap. 212.] crimes against chastity, etc. 1789
13 than two years or by a fine of not less than one hundred nor more
14 than one thousand dollars.
1 Section 22. Whoever, as owner, manager, director, agent or immoral enter.
2 in any other capacity, uses or causes or permits to be used, in con- lsae^l^l'i.
3 nection with any show or entertainment, public or private, a pho-
4 nograph or other contrivance, instrument or device, which utters or
5 gives forth any profane, obscene or impure language, shall be pun-
6 ished by imprisonment for not more than one year or by a fine of
7 not more than five hundred dollars, or by both such fine and im-
8 prisonment.
1 Section 23. Whoever, as owner, manager, director, agent or in same subject.
2 any other capacity, prepares, advertises, gives, presents or partici- 1896>339'§2-
3 pates in any obscene, indecent, immoral or impure show or enter-
4 tainment, or in any show or entertainment manifestly tending to
5 corrupt the morals of youth, shall be punished as provided in the
6 preceding section.
1 Section 24. Whoever exhibits for hire a minor or insane per- Exhibition of
2 son who is deformed or a person who has an appearance of deform- lla^™.1*168'
3 ity produced by artificial means shall be punished by a fine of not
4 more than five hundred dollars.
1 Section 25. Whoever commits the abominable and detestable sodomy and
2 crime against nature, either with mankind or with a beast, shall be BU1fe9^'§§7,8.
3 punished by imprisonment in the state prison for not more than m^w4' §§ 7' 8*
4 twenty years . r. s. 130, § u. g. s. bs, § is. p. s. 207, § is. ™> \^f x-
1 Section 26. Whoever sells, lends, gives away, exhibits or other offences
2 offers to sell, lend or give away an instrument or other article in- dfcency.
3 tended to be used for self-abuse, or any drug, medicine, instrument p.7!'. 207, §17.
4 or article whatever for the prevention of conception or for causing
5 unlawful abortion, or advertises the same, or writes, prints or causes
6 to be written or printed a card, circular, book, pamphlet, adver-
7 tisement or notice of any kind stating when, where, how, of whom
8 or by what means such article can be purchased or obtained,
9 or manufactures or makes any such article, shall be punished by
10 imprisonment in the state prison for not more than five years or in
11 jail or the house of correction for not more than three years or by
12 a fine of not less than one hundred nor more than one thousand
13 dollars.
1 Section 27. Whoever commits any unnatural and lascivious unnatural and
2 act with another person shall be punished by a fine of not less than 1887, 436, § 1.
3 one hundred nor more than one thousand dollars or by imprison- 160Mass
4 ment in the state prison for not more than five years or in jail or
5 the house of correction for not more than three years.
1 Section 28. Whoever wilfully blasphemes the holy name of i^j^.
2 God by denying, cursing or contumeliously reproaching God, his ^•.2104' § 3-
3 creation, government or final judging of the world, or by cursing g8|'8j30
4 or contumeliously reproaching Jesus Christ or the Holy Ghost or g. s. m, § 19!
5 by cursing or contumeliously reproaching or exposing to con- 20 rick. 20c '
1790
CRIMES AGAINST CHASTITY, ETC.
[Chap. 212.
tempt and ridicule, the holy word of God contained in the holy 6
scriptures shall be punished by imprisonment in the state prison 7
for not more than two years or in jail for not more than one year 8
or by a fine of not more than three hundred dollars, and may also 9
be bound to good behavior. 10
Profane
cursing and
swearing.
O.L.145, §§1,2.
1692-3, 18, § 1.
1693, 9.
1733-4, 13.
1746-7, 17, §1.
1798, 33, §§ 1, 3.
Section 29. Whoever, having arrived at the age of discretion, 1
profanely curses or swears, shall be punished by a fine of not more 2
than five dollars nor less than one dollar ; but no prosecution shall 3
be commenced after twenty days from the commission of the 4
offence . r. s. 130, § 16. g. s. 165, § 20. p. s. 207, § 20. 5
Disturbing
religious
worship.
C. L. 250, § 2.
1791, 58, § 8.
R. S. 130, § 17.
G. S. 165, § 21.
Section 30. Whoever wilfully interrupts or disturbs an assem-
bly of people met for the worship of God shall be punished by
imprisonment for not more than thirty days or by a fine of not
more than fifty dollars. p. s. 207, §21. 2 Mass. 163.
1
2
3
4
Peddling,
gaming, etc.,
near camp-
meeting.
1838, 143.
G. S. 165, § 22.
1867, 59.
1878, 92.
1879, 56.
P. S. 207, § 22.
132 Mass. 542.
Section 31. Whoever, during the time of holding a camp or 1
field meeting for religious purposes, and within one mile of the 2
place thereof, hawks or peddles goods, wares or merchandise, or 3
establishes or maintains a tent, booth or building for vending pro- 4
visions or refreshments, or furnishes shelter and food for or has the 5
care of horses for pay, without permission from the authorities or 6
officers having the charge or direction of such meeting, or engages 7
in gaming or horse racing, or exhibits or offers to exhibit any show 8
or play, shall forfeit for each offence not more than twenty dollars : 9
provided, that the time of holding such meeting shall not exceed 10
thirty consecutive days in any one year ; and that a person having 11
a regular, usual and established place of business within such limits 12
need not suspend his business. 13
school ornpub°-f Section 32. Whoever wilfully interrupts or disturbs a school 1
i8491159ting' or °^ner assembly of people met for a lawful purpose shall be pun- 2
g. s. 165, § 23. ished by imprisonment for not more than thirty days, or by a fine 3
i Gray, 476. ' of not more than fifty dollars.
— of public
libraries.
1885, 225.
— of funeral.
1851, 193.
G. S. 165, § 24.
P. S. 207, § 24.
1 Gray, 480.
Disorderly
conduct in
public convey-
ances.
1883, 102.
Section 33. Whoever wilfully disturbs persons assembled in a 1
public library, or a reading room connected therewith, by making 2
a noise or in any other manner during the time when such library 3
or reading room is open to the public shall be punished by impris- 4
onment for not more than thirty days or by a fine of not more 5
than fifty dollars. 6
Section 34. Whoever wilfully interrupts or by fast driving or 1
otherwise in any way disturbs a funeral assembly or procession 2
shall be punished by imprisonment for not more than thirty days 3
or by a fine of not more than fifty dollars. 4
Section 35. Whoever, in or upon a railroad carriage, steamboat 1
or other public conveyance, is disorderly, or disturbs or annoys 2
travellers in or upon the same by profane, obscene or indecent Ian- 3
guage, or by indecent behavior, shall be punished by imprisonment 4
for not more than thirty days or by a fine of not more than fifty 5
dollars. 6
Chap. 212.] crimes against chastity, etc. 1791
1 Section 36. "Whoever is found in a state of intoxication in a Arrest for
2 public place, or is found in any place in a state of intoxication com- bss^i^TIs.'
3 mitting a breach of the peace or disturbing others by noise, may §69,' 415, §§ 42.
4 be arrested without a warrant by a sheriff, deputy sheriff, constable, p7| ^ ?25
5 watchman or police officer, and kept in custody in a suitable place J^V27'^1'
6 until he has recovered from his intoxication. 173 Mass. 52. ui Mass! 102!
1 Section 37. Whoever arrests a person for drunkenness shall Release from
. • 1 • 1 *• a t arrest for
2 make a complaint against him therefor. A person so arrested may drunkenness.
3 make a statement in writing, addressed to the court or trial justice 1893^ m.
4 having jurisdiction of his offence, giving his name and address, set- 125 Mass! 19s!
5 ting forth what persons, if any, are dependent upon him for sup- 157 Mass! 11;
6 port, his place of employment, if any, and whether he has been
7 previously arrested for drunkenness within the preceding twelve
8 months and requesting to be released from custody and may deliver
9 it to the officer in charge of the place in which he is confined who
10 shall indorse thereon the name of the arresting officer, and, if the
11 arrest was made within the jurisdiction of a court having a proba-
12 tion officer, shall transmit it to him. Said probation officer shall
13 forthwith inquire into the truth thereof, and investigate the record
14 of said person as to previous similar offences, and shall indorse
15 thereon and sign the result of his investigation, for the use of the
16 court having jurisdiction of the case, which may thereupon direct
17 that such person be released from arrest without arraignment. If
18 the arrest is made within the jurisdiction of a trial justice the offi-
19 cer in charge of the place of custody shall send the prisoner to the
20 trial justice and at the same time transmit the statement to him,
21 for his use in the trial and disposition of the case. The officer in
22 charge of the place of custody in which the person arrested is con-
23 fined shall inform him of his right to make such statement and re-
24 quest for release. An officer making an arrest under the authority
25 of the preceding section shall not be liable for illegal arrest or
26 imprisonment if the person arrested is released at his request, as
27 herein provided.
1 Section 38. A full record shall be kept by every court or trial ^"released!"
2 justice of each case in which a person is released, as aforesaid, with 1891,427, §4.
3 the statement made by him. If a person is so released by any
4 municipal court in Boston, or within their jurisdiction, a certified
5 copy of said statement and the name of the officer making the arrest
6 shall be sent by such court to the clerk of the municipal court of
7 the city of Boston for criminal business.
1 Section 39. If a male is convicted of drunkenness by the vol- ^fnkenneW0'
2 untary use of intoxicating liquor, he may be punished by imprison- Jj&g^j^gg.
3 ment in jail or in any place provided by law for common drunkards l^fj-^
4 for not more than one vear ; or by imprisonment in the Massachu- r. s. iso, § is.
_ . . „ , J . -, n . J f. . , a 1 j. I860, 166.
5 setts reformatory, as provided in section twenty-nme 01 chapter g. s. 165, § 25.
6 two hundred and twenty. If a female is so convicted, she may be ilf^ 30!;
7 punished by imprisonment in jail or in any place provided by law liolIi^Vi'.a;
8 for common drunkards for not more than one year or in the reform- ^^
9 atory prison for women for not more than two years. If the per- p-^-w, §§26-
10 son so convicted shall satisfy the court or trial justice, by his own 1885,365, §2;
11 statement or otherwise, that he has not been arrested for drunk- 1886,323, §1.
1792
CRIMES AGAINST CHASTITY, ETC.
[Chap. 212.
1888, 377.
1891, 427, § 5.
189-2, 303.
1893, 447.
116 Mass. 340.
157 Mass. 471.
enness twice before within the preceding twelve months, or that, 12
having been so arrested, he has been tried and acquitted in one of the 13
cases, his case may be placed on file, or he may be punished by a fine 14
of not more than fifteen dollars, and upon non-payment thereof he 15
shall be committed to the jail, or house of correction, or to the work- 16
house, if there is any which has a criminal department in the city 17
or town in which the offence was committed, until the fine is paid, 18
but not more than thirty days. If a male is convicted of drunk- 19
enness three times within twelve months he may be sentenced to 20
the Massachusetts reformatory. 21
bation officers Section 40. Probation officers shall assist the courts appointing 1
i89i, 427, §§ 6, 7. them, by obtaining and furnishing information relative to previous 2
arrests, convictions and imprisonments for drunkenness, and such 3
other facts as the court orders relative to persons accused of drunk- 4
enness. They shall keep a full record, well indexed, of each such 5
case which they investigate, in such form as the court orders. Pro- 6
bation officers of the municipal courts in Boston shall furnish a 7
copy of the record in each such case to the municipal court of 8
the city of Boston, which shall cause all records and statements 9
received by it to be so consolidated and kept that they may be 10
readily consulted, and for such purpose may employ the neces- 11
sary clerical assistance. The compensation for such service, which 12
shall be fixed by the court, and such other necessary expenses as 13
the court shall incur in complying with the provisions of this sec- 14
tion shall be paid by the county of Suffolk, upon vouchers approved 15
by the court. 16
toefnspectu>nn Section 41. Records and statements made under the provisions 1
i89i, 427, §7. of the four preceding sections shall be at all times open to the 2
police officials of the cities and towns of this commonwealth. The 3
board of police of Boston, city marshals and chiefs of police of 4
other cities and towns, keepers of jails and masters of houses of 5
correction shall furnish to each other and to probation officers, and 6
probation officers shall on application furnish to each other, all in- 7
formation in their possession relative to persons whose cases are 8
under investigation. 9
Opium resorts.
1885, 73.
Search of sus-
pected opium
resorts.
1895, 194, §§ 1, 2.
173 Mass. 477.
Section 42. Whoever opens or maintains a place to be resorted 1
to by other persons, in which opium or any of its preparations is 2
sold or given away to be smoked at such place, whoever at such. 3
place sells or gives away opium or any of its preparations to be 4
there smoked or otherwise used and whoever visits or resorts to 5
any such place for the purpose of smoking opium or any of its 6
preparations shall be punished by a fine of not more than five hun- 7
dred dollars or by imprisonment for not more than six months, or 8
by both such fine and imprisonment. 9
Section 43. If a person makes oath before a police, district or 1
municipal court or trial justice that he believes or has probable 2
cause to believe that any place, house, building or tenement within 3
the jurisdiction of such court or justice is used or resorted to for 4
the purpose of smoking opium or any of its preparations, or for the 5
purpose of selling or giving away opium or any of its preparations 6
Chap. 212.] crimes against chastity, etc. 1793
7 to be smoked at such place, house, building or tenement, and that
8 persons resort thereto for such purposes, such court or trial justice,
9 whether the names of the persons last mentioned are known or
10 unknown to the complainant, shall, if satisfied that there is probable
1 1 cause therefor, issue a warrant commanding the sheriff or his deputy
12 or any constable or police officer to enter such place, house, build-
13 ing or tenement and there to arrest the keepers thereof, and all
14 persons there present, whether smoking or not, if the imple-
15 ments for smoking opium or any of its preparations are there
16 found, and seize all the opium or preparations thereof and all the
17 implements for smoking the same and all the furniture, fixtures and
18 other personal property there found, and to keep said persons,
19 opium, preparations thereof, implements, furniture, fixtures and
20 property so that they may be produced before a court or magis-
21 trate, to be dealt with according to law. Whoever is found so
22 present or so smoking shall be punished by a fine of not more than
23 one hundred dollars for each offence. The provisions of sections
24 three to eight, inclusive, of chapter two hundred and seventeen rela-
25 tive to articles seized under clause eleven of section one of said
26 chapter shall apply to all opium, preparations thereof, implements,
27 furniture, fixtures and property so seized.
1 Section 44. An officer who makes a search under the provi- othe^crimes
2 sions of the preceding section shall not be permitted to use any ?8°9tgti94e}1oed-
3 evidence of any crime, except that of opium smoking, which he
4 may discover, in making further prosecutions against the persons
5 whose premises are searched.
1 Section 45 . Whoever unreasonably neglects to provide for the Non-suppqrt of
2 support of his wife or minor child shall be punished by a fine of not Tm, ssto^h?'
3 more than twenty dollars or by imprisonment for not more than J-H; ire!
4 six months. All fines imposed under the provisions of this section J^Vals 435
5 may, in the discretion of the court, be paid in whole or in part to }-£ ™ass- £p-
6 the city, town, corporation, society or person actually supporting 165 Mass.' m.
7 such wife or minor child at the time of making the complaint.
8 Proof of neglect to provide for the support of a wife or minor
9 child as aforesaid shall be prima facie evidence that such neglect is
10 unreasonable.
1 Section 46. Rogues and vagabonds, persons who use any Rogues, vaga-
2 juggling or unlawful games or plays, common pipers and fiddlers, c?L.sira,°§i.
3 stubborn children, runaways, common drunkards, common night 1769^70° %?' § 2"
4 walkers both male and female, pilferers, lewd, wanton and lascivi- ilslj ifi,§§22.
5 ous persons in speech or behavior, common railers and brawlers, Sg^'orf' § 5"
6 persons who neglect their calling or employment, misspend what isee! ise.
7 they earn and do not provide for themselves or for the support of 1866/235.'
8 their families, and all other idle and disorder!)- persons, including istbJus!
9 therein those persons who neglect all lawful business and habitually ^j \u\ I57.
10 misspend their time by frequenting houses of ill fame, gaming ^gf'fss'fi,9'
11 houses or tippling shops, may be punished by imprisonment in the Jf|^f§{j'jJ;
12 Massachusetts reformatory or at the state farm or for not more i89|j!^'§i!
13 than six months in the house of correction or workhouse in the ncush.477.
14 city or town in which the offender is convicted, or in the work- iAiien%.
15 house, if any, in the city or town in which the offender has a legal | Aiieiil 511*.
1794
CRIMES AGAINST CHASTITY, ETC.
[Chap. 212.
13 Allen, 550.
99 Mass. 497.
112 Mass. 285.
141 Mass. 78.
170 Mass. 192.
settlement, if such town is in the county. A female offender 16
under the provisions of this section may in the discretion of the 17
court be punished by imprisonment in the reformatory prison for 18
women for not more than two years. 19
Disorderly
person
arrested in
night time.
1834, 151, § 5.
R. S. 143, § 7.
G. S. 165, § 33.
P. S. 207, § 34.
Section 47. Whoever is found in a street, highway or other 1
public place in the night time, committing any offence or disorder 2
mentioned in the preceding section, may be apprehended by a 3
sheriff, deputy sheriff, constable, police officer or watchman, or by • 4
any other person by the order of a magistrate or any of said officers, 5
without a warrant and be kept in custody for not more than twenty- 6
four hours, Sunday or a legal holiday excepted ; and at or before the 7
expiration of such time he shall be taken before a police, district or 8
municipal court or trial justice and proceeded against, as provided 9
in the preceding section, or discharged, as such court or justice 10
shall determine. - 11
Conditional
sentence.
1834, 151, § 3.
R. S. 143, § 6.
1837, 157.
1851, 346.
G. S. 165, § 29.
P. S. 207, § 30.
Section 48. A person who is convicted by a police, district or 1
municipal court or trial justice of an offence mentioned in section 2
forty-six may, instead of the punishment therein mentioned, be 3
punished by a fine of not more than twenty dollars, either with or 4
without a condition that, if it is not paid within a time specified, 5
such person shall be punished as provided in said section ; and 6
such conditional sentence shall be carried into execution according 7
to the provisions of section nine of chapter two hundred and 8
twenty. • 9
Section 49. The master, keeper, director or overseer of a work-
Master of
workhouse,
eteCr' *n reomVe nouse *° which a person has been committed under the provisions
mitted.
1699-1700, 8, § 3.
1787, 54, § 3.
1834, 151, § 3.
R. S. 87, §41;
143, § 6.
G. S. 165, § 30.
P. S. 207, § 31.
of the three preceding sections shall receive all persons so com-
mitted, set them to work if they are able and employ and govern
them in the manner provided by law and by the rules and orders
established for that purpose ; and the city or town in which such
house is situated may recover the balance of the expense of the
support of any such person over and above the amount of his labor
from the person thus committed, or from any kindred or city or
town which is liable by law for his support, if he is a pauper, in like
manner as if he had been committed to the house of correction for
the same offence.
1
2
3
4
5
6
7
8
9
10
11
12
Repetition of
offence a
breach of
recognizance.
1834, 151, § 3.
R. S. 143, § 8.
G. S. 165, § 31.
P. S. 207, § 32.
Discharge of
defendant on
recognizance.
R. S. 143, § 9.
G. S. 165, § 32.
1866, 235, § 5.
P. S. 207, § 33.
Section 50. If a person who has been convicted under the pro- 1
visions of section forty-six appeals from the sentence, the commis- 2
sion of any like offence by him before judgment on the appeal 3
shall be a breach of the condition of the recognizance, if any was 4
taken upon allowing the appeal. 5
Section 51. When a person is brought before a magistrate 1
upon a charge of any offence mentioned in sections forty-six, fifty- 2
nine and sixty-one, such magistrate, or the court before which the 3
case may be carried by appeal, may at any stage of the proceed- 4
ings direct the defendant or appellant to be discharged, upon his 5
entering into a recognizance with sufficient sureties, in such sum as 6
the magistrate or court orders, for his good behavior for not less 7
than six months nor more than two years, and paying the expenses 8
Chap. 212.] crimes against chastity, etc. 1795
9 of prosecution or such part thereof as the magistrate or court
10 orders.
1 Section 52. A parent or other person who employs a minor Begging.by
2 under the age of fifteen years in begging or who, having the care iIst, 422."
3 or custody of such minor, permits him to engage in such employ-
4 ment shall be punished by a fine of not more than two hundred
5 dollars or by imprisonment for not more than six months.
1 Section 53. Whoever remains in a street or elsewhere in a city Arrest without
2 or town in wilful violation of an ordinance or by-law and whoever ^lo^t^i/of
3 in a street or other public place accosts or addresses another per- ^re^isi?68'
4 son with profane or obscene language in wilful violation of an ordi- p- s- 207> § 35-
5 nance or by-law may be arrested by any officer authorized to serve
6 criminal process in the place where the offence is committed and
7 kept in custody until he can be taken before a court which has juris-
8 diction of such offence ; and if his name is unknown to the officer
9 who makes the arrest, he may be arrested without a warrant.
1 Section 54. If a person who has been discharged under the conviction
2 provisions of section one hundred and nineteen of chapter two onfqrafw^86
•3 hundred and twenty-five is afterward convicted of any offence men- i8™i5i°§'8.
4 tioned in section fortj^-six, which was committed after the former J?- 1- J*j*> | *|-
5 conviction, either in the same or a different county, he may be p. s. 207,' §36.
C sentenced to hard labor in the house of correction or workhouse
7 for not more than one year.
1 Section 55. If it is alleged in a complaint charging a person Night walking,
2 with being a common night walker, and is proved at the trial that tiond convlc"
3 such person has been twice before convicted of the same offence, ofs'.6^! §35.
4 such person may, upon conviction, be sentenced to the house of p-S-20^>§37.
5 correction, or to the workhouse, if any, in the city or town, for
6 not more than five years.
1 Section 56. Whoever, not being a minor under seventeen Tramps.
2 years of age, a blind person or a person asking charity within his ™f.' 257' §§ 2'
3 own city or town, roves about from place to place begging, or ^'^'. § 38"
4 living without labor or visible means of support, shall be deemed a
5. tramp. An act of begging or soliciting alms, whether of money,
6 food, lodging or clothing, by a person having no residence in the
7 town within which the act is committed, or the riding upon a freight
8 train of a railroad, whether within or without any car or part
9 thereof, without a permit from the proper officers or employees of
10 such railroad or train, shall be prima facie evidence that such per-
il son is a tramp.
1 Section 57. A tramp shall be punished by imprisonment in the Punishment of
2 house of correction for not less than six months nor more than two ig'so, 257, §§ 1, 4.
3 years, or by imprisonment at the state farm; and if he enters a f0' .s- m> §§ 39>
4 dwelling house or other building without the consent of the owner
5 or occupant thereof, or wilfully or maliciously injures or threatens
■6 to injure any person therein, or threatens to do any injury to any
7 person, or to the property of another, or is found carrying a firearm
S or other dangerous weapon, he shall be punished by imprisonment
1796
CRIMES AGAINST CHASTITY, ETC.
[Chap. 212.
in the house of correction for not less than one year nor more 9
than five years, or at the state farm. 10
tra^pt0* Section 58. A sheriff, deputy sheriff, constable or police officer, 1
p8s' lot' Ǥ4i 6* uPon yiew or information of an offence described in the two pre- 2
ceding sections, may, without a warrant, arrest the offender, and 3
make complaint against him therefor ; and the district police shall 4
make such arrests and complaints. Mayors of cities and selectmen 5
of towns shall appoint special police officers who shall also make 6
such arrests and complaints in their respective cities and towns. 7
Sef,^8 §§ i, 3. Section 59. Idle persons who, not having visible means of
^■g|'|5°87'.§42. support, live without lawful employment; persons wandering
1885^ 36,^§ i. abroad and visiting tippling shops or houses of ill fame, or lodging
in groceries, outhouses, market places, sheds, barns or in the open
1886, 323, § 1
1898, 443, § 1.
13 Allen, 550.
147 Mass. 399.
[lOp. A. G.
459.]
air, and not giving a good account of themselves ; persons wan-
dering abroad and begging, or who go about from door to door, or
place themselves in the streets, highways, passages or other public
places to beg or receive alms, and who do not come within the
description of tramps as contained in section fifty-six, shall be
deemed vagrants, and may be sentenced to the Massachusetts re-
formatory or state farm or shall be punished by imprisonment for 11*
not more than six months in the house of correction or workhouse. 12
1
2
3
4
5
6
7
8
9
10
— arrest of.
1866, 235, § 2.
P. S. 207, § 43.
Section 60. Sheriffs, deputy sheriffs, constables and police 1
officers, acting on the request of any person or upon their own 2
information or belief, shall without a warrant, arrest and carry 3
any such vagrant before a police, district or municipal court or 4
trial justice for the purpose of an examination, and shall make 5
complaint against him. 6
i86f,a2b35n§4. Section 61. A person who is known to be a pickpocket, thief 1
p. s'. 207, § 44. or burglar and having no visible or lawful means of support, if 2
found prowling around any steamboat landing, railroad depot, bank- 3
ing institution, broker's office, place of public amusement, auction 4
room, store, shop, crowded thoroughfare, car or omnibus, or at 5
any public gathering or assembly, shall be deemed a vagabond, 6
and shall be punished by imprisonment in the house of correction 7
for not less than four nor more than twelve months. 8
— arrest of.
1866, 235, § 4.
P. S. 207, § 45.
Section 62. Sheriffs, deputy sheriffs, constables and police offi- 1
cers shall take any such vagabond into custody without a warrant 2
and shall, within twenty-four hours after such arrest, Sundays and 3
legal holidays excepted, take him before a police, district or munic- 4
ipal court or trial justice, and shall make complaint against him. 5
deadCbTde^tof Section 63. A sheriff, deputy sheriff or constable who takes
R?s'.i4%S82i. ^he D°dy °f a deceased person on mesne process or execution shall
.165, §36. be punished by a fine of not more than five hundred dollars or by
imprisonment for not more than six months.
P. S. 207, § 46.
Section 64. Whoever, not being authorized by the board of
,..,,, health, overseers of the poor, directors of a workhouse, or mayor
and aldermen or selectmen of a city or town, or by the institutions
Violation of
sepulture.
1814, 175.
R. S. 130; § 19.
1
2
3
4
1
2
3
Chap. 212.] crimes against chastity, etc. 1797
4 commissioner or overseers of the poor of the city of Boston, wil- §V9'i665' §37*
5 fully digs up, disinters, removes or conveys away a human body, p. s. 207, § 47.
6 or the remains thereof, or knowingly aids in such disinterment, re- 10 pick. 37.'
7 moval or conveying away, and whoever is accessory thereto either
8 before or after the fact, shall be punished by imprisonment in the
9 state prison or jail for not more than three years or by a fine of
10 not more than two thousand dollars.
1 Section 65. Whoever buys or sells, or has in his possession Buying or
2 for the purpose of buying, selling or trafficking in, the dead body body.gdead
3 of a human being shall be punished by a fine of not less than fifty oft. ill f Is.3'
4 nor more than five hundred dollars or by imprisonment for not less p- s- 207> § 48-
5 than three months nor more than three years.
1 Section 66. Whoever wilfully destroys, mutilates, defaces, injuring or
2 injures or removes a tomb, monument, gravestone or other struct- tombs,nftc.
3 ure or thing which is placed or designed for a memorial of the r^^Io.II'o.
4 dead, or a fence, railing, curb or other thing which is intended for ^'-f^65' § 39-
5 the protection or ornament of a tomb, monument, gravestone orf'^S^
6 other structure before mentioned or of an enclosure for the burial
7 of the dead, or wilfully destroys, mutilates, removes, cuts, breaks
8 or injures a tree, shrub or plant placed or being within such en-
9 closure, or wantonly or maliciously disturbs the contents of a tomb
10 or a grave, shall be punished by a fine of not more than one thou-
11 sand dollars or by imprisonment in the jail or house of correction
12 for not more than three years.
1 Section 67. Whoever wrongfully, and by any act not included ^ilT-round*
2 in the provisions of the preceding section, destroys, injures or re- {fii'i^'lfi'
3 moves a building, fence, railing or other thing lawfully erected in g. s. 2s,'§i2.
4 or around a place of burial or cemetery, or a tree, shrub or plant 2 Alien, 512. "
5 within its limits, or wrongfully injures a walk or path, or places idoMa8s?9i8i.
6 rubbish or offensive matter or commits a nuisance therein, or in any
7 way desecrates or disfigures the same, shall forfeit for every such
8 offence not less than five nor more than one hundred dollars. Upon
9 the trial of a prosecution for the recovery of such penalty, use and
10 occupation for the purposes of burial shall be sufficient evidence
11 of title.
1 Section 68. Whoever, without authority, removes flowers, Removal of
2 flags or memorial tokens from any grave, tomb, monument or from grave!'
3 burial lot in any cemetery or other place of burial shall be punished 1888' 395-*
4 by a fine of not more than one hundred dollars for each offence.
1 Section 69. Whoever lays out, opens, or makes a highway or Making road,
2 town way, or constructs a railroad or canal, or any other thing in buriai^ound.
3 the nature of a public easement, over, through, in or upon any part kI'.^Vki,
4 of an enclosure, which is the property of a city, town, parish, reli- G.'s^ie^Ho.
5 gious society or of private proprietors -and is used or appropriated p. s. 207, §51.
6 for the burial of the dead, unless authority for that purpose is
7 specially granted by law, or unless the consent of such city, town,
8 parish, religious society or proprietors, respectively, is first ob-
9 tained, shall be punished by a fine of not more than Wo thousand
10 dollars or by imprisonment for not more than one year.
1798
CRIMES AGAINST CHASTITY, ETC.
[Chap. 212.
Cruelty to
animals.
R. S. 130, § 22.
1859, 96.
G. S. 165, § 41.
1868, 212, §§ 1-4.
1869, 344, §§1,2.
P. S. 207, §§ 52,
53.
7 Allen, 579.
101 Mass. 34.
Ill Mass. 408.
113 Mass. 457.
118 Mass. 458.
137 Mass. 560.
145 Mass. 296.
150 Mass. 509.
162 Mass. 517.
164 Mass. 576.
172 Mass. 214.
Corporations
liable.
1868, 212, § 7.
1869, 344, § 6.
P. S. 207, § 54.
Section 70. Whoever overdrives, overloads, drives when over- 1
loaded, overworks, tortures, torments, deprives of necessary suste- 2
nance, cruelly beats, mutilates or kills an animal, or causes or 3
procures an animal to be so overdriven, overloaded, driven when 4
overloaded, overworked, tortured, tormented, deprived of neces- 5
sary sustenance, cruelly beaten, mutilated or killed, and whoever, 6
having the charge or custody of an animal, either as owner or 7
otherwise, inflicts unnecessary cruelty upon it, or unnecessarily 8
fails to provide it with proper food, drink, shelter or protection 9
from the weather, and whoever as owner, possessor or person hav- 10
ing the charge or custody of an animal, cruelly drives or works it 11
when unfit for labor, or cruelly abandons it, or carries it or causes it 12
to be carried in or upon a vehicle, or otherwise, in an unnecessarily 13
cruel or inhuman manner, or knowingly and wilfully authorizes 14
or permits it to be subjected to unnecessary torture, suffering or 15
cruelty of any kind, shall be punished by imprisonment for not 16
more than one year or by a fine of not more than two hundred and 17
fifty dollars, or by both such fine and imprisonment. 18
Section 71. A corporation which violates any provision of the 1
preceding section shall be punished by a fine as therein provided, 2
and shall be responsible for the knowledge and acts of its agents 3
and servants relative to animals transported, owned or used by it 4
or in its custody. 5
Mutilation of Section 72. Whoever cuts the bone of the tail of a horse for
horses.
1889,267. the purpose of docking the tail, or whoever causes or knowingly
' permits the same to be done upon the premises of which he is the
owner, lessee, proprietor or user, or whoever assists in or is present
at such cutting, shall be punished by imprisonment for not more
than one year or by a fine of not less than one hundred nor more
than three hundred dollars. If a horse is so found with its tail
so cut and with the wound resulting from such cutting unhealed,
upon the premises of any person or in the charge and custody of
any person, such fact shall be prima facie evidence of a violation
of the provisions of this section by the owner or user of such prem- 11
ises or the person having such charge or custody, respectively. 12
1
2
3
4
5
6
7
8
9
10
Rest for
animals
transported.
1868, 212, § 5.
1869, 344, § 3.
1874, 372, § 142.
P. S. 207, § 55.
170 Mass. 44.
Section 73. Railroad corporations shall not permit animals 1
which they are carrying or transporting to be confined in cars 2
longer than twenty-eight consecutive hours without unloading them 3
for at least five consecutive hours for rest, water and feeding, unless 4
prevented by storm or accident. In estimating such confinement, 5
the time during which the animals have been confined without such 6
rest on connecting roads from which they are received shall be in- 7
eluded. Animals so unloaded shall during such rest be properly 8
fed, watered and sheltered by the owner or person having the cus- 9
tody of them, or, in case of his default, by the railroad corporation 10
transporting them, at the expense of said owner or person in cus- 11
tody thereof. In such case the corporation shall have a lien upon 12
such animals for food, care and custody furnished, and shall not be 13
liable for such detention. A corporation, owner or custodian of 14
such animals who fails to comply with the provisions of this sec- 15
tion shall be punished by a fine of not less than one hundred nor 16
Chap. 212.] crimes against chastity, etc. 1799
17 more than five hundred dollars. The provisions of this section shall
18 not apply to animals carried in cars in which they can and do have
19 proper food, water, space and opportunity for rest.
1 Section 74. A person found violating any provision of sec- Arrest for
2 tions seventy and seventy-three may be arrested and held without anhnaL!0
3 a warrant as provided in section forty-seven ; and the person mak- p.6|.|^7' ||'6
4 ing an arrest with or without a warrant shall use reasonable dili-
5 gence to give notice thereof to the owner of animals found in the
6 charge or custody of the person arrested, shall properly care and
7 provide for such animals until the owner thereof takes charge of
8 them, not, however, exceeding sixty days from the date of said
9 notice and shall have a lien on said animals for the expense of such
10 care and provision.
1 Section 75. If complaint is made to a court or magistrate search
2 which is authorized to issue warrants in criminal cases that the i86"344,'§5.
3 complainant believes and has reasonable cause to believe that the P- S- 207> § 57,
4 laws relative to cruelty to animals have been or are violated in any
5 particular building or place, such court or magistrate, if satisfied
6 that there is reasonable cause for such belief, shall issue a search
7 warrant authorizing any sheriff, deputy sheriff, constable or police
8 officer to search such building or place ; but no such search shall be
9 made after sunset, unless specially authorized by the magistrate
10 upon satisfactory cause shown.
1 Section 76. Sheriffs, deputy sheriffs, constables and police officers to
2 officers shall prosecute all violations of the provisions of sections Ksposition
3 seventy to seventy-three, inclusive, which come to their notice, and im^ii^s.
4 upon all convictions for cruelty to animals the fines collected upon p86! 207 §58
5 or resulting from the complaint or information of an officer or agent 1891« 3M'
6 of the Massachusetts Society for the Prevention of Cruelty to
7 Animals shall, except as provided in the following section, be
8 paid over to said society after deducting therefrom for the expense
9 of prosecution such amount as the court or trial justice shall order.
1 Section 77. One-half of all fines collected upon convictions same subject.
2 under the provisions of section seventy-two upon or resulting from 1894' ^ § 4'
3 the complaint or information of any officer or agent of the Massa-
4 chusetts Society for the Prevention of Cruelty to Animals shall
5 be paid over to said society.
1 Section 78. Whoever keeps or uses a live pigeon, fowl or other Pigeon shoot.
2 bird for the purpose of a target, or to be shot at either for amuse- i$?Cm.
3 ment or as a test of skill in marksmanship, or shoots at a bird kept p-s-207« §59-
4 or used as aforesaid, or is a party to such shooting, or lets any
5 building, room, field or premises, or knowingly permits the use
6 thereof, for the purpose of such shooting, shall be punished by a
7 fine of not more than fifty dollars or by imprisonment for not
8 more than thirty days, or by both such fine and imprisonment.
9 Nothing herein contained shall apply to the shooting of wild game.
1 Section 79. If complaint is made to a court or magistrate search war.
2 authorized to issue warrants in criminal cases that the complainant ™| birds, etc.
3 believes and has reasonable cause to believe that preparations are p.l'.foVfl'eo.
1800
CRIMES AGAINST CHASTITY, ETC.
[Chap. 212.
being made for an exhibition of the fighting of birds, dogs or other
Entry without
a warrant, etc.
1869, 435, §1.
1876, 85, § 2.
P. S. 207, § 61.
Persons ar-
rested to be
taken before
court, etc.
1809, 435, § 1.
1876, 85, § 3.
P. S. 207, § 62.
Judgment of
forfeiture,
etc.; proceed-
ings thereon.
1869, 435, § 2.
1876, 85, § 4.
P. S. 207, § 63.
Appeal.
1869, 435, § 3.
1876, 85, § 5.
P. S. 207, § 64.
animals, or that such exhibition is in progress, or that birds, dogs
or other animals are kept or trained for fighting at any place or
in any building or tenement, such court or magistrate, if satis-
fied that there is reasonable cause for such belief, shall issue a
search warrant authorizing any sheriff, deputy sheriff, constable or
police officer to search such place, building or tenement at any 10
hour of the day or night and take possession of all such birds, 11
dogs or other animals there found and arrest all persons there 12
present at any such exhibition or where preparations for such ex- 13
hibition are being made, or where birds, dogs or other animals are 14
kept or trained for fighting. 15
Section 80. Any officer authorized to serve criminal process 1
may, without a warrant, enter any place, building or tenement in 2
which there is an exhibition of the fighting of birds, dogs or other 3
animals, or in which preparations are being made for such an exhi- 4
bition, and arrest all persons there present and take possession of 5
and remove from the place of seizure the birds, dogs or other 6
animals engaged in fighting, or there found and intended to be 7
used or engaged in fighting, or kept or trained for fighting and 8
hold the same in custody subject to the order of court as herein- 9
after provided. 10
Section 81. Persons arrested under the provisions of the two 1
preceding sections shall be kept in jail or other convenient place 2
not more than twenty-four hours, Sunday or a legal holiday ex- 3
cepted, at or before the expiration of which time they shall be 4
taken before a police, district or municipal court or a trial justice 5
and proceeded against according to law. 6
Section 82. After such seizure and removal of such birds, 1
dogs or other animals, application shall be made to a police, dis- 2
trict or municipal court or a trial justice, for a decree of forfeiture 3
of the same, and if, upon the hearing of such application, such 4
notice thereof having been previously given as the justice or court 5
orders, it shall be found that such birds, dogs or other animals, 6
or any of them, at the time of such seizure were engaged in fight- 7
ing at an exhibition thereof, or were owned, kept, possessed or 8
trained by any person with the intent that they should be so en- 9
gaged, such birds, dogs or other animals shall be adjudged forfeited 10
and such justice or court shall thereupon, unless an appeal is taken 11
as hereinafter provided, issue an order for killing them, which shall 12
be directed to any officer who is authorized to serve criminal proc- 13
ess ; and the officer receiving said order shall cause such birds, 14
dogs or other animals to be killed within twenty-four hours there- 15
after. Birds, dogs or other animals seized as hereinbefore provided, 16
which are not adjudged forfeited, shall be delivered to the owner 17
or to the person who is entitled to the possession thereof. Any 18
person shall be allowed to appear as claimant in the proceeding 19
upon the application for a decree of forfeiture. 20
Section 83. An owner or claimant who is aggrieved by a judg- 1
ment of such court or trial justice may, within twenty-four hours 2
Chap. 212.] crimes against chastity, etc. 1801
3 after the entry of such judgment and before execution thereof,
4 appeal therefrom to the superior court ; and all proceedings upon
5 and after such appeal, including the right of exception, shall con-
6 form, so far as may be, to those in criminal cases, except that before
7 such appeal is allowed the appellant shall recognize to the common-
8 wealth in the sum of two hundred dollars, with sufficient sureties,
9 to prosecute his appeal and to pay such expenses of the prosecution
10 as the court may order and such expenses as may be thereafter in-
11 curred in the care and keeping of the birds, dogs or other animals
12 claimed by such appellant if final judgment is rendered against
13 them, and to abide the judgment of the court thereon. Upon the
14 final judgment, the birds, dogs or other animals which are held in
15 custody to abide such judgment shall be disposed of under the
16 direction of the superior court, in like manner as the court or
17 justice might have disposed of them if no appeal had been taken.
18 During the pendency of the appeal, all birds, dogs or other animals
19 which have been adjudged forfeited shall be kept in custody in a
20 place other than that from which they were taken.
1 Section 84. The necessary expenses which are incurred in the Expenses of
2 care and destruction of such birds, dogs and other animals may btrdCetc.°f
3 be allowed and paid in the same manner as expenses in criminal \l%'t Iff §§6f"
4 prosecutions. p. s. 207, §65.
1 Section 85. Whoever owns, possesses, keeps or trains a bird, ^er^tc1
2 dog or other animal, with the intent that such bird, dog or other q5| g|8'5§i9-
3 animal shall be engaged in an exhibition of fighting, or whoever i869,'435, § 5.'
1876 85 6 7
4 establishes or promotes an exhibition of the fighting of birds, dogs p. s'. 207, §66.
5 or other animals, shall be punished by a fine of not more than two
6 hundred dollars, or by imprisonment for not more than one year,
7 or by both such fine and imprisonment.
1 Section 86. Whoever is present at any place, building or tene — for being
2 ment where preparations are being made for an exhibition of the eiwwtion, etc.
3 fighting of birds, dogs or other animals, with intent to be present G?f.s58%§79.
4 at such exhibition, or is present at, aids in or contributes to such Hf|; llf §§8? "
5 exhibition, shall be punished by a fine of not more than twenty- p- s'. 207, § 67.
6 five dollars or by imprisonment for not more than thirty days, or
7 by both such fine and imprisonment.
1 Section 87. Whoever wilfully sends to the publisher of a raise notice of
2 newspaper for publication a false notice of a birth, marriage or 1860,195.°'
3 death shall be punished by a fine of not more than one hundred p< 8> 207' § 68-
4 dollars.
1 Section 88. A director or officer of a corporation which is costumed debt
2 engaged in the business of a collection agency or in making collec- imTw™'
3 tions from delinquent debtors or any other person who employs
4 persons, dressed in unusual and striking costumes which are in-
5 tended to attract public attention to the occupation of the wearers,
6 to call upon debtors for the purpose of demanding payment of
7 debts alleged to be due ; and whoever, being so employed, calls at
8 the house or place of business of an alleged debtor, wearing such
9 costume, or a costume having an inscription adapted to attract
1802
Color or race
discrimina-
tion.
1865, 277.
1866, 252.
P. S. 207, § 69.
1885, 316.
1893, 436.
1895, 461.
13 Allen, 247.
CRIMES AGAINST PUBLIC HEALTH.
[Chap. 213.
attention to his occupation, shall be punished by a fine of not less 10
than fifty nor more than five hundred dollars or by imprisonment 11
in jail for not less than three months nor more than three years. 12
Section 89. Whoever makes any distinction, discrimination or 1
restriction on account of color or race or, except for good cause, 2
applicable alike to all persons of every color and race, relative to 3
the admission of any person to, or his treatment in, a theatre, 4
skating rink or other public place of amusement, licensed or unli- 5
censed, or in a public conveyance .or public meeting, or in an inn, 6
barber shop or other public place kept for hire, gain or reward, 7
licensed or unlicensed, or whoever aids or incites such distinction, 8
discrimination or restriction, shall, for each offence, be punished by 9
a fine of not more than three hundred dollars or by imprisonment 10
for not more than one year, or by both such fine and imprison- 11
ment, and shall forfeit to any person aggrieved thereby not less 12
than twenty -five nor more than three hundred dollars ; but such 13
person so aggrieved shall not recover against more than one person 14
by reason of any one act of distinction, discrimination or restriction. 15
CHAPTEE 213.
Adulteration
of liquor used
for drink.
1855, 356.
G. S. 166, § 4.
P. S. 208, § 4.
OF crimes against the public health.
Section 1. Whoever, for the purpose of sale, adulterates any 1
liquor used or intended for drink with Indian cockle, vitriol, grains 2
of paradise, opium, alum, cochineal, capsicum, copperas, laurel 3
water, logwood, Brazil wood, sugar of lead or any other substance 4
which is poisonous or injurious to health, and whoever knowingly 5
sells any such liquor so adulterated, shall be punished by imprison- 6
ment in the state prison for not more than three years ; and the 7
articles so adulterated shall be forfeited. 8
Sale of poison.
1857, 280.
G. S. 166, § 7.
P. S. 208, § 6.
1887, 38.
1888, 209.
1896, 397, § 20.
1898, 192.
Section 2. Whoever sells arsenic (arsenious acid), atropia or 1
any of its salts, chloral hydrate, chloroform, cotton root and its 2
fluid extract, corrosive sublimate, cyanide of potassium, Donovan's 3
solution, ergot and its fluid extract, Fowler's solution, laudanum, 4
McMunn's elixir, morphia or any of its salts, oil of pennyroyal, oil 5
of savin, oil of tansy, opium, Paris green, Parsons' vermin extermi- 6
nator, phosphorus, prussic acid, "rough on rats", strychnia or any 7
of its salts, tartar emetic, tincture of aconite, tincture of bella- 8
donna, tincture of digitalis, tincture of nux vomica, tincture of 9
veratrum viride, or carbolic acid, without the written prescription 10
of a physician, shall affix to the bottle, box or wrapper containing 11
the article sold a label of red paper upon which shall be printed in 12
large black letters the name and place of business of the vendor and 13
the words Poison and Antidote, and the label shall also contain 14
the name of an antidote, if any, for the poison sold. He shall also 15
keep a record of the name and quantity of the article sold and of 16
the name and residence of the person or persons to whom it was 17
delivered, which shall be made before the article is delivered and 18
shall at all times be open to inspection by the officers of the district 19
Chap. 213.] crimes against public health. 1803
20 police and by the police authorities and officers of cities and towns ;
21 but no sale of cocaine or its salts shall be made except upon the
22 prescription of a physician. Whoever neglects to affix such label
23 to such bottle, box or wrapper before delivery thereof to the pur-
24 chaser or whoever neglects to keep or refuses to show to said offi-
25 cers such record or whoever purchases any of said poisons and gives
26 a false or fictitious name to the vendor shall be punished by a fine
21 of not more than fifty dollars. The provisions of this section shall
28 not apply to sales by wholesale dealers or manufacturing chemists
29 to retail dealers, or to a general merchant who sells Paris green,
30 London purple or other arsenical poisons in unbroken packages
31 containing not less than one-quarter of a pound, for the sole purpose
32 of destroying potato bugs or other insects upon plants, vines or
33 trees, except that he shall record each sale and label each package
34 sold, as above provided.
1 Section 3. "Whoever sells a cig-arette to a person under eierht- saieof
2 een years of age, or whoever sells snuff or tobacco in any of its tobacco to
3 forms to a person under sixteen years of age, or, not being his i886,072.'
4 parent or guardian, gives a cigarette to a person under eighteen 1901,s73-
5 years of age, or gives snuff or tobacco in any of its forms to a
6 person under sixteen years of age, shall be punished by a fine of
7 not more than fifty dollars.
1 Section 4. Whoever sells to a person under sixteen years of ^nta^nj
2 age any candy or other article enclosing liquid or syrup containing ?iS?n?4
3 more than one per cent of alcohol shall be punished by a fine of not
4 less than fifty nor more than one hundred dollars.
1 Section 5. Whoever knowingly feeds or has in his possession reeding of
2 with intent to feed to a milch cow any garbage, refuse or offal inTmafs.*0
3 collected by a city or town, or by any person having authority from HH' Ifi;
4 any city or town, by contract or otherwise, shall be punished by
5 imprisonment for not more than sixty days or by a fine of not more
6 than one hundred dollars ; and whoever knowingly feeds or has in
7 his possession with intent to feed to any food animal, except swine,
8 any garbage, refuse or offal collected by a city of more than thirty
9 thousand inhabitants, by contract or otherwise, shall be punished
10 by imprisonment for not more than thirty days or by a fine of
11 not more than fifty dollars.
1 Section 6. Whoever himself or by his agent or servant, or as sale of articles
2 the agent or servant of another person, manufactures, sells or ex- arsenic.mg
3 changes, or has in his custody or possession with intent to sell or 1891> 374' § 1-
4 exchange, or exposes or offers for sale or exchange, any toys or
5 confectionery, containing or coated wholly or in part with arsenic,
6 shall be punished by a fine of not less than fifty nor more than one
7 hundred dollars.
1 Section 7. Whoever offers or exposes for sale or exchange any samples for
2 paper, fabric or other article shall furnish a sample thereof sufficient vmj-m,$s.
3 for the purpose of ascertaining by analysis the existence of arsenic
4 therein, if such sample can be obtained without damage to the re-
5 maining portion, to any inspector, chemist or other agent or officer
1804
CRIMES AGAINST PUBLIC POLICY.
[Chap. 214.
Sale of textiles
containing
arsenic.
1900, 325.
1901., 188.
of the state board of health who applies therefor and tenders the 6
value thereof; and for a violation of the provisions of this section 7
shall be punished as provided in the preceding section. 8
Section 8. Whoever himself or by his agent or servant man- 1
ufactures, sells or exchanges, or has in his custody or possession 2
with intent to sell or exchange, any woven fabric or paper contain- 3
ing arsenic in any form, or any article of dress or household use 4
composed wholly or in part of such woven fabric or paper, shall 5
be punished by a fine of not less than fifty nor more than two hun- 6
dred dollars ; but the provisions of this section shall not apply to 7
articles intended for the destruction of insects, having the word 8
"Poison" plainly printed in uncondensed gothic letters not less 9
than one inch long on both sides of each sheet and square foot of the 10
fabric, or to dress goods or articles of dress containing not more than 11
one one-hundredth grain, or to other materials or articles containing 12
not more than one-tenth grain of arsenic for each square yard of the 13
material. The state board of health shall make all necessary investi- 14
gations as to the existence of arsenic in the aforesaid articles and 15
materials, employ inspectors and chemists and adopt such measures 16
as are necessary to enforce the provisions of this section. 17
Coloring mat-
ter in sausages.
1898, 193.
Section 9. Whoever, in the manufacture of sausages, uses any 1
coloring matter injurious to health shall be punished by a fine of 2
not more than one hundred dollars for each offence. 3
Refusal of
water supply.
1898, 168.
171 Mass. 329.
Section 10. A corporation which, being engaged in selling or 1
distributing water, refuses or neglects to furnish or supply water to 2
or for any building or premises for the reason that a water bill 3
remains unpaid by a previous owner or occupant of said building 4
or premises shall, unless the person applying for water is in arrears 5
to such corporation for water previously furnished to or for said 6
building or premises, or to or for any other building or premises, 7
be punished by a fine of not less than ten nor more than twenty 8
dollars. 9
CHAPTEE 214.
Penalty for
winning, etc.,
money by
gaming.
C. L. 57, § 2;
58, § 1.
1785, 58, § 3.
R. S. 50, § 14.
G. S. 85, § 3.
P. S. 99, § 3.
— for gaming
in railroad car,
etc.
1869, 382.
P. S. 99, § 4.
OF crimes against public policy.
Section 1. Whoever, on a prosecution commenced within 1
eighteen months after the commission of the crime, is convicted 2
of winning at one time or sitting, by gaming or betting on the 3
sides or hands of those gaming, money or goods to the value of 4
five dollars or more, and of receiving the same or security therefor, 5
shall forfeit double the value of such money or goods. 6
Section 2. Whoever, in a railroad car, steamboat or other 1
public conveyance, plays at cards, dice or any other game for 2
money or other property, or bets on the sides or hands of those 3
playing, shall for each offence forfeit not more than fifty dollars or 4
be imprisoned for not more than three months. If he is discovered 5
in the act, he may be arrested without a warrant by a sheriff, deputy 6
Chap. 214.] crimes against public policy. 1805
7 sheriff, constable or other civil officer, and held in custody, in jail
8 or otherwise, for not more than twenty-four hours, until complaint
9 is made against him for such offence.
1 Section 3. Every innholder, common victualler, or person Penalty on
2 keeping or suffering to be kept in any place occupied by him im- etc.fforltlep-
3 plements such as are used in gaming, in order that the same may plf^nt^for
4 for hire, gain or reward be used for purposes of amusement, who |a loot's 2
5 suffers implements of such kind to be used upon any part of such }i®ts>J°> §s-
r> £■ j.i £■ • x- xi a. 1/86, 68, §5.
6 premises for the purpose of gaming tor money or other property, or r/98, 20, §§ 1, 2.
7 who suffers a person to play at an unlawful game or sport therein, r. s. 47,'§9;'
8 shall for the first offence forfeit not more than one hundred dollars isil.Vii'. 17'
9 or be imprisoned for not more than three months ; and for every Jf^; 450;
10 subsequent offence shall be imprisoned for not more than one year, pf"^'!^
11 In either case he shall further recognize with sufficient sureties in a | Met. i|o.
12 reasonable sum for his good behavior, and especially that he will 9 Met! 572!
> . 3 Cush 279
13 not be guilty of any offence against the provisions of sections one i2Cusn. 501.
14 to six, inclusive, for three years from the date of the recognizance.
1 Section 4. Whoever, in any place mentioned in the preceding -for gaming
2 section, for the purpose of gaming for money or other property, a.ndUin%tocesS'
3 uses or takes part in using a billiard table, bowling alley, or other fowling for
4 implement of gaming, or there plays at an unlawful game or sport, c^bi^'v
5 or, for the purpose of such gaming, uses or takes part in using a }^'%^l'3-
6 billiard table or bowling alley kept by a person licensed as provided i798| 20I §3."
7 in chapter one hundred and two, shall for each offence forfeit not r. s. 47,'§ 10;'
8 more than fifty dollars. g.s. 85, §6. p. s.99,§7.
1 Section 5. Whoever keeps or assists in keeping a common —for keeping
2 gaming house, or house, building, room or place occupied, used or fngTousefeTc.
3 kept for the purposes described in section twenty-three, or is found illl' iet>,§§2ii.
4 playing or present as provided in said section, or commonly keeps ^f'lxV17'
5 or suffers to be kept, in a building or place actually used and ^s'^s'IIt1'^
6 occupied by him, tables or other apparatus for the purpose of play- i869,'364,'§i.'
7 ing; at an unlawful game or sport for money or any other valuable im', us, § 2!
8 thing, shall be punished by a fine of not more than fifty dollars or by 7 Alien, 305/
9 imprisonment for not more than three months.
141 Mass. 106. 160 Mass. 310. 161 Mass. 281. 166 Mass. 370.
1 Section 6. Whoever, during or within twelve hours of the time Gaming at
2 of holding a cattle show, military muster or public gathering, musters,0etc.'
3 within one mile of the place thereof, practises or engages in any Jf5!. 85, § 9.
4 gambling or unlawful game shall for each offence forfeit not more p8fs'.997,§§ii.
5 than twenty dollars. If he is discovered in the act, he may be
6 arrested without a warrant by any sheriff, deputy sheriff, constable
7 or other civil officer, and held in custody, in jail or otherwise, for
8 not more than twenty-four hours, until a complaint is made against
9 him for such offence.
1 Section 7. Whoever sets up or promotes a lottery for money, setting up or
2 or by way of lottery disposes of any property of value, or under the Pottery, gfft,
3 pretext of a sale, gift or delivery of other property or of any ?7i9--2o,s, §§1,2.
4 right, privilege or thing whatever disposes of or offers or attempts nlft, §'§§ij'2.
5 to dispose of any property, with intent to make the disposal thereof xix?* i©i §§1i!
1806
CRIMES AGAINST PUBLIC POLICY.
[Chap. 214.
1822, 90.
1825, 184, § 1.
1833, 148, § 1.
E. S. 132, § 1.
1856, 121, § 1.
G. S. 167, § 1.
P. S. 209, § 1.
1895, 419, § 13.
8 Pick. 78.
2 Met. 329.
2 Gray, 69.
13 Allen, 534.
97 Mass. 583.
137 Mass. 250.
146 Mass. 142.
150 Mass. 322.
dependent upon or connected with chance by lot, dice, numbers, '6
game, hazard or other gambling device, whereby such chance or 7
device is made an additional inducement to the disposal or sale of 8
said property, and whoever aids either by printing or writing, or is 9
in any way concerned, in the setting up, managing or drawing of 10
such lottery, or in such disposal or offer or attempt to dispose of 11
property by such chance or device, shall for each offence be pun- 12
ished by a fine of not more than two thousand dollars or by im- 13
prisonment for not more than one year. 159 Mass. 55. 177 Mass. 345. 14
Permitting
lottery, etc., to
be set up, etc.,
in a housi, etc.
1800, 57, § 1.
1817, 191, § 1.
1822, 90.
1825, 184, § 1.
1833, 148, § 1.
E. S. 132, § 1.
1856, 121, § 1.
G. S. 167, § 2.
P. S. 209, § 2.
1895, 419, § 13.
2 Gray, 69.
Selling lottery
ticket, share,
etc., or aiding
therein.
1732-3, 14, § 3.
1785, 24, § 3.
1800, 57, § 2.
1817, 191, § 1.
1822, 90.
1825, 184, § 1.
1833, 148, § 1.
R. S. 132, § 2.
1856, 121, § 1.
G. S. 167, § 3.
P. S. 209, § 3.
1895, 419, § 13.
Second convic-
tion.
1833, 148, § 1.
R. S. 132, § 3.
1856, 121, § 1.
G. S, 167, § 4.
P. S. 209, § 4.
Advertising
lottery ticket.
1732-3, 14, § 2.
1785, 24, § 2.
1800, 57, § 1.
1817, 191, § 1.
1822, 90.
1825, 184, § 1.
1828, 134, § 1.
1833, 148, § 2.
E. S. 132, § 4.
G. S. 167, $ 5.
P. S. 209, § 5.
1895, 419, § 13.
5 Pick. 41, 42.
Section 8. Whoever, in a house, shop or building owned or 1
occupied by him or under his control, knowingly permits the setting 2
up, managing or drawing of such lottery, or such disposal or 3
attempt to dispose of property, or the sale of a lottery ticket or 4
share of a ticket, or any other writing, certificate, bill, token 5
or other device purporting or intended to entitle the holder, bearer 6
or any other person to a prize or to a share of or interest in a prize 7
to be drawn in a lottery, or in such disposal of property, and who- 8
ever knowingly suffers money or other property to be raffled for in 9
such house, shop or building, or to be won there by throwing or 10
using dice or by any other game of chance, shall for each offence 11
be punished by a fine of not more than two thousand dollars or by 12
imprisonment for not more than one year. 13
Section 9. Whoever sells, either for himself or another person, 1
or offers for sale or has in his possession with intent to sell or offer 2
for sale or to exchange or negotiate, or aids or assists in the selling, 3
negotiating or disposing of a ticket in such lottery, or a share of a 4
ticket, or any such writing, certificate, bill, token or other device, 5
or a share or right in such disposal or offer, as is mentioned in 6
section seven, shall for each offence be punished by a fine of not 7
more than two thousand dollars or by imprisonment for not more 8
than one year. 2 Met. 329. 13 Alien, 534. 9
Making or
selling ticket
in a fictitious
lottery.
Section 10. Whoever, after being convicted of any offence 1
mentioned in the three preceding sections, commits the like offence, 2
or any other of the offences therein mentioned, shall, in addition to 3
the fine therein provided, be punished by imprisonment for not 4
more than one year. 5
Section 11. Whoever advertises a lottery ticket or a share in 1
such ticket for sale, either himself or by another person, or sets up 2
or exhibits, or devises or makes for the purpose of being set up or 3
exhibited, any sign, symbol or emblematic or other representation 4
of a lottery or the drawing thereof, in any way indicating where a 5
lottery ticket or a share thereof or such writing, certificate, bill, 6
token or other device before mentioned may be obtained, or in any 7
way invites or entices, or attempts to invite or entice, any other 8
person to purchase or receive the same, shall for each offence be 9
punished by a fine of not more than two thousand dollars or by im- 10
prisonment for not more than one year. 11
Section 12. Whoever makes or sells, or has in his possession 1
with intent to sell, exchange or negotiate, or by printing, writing 2
Chap. 214.] crimes against public policy. 1807
3 or otherwise assists in making or selling or in attempting to sell, K3f11ijf I3-
4 exchange or negotiate, a false or fictitious lottery ticket, or any g. s! m] § 6.
5 share thereof, or any writing, certificate, bill, token or other device 13 Alien,' 534.
6 before mentioned, or any ticket or share thereof in a fictitious or
7 pretended lottery, knowing the same to be false or fictitious, or
8 receives any money or other thing of value for such ticket or share
9 of a ticket, writing, certificate, bill, token or other device purport-
10 ing that the owner, bearer or holder thereof shall be entitled to
11 receive any prize, or share of a prize, or other thing of value, that
12 may be drawn in a lottery, knowing the same to be false or
13 fictitious, shall for each offence be punished by imprisonment in the
14 state prison for not more than three years.
1 Section 13. Upon the trial of an indictment for either of the Defendant to
2 crimes mentioned in the preceding section, a ticket or share of a SesJ.^fcTof116'
3 ticket, or other writing or thing before mentioned, which the defend- hfn,etsold by
4 ant has sold or offered for sale, or for which he has received a Jpl ^ § 3b:
5 valuable consideration, shall be deemed false, spurious, or fictitious, S|\167'|J-
6 unless the defendant proves that the same was true and genuine, is Alien,' 534.
7 duly issued by the authority of some legislature within the United
8 States, that such lottery was existing and undrawn and that such
9 ticket or share thereof, or other writing or thing before mentioned,
10 was issued by lawful authority and is binding upon the person who
11 issued the same.
1 Section 14. Money or any other valuable thing drawn as a prize Prizes, etc.,
2 or share thereof in a lottery, and all property disposed of or offered to lsnf tm, § 2.
3 be disposed of by any chance or device under the pretext mentioned r3!'. ifi.l I.
4 in section seven, by an inhabitant of or resident within this com- (f5t iot' §s 8
5 monwealth, and all money or any other thing of value received by p- s- 209> § 8-
6 such person by reason of his being the owner or holder of a ticket
7 or share of a ticket in a lottery or pretended lottery, or of a share
8 or right in any such scheme of chance or such device, contrary to
9 the provisions of this chapter, shall be forfeited, and may be re-
10 covered by an information filed or by an action for money had and
11 received brought by the attorney general or a district attorney in
12 the name and on behalf of the commonwealth.
1 Section 15. Whoever aids, either by printing or writing, or is Aiding in set-
2 in any way concerned in setting up, promoting, managing or draw- lottery. oiei8U
3 ing a lottery for money, set up, promoted, managed or drawn out p.6!'. 209, § 9.
4 of this commonwealth, shall for each offence be punished by a fine 1895' 419, § 13-
5 of not more than two thousand dollars or by imprisonment for not
6 more than one year.
1 Section 16. "Whoever sells, either for himself or another, or selling ticket
2 offers for sale or has in his possession with intent to sell or offer etcBUC1 °" '
3 for sale or to exchange or negotiate, or aids or assists in selling, p^\ 209, § 10.
4 negotiating or disposing of a ticket, or a share of a ticket, in a lottery 1895> 419, § 13-
5 described in the preceding section, shall for each offence be punished
6 by a fine of not more than two thousand dollars or by imprisonment
7 for not more than one year.
1 Section 17. Whoever keeps a building or room or any part ^yf"5^
2 thereof or occupies any place with apparatus, books or any device, selling pools,
1808
CRIMES AGAINST PUBLIC POLICY.
[Chap. 214.
or
bets
1878, 165.
P. S. 99, § 8.
1885, 342, § 1.
1895, 419, § 13.
143 Mass. 177.
146 Mass. 203.
154 Mass. 128,
135.
157 Mass. 455.
registering for ^he pU1»pose of registering bets, or of buying or selling pools, &
upon the result of a trial or contest of skill, speed or endurance of 4
man, beast, bird or machine, or upon the result of a game, com- 5
petition, political nomination, appointment or election, or whoever 6
is present in such place engaged in such business or employment ; 7
or, being such keeper, occupant or person present, as aforesaid, 8
registers such bets, or buys or sells such pools, or is concerned in 9
buying or selling the same ; or, being the owner, lessee or occu- 10
pant of a building or room, or part thereof, or private grounds, 11
knowingly permits the same to be used or occupied for any such 12
purpose ; or therein keeps, exhibits, uses or employs, or know- 13
ingly permits to be therein kept, exhibited, used or employed, any 14
device or apparatus for registering such bets, or for buying or sell- 15
ing such pools, shall be punished by a line of not more than two 16
thousand dollars or by imprisonment for not more than one year. 17
And whoever becomes the custodian or depositary for hire, reward, 18
commission or compensation in any manner, of any pools, money, 19
property or thing of value, in any manner staked or bet upon 20
such result, shall be punished in like manner. 21
Policy lotteries
and shops
prohibited.
1892, 409, § 1.
1895, 419, § 7.
Printing,
etc., of tickets
evidence.
1892, 409, § 2.
1895, 419, § 8.
Section 18. Whoever keeps, sets up, promotes or is concerned 1
as owner, agent, clerk or in any other manner, in managing a policy 2
lottery or policy shop, or writes, prints, sells, transfers or delivers 3
a ticket, certificate, slip, bill, token or other device, purporting or 4
designed to guarantee or assure to a person, or to entitle him to a 5
chance of drawing or obtaining a prize or thing of value in a lottery 6
or in the game or device commonly known as policy lottery or 7
policy, whether drawn or determined, or remaining to be drawn or 8
determined, or who receives from a person any money or other 9
thing of value for such article or chance ; or for himself or another 10
writes, prints, sells, transfers or delivers or has in his possession 11
for the purpose of sale, transfer or delivery, or in any way aids in 12
selling, exchanging, negotiating, transferring or delivering a chance 13
or ticket in a lottery, or in the game or device commonly known 14
as policy lottery or policy, whether drawn or to be drawn, or any 15
such bill, slip, certificate, token or other device, shall be punished 16
by a fine of not more than five hundred dollars or by imprisonment 17
for not more than one year. 18
Section 19. The printing, writing, advertising, issuing or 1
delivery of any ticket, paper, document or other article or material 2
representing or purporting to represent the existence of or any 3
chance or interest in any lottery, policy lottery or policy game, 4
pool or pools, registered or other bet or other game or hazard, 5
whether drawn or determined, or remaining: to be drawn or deter- 6
mined, or the receiving of money or other thing of value for such 7
article or chance, shall be prima facie evidence of the existence, 8
location and drawing of such lottery, policy lottery or policy game 9
and of the act or event upon which such pool or pools, bet, game 10
or hazard, depends or may depend, and of the unlawful character 11
of such lottery, policy lottery, pool, bet, game or hazard, and the 12
issuing or delivery of such ticket, paper, document or other article 13
or material shall be prima facie evidence of value received therefor 14
by the person, company or corporation issuing or delivering the 15
Chap. 214.] crimes against public policy. 1809
16 same, or aiding or abetting therein, and that such person, company
17 or corporation is concerned in keeping, managing or promoting
18 such lottery, pool, bet, game or hazard.
1 Section 20. All lottery, policy or pool tickets, slips or checks, Lottery, «tc.,
2 memoranda of any combination or other bet, manifold or other nuances;
3 policy or pool books or sheets, are hereby declared a common prfm^fa^e
4 nuisance and the possession thereof unlawful ; and the possession fgg^y6-* 3
5 of any such article, or of any other implements, apparatus or 164 Mass. 549.
6 materials of any other form of gaming, shall be prima facie evidence
7 of their use, by the person having them in possession, in the form
8 of gaming in which like articles are commonly used. Any such
9 article found upon the person of one who is lawfully arrested for
10 violation of any law relative to lotteries, policy lotteries or policy,
11 the buying or selling of pools or registering of bets or other form
12 of gaming shall be competent evidence upon the trial of a complaint
13 or indictment to which it may be relevant. If a person so arrested
14 in a building or structure or part thereof conceals or attempts to
15 conceal such articles upon his person or elsewhere, the possession
1(5 and concealment or attempt at concealment thereof shall be prima
17 facie evidence that the place in which the same occurs is kept,
18 maintained, used or occupied for the form of gaming in which like
19 articles are commonly used.
1 Section 21. In a prosecution or proceeding under any law rela- Prima facie
2 tive to lotteries, policy lotteries or policy, buying and selling pools rlcefetc.0*
3 or registered bets, any words, figures or characters, written, printed 1895>419>§4-
4 or exposed upon a blackboard, placard or otherwise, in a place alleged
5 to be used or occupied for such business, purporting or appearing
6 to be a name or names of horses or jockeys, or a description of or
7 reference to a trial or contest of skill, speed or endurance of man,
8 beast, bird or machine, or game, competition, political nomination,
9 appointment or election, or other act or event, or any odds, bet,
10 combination bet or other stake or wager, or any code, cipher or
11 substitute therefor, shall be prima facie evidence of the existence
12 of the race, game, contest or other act or event so purporting or
13 appearing to be referred to, and that such place is kept or occupied
14 for gaming ; and in all cases the same may be proved by a copy or
15 by oral description thereof.
1 Section 22. Whoever receives a letter, package or parcel for Penalty for
2 delivery or transportation to or from a person, or delivers or trans- 0f ietters,eetc.
3 ports the same to or from a person, having reasonable cause to 1895>419>§5-
4 believe that such person is engaged or in any way concerned in the
5 management or promotion of or agency for a lottery, or the game
6 known as policy lottery or policy, or the buying or selling of pools
7 or registering of bets, or other form of gaming, and that such
8 letter, package or parcel has relation to such business, shall be
9 punished by fine of not less than fifty nor more than five hundred
10 dollars ; but the provisions of this section shall not apply to the
11 receipt, carriage or delivery of United States mail matter by an
12 officer or employee thereof.
1 Section 23. If a person makes oath before a police, district or common
2 municipal court or a trial justice that he suspects or has probable ftcmitogbe
1810 CRIMES AGAINST PUBLIC POLICY. [CHAP. 214.
entered and cause to suspect that a house or other building, room or place is un- 3
arre8ted.erson8 lawfully used as and for a common gaming house, for the purpose 4
r3s. 50% 19. °f gaming for money or other property, or is occupied, used or kept 5
cPs ^i'it f°r promoting a lottery, or for the sale of lottery tickets, or for pro- 6
p6s 969*'§§io' moting the game known as policy lottery or policy, or for the buy- 7
1883, 126. ing or selling of pools or registering of bets upon any race, game, 8
i89s! 4i9J § 9. contest, act or event, and that persons resort to the same for any 9
i4iRMass9'io6. such purpose, such court or trial justice, whether the names of the 10
160 Mass! 310! persons last mentioned are known to the complainant or not, shall, 11
i6i Mass. 28i. jn cage satisfactory evidence is presented, issue a warrant command- 12
ing the sheriff or his deputy or any constable or police officer to enter 13
such house, building, room or place, and to arrest the keepers thereof, 14
all persons in any way assisting in keeping the same, whether as 15
janitor, doorkeeper, watchman or otherwise, all persons who are 16
there found participating in any form of gaming and all persons 17
present whether so participating or not, if any lottery, policy or 18
pool tickets, slips, checks, manifold books or sheets, memoranda of 19
any bet, or other implements, apparatus or materials of any form of 20
gaming are found in said place, and to take into their custody all 21
the implements, apparatus or materials of gaming, as aforesaid, and 22
all the personal property, furniture and fixtures there found, and to 23
keep said persons, implements, apparatus or materials, property, 24
furniture and fixtures so that they may be forthcoming before some 25
court or magistrate to be dealt with according to law. All articles 26
and property seized under the provisions of this section shall be 27
disposed of as provided in sections three to eight, inclusive, of 28
chapter two hundred and seventeen relative to articles seized under 29
clause eleven of section one of said chapter. 30
fronfpenaities Section 24. The provisions of this chapter shall not authorize 1
i895h4i9te§'9 ^e arres^ or conviction of a person who is the owner or proprietor 2
of a race track or trotting course for the reason that a person 3
other than himself has without his knowledge or consent violated 4
any of said provisions relative to the buying and selling of pools 5
or the registering or making of bets or to any offence mentioned in 6
the preceding section ; nor the arrest or conviction of a person for 7
being present on a race track or trotting course where pools are 8
sold or bets registered or made on trials of speed or endurance 9
between horses or other animals ; but this exception shall not apply 10
to a person in any way participating or assisting in the buying or 11
selling of pools or registering of bets. 12
gamKhou88Jsn Section 25. If a captain of police in the city of Boston or 1
1892; 388' 1 1" marshal or chief of police in any other city or town in the common- 2
wealth finds that access to any building, apartment or place which 3
he has reasonable cause to believe is resorted to for the purpose of 4
unlawful gaming is barred by any obstruction, such as a door, win- 5
dow, shutter, screen, bar or grating of unusual strength, other than 6
what is usual in ordinary places of business, or any unnecessary 7
number of doors, windows or obstructions, he shall order the same 8
to be removed by the owner or agent of the building in which such 9
obstruction exists, and if such captain of police or marshal or chief 10
of police cannot find either of the persons mentioned, so as to 11
make personal service, said notice shall be posted upon the outside 12
Chap. 214.] crimes against public policy. 1811
13 of the apartments and on the outside of said building, and upon the
14 neglect to remove such obstruction for seven days from the date of
15 said order or posting of said notices, the captain of police, marshal
16 or chief of police shall cause such obstruction to be removed from
17 such building, and the expense of such removal shall be a lien on
18 said building and be collected by the captain of police or marshal
19 or chief of police removing such obstruction, in the manner in
20 which a mechanic's lien is collected.
1 Section 26. If, within one year after removal of said obstruc- Penalty for
2 tion, the premises are again obstructed as above denned, the captain obstmctton.
3 of police or marshal or chief of police shall have the same power of 1892> 388' § 1#
4 removal as provided in the preceding section and in addition the
5 owner or agent at the time such second order of removal is given,
6 either by personal service or by posting on the building, shall be
7 liable to a fine of not less than two hundred and fifty nor more than
8 five hundred dollars, and the amount of said fine shall be a lien upon
9 said building and be collected by the captain of police, marshal or
10 chief of police in the manner in which a mechanic's lien is collected.
11 And for every subsequent obstruction as above defined, at any time
12 within two years of the giving of the second notice, as above pro-
13 vided, the captain of police, marshal or chief of police shall have
14 the same powers as provided in the preceding section for removing
15 the obstructions, and the owner or agent at the time such third or
16 subsequent order of removal is given, either by personal service or
17 by posting on the building, shall be liable to a fine of not less than
18 five hundred nor more than one thousand dollars or may be pun-
19 ished by imprisonment for one year, and the amount of said fine
20 shall be a lien upon the said building and shall be collected by the
21 captain of police or marshal or chief of police in the manner in
22 which a mechanic's lien is collected. Obstructions as above defined
23 which shall be erected more than two years after the giving of the
24 notice of the third offence, as above provided, shall be construed to
25 be a first offence under the provisions of this section.
1 Section 27. Any court or magistrate having criminal jurisdic- Judicial notice
2 tion may take judicial notice of the general methods and character ?895%i9?§82.
3 of lotteries, policy lotteries or the game called policy, pools or
4 combination bets, and the buying and selling of pools and register-
5 ing of bets. In the trial of a complaint or indictment to which it
6 may be relevant, any lottery, policy or pool ticket, certificate, slip
7 or check, manifold or other policy or pool book or sheet, or memo-
8 randum of any pool or sale of pools, or of a bet or odds, or combi- •
9 nation bet, or any other implement, apparatus, materials or articles
10 of a character commonly employed in or in connection with lotteries,
11 policy lotteries or policy, the buying or selling of pools or register-
12 ing of bets, or other form of gaming, shall be prima facie evidence
13 of the existence and unlawful character of a lottery, policy lottery
14 or game, pool or pools, bet, game or hazard, or other form of gaming
15 in which like articles are commonly used, and that such article has
16 relation thereto.
1 Section 28. No plea of misnomer shall be received to a com- pieaofmis-
2 plaint or indictment for violation of any law relative to lotteries, received°w
1895, 419, § 6.
1812
CRIMES AGAINST PUBLIC POLICY.
[Chap. 214.
policy lotteries or policy, the selling of pools or registering of bets, 3
or any form of gaming ; but the defendant may be arraigned and 4
tried and, if convicted, sentenced and punished under any name by 5
which he is complained of or indicted. No such complaint or in- 6
dictment shall be abated, quashed or held insufficient by reason of 7
any alleged defect, either of form or substance, if the same is 8
sufficient to enable the defendant to understand the charge and to 9
prepare his defence. No variance between such complaint or indict- 10
ment and the evidence shall be deemed material, unless in some 11
matter of substance essential to the charge under the rule above- 12
prescribed. . 13
Gift enter-
prises
prohibited.
1884, 277.
1898, 576.
165 Mass. 147.
Section 29. Whoever sells, exchanges or disposes of any prop- 1
erty, or offers or attempts so to do, upon a representation, adver- 2
tisement, notice or inducement that anything other than what is 3
specifically stated to be the subject of the sale or exchange is or is 4
to be delivered or received, or is in any way connected with, or is 5
a part of the transaction, or whoever gives a stamp, coupon or other 6
device which entitles a purchaser to demand or receive from a 7
person or company other than the merchant dealing in the goods 8
purchased or the manufacturer thereof, any other property than that 9
actually sold or exchanged, or whoever delivers by any person or 10
company other than the merchant dealing in the goods purchased, or 11
the manufacturer thereof, goods, wares or merchandise upon the 12
presentation of such stamp, coupon or other device, shall for each 13
offence be punished by a fine of not less than ten nor more than five 14
hundred dollars. 15
Racing, etc.,
unlawful.
Penalty.
1846, 200.
G. S. 167, § 9.
1865, 67.
P. S. 209, § 11.
1900, 409.
6 Gray, 505.
102 Mass. 405.
Section 30. Whoever, except in trials of speed of horses for 1
premiums offered by legally constituted agricultural societies, or by 2
corporations authorized thereto by the provisions of section eleven 3
of chapter one hundred and twenty-five, engages in racing, running, 4
trotting or pacing a horse or other animal of the horsekind for a 5
bet, wager of money or other valuable thing, or of a purse or stake 6
made within this commonwealth, or whoever aids or abets the same, 7
shall be punished by a fine of not more than one thousand dollars 8
or by imprisonment for not more than one year, or by both such 9
fine and imprisonment. 10
Horses driven
for a premium
or purse, dis-
fuise.
892, 167.
Section 31. Whoever, for the purpose of competing for a purse 1
or premium offered by an agricultural society, or by a person or 2
association in this commonwealth, knowingly and designedly enters 3
or drives a horse that is painted or disguised, or is a different horse 4
from the one that purports to be entered or driven, or knowingly 5
and designedly, for the purpose of competing for a premium or 6
purse, enters or drives a horse in a class to which it does not 7
belong, shall be punished by a fine of not more than five hundred 8
dollars or by imprisonment for not more than six months. 9
regufiSo^of Section 32. No land within a city or town shall be laid out or
i856fi(l,p§aiks' use(* as a race ground or trotting park without the previous consent
S'648'6367' § 10' °^ anc^ l°cati°n by the mayor and aldermen or selectmen, who may
p. s'. 209, § i2. regulate and alter the terms and conditions under which the same
1
2
3
4
Chap. 215.] felonies, accessories and attempts. 1813
5 shall be laid out, used or continued in use and may discontinue
6 the same when in their judgment the public good so requires ; and
7 no land shall be used for any of the purposes declared unlawful in
8 section thirty.
1 Section 33. Every race ground or trotting park which is estab- j^ounddeemed
2 lished, laid out, used or continued in use contrary to the provisions nuisance.
3 of this chapter is declared a common nuisance, and shall be abated 1856, 102) §§ 2, 3.
4 as such; and all persons owning, keeping, using, or permitting to p.' s.' 209,' § 13.'
5 be used such race ground or trotting park, or aiding or abetting
6 therein, shall be punished in the manner provided in section thirty.
CHAPTEE 215.
OF FELONIES, ACCESSORIES AND ATTEMPTS TO COMMIT CRIMES.
1 Section 1. A crime which is punishable by death or imprison- Felony and
2 ment in the state prison is a felony. All other crimes are misde- i852?3™§Tor8,
3 meaiiors. P. S.210, §1. 12Cush.252. ll Allen, 257. 151 Mass. 96. G. S. 168, § 1.
1 Section 2. Whoever aids in the commission of a felony, or is Accessory
2 accessory thereto before the fact by counselling, hiring or otherwise i784°r65, §ei;ac '
3 procuring such felony to be committed, shall be punished in the lsol.m, §i.
4 manner provided for the punishment of the principal felon. Giliiljs!
P. S. 210, § 3. 127 Mass. 17.
1 Section 3. Whoever counsels, hires or otherwise procures a -when and
2 felony to be committed may be indicted and convicted as an acces- im, 49,e§§ 1, 2.
3 sory before the fact, either with the principal felon or after his con- Giiiil'.iilii!
4 viction ; or may be indicted and convicted of a substantive felony, iQ^i^!m.'5'
5 whether the principal felon has or has not been convicted, or is or i^^9^
6 is not amenable to iustice ; and in the last-mentioned case may be 101 Mass. 204.
.,-..,, J .„ . ' , „ . . -J 108 Mass. 14.
7 punished in the same manner as 11 convicted 01 being an accessory 111 Mass. 395.
8 before the fact. An accessory to a felony before the fact may be 114 ass' 7'
9 indicted, tried and punished in the same county in which the prin-
10 cipal felon might be indicted and tried, although the counselling,
11 hiring or procuring the commission of such felony was committed
12 within or without this commonwealth or on the high seas.
1 Section 4. Whoever, not a husband or wife or, by consan- Accessory
2 guinity, affinity or adoption, the parent or grandparent, child or 1784*65, §2;
3 grandchild, brother or sister of the offender, after the commission if6l, 123, §2;
4 of a felony, harbors, conceals, maintains or assists the principal ^5 §5; 143,
5 felon or accessory before the fact, or gives such offender any other ^5V37,§2;
6 aid, knowing that he has committed a felony or has been accessory R- 1- 133, § 4.
7 thereto before the fact, with intent that he shall avoid or escape i876,'2i3,'§7.'
8 detention, arrest, trial or punishment, shall be an accessory after
9 the fact, and, except as otherwise provided, be punished by im-
10 prisonment in the state prison for not more than seven years or in
11 jail for not more than three years or by a fine of not more than one
12 thousand dollars.
1814
FELONIES, ACCESSORIES AND ATTEMPTS.
[Chap. 215.
Accessory
after fact,
how, when
and where
tried.
1830, 49, § 3.
R. S. 133, § 5.
G. S. 168, § 7.
P. S. 210, § 7.
Section 5. An accessory to a felony after the fact may be in- 1
dieted, convicted and punished, whether the principal felon has or 2
has not been previously convicted, or is or is not amenable to jus- 3
tice, either in the county in which he became an accessory or in 4
the county in which the principal felony was committed. 5
Attempt to
commit crime.
1832, 62.
R. S. 133, § 12.
G. S. 168, § 8.
P. S. 210, § 8.
10 Met. 422.
3 Cush. 529.
5 Cush. 365.
105 Mass. 162,
169, 460.
107 Mass.
140 Mass.
143 Mass.
149 Mass.
.225.
.451.
.37.
.229.
170 Mass. 20.
Section 6. "Whoever attempts to commit a crime by doing any 1
act toward its commission but fails in its perpetration, or is in- 2
tercepted or prevented in its perpetration, shall, except as other- 3
wise provided, be punished as follows : — 4
First, If he attempts to commit a crime punishable with death, 5
he shall be punished by imprisonment in the state prison for not 6
more than ten years. 7
Second, If he attempts to commit a crime punishable by im- 8
prisonment in the state prison for life or for five years or more, 9
he shall be punished by imprisonment in the state prison for not 10
more than five years or in jail for not more than one year. 11
Third, If he attempts to commit a crime punishable by im- 12
prisonment in the state prison for less than five years or by 13
imprisonment in jail or by a fine, he shall be punished by im- 14
prisonment in jail for not more than one year or by a fine of not 15
more than three hundred dollars. 16
Fourth, In no case shall the punishment by imprisonment ex- 17
ceed one-half of the greatest punishment which might have been 18
inflicted if the offence attempted had been committed. 19
TITLE II.
OF PROCEEDINGS IN CRIMINAL CASES.
Chapter 216. — Of Proceedings to prevent the Commission of Crimes.
Chapter 217. — Of Search Warrants, Rewards, Fugitives from Justice, Arrest,
Examination, Commitment, Bail and Probation.
Chapter 218. — Of Indictments and Proceedings before Trial.
Chapter 219. — Of Trials and Proceedings before Judgment.
Chapter 220. — Of Judgment and Execution.
Chapter 221. — Of Fines and Forfeitures.
CHAPTER 216.
OF PROCEEDINGS TO PREVENT THE COMMISSION OF CRIMES.
1 Section 1. The justices of the supreme judicial court, of the Justices au-
2 superior court, of police, district and municipal courts and trial keep the peace.
3 justices may cause all laws made for the preservation of the public q\ |; ij^ | J;
4 peace to be kept ; and in the execution of that power may require ^^^1 L
5 persons to give security to keep the peace, or for their good be-
6 havior, or both, as provided in this chapter.
1 Section 2. If complaint is made to any such justice that a complaint of
2 person has threatened to commit a crime against the person or mnecrime.om"
3 property of another, he shall examine the complainant and any q\ §; J^ 1 1
4 witnesses who may be produced, on oath, reduce the complaint to p- s< 211> § 2-
5 writing and cause it to be subscribed by the complainant.
1 Section 3. If, upon examination, the justice finds that there Arrest.
2 is just cause to fear that such crime may be committed, he shall lvltti^'i5.6"
3 issue a warrant under his hand, reciting the substance of the com- R9s'.i3^§3.
4 plaint, and requiring the officer to whom it is directed forthwith to p.l.'lu'ff;
5 apprehend the person complained of and take him before such
6 justice or some other justice or court having jurisdiction of the
7 cause.
1 Section 4. If the person complained of is convicted, he may Penalty.
2 be punished by a fine of not more than one hundred dollars or by toekefp the10*
3 imprisonment for not more than six months. He shall have the ]*££%.
4 same right of appeal as in other criminal cases, and the provisions G.'siirafi*
5 of section twenty-seven of chapter two hundred and nineteen shall f^ffoKyf 2
6 apply to such appeals. Instead of imposing sentence, the court laaelsaj!
o JV1H8B. 7o»
[1815]
1816
PROCEEDINGS TO PREVENT CRIMES.
[Chap. 216.
or justice may order the person complained of to enter into a 7
recognizance, with sufficient sureties, in such sum as the court or 8
justice orders, to keep the peace toward all the people of the com- 9
monwealth and especially toward the person requiring such se- 10
curity, for such term, not exceeding six months, as the court or 11
justice may order. The court or justice may at any time, for good 12
cause, revoke such order or reduce the amount of the recognizance, 13
or order that it be taken without surety. 14
Commitment
on failure to
recognize, etc.
1833, 63, § 1.
K. S. 134, §§ 5, 6.
G. S. 169, § 5.
P. S. 211, § 5.
1894, 505, § 2.
Section 5. If the person complained of so recognizes, he shall 1
be discharged, but if he refuses or neglects so to recognize, the 2
court or justice shall commit him to the jail or house of correction 3
during the period for which he was required to give security, or 4
until within that time he so recognizes, stating in the warrant the 5
cause of commitment and the sum and time for which security 6
was required. 7
Complainant,
when to pay
expenses.
R. S. 134, § 7
G. S. 169, § 6.
P. S. 211, § 6.
Section 6. If, upon examination, the court or justice finds that 1
there is not just cause to fear that such crime will be committed 2
by the person complained of, he shall be forthwith discharged ; 3
and if the court or justice finds that the complaint is unfounded, 4
frivolous or malicious, it or he may order the complainant to pay 5
the expenses of prosecution and he shall thereupon be answer- 6
able to the magistrate and the officer for their fees, as for his own 7
debt. 8
Payment of
expenses.
1824, 128, § 2.
1834, 151, § 4.
R. S. 134, § 8.
G. S. 169, § 7.
P. S. 211, § 7.
Section 7. If a person is required to give security to keep the 1
peace or for his good behavior, the court or justice may order him 2
to pay the expenses of prosecution, or any part thereof, and that he 3
shall stand committed until they are paid or he is otherwise legally 4
discharged. 5
Appeal.
1833, 63, § 1.
R. S.134, §9.
1852, 14.
G. S. 169, § 8.
P. S. 211, § 8.
Section 8. Whoever is aggrieved by an order of a police, dis- 1
trict or municipal court or trial justice, requiring him to recognize 2
as aforesaid, may, upon giving the security required, appeal to 3
the superior court, such appeal to be entered on the next return 4
day. 5
Witnesses to
recognize
.,, ...,„,,. Section 9. The court or justice shall require such witnesses as 1
g. ii 169' 1 9°* may ke necessary to support the complaint to recognize for their 2
p. s. 2ii,' §9. appearance at the superior court. 3
Proceedings
on appeal
Section 10. The superior court may affirm the order or dis-
ci^ s. 169' § 10! cnarge the appellant, or may require him to enter into a new recog-
p. s.211; §io. nizance, with sufficient sureties, in such sum and for such time as it
may order, and may make such order relative to the expenses of
prosecution as is just and reasonable.
1
2
3
4
5
toereSafne Section 11. If the appellant fails to prosecute his appeal, his
fs n*ot pro«s-eal recognizance shall remain in full force and effect as to any breach
cuted.
R. S. 134, § 12.
of the condition, without an affirmation of the judgment or order
Sis! 169; §ii! of the court or justice, and shall also stand as a security for any
1
2
3
4
Chap. 216.] proceedings to prevent crimes. 1817
5 expenses of prosecution which the superior court orders to be paid
6 by the appellant.
1 Section 12. A person who has been committed for not finding Discharge
2 sureties, or for refusing to recognize as required by the court or ment upon"*"
3 justice, may be discharged upon giving the security which was R^sfm^ib.
4 required. g. s. 169, §12. p. s. 211, §12.
1 Section 13. The recognizance taken pursuant to the fore- Recognizance
2 going provisions shall be transmitted to the superior court on or mittedto supe-
3 before the next return day, and shall be there filed of record by the R°sci34rt§ 14.
4 clerk ; and upon a breach of the condition an action shall be com- Jf5| ^ 13
5 menced thereon by the district attorney. r- 8. 211! § 13.
1 Section 14. Whoever, in the presence of a justice named in —when to be
2 section one or before a court of record, makes an affray, or vfewofcourt
3 threatens to kill or beat another, or to commit any violence or out- i^ffii-f'se.
4 rage against the person or property of another, and whoever in the ^9| ^ . 15
5 presence of such court or magistrate contends with hot and angry g. s. 169', § u.
6 words, to the disturbance of the peace, may be ordered, without
7 process or any other proof, to recognize to keep the peace or be of
8 good behavior for not more than three months, and in case of re-
9 fusal may be committed as provided in section five.
1 Section 15. Whoever goes armed with a dirk, dagger, sword, |orarmedto°
2 pistol or other offensive and dangerous weapon, without reasonable £ nrdtuuretiaes
3 cause to fear an assault or other injury or violence to his person, or etc.
4 to his family or property, may, upon complaint of a person who has 1794, 26, §2.
5 reasonable cause to fear an injury or breach of the peace, be required §'. s! 169! § 15!
6 to find sureties for keeping the peace for not more than six months, p" s" 211' § 15'
7 with the right of appeal as before provided. ,
1 Section 16. If, upon a suit brought on such recognizance, Remission of
2 the penalty thereof is adjudged forfeited, the court may, upon the lliofso7'
3 petition of a defendant, remit such portion of it as it finds ought g i'leg' fief
4 to be remitted. p.' simple.'
1 Section 17. A surety in a recognizance to keep the peace, or surrender of
2 for good behavior, or both, shall have the same authority and right suretypal by
3 to take and surrender his principal as if he were bail for him in a g! 1. 169, | n.
4 civil cause ; and after such surrender shall be discharged and ex- p- s- 2U> § 17-
5 empt from all liability for any act of the principal subsequent to
6 such surrender which would be a breach of the condition of the
7 recognizance. The person so surrendered may recognize anew with
8 sufficient sureties for the residue of the term, and shall thereupon
9 be discharged.
1818
SEARCH WARRANTS.
[Chap. 217.
CHAPTEE 217.
OF SEARCH WARRANTS, REWARDS, FUGITIVES FROM JUSTICE, ARREST,
EXAMINATION, COMMITMENT, BAIL, AND PROBATION.
Sections 1-8. ■
Sections 9,10.-
Sections 11-20.-
Sections 21-80.-
Sections 81-97.-
- Search Warrants.
-Rewards for Apprehending Offenders.
•Fugitives from Justice.
-Arrest, Examination, Commitment and Bail.
-Probation Officers.
Search war-
rants, issue of.
R.S.142,§§1,2.
G. S. 170, §§ 1, 2.
P. S. 212, §§1,2.
2 Met. 329.
103 Mass. 456.
119 Mass. 332.
140 Mass. 147.
145 Mass. 184.
Stolen prop-
erty.
Concealed
property.
1865, 127, § 2.
Insured prop-
erty.
1890, 284.
Counterfeit
coin, notes,
1823, 40, § 1.
Counterfeit
trade marks,
etc.
1899, 359, § 8.
Unwholesome
meat or pro-
visions.
1866, 253, § 2.
1894, 491, § 14.
Diseased
animals.
Obscene litera-
ture, etc.
1862, 168, §§2,4,
SEARCH WARRANTS.
Section 1. A court or justice authorized to issue warrants in 1
criminal cases may, upon complaint under oath that the complainant 2
believes that any of the property or articles hereinafter named are 3
concealed in a particular house or place, if satisfied that there is 4
reasonable cause for such belief, issue a warrant to search for the 5
following property or articles : — 6
First, Personal property which has been stolen, embezzled or 7
obtained by false pretences. 8
Second, Personal property which has been hired or leased or 9
held as collateral security and is fraudulently concealed. 10
Third, Personal property which has been insured against loss or 11
damage by fire and which the complainant has reasonable cause 12
to believe has been removed or is concealed for the purpose of 13
defrauding the insurer. 14
Fourth, Counterfeit or spurious coin, forged bank notes and 15
other forged instruments, or tools, machines or materials prepared 16
or provided for making them. 17
Fifth, Counterfeits or imitations of a label, trade mark, stamp 18
or form of advertisement recorded pursuant to the statutes of this 19
commonwealth, goods upon which such counterfeit or imitation 20
has been impressed, affixed or used and any dies, plates, brands, 21
moulds, engravings, printing presses, types or other tools, ma- 22
chines or materials prepared or provided for making such counter- 23
feit or imitation. 24
Sixth, Diseased animals or carcasses of slaughtered animals, or 25
any tainted, diseased, corrupted, decayed or unwholesome meat, 26
fish, vegetables, produce, fruit or provisions of any kind or the 27
meat of calves which were killed when less than four weeks old, or 28
any product thereof, if kept or concealed with intent to kill, sell or 29
offer the same for sale for food. 30
Seventh, Diseased animals. 1899, 408, § 16. 31
Eighth, Books, pamphlets, ballads, printed papers and other 32
things containing indecent, impure or obscene language, or in- 33
decent, impure or obscene prints, pictures, figures or descriptions 34
manifestly tending to corrupt the morals of youth, and intended to 35
be sold, exhibited, loaned, circulated or distributed, or to be in- 36
troduced into any family, school or place of education, and the 37
type, forms, press, wood cuts, raw material and mechanical appa- 38
ratus used and employed in printing and publishing such books, 39
ballads, pamphlets or printed papers. 40
Chap. 217.] search warrants. 1819
41 Ninth, Drugs, medicines, instruments and other articles intended ^nefSeteedi"
42 to be used for self-abuse, or for the prevention of conception, or 1879,159, §2.
43 for causing unlawful abortion, and the raw materials, tools, ma-
44 chinery, implements, instruments and personal property used or
45 intended to be used in the manufacture of such drugs, medicines,
46 instruments or other articles.
47 Tenth, Lottery tickets or other materials unlawfully made, pro- Lottery tickets,
48 vided or procured for the purpose of drawing a lottery. 5Cusn.369. 2Met.329.
49 Eleventh, Gaming apparatus or implements used or kept and ^u8andPpa"
50 provided to be used in unlawful gaming in any gaming house, or in furniture.
51 any building, apartment or place resorted to for the purpose of nMet. 79.
52 unlawful gaming, and the furniture, fixtures and personal property 141 Mass." 114!
53 found in such place at a time when persons are engaged in unlawful
54 gaming.
55 Twelfth, Pool tickets or other materials unlawfully made, pro- Pool tickets.
56 vided or procured for the purpose of buying or selling pools. 1885,342, §2.
1 Section 2. Search warrants shall designate and describe the search war.
2 place to be searched and the articles to be searched for, and shall R.afi^^i".
3 be directed to the sheriff or his deputy or to a constable or police p.'l'ii^fff 1
4 officer, commanding him to search, in the day time, or if the war- 28Met16329
5 rant so directs, in the night time, the house or place where the 5 Met. 98.
" o " a 3 Allen 310.
6 property or articles for which he is required to search are believed 140 Mass. 147.
7 to be concealed, and to bring such property or articles when found,
8 and the persons in whose possession they are found, before a court
9 or trial justice having jurisdiction.
1 Section 3. If an officer in the execution of a search warrant Disposition of
2 finds property or articles therein described, he shall seize and safelv seized.
*" T? ^ "149 S *\
3 keep them under the direction of the'court or trial justice, so long g'. s'. 17o| § 5!
4 as is necessary for the purpose of being produced or used as evi- moiEt! § 5"
5 dence on any trial. As soon as maybe afterward, all property loif'/u.' § 1;
6 seized under the provisions of clauses one and two of section one jPcush0.836§916'
7 shall be restored to the owner thereof; property seized under the 103 Mass. 456.
8 provisions of clause three of said section shall be disposed of as
9 the court orders ; property or other articles seized under the pro-
10 visions of clause six of said section shall, if upon a hearing the
11 court or magistrate finds that they were so kept or concealed, be
12 destroyed or disposed of in accordance with the provisions of
13 section seventy of chapter fifty-six by the board of health or by
14 an officer designated by the court or magistrate; otherwise, they
15 shall be returned to the owner ; diseased animals seized under the
16 provisions of clause seven of said section one shall, if upon a hear-
17 ing the court or magistrate finds that they were kept or concealed in
18 a particular building, place or enclosure, be destroyed or disposed
19 of by the board of cattle commissioners, without compensation to
20 the owners thereof; otherwise, they shall be returned to their own-
21 ners ; and all other articles seized by virtue of such warrants shall
22 be adjudged forfeited and be destroyed or sold as hereinafter
23 provided.
1 Section 4. Before a decree of forfeiture of property which part^before
2 has been seized under a search warrant is issued, the court or justice forfeiture.
1820
SEARCH WARRANTS.
[Chap. 217.
1870, 242, § 2.
P. S. 212, § 6.
1894, 410, § 1.
Service of
notice.
1870, 242, § 3.
P. S. 212, § 7.
1894, 410, § 1.
shall, unless otherwise expressly provided, issue a notice in writing 3
under seal, signed by the clerk of the court or by the justice, set- 4
ting forth the substance of the complaint, and commanding the 5
persons, if any, in whose possession the articles were found, and 6
the owner, if alleged, and all other persons who claim an interest 7
therein, to appear at a time and place therein named to show cause 8
why the articles seized should not be forfeited. 9
Section 5. The notice shall, not less than fourteen days before 1
the time appointed for trial, be served upon the person, if any, who 2
is alleged to be the oAvner of the articles seized, by an officer au- 3
thorized to serve criminal process, by leaving an attested copy 4
thereof with him personally or at his usual place of abode and by 5
posting an attested copy thereof on the house or building in which 6
the articles were seized, if they were found in a house or building ; 7
otherwise, in a public place in the city or town in which they were 8
seized. 9
Postponement
of trial.
1870, 242, § 4.
P. S. 212, § 8.
1894, 410, § 1.
Section 6. If, at the time appointed for the trial, such notice 1
has not been duly served, or if it appears necessary that any of the 2
articles so seized should be kept longer for the purpose of being 3
produced or used as evidence on any trial, or if other sufficient 4
cause appears, the trial may be postponed to another day and 5
place and further notice issued. 6
Sale or destruc-
tion of prop-
erty seized.
1862, 168, § 5.
1869, 304, § 3.
P. S. 212, § 9.
1885, 66, § 1.
1894, 410, § 1.
1899, 359, § 8.
103 Mass. 456.
119 Mass. 332.
155 Mass. 165.
Section 7. If, upon the trial, the property is adjudged for- 1
feited, the type, forms, press, wood cuts, raw material and me- 2
chanical apparatus described in clause eight of section one, the dies, 3
plates, brands, moulds, engravings, printing presses, types or other 4
tools, machines or materials described in clause five of said section, 5
the raw materials, tools, machinery, implements, instruments and 6
personal property described in clause nine of said section and all 7
furniture, fixtures and personal property described in clause eleven 8
of said section, or so much thereof as the court or justice may 9
order, shall be sold by the sheriff and the proceeds shall be paid 10
into the county treasury, and the remainder of the property shall 11
be destroyed as the court or justice may order. Any article which 12
is not found to have been unlawfully used or intended for unlaw- 13
ful use shall be delivered to the owner. 14
Appeal to
superior court.
1870, 242, § 1.
P. S. 212, § 10.
1894, 410, § 1.
Section 8. A person who is aggrieved by a decree of forfeiture 1
of a police, district or municipal court or trial justice may appeal 2
therefrom to the superior court ; but before his appeal is allowed, he 3
shall recognize to the commonwealth in the sum of two hundred 4
dollars, with sufficient surety or sureties, to prosecute his appeal 5
and to pay all such expenses as may thereafter arise, if final judg- 6
ment is rendered against the articles adjudged forfeited, and to 7
abide the judgment of the superior court thereon ; and upon such 8
appeal, any question of fact shall be tried by a jury. All the pro- 9
ceedings in the superior court, including the right of exception, 10
shall conform, so far as may be, to proceedings in criminal cases; 11
and if, upon the final judgment, the articles are adjudged forfeited, 12
they shall be disposed of under the direction of the superior court 13
as they might have been disposed of had no appeal been taken. 14
Chap. 217.] rewards. — fugitives from justice. 1821
rewards for apprehending offenders.
1 Section 9. The governor, if in his opinion the public good ®ffjre™wa^ay
2 so requires, may offer a suitable reward of not more than one 1836,4, §is. '
3 thousand dollars in any one case to be paid by the commonwealth p.' s.' 212,' § li.
4 to any person who, in consequence of such offer, apprehends,
5 brings back and secures a person who is convicted of or charged
6 with a felony, who has escaped from prison in this commonwealth,
7 or to any person who in consequence of such offer apprehends and
8 secures a person charged with such crime, if the person cannot be
9 arrested and secured in the common course of proceeding.
1 Section 10. The mayor and aldermen of a city or the select- Mayor etc.,
2 men of a town, if in their opinion the public good so requires, reward.
3 may offer a suitable reward of not more than five hundred dollars G.s'.i7b,§§7,8.
4 in any one case to be paid by such city or town to any person p.6f. 212, §§ 12,
5 who, in consequence of such offer, detects or secures a person who ]\iet. 409.
6 has committed a felony in such place, either before or after he has 7 Gray i?!'
7 been charged therewith, and such reward shall be paid by the treas- 374.
8 urer upon the warrant of the mayor and aldermen or selectmen. 133 Mass. 233.
9 If more than one claimant applies for the payment of such reward,
10 the mayor and aldermen or selectmen shall determine to whom it
11 shall be paid, and if to more than one person, in what proportion
12 to each ; and their determination shall be final.
fugitives from justice.
1 Section 11. The governor, in any case which is authorized by Delivery and
2 the constitution and laws of the United States, may, upon demand, fu£i«ve.°f
3 deliver to the executive of any other state or territory any person ]jm, 10,' § 1.
4 charged therein with treason, felony or other crime ; or may, upon jPs'7^ §6
5 application, appoint an agent to demand of the executive authority ||5|. 81-
6 of any other state or territory any such offender fleeing from the p." s.' 218,' § 1.'
. 106 Mass 223
7 justice of this commonwealth. Such demand or application shall be 112 Mass! 409!
8 accompanied by sworn evidence that the person charged is a fugitive
9 from justice and by a duly attested copy of an indictment or com-
10 plaint made before a court or magistrate authorized to receive it.
11 Such complaint shall be accompanied by affidavits to the facts con-
12 stituting the crime charged by persons who have actual knowledge
13 thereof, and by such further evidence as the governor may require.
1 Section 12. Upon such demand or application, the attorney proceedings.
2 general or a district attorney shall, if the governor so requires, r ,d.ud, §7.
3 forthwith investigate the grounds thereof and report to the governor £; |; HI; 1 1.'
4 all the material facts which may come to his knowledge, with an
5 abstract of the evidence in the case, and, in case of a person de-
6 manded, whether he is held in custody or is under recognizance to
7 answer for a crime against the laws of this commonwealth or of the
8 United States or by force of any civil process, with an opinion as
9 to the legality or expediency of complying therewith.
1 Section 13. If the governor is satisfied that the demand con- warrant.
2 forms to law and ought to be complied with, he shall issue his war- igoil 10,' § 2.
1822 . FUGITIVES FROM JUSTICE. [CHAP. 217.
r. s.i42, §7. rant, under the seal of the commonwealth, to an officer authorized 3
p! s.' Ms,' | i' to serve warrants in criminal cases, directing him at the expense of 4
io6Mas826223. the agent who makes the demand, at a time designated in the war- 5
122 Mass. 324. rant? to take and transport such person to the boundary line of this 6
commonwealth and there deliver him to such agent. Such officer 7
may require aid as in criminal cases. 8
appiy^OTwH0 Section 14. A person who is arrested upon such warrant shall 1
of habeas not be delivered to such agent of a state or territory until he has 2
1857, 289, §§i,2. been notified of the demand for his surrender and has had an op- 3
p.'s'.2i8,§§4',5i portunity to apply for a writ of habeas corpus, if he claims such 4
right of the officer who makes the arrest. If such writ is applied 5
for, notice thereof and of the time and place of hearing shall be 6
given to the attorney general or district attorney for the district in 7
which the arrest is made. An officer who delivers a person in his 8
custody upon such warrant to such agent for extradition without 9
having complied with the provisions of this section shall forfeit not 10
more than one thousand dollars. 11
f8oi8'io si. Section 15. If the application for the arrest of a fugitive from 1
g s' i"' 5 6- ^e Jus^ce °f the commonwealth is complied with and an agent is 2
p.' s.' 2i8,' § e! appointed, his account shall be paid like other expenses in criminal 3
cases by the county in which the proceedings are pending; but the 4
governor may direct the whole or a part of such account to be paid 5
by the commonwealth. 6
person i/abie Section 16. If a person who is found in this commonwealth is 1
b°banoethernded cnar&ed with a crime committed in another state or territory and is 2
gate. liable by the constitution and laws of the United States to be deliv- 3
g'. s'. vn\ § i. ered upon the demand of the executive of such other state or ter- 4
s Met. 53e: * ritory, a court or magistrate authorized to issue warrants in 5
criminal cases may, upon complaint under oath setting forth the 6
crime and such other matters as are necessary to bring the case 7
within the provisions of law, issue a warrant to bring the person 8
charged before the same or another court or magistrate within the 9
commonwealth to answer to such complaint as in other cases. 10
Ifs!^^?" Section 17. If, upon examination of the person charged, the 1
p.' I.' 2i8' § f ' court or magistrate has reasonable cause to believe that the com- 2
plaint is true and that such person may be lawfully demanded of 3
the executive, he shall, if not charged with a capital crime, be re- 4
quired to recognize with sufficient sureties in a reasonable sum to 5
appear before such court or magistrate at a day appointed, allow- 6
ing a reasonable time to obtain the warrant of the executive, and 7
to abide the order of the court or magistrate. 8
onSreto Section 18. If he does not so recognize, he shall be committed 1
R.csf i42,e§ 9. to Jail Unti^ SU(m day, as ^ the crime charged had been commit- 2
p' I" 2il' II' te(* within the commonwealth; and if he fails to appear according 3
to the condition of his recognizance, he shall be defaulted and like 4
proceedings shall be had as in case of other recognizances entered 5
into before such court or magistrate. If he is charged with a 6
Chap. 217.] arrest, examination, commitment, bail. 1823
7 capital crime, he shall be committed to jail until the day so ap-
8 pointed for his appearance.
1 Section 19. If the person so recognized or committed appears Proceedings
2 before the court or magistrate upon the day appointed, he shall be r^iI^Ho6"
3 discharged unless he is demanded by a person authorized by the £; f ; HI' f $•
4 warrant of the executive to receive him, or unless the court or
5 magistrate has cause to commit him or to require him to recognize
6 anew for his appearance on another day, and if, when ordered, he
7 does not so recognize, he shall be committed and detained as before.
8 If the person charged has recognized or is committed or discharged,
9 a person authorized by the warrant of the executive may at any
10 time take him into custody and the same shall be a discharge of
11 the recognizance and not be an escape.
1 Section 20. The complainant in such case shall be answerable Expenses.
2 for all actual costs and charges and for the support in jail of a g. I". m', | ii".
3 person so committed, which shall be paid as by a creditor for his p' Sl 218> § 1L
4 debtor committed on execution. If the charge for support in jail
5 is not so paid, the jailer may discharge him as if he had been com-
6 mitted on execution.
ARREST, EXAMINATION, COMMITMENT AND BAIL.
1 Section 21. The justices of the supreme judicial court, of the warrants to
2 superior court, or of police, district or municipal courts, and trial S issued.
3 justices, may issue process for the apprehension of persons charged g. I". no', 1 9!
4 with crime and to carry into effect the following provisions of this f2"6 mIs2s' I39'
5 chapter.
1 Section 22. Upon complaint made to any such iustice that a —how issued.
2 crime has been committed, he shall examine the complainant and g. s! m, § 16.
3 any witnesses produced by him, under oath, reduce the complaint pfs.lia, §
4 to writing and cause it to be subscribed by the complainant, and, if 4°"^' If
5 it appears that a crime has been committed, he shall, except as j* gray! *&.
6 provided in the five following sections, issue a warrant, reciting the w Gray, 382.
7 substance of the accusation and requiring the officer to whom it is 126 Mass." 238.
8 directed forthwith to arrest the accused and to take him before 159 Mass! 101'.
9 a court or trial justice of the county to be dealt with according to
10 law, and to summon such witnesses as shall be therein named to
11 appear and give evidence on the examination.
15.
503.
1 Section 23. Warrants and other processes issued for the appre — service of.
2 hension of persons charged with crime may be directed to and 1886'
3 served by any officer authorized to serve criminal process in any
4 county.
1 Section 24. Upon a complaint for a crime within the jurisdic- summons
2 tion of trial justices, a summons shall be issued instead of a warrant warrant? when.
3 for arrest, unless, in the judgment of the court or magistrate re- pfs'.wVfw.
4 ceiving the complaint, there is reason to believe that the defendant 1890,225.
5 will not appear upon a summons.
1824
ARREST, EXAMINATION, COMMITMENT, BAIL. [CHAP. 217.
Service of
summons.
1881, 127, § 2.
P. S. 212, § 17.
Section 25. Such summons shall fix a day and hour of appear- 1
ance for trial, and shall be served by an officer authorized to serve 2
criminal process by giving to the defendant in hand or by leaving 3
at his last and usual place of abode an attested copy, not less than 4
twenty-four hours before the return hour. 5
Failure to obey
summons a
contempt.
1881, 127, § 3.
P. S. 212, § 18.
Section 26. If a defendant so summoned fails, without a rea- 1
sonable cause, to appear and abide the orders of the court or 2
magistrate, he shall be considered in contempt of court, and may 3
be punished by a fine of not more than twenty dollars. A warrant 4
may be issued at any time after the issue of such summons, if 5
necessary, whether the summons has been served or not. 6
i88i°f27iznce' Section 27. If a defendant so summoned duly appears, he may 1
p. s. 212, § lb. be ordered to recognize for his further appearance, but he shall not 2
be required to give surety upon his recognizance at any stage of 3
the prosecution without a special order. 4
Service of
warrant out of
county.
1820, 52.
R.'S. 135, §3.
1846, 266.
G. S. 170, § 11.
P. S. 212, § 20.
Section 28. If a person against whom a warrant is issued under 1
the provisions of chapter eighty -two or for any alleged offence, 2
before or after the issuing of such Avarrant escapes from or is out 3
of the county, the officer to whom such warrant is directed may 4
pursue and apprehend him in any county, and for that purpose 5
may command aid and exercise the same authority as in his own 6
county. 7
Recognizance
out of county.
1692-3, 18, § 6.
1783, 51, § 1.
1784, 66, § 5.
1794, 26, §§ 1, 2.
1804, 143, § 17.
R. S. 135, § 4.
G. S. 170, § 12.
P. S. 212, § 21.
16 Mass. 198.
13 Pick. 86.
11 Gray, 465.
168 Mass. 471.
Section 29. If the crime charged in a warrant is not punish- 1
able by death or imprisonment in the state prison and the defendant 2
requests to be taken before a magistrate of the county in which 3
he was arrested, for the purpose of entering into a recognizance 4
without a trial or examination, the officer who arrested him shall 5
take him before a magistrate of that county, who may require 6
from him a recognizance, with sufficient sureties, for his appear- 7
ance at the court which has jurisdiction of the crime and next to 8
be held in the county or judicial district in which it is alleged 9
to have been committed, and the defendant shall thereupon be 10
released. 11
Magistrate,
taking bail, to
returi
zance
etc.
R. S. 135, § 5.
. 170, § 13.
. 212, § 22.
G.
P.
Section 30. The magistrate who so admits the defendant to 1
^cofrt' ^a^ s^a^ certify that fact upon the warrant, and deliver it with 2
the recognizance to the officer, who shall cause it to be delivered 3
without unnecessary delay to the clerk of the court before which 4
the defendant was recognized to appear ; and, upon application of 5
the complainant, the magistrate who issued the warrant or the dis- 6
trict attorney shall cause such witnesses as he thinks necessary to 7
be summoned to the same court. 8
Proceedings if
prisoner not
bailed.
R. S. 135, § 6.
G. S. 170, § 14.
P. S. 212, § 23.
Section 31. If a person is arrested in a county other than that 1
in which the crime was committed, and the magistrate before whom 2
he is taken refuses to admit him to bail, or if no sufficient bail is 3
offered, the officer shall take him before the court or trial justice 4
to which or before whom the warrant is returnable. 5
Chap. 217.] arrest, examination, commitment, bail. 1825
1 Section 32. If the crime charged in a warrant is a felony, the conveyance of
2 officer who makes the arrest in another county shall convey the countywhere
3 prisoner to the county in which the warrant was issued. issued11*
R. S.135,§7. G. S.170, §15. P. S. 212, § 24.
1 Section 33. A person who is arrested by warrant for a crime Examination
2 shall, unless other provision is made for his examination, be taken R.§ni^e§r8.
3 before a court or trial justice having jurisdiction where the crime p." |; 212'! Is'
4 was committed ; and the warrant, with a proper return thereon
5 signed by the person who made the arrest, shall be delivered to
6 the court or justice.
1 Section 34. The court or justice may adjourn an examination Adjournment.
2 or trial from time to time, not exceeding ten days at any one iffs'-mf^'a.
3 time without the consent of the defendant, and to the same or a p.' |.' 212' 1 26.'
4 different place in the county. In the mean time, if the defendant is ^Mass'Iei)"
5 charged with a crime not bailable, he shall be committed ; other-
6 wise, he may be recognized in a sum and with sureties to the satis-
7 faction of the court or justice, for his appearance for such further
8 examination, and for want of such recognizance he shall be com-
9 mitted.
1 Section 35. If the recognizor does not appear according to the Default on
2 condition of his recognizance, his default shall be recorded, but mi^w™*™'
3 may be taken off for good cause at any time to which the case may §; |; ^ | ™\
4 be continued. If such default is not taken off, the recognizance p- s. 212, § 27.
5 shall be certified with a record of such default to the superior court,
6 and like proceedings shall be had thereon as upon a breach of the
7 condition of a recognizance for appearance before said superior
8 court.
1 Section 36. If the defendant fails to recognize, he maybe com- Proceedings
2 mitted to jail by an order stating concisely that he is committed finf tonrecog-
3 for further examination on a future day to be named in the order, rz|; 135 § u
4 and on the day appointed he may be brought before the court or p.* f ; 212,' 1 28 *
5 justice by a verbal order to the officer who made the commitment,
6 or by an order in writing to a different person.
1 Section 37. The court or justice before whom a person is taken conduct of
2 upon a charge of crime shall, as soon as may be, examine the com- !£ s7i35?§Ti2,
3 plainant and the witnesses for the prosecution under oath in the g.' s. 170, §§ 20,
4 presence of the defendant, relative to any material matter con- |LS 212§§29
5 nected with such charge. After the testimony to support the 30-Gra '67
6 prosecution, the witnesses for the prisoner, if he has any, shall be
7 examined under oath, and he may be assisted by counsel in such
8 examination and in the cross examination of the witnesses in sup-
9 port of the prosecution.
1 Section 38. The court or justice may, while examining a wit- fveIg^j°n of
2 ness, exclude from the place of examination all the other witnesses, R. s. 135, § u.
3 and may if requested, or if cause therefor appears, order the wit- p.* s.' 212,' § si."
4 nesses for or against the prisoner to be kept separate, so that they
5 cannot converse with each other until they have been examined.
1826
ARREST, EXAMINATION, COMMITMENT, BAIL. [CHAP. 217
Testimony
reduced to
writing, etc.
R. S. 135, § 15.
G. S. 170, § 23.
P. S. 212, § 32.
Discharged.
R. S. 135, § 16.
G. S. 170, § 24.
P. S. 212, § 33.
Section 39. The testimony of the witnesses examined shall be 1
reduced to writing by, or under the direction of, the court or jus- 2
tice, if he considers it necessary, and shall, if required by him, be 3
signed by the witnesses. 4
Section 40. If it appears, upon the whole examination, that no 1
crime has been committed or that there is not probable cause for 2
charging the prisoner therewith, he shall be discharged. 3
Bail or com-
mitment.
R. S. 135, § 17.
G. S. 170, §25.
P. S. 212, § 34.
Section 41. If it appears that a crime has been committed and 1
that there is probable cause to believe the prisoner guilty, the court 2
or justice shall, if final jurisdiction is not exercised, admit the 3
prisoner to bail, if the crime is bailable and sufficient bail is offered ; 4
otherwise, he shall be committed to jail for trial. 5
Prisoner may
be carried
through an-
other countv.
1862, 216, § 1.
P. S. 212, § 35.
Section 42. If the journey from the town in which the prisoner 1
is held to the town in which he is to be committed on the service 2
of a mittimus can be made by railroad, the officer may convey the 3
prisoner through "any portion of another county in the prosecution 4
of such journey by railroad. 5
Certificate of
expenses.
1890, 440, § 10.
Section 43. If the defendant is held to appear before the grand 1
jury, the copies and record of proceedings sent to the superior 2
court shall contain the details of all fees and expenses allowed or 3
paid in the police, district or municipal court or before the trial 4
justice. 5
Witnesses to
recognize.
R. S. 135, § 18.
G. S. 170, § 26.
P. S. 212, § 36.
Section 44. If the prisoner is admitted to bail or is committed, 1
the court or justice shall bind by recognizance the material wit- 2
nesses against the prisoner to appear and testify at the next sitting 3
of the court having jurisdiction of the crime and in which the pris- 4
oner shall be held to answer. 5
Same subject.
1885, 136, § 1.
Section 45. If the examination or trial of a defendant who is 1
charged with a crime punishable with death or imprisonment for 2
life is adjourned under the provisions of section thirty-four, the 3
court or justice may bind by recognizance the principal witnesses 4
against the prisoner to appear and testify at the time and place to 5
which the trial or examination is adjourned. 6
Sureties re-
quired, when.
R. S. 135, § 19.
G. S. 170, § 27.
P. S. 212, § 37.
1885, 136, § 2.
Section 46. The court or justice, if satisfied that there is good 1
cause to believe that a witness will not perform the condition of 2
his recognizance unless other security is given, may order the wit- 3
ness to enter into a recognizance with such sureties as may be 4
deemed necessary for his appearance at court. 5
Recognizances
by minors.
R. S. 135, § 20.
G. S. 170, § 28.
P. S. 212, § 38.
1885, 136, § 2.
168 Mass. 471.
Section 47. If a minor is a material witness, any other person
may be allowed to recognize for his appearance ; or, in the dis-
cretion of the court or justice, he may recognize in a sum not
exceeding fifty dollars, which shall be valid and binding in law
notwithstanding his minority.
of°witn^nt Section 48. A witness who, when required, refuses to recog-
r. s. 135, §21. nize, either with or without sureties, shall, except as provided in
1
2
3
4
5
1
2
Chap. 217.] arrest, examination, commitment, bail. 1827
3 the following section, be committed to jail until he complies with fjjtiu'ii9'
4 such order or is otherwise discharged according; to law ; but if the p- s'. 212, §§ 39,
5 magistrate finds that the witness, unless he is the prosecutor or an 1885, 136, §2.
6 accomplice, is unable to procure sureties when so ordered, he shall,
7 except in cases of felony, be discharged upon his own recognizance.
8 Upon a complaint or indictment for a felony, against a defendant
9 who is not in custody, a material witness who is committed for
10 failure to furnish sureties upon his own recognizance may be held
11 in custody for a reasonable time, pending the pursuit and appre-
12 hension of the defendant.
1 Section 49. A magistrate may, with the consent of the de- Deposition of
2 fendant, take or cause to be taken by a magistrate authorized to Sm^i8'
3 take depositions in civil cases, in manner and form as provided in ^- s- 170, §§ 30,
4 civil cases, the deposition of a witness whom he finds to be unable £■ s- 212> §§ 40>
5 to furnish sureties upon his recognizance as ordered and who is not isss, 136, § 2.
6 the prosecutor or an accomplice ; and thereupon the witness shall
7 be discharged. The attorney for the commonwealth who will have
8 charge of the case at the trial shall have the same notice as parties
9 in civil actions of the time and place of taking the deposition, and
10 the assent of the defendant shall be indorsed upon the deposition.
11 The fees shall be the same as in civil cases and shall be paid as
12 other expenses in criminal cases are paid. The deposition shall
13 be seasonably transmitted to the court at which the witness was
14 ordered to appear. If the witness is unable to attend the trial, by
15 reason of his absence from the commonwealth, so that he cannot be
16 compelled to attend by subpoena or attachment, or of his death,
17 insanity, illness or infirmity, the deposition may be read in evi-
18 dence upon the trial by either party, subject to all legal objections.
1 Section 50. If a witness has been committed because of his Discharge on
2 inability to furnish sureties for his appearance before the superior whenmzance'
3 court, the jailer shall forthwith give notice to the chief justice of 1894.406>§1-
4 the superior court, who shall direct the district attorney to inquire
5 as to the importance of his testimony and the necessity for detaining
6 him in jail, and the district attorney, if, in his opinion, the public
7 interest will not suffer by the release of the witness on his own
8 recognizance, shall so report to the chief justice, who may thereupon
9 order the witness to be released upon his own recognizance.
1 Section 51. The prison commissioners shall from time to time Treatment of
2 make such rules relative to the diet, size of cells, amount of ^ne88e9in
3 liberty and exercise, correspondence, visits and such other matters 1894'270-
4 as they consider necessary regulating the treatment of witnesses
5 held in jail as will secure their ctear distinction and separation from
6 other prisoners as far as possible, consistent with their safe custody
7 and the prevention of tampering with their testimony. Said com-
8 missioners may, with the approval of the district attorney, remove
9 such witnesses from the jail in which they are confined to a jail in
10 another county, and shall, at the request of the district attorney,
11 cause them to be returned to the jail whence they were removed.
12 The proceedings upon such removal shall be the same as are pro-
13 vided for the removal of prisoners from one jail or house of correc-
14 tion to another. The cost of support of a witness so removed and
1828
ARREST, EXAMINATION, COMMITMENT, BAIL. [CHAP. 217.
the cost of both removals shall be paid by the county from which 15
he is removed. 16
Transporta-
tion of male
and female
prisoners.
1894, 273.
Section 52. An officer having the custody or control of pris- 1
oners, who causes or permits male and female prisoners to be trans- 2
ported together to or from a court in a van or other carriage, in 3
a city having more than thirty thousand inhabitants according to 4
the latest census, shall be punished by a fine of not more than 5
twenty dollars. 6
Treatment by
officers of
witnesses in
custody.
1894, 160.
Section 53. An officer having the custody of a witness who 1
has been committed because of his failure to furnish sureties, who 2
causes or permits him to be handcuffed to a person who is held in 3
custody charged with or sentenced for crime, or to be transported 4
within a city to or from any court or prison in a van or carriage 5
with such person, shall be punished by a fine of not more than 6
twenty dollars. 7
Discharge, if
injured party
satisfied.
R. S. 135, § 25;
136, § 27.
1846, 198.
G.S.170, §33;
171, § 28.
P. S. 212, § 43;
213, § 36.
12 Allen, 402.
115 Mass. 136.
120 Mass. 403.
Section 54. If a person who is committed to jail is under in- 1
dictment or complaint for, or is under recognizance to answer to, 2
a charge of assault and battery or other misdemeanor for which he 3
is liable in a civil action, unless the offence was committed by or 4
upon a sheriff or other officer of justice, or riotously, or with in- 5
tent to commit a felony, and the person injured appears before the 6
court or justice who made the commitment or took the recognizance, 7
or before which the indictment or complaint is pending, and ac- 8
knowledges in writing that he has received satisfaction for the in- 9
jury, the court or justice may in its or his discretion, upon the 10
payment of such expenses as it or he shall order, discharge the 11
recognizance or supersede the commitment, or discharge the defend- 12
ant from the indictment or complaint, and may also discharge all 13
recognizances and supersede the commitment of all witnesses in the 14
case. 15
— a bar to civil
action.
R. S. 135, § 26;
136, § 27.
G. S. 170, § 34;
171, § 28.
P. S. 212, § 44;
213, § 36.
12 Allen, 402.
Section 55. Such order discharging the recognizance, indict- 1
ment or complaint of the person or the recognizance of witnesses 2
shall be filed in the office of the clerk before the sitting of the 3
court at which they are bound to appear ; and such order super- 4
seding the commitment of the person charged or of a witness shall 5
be delivered to the keeper of the jail in which he is confined, who 6
shall forthwith discharge him ; and such order, so filed and deliv- 7
ered, shall forever bar a civil action for such injury. 8
What magis-
trates may
admit to bail.
1812, 30.
R. S. 135, § 22.
1851, 92, § 2.
1855, 265, § 1.
G. S. 170, § 36.
1874, 306, § 4.
1878, 188, § 4.
1879, 228.
P. S. 212, § 46.
1898, 411, § 1.
Section 56. A justice of the supreme judicial court or of the 1
superior court, a standing or special commissioner appointed by 2
either of said courts, a justice or clerk of a police, district or 3
municipal court, a master in chancery or a trial justice, upon appli- 4
cation of a prisoner held under arrest or committed, either on a 5
warrant or without one, or held in the custody of an officer under 6
a mittimus, may inquire into the case and admit such prisoner to 7
bail ; and may admit to bail any person who is committed for not 8
finding sureties to recognize for him. All persons authorized to 9
take bail under the provisions of this section shall be governed by 10
Chap. 217.] arrest, examination, commitment, bail. 1829
11 the rules established by the .supreme judicial court or the superior
12 court.
1 Section 57. If the person is committed without an order fixing Notice to officer
2 the amount of the recognizance, he shall not be admitted to bail Axed!116*
3 under the provisions of the preceding section until reasonable ili^lj&Vi.
4 notice of his application has been given to the officer by whom he f^ -™> § 37-
5 was committed, or a hearing has been given to the officer in whose p- s- 212. § *?■
~ 107 Mass 227
6 custody he is held ; and if committed with such order, he shall not
7 be admitted to bail, except by a justice of the supreme judicial
8 court or of the superior court, for a less amount than is required by
9 the order.
1 Section 58. After a conviction or a plea of guilty or of nolo Ban in Suffolk
2 contendere in the superior court in the county of Suffolk, the l^ira, § 1.
3 prisoner shall not be admitted to bail except in open court; but £\ Mass. 392.'
4 when said court is not in session, bail may be taken by any judge
5 of a court of record or by any commissioner appointed by the
6 justices of the superior court, upon proof that written notice of
7 the proposed application has been duly served upon the district
8 attorney or one of the assistant district attorneys for the Suffolk
9 district at least twenty-four hours before the hearing of such appli-
10 cation, specifying the name of the prisoner, the crime of which
11 he has been convicted, the time and place of hearing and the name,
12 occupation and residence of the proposed sureties. No person who
13 has been once offered and rejected as surety shall afterward be
14 accepted as surety for the same person in the same case.
1 Section 59. If bail is taken out of court, the person author- certificate of
2 ized to take bail in criminal cases shall cause a certificate to be mb, ill', § 2.
3 signed and sworn to by each surety, which shall contain the name, JsJ},' In? § £9'
4 the residence, including the name of the street and number of the \fd Mass! 317!
5 dwelling house thereon, the occupation and place of business of the
6 surety, a statement of the nature, location and value of his property
7 and of the incumbrances, if any, thereon, the amount of his indebted-
8 ness and all other matters pertinent to the amount and value of such
9 property, and shall return a proper recognizance to the proper court.
1 Section 60. If application is made to a person authorized to Notice to dis-
2 take bail in criminal cases within the county of Suffolk to accept i™62, i59?r§n3.y"
3 bail out of court in a case in which no amount has been fixed, he fmimii^'
4 shall, if the crime charged is not within the jurisdiction of the
5 municipal court of the city of Boston, before fixing bail, cause
6 notice of such application to be given to the district attorney or
7 one of the assistant district attorneys for the Suffolk district, if
8 any of said attorneys is at the time within said district.
1 Section 61. No justice of any court shall receive any fee or No fees for
2 compensation for taking and approving bail in criminal cases in wheng
3 the county of Suffolk. i879,254,§i. p. s. 212, §51. 1880,135. 1862,159, §5.
1 Section 62. Persons who are committed to jail on the Lord's Bail on the
2 day, or on the preceding evening or afternoon, may, in the discre- isll,2m,Yi.
3 tion of the magistrate, be admitted to bail on that day. ies Mass. 519. p! |; 212) f 52!
1830
ARREST, EXAMINATION, COMMITMENT, BAIL. [CHAP. 217.
Condition of
recognizances.
1845, 166, § 2.
G. S. 170, § 39.
1878, 188, § 1.
P. S. 212, § 53.
7 Gray, 316.
119 Mass. 317.
143 Mass. 214.
172 Mass. 431.
Return of re-
cognizance and
examination
to court.
R. S.135, §24.
G. S. 170, § 40.
P. S. 212, § 54.
9 Allen, 371.
Section 63. The condition of a recognizance of a person, either 1
with or without surety, which binds him to appear before a court or 2
trial justice to answer to a charge against him or to prosecute an 3
appeal shall be so framed as to bind him personally to appear at 4
the time so expressed, and at any subsequent time to which the 5
case may be continued, unless previously surrendered or dis- 6
charged, and so from time to time, until the final decree, sentence 7
or order of the court thereon, and to abide such final sentence, 8
order or decree, and not depart without leave. 9
Section 64. A recognizance and examination which is taken by 1
a magistrate under the provisions of this chapter shall be certified 2
and returned by him to the district attorney or the clerk of the 3
court before which the person charged is bound to appear, on or 4
before the first day of the sitting thereof; and if he refuses or 5
neglects to return the same, he may be compelled forthwith by 6
order of court, and, in case of disobedience, may be proceeded 7
against as for contempt. 8
Section 65. A person who, being arrested on a criminal charge, 1
forfeits or makes default upon his bail bond or recognizance or has 2
been surrendered by a probation officer shall not be again released 3
upon further bail or recognizance in the same case, unless by order 4
of a justice of the court in which such charge was pending at the 5
time of said default or of such surrender by a probation officer. 6
)v,ji(tl,,1 Section 6<o. Bail in criminal cases may exonerate themselves 1
Ieewrbafiefault" a*" any ^me kef°re default upon their recognizance by surrendering 2
1863, 59, §'i. their principal into court or to the jailer in the county in which 3
the principal is held to appear. They shall deliver to the jailer 4
their principal, with a certified copy of the recognizance, and he 5
shall be received and detained by the jailer, but may be again 6
bailed in the same manner as if committed for not finding sureties 7
to recognize for him. 8
Section 67. Bail may surrender their principal at any time 1
after default made upon the recognizance, in the manner provided 2
in the preceding section ; and the court in which the default is 3
recorded may, upon application, remit the whole or any part of the 4
penalty, if satisfied that the default of the principal was not with 5
the connivance or consent of the bail. 6
Forfeiture of
bail a bar to
further bail.
1862, 169, § 1.
1874, 306, § 1.
1879, 87.
P. S. 212, § 55.
1901, 215.
13 Allen, 396.
126 Mass. 224.
Surrender of
Remission of
penalty after
default.
1863, 59, § 2.
P. S. 212, § 57.
Exoneration if
unable to
surrender
principal.
1859, 131.
G. S. 170, § 43.
P. S. 212, § 58.
Default on
recognizance.
1813, 182, § 2.
R. S. 135, § 27.
1845, 166, § 3.
G. S. 170, § 46.
P. S. 212, § 59.
Section 68. If, by the act of God, of the government of the 1
United States, of any state or by sentence of law, bail are unable 2
without their fault to surrender their principal, they shall, upon 3
motion before final judgment on the scire facias, be exonerated and 4
discharged by the court, with or without costs as the court deems 5
equitable. 6
Section 69. If a person who is under recognizance to appear 1
and answer or to prosecute an appeal in a criminal case fails to 2
appear for that purpose according to the condition of his recog- 3
nizance, and if a person under recognizance to testify in a criminal 4
prosecution fails to perform the condition of his recognizance, his 5
default may be recorded, his obligation and that of his sureties 6
Chap. 217.] arrest, examination, commitment, bail. 1831
7 shall be forfeited and process shall be issued against them or such
8 of them as the prosecuting officer directs ; but in such suit no costs
9 shall be taxed for travel.
1 Section 70. A surety in such recognizance may, by leave of pa™iL™untof
2 the court, after default, and either before or after process has been recognizance,
3 issued against him, pay to the county treasurer or clerk of the R- s. 135, § 28.
4 court the amount for which he was bound as surety, with such costs p.' s.' 212,' § eo.'
5 as the court shall direct, and shall be thereupon forever discharged.
1 Section 71. If, upon suit brought on a recognizance to prose- Award of
2 cute an appeal, the penalty is adjudged to be forfeited, or if by 0frpena£y 0?
3 leave of court such penalty has been paid to the county treasurer R^sfiasflT"
4 or the clerk of the court without a suit or before judgment, as p; |; 212' I li.
5 provided in the preceding section, and any forfeiture accrues by
6 law to a person by reason of the crime of which the appellant was
7 convicted, the court may award to him the portion of the amount
8 paid to which he is entitled.
1 Section 72. If the penalty of a recognizance of a party or wit- ^fl^enton
2 ness in a criminal prosecution is adjudged forfeited, the court may recognizance.
3 render judgment, upon such terms as it may order, against the r. s\ 135, § 29.
4 principal or surety, or both, for the whole of the penalty with in- p.' si 212; f 62."
5 terest, or, in its discretion, upon application of the defendant in u/mIss.6!;?.
6 the judgment for a part thereof only.
1 Section 73. Such action shall not be barred or defeated, nor irregularities
2 shall judgment be arrested, by reason of neglect or omission to action.01616'11
3 note or record the default of any principal or surety at the time § ; |; *fo| | ;$;
4 when it happens, nor by reason of a defect in the form of the |*Met2#i7§ 63'
5 recognizance, if it sufficiently appears from the tenor thereof at 73fMy'31204
6 what court the party or witness was bound to appear, and that the 143 Mass.' 210!
7 court or magistrate before whom it was taken was authorized by
8 law to require and take such recognizance.
1 Section 74. A court which has rendered judgment on a re- Review of
2 cognizance the penalty of which is forfeited may, upon the petition forfeTtldre11
3 of any person interested, stating the ground relied upon and tiled wi^u^fi-
4 in the county in which the judgment was rendered, grant a review p.' |; 212' § 64.'
5 and a rehearing of the case, upon the surrender or recaption of the
6 prisoner who was released, or for any sufficient cause which has
7 occurred or been ascertained by the person interested after the
8 rendition of such judgment, or at such time as not to have afforded
9 opportunity for presenting the same in evidence.
1 Section 75. Notice of the petition and a copy thereof shall be —petition for.
2 given to or served upon the district attorney for the county in &f|. no,§§5i.
3 which the petition is pending fourteen days at least before the return P- S- 212' § 65-
4 day expressed therein, and such notice shall be returnable on the
5 first Monday of the first or second month after the filing of the
6 petition.
1 Section 76. If the court finds that a part of the judgment has Proceedings
2 been actually paid to or for the county upon the recognizance or judgment
diminished.
1832
PROBATION.
[Chap. 217.
53.
P. S. 212, §§ 66,
67.
g5I 170 §l§3524' judgment and orders the judgment to be reversed or entered for a
less amount than has been so actually paid, it may order the amount
of the difference between the payment and the new judgment to
be paid back to the person who made the payment or to his legal
representatives. The treasurer or other officer of the county who
received or then has the amount paid shall, upon presentation of
a copy of the order certified by the clerk of the court, make said
repayment. If, upon such petition, the review is not granted or
the original judgment is not altered, the court may award reason-
able costs against the petitioner.
Deposit in lieu
of recogni-
zance.
1879, 126, § 1.
P. S. 212, § 68.
1882, 134.
172 Mass. 427.
Section 77. If a person who is arrested on criminal process has
been ordered to recognize with surety or sureties for his appear-
ance before any court or trial justice, he may, instead of giving
surety or sureties, at any time give- his personal recognizance, and
deposit the amount of the bail which he is ordered to furnish with
the court, trial justice or magistrate authorized by law to take such
recognizance who shall give him a certificate thereof, and upon
delivering said certificate to the officer in whose custody he is, he
shall be released. The court, trial justice or magistrate shall forth-
with, upon the receipt of such amount, deposit it with the clerk of
the court or with the trial justice before whom such person was
recognized to appear, or if such court has no clerk, shall deposit it
with the justice thereof.
3
4
5
6
7
8
9
10
11
12
1
2
3
4
5
6
7
8
9
10
11
12
13
Upon default
money to be
Section 78. Upon the default of the defendant, such court,
i879d i26CO§U3nty' *r*a^ Jus*ice or magistrate may at any time thereafter order the
p. s'. 2i2, § 70. money deposited as aforesaid to be forfeited, and the said justice,
trial justice or magistrate with whom said deposit is made shall
thereupon pay over the money to the county treasurer.
Section 79. The defendant may surrender himself at any time
Self-surrender
of defendant.
p.7s.2?2',§§§§2694' Def°re a default in the same manner as sureties in criminal cases
71- may surrender their principal, and the court shall thereupon order
the money so deposited to be returned to him or his order. The
defendant, at any time after a default, may so surrender himself
and the court may thereupon order the whole or any part of the
money so deposited to be returned to him.
" Magistrate '
iclud
includes bail
1Hli ,,;,,, Section 80. The term "magistrate", in any section of the
i8™3mC'§ 5?r' statutes which provides for admitting persons to bail in criminal
p. s. 212, §73. cases, shall be construed to include a bail commissioner, so far as to
give him authority to act in any case of admitting prisoners to bail.
1
2
3
4
5
1
2
3
4
5
6
7
1
2
3
4
Probation
officers.
1S80, 129, § 1.
P. S. 212, § 74.
1882, 125.
1891, 356, § 1.
1892, 242; 276,
§§ 1, 3.
1897, 266, §§ 1, l
1898, 511, § 1.
PROBATION OFFICERS.
Section 81. The superior court may appoint probation officers 1
and the justice of each police, district or municipal court and the 2
chief justice of the municipal court of the city of Boston shall ap- 3
point one probation officer. Said chief justice may also appoint 4
not more than five male and two female assistant probation officers. 5
Each probation officer and assistant probation officer so appointed 6
shall hold his office during the pleasure of the court which makes 7
the appointment. 8
Chap. 217.] probation. 1833
1 Section 82. The justice of a police, district or municipal court Probation
2 may, in the absence of the probation officer, appoint a probation tempore1?™
3 officer pro tempore, who shall have the powers and perform the 18 ,372'
4 duties of the probation officer, and who shall receive from the
5 county as compensation for each day's service an amount equal to
6 the rate by the day of the compensation of the probation officer ;
7 but compensation so paid for any excess over fourteen days' service
8 by a probation officer pro tempore in any one calendar year shall
9 be deducted by the county treasurer from the compensation of the
10 probation officer.
1 Section 83. Said probation officers shall not be active members Powers; m-
2 of the regular police force, but so far as necessary in the perform- records! °f
3 ance of their official duties shall have all the powers of police p38!'.^' §§74.5*
4 officers, and if appointed by the superior court may, by its direction, J|jji» |^> | f
5 act in any part of the commonwealth and shall report to the court.
6 Their records may at all times be inspected by the chief of police
7 or city marshal of any city or town, or by the board of police for
8 the city of Boston.
1 Section 84. Each probation officer shall inquire into the na- Duties.
2 ture of every criminal case brought before the court under the pfs'.^i!,5!^
3 appointment of which he acts, and may recommend that any per- ]g91 356 §§3 4
4 son convicted thereby be placed upon probation. Female assistant i||f * He' § i'
5 probation officers shall investigate the cases of all women charged w^l ®£ § i-
6 with crime in the municipal court of the city of Boston and per-
7 form such other duties as the justices of said court may require.
8 Each probation officer shall keep full records of all cases investi-
9 gated by him, of all cases placed in his care by the court, and of
10 any other duties performed by him. The court may place the per-
il son so convicted in the care of a probation officer for such time and
12 upon such conditions as may seem proper. The superior court
13 may also place upon probation under any of its probation officers
14 any person charged before it with crime. Each person released
15 upon probation shall be furnished by the probation officer with a
16 written statement of the terms and conditions of his release.
1 Section 85. The probation officers of such police, district and i*^^!';4-
2 municipal courts as the prison commissioners shall from time to ^■9f|5162,|580'
3 time designate shall give such information relative to their work woo,' 449,' § 3.
4 to said commissioners as they shall request and shall report to said
5 commissioners, upon forms to be furnished by them, such facts as
6 the commissioners desire relative to all cases brought before said
7 courts which are investigated by said officers, and relative to the
8 cases of all persons placed on probation in their custody. The
9 prison commissioners shall keep a record of all cases reported to
10 them, in a form convenient for reference.
1 Section 86. If, in the opinion of a probation officer of a police, same subject.
2 district or municipal court, a person who is arrested within the 1900' **9' § 4'
3 jurisdiction of the court by which he is appointed resides within
4 the jurisdiction of another court, he shall forthwith apply for
5 information relative to such person to the prison commissioners
6 and they shall forthwith furnish to him such information as they
1834
PROBATION.
[Chap. 217.
have or can obtain through other probation officers or police offi- 7
cials. They shall also send to the probation officer of the court 8
within the jurisdiction of which such person resides such inforraa- 9
tion as they receive relative to such case. Police officers of cities 10
and towns shall co-operate with such probation officers and with 11
said commissioners, in obtaining information, and said probation 12
officers shall assist each other and said commissioners in their duties. 15
The commissioners shall give to the board of police for the city 14
of Boston, to all chiefs of police and to city marshals all the in- 15
formation which they have in any case relative to which said police 16
officials may inquire. 17
Conferences
between com-
missioners,
courts and
officers.
1900, 449, § 5.
Section 87. The prison commissioners shall, from time to time, 1
confer with the justices of the several courts for the purpose of 2
securing an improvement of the probation service, of promoting 3
uniformity in the performance of the duties of probation officers 4
and of obtaining a better co-ordination of their work. They shall 5
also confer with the probation officers of said courts and give them 6
such assistance as will promote the best interests of the service. 7
— between pro-
bation officers.
1900, 449, § 6.
Section 88. If the prison commissioners are of opinion that a 1
conference of any or all of the probation officers and assistant proba- 2
tion officers will secure their better co-operation with each other 3
and will promote the efficiency of their work, they shall cause 4
such conference to be held, and one of the commissioners shall 5
preside over it. 6
Report and
recommenda-
tions.
1900, 449, § 7.
Section 89. The prisons commissioners shall annually, in No- 1
vember, report to the governor on the operation of the probation 2
system and its results, and make recommendations for the improve- 3
ment of the service. 4
Assistance, etc.
1900, 449, § 8.
Section 90. Said commissioners shall be provided with such 1
additional office accommodations as they may need and the neces- 2
sary facilities for carrying on the work required by the five pre- 3
ceding sections, and may employ such assistance as the governor 4
and council shall from time to time authorize. 5
Section 91. Upon the appointment or removal of a probation 1
officer or assistant probation officer, the clerk of the court by which 2
the appointment or removal is made shall forthwith give notice to 3
4
Notice to
prison com-
missioners.
1880, 129, § 2.
P. S. 212, §74.
is98;5ii;§3! the prison commissioners of the officer so appointed or removed.
Compensation.
1891, 356, § 6.
1892, 276, § 1.
1897, 266, § 1.
1898, 511, § 2.
Section 92. The compensation of each probation officer and
assistant probation officer of a police, district or municipal court
shall be determined by the justice thereof, subject to the approval
of the county commissioners, and shall be paid by the county,
upon vouchers approved by said justice and the county commission-
ers, or, in the county of Suffolk, by the institutions commissioner.
The salary of each probation officer who is appointed by the
superior court shall be determined by the court, and shall be ap-
portioned by it from time to time among the counties wherein said
officer performs his services.
1
2
3
4
5
6
7
8
9
10
Chap. 218.] indictments and proceedings before trial. 1835
1 Section 93. The reasonable expenses incurred by probation Expenses-.
2 officers of the superior court in the performance of their duties shall \m't f??; § 2.
3 be approved and apportioned by the court, and paid by the county Pg0' 279; U9*
4 to which they are thus apportioned. Probation officers of police,
5 district and municipal courts shall be reimbursed by the county for
6 their actual disbursements for necessary expenses incurred while in
7 the performance of their duties, including their reasonable travel-
8 ling expenses in attending the conferences authorized by section
9 eighty-eight, not exceeding two hundred dollars to each in any one
10 year, upon vouchers approved by the justice by whom they are
11 appointed.
1 Section 94. A police, district or municipal court may authorize support of
2 a probation officer to expend such amount as the court considers S^lesT6™"
3 expedient for the temporary support or transportation, or both, of
4 a person placed on probation, and such amount shall be repaid to
5 the probation officer by the county upon vouchers approved by the
6 court. A record of any amount so authorized shall be entered on
7 the clerk's docket of the case.
1 Section 95. A probation officer or assistant probation officer Penalty for
2 who refuses or neglects to perform any of the duties required of duties* °f
3 him by the seven preceding sections shall forfeit two hundred ilB^ Iff,' 1 1.'
4 dollars to the use of the commonwealth. im, 266, § 3.
1 Section 96. Every probation officer shall inform the court, so information to
2 far as is possible, whether a person on trial has previously been conviction".01
3 convicted of crime. i880, 129, § 11. p. s. 212, § 79.
1 Section 97. The provisions of the eleven preceding sections Duties of state
2 shall not authorize a probation officer to interfere with any of the charity not
3 duties required of the state board of charity, under the provisions flof^', § 12.
4 of law relative to juvenile offenders. 1886, 101, § 4. i89i, 356, § 9. p- s- 212> § 8l-
CHAPTER 218.
OF indictments and proceedings before trial.
Sections 1-14. — Grand Jury.
Sections 15-45. — Indictments and Complaints.
Sections 46-51. — Venue of Specific Crimes.
Sections 52, 53. — Limitation of Criminal Prosecutions.
Sections 54-67. — Arrest, Arraignment and Other Proceedings.
GRAND JURY.
1 Section 1. The clerk of the courts for each county, except the Grand jurors.
2 county of Suffolk, shall, not less than seven nor more than thirty leWV&ffi.
3 days before the commencement of the first sitting of the superior J^; lio.Yi2'
4 court for criminal business in each year, issue writs of venire facias ifff.1^ i6i.
5 for twenty-three grand jurors to be returned to that court, who Jf*| 7147-]' u
6 shall serve until the first regular sitting in the year next after they i860,'i43.'
c? O J .PS 213 € 1
7 have been impanelled and until another grand jury has been im- 1897,490,' §7.'
1836
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [CHAP. 218.
2Cusji. 149. panelled in their stead. In counties in which sittings of the court
171 Mass! 459! are established for the transaction of criminal business, they shall
be required to attend only at such sittings.
Grand jurors
in Suffolk.
1844, 44, § 3.
G. S. 171, §2.
1860, 143.
P. S. 213, § 2.
Section 2. The clerk of the superior court for criminal business
in the county of Suffolk shall, not less than seven nor more than
fourteen days before each sitting commencing on the first Monday
of January and July, issue writs of venire facias for twenty -three
grand jurors to serve in said court, twenty -two of whom shall be
drawn and returned from the city of Boston, and one from Chelsea,
Revere or Winthrop, who shall serve for each sitting thereof for
six months and until another grand jury has been impanelled in
their stead.
8
9
10
1
2
3
4
5
6
7
8
9
Jurors, how
drawn, etc.
R. S. 136, § 3.
G. S. 171, § 3.
P. S. 213, § 3.
Section 3. Grand jurors shall be drawn, summoned and re- 1
turned in the same manner as traverse jurors ; and, if drawn at the 2
same time with traverse jurors, the number of persons required 3
whose names are first drawn shall be returned as grand jurors, and 4
those whose names are afterward drawn shall be returned as traverse 5
jurors. 6
— deficiency,
supply of.
1784, 7, § 6.
1807, 140, § 7.
R. S. 136, § 4.
G. S. 171, § 4.
P. S. 213, § 4.
Section 4. If there is a deficiency of grand jurors, writs of 1
venire facias may be issued to the constables of such cities or towns 2
as the court orders to return forthwith such further number of grand 3
jurors as may be required. 119 Mass. 331. 4
Impanelling
and oath.
C. L. 167, § 2.
1692-3, 35.
1784, 4, § 1.
1807, 140, §§ 10,
14.
R. S. 136, § 5.
G. S. 171, § 5.
P. S. 213, § 5.
157 Mass. 516.
Section 5. The clerk of the court shall prepare an alphabetical 1
list of the names of all persons returned as grand jurors, and, when 2
they are to be impanelled, the first two persons named thereon shall 3
be first called, and the following oath shall be administered to 4
them : — 5
You, as grand jurors of this inquest for the body of this county of-
— , do
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 fellows1 and your own, you shall keep secret ; you shall present
no man for envy, hatred or malice, neither shall you leave any man unpresented
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 under-
standing ; so help you God.
The other jurors shall then be called in such divisions as the court 6
considers proper, and the following oath shall be administered to 7
them : — 8
Affirmation in
lieu of oath.
1807, 140, § 14.
R. S. 136, § 6.
G. S. 171, § 6.
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.
Section 6. If a person who is returned as a grand juror is
conscientiously scrupulous of taking the oath prescribed, he may
affirm. p. s.213, §e. 168U. s. 567.
1
2
3
Fso^T^fio. Section 7. After the grand jurors have been impanelled and 1
g. I; in, I ]'. ^ave received their charge from the court, they shall retire with the 2
fie Mas!' Ii ' officer appointed to attend them, and shall forthwith, by ballot, 3
Chap. 218.] indictments and proceedings before trial. 1837
4 elect one of their number to be foreman and give notice thereof to
5 the court, and the clerk shall record the same.
1. Section 8. The foreman so elected shall be foreman for the Foreman,
2 whole period the grand jurors are required to serve, but in his ab- term of Service
3 sence another foreman shall be elected in the same manner, who pro tempore!1
4 shall perform the duties during such absence, and, in case of the r3! \33°6' Vl'
5 death of the foreman, for the residue of their period of service. £• f. ml §s.
' * p. S, 213, § 8.
1 Section 9. The foreman of the grand jury or the prosecuting Administra-
2 officer before them may administer oaths and affirmations to wit- ^wUnesses8.
3 nesses who appear to testify before the jury, and the foreman shall nesse°sf wlt"
4 under his hand return to the court a list of all witnesses sworn be- p^°| ^ S i°-
5 fore the grand jury during the sitting, which shall be filed of record p-fHo'f g-
6 by the Clerk. 4 Gray, 1. 163 Mass. 455.
1 Section 10. The grand jury may appoint one of their number cierkand
2 as clerk, and he shall keep a record of their proceedings and, if the R.°sr 136, § 10.
3 jury so direct, shall deliver it to the attorney general or district p.' |; 213) | io!
4 attorney.
1 Section 11. If the grand jury are dismissed before the court is Re-summon-
2 adjourned without day, they may be summoned to attend again s?ttingSame
3 in the same sitting, at such time as the court orders. p. s. 213, § 11. §; |; ^ | }{;
1 Section 12. No grand juror or officer of the court shall disclose Disclosure of
2 the fact that an indictment has been found against any person who foundforbid-
3 is not in custody or under recognizance, otherwise than by issuing Rens'. i36( § 12.
4 or executing process on the indictment. g. s. m, § 12. p. s. 213, § 12.
1 Section 13. No grand juror shall be allowed to state or testify — of proceed-
2 in any court in what manner he or any other member of the jury r5I. m,\ if.n"
3 voted on any question before the grand jury, or what opinion was p! li 213! 1 13.'
4 expressed by any juror relative to such question. In charging the
5 grand jury, the court shall remind them of the provisions of this
6 and the preceding sections.
1 Section 14. No member of the grand jury which has found an Grand juror
2 indictment shall serve upon the jury for the trial thereof. traverse juror.
R. S. 137, §2. G. S.172, §2. P. S. 214, § 4.
INDICTMENTS AND COMPLAINTS.
1 Section 15. Whoever is held in custody on a charge of crime Discharge of
2 shall be discharged if he is not indicted before the end of the second Fnd1ctedrnot
3 sitting of the court at which he is held to answer, unless the court R?s\7i36f §u.
4 finds that the witnesses for the prosecution have been enticed or J*; |; ^> | }*•
5 kept away, or are detained and prevented from attending the court
6 by illness or accident, and except as provided in the following
7 section.
1 Section 16. If the grand jury does not indict a person who is commitment
2 held in custody on a charge of crime by reason of his insanity, they byreaso nof
3 shall so certify to the court, which, if satisfied that he is insane, 1862/223," § 17.
1838
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [CHAP. 218.
P. S. 213, § 15.
1883, 148, § 2.
1889, 90, § 1.
1895, 390, § 4.
Contents of
indictment.
1899, 409, §§ 6, '
12.
may order him to be committed to a state insane hospital, under 4
such limitations as it may order ; or, if the court finds that he has 5
been a criminal or has been vicious in his life, it may order him to 6
be committed to the asylum for insane criminals, and if he is 7
charged with felony, his expenses there or in a state insane hospital 8
or in any state charitable institution to which he may be transferred 9
shall be paid by the commonwealth. 10
Section 17. An indictment shall contain : — 1
First, The caption, which shall consist of the name of the com- 2
mon wealth, county and court in which the indictment is presented, 3
and the time of the sitting of the court. One caption will be sum- 4
cient, although the indictment contains more than one count. 5
Second, A plain and concise description of the act which consti- 6
tutes the crime, or the appropriate legal term descriptive of such 7
act, without a detailed description thereof. The words used in a 8
statute to define a crime, or other words conveying the same mean- 9
ing, may be used. 10
ofrtheTctance8 Section 18. The circumstances of the act may be stated accord-
1899, 409, § 13. [ng to their legal effect, without a full description thereof.
Name of
defendant.
1899, 409, § S.
Section 19. If the name of an accused person is unknown to
the grand jury, he may be described by a fictitious name or by any
other practicable description, with an allegation that his real name
is unknown. An indictment of the defendant by a fictitious or
erroneous name shall not be ground for abatement ; but if at any
subsequent stage of the proceedings his true name is discovered, it
shall be entered on the record and may be used in the subsequent
proceedings, with a reference to the fact that he was indicted by the
name mentioned in the indictment.
1
2
1
o
Li
3
4
5
6
7
8
9
p™land Section 20. The time and place of the commission of the crime 1
1899, 409, § 10. neeci not be alleged unless it is an essential element of the crime. 2
The allegation of time in the caption shall, unless otherwise stated, 3
be considered as an allegation that the act was committed before 4
the finding of the indictment, after it became a crime, and within 5
the period of limitations. The name of the county and court in the 6
caption shall, unless otherwise stated, be considered as an allegation 7
that the act was committed within the territorial jurisdiction of the 8
court. All allegations of the indictment shall, unless otherwise 9
stated, be considered to refer to the same time and place. 10
i899,n409, § H. Section 21. The means by which a crime is committed need 1
not be alleged in the indictment unless they are an essential 2
element of the crime. 3
Description of
written instru-
ment.
1899, 409, § 15.
Section 22. If an allegation relative to a written instrument 1
which consists wholly or in part of writing, print or figures is 2
necessary, it may describe such instrument by any name or designa- 3
tion by which it is usually known, or by the purport thereof, with- 4
out setting out a copy or facsimile of the whole or of any part 5
thereof; and no variance between such recital or description and 6
the instrument produced at the trial shall be material, if the identity 7
Chap. 218.] indictments and proceedings before trial. 1839
8 of the instrument is evident and the purport thereof is sufficiently
9 described to prevent prejudice to the defendant.
1 Section 23. If an allegation relative to any bullion, money, Description
2 notes, bank notes, checks, drafts, bills of exchange, obligations or llsJ^sefi 2.
3 other securities for money of any country, state, county, city, town, iJ^jf; § 10'
4 bank, corporation, partnership or person is necessary, it may de- G4!' m §§ 42
5 scribe it as money, without specifying any particulars thereof; and i>87| 280|'§44
6 such descriptive allegation shall be sustained by proof of any i899,'409,'§i6.'
7 amount of bullion, money, notes or other securities for money as lis Mass.' 443.
8 aforesaid, although the particular nature thereof shall not be proved. 173 Ma88' ,541'
1 Section 24. The value or price of property need not be stated, ~i°ceyalueor
2 unless it is an essential element of the crime. If the nature, degree 1899,409, § 17.
3 or punishment of a crime depends upon the fact that the property ex-
4 ceeds or does not exceed a certain value, it may be described, as the
5 case may be, of more than that value, or of not more than that value.
1 Section 25. If an indictment for a crime which involves the — of owner-
2 commission or attempted commission of an injury to property de- 1899," 409, § is.
3 scribes the property with sufficient certainty in other respects to
4 identify the act, it need not allege the name of the owner.
1 Section 26. If one element of the criminality of an act is its -of public
2 commission in a public place, and if such place is not more par- im?m, § 19.
3 ticularly denned in the statute, the act may be alleged generally to
4 have been committed " in a public place ".
1 Section 27. In an indictment for the larceny of an animal, or — of animal.
2 for any other crime in respect thereof, it may be described by the 1899' 4m' § M
3 name by which it is commonly known, without stating its age or
4 sex or whether it is alive or dead.
1 Section 28. If it is necessary to set forth the judicial proceed- "Ceding!1
2 ings in any case then or formerly pending in any court, civil or 1899, 409, § 21.
3 military, or any proceedings before a justice of the peace or any
4 other magistrate, only the substance of said proceedings or such
5 part thereof as shall constitute in whole or in part the crime charged
6 need be alleged.
1 Section 29. An allegation that the defendant committed the General intent.
2 act charged shall be a sufficient allegation that he was criminally 189 ' 9'
3 responsible therefor.
1 Section 30. If an intent to injure or defraud is an essential o?defraud.iure
2 element of a crime, an intent to injure or defraud may be alleged §' 1' 1I2' 1 13"
3 generally, without naming the person, corporation or government p^s.m §13.
4 intended to be injured or defrauded. Proof of an intent to injure nsAet'm.
5 or defraud any person or body corporate shall be competent to sup-
6 port the allegation.
1 Section 31. Different means or different intents by or with 3^pa$£g.
2 which a crime may be committed may be alleged in the same count 18". m, § 25.
3 in the alternative.
1840
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [CHAP. 218.
Continuing
offences.
1899, 409, § 11.
Section 32. An allegation that a crime was committed or that 1
certain acts were done during a certain period of time next before 2
the finding of the indictment shall be a sufficient allegation that 3
the crime alleged was committed or that the acts alleged were 4
done on divers days and times within that period. 5
Unnecessary
and immate-
rial allega-
tions.
R. S. 137, § 14.
1838, 181, § 4.
1846, 62; 95,
§15.
1852, 37, § 3.
1858, 23.
G. S. 168, §2;
171, § 16; 172,
§19.
1860, 191, § 10.
P. S. 210, §2;
213, §§ 16, 17.
1885, 144.
1886, 53.
1899, 409, §§ 3,
6,9.
150 Mass. 66.
156 Mass. 234.
175 Mass. 325.
Section 33. Presumptions and conclusions of law, matters of 1
which judicial notice is taken and allegations which are not required 2
to be proved need not be alleged. An indictment shall not be con- 3
sidered defective or insufficient because it omits to allege that the 4
crime was committed, or the act was done " traitorously ", " feloni- 5
ously ", ' ' burglariously ", ' ' wilfully ", ' ' maliciously ", ' ' negli- 6
gently", "unlawfully" or otherwise similarly to describe the 7
crime, unless such description is an element of the crime charged, 8
or because it omits to allege that the crime was committed or done 9
with " force and arms", or " against the peace ", or against the form 10
of the statute or statutes, or against a by-law, ordinance, order, 11
rule or regulation of any public authority, nor because it omits to 12
state or misstates the title, occupation, estate or degree of the de- 13
fendant or of any other person named in the indictment, or of the 14
name of the county, city, town or place of his residence, unless 15
such omission or misstatement tends to the prejudice of the de- 16
fendant. An indictment shall not be considered defective or in- 1 7
sufficient by reason of describing a fine or forfeiture as enuring to 18
the use of the commonwealth instead of to the use of the county, 19
city or town, nor by reason of any misstatement as to the appro- 20
priation of any fine or forfeiture, nor by reason of its failure to 21
allege or recite a special statute or a by-law or ordinance of a city 22
or town or order of the maj^or and aldermen or selectmen or rules 23
or regulations of any public board of officers. 24
Immaterial
defects.
1899, 409, § 5.
Section 34. An indictment shall not be quashed or be consid- 1
ered defective or insufficient if it is sufficient to enable the defendant 2
to understand the charge and to prepare his defence ; nor shall it be 3
considered defective or insufficient for lack of any description or 4
information which might be obtained by requiring a bill of particu- 5
lars as provided in section thirty-nine. 6
Variance.
1864, 250, § 1.
P. S. 214, § 26.
1899, 409, § 4.
97 Mass. 570.
107 Mass. 205,
231.
133 Mass. 393.
Section 35. A defendant shall not be acquitted on the ground 1
of variance between the allegations and proof if the essential 2
elements of the crime are correctly stated, unless he is thereby 3
prejudiced in his defence. He shall not be acquitted by reason 4
of an immaterial misnomer of a third party, by reason of an imma- 5
terial mistake in the description of property or the ownership 6
thereof, by reason of failure to prove unnecessary allegations in 7
the description of the crime or by reason of any other immaterial 8
mistake in the indictment. 9
»Co°aPth.»fword Section 36. The word " oath " as used in an indictment shall 1
1899, 409, § 22. include an " affirmation ". 2
and^-ovfsos. Section 37. An excuse, exception or proviso which is not 1
1899, 409, § 26. stated in the enacting clause of a statute creating a crime or which 2
Chap. 218.] indictments and proceedings before trial. 1841
3 is stated only by reference to other provisions of the statute need
4 not be negatived in the indictment unless it is necessary for a com-
5 plete definition of the crime. If any statute shall prescribe a form
6 of indictment in which an excuse, exception or proviso is not
7 negatived, it shall be taken that it is not necessary to a complete
8 definition of the crime that they should be negatived. If a statute
9 which creates a crime permits an act, which is therein declared
10 to be criminal, to be performed without criminality under stated
11 conditions, such conditions need not be negatived.
1 Section 38. The words used in an indictment may, except as Meaning of
2 otherwise provided in this section, be construed according to their phrases.nd
3 usual acceptation in common language ; but if certain words and 1899« 409> § n-
4 phrases are defined by law, they shall be used according to their
5 legal meaning.
6 The following words, when used in an indictment, shall be sufE-
7 cient to convey the meaning herein attached to them : —
8 Adultery. — The sexual intercourse by a married man with a
9 woman not his wife, by an unmarried man with a married woman,
10 by a married woman with a man not her husband.
11 Affray. — The fighting together of two or more persons in a
12 public place to the terror of the persons lawfully there.
13 False Pretences. — The false representations made by word or
14 act which are of such a character, or which are made under such
15 circumstances and in such a way, with the intention of influencing
16 the action of another, as to be punishable.
17 Forgery. — The false making, altering, forging or counterfeiting
18 of any instrument described in section one of chapter two hundred
19 and nine, or any instrument which, if genuine, would be a founda-
20 tion for or release of liability of the apparent maker.
21 Fornication. — The sexual intercourse between a man and an un-
22 married woman.
23 Murder. — The killing of a human being, with malice afore-
24 thought.
25 Rape. — The unlawful forcible carnal knowledge by a man of a
26 woman against her will or without her consent ; or the carnal
27 knowledge by a man of a female child under the statutory age of
28 consent.
29 Robbery. — The taking and carrying away of personal property
30 of another from his person and against his will, by force and
31 violence, or by assault and putting in fear, with intent to steal.
32 Stealing. — Larceny. — The criminal taking, obtaining or con-
33 verting of personal property, with intent to defraud or deprive the
34 owner permanently of the use of it ; including all forms of larceny,
35 criminal embezzlement and obtaining by criminal false pretences.
1 Section 39. The court may, upon the arraignment of the bhi of particu-
2 defendant, or at any later stage of the proceedings, order the pros- its?,' 436, § 2.
3 ecution to file a statement of such particulars as may be necessary iff I'^l*, H,1^.
4 to give the defendant and the court reasonable knowledge of the
5 nature and grounds of the crime charged, and if it has final juris-
6 diction of the crime, shall so order at the request of the defendant
7 if the charge would not be otherwise fully, plainly, substantially
8 and formally set out.' If there is a material variance between the
1842
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [ChAP. 218.
evidence and the bill of particulars, the
of particulars to be amended, and may
may be before the same or another jury,
If, in order to prepare for his defence,
formation as to the time and place of the
means by which it is alleged to have been
cific information as to the exact nature
as money, or, if indicted for larceny, as
alleged to have committed, he may apply
aforesaid.
court may order the bill 9
postpone the trial, which 10
as the court may order. 11
the defendant desires in- 12
alleged crime or as to the 13
committed, or more spe- 14
of the property described 15
to the crime which he is 16
for a bill of particulars as 17
18
Indictment for
larceny.
1899, 409, § 24.
Section 40. In an indictment for criminal dealing with personal 1
property with intent to steal, an allegation that the defendant stole 2
said property shall be sufficient ; and such indictment may be sup- 3
ported by proof that the defendant committed larceny of the prop- 4
erty, or embezzled it, or obtained it by false pretences. 5
8tofienrpropVins Section 41. In prosecutions for the crime of buying, receiving 1
1804 ' 143 n or a^mo m tne concealment of stolen property which is known to 2
r. s'. 126, § 24. have been stolen, it shall not be necessary to allege or prove that 3
G S 161 5 45 .
p.' s." 203| § 50." the person who stole the property has been convicted. 3 Mass. 126. 4
— for perjury.
1860, 186, § 1.
P. S. 205, § 5.
5 Allen, 499.
105 Mass. 582.
107 Mass. 227.
119 Mass. 317.
152 Mass. 577.
164 Mass. 398.
166 Mass. 175.
Section 42. In an indictment for perjury alleged to have been 1
committed in a criminal case an allegation of the substance of the 2
crime shall be sufficient ; if it is alleged to have been committed 3
in a civil case, an allegation of the nature of the controversy in 4
general terms shall be sufficient. In both cases, the court or magis- 5
trate before whom the oath or affirmation was taken shall be alleged, 6
but no part of the proceeding in which, or the commission or au- 7
thority of the court or person before whom, the^ perjury was com- 8
mitted need be alleged. 9
— for suborna-
tion of perjury.
1860, 186, § 2.
P. S. 205, § 6.
152 Mass. 498.
155 Mass. 224.
Section 43. If, in an indictment for subornation of perjury or
for attempting to incite or procure another person to commit per-
jury, it is alleged that perjury has been committed, an allegation of
the perjury as provided in the preceding section and an allega-
tion that the defendant wilfully incited or procured said person to
commit said perjury shall be sufficient. If it is not alleged that
such perjury has been committed, an allegation of the substance
of the crime with which the defendant is charged shall be sufficient,
without allegations as to matters or things which by the provisions
of the preceding section are declared to be unnecessary.
1
2
3
4
5
6
7
8
9
10
— for unnat-
ural and las-
civious acts.
1887, 436, § 2.
160 Mass. 536.
Section 44. In an indictment under the provisions of section 1
twenty-seven of chapter two hundred and twelve, an allegation 2
that the defendant committed an unnatural and lascivious act with 3
the person named or referred to in the indictment shall be sufficient. 4
Different
counts for dif-
ferent offences
in same indict-
ment.
1861, 181.
P. S. 213, § 18.
132 Mass. 263.
Section 45. Two or more counts describing different crimes
which depend upon the same facts or transactions may be set forth
in the same indictment if it contains an averment that the different
counts therein are different descriptions of the same acts.
134 Mass. 201. 150 Mass. 394. 152 Mass. 276, 283. 159 Mass. 56.
1
2
3
4
Chap. 218.] indictments and proceedings before trial. 1843
VENUE or specific crimes.
1 Section 46. A crime committed on or within one hundred rods crime near
2 of the boundary line of two counties may be alleged to have been i794°3*Yi.me'
3 committed, and may be prosecuted and punished, in either county ; g!s!i7i' §17.
4 and if committed on or within fifty rods of the boundary line of p7|' lsi'l 50-
5 two judicial districts, it ma}^ be alleged to have been committed, and ^'AE-'
6 may be prosecuted and punished, in either district. A crime com- 1893J m, § 34.
7 mitted upon the sea within one league of the shore may be pros- 2Ai'ien,502.
8 ecuted and punished in an adjacent county. 167 Mass. 173.
1 Section 47. Larceny, whether at common law or as denned by venue of
2 section twenty-six of chapter two hundred and eight, may be prose- ilrefios.
3 cuted and punished in any county in which the defendant had pos- P- s" 213> § Wl
4 session of the property which is alleged to have been stolen.
1 Section 48. The crime of obtaining money or a personal menVforob.
2 chattel by a false pretence, and the crime described in section taining money
•/ J- ' \)y Ifllgg T>rG-
3 twenty-eight of chapter two hundred and eight, may be alleged to tences.
1863 24-8 5 1
4 have been committed, and may be prosecuted and punished, in any p. s\ 213', § 21.
5 county in which the false pretence was made, written or used, or
6 in or through which any of the property obtained was carried,
7 sent, transported or received by the defendant.
1 Section 49. If a mortal wound is given, or if other violence or — of indict-
2 injury is inflicted, or if poison is administered, in one county, by is'inonecounty
3 means whereof death ensues in another county, the homicide may another.thm
4 be prosecuted and punished in either county. r. s. 133, §8. 1795, 45, §1.
G. S. 171, §18. P. S. 213, §22. 2 Pick. 549. 118 Mass. 25.
1 Section 50. If a mortal wound is given, or if other violence -of indict.
2 or injury is inflicted, or if poison is administered, on the high committed"?16
3 seas or on land either within or without this commonwealth, by 1795®^; §2.
4 means whereof death ensues in any county thereof, the homicide G!i!i7i'ii9.
5 may be prosecuted and punished in the county in which the death f^l1^' \2B-
6 happens.
1 Section 51. If a mortal wound is given, or if other violence or —of indict
2 injury is inflicted, or if poison is administered, in any county of i^1S twa'conu
3 this commonwealth, by means whereof death ensues without this dea"h outside*
4 commonwealth, the homicide may be prosecuted and punished in p- s- 213> § 24-
5 the county in which the act was committed.
limitation of criminal prosecutions.
1 Section 52. An indictment for murder may be found at any -of criminal
2 time after the death of the person who is alleged to have been mur- ]a.0s.ei^,l§ni6.
3 dered. An indictment for any other crime shall be found and filed p! 1; 213; | is!
4 within six years after the crime has been committed ; but any
5 period during which the defendant is not usually and publicly resi-
6 dent within this commonwealth shall be excluded in determining
7 the time limited.
1844
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [CHAP. 218.
Venue of new
indictment
against corpo-
ration after
abatement of
former one,
etc.
1867, 164. .
P. S. 213, § 26.
Section 53. If an indictment, duly found and returned within 1
the time limited by law against a corporation to recover a pecuniary 2
penalty, is abated or otherwise avoided or defeated by reason of any 3
matter of form, or if after a verdict against such corporation, judg- 4
ment is arrested, or if a judgment against such corporation is 5
reversed on writ of error, a new indictment for the same cause may 6
be found and filed within one year after the abatement of the former 7
indictment or the reversal of the judgment as aforesaid. 8
Prisoner to be
served with
copy of indict-
ment, etc.
1832, 130, § 6.
R. S. 136, §§ 18,
19.
G. S. 171, § 22.
1869, 433, § 1.
1878, 151, § 2.
P. S. 213, § 28.
1891, 379, § 11.
ARREST, ARRAIGNMENT AND OTHER PROCEEDINGS.
Section 54. After the finding of an indictment for murder, the 1
defendant, if in custody, shall forthwith be served by the sheriff 2
or his deputy with a copy thereof and with an order of the court 3
notifying him that the indictment will be entered forthwith upon 4
the docket of the superior court for the county in which it has been 5
found or, if found in the county of Dukes County or Nantucket, 6
that it will be entered forthwith upon the docket of the superior 7
court for the county of Bristol. 8
— to have list
of jurors and
process for
witnesses.
R. S. 136, § 23.
G. S. 171, § 24.
P. S. 213, §31.
13 Mass. 501.
104 Mass. 538.
Section 55. A prisoner who is indicted for a crime which is 1
punishable with death or imprisonment for life, upon demand by 2
him or his counsel upon the clerk, shall have a list of the jurors 3
who have been returned and process to summon witnesses who are 4
necessary to his defence, at the expense of the commonwealth. 5
Other prison
ers entitled to
Section 56. Whoever, having been indicted for felony, is 1
copy of indict- under recognizance or in custody to answer therefor shall be en- 2
ment. D -'
titled to a copy of the indictment and of all indorsements thereon 3
4
R. S. 136, § 24.
G. S. 171, § 25.
P. S. 213, § 32.
without charge.
Prosecuting
officers may
issue sub-
poenas.
R. S. 136, § 25.
G. S. 171, § 26.
P. S.213, §33.
Section 57. The attorney general and district attorneys may 1
issue subpoenas under their hands for witnesses to appear and testify 2
on behalf of the commonwealth, and such subpoenas shall have the 3
same force, and be obeyed in the same manner, and under the same 4
penalties, in case of default, as if issued by the clerk of the court. 5
Witnesses for
common-
wealth to at-
tend without
fees.
R. S. 136, § 26.
1859, 62.
G. S. 171, § 27.
P. S. 213, § 34.
Section 58. Witnesses who are summoned in. behalf of the 1
commonwealth shall attend without the payment of fees, and shall 2
be punishable for non-attendance ; but if the court finds that they 3
are unable to defray their expenses, it shall order their fees which 4
have accrued to be paid, and may make such further order for the 5
payment of their fees as may be considered reasonable. The court 6
may at each sitting pass a general order for the payment of the 7
fees of such witnesses. 8
Witness to
recognize,
when.
1868, 69.
1872, 214.
P. S. 213, §35.
Section 59. A justice of a court of record may at any time 1
order a witness for the commonwealth in a criminal case pending in 2
such court to recognize, with or without sureties, to appear and 3
testify at the next or any succeeding sitting of said court, and may 4
issue a warrant to bring such witness before him to recognize as 5
aforesaid ; but no witness who is unable to procure sureties shall on 6
that account be committed to jail except in cases of felony. 7
Chap. 2 18. J indictments and proceedings before trial. 1845
1 Section 60. If, upon the arraignment of the defendant, he re- Arraignment.
2 fuses to plead or does not confess the indictment to be true, the 1795^45°! ™ute'
3 court shall order a plea of not guilty to be entered, and shall f$ s- 136> §§ 28,
4 thereupon proceed as if he had pleaded not guilty. It shall not be p'f'gjs'ffr-
5 necessary in any case to ask a prisoner how he will be tried. 13 Alien,' 568.'
1 Section 61. Whoever is held in custody upon an indictment Limit of time
2 shall, if he requires it, either be tried at the sitting of the court n84, 72,' § 13.
3 next after the expiration of six months from the time when he was g'. s'. 171' § 30!
4 imprisoned or be bailed upon his own recognizance, unless the court 109 Mast. i!o.'
5 finds that the witnesses on behalf of the government have been en-
6 ticed or kept away or have been detained and prevented from attend-
7 ing the court by illness or inevitable accident.
1 Section 62. The court may refuse to receive a plea in abate- verification
2 ment or other dilatory plea to an indictment, until its truth has been abatement.
3 proved by affidavit or other evidence. p. s. 213, §39. g. 1. m' I li'.
1 Section 63. In a plea of autrefois acquit or autrefois convict, Fprmofpiea
01 former
2 an allegation that, at a certain sitting of a certain court, which acquittal, etc.
3 shall be set forth, the defendant was lawfully acquitted or con- p. s\ 213', § 40.
4 victed, as the case may be, of the same crime with which he is nibs's5 200.
5 again charged shall be sufficient.
G
1 Section 64. If an issue of fact is joined upon an indictment, commission to
2 the court may, upon application of the defendant, grant a commis- nesses.
3 sion to examine any material witnesses residing out of this common- g! s'. 171! § 32!
4 wealth, in the same manner as in civil causes ; and the prosecuting 5 Met. 428. '
5 officer may join in such commission, and may name any material
6 witnesses to be examined on the part of the commonwealth.
1 Section 65. When such commission is issued, the interroga- — nowexe-
2 tories to be annexed thereto shall be settled and the commission tionfh'owused.
3 executed and returned as is provided in relation to commissions in q\ |; ^ 1 1|;
4 civil cases, and the depositions taken thereon and returned shall be p- s. 213, § 42.
5 read in the same cases, with the like effect, and subject to the same
6 exceptions, as in civil cases ; but if the defendant on his trial de-
7 clines to use the deposition so taken, the prosecuting officer shall
S not, without the defendant's consent, make use of any deposition
9 taken on behalf of the commonwealth.
1 Section Q6. No proceedings against a person for a crime shall £0fDaradby8
2 bar a civil action which might otherwise be maintained by a person £^mmia8pro"
3 who is aggrieved by the commission of the crime. i85i, 151, §6.
1856, 123, § 6. G. S. 171, § 34. P. S. 213, § 43.
1 Section 67. The provisions of this chapter, and the forms Effect of an.
2 hereto annexed, shall apply as well to complaints as to indictments, iI^^^Ui
3 and such forms shall be sufficient in cases to which they are appli- 2> 28-
4 cable. In other cases, forms as nearly like the forms hereto annexed
5 as the nature of the cases and the provisions of law will allow may
6 be used ; but any other form of indictment or complaint which is
7 authorized by law may be used.
1846
INDICTMENTS AND PEOCEEDINGS BEFORE TRIAL. [CHAP. 218.
Forms of
pleadings.
Caption and
commence-
ment of in-
dictment.
SCHEDULE OF FORMS OF PLEADINGS.
Caption and Commencement of Indictment.
commonwealth of massachusetts.
(Suffolk,) to wit :
At the Superior Court holden at (Boston,) within and for the county of
(Suffolk,) for the transaction of criminal business, on the day of
in the year of our Lord one thousand, etc.
The jurors for the said Commonwealth on their oath present
Caption and
commence-
ment of com-
plaint.
Caption and Commencement of Complaint.
(To a Police, District or Municipal Court.)
COMMONWEALTH OF MASSACHUSETTS.
(Suffolk,) to wit:
To the court of holden at for the transaction of criminal
business, within the county of , A. B. of
wealth of Massachusetts on the day of
complains that
(To a Trial Justice.)
To A. B., a Trial Justice in and for the county of
of Massachusetts, C. D. of etc. (as in form above)
in behalf of the Common-
in the year, etc., on oath
and Commonwealth
Abduction.
B.L.212,§§1,2.
Abortion.
R. L. 212, § 15.
Accessory
before the fact,
R. L. 215, § 2.
Accessory-
after the fact.
R. L. 215, § 4.
(To a Justice of the Peace commissioned to Issue Warrants.)
To A. B., Justice of the Peace in and for the county of and Common-
wealth of Massachusetts, designated and commissioned to issue warrants in crim-
inal cases, C. D. of etc. (as in form above) .
(If the statute requires a particular person to make complaint, this should be
alleged.)
Abduction. — That A. B. did fraudulently and deceitfully entice (and take
away) one C. D., an unmarried female under the age of sixteen years, from the
house of her father (or guardian, etc., as the case may be), without the consent
of the said father (or guardian, etc., as the case may be), under whose care and
custody said CD. was living, for the purpose of effecting a clandestine mar-
riage of said C. D. without the consent of her said father (or guardian, etc.,
as the case may be) .
That A. B. did fraudulently and deceitfully entice (and take away) C. D., an
unmarried woman of a chaste life from her father's house (or if elsewhere, state
it, as the case may be) , for the purpose of jDrostitution (or for the purpose of
unlawful sexual intercourse with her) at a house of ill fame (or assignation or
elsewhere, as the case may be) .
Abortion. — (1) That A. B., with intent to procure the miscarriage of C. D.,
did unlawfully administer to her (or advise, or prescribe for her, or cause to be
taken by her), a certain drug (medicine or other noxious thing, as the case
may be).
If the woman dies, add " and in consequence thereof, said C. D. died."
(2) That A. B., with intent to procure the miscarriage of C. D., did unlaw-
fully use a certain instrument upon the body of said C. D., and in consequence
thereof said C. D. died.
(3) That A. B., with intent to procure the miscarriage of C. D., did unlaw-
fully do certain things (naming them) to (or upon the body of) said C. D.
(Charge principal felony and proceed.)
Accessory before the fact. — That A. B., before the said felony was committed,
did incite, procure, aid, counsel, hire or command the said (principal) the said
felony to do and commit.
(Charge principal felony and proceed.)
Accessory after the fact. — That A. B. afterwards, well knowing the said
C. D. to have committed the felony aforesaid, did harbor, (conceal, maintain,)
or assist said C. D., with intent that said C. D. should avoid or escape (deten-
tion, arrest,) trial, or punishment; the said A. B. not standing in the relation
of husband or wife, parent or grandparent, child or grandchild, brother or
sister, by consanguinity, affinity or adoption to the said CD.
Chap. 218.] indictments and proceedings before trial. 1847
Adultery. — (1) That A. B. and C. D., a married -woman, they not being Adultery,
married to each other, did commit adultery with each other. R- L- 212> § 10-
(2) That A. B., a married man, did commit adultery with CD., they not
being married to each other.
Affray. — That A. B. and C. D. did make an affray. Affray.
Armed with dangerous weapon when arrested. — (1) That A. B., while Armed with
being lawfully arrested on a sufficient warrant on a criminal charge, was armed dangerous
with a dangerous weapon, to wit, a slung-shot (or other dangerous weapon as arrested,
the case may be) . R. L. 211, § 9.
(2) That A. B., while committing the crime of murder, was lawfully arrested
by C. D., sheriff of said county, and when so arrested was armed with, and had
on his person, a certain dangerous weapon (a slung-shot, etc., as the case may
be).
Arson. — That A. B. wilfully and maliciously did burn the dwelling house of Arson.
C. D. in in said county. f; t' 208* §§ *'
That A. B. wilfully and maliciously did burn a building adjoining the dwell-
ing house of C. D. in in said county.
That A. B. wilfully and maliciously did set fire to a building in by
the burning whereof the dwelling house of C. D. was burned.
That A. B. wilfully and maliciously, in the night time, did burn —
(1) A meeting house (church, town house, etc.) in in said county,
erected for public use.
(2) A banking house (warehouse, etc.) of C. D. in in said county, of
the value, with the property therein, of one thousand dollars and not the prop-
erty of (the defendant) .
(3) A barn (stable, shop or office) of C. D., in in said county, the
same being there within the curtilage of the dwelling house of said CD.
That A. B. wilfully and maliciously did burn a building, by the burning
whereof (1), (2), or (3) was burned in the night time.
That A. B. wilfully and maliciously did burn a banking house (or other
structure mentioned in the statute, as the case may be) , in in said county
of C D.
Assault and battery. — That A. B. did assault and beat C D. Assault and
Assault to maim, etc. — That A. B. did assault C D., with the malicious intent Assault to
to maim (or disfigure) said C D. by cutting out his tongue (or other facts re- maim, etc.
quired by the nature of the case) . R- L- 207> § 15-
Assault to murder. — That A. B. did assault C. D., with intent to murder him. Assault to
R. L. 207, § 15. murder-
Assault to rape. — That A. B. did assault C. D., with intent to commit rape Assault to
UP°nter- £PL. 207,5 24.
That A. B. did assault C D., a female child under the age of sixteen years,
with intent unlawfully and carnally to know and abuse her.
Assault to rob. — That A. B., being armed with a dangerous weapon, did d8^")^0/^
assault C D., with intent to rob him (or to murder him). '
Assault upon an officer. — That A. B. did assault and beat C D., who was a Assault upon
police officer of the (city of Boston) (or whatever the fact may be), and who an°fficer.
was also in the lawful discharge of his duties as such officer, as said (defendant)
well knew, [(and knowingly resisted and obstructed him in the discharge of his
lawful duties.) This clause may be added if facts require] .
Assuming to be an officer. — That A. B. did falsely assume and pretend to one Assuming to
C. D. that he, said A. B., was a police officer of (the city of Boston) (or a con- ]f Jf ^c§ 33
stable of the city of Boston) , and did take upon himself to act as such officer,
and did (state what he did if desired) .
Attempt to break and enter. — That A. B. did attempt to break and enter a Attempt to
certain building in said (Boston) of one C D., in the (night) time with intent
therein to commit larceny, and in such attempt did (set out the overt act relied
on) ; but did fail in the perpetration of said attempted offence (or was intercepted
and prevented in the execution of said attempted offence) .
Attempt to commit crime. — That A. B. did attempt to commit larceny of the Attempt to
property of (another) , (or such other crime as may be intended to be charged) , r "if"^ r§™e'
and in such attempt did (set out the overt act relied on) , but did fail in the per- 177 Mass.' 267.
petration of said attempted offence (or was intercepted and prevented in the
execution of said attempted offence) .
Attempt to steal from person. — That A. B. did attempt to steal from the per- Attempt to
son of CD., and in such attempt did put his hand against the person and into pteera8'onrom
the pocket of the said CD., but did fail in the perpetration of said attempted r.l. 215, §6.
break and
enter.
1848
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [CHAP. 218.
Breaking,
entering, etc.
R. L. 208, §§ 16-
19.
Breaking
glass.
R. L. 208, § 100.
Burglarious
implements.
R. X. 208, § 41.
Burglary, etc.
R. L. 208, §§ 14,
15.
Burning to
defraud insur-
ance company,
R. L. 208, § 10.
177 Mass. 267.
Common
drunkard.
Common
night walker.
R.' L. 212, § 46.
Concealing
mortgaged
personal
property.
R. L. 208, § 68.
Conspiracy.
Cruelty to
animals.
R. L. 212, § 70.
offence (or was intercepted and prevented in the execution of the said attempted
offence) .
Breaking, entering, etc. — That A. B. did break and enter in the night time
the building (ship or vessel) of one X., situated in said (Boston), with intent
therein to commit murder (rape, robbery, etc.).
That A. B. did break and enter (or entered in the night time without break-
ing) a building (ship or vessel) of one X., in said (Boston), with intent (as
above) , the said X. (or other person) who was lawfully therein, being put in
fear.
That A. B. did break and enter (or entering in the night time without break-
ing) a railroad car situated in said (Boston) , of the (name of the railroad) , with
intent therein to commit larceny.
(1) That A. B. did enter in the night time the dwelling house of one X., in
said (Boston), with intent therein to commit larceny (murder, etc., as the case
may be).
(2) That A. B. did break and enter a building (ship or vessel) of one X., in
said (Boston), with intent therein, etc. (as above).
Breaking glass. — That A. B. did wantonly (or maliciously) break certain
panes of glass in and part of a certain building, the property of C. D. in said
(Boston) .
Burglarious implements. — That A. B. knowingly did have in his possession
certain machines, tools and implements adapted and designed for cutting
through, forcing and breaking open buildings, rooms, vaults, safes (and other
depositories), in order to steal therefrom such money and other property as
might be found therein, said A. B. knowing said machines, tools, and imple-
ments to be adapted and designed for the purpose aforesaid, and intending to
use and employ them therefor.
Burglary, etc. — That A. B. in the night time did break and enter the dwell-
ing house of C. D., situated in said (Boston), with intent therein to commit
larceny (murder, rape, or robbery, as the case may be).
(If desired add actual larceny in the building.)
Or,
That A. B. did enter the dwelling house of one X., situated in said (Boston),
with intent therein to commit larceny, and after having so entered with said in-
tent, did break said dwelling house in the night time, X. being lawfully therein,
and said A. B. being armed with a dangerous weapon, at the time of such entry :
(or such breaking) : (or arming himself with a dangerous weapon in said
house) : (or did make an assault on said X., who was lawfully therein).
That A. B. did break and enter the dwelling house of one X., in said (Boston),
in the night time with intent therein to commit larceny (murder, etc., as the case
may be) .
Burning to defraud insurance company. — That A. B. did burn a certain
building in in said county, or certain (goods, wares, and merchandise
or other chattels — name the property) which was (or were) at the time of such
burning insured in the Insurance Company, a corporation duly established
by law, against loss (or damage) by fire, with the intent thereby to injure the
said insurer.
Common drunkard. — That A. B., during the three months next before the
making of this complaint, was a common drunkard. r. l. 212, § 46.
Common night walker. — That A. B., during the three months next before the
making of this complaint was a common night walker, habitually walking in
the streets in the night time for the purpose of prostitution.
Concealing mortgaged personal property. — That A. B. did mortgage to X. in
due form of law certain personal property (setting out the mortgaged prop-
erty) , and that afterward, the said mortgage being in full force and effect, and
the said X. remaining the owner thereof (if such be the fact), said A. B. did
remove and conceal the said property with fraudulent intent to place the same
beyond the control of the said X.
Conspiracy. — (1) That A. B. and C. D. conspired together to murder one
E. F.
(2) That A. B. and CD. conspired together to commit rape upon E. F.
(3) That A. B. and C. D. conspired together to steal the property, money,
etc., of E. F.
Cruelty to animals. — (1) That A. B. did overdrive (overload) (drive when
overloaded) (overwork) (torture) (torment) (deprive of necessary sustenance)
(cruelly beat) (cruelly mutilate) (cruelly kill) a certain horse.
Chap. 218.] indictments and proceedings before trial. 1849
(2) That A. B. did cause and procure one C. D. to overdrive, etc., a certain
horse.
(3) That A. B. having the charge and custody of a certain horse did inflict
unnecessary cruelty upon it.
(4) That A. B. having the charge and custody of a certain horse did un-
necessarily fail to provide it with proper food, drink, shelter and protection from
the weather.
Disorderly house. — That A. B., during the three months next before the find- Disorderly
ing of this indictment, at said (Boston) did keep and maintain a certain and E01Lei6i, § a.
common, noisy, ill-governed and disorderly house, resorted to for the purpose
of drinking, quarreling, making great noises, and breaking and disturbing the
peace, to the common nuisance of all the people.
That A. B., during the three months next before the finding of this indictment, R- L- 212> § 19.
did keep at said (Boston), a certain house of ill fame, resorted to for the purposes
of prostitution and lewdness.
Drunkenness. — That A. B. was, by the voluntary use of intoxicating liquor, Drunkenness,
drunk. E- L- 212> § 39.
Escape. — That A. B., being lawfully imprisoned in the House of Correction, Escape.
in said county, did break therefrom and escape. r. l. 210, § 17.
Escape from state prison. — That A. B. was a convict in the State Prison in Escape from
said county, under sentence for a limited time, to wit, for (not less than xtr, oi^fi^
nor more than years), and, while a convict as aforesaid, did escape from ' '
said prison.
Exposure of person. — That A. B., in a public place in said (Boston), wherein Exposure of
were great numbers of people, indecently did expose to the view of the said Person-
people his body and person naked and uncovered.
Forged indorsement. — That A. B. did forge a certain indorsement in and upon Forged
the back of, and as a part of, a certain promissory note, with intent to injure indorsement.
and defraud.
(The purport or substance of the note and indorsement may be set forth.)
Forgery. — That A. B., with intent to injure and defraud, did forge a certain Forgery,
instrument purporting to be, etc. (give the name of the instrument, description, E- L- 209> § 1-
tenor or substance as the pleader chooses) .
Fornication. — That A. B. did commit fornication with C. 1)., a single woman. Fornication.
Gaming. — That A. B., during the three months next before the finding of this R- L-212> § u-
indictment, at said (Boston) , did keep and maintain a certain common nuisance, Rami 101 § 7
to wit, a tenement resorted to and used for illegal gaming.
House of ill fame. — That A. B., during the three months next before the House of
finding of this indictment, at said (Boston) , did keep and maintain a certain ten- ^ j^ioi s k
ement resorted to for purposes of prostitution and lewdness, to the common
nuisance of all the people.
Idle and disorderly person. — That A. B., during the three months next before idle and dis-
the making of this complaint, was an idle and disorderly person, and neglected R^ail^s &ut
all lawful business and habitually misspent his time by frequenting houses of
ill fame, gaming houses, and tippling shops.
Incest. — That A. B., being the father of C D., a single woman (or state incest,
such relationship as will show the parties to be within the degree of consan- E- L- 212> § 13-
guinity within which marriages are prohibited or declared by law to be incestu-
ous and void), did have carnal knowledge of the body of said CD.
(A. B. being married to another woman than said C. D., if such be the fact,
and it be desired to cover adultery.)
Larceny. — (1) That A. B. did steal one horse of the value of more (or Larceny,
less, as the case may be) than one hundred dollars, of the property of C. D. E- L- 208> § 26>
Or,
(2) That A. B. did steal six cows, each of the value of twenty dollars, of
the property of C. D.
Larceny from a conveyance. — That A. B. did steal from a certain convey- Larceny from
ance, to wit, the wagon of one C. D. one book of the value, etc., of the property gf^lws*?^.'
of C. D., the said C. D. being a common carrier (or a person carrying on the
express business), and said conveyance being used by the said CD. in said
business.
Larceny from realty. — That A. B., by a trespass, with intent to steal, did Larceny from
take and carry away from the realty, to wit, from the building of CD., in r^l^os, § 35.
said (Boston), ten pounds of lead pipe, each of the value of, etc., of the prop-
erty of C D., against his will, the said lead pipe being annexed to and a part
of said building.
1850
INDICTMENTS AND PROCEEDINGS BEFORE TRIAL. [CHAP. 218.
Larceny in
building.
R. L. 208, § 20.
Larceny of
beast or bird.
R. L. 208, § 37.
Lewd and
lascivious
cohabitation.
R. L. 212, § 12.
Lewdness.
R. L. 212, § 46.
Liquor, ex-
posing and
keeping.
Liquor. — Sale.
R.L. 101, §6.
Lord's day.
R. L. 98, § 2.
Lottery.
R. L. 214, § 1.
Maiming, etc.
R. L. 207, § 14.
Malicious
injury.
R. L. 208, §116.
Malicious in-
jury to real
property.
Manslaughter.
R. L. 207, § 13.
Manslaughter
by negligence.
Murder.
R. L. 207, § 1.
Neglect of wife
or minor child.
R. L. 212, §§ 45,
48.
Obtaining sig-
nature by false
pretences.
R. L. 208, § 27.
Open and gross
lewdness.
R. L. 212, § 12.
Larceny in building. — That A. B. did steal (one coat of the value of more
than or less than ), of the property of X., in a certain building
(ship or vessel) of the said X., situated in said (Boston).
Larceny of beast or bird. — That A. B. did steal a certain bird , of
the property of C. D., which bird was ordinarily kept in confinement.
Lewd and lascivious cohabitation. — That A. B. and CD., not being married
to each other, did during one month next before the finding of this indictment,
(or such time as the evidence requires) , lewdly and lasciviously associate and
cohabit together.
Lewdness. — That A. B., during the three months next before the finding of
this indictment, was a lewd, wanton and lascivious person in speech and be-
havior.
Liquor. — That A. B. did expose and keep for sale intoxicating liquors with
intent unlawfully to sell the same. R. L. 100, § l.
Liquor. — Sale. — That A. B. unlawfully did sell intoxicating liquors to C. D.
That A. B., during the three months next before the finding of this indictment,
without legal authority, did keep and maintain a certain tenement in said (Bos-
ton) , by him used for the illegal sale and illegal keeping for sale of intoxicating
liquor, to the common nuisance of all the people.
Jjord^s day. — That A. B., on the day of , in the year of our Lord
one thousand, etc., that day being the Lord's Day, did keep open his shop in
said (Boston), for the purpose of doing business therein.
Did labor (business, or work), the same not being a work of necessity or
charity.
Lottery. — (1) That A. B. did set up and promote a lottery for money.
(2) That A. B. was concerned in the setting up (managing, or drawing) of
a certain lottery for money.
(3) That A. B. did dispose of a certain horse of the value of ten dollars to
C. D., by way of a lottery.
That A. B., under the pretext of the sale of certain property, to wit: (state
the property) to C. D., did dispose of to said CD. certain other personal prop-
erty, to wit: (state the property) with intent of said A. B., to make the said
disposal of said (projaerty) dependent upon a chance by lot, and that such chance
was made an additional inducement to the disposal and sale of said (property).
Maiming, etc. — That A. B. did assault C D., and with malicious intent to
maim and disfigure said CD., did cut out his tongue.
Malicious injury. — That A. B. did wilfully and maliciously injure (or de-
stroy) certain personal property (name it and allege value) of C D.
Malicious injury to real properly . — That A. B. did wilfully (or maliciously)
destroy (deface, or mar) a certain building of C. D. in said (Boston).
R. L. 208, § 88.
Manslaughter. — That A. B. did assault and beat C D., and by such assault
and beating did kill CD.
Manslaughter by negligence. — That A. B., being under the legal duty, and
being of sufficient ability to provide CD., who was his wife, with sufficient food
and drink for her sustenance and maintenance did neglect and refuse so to do ;
by reason whereof said CD., being unable to provide sufficient food and drink
for herself, became and was mortally sick and died.
Murder. — That A. B. did assault and beat C D., with intent to murder him
(by striking him over the head with an axe) , and by such assault and beating,
did (kill and) murder CD. (and the jurors further say that the defendant is
guilty of murder in the second degree and not in the first degree) . This may
be added if murder in the first degree is not alleged.
Neglect of wife or minor child. — That A. B., during the three months next
before the making of this complaint, being of sufficient ability, did unreasonably
neglect to provide for the support of C D., his lawful wife.
Obtaining signature by false pretences . — That A. B. designedly and with in-
tent to defraud did falsely pretend to C. D., that, etc., etc., and by means of said
false pretences, which said C D. believed and relied upon, did obtain the
signature of said C D. to a certain written instrument, the false making whereof
would be punishable as forgery, to wit, a certain promissory note (describe as
in forgery) ; that the pretences so made to C D. were false and were known to
be false by the said A. B. at the time when he so made them.
Open and gross lewdness. — That A. B. was guilty of open and gross lewd-
ness and lascivious behavior in the presence of C D.
Chap. 218.] indictments and proceedings before trial. 1851
Perjury. — That in a proceeding in the course of justice before the (set forth Perjury,
the tribunal) , on an issue within the jurisdiction of said court duly joined, and ' ' 210' *
tried before a jury of the county between X. as plaintiff and Y. as defendant,
A. B. was lawfully sworn as a witness.
Whereupon it became and was material to said issue whether (say what) and
to this the said A. B. did wilfully and corruptly testify and say in substance and
effect that (say what) ; all his said testimony as above set forth being false, as
he well knew.
Polygamy. — (1) That A. B. unlawfully married C. D., the said A. B. Polygamy,
having at the time he so unlawfully married a lawful wife living other than said ' ' 212' ^ 11-
C. D.
(2) That A. B., having a lawful wife living, to wit : X., did at (state place)
unlawfully marry and have for his wife one C. D., after which the said A. B.
did, while said X. was still living, on, at, etc., unlawfully cohabit and continue
to cohabit in (Boston) with the said C, D.
Rape. — (1) That A. B. did assault C. D., with the intent to commit rape Rape,
upon her; and her, the said CD., did commit rape upon. R. X,. 207, § 22.
(2) That A. B., in and upon C. D., a female child under the age of sixteen
years, did make an assault with the intent her, the said CD., unlawfully and
carnally to know and abuse; and her, the said CD., did unlawfully and car-
nally know and abuse.
Receiving stolen property '. — That A. B., one watch of the value of Receiving
dollars, the property of one C D., then lately before stolen, did buy, receive, Irty.11 pr°P*
and aid in the concealment of, the said A. B. well knowing the said property to E- L. 208, § 51.
have been stolen as aforesaid.
Rescue. — That A. B., did forcibly rescue and take out of the lawful custody Rescue,
of E. F. one C D., the said C D. being a prisoner arrested by and held in the R- L> 210> § u-
lawful custody of E. F., upon the charge of the crime of (larceny), the said
E. F. being a police officer of (said city), duly authorized to arrest and hold in
custody the said C D. upon the charge aforesaid.
Robbery. — That A. B. did assault CD. with intent to rob him, and thereby Robbery.
did rob and steal from the person of said C D. (mention the property) 6f the R- L- 20V, § 19.
property of said CD.
Sodomy, etc. — That A. B. did commit the abominable and detestable crime Sodomy, etc.
against nature with a (state the person or beast) . R- L- 212> § 25-
Stubborn child. — That A. B., a minor, during the three months next before stubborn
the making of this complaint, was a stubborn child, and stubbornly refused to j?1^ '212 s 46
submit to the lawful and reasonable commands of CD., whose commands said
A. B. was bound to obey.
Threats to extort. — That A. B. did verbally (or by a written or printed com- Threats to
munication), maliciously threaten one CD., to accuse him of a crime (name Rxt£irt207 525
it), with the intent thereby to extort money from the said CD.
Unlawful appropriation. — That A. B. did wilfully, mischievously, and Unlawful
without right take, drive and use a certain horse, the property of one CD., r.x. 2C8, § 54."
without the consent of the said owner of said horse, or any person having the
legal custody, care or control of the same.
Unnatural act. — That A. B. did commit an unnatural and lascivious act with Unnatural act.
one CD. R.L.212)§27.
Uttering. — That A. B., with intent to injure and defraud, did utter and uttering,
publish as true a certain forged instrument (describe as in forgery), well *
knowing the same to be forged.
Vagabond. — That A. B., for three months next before the making of this vagabond,
complaint, was a vagabond, and wandered about from place to place, neglect- R- L- 212> §§ 46>
ing all lawful calling and employment, and not having any home or means of
support.
Vagrant. — That A. B., during the three months next before the making of Sa£ra2^ 659
this complaint, was an idle person who, not having visible means of support,
lived without lawful employment, (and wandered abroad and visited tippling
shops, and lodged in out-houses, and in the open air, and did not give a good
account of himself, and wandered abroad and begged, and went about from door
to door and placed himself in public places to beg and to receive alms) .
(The complaint may stop at the word "employment", or such part of the
matter in parentheses may be added as the case requires.)
1852
TRIALS AND PROCEEDINGS BEFORE JUDGMENT. [CHAP. 219.
CHAPTER 219
OF TRIALS AND PROCEEDINGS BEFORE JUDGMENT.
Trial list of
criminal cases.
1870, 290.
P. S. 214, §§1,2.
1884, 193.
1889, 432.
Section 1. At each sitting of the superior court held for the 1
trial of criminal cases, the district attorney, before the trials begin, 2
shall make and deposit with the clerk, for the inspection of parties, 3
a list of all cases to be tried at that sitting, and the cases shall be 4
tried in the order of such trial list, unless otherwise ordered by the 5
court for cause shown in each case. Cases may be added to such 6
list by direction of the court, upon motion of the district attorney 7
or of the defendant. 8
howetriedfact' Section 2. Issues of fact joined upon an indictment or com- 1
g 1*172' ti' plamt shall, in the superior court, be tried by a jury drawn and 2
p.' s .' 2i4,' § 3." returned in the manner provided for the trial of issues of fact in 3
12 Allen, 168. . ., r .
civil causes. 4
qualifying18" Section 3. A person whose opinions are such as to preclude 1
liari°caise.cap" Dmi from finding a defendant guilty of a crime punishable with 2
S'o'i™' !=• death shall not serve as a juror on the trial of an indictment for 3
G.S>.172, §5. . _ j
r. s.2i4, §7. such crime. 4
Oath of jurors.
C. L. 167, § 3.
1692-3, 35.
1807, 140, § 14.
R. S. 137, § 7.
G. S. 172, § 6.
P. S. 214, § 8.
5 Gray, 275.
Section 4,
jurors for the trial of all criminal cases which are not capital : —
The following oath shall be administered to the i
You shall 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.
The following oath shall be administered to the jurors for the 3
trial of capital cases : — 4
You shall well and truly try, and true deliverance make, between the com-
monwealth and the prisoner at the bar, whom you shall have in charge, accord-
ing to your evidence ; so help you God.
juTOrIsiation of Section 5. A juror who is conscientiously scrupulous of taking 1
1807, wo, § 14. either of the oaths above prescribed shall be allowed to affirm. 2
R. S. 137, § 8. G. S. 172, § 7. P. S. 214, § 9.
Presence of
defendant at
trial, etc.
R. S. 137, § 9.
G. S. 172, § 8.
P. S. 214, § 10.
121 Mass. 371.
163 Mass. 458.
165 Mass. 138.
Section 6. A person who is indicted for a felony shall not be 1
tried unless he is personally present during the trial ; but if in- 2
dieted for a misdemeanor, he may, at his request and by leave of 3
the court, be tried in his absence, if represented by an attorney 4
duly authorized for that purpose. 5
Burden on de-
fendant to
prove license.
1844, 102.
1859, 160.
G. S. 172, § 10.
1864, 121.
Section 7. A defendant in a criminal prosecution who relies 1
for his justification upon a license, appointment or authority shall 2
prove the same ; and, until he has proved it, the presumption shall 3
be that he is not so authorized. p. s. 214, §12. 4
100 Mass. 204.
103 Mass. 59.
108 Mass. 294.
110 Mass. 107, 357.
119 Mass. 206.
122 Mass. 37.
138 Mass. 490.
141 Mass. 420.
Chap. 219.] trials and proceedings before judgment. 1853
1 Section 8. The defendant in a prosecution for writing or pub- Justification in
. . ^ & r cases ot libel.
2 iishino; a libel may introduce in evidence the truth of the matter ]s26» i°~> § i-
3 contained in the publication charged as libellous, and the truth 1855,396.' J
4 shall be a justification, unless actual malice is proved. 172, § ii!' § "'
P. 8. 167, §80; 3 Pick. 304. 124 Mass. 340. 151 Mass. 127.
214, § 13. 9 Met. 410. 136 Mass. 441.
1 Section 9. In the prosecution of crimes which relate to or affect 0^°°^ of
2 real or personal estate, it shall be sufficient, and shall not be a vari- property.
3 ance, if it is proved on the trial that, at the time when the crime Q- s. 172; § 12!
4 was committed, either the actual or constructive possession or the 5 Alien, 517. '
5 general or special property in the whole or any part of such real or Hsm&sI1^,
6 personal estate was in the person or community alleged to be the i^'Mass. 552.
7 Owner thereof. 108 Mass. 466, 469.
110 Mass. 503. 114 Mass. 277. 164 Mass. 587. 172 Mass. 187.
1 Section 10. If a crime is alleged to have been committed in Nighttime
2 the night time, night time shall be deemed the time between one ll^fi'
3 hour after sunset on one day and one hour before sunrise on the p; f ; Hf f *f;
4 next day ; and the time of sunset and sunrise shall be ascertained 2 Cush- 589-
5 according to mean time in the place where the crime was com-
6 mitted.
1 Section 11. If a person who is indicted for a capital crime is, Disposition
2 at the time appointed for the trial, or at any time prior thereto, prisoner6
3 found by the court to be insane, it may cause him to be removed 1891> 379> § 12-
4 to a state insane hospital for such term and under such limitations
5 as it may order.
1 Section 12. If a person who is under indictment is, at the insane pris-
2 time appointed for the trial, found by the court to be insane, it tohospitaifent
3 may cause him to be removed to a state insane hospital for such of l.m, § u.
4 term and under such limitations as it may order. p. s.214, §16.
1 Section 13— The jury shall try, according to established forms Jury to decide
2 and principles of law, all criminal causes which are committed to isOT^wo.^ii".
3 them, and, after having received the instructions of the court, shall (ffi'.m, § 15.
4 decide, in their discretion, by a general verdict, both the fact and ^'fjck14^17"
5 the law involved in the issue, or they may, at their election, find i° Met. 263.
6 a special verdict. The court shall superintend the course of the 100 Mass. lie.
• • . 116 Mass 37 39
7 trials, decide upon the admission and rejection of evidence upon all 125 Mass." 203."
8 questions of law which are raised during the trials and upon all col- 147 Mass! 423.
9 lateral and incidental proceedings, and shall also charge the jury. 149 Mas8- 68-
1 Section 14. If a person who is indicted for a felony is ac- Proceedings on
2 quitted by the verdict of part of the crime charged, and is convicted pU^Tof crime
3 of the residue, such verdict may be received and recorded by the i^ll^n.
4 court, and thereupon the defendant shall be adjudged guilty of the Rp|'.8i37f §11.
5 crime, if any, which appears to the court to be. substantially charged p' f" |if' I if'
6 by the residue of the indictment, and shall be sentenced and punished 1 Met. 262.
7 accordingly. 2 Allen, 163. 97 Mass. 59. 109 Mass. 349.
115 Mass. 150. 142 Mass. 454. 162 Mass. 466, 495.
1 Section 15. If a person is acquitted by the jury by reason of ofpereon™*
2 insanity, the jury shall state that fact to the court, which, if satisfied ^oflnsanu"
1854
TRIALS AND PROCEEDINGS BEFORE JUDGMENT. [CHAP. 219.
1834* 156 §§3-3' ^a^ ke is insane, may order him to be committed to a state insane 3
r. s. 137, § 12. hospital under such limitations as may seem proper. 4
G. S. 172, § 17. 1862, 223, § 17. P. S. 214, § 19.
Commitment
of person
acquitted of
murder, etc.,
by reason of
insanity.
1873, 227.
P. S. 214, §§ 20,
21.
1895, 390, § 7.
136 Mass. 4S9.
Section 16. If a person who is indicted for murder or man- 1
slaughter is acquitted by the jury by reason of insanity, the court 2
shall order him to be committed to a state insane hospital during 3
his natural life, and he may be discharged therefrom by the gov- 4
ernor, with the advice and consent of the council, when he is satis- 5
fied, after a hearing, that such person may be discharged without 6
danger to others. 7
a^yTum^fOTin- Section 17. An insane male prisoner who is described in sec-
18835 i48m§2als" tions eleven, twelve, fifteen and sixteen may be committed or
removed to the state asylum for insane criminals instead of to a
state insane hospital if, in the opinion of the court, he has been a
criminal or has been vicious in his life, and if he has been held on
a charge of felony, the expense of his support in a state insane hos-
pital or in the asylum for insane criminals or in any state charitable
institution to which he may be transferred shall be paid by the
commonwealth.
1889, 90.
1895, 390, § 4.
136 Mass. 489.
151 Mass. 96.
[lOp. A.G.
322.]
1
2
3
4
5
6
7
8
9
Person acquit-
ted, etc., not
liable for fees.
R. S. 137, § 13.
G. S. 172, § 18.
P. S. 214, § 22.
Section 18. No prisoner or person under recognizance, who is 1
acquitted by verdict or discharged because no indictment has been 2
found against him, or for want of prosecution, shall be liable for 3
any costs or fees or for any charge for subsistence while he was in 4
custody. 5
Discontinu-
ance of prose-
cution under
by-law.
1853, 179, § 2.
G. S. 172, § 20.
P. S. 214, § 23.
Section 19. In a prosecution before a police, district or mu- 1
nicipal court or trial justice under the by-laws of a city or town, 2
the city solicitor, town counsel or other person who is appointed 3
in behalf of such city or town to represent it may enter a nolle 4
prosequi or do anything relative to such prosecution which may be 5
done by the district attorney. 6
Counsel for
inmates of
reform school.
1877, 184.
P. S. 214, § 24.
Section 20. The court may assign counsel to an inmate of any 1
reform school who is to be tried for an offence alleged to have been 2
committed therein ; and shall, upon application, order the super- 3
intendent or other officer of such institution to produce at the trial 4
such inmates thereof as, in the opinion of the counsel for the de- 5
fence, certified in writing, or of the judge, in the absence of coun- 6
sel, are material witnesses for the defence ; and such officer shall 7
obey the order and provide for the custody and safe return of such 8
inmates. 9
Objection to
formal defects,
when to be
taken.
1864, 250, § 2.
P. S. 214, § 25.
11 Allen, 238.
13 Allen, 550,
558.
98 Mass. 6.
105 Mass. 176.
Section 21. An objection to a complaint, indictment or other 1
criminal process for a formal defect which is apparent on the face 2
thereof shall be taken by demurrer or by motion to quash, assigning 3
specifically the objections relied on, before a judgment has been 4
rendered by a police, district or municipal court or a trial justice, 5
or before a jury has been sworn in the superior court. 6
108 Mass. 457.
110 Mass. 103.
116 Mass. 14.
126 Mass. 235, 474.
131 Mass. 584.
133 Mass. 383.
135 Mass. 530.
136 Mass. 155.
138 Mass. 484.
154 Mass. 405.
157 Mass. 462.
170 Mass. 228.
Chap. 219.] trials and proceedings before judgment. 1855
1 Section 22. Whoever is convicted of a crime before a police, Appeals in
a j. , . , • • i i. a • i ■• j.' ixj.1 • criminal cases.
2 district or municipal court or trial justice may appeal to the superior 1783, 5i, § 3.
3 court. The case shall be entered in the superior court on the re- r.3s'.805,§§28;
4 turn day next after the appeal is taken, and the appellant shall be flil,3^,1! 82.§ 1-
5 committed to abide the sentence of said court until he recognizes to J?4?? 3iVc '« »-,
O he. o. lib, § 32;
6 the commonwealth, in such sum and with such surety or sureties as p3's§§15Vc39.
7 the court or trial justice requires, with condition to appear at the i55,-§§58' ei. '
8 superior court on said return day and at any subsequent time to 1894)431!
9 which the case may be continued, if not previously surrendered and ^Gray,0^3'
10 discharged, and so from time to time until the final sentence, order 145 Mass- ^
11 or decree of the court thereon, and to abide such final sentence,
12 order or decree, and not depart without leave, and in the mean time
13 to keep the peace and be of good behavior. The appellant shall
14 not be required to advance any fees upon claiming his appeal or in
15 prosecuting the same.
1 Section 23. Upon such appeal, said courts and trial justices Recognizance
2 shall have the like power to bind witnesses in the case by recogni- i85M3o.88<
3 zances as they have by chapter two hundred and seventeen when a p.l.'ilf.'fii;
4 prisoner is admitted to bail or committed. is93, 396, § 48. 1894, 431. 155> § m-
1 Section 24. Upon such appeal, the clerk of the police, district of^erf1011
2 or municipal court shall transmit to the clerk of the superior court R.s.ias, §2.
3 a copy of the complaint and of the record of conviction, the original i862,'2i7,'§ 3.'
4 recognizances, a list of the witnesses and a statement of the ex- i893,'396,'§49.'
5 penses ; and no other papers shall be required to be transmitted. i4Grafy,"399.
97 Mass. 541. 113 Mass. 206. 117 Mass. 150. 140 Mass. 481. 147 Mass. 578.
1 Section 25. Upon such appeal, the trial justice shall make a copies to be
2 copy of the conviction and other proceedings in the case, and trans- r. s. 138, § 2.
3 mit them with the recognizance and a statement of the expenses to p.'f.'isf.'ffo.
4 the clerk of the superior court. 8 Gray, 482. 11 Gray, 313. 28Metw.§1°*
14 Gray, 399. 97 Mass. 541. 131 Mass. 417. 147 Mass. 539. 155 Mass. 296.
1 Section 26. Upon such appeal, the copies and records sent to statement of
2 the superior court shall contain the details of all fees and expenses i89o,'44o, §10.
3 allowed or paid in the police, district or municipal court or before 1891> 325* § L
4 the trial justice.
1 Section 27. If the appellant fails to enter and prosecute his if appeal not
2 appeal, he shall be defaulted on his recognizance and the superior fanuo bePpe
3 court may impose sentence upon him for the crime of which he i783,e5ic,e§ 3.
4 was convicted, as if he had been convicted in said court, and, if he G.l'.nll!'.
5 is not then in custody, may issue process to bring him into court to ^5f j^' § 12;
6 receive sentence. 1894,431. losMass. 5. 109 Mass. 36i. 160 Mass. 354. 1893, 396, § 50.
1 Section 28. The appellant may, at any time before the copy of ™^awal of
2 the record of conviction has been transmitted to the clerk of the £7f ^4§J-12.
3 superior court, come personally before the court or trial justice from mm**' ri '
4 whose judgment the appeal was taken, and, upon motion, may be 1894,431.
5 permitted by the court or trial justice to withdraw his appeal and
6 abide by the sentence therein. Thereupon the court or trial justice
7 shall order that the appellant comply with the sentence appealed
8 from in the same manner as if it were then first imposed, and the
1856
TRIALS AND PROCEEDINGS BEFORE JUDGMENT. [CHAP. 219.
Withdrawal
if appellant
in jail.
1874, 33, § 2.
P. S. 154, §12;
155, § 64.
1893, 396, § 52.
1894, 431.
Fees allowed
to jailer.
1874, 33, § 3.
P. S. 154, §12;
155, § 65.
1890,328, §2;
440, § 2.
1891, 325, § 1.
1893, 396, § 53.
1894, 431.
sureties who had recognized with the appellant upon his recogni- 9
zance to prosecute his appeal shall be discharged. 10
Section 29. If the appellant is detained in jail for want of 1
sureties to prosecute his appeal, he may give notice to the jailer 2
of his desire to avail himself of the provisions of the preceding sec- 3
tion, and the jailer shall cause him to be produced before the court 4
or trial justice from whose judgment his appeal was taken and the 5
proceedings shall be as provided in the preceding section. 6
Section 30. In such case, compensation shall be allowed and 1
paid by the city or town in which the crime was committed to the 2
jailer for his expenses in the conveyance and custody of the appel- 3
lant, at the same rate as is allowed to officers serving a mittimus. 4
If the appeal was from a sentence to pay a fine, the fees of the jailer 5
shall be paid by the appellant if, after the appeal is withdrawn, he 6
pays the fine as provided in section twenty-eight. 7
Decisions on
plea in abate-
ment final.
1859, 196, § 27.
G.S. 115, §7.
Section 31. Decisions of the superior court upon questions 1
raised upon a plea in abatement to an indictment or complaint 2
shall be final. isso, us. p. s. 153, §8. 3
Appeal to su-
preme judicial
court.
1820, 79, § 4.
1832, 130, § 3.
R. S. 82, § 28;
138, § 5.
1859, 196, § 26.
G. S. 114, § 10.
New trial.
1830, 113, § 3.
1832, 130, § 4.
R. S. 82, § 30;
86, §11; 138,
§10.
1855, 152.
G. S. 173, § 7.
P. S. 214, § 28.
Ill Mass. 441.
123 Mass. 418.
Section 32. A defendant who is aggrieved by a judgment of 1
the superior court which is founded upon matter of law apparent 2
upon the record in any criminal proceeding, except a judgment 3
upon a plea in abatement, may appeal therefrom to the supreme 4
judicial COUrt. P. S. 152, §10. HO Mass. 188. 5
126 Mass. 258. 156 Mass. 63. 157 Mass. 386. 160 Mass. 307.
Section 33. The superior court may, at the sitting in which an 1
indictment is tried, or within one year thereafter, upon motion in 2
writing of the defendant, grant a new trial for any cause for which 3
by law a new trial may be granted or if it appears to the court that 4
justice has not been done, and upon such terms or conditions as the 5
court shall order. 6
Report.
1830, 113, § 4.
1832, 130, § 5.
R. S. 138, § 12.
G. S. 173, § 8.
P. S. 214, § 29.
105 Mass. 468.
126 Mass. 248.
Section 34. If, upon the trial of a person convicted in the 1
superior court, a question of law arises, which, in the opinion of 2
the presiding judge, is so important or doubtful as to require the 3
decision of the supreme judicial court, he shall, if the defendant 4
desires or consents to it, report the case so far as may be necessary 5
to present the question of law arising therein ; and thereupon the 6
case shall be continued to await the decision of the supreme judicial 7
court. 8
Exceptions.
1804, 105, § 5.
1817, 185, § 5.
1820, 79, § 5.
1830, 113, § 4.
1832, 130, § 5.
R. S. 82, § 29;
138, § 11.
1851,261.
1859, 196, §§ 27,
29.
G. S. 115, §§ 7,
8, 10, 11.
1863, 180, § 2.
,1880, 118.
JP, S. 153, §§ 8,
¥10,12,13.
Section 35. Exceptions may be alleged by a defendant in a 1
criminal case who is aggrieved by an opinion, ruling, direction or 2
judgment of the superior court which is rendered upon any ques- 3
tion of law arising at the trial of such case or upon a motion for a 4
new trial, but not upon a plea in abatement. The exceptions shall 5
be reduced to writing and filed with the clerk and notice thereof 6
given to the commonwealth within three days after the verdict or 7
after the opinion, ruling, direction or judgment excepted to is given, 8
unless a further time, not exceeding five days, except by consent of 9
Chap. 220.] judgment and execution. 1857
10 the district attorney, is allowed by the court. The clerk, immedi- if^* |3!' Ill"
11 ately upon the filing of the exceptions, shall present them to the 1895,' 153,' § i."
12 court, and if, upon examination thereof by the presiding justice, 10 Alien, 193.
13 they are found conformable to the truth, they shall be allowed by "9 Mat^ 209.*
14 him. In all cases, the district attorney shall have an opportunity lloMassill;
15 to be heard concerning the allowance of such exceptions. The pro- 156Mass-61-
16 visions of sections one hundred and seven to one hundred and ten,
17 inclusive, of chapter one hundred and seventy -three, so far as appro-
18 priate, shall apply to exceptions taken in criminal cases.
1 Section 36. If the defendant neglects to enter his appeal, ex- Affirmance of
2 ceptions or report in the supreme judicial court, or neglects to Gentry o¥on
3 take the necessary measures for the hearing of the cause in the lsiyfil's, § 5.
4 supreme judicial court, the superior court may, upon the applica- il|^; Ho §§43
5 tion of the district attorney and after notice, order that the appeal, ^si|2,'§10';
6 exceptions or report be dismissed and that the judgment, opinion, g. 's. 112, § 16.
7 ruling or order appealed from, excepted to or reported be affirmed, is'88,'94. '
1 x A r 1900, 372, § 1.
1 Section 37. Copies and papers relative to a question of law Transmission
2 which arises in a criminal case in the superior court upon appeal, R.|a^38,s§6.
3 exception, report or otherwise shall be prepared by the clerk of the If59' 196' §§ ^
4 court and shall thereupon be transmitted to and entered in the law ^f in5' § 12'
5 docket of the supreme judicial court for the proper county as soon p- s- 153> § 15-
6 as may be after such question of law has been reserved and duly
7 made matter of record in the superior court. The entry thereof
8 shall not transfer the case, but only the question to be determined.
1 Section 38. No motion in arrest of iudgment shall be allowed Motions in
. . ,, t 1 arrest of
2 for a cause existing before verdict, unless it affects the jurisdiction judgment.
3 of the court. i864,25o,§3.
P. S. 214, § 27. 151 Mass. 394. 160 Mass. 309, 354.
10 Allen, 193. 153 Mass. 444. . 162 Mass. 339.
129 Mass. 489. 159 Mass. 61. 170 Mass. 460
CHAPTER 220.
of judgment and execution.
1 Section 1. A police, district or municipal court may, upon sentence, not-
2 conviction of the defendant, impose sentence although the de- probation!*18
3 fendant is placed on probation. The court may thereupon order i"0.*49^1-
4 the execution of the sentence to be suspended for such time and
5 upon such terms and conditions as it prescribes, and place the
6 defendant in the custody of the probation officer during such sus-
7 pension. If the defendant has been sentenced to pay a fine and to
8 stand committed until it is paid, he may pay it to the probation
9 officer at any time during the period of probation, and said officer
10 shall give a receipt therefor, keep a record thereof, pay it to the
11 clerk of the court at the next session of the court and keep on file
12 the clerk's receipt therefor.
1 Section 2. At any time before the final disposition of the case Arrest of
2 of a person who has been placed on probation in the custody of a probation.
3 probation officer, the probation officer may arrest him without a Jifoo; f^\ § 2.
1858
JUDGMENT AND EXECUTION.
[Chap. 220.
warrant and take him before the court, or the court may issue a war- 4
rant for his arrest. When he is taken before the court, it may, if 5
he has not been sentenced, sentence him or make any other lawful 6
disposition of the case, and if he has been sentenced, it may con- 7
tinue or revoke the suspension of the execution of his sentence. 8
If such suspension is revoked, the sentence shall be in full force 9
and effect. 10
Sentence, not-
withstanding
appeal, etc.
1391, 362.
1895, 4(59.
167 Mass. 13,
144.
170 Mass. 16.
175 Mass. 37.
Section 3. Sentence shall be imposed upon conviction of a 1
crime which is not punishable by death, although exceptions have 2
been alleged or an appeal has been taken. The reservation, filing 3
or allowance of exceptions, or the entry of an appeal, shall not 4
stay the execution of the sentence unless the justice imposing it, 5
or a justice of the supreme judicial court, files a certificate that in 6
his opinion there is reasonable doubt whether the judgment should 7
stand. If sentence is so stayed, the justice may at the same time 8
make an order relative to the custody of the prisoner or for admit- 9
ting him to bail. 10
—if no statu-
tory punish-
ment.
1782, 9, § 1.
B. S. 139, § 1.
G. S. 174, § 1.
P. S. 215, § 1.
Section 4. If no punishment for a crime is provided by statute, 1
the court shall impose such sentence, according to the nature of 2
the crime, as conforms to the common usage and practice in this 3
Commonwealth. 13 Allen, 581. 165 Mass. 446. 4
— to jail or
house of cor-
rection.
1834, 151, § 17.
R. S. 143, § 17.
G. S. 174, §4.
P. S. 215, § 3.
1882, 241, § 1.
2 Met. 419.
4 Met. 361.
161 Mass. 120.
Same subject.
1845, 118.
G. S. 174, § 5.
P. S. 215, § 4.
2 Met. 411.
Section 5. Whoever is convicted of a crime which is punish-
able wholly or in part by imprisonment in jail may be sentenced
to such imprisonment in the house of correction or to solitary im-
prisonment and confinement at hard labor either in the jail or house
of correction ; and if convicted of a crime which is punishable by
imprisonment in the house of correction may be sentenced to such
imprisonment in a jail.
Section 6. Whoever is convicted of a crime which is punish-
able by a fine, and is liable to imprisonment in the jail for the non-
payment of fine, may be sentenced to such imprisonment in the
house of correction, and to confinement at hard labor either in the
jail or house of correction.
1
2
3
4
5
6
7
1
2
3
4
5
Commitments
upon two or
more sen-
tences.
1S84, 265.
Section 7. A convict upon whom two or more sentences to 1
imprisonment are imposed may be fully committed upon all such 2
sentences at the same time, and shall serve them in the order 3
named in the mittimuses upon which he is committed. 4
Second sen-
tence for non-
payment of
fine.
1874, 253.
P. S. 215, § 5.
Section 8 . If a convict is sentenced to pay a fine in more than 1
one case and has been committed to a jail, house of correction or 2
other prison for refusing to pay such fine, the subsequent sentence 3
shall take effect upon the expiration of the imprisonment under the 4
former sentence. 5
Conditional
sentence.
Section 9 . If a person has been convicted of a crime which is
ill' ill §| 17 2' Punisnahle, at the discretion of the court, by fine or imprisonment
g I' 174' III ^' *n ^e Ja^ or nouse °f correction or by fine or imprisonment in the
p." s.' 215,' §§6!?'. state prison, the court may impose upon him a conditional sentence,
and order him to pay a fine within a limited time which shall be
1
2
3
4
5
Chap. 220.] judgment and execution. 1859
6 expressed in the sentence, and in default thereof to suffer such
7 imprisonment as is provided by law. He shall be forthwith eom-
8 mitted to the custody of an officer in court or to the jail, to be
9 detained until the sentence is complied with ; and if he does not
10 within the time limited pay the fine imposed, the sheriff shall cause
11 the other part of the sentence to be executed forthwith.
1 Section 10. Whoever is convicted of a crime which is punish- j^ntence^ofinl
2 able by fine and imprisonment either in the iail or house of correc- and imprison-
merit
3 tion, except a registered pharmacist who is convicted under the R. s.139, §4.
4 provisions of section twenty-nine of chapter one hundred, may, at g. s\ 174, § 8."
5 the discretion of the court, be sentenced to be punished by im- p6s'.2i5, §s.
6 prisonment only, or by a fine only, if he shows to the satisfaction lfl'ifen, LY'
7 of the court that he has not before been convicted of a similar if^fj^, 581
8 Crime. 109 Mass. 362. 127 Mass. 452. 155 Mass. 8.
1 Section 11. If a husband is convicted of an assault upon Husband a8-
2 his wife, the court may, in addition to the other penalties imposed, torecofnSef
3 or in lieu of said penalties, order him to recognize with surety or tm,^.
4 sureties to keep the peace for any term of not more than two years, ^- s- 215> §§ 9»
5 and may at any time revoke such order or reduce the amount re-
6 quired or order that the recognizance be taken without surety.
1 Section 12. Whoever is convicted of a misdemeanor may, in Recognizance
2 addition to the punishment prescribed by law, be required to recog- p°eace?n other
3 nize, with sufficient sureties, in a reasonable sum to keep the peace, R.8sf 139, § 5.
4 or to be of good behavior, or both, for any term of not more than p.'i.'215'f ii.'
5 two years, and to stand committed until he so recognizes. 2 Alien, 6i.
1 Section 13. Such recognizance shall be filed of record in the Proceedings
2 superior court, and, upon a breach of the condition thereof, the ofrecogniU
3 proceedings shall be as provided in chapter two hundred and Rans.ei39, § 6.
4 sixteen relative to recognizances to keep the peace and be of good p.' 1; 215,' § 12.'
5 behavior.
1 Section 14. Whoever is convicted of a crime which is punish- ^f^06^
2 able by imprisonment in the jail or house of correction may be W c°™^
3 sentenced to a jail or house of correction of any county, and the lsee^so^;
4 master or keeper thereof shall receive and detain him in the same p.'s. 215, §13.
5 manner as if he had been sentenced by a court sitting in the county [i op?!', g.'
6 in which such jail or house of correction is situated. 309;|
1 Section 15. A female who is convicted of a crime which is Female sen-
fpnopfl fro
2 punishable by imprisonment in a jail or house of correction may be reformatory
3 sentenced to the reformatory prison for women ; but no sentence ?874,038&7§ 1?.'
4 to said reformatory prison, shall be for less than one year, except as ]§|£ lit § L
5 provided in section seventy of chapter two hundred and twenty-five. f8gf -|i|; § u-
1 Section 16. A sentence of a female convict of whatever age -to confine-
2 to confinement at hard labor shall be executed in the jail, house of labor, where
3 correction or reformatory prison for women as the court orders, and frills, § 8.
4 the court may impose a sentence of imprisonment for such term r^'.mIi.Vw.
5 as it might impose if the sentence were to be executed in the state %-f^l^;
6 prison. p. s. 215, §15. 1889, 113. i2Cush. 237.
1860
JUDGMENT AND EXECUTION.
[Chap. 220.
Woman with
infant may
be sentenced
to town
workhouse,
1854, 416, §§ 1, 4.
G. S. 174, § 12.
P. S. 215, § 16.
Section 17. A woman with a nursing infant, who is convicted 1
of a crime which is punishable by imprisonment in the house of 2
correction, may be sentenced to a workhouse in the county ; and 3
two dollars a week shall be paid by the county to the town in 4
which the sentence is executed for her support and custody. 5
fenced* toeja!f' Section 18. If a boy who is under the age of sixteen years is 1
pnr!sond whenf e convicted of felony and is sentenced to solitary imprisonment and 2
1834' is?' lie confinement at hard labor for not more than three years, but has not 3
r. s. 143, § is. been previously sentenced to the state prison in this commonwealth, 4
G S 174 §13
p.' s.' 2io,' § i7.' or to any state prison or penitentiary in the United States, the sen- 5
tence shall be executed in the jail. 6
ive year's" how Section 19. A sentence of a male convict to solitary imprison-
i8YiC32e(§ 1. ment and confinement at hard labor for not more than five years
1834' ill'! li may ^e executed either in the state prison, jail or house of correc-
r's'm'lifi' ^on' except as provided in the following section.
1870, 206, § 1. P. S. 215, § 19. 152 Mass. 1. 161 Mass. 120.
Indeterminate
sentence.
R. S. 139, § 9.
G. S. 174, § 17.
1877, 190.
1880, 15, § 1.
P. S. 215, § 20.
1895, 504, § 1.
1897, 294, § 1.
152 Mass. 1.
167 Mass. 144.
169 Mass. 592.
172 Mass. 264.
174 Mass. 369.
177 U. S. 155.
Section 20. If a convict is sentenced to the state prison, ex-
cept for life or as an habitual criminal, the court shall not fix the
term of imprisonment, but shall fix a maximum and a minimum
term for which he may be imprisoned. The maximum term shall
not be longer than the longest term fixed by law for the punish-
ment of the crime of which he has been convicted, and the mini-
mum term shall not be less than two and one-half years. If a
convict who has been sentenced to the state prison receives an
additional sentence thereto, it shall take effect upon the expiration
of the minimum term of the preceding sentence.
1
2
3
4
1
2
3
4
5
6
7
8
9
10
Habitual crim-
inals.
1887, 435, § 1.
155 Mass. 163.
158 Mass. 598.
163 Mass. 226.
165 Mass. 133.
173 Mass. 322.
175 Mass. 202.
180 U. S. 311.
Further sen-
tence of con-
vict in state
prison.
1880, 15, § 2.
Sentence to
state prison
may be exe-
cuted immedi-
ately.
1881, 139.
P. S. 215, § 22.
Same subject.
1891, 200.
Section 21. Whoever has been twice convicted of crime and 1
has been sentenced and committed to prison in this or another state, 2
or once in this and once or more in another state, for terms of not 3
less than three years each, and does not show that he has been 4
pardoned for either crime on the ground that he was innocent, shall, 5
upon conviction of a felony in this commonwealth, be considered 6
an habitual criminal and be punished by imprisonment in the state 7
prison for twenty-five years. 8
Section 22. A convict who is under sentence of imprisonment 1
in the state prison may be sentenced for a further time of not less 2
than one year. p. s. 215, § 21. 3
Section 23. If a convict who is serving a sentence of imprison- 1
ment in a jail or house of correction is convicted of a felony, the 2
court may impose sentence of imprisonment in the state prison and 3
order it to take effect forthwith, notwithstanding the former sen- 4
tence. The convict shall thereupon be removed to the state prison, 5
and shall be discharged at the expiration of his sentence thereto. 6
Section 24. If a convict who is serving a sentence of imprison- 1
ment in the Massachusetts reformatory is convicted of a crime which 2
is punishable by imprisonment in the state prison or house of cor- 3
rection, the court may impose sentence of imprisonment therein and 4
Chap. 220.] judgment and execution. 1861
5 may order it to take effect forthwith, notwithstanding the former
6 sentence. The convict shall thereupon be removed accordingly, and
7 shall be discharged at the expiration of his sentence thereto.
1 Section 25. The form of a sentence to the state prison shall ^°rcm °soutary
2 be, that the convict be punished by confinement at hard labor and by 1^£rif?9nm|nt-
3 solitary imprisonment for such term, not exceeding twenty days at g! si raj § is.
1RR6 ^4
4 one time, as the court orders. In the execution of such sentence, p. s'. 215, §23.
5 the solitary imprisonment shall precede the punishment by hard t Met 533!
6 labor, unless the court otherwise orders ; but in case of severe ill- loasfi'sio.
7 ness of the convict, the warden, upon the certificate of the physician 167Mass- u-
8 of the prison, may postpone the solitary imprisonment until the
9 health of the convict is so far restored that his life will not be en-
10 dangered by such solitary imprisonment.
1 Section 26. If a convict who is sentenced by a court of this offices for.
2 commonwealth or of the United States to imprisonment in the state tence to state
3 prison holds an office under the constitution or laws of this com- ^ns°°44, § 31.
4 monwealth at the time of his conviction and sentence, it shall be p.' I.' 215' 1 24.'
5 vacated from the time of his sentence. If the judgment against him ^Pi(^-^9-
6 is reversed upon writ of error, he shall be restored to his office with
7 all its rights and emoluments ; but, if pardoned, he shall not by
8 reason thereof be restored, unless it is so expressly ordered by the
9 terms of the pardon.
1 Section 27. A male person under forty years of age who has Persons pun-
2 not been previously sentenced for crime more than three times upon reformatory.
3 conviction of crime and who is convicted of a crime which is punish- isssJ 35e>!
4 able by imprisonment in the state prison or in a jail or house of i|l|; If.' § 5'
5 correction may be sentenced to the Massachusetts reformatory.
6 Police, district and municipal courts and trial justices shall have the
7 same jurisdiction to sentence such person to said reformatory as they
8 have to sentence him to such jail or house of correction.
1 Section 28. The court which imposes sentence of imprisonment i^erminate
2 in the reformatory shall not fix the term thereof unless it exceeds ^'|||§i^-
3 five years, but shall merely impose a sentence of imprisonment in
4 the reformatory ; but prisoners may be received and held therein
5 who have been sentenced thereto by a court of the United States
6 for a fixed or limited term.
1 Section 29. Whoever is sentenced to imprisonment in the re- Length of sen-
2 formatory for felony may be held therein for not more than five me, 323, §§ 2, 3.
3 years unless he is sentenced for a longer term, in which case he
4 may be held for such longer term. Whoever is sentenced to im-
5 prisonment therein for a misdemeanor may be held therein for not
6 more than two years.
1 Section 30. When a convict is sentenced to pay a fine or to be sheriff, etc., to
2 imprisoned, the clerk of the court shall forthwith make out and de- tence".
3 liver to the sheriff or to some officer in court a duly certified tran- §'. 1: m, f 26.
4 script from the minutes of the court of the conviction and sentence, p8s'. sua, §25.
5 which shall authorize the officer to execute such sentence, and he
6 shall execute it accordingly.
1862
JUDGMENT AND EXECUTION.
[Chap. 220.
Section 31. When a person is sentenced to the state prison, to
Copy of indict-
ment, etc., to
be transmitted the Massachusetts reformatory or to the reformatory prison for
t"o w3.ro(*n etc
i88i,ii4. ' ' women, the clerk of the court shall, without charge, transmit to
1884,' 255,' §io.' the warden or superintendent, as the case may be, an attested copy
of the complaint or indictment under which such person was con-
victed and the names of the witnesses who testified for and against
such person at the trial.
1
2
3
4
5
6
7
Powers of
officer in ex-
ecution of a
warrant of
commitment.
1870, 370, § 5.
1879, 294, § 7.
1880, 120, § 3.
P. S. 215, § 27.
Section 32. A sheriff, deputy sheriff or constable, when en- 1
gaged in the execution of a warrant for the commitment of a person 2
to a penal institution which is not in his own county, shall have the 3
same powers in any county through which he may pass as he would 4
have in his own county in the performance of a similar duty. 5
Return of pre-
cept to magis-
trate; copy
with jailer, etc.
1859, 233.
G. S. 174, § 22.
1880, 120, § 2.
P. S. 215, § 28.
11 Gray, 468.
Section 33. The officer who serves the precept in a criminal 1
case shall, without charging travel therefor, return it with his doings 2
and fees indorsed thereon to the court or magistrate issuing it, who 3
shall tax, allow and certify the fees as a part of the expenses in the 4
case. In case of commitment, the officer shall leave with the jailer 5
or keeper of the prison an attested copy of the precept, with his 6
return thereon, which shall authorize the detention of the person 7
committed. 8
Service of new
mittimus upon
convict.
G. S. 174, § 23.
P. S. 215, § 29.
Section 34. If a convict who is imprisoned under sentence is 1
again sentenced to confinement in a prison other than that in which 2
he is then held, the warrant for his commitment in pursuance of 3
the second sentence shall be placed in the hands of the warden or 4
keeper of the prison in which the convict is held, and said warden 5
or keeper, upon the expiration of the first sentence, shall commit 6
the convict in obedience to said warrant. 7
Default of
corporation.
1851, 348, § 1.
G. S. 174, § 29.
P. S. 215, § 30.
Section 35. If a corporation, after being duly served with 1
process, fails to appear and answer to an indictment or complaint 2
which is brought against it under the laws of this commonwealth, 3
its default shall be recorded, the charges in the indictment or com- 4
plaint taken to be true, and judgment shall be rendered accord- 5
ingly. 6
1
2
distress!0* Section 36. If judgment is rendered against a corporation
g5s 3i74 1 lo uPon an indictment or complaint under the laws of this common-
p.' s. 2i5,' § 3i." wealth, the court may issue a warrant of distress to compel the pay- 3
ment of the penalty prescribed by law, with interest. 4
Appointment
of time for
execution of
death sentence.
C. L. 30, § 1.
1776-7, 32, § 24.
R. S. 139, § 11.
1852, 274, §§ 2, 3.
1857, 37.
G. S. 174, § 24.
1876, 166, § 1.
P. S. 215, § 32.
1898, 326, § 1.
Section 37. In pronouncing sentence of death upon a person 1
who is convicted of a capital crime, the court shall appoint a week 2
within which the sentence shall be executed. The clerk of the 3
court shall, as soon as may be, make out and deliver to the gov- 4
ernor a certified copy of the whole record of the conviction and 5
sentence, and shall immediately thereafter make out, sign and de- 6
liver to the sheriff of the county in which the conviction was had a 7
warrant under the seal of the court stating1 the conviction and sen- 8
tence, and the week appointed for the execution thereof, and shall 9
at the same time transmit to the warden of the state prison a certi- 10
Chap. 220.] judgment and execution. 1863
11 fed copy of the warrant. Such warrant shall be directed to the
12 warden of the state prison commanding him to cause execution to
13 be done in accordance with the provisions of such sentence upon a
14 day within the week so appointed.
1 Section 38. After a convict has been sentenced to the punish- confinement
2 ment of death, he shall be confined in jail in the county in which un§eiSsen-r
3 he was convicted until within ten days of the first day of the week i898,e326, § 2.
4 appointed for the execution of the sentence of death. He shall, 1901,52°-
5 within such ten days, at a time chosen by the sheriff, be conveyed
6 by him or a deputy designated by him, as secretly as may be, to
7 the state prison, and shall, with the warrant, be delivered to the
8 warden thereof or to the officer performing the duties thereof. He
9 shall, unless lawfully discharged from such imprisonment, be kept
10 in a cell provided for the purpose from the time of such delivery
11 until the sentence of death is executed upon him, and no person
12 shall be allowed access to him without an order of the court,
13 except the officers and employees of the prison, his counsel, and
14 such physicians, priest or minister of religion as the warden may
15 approve, and the members of his family who are identified to the
16 satisfaction of the warden. If the execution of the sentence of
17 death is respited by the governor, or is otherwise delayed by proc-
18 ess of law, the convict may, in the discretion of the warden, be
19 confined in one of the cells in the solitary prison established by
20 chapter one hundred and nine of the resolves of the year eighteen
21 hundred and ninety-four.
1 Section 39. The sentence of death shall be executed by the sentence, when
2 warden of the state prison, or by a person acting under his direc- 1776-7, 32,' § u.
3 tion, within the week appointed by the court, unless the governor ^s.139, §§11,
4 pardons the crime, commutes the punishment therefor or respites g. s- 174, §§ 24,
5 the execution. If the execution is respited, the sentence of death p3.7!',^ §§ 33
6 shall be executed within the week beginning on the day next after i898,326,'§3.
7 the day on which the term of respite expires. The sentence of
8 death shall be executed upon such day within the week appointed
9 as the warden elects, at some time between midnight and sunrise ;
10 but no previous announcement thereof shall be made, except to
11 such persons as may be permitted to be present.
1 Section 40. The punishment of death shall be inflicted by Death penalty,
2 causing a current of electricity of sufficient intensity to cause death r. s. 139, § 13'.
3 to pass through the body of the convict, and the application of i857;37.
4 such current shall be continuous until he is dead. The sentence £; f.'2i5,'f 37.'
5 shall be executed within an enclosure or building for that purpose ji89!.326, §§4»
6 adjoining the state prison and the company which furnishes the f^j^4^.
7 electric power or light to the state prison shall provide all neces-
8 sary electricity for executions at such times as the warden orders.
1 Section 41. If a person who is convicted of a capital crime is, insane person,
2 at the time when motion for sentence is made, found by the court quick with
3 to be insane, it may cause such person to be removed to one of the sentenced.
4 state insane hospitals for such term and under such limitations as p7sA6i5,§34.
5 it may order. If a woman who is convicted of a capital crime is,
6 at the time when motion for sentence is made, found by the court to
1864:
FINES AND FORFEITURES.
[Chap. 221.
be quick with child, the court shall not pass sentence upon her until 7
it finds that she is no longer quick with child. 8
Respite of
execution in
such cases.
B. S. 139, § 12.
G. S. 174, § 25.
1876, 166, § 4.
P. S. 215, § 35.
Section 42. If it appears to the satisfaction of the governor 1
and council that a convict under sentence of death has become in- 2
sane, the governor, with the advice and consent of the council, may, 3
from time to time for stated periods, respite the execution of said 4
sentence, until it appears to their satisfaction that the convict is 5
no longer insane. If it appears to the satisfaction of the governor 6
and council that a female convict under sentence of death is quick 7
with child, the governor, with the advice and consent of the council, 8
shall from time to time respite the execution of said sentence for 9
stated periods until it appears to their satisfaction that she is no 10
longer quick with child. 11
— in other
cases.
1876, 166, § 5.
P. S. 215, § 36.
Section 43. The governor, with the advice and consent of the 1
council, may from time to time respite the execution of a sentence 2
of death for stated periods so long as he may consider it necessary 3
to afford him, with the advice and consent of the council, an oppor- 4
tunity to pardon the convict and to investigate and consider the 5
facts of the case for that purpose. 6
Witnesses of
the execution.
R. S. 139, § 14.
G. S. 174, § 27.
P. S. 215, § 38.
1898, 326, § 5.
Section 44. There shall be present at the execution of the sen- 1
tence of death, in addition to the warden or deputy warden who 2
performs the execution and such officers of the state prison as he 3
considers necessary, the prison physician, the surgeon general of the 4
militia, a medical examiner for the county of Suffolk, or, if they are 5
unable to be present, such physicians as the warden approves. The 6
physicians present shall be the legal witnesses of the execution. 7
There may also be present the sheriff of the county in which the 8
defendant was convicted or his deputy, a priest or minister of reli- 9
gion and, with the approval of the warden, not more than three 10
other persons. 11
Return of
warrant.
R. S. 139, § 15.
G. S. 174, § 28.
1876, 166, § 6.
P. S. 215, § 39.
1898, 326, § 7.
Section 45. When the warden has executed the sentence of 1
death upon a convict in obedience to a warrant from the court, he 2
shall forthwith make return thereof under his hand, with the doings 3
thereon, to the office of the clerk of said court. 4
CHAPTER 221.
OF FINES AND FORFEITURES.
Fines and for-
feitures, how
recovered.
1793, 43, § 4.
1800, 57, § 4.
R. S. 118, §42;
133, § 14.
G. S. 176, § 2.
P. S. 217, § 2.
Section 1. Fines and forfeitures exacted as a punishment for 1
any offence or for the violation or neglect of any duty imposed by 2
statute may, unless otherwise provided, be prosecuted for and re- 3
covered by indictment or complaint or by an action of tort in a 4
court having jurisdiction of the offence or action. 5
108 Mass. 139. 124 Mass. 278. 144 Mass. 170. 151 Mass. 60.
— to be paid to
the counties.
Section 2. A fine or forfeiture, which is imposed by the superior 1
f839,'i3353.'§14" court snaU De Paid over to the treasurer of the county where the 2
Chap. 221.] fines and forfeitures. 1865
3 proceeding in which the fine or forfeiture was imposed was tried, or g. s. i76,§i.
4 in the county of Suffolk, to the collector of the city of Boston. A p6|.29i7',§i°'
5 fine or forfeiture which is imposed by a police, district or municipal i||2' Ifg' § i"
6 court or by a trial justice shall, except as otherwise provided, be Jp Mais' 15^'
7 paid to the city or town in which the crime or offence was com-
8 mitted. If the whole or any part of a fine is by law payable to a
9 complainant or informant or to a person or corporation as benefici-
10 ary, the court or magistrate may apportion the fine or forfeiture
11 between such complainant, informant or other beneficiary and the
12 county, city or town, respectively.
1 Section 3. In proceedings in the name of the commonwealth ceeSrfVfo?10
2 for the recovery of fines, forfeitures or penalties, the whole or any penalties.
3 part of which do not inure to the benefit of the commonwealth, the p. s'. 217, § s.
4 court may, upon motion of the district attorney, appoint an attor-
5 ney to conduct the cause under his direction ; but such attorney so
6 appointed shall not have the right to control the cause nor receive
7 any compensation from the commonwealth.
1 Section 4. The expenses arising in a criminal prosecution, in- county to pay
2 eluding the fees of grand and traverse jurors for travel and attend- prosecution.
3 ance therein, shall be paid by the county in which the prosecution ^l^26' § 6'
4 is pending ; but no part of the expenses arising under a prosecution ™'||- §2
5 for the violation of a by-law or ordinance of a city or town, except ^n! 145.
6 witness fees, shall be paid by the county. i84i, 74, §1. 182^73, §2.
1845,227. G. S. 176, §4. 1880, 120, § 2. 1890, 440, § 2. R. S. 141, § 1.
1850, 68. I860, 191, § 10. P. S. 217, § 4. 1898, 204, § 4.
1 Section 5. In a criminal case in which questions of law are Expense of
2 carried to the supreme judicial court, the attorney general or dis- fnaicVses3.1™1'
3 trict attorney may have the necessary copies of the brief for the pj|. ^ § n.
4 commonwealth printed, and the expense thereof shall be paid in the
5 same manner as the other expenses in the case.
1 Section 6. Before imposing a fine as a penalty or part penalty Expenses of
2 for a crime, the court or justice shall determine the reasonable and Js^^!1? i";
3 actual expenses of the prosecution, including the services of officers 440>§3-
4 and witnesses, the detention and support of the defendant and the
5 expense of serving a mittimus or other warrant of commitment ;
6 and may impose a fine, not exceeding the maximum fine prescribed
7 for the crime, which shall include the whole or any part of the
8 amount of the expenses so found and determined. If the presiding
9 justice is of opinion that the maximum fine is an inadequate pen-
10 alty for the crime committed, he may impose such maximum fine
11 and order the defendant to pay the whole or any part of the ex-
12 penses of the prosecution. Defendants who pay such expenses
13 after commitment shall also pay the expense of commitment.
1 Section 7. At the end of every sitting of the superior court certificates of
2 for the transaction of criminal business, the clerk shall make and ol^im, §4.
3 deliver to the treasurers of the respective counties, cities or towns nw-i, 21, § i.
4 certificates of all fines imposed by the court, to the use of the r8|. ui, f's.
5 commonwealth, county, city or town. ' ,s
1861, 184. P. S. 217, § 8. 1890, 218, § 2.
1866
FINES AND FORFEITURES.
[Chap. 221.
Accounts of
fines, etc.
1891, 236, § 1.
Section 8. The clerk of the superior court for the transaction of 1
criminal business for the county of Suffolk, the clerks of the 2
municipal courts in Boston, the sheriff, master of the house of 3
correction or other officer, except those named in the following sec- 4
tion, upon receiving fines, fees or other money in any criminal pro- 5
ceedings, which are to be paid to the county of Suffolk or to the 6
city of Boston, shall, before the tenth day of every month, pay 7
over to the collector of said city and account, under oath, for all 8
fines, fees or other money so received during the preceding calendar 9
month, and make the detailed statements now required by law. 10
Same subject.
1891, 236, § 3.
Section 9. The clerks of all courts in the county of Suffolk, 1
except those named in the preceding section, who are required to 2
account to the city of Boston shall, on or before the tenth day of 3
each month, pay over to the collector of said city and account, 4
under oath, for all fines, fees and other money received by them 5
in any criminal proceedings during the preceding calendar month 6
which remain after the payments therefrom allowed by law. 7
Payment of
witness fees.
1891, 236, § 2.
Section 10. The treasurer of the city of Boston shall pay to 1
the persons who are entitled thereto all witness fees or other money 2
due for services rendered in any of the courts named in section 3
eight, or for any of the aforesaid officers, upon presentation to him 4
of a certificate stating the name of the claimant, of the court and 5
of the case, the nature of the services rendered and the amount 6
due therefor, signed by the clerk of the court or by the officer for 7
whom the service was rendered. 8
Fines, etc., to
be paid to
sheriff, and by
him to county.
1693-4, 2, § 1.
1791, 53, § 2.
R. S. HI, § 9.
1857, 107, § 1.
G. S. 176, §§ 9,
12.
1881, 52, § 1.
P. S. 217, §§ 9,
12.
1890, 218, § 1.
2 Gray, 428.
Section 11. Fines and forfeitures imposed in criminal prosecu- 1
tions by the superior court to the use of the commonwealth, or to 2
any county, or to the city of Boston, and all amounts found to be 3
due on forfeited recognizances, shall, under the direction of the 4
court, be certified by the clerk to the sheriff. The sheriff or a deputy 5
sheriff shall be authorized to receive such fines and forfeitures, but 6
the sheriff shall, within ten days after the final adjournment of the 7
sitting of the court, pay the same without deduction to the county 8
treasurer and render to him, or, in the county of Suffolk, to the 9
collector of the city of Boston, an account, under oath, of all 10
amounts which he has received since the last preceding sitting of 11
the court for fines, forfeitures and forfeited recognizances and the 12
names of the persons from whom they were received and against 13
whom they were awarded. If a sheriff neglects for thirty days to 14
render such account he shall be liable to a penalty of two hun- 15
dred dollars, which shall be recovered in the manner provided in 16
section thirteen. 17
Sheriff suffer-
ing escape to
pay fines, etc.
1791, 53, § 3.
R. S. 141, § 9.
1857, 107, § 1.
G. S. 176, § 10.
P. S. 217, § 10.
Section 12. A sheriff who, having a person in his custody by 1
virtue of the sentence of a court, voluntarily or negligently suffers 2
him to escape shall be held to have received the fines, forfeitures 3
or forfeited recognizances described in the preceding section, at the 4
time of the escape, and shall be liable for the same, with interest 5
and costs, as if he had received them. 6
Chap. 221.] fines and forfeitures. 1867
1 Section 13. If a sheriff neglects to make such payment for Remedy if
2 thirty days, the county treasurer shall recover of him in an action to yly olfrects
3 of contract the amount of such fines, forfeitures and forfeited recog- f7°i8-53 §3
4 nizances, with interest at the rate of twelve per cent from the time wm'w'ii'
5 of receiving or from the time he is held to have received the same o!|. 176, §11.
6 and costs. ' '
1 Section 14. A person who is committed to a jail or house of ^-^mu r
2 correction in default of payment of a fine may pay it to the keeper of house of
3 of the jail or master of the house of correction, and the warrant W8ir, 52T1.
4 for his commitment shall designate the city or town in which the xm^m'J^t'
5 offence for which the fine was imposed was committed and the
6 uses to which such fine is payable by the officer who receives it.
1 Section 15. Every keeper of a jail and master of a house of maa"teraofd
2 correction shall, except in the county of Suffolk as provided in house of cor.
rGctiou to mfikp
3 section eight, on the first day of January, April, July and October, quarterly
4 pay over to the persons who are entitled thereto all money received i88i,r52,'§2.
5 by him under the provisions of the preceding section during the miiii^ii^'
6 preceding three months, and render to the county treasurer an ac-
7 count, under oath, showing the names of the prisoners by whom
8 payments have been so made, the court by which each was com-
.9 mitted and the amount received from each.
1 Section 16. The county treasurer shall pay over to the persons Expenses to be
2 who are entitled thereto all amounts allowed to them for expenses treasurerlf11^
3 or fees in criminal prosecutions, or allowed by the courts as re- wSnlhree
4 wards or compensations to prosecutors, which have been duly f|09r^3e1§i
5 certified by the clerks, if demanded within three years after the 5- 1'- l-i' I r'
6 allowance thereof; but he shall pay no such amounts to a trial is6o,'i9i,'§§8,'
7 justice, or to a justice or clerk of a police, district or municipal i86i, vh.
8 court, until the justice or clerk has rendered an account in writing lihien'Jri6.'
9 of all fines received by him since his last return, and of all fees
10 which have remained in his hands for one year after their allowance.
1868
PRISON COMMISSIONERS.
[Chap. 222.
TITLE III.
OF PRISONS AND IMPRISONMENT.
Chapter 222.
Chapter 223.
Chapter 224.
Chapter 225.
• Of the Board of Prison Commissioners.
•Of the State Prison, the Massachusetts Reform-
atory and the Reformatory Prison for Women.
Of Jails and Houses of Correction.
Of the Officers and Inmates of Penal and Reforma-
tory Institutions, and of Pardons.
CHAPTER 222.
Board of
prison com-
missioners.
1827, 118, §§ 1,
2, 16.
R. S. 144, §§ 2,
3, 23.
1850, 37.
G. S. 179, §§ 8,
36.
1870, 370, §§ 1,
10, 11.
1879, 294, §§ 1,
35.
P.S. 219, §§1,2.
1893, 453.
1901, 364, §§ 1, 2.
rmp.A.G.
OF THE BOARD OF PRISON COMMISSIONERS.
Section 1. There shall be a board of prison commissioners, con- 1
sisting of five persons, two of whom shall be women, and one of 2
whom shall be appointed annually in June by the governor, with 3
the advice and consent of the council, for a term of five years from 4
the first Wednesday of July. The governor shall designate one 5
member as chairman of the board, and he shall receive a salary of 6
four thousand dollars a year. The other members of the board shall 7
not receive any compensation ; but they and the chairman shall be 8
reimbursed their actual personal expenses which are incurred while 9
they are engaged in the performance of their official duties. No 10
member of the board shall be concerned or interested, directly or 11
indirectly, in a contract, purchase or sale which is made on account 12
of any prison. The board may delegate to the chairman any of 13
its powers and duties, except the authority to release and transfer 14
prisoners. 15
Secretary and
clerical assist-
ance.
1870, 370, § 11.
1877, 120, § 1.
1879, 294, §§ 2,
31.
P. S. 219, §§ 3,
39
1885, 52.
1886, 275.
1888, 328.
1895, 431.
Section 2. The commissioners shall appoint a secretary who 1
shall not be a member of the board, but shall be its executive officer, 2
and shall hold office during the pleasure of the commissioners. He 3
shall receive from the commonwealth an annual salary of twenty- 4
five hundred dollars, and his necessary expenses which are incurred 5
in the performance of his official duties. The commissioners may 6
elect one of their members secretary pro tempore who, in the ab- 7
sence of the secretary, shall perform his duties. They may expend 8
annually for clerical assistance such sums as may be appropriated 9
therefor by the general court. , 10
S^iiiT^8' Section 3. They shall have the general supervision of the state
g 1' 179 §14 Prison> OI" *ne Massachusetts reformatory, of the reformatory prison
1
2
Chap. 222.] prison commissioners. 1869
3 for women and of jails and houses of correction. They shall *8™> 370> §§ ?.
4 make rules for the direction of the officers of such institutions in 1874,385, §12.
5 the performance of their duties, for the government, discipline and 12,25,35,36. '
6 instruction of the convicts therein, for the custody and preservation p8s'.2i9,§§§i4,
7 of the property connected therewith, for the supply of food, cloth- i^, 255, § 28.
8 ing and bedding in the state prison, Massachusetts reformatory |||5' 14G> 195>
9 and reformatory prison for women, for teaching prisoners who are ^l^'trf G'
10 committed to a jail or house of correction for six months or more
11 to read and write, for securing proper exercise for unemployed sen-
12 tenced prisoners in jails and houses of correction and for securing
13 medical examination and supervision of prisoners in jails and houses
14 of correction who are punished by solitary imprisonment. As soon
15 as may be after such rules have been made, the commissioners shall
16 submit copies thereof to the governor and council who may approve,
17 annul or modify them. Jailers, keepers of houses of correction,
18 county commissioners and the penal institutions commissioner of
19 the city of Boston shall make no rules inconsistent with the afore-
20 said rules.
1 Section 4. The full board shall visit the state prison, Massa- visits to
2 chusetts reformatory and the reformatory prison for women semi- ?lis,0ii8. § 7.
3 annually and shall make a thorough examination thereof. The u. 'a ' §§1°*
4 commissioners or one of them shall also visit said prisons at least f8\ S- 179' §§ 15'
5 once in each month; and a majority of the board shall visit said ig^'fgg'f™-
6 prisons once in three months, for the purpose of inspecting the lsraj 294J §§ 14,
7 books and all the affairs thereof and of ascertaining whether the p.'s.2i9, §§19,
8 laws and rules are duly observed, the officers competent and faith-
9 ful and the convicts properly governed and employed. They shall
10 forthwith report to the governor and council any violation of law
11 or neglect or omission of duty, which comes to their knowledge, by
12 any officer of the state prison, Massachusetts reformatory or reform-
13 atory prison for women who holds his office by appointment of the
14 governor and council.
1 Section 5 . They or one of them shall visit each jail and house —to jaiis, etc.
2 of correction at least once in six months, for the purpose of inspect- wW, 294; § 11.
3 ing the books and all the affairs thereof and of ascertaining whether ' ' 2 9' § 15'
4 the laws and rules are duly observed, the officers competent and
5 faithful and the convicts properly governed and employed ; and,
6 for this purpose, they shall have all the powers which county com-
7 missioners, or the penal institutions commissioner of the city of
8 Boston, have as inspectors of prisons in their several counties.
1 Section 6. Clerks of courts shall annually, on or before the Reports by
2 fifteenth day of October, make a report to the commissioners of all ^criminal11
3 criminal cases which were commenced in the superior court in if8^^, § 2.
4 the several counties during the year ending on the thirtieth day of g5|.2i49,'§§§3i'i,
5 September, and of all criminal cases entered therein on appeal dur- Jf^gg
6 ing such time. Clerks of police, district and municipal courts, or p. |'. 219, §§34,
7 the justices if there are no clerks, and trial justices shall annually, I8&2, 226, § 1.
8 at the same time, and for the same period, make a like report of
9 all criminal cases in which such courts or justices have exercised
10 jurisdiction, and shall state whether such jurisdiction was final or
1870
PRISON COMMISSIONERS.
[Chap. 222.
otherwise. Blank forms for such reports shall be prepared and 11
furnished by the prison commissioners. Whoever refuses or neglects 12
to make the report required of him by this section shall forfeit 13
two hundred dollars. 14
Monthly-
reports of
arrests.
18S2, 226, § 2.
1892, 290, § 3.
Section 7. The board of police of the city of Boston, city 1
marshals or chiefs of police of other cities and of towns and every 2
officer who makes an arrest in a city or town which does not have a 3
city marshal or chief of police shall make monthly reports to the 4
prison commissioners of the number of persons of each sex who 5
have been arrested in their several cities and towns. Such reports 6
shall be classified according to the offences. An officer who refuses 7
or neglects to make such report shall forfeit fifty dollars. 8
Reports of
commission-
ers to gov-
ernor.
1893, 428.
Section 8. The commissioners shall, at least once in six 1
months, report in writing to the governor the condition of the state 2
prison, the Massachusetts reformatory and the reformatory prison 3
for women, and shall so report to the governor when, in their judg- 4
ment, the conditions of administration, financial management or 5
discipline in any of said institutions require executive action. 6
— to general
court.
1827, 118, § 7.
R. S. 143, §33;
144, § 11.
1840, 15, § 3.
1S48, 29, § 2.
1857, 40, § 1.
1858, 48, § 1.
1859, 139, § 2.
G. S. 178, §68;
179, § 18.
1864, 303, § 1.
1870, 370, § 12.
1874, 385, § 22.
1879, 294, §§ 33,
35.
1881, 66.
P. S.219, §38.
1882, 226, § 2.
1884, 255, § 31.
1887, 447, § 14.
1901, 364, § 2.
Section 9. They shall annually, in the first week in January, 1
make a full and complete report to the general court for the pre- 2
ceding year, showing fully and in detail the actual condition on the 3
thirtieth day of September of the state prison, the Massachusetts 4
reformatory, the reformatory prison for women and of each jail 5
and house of correction, the number of inmates in each, such statis- 6
tics from the reports required by section six as will show the 7
results of criminal prosecutions and such statistics from the reports 8
required by section seven, and by section eighty-five of chapter two 9
hundred and seventeen, and such suggestions and recommendations 10
as they may consider proper. The report shall state the industries 11
which have been carried on in the institutions named in section 12
forty- three of chapter two hundred and twenty-five during the year, 13
the number of prisoners employed in each, the greatest and small- 14
est number thereof at any one time, the kind and quantity of goods 15
manufactured, the amount thereof sold to such institutions and other- 16
wise and the prices received therefor. The report shall include the 17
reports made to them by the warden of the state prison, the super- 18
intendent of the Massachusetts reformatory and of the superintend- 19
ent of the reformatory prison for women. The report shall also 20
contain estimates of the amounts which will be required by said 21
prisons during the following year for salaries, subsistence, clothing, 22
bedding, fuel, repairs and incidentals and a statement of the prob- 23
able income of each prison from labor and all other sources. 24
Chap. 223.] state prison and reformatories. 1871
CHAPTER 223.
OF THE STATE PRISON, THE MASSACHUSETTS REFORMATORY AND THE
REFORMATORY PRISON FOR WOMEN.
Sections 1-19. — The State Prison.
Sections 20-27. — The Massachusetts Reformatory.
Sections 28-39. — The Reformatory Prison for Women.
Sections 40-45. — Prison Contracts.
Section 46 . — Appropriations.
THE STATE PRISON.
General Provisions.
1 Section 1. The state prison at Boston in the county of Suffolk ftSJ^J*
2 shall be the general penitentiary and prison of the commonwealth in ]J05, oJ3'5f§A2-
3 which all male persons who have been convicted of crime in a court 1827! lis, § 10. '
4 of this commonwealth or in any court of the United States and who 30.
5 have been sentenced by them according to law to solitary imprison- m^sUl! § *'
6 ment and confinement in the state prison at hard labor shall be p87|.||'1)§L
7 securely confined and employed at hard labor ; but a person who has ^ |||> § 6-
8 been convicted and sentenced before a court of the United States
9 need not be received in said prison unless the United States shall
10 agree with the prison commissioners to pay all expenses incurred by
11 the commonwealth in maintaining him therein.
1 Section 2. The governor and council shall visit the prison Annual visita.
2 annually, and as much often er as they may think proper, for the ernor an<iv"
3 purpose of examining into its affairs and of ascertaining its condi- 1^32,' §5.
4 tion. They shall inquire into all alleged abuses or neglects of r2s\ im §§49.
5 duty and may make such alterations in the general discipline of the g-£-3f £•
f> • 4.U -ft A P' S- 221' § 5-
b prison as they find necessary.
Officers and Salaries.
1 Section 3. The officers of the state prison shall be a warden, officers.
2 deputy warden, chaplain, physician and surgeon, clerk, engineer, ilif; lft '§ 3. '
3 assistant engineer, electrician, steward who shall be employed in 1829' ief §§ij"
4 the kitchen department of the prison, four turnkeys, as many watch- r^2^ §§2,6.
5 men, not exceeding forty -nine, and as many assistant watchmen, 1H2* III' § 2"
6 not exceeding five, as the warden, subject to the approval of the 1857) 122, § 1.
7 prison commissioners, may find necessary. In certifying the names 1874,133.'
8 of persons eligible to appointment as assistant watchmen, the civil i879| 294] §§ 34,
9 service commissioners shall certify the names of persons who are ig81) n8 § 1.
10 over the age of twenty-five and under the age of forty years. p- s- 221> §6<
1882, 203, § 1. 1889, 412, § 1. 1894, 477, § 2. 1900, 286, § 1.
1888, 264, § 1. 1893, 456. 1899, 245, §§ 1, 4.
1 Section 4. The warden shall be appointed by the prison com- Appoint-
2 missioners, and shall hold his office during their pleasure. All xsu.ise, §§1,2.
3 other officers shall be appointed by the warden, and shall hold their H^n^i^2'3,
4 offices during the pleasure of the warden . g.s. 179, §§9-11. ist-, 294, § 13. ]|5f '$$> Hf"6,
1881, 178, § 2. ^ 1882, 203, § 2. 1894, 477, § 2. 1900, 286, § 1.
P. S. 221, §§ 7, 8. 1887,355. 1899, 245, § 1. 1901, 364, § 3.
1872
STATE PRISON AND REFORMATORIES.
[Chap. 223.
Bond of
warden.
1811, 32, § 3.
1827, 118, § 3.
R. S. 144, § 15.
G. S. 179, § 23.
P. S. 221, § 17.
1901, 364, § 3.
Section 5. The warden shall, before entering upon the per- 1
formance of his official duties, give bond to the commonwealth in 2
the sum of twenty thousand dollars, with sureties who shall be 3
approved by the prison commissioners, conditioned faithfully to 4
account for all money placed in his hands as treasurer and faithfully 5
to perform the duties of warden . The approval of the sureties shall &
be indorsed on the bond, and it shall be filed in the office of the 7
treasurer and receiver general. 8
^wem and Section 6, The warden shall have the custody and control of all
duties of convicts in the prison and shall govern and employ them according
w*irQ6n. x v a •/ o
i8u, 32,'§ s. to law, pursuant to their respective sentences and to the rules and
r. s'. 144, §§'i6,' regulations of the prison, until their sentences have been performed
G'f'm §§27, or they are otherwise discharged by due course of law. He shall
28.
21.
1901, 224.
s. 221, §§20, also have the charge and custody of the prison, and of the land,
buildings, furniture, tools, implements, stock, provisions and all
other property belonging to it or within its precincts. He shall be
treasurer of the prison, and shall receive and disburse all money
paid by the commonwealth for the support thereof, and shall cause
regular and complete accounts to be kept of all the property,
expenses, income and business of the prison. He may, with the
approval of the board of prison commissioners, expend not more
than three hundred dollars annually for the entertainment of offi-
cial and other visitors to the state prison, such expenditures to
be paid out of the annual appropriations for the support of said
prison.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
pose^Seration Section 7. The warden shall from time to time, in writing, sug- 1
i827Uul' 6*3' &es^ ^° the commissioners such alterations in the rules and regula- 2
g s rq* ! 26 tions as he considers advisable for the direction of the officers and 3
i879,'294,'§34.' for the government of the prison. p. s. 221, §19. 1
27,
G. S. 179, §§ 30,
31.
1879, 294, § 34.
P. S. 221, §§ 22,
23.
V^u0c/in Section 8. If the office of warden is vacant, or if the warden 1
i827di?8 § 4 *s aDsent' from the prison or is unable to perform the duties of his 2
r. s. 144, §§ 26, office, the deputy warden shall have the powers, perform the duties 3
and be subject to the liabilities of the warden. If the office of 4
warden becomes vacant, the commissioners may require the deputy 5
warden to give a bond to the commonwealth in the sum of ten thou- 6
sand dollars, with sureties who shall be approved by them, condi- 7
tioned for the faithful performance of his duties as deputy warden 8
and treasurer until a warden is appointed. After the approval of 9
such bond, the deputy shall, so long as he performs the duties of 10
the office, receive the salary of the warden in lieu of his salary as 11
deputy warden. If the deputy warden does not give such bond 12
when required, the commissioners may remove him from the office 13
of warden and appoint a warden pro tempore, who shall give such 14
bond, and shall have the power and authority, perform the duties 15
and receive the salary of the warden until a warden is duly ap- 16
pointed and qualified. 17
Oath of sub-
ordinate
officers.
1893, 426, § 1.
Section 9. All subordinate officers of the state prison, before
entering upon the performance of their official duties, shall take
and subscribe the following oaths
1
2
3
Chap. 223.] state prison and reformatories. 1873
I, A. B., do solemnly swear that I will bear true faith and allegiance to the
commonwealth of Massachusetts, and will support the constitution thereof. So
help me, God.
I, A. B., do solemnly swear that I will obey the lawful orders of all my
superior officers. So help me, God.
I, A. B., do solemnly swear and affirm that I will faithfully and impartially
discharge and perform all the duties incumbent on me in the office to which I
have been appointed, according to the best of my abilities and understanding,
agreeably to the rules and regulations of the constitution, the laws of the com-
monwealth and the rules provided in accordance with law for the government
of the state prison. So help me, God.
4 The oaths may be administered by any officer who is authorized
5 by law to administer an oath and a record thereof shall be in the
6 possession of the warden.
1 Section 10. Each of said officers shall give bond to the com- Bond of sub-
2 monwealth in the sum of one thousand dollars, with sureties, who officers*
3 shall be approved by the warden, conditioned to obey the rules of igoi'H;52-
4 the prison and faithfully to perform his duties as such officer, and
5 not to leave the service of the commonwealth, without giving at
6 least ten days' notice in writing to the warden, unless sooner re-
7 leased by him. The approval of the sureties shall be indorsed on
8 the bond, and it shall be filed in the office of the treasurer and
9 receiver general.
1 Section 11. The warden and deputy warden shall reside con- Residence of
2 stantly within the precincts of the prison. The deputy warden, deputy atnd
3 clerk, watchmen, assistant watchmen and all other subordinate offi- jf^ns, § 5.
4 cers of the prison shall perform such duties in the charge and over- J|- 1- ***» 1 1|
5 sight of the prison, the care of its property and the custody, fgj-ffi'fo8-
6 government, employment and discipline of the convicts, as the i9oo| 286; § 2!
7 warden, in conformity to law and the rules and regulations of the
8 prison, may require.
1 Section 12. The chaplain shall conduct divine service in the Duty of
2 chapel of the prison, shall instruct the convicts in their moral i8i^w^'§i.
3 and religious duties, visit the sick on suitable occasions, have r2s.i«',§§6i2.
4 charge of the school and library of the prison under the direc- f^'^i'^i9'
5 tion of the warden and shall devote his entire time to the duties f90f'-|62/' §12>
6 of his office.
1 Section 13. The physician and surgeon shall visit the hospital ^dfsSrge6dn.an
2 of the prison at least once each day, and as much oftener as may be i|i*. is|» § |-
3 necessary, shall prescribe for convicts who are ill, and shall attend r. s. 144, § 13.
4 to the regimen, clothing and cleanliness of convicts who are in p.' s.' 221,' §13.'
5 the hospital. He shall keep a regular journal of all admissions to
6 the hospital, the time of admission, the nature of the disease, his
7 prescriptions, the treatment of each patient and the time of his dis-
8 charge from the hospital or of his death. The journal shall also
9 contain entries of all orders given for supplies for the hospital
10 department, specifjdng the articles ordered, and it shall remain at
11 the prison. All such orders shall be in writing, and the warden
12 shall provide the supplies so ordered.
1874
STATE PRISON AND REFORMATORIES.
[Chap. 223.
Care and treat-
ment of sick
convicts.
R. S. 144, § 14.
G. S. 179, § 22.
P. S. 221, § 15.
Section 14. If a convict complains of illness which requires 1
medical aid, notice thereof shall be given to the physician, who 2
shall visit the convict, and, if in his opinion the illness requires the 3
removal of the convict to the hospital, the warden may order such 4
removal, and the convict shall remain in the hospital until the 5
physician determines that he may leave it without injury to his 6
health. 7
Subsistence
and diet in the
hospital.
1827, 118, § 15.
R. S. 144, § 46.
G. S. 179, § 60.
P. S. 221, § 16.
Section 15. He shall have the direction of the subsistence and 1
diet of the convicts in the hospital ; but his order for all articles 2
of comfort or indulgence which are not included in their regular 3
hospital rations shall be in writing and for a term of not more 4
than one week. 5
Same subject.
1859, 254.
G. S. 179, § 21.
P. S. 221, § 14.
Section 16. He shall attend upon all insane convicts, and, 1
if in his opinion they can be removed to the prison hospital with- 2
out detriment or danger to the other patients or inmates of the 3
prison, he shall order them to be so removed and shall see that 4
they have sufficient daily exercise outside their cells or places of 5
confinement. 6
no^otbeVbuS76 Section 17. Neither the warden nor any officer appointed by 1
i8e27S"ii8 8 kim or by him and the commissioners shall be employed in any busi- 2
r. s. 144, § 7. ness for private emolument or which does not pertain to the duties 3
G. S. 179, § 12. „ , . * r
p. s. 221, §9. oi his office. 4
SftiSfti!*' Section 18. The officers of the prison, except the clerk,
p.7s.22i§§'io. physician and chaplain, shall, while on duty, wear such uniform,
cap or badge as the warden may from time to time prescribe.
1
2
3
Salaries.
1811, 32, § 12.
1814, 156, § 3.
1818, 19.
1827, 118, § 8.
1829, 114, § 3.
1832, 129, § 1.
1833, 67, § 1.
R. S. 144, § 8.
1854, 270.
1855, 334.
1857, 122, §2;
196.
G. S. 179, § 13.
1867, 312.
1870, 243.
1871, 301.
1878, 269.
1881, 178, § 2.
P. S. 221, § 11.
1882, 203, § 3.
1884, 95.
1888, 264, § 2.
1889, 412, § 2.
1893, 455.
1S94, 370.
1S99, 245, § 3.
1900, 286, § 3.
Section 19. The officers of the prison shall receive the following
annual salaries : the warden, four thousand dollars ; the chaplain,
two thousand dollars ; the physician and surgeon, one thousand dol-
lars ; the deputy warden, two thousand dollars ; the clerk, two thou-
sand dollars ; the engineer, fifteen hundred dollars ; the assistant
engineer, not more than one thousand dollars ; the electrician, not
more than twelve hundred dollars ; the steward, twelve hundred dol-
lars ; each turnkey, twelve hundred dollars ; each watchman who has
been in the service of the prison for six years or more, twelve hun-
dred dollars ; each watchman who has been in said service for three
years and for less than six years, one thousand dollars ; each watch-
man who has been in said service for less than three years, eight
hundred dollars ; the assistant watchmen, not more than eight
hundred dollars each. In fixing the rate of compensation of watch-
men, previous service in any prison of the commonwealth shall
be considered. No other perquisite, reward or emolument shall be
allowed to or received by any of them, except that the warden and
deputy warden shall be allowed sufficient house room, properly
furnished, and fuel and light, for themselves and families. The
compensation of the assistant engineer, of the electrician and of the
assistant watchmen shall be fixed by the warden, with the approval
of the prison commissioners.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Chap. 223.] state prison and reformatories. 1875
the massachusetts reformatory.
1 Section 20. The Massachusetts reformatory at Concord in the Massachusetts
2 county of Middlesex shall be the reformatory prison for the com- reformatory-
3 monwealth in which all male persons under forty years of age, who
4 have been convicted of crime in the courts of this commonwealth or
5 of the United States and who have been duly sentenced or removed
6 thereto shall be imprisoned and detained in accordance with the
7 sentences or orders of said courts and the rules and regulations of
8 said reformatory.
1 Section 21. The officers of the reformatory shall be a superin- officers of the
2 tendent, deputy superintendent, chaplain, physician, clerk, engi- i884™5,Ti9.
3 neer, four turnkeys and as many watchmen, not exceeding fifty -six, illl^ lol^ 1 ll
4 as the superintendent, subject to the approval of the prison commis- \®$ ||- § x
5 sioners, may consider necessary 1894)477! §2.
1 Section 22. The superintendent shall be appointed by the Appointment
2 prison commissioners, and shall hold office during their pleasure. ent,UphyScian,"
3 All other officers of said reformatory shall be appointed by the f^ 255, §§ 20,
4 superintendent, and shall hold their offices during the pleasure of ^ 364 § 3
5 the superintendent.
1 Section 23. The superintendent shall, before entering upon the Bond of super.
2 performance of his' official duties, give bond to the commonwealth isH^sM 24.
3 in a sum and with sureties approved by the prison commissioners, 1901>364-
4 conditioned faithfully to account for all money received by him
5 and faithfully to perform his duties as superintendent.
1 Section 24. The superintendent shall reside at all times within Duties and
2 the precincts or dependencies of the reformatory, he shall have the superintend.
3 custody and control of all prisoners committed to the reformatory, fisi, 255, §§ 23,
4 the management and direction of the reformatory, under the rules fjge 323 §6.
5 and regulations thereof, and the custody and control of the build- 1901> 224-
6 ings and property of the commonwealth connected therewith. He
7 shall receive and securely keep, according to the terms of the sen-
8 tence, any male person who is sentenced to the reformatory by any
9 court of the United States, or who is sentenced by such court to any
10 other prison and removed to the reformatory. He shall purchase
11 all necessary supplies for the reformatory, and shall receive and
12 pay out all money advanced by the commonwealth for the support
13 thereof. He shall cause full and accurate books of account of the
14 property, expenses, income and business of the reformatory to be
15 kept. He may, with the approval of the board of prison commis-
16 sioners, expend not more than three hundred dollars annually for
17 the entertainment of official and other visitors to the reformatory,
18 such expenditures to be paid out of the annual appropriations for the
19 support of said reformatory.
1 Section 25. If the office of superintendent is vacant, or if the Deputy super.
2 superintendent is absent from the reformatory or is unable to per- superintend-
3 form the duties of his office, the deputy superintendent shall have pore.™ em"
4 the powers, perform the duties and be subject to the liabilities of the \f*' 255> §§25»
1876
STATE PRISON AND REFORMATORIES.
[Chap. 223.
superintendent. If the office of superintendent becomes vacant, 5
the prison commissioners may require the deputy superintendent 6
to assume the duties of superintendent, and to give bond to the 7
commonwealth in the sum of ten thousand dollars, with sureties 8
who shall be approved by them, conditioned for the faithful per- 9
formance of his duties as deputy superintendent until a superin- 10
tendent is appointed and faithfully to account for all money received 11
by him as such. After the approval of said bond, the deputy 12
superintendent shall, so long as he performs the duties of superin- 13
tendent, receive the salary of that officer in lieu of his salary as 14
deputy superintendent. If the deputy superintendent does not 15
give such bond when required, the prison commissioners may re- 16
lieve him from the duties of superintendent and appoint a super- 17
intendent pro tempore, who shall give such bond, and shall have 18
the power and authority, perform the duties and receive the salary 19
of the superintendent until a superintendent is duly appointed and 20
qualified. 21
Sufpiain* Section 26. The chaplain shall devote his whole time to the 1
1890' 255' § 27' instruction of the prisoners and to the promotion of their moral and 2
religious well-being. 3
Salaries.
1884, 255, § 22.
1888, 335, § 2.
1889, 408, § 2.
1893, 333, § 2.
Section 27. The officers of the reformatory shall receive the 1
following annual salaries : the superintendent, thirty-five hundred 2
dollars ; the deputy superintendent, two thousand dollars ; the chap- 3
lain, two thousand dollars ; the physician, one thousand dollars ; the 4
clerk, two thousand dollars ; the engineer, fifteen hundred dollars ; 5
each turnkey, twelve hundred dollars ; each watchman who has been 6
in the service of the reformatory for six years or more, twelve hun- 7
dred dollars ; each watchman who has been in said service for three 8
years and less than six years, one thousand dollars ; each watchman 9
who has been in said service for less than three years, eight hundred 10
dollars. In fixing the rate of compensation of the officers as afore- 11
said, previous service in any prison of the commonwealth shall be 12
considered. No other perquisite, reward or emolument shall be 13
allowed to or received by any of the said officers, except that the 14
superintendent and deputy superintendent shall be allowed sufficient 15
house room, properly furnished, and fuel and light, for themselves 16
and their families. 17
Prison for
women.
1874, 385, § 3.
P. S. 221, § 43.
1887, 426, § 1.
1896, 304.
THE REFORMATORY PRISON FOR WOMEN.
Section 28. The reformatory prison for women at Sherborn in 1
the county of Middlesex shall be the prison of the commonwealth 2
in which all females who have been convicted of crime in the courts 3
of the commonwealth or of the United States and who have been 4
duly sentenced or removed thereto shall be imprisoned and detained 5
in accordance with the sentences or orders of said courts and the 6
rules and regulations of said prison. 7
5riKof Section 29. The officers of said prison shall be a superintend- 1
list; i5, §§ 5' 8* ent' deputy superintendent, chaplain, physician, clerk, as many 2
p. s. 221, §§ 44, matrons, assistant matrons and deputy matrons, not exceeding 3
Chap. 223.] state prison and reformatories. 1877
4 twenty -six, as the superintendent and the commissioners may judge
5 necessary. All said officers shall be women, except that the super-
6 intendent may be either a man or a woman.
1 Section 30. The superintendent shall be appointed by the Appointment
2 prison commissioners, and hold office during their pleasure. All ent,UePtcnntend"
3 other officers and employees, except the steward, shall be appointed Jgra 294' f§23 7"
4 by the superintendent, and shall hold their offices during the ^- s- 221> §§ 45>
5 pleasure of the superintendent. 1901, 364, § 3.
1 Section 31. The superintendent shall, before entering upon Bond.
2 the performance of his official duties, give bond to the common- p 7s'. 221', § 49*.
3 wealth in the sum of ten thousand dollars, with sureties who shall igof'U'81'
4 be approved by the prison commissioners, for the faithful perform-
5 ance of his duties.
1 Section 32. The commissioners may, in behalf of the common- Burial place
2 wealth, hold not more than one acre of land within the town of i§82?2i3?cts'
3 Sherborn, which may be used for the burial of prisoners who die
4 in the prison.
1 Section 33. The superintendent shall reside at all times within Powers and
2 the precincts or dependencies of the prison, shall have the cus- hittendent.uper"
3 tody and control of all prisoners committed thereto and shall gov- p7|.||i §49'
4 ern and employ them according to law, pursuant to their sentences 1883> ^ § 1-
5 and the rules and regulations of the prison. He shall have the
() management and direction of the prison, its servants and employees,
7 and all its affairs, except as otherwise provided.
1 Section 34. He shall receive and disburse all money paid control of
, «/ 1 property.
2 by the commonwealth for the support of said prison, shall pur- issj, 267, § 1.
3 chase all supplies and all other articles needed for carrying on and
4 managing the prison, shall have the custody and control of all
5 property connected with or belonging to the prison and shall cause
6 regular and complete books of accounts of all the property, ex-
7 penses, income and business of the prison to be kept.
1 Section 35. If the superintendent is absent from the prison, or Deputy super.
2 is unable to perform the duties of his office, the deputy superin- Bonddent'
3 tendent shall have the powers, perform the duties and be subject to 1883> 267> §§3»4'
4 the liabilities of the superintendent. If the office of superintendent
5 is vacant, the prison commissioners may require the deputy
6 superintendent to perform the duties of superintendent and to give
7 a bond to the commonwealth in the sum of ten thousand dollars,
8 with sureties who shall be approved by them, conditioned for the
9 faithful performance of her duties as deputy superintendent until a
10 superintendent is appointed and to faithfully account for all money
11 which comes into her hands as such. After the approval of her
12 bond, she shall, so long as she performs the duties of superintend-
13 ent, receive the salary of that officer in lieu of her salary as
14 deputy superintendent. If she does not give such bond when re-
15 quired, the prison commissioners may remove her from office and
16 appoint a superintendent pro tempore, who shall give such bond,
1878
STATE PRISON AND REFORMATORIES.
[Chap. 223.
and shall have such power and authority, perform such duties and 17
receive such salary until a superintendent is duly appointed and 18
qualified. 19
Duties of
chaplain.
1884, 43, § 1.
Section 36. The chaplain shall, in addition to her other duties, 1
act as teacher and, as such, have charge of the prison school and 2
of the instruction of the prisoners, under rules from time to time 3
established by the superintendent and approved by the prison com- 4
missioners. 5
Steward.
1883, 267, § 2.
Section 37. The superintendent may appoint a steward who 1
shall hold his office at the pleasure of the superintendent, and shall 2
receive such salary, not exceeding one thousand dollars a year, 3
as the governor and council approve. He shall, as the agent of the 4
superintendent, purchase for the prison such articles as the super- 5
intendent orders, and shall perform such other duties as the super- 6
intendent requires. 7
washaTumfor Section 38. The superintendent may appoint a watchman to pro- 1
p°nd- tect the waters of Washakum pond in the towns of Framingham and 2
189^275'. Ashland, and he shall have the powers of a district police officer. 3
Salaries.
1874, 385, § 8.
P. S. 221, § 47.
1884, 43, § 3.
1887, 341.
1888, 327.
1897, 329.
Approval of
bills.
1879, 294, § 18.
P. S. 221, § 54.
1883, 267, § 5.
1888, 337.
1889, 294.
Section 39. The officers of the prison shall receive the fol- 1
lowing annual salaries : the superintendent, two thousand dollars ; 2
the deputy superintendent, one thousand dollars ; the chaplain, 3
one thousand dollars ; the physician, one thousand dollars ; the 4
clerk, eight hundred dollars; each matron, four hundred dollars; 5
each deputy matron , three hundred and fifty dollars ; each assistant (>
matron, three hundred dollars. No other perquisite, reward or 7
emolument shall be allowed to or received by any of them, except 8
that all said officers may reside at said prison or its dependencies 9
at the public charge. 10
PRISON CONTRACTS.
Section 40. All bills contracted by the warden of the state 1
prison, the superintendent of the Massachusetts reformatory or the 2
superintendent of the reformatory prison for women for the main- 3
tenance of said institutions and the pay rolls of salaries of officers 4
and employees thereof shall, before payment, be approved by a 5
majority of the prison commissioners. 6
Contracts.
1813, 47, § 1.
1827, US, § 3.
R. S. 144, § 19.
G. S. 179, § 32.
1879, 294, § 19.
P. S. 221, § 55.
1883, 267, § 5.
1888, 403, § 7.
11 Blet. 138.
11 Cush. 510.
Arbitration of
controversies.
R. S. 144, § 20.
Section 41. All contracts on account of said prisons shall be 1
made by the warden or superintendents, respectively, in writing, 2
and, when approved in writing by the commissioners, shall be 3
binding. The warden and superintendents, or their successors, 4
may sue or be sued upon any contract made in accordance with the 5
provisions of this chapter. No such suit shall abate by reason of 6
said offices becoming vacant, but the successor of either of said 7
officers, pending such suit, may, and upon motion of the adverse 8
party and notice shall, prosecute or defend it. 9
Section 42. The warden or superintendent may submit any 1
controversy relative to a contract made by him or an action pend- 2
Chap. 223.] state prison and reformatories. 1879
3 ing on such contract to the final determination of arbitrators or g. s. 179, § 33.
4 referees who shall be approved by the commissioners. i883, 267, §5. p.' s'. 221, §W.
1 Section 43. If, in the opinion of the commissioners, it can be Contracts for
2 advantageously done, the principal articles purchased for the use thTyear. y
3 of said prisons shall be contracted for by the year. The warden ills) Iflf §§6.3' *'
4 or superintendent, as the case may be, shall publish notice in at R?s'.i44, §26i-
5 least two newspapers a sufficient time for the information of the f^'^u'^it
6 public of the articles wanted, their quantity and quality, the time ^•J'371',i|7-
7 and manner of delivery and the period during which proposals
8 therefor will be received.
1 Section 44. Such proposals shall be in writing and sealed, and bemwrlting
2 on the day appointed they shall be opened by the warden or super- etc. '
3 intendent in the presence of the commissioners, who shall cause 1827! 11s', § ie.
4 them to be entered in a book and compared. The persons who offer 23'. '- ' '
5 the best terms, with satisfactory security for the performance, shall i879,'294, §22.'
6 be entitled to the contract unless it appears to the commissioners ^"sf," 267,' § 5.S*
7 that it is not for the interest of the commonwealth to accept any
8 of the proposals. In such case, no offer shall be accepted, and the
9 warden or superintendent, with the consent of the commissioners,
10 may contract for any of the articles wanted in a way which shall
11 be for the best interests of the commonwealth. Every contractor
12 shall give bond in a reasonable sum, with satisfactory surety, for
13 the performance of his contract.
1 Section 45. The warden or superintendent shall, at the time Bnistobe
2 supplies for the prison are delivered, take bills of the quantity and purchases, ser.
3 price thereof, which the clerk or such officer as the warden or R.c|8'i44°'§ 24.
4 superintendent directs shall compare with the articles delivered and, p.' |; 221,' § Hi
5 if they are correct, shall enter them with the date upon a book
6 to be kept for the purpose. Bills of all services rendered for the
7 prison shall be taken and entered in like manner. If a bill for
8 supplies or services is incorrect, the clerk shall not enter it, but
9 shall inform the warden or superintendent, that the error may be
10 corrected.
appropriations.
1 Section 46. An annual appropriation shall be made for the Annual appro-
2 support of said prisons. The salaries and pay of officers and em- Salaries,' etc.,
3 ployees and all bills for supplies and other expenditures for said monthly.
4 prisons shall be paid monthly from the treasury of the common- il7|; 1§1; || |'3f *
5 wealth, having first been certified by the auditor, upon schedules, p;s.22i, §§59,
6 enumerating the bills and pay rolls and accompanied by vouchers, eo^ ^ ^
7 The name and position of each officer, the amount of his pay and i|4; 255) § 36.
8 the amount due to him shall be on the pay roll, which, with the
9 bills, shall be certified by the warden or by the superintendent, as
10 the case may be. A record in full of the pay rolls and bills shall
11 be made by the clerk in a book kept for the purpose at each prison
12 and the originals shall be deposited with the auditor as vouchers.
1880
JAILS AND HOUSES OF CORRECTION.
[Chap. 224.
CHAPTEE 224.
OF JAILS AND HOUSES OF CORRECTION.
Sections 1-3. — Inspection of Prisons.
Sections 4—7 . — Jails .
Sections 8-12. — Houses of Correction.
Sections 13-15. — Houses of Reformation for Juvenile Offenders.
Sections 16-27. — Provisions Relative to Jails, Houses of Correc-
tion and Prisoners.
Sections 28-37. — Expense of Supporting Prisoners.
Inspectors of
prisons;
duties.
1834, 151, § 15.
R. S. 143, §§ 28,
29.
1843, 61, § 2.
1845, 221.
G. S. 178, §§ 62,
64.
1864, 311, § 1.
P. S. 220, §§ 72,
73.
INSPECTION OF PRISONS.
Section 1. The county commissioners shall be inspectors of 1
the prisons in their counties. They shall twice in each year, at 2
intervals not exceeding eight months, themselves or by a committee 3
of two of their members, visit all the prisons in their county, and 4
fully examine into everything relative to the government, dis- 5
cipline and police thereof, and as soon as may be after each inspec- 6
tion, the committee shall make and subscribe a detailed report to 7
the commissioners of the condition of each prison as to health, 8
cleanliness and discipline at the time of inspection, the number of 9
prisoners confined there within the preceding six months or since 10
the last inspection, the causes of confinement, the number of pris- 11
oners usually confined in one room, the distinction, if any, usually 12
observed in the treatment of the different classes of prisoners, the 13
punishments inflicted, any evils or defects in the construction, 14
discipline or management of such prisons, the names of prisoners 15
who have been discharged or pardoned or who have died or escaped ; 16
and any violation or neglect of law relative to such prisons, with 17
the causes, if known, of the violation or neglect. 18
Access to
books, ac-
counts, etc.
R. S. 143, § 31.
G. S. 178, § 66.
P. S. 220, § 74.
Section 2. When the commissioners or any of them visit any 1
of said prisons, for the purpose of inspection or otherwise, the 2
sheriff, master, keeper or other officer who has charge thereof shall 3
admit them, when required, into every apartment of such prison, 4
exhibit all books, precepts, documents, accounts and papers relative 5
to the affairs of the prison or to the detention or confinement of 6
any person therein, which may be required, and afford to them such 7
aid as may be requested in the performance of their duties. The 8
commissioners or their committee may examine under oath, admin- 9
istered by one of them, either by interrogatories in writing to be 10
answered in writing and subscribed, or otherwise as they may 11
direct, any officer, keeper or other person relative to the affairs 12
or management of any prison, and they may also converse with any 13
of the prisoners apart, and without the presence of any officer or 14
keeper. 15
Notice to dis-
trict attorney
of violation
of law.
R. S. 143, § 32.
G. S. 178, § 67.
P. S. 220, § 75.
Section 3. If it appears to the commissioners, from the report 1
of their committee or otherwise, that any provision of law relative 2
to prisons has been violated or neglected in their county, they shall 3
forthwith give notice thereof to the district attorney, 4
Chap. 224.] jails and houses of correction. 1881
JAILS.
1 Section 4. Jails shall be used for the detention, — jaiis,pur-
2 First, Of persons charged with crime and committed for trial. K?s.si43, § i.
3 Second, Of persons committed to secure their attendance as p.'f.'220'f i.'
4 witnesses upon the trial of criminal causes. ItR^7' *th
5 Third, Or persons committed pursuant to a sentence upon con-
6 viction of crime or for any cause authorized by law.
7 Fourth, Of persons detained or committed by the courts of the
8 United States.
1 Section 5. If there are several jails in a county, the sheriff may sheriff may
2 cause the prisoners to be confined in any of them. on™r°s!e pnB"
R. S. 143, § 43. G. S. 178, § 2. P. S. 220, § 2.
1 Section 6. If a prisoner escapes by reason of the insufficiency Reimburse-
2 of the jail, whereby the sheriff is made liable to a party at whose forndamageslff
3 suit the prisoner was committed, or to whose use any forfeiture was noo-if lf§9.
4 adjudged against him, the county shall reimburse the amount ^8| 4^ §§\-2
5 recovered by such party of the sheriff on account of the escape. p' I' 220' II'
1 Section 7. The jailers of the county shall, at the opening of ^™™onersSt
2 each sitting of the superior court at which criminal business may *° c°uJt-
3 be transacted, return to the court a list of all prisoners in their 1700-1, 2,'§ 1.'
4 custody, specifying the causes for which, and the persons by whom, i836!4,'§i9!
5 they were committed, and produce and exhibit therewith, for the p.' I.' 220) 1 1."
6 inspection of the court, their calendars of prisoners, and return a
7 like list of the persons committed during the session of the court,
8 in order that the court may take cognizance and make deliverance
9 according to law of the prisoners committed for crimes within its
10 jurisdiction. Jailers who neglect to make such reports or to
11 exhibit their calendars shall be punished by a fine at the discretion
12 of the court.
HOUSES OF CORRECTION.
1 Section 8. The county commissioners in each county, except ^ctlorf howr"
2 Dukes County, shall, at the expense of the county, provide a house provided, etc.
3 or houses of correction, suitably and efficiently ventilated, with con- 1699-1700; 8, § 1.
4 venient yards, workshops and other suitable accommodations adjoin- i8i8| i23,§§ 5.
5 ing or appurtenant thereto, for the safe keeping, correction, gov- r3|. u1,'^1;
6 ernment and employment of offenders who may be legally committed iH§ §3^4 § 2.
7 thereto by the courts and magistrates of this commonwealth or of g5|> **| § 3|-
8 the United States.
P. S. 220, § 7. 1885, 266, § 6. 101 Mass. 24. 116 Mass. 194.
1 Section 9. The yards shall be of sufficient extent for the Enclosed
2 convenient employment of the persons confined therein, and shall lm, 151, §1.
3 be enclosed by fences of sufficient height and strength to prevent q\ |; "f; | f;
4 escapes and to prevent all persons who are without from access to p- s- 220> § 8-
5 or communication with any person confined therein. If such
6 house of correction is not provided, the jail or a part thereof may
7 be used for that purpose ; but if so used, it shall be provided with
8 a sufficient yard, so enclosed.
1882
JAILS AND HOUSES OF CORRECTION.
[Chap. 224.
houseof cor. Section 10. The sentence of prisoners to a house of correction 1
rectionma shall be executed in any house of correction in the county. 2
county. J J
1859, 249, § 7. G. S. 178, § 8. 1860, 164, § 1. 1862, 127, § 1. P. S. 220, § 10.
County com-
missioners,
etc., to enforce
rules, inspect
accounts, etc.
1834, 151, § 6.
R. S. 143, § 11.
1857, 35.
G. S. 178, § 12.
1877, 147.
P. S. 220, § 12.
Section 11. The county commissioners of the several counties 1
and the penal institutions commissioner of the city of Boston shall 2
cause the rules which are established for the management of the 3
house of correction and for the government of the prisoners therein 4
to be strictly observed, shall examine all accounts of the master 5
relative to the expenses of the institution and shall keep a record 6
of their official proceedings relative thereto. 7
Sheriff to re-
port to court
number of
employed.
1875, 83.
P. S. 220, § 16.
Section 12. The sheriff shall report to the superior court, at 1
each sitting at which criminal business may be transacted, the num- 2
ber of prisoners sentenced to labor in houses of correction in the 3
county who are employed and also the number who are not em- 4
ployed, with the reasons why they are not employed. 5
Houses of
reformation
for offenders
under age of
sixteen years.
1865, 208, § 2.
P. S. 220, § 18.
— how to he
governed.
Discharges.
1825, 182, § 5.
1857, 35, § 1.
1865, 208, § 4.
1879, 64, § 1.
P. S. 220, §§ 20,
1889, 245.
1895, 449, § 16.
1897, 395, § 3.
Arrest on
violation of
conditions.
1879, 64, § 2.
P. S. 220, § 22.
1897, 395, § 3.
HOUSES OF REFORMATION FOR JUVENILE OFFENDERS.
Section 13. County commissioners may, in their discretion, 1
and at the expense of the county, establish houses of reformation, 2
to which offenders under the age of sixteen years may be sentenced 3
for offences which are punishable with imprisonment or for the non- 4
paj^ment of fine. 5
Section 14. They shall make regulations for the government 1
and control of such houses of reformation, and for the appointment 2
of teachers and officers thereof, and may at any time discharge any 3
person who is sentenced thereto. In the county of Suffolk, the 4
trustees for children shall, subject to the approval of a justice of 5
the court which imposed the sentence, have like authority to dis- 6
charge persons from the house of employment and reformation for 7
juvenile offenders which is established in the city of Boston, and 8
may, subject to like approval, remit the punishment of and place 9
upon probation any person who may have been committed to said 10
house of employment and reformation, upon such conditions as 11
they consider proper. 12
Section 15. If any person whose punishment has been remitted 1
and who is placed upon probation as provided by the preceding 2
section, in the opinion of said trustees for children, violates any of 3
the conditions of such remission or probation, said trustees may at 4
any time, without further warrant or authority, cause him to be 5
arrested, and to be remanded and confined for the unexpired term 6
of his sentence. 7
Sheriff to have
custody of jail,
etc
1859, 249, § 1.
G. S. 178, § 19.
1865, 241.
P. S. 220, § 23.
161 Mass. 391.
PROVISIONS RELATIVE
TO JAILS, HOUSES
PRISONERS.
OF CORRECTION AND
Section 16. The sheriff shall have the custody and control of 1
the jails in his county and, except in the county of Suffolk, of the 2
houses of correction therein, and of all prisoners who may be com- 3
mitted thereto, and shall keep the same himself or by his deputy 4
Chap. 224.] jails and houses of correction. 1883
5 as jailer, master or keeper and shall be responsible for them. The
6 jailer, master or keeper shall appoint subordinate assistants, em-
7 ploye'es and officers, and shall be responsible for them. In the
8 county of Suffolk, the penal institutions commissioner shall appoint
9 a master of the house of correction, who shall hold office during the
10 pleasure of said commissioner.
1 Section 17. The sheriff shall receive such compensation from compensation
2 the county, not less than twenty dollars a year, for the safe keeping care oTprison-
3 of the prisoners who may be committed to his custody, as the iSo,eiio, §6.
4 county commissioners, or, in the county of Suffolk, the mayor and §; |; i|8§§9ii.
5 aldermen, determine. He shall not receive any rent or emolu- JL^v220, I25-
n i • >i 1 i pit p Mass. 34.
6 ment from the jailers and keepers ot the houses of correction for
7 the use and occupation of the dwelling houses which are provided
8 for them by the county.
1 Section 18. The county commissioners shall establish fixed ^su^te^tc
2 salaries for all officers, assistants and employees of jails and houses 1859,249, §2.
3 of correction, which shall be in full compensation for all their 1864,' 270,' §1. '
4 services, and for which they shall devote their whole time, not ex- leaMass.k. '
5 ceeding the time limited by the provisions of section twenty, to
6 the performance of their duties, unless released therefrom by the
7 commissioners.
1 Section 19. A sheriff, master, keeper or jailer who considers inadequate
2 any such salary inadequate may present his petition to the superior nXPdetei-lon'
3 court, which, after notice to the chairman of the county commis- Sa^ai^ § 3.
4 sioners and a hearing, shall fix the salary and pass any appropriate p * f" 220' I if"
5 Order. ' 145 Maes. 500.
1 Section 20. The hours of labor for employees of county jails Hoursof labor.
2 and houses of correction shall not exceed sixty in each week. A 1900'*25-
3 county officer who violates the provisions of this section by requir-
4 ing an employee to work more than sixty hours in a week shall be
5 punished by a fine of not less than twenty-five nor more than fifty
6 dollars for each offence.
1 Section 21. The keeper of a jail, master of a house of correc- Abstract of
2 tion or superintendent of a workhouse to which a female has been mittingUfemaie
3 committed shall forthwith transmit to the secretary of the prison p^on^om?
4 commissioners such an abstract of the mittimus upon which she has ig^^f1*6^.
5 been committed as said commissioners may require. p- s- 22°. § 30-
1 Section 22. If a prisoner dies in the jail or house of correction, Burial of de-
2 the sheriff or keeper shall deliver the body to his relations or friends oner?d pns"
3 if they request it ; otherwise, he shall bury it in the common r^h/IsV.
4 burying ground and the expense thereof shall be paid by the city p." |; 220' fit
5 or town in which the deceased had a legal settlement, if any ;
6 otherwise, by the county.
1 Section 23. Upon the expiration of the term of office of a sheriff to de-
2 sheriff, or upon his resignation or removal from office, he shall de- t^su&essor!1"8
3 liver to his successor all the prisoners who are in his custody, but r8!'.4^'.^.
4 he shall retain the keeping of the jails and houses of correction and p>; f;^; §32!
1884
JAILS AND HOUSES OF CORRECTION.
[Chap. 224.
of the prisoners therein under his care until his successor has been 5
elected or appointed and qualified. 6
Upon death of
sheriff, jailer
to continue in
otlice until, etc.
1808, 46, § 1.
R. S. 14, § 86.
G. S. 178, § 28.
P. S. 220, § 33.
Section 24. Upon the death of a sheriff, the jailer, master or 1
keeper appointed by him shall continue in office and retain the 2
custody and control of the jail or house of correction and of all 3
prisoners therein until a successor to the deceased sheriff has been 4
appointed or elected and qualified, or until the governor, with the 5
advice and consent of the council, removes him and appoints 6
another. The jailer, master or keeper appointed by the governor 7
shall give bond with sureties as the governor directs and approves 8
for the faithful performance of the duties of his office. 9
Care of jail,
ctc»
1817, 149, § 1.
1834, 151, § 11.
R. S. 143, § 38.
G. S. 178, § 31.
P. S. 220, § 36.
18S6, 226.
Section 25. The keeper of each jail and the master of each 1
house of correction shall, at the expense of the county, cause it 2
to be constantly kept in as cleanly and healthful a condition as 3
may be. No permanent vault shall be used in any apartment. 4
Every room occupied by a prisoner shall be furnished with a suit- 5
able bucket, with a cover made to shut tight, for the necessary 6
accommodation of such prisoner, and such bucket, when used, shall 7
be emptied daily and shall be constantly kept in good order. 8
Removal of
prisoners in
case of pesti-
lence.
R. S. 143, § 41.
G. S. 178, § 48.
P. S. 220, § 51.
Section 26. If disease breaks out in a jail or other prison, which, 1
in the opinion of the inspectors of the prison, may endanger the 2
lives or health of the prisoners to such a degree as to render their 3
removal necessary, the inspectors may designate in writing a suit- 4
able place within the same county, or any prison in a contiguous 5
county, as a place of confinement for such prisoners. Such designa- 6
tion, having been filed with the clerk of the superior court, shall be 7
a sufficient authority for the sheriff, jailer, master or keeper to 8
remove all the prisoners who are in his custody to the place desig- 9
nated and there to confine them until they can be safely returned 10
to the place whence they were removed. Any place to which the 11
prisoners are so removed shall, during their imprisonment therein, 12
be deemed a prison of the county in which they were originally 13
confined, but they shall be under the care, government and direction 14
of the officers of the county in which they are confined. 15
— in case of
danger from
Are.
R. S. 143, § 42.
G. S. 178, § 49.
P. S. 220, § 52.
Section 27. If a jail or other prison or any building near thereto 1
is on fire and the prisoners are exposed to danger thereby, the 2
sheriff, jailer or other person who has charge of the prison may 3
remove them to a safe place, and there confine them as long as 4
may be necessary to avoid the danger, and such removal and con- 5
finement shall not be deemed an escape of the prisoners. 6
EXPENSE OF SUPPORTING PRISONERS.
County com.
missioners to
Section 28. The county commissioners shall, except in the 1
pi£sure8up" county of Suffolk, without extra charge or commission to them- 2
g5| u98 \% se^ves or t° any other person, procure or cause to be procured all 3
p." s." 220,' §k" necessary supplies for the jails and houses of correction, to be 4
purchased and provided under their direction and at the expense of 5
the county. 6
Chap. 224.] jails and houses of correction. 1885
1 Section 29. The expense of keeping and maintaining convicts Expense of
2 sentenced to imprisonment in the jail or house of correction, of con??cte.ns
3 the keeping of persons charged with or convicted of crime and ilil,' ill,' § i.
4 committed for trial or sentence, and of prisoners committed on pf|' ^'i^-
5 mesne process or execution , so long as the fees for their board are W3|,'i56.'
6 paid by the defendant or debtor, plaintiff or creditor, shall be paid p." s.' 220; § 54I
7 by the county after the accounts of the keeper or master have been 8 Met. 513! 6"
8 settled and allowed by the county commissioners, or, in the county
9 of Suffolk, by the auditor of the city of Boston ; and no allowance
10 therefor shall be made by the commonwealth.
1 Section 30. The county commissioners and the mayor of the Advances for
2 city of Boston may order such amounts of money as may from time i8^i5i,s§ i8.
3 to time be necessary to be advanced from the treasuries of their R- s- 143, §§ 23,
4 counties or city to the master of the house of correction or keeper \^> *||> | ^
5 of the jail, for the purpose of providing such tools, materials and S-f-3f ff-
6 other things as may be required for the government, restraint and
7 safe keeping of the convicts. Such amounts shall be expended by
8 him under the direction of the officers who order the advancement
9 and shall be accounted for by him to them.
1 Section 31. The keeper of the jail and the masters of the clothing, bed-
2 houses of correction in the county of Suffolk shall, at the expense lg^m?^!*
3 of the county, provide necessary fuel, bedding and clothing for all oil", its' fell
4 prisoners in their custody upon charge or conviction of crime against p- s- 220> § 57*
5 the commonwealth, and shall present to the auditor of the city of
6 Boston a full account of their charges so incurred, or incurred for
7 necessary furniture for said institutions, which, upon the allowance
8 thereof by the auditor, shall be paid by the county.
1 Section 32. If the commissioners, or, if the mayor of the city Keeper to obey
2 of Boston, direct specific rations or articles of food, soap, fuel or nLbTng specific
3 other necessaries to be furnished to the prisoners, the keeper or 1334° isi, § 20.
4 master shall conform to such direction ; and if he refuses or neglects ^"5f * iff,' 1 33."
5 to furnish the same, he shall be subject for a first and second offence p*f'|jf f|f-
6 to the penalties prescribed by section twenty of chapter two hun-
7 dred and ten for the offences therein mentioned.
1 Section 33. The penal institutions commissioner in the city of of0masteraof°D
2 Boston shall from time to time determine what amount the master house of
correction in
3 of the house of correction for the county of Suffolk shall receive Suffolk.
4 for the board of the persons committed to his custody, and the city r. s'. 143, § u.
5 council of the city of Boston shall determine what further compen- G. s. m, § 56.
6 sation, in addition to such board, he shall receive for his services. *\s.22o, §59.
Audit of ac-
counts for
1 Section 34. The county commissioners, and, in the county of
2 Suffolk, the auditor, shall twice in each year, and oftener if neces- "wg-*0^
3 sary, examine and audit the accounts for the care and expense of jf^^'l1^
4 supporting and employing the persons committed to the houses of 18*57,' 35, '
5 correction in their county, and certify what amount is due for sup- p.* s.' 220,' f 60!
6 porting and employing each person after deducting the net profit of
7 his labor. If such person refuses or neglects, for fourteen days
8 after demand in writing by the master or keeper, to pay the amount
9 so certified to be due, the commissioners or auditor may recover it
1886
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
in an action of contract in the name of their county, or, in the 10
county of Suffolk, in the name of the city of Boston. 11
Recovery of
support of
poor convicts.
1699-1700, 8, § 5.
1787, 54, § 4.
1826, 142, § 1.
1834, 151, § 10.
K. S. 143, § 16.
1839, 146, § 2.
1843, 66, §§ 2, 3.
G. S. 178, § 58.
1876, 148.
P. S. 220, § 61.
18 Pick. 470.
4 Met. 278.
5 Met. 54.
Section 35. If such person has not sufficient property to pay the 1
amount so certified, it may be recovered of any parent, master or 2
kindred liable by law to maintain him. If he has been committed 3
for an offence described in section thirty of chapter two hundred 4
and eight or section forty-six of chapter two hundred and twelve, 5
an amount not exceeding one dollar a week may be recovered of 6
the city or town in which he has his lawful settlement ; and any 7
city or town which pays such amount may recover it of any parent, 8
master or kindred liable by law to maintain him. 146 Mass. 134. 9
Action there-
for.
R. S. 143, § 16.
1846, 154, § 1.
G. S. 178, § 59.
P. S. 220, § 62.
20 Pick. 112.
22 Pick. 211.
Section 36. Upon the refusal or neglect to make payment for 1
thirty days after demand in writing of the parent, master or kin- 2
dred, or of any member of the city council of the city, or of any 3
overseer of the poor of the town, respectively liable by law therefor, 4
the county, or in the county of Suffolk, the city of Boston, may, 5
within two years after the amount has been so certified, recover it 6
in an action of contract against the party so liable. 7
Notice to town
liable for
support.
1843, 66, § 1.
G. S. 178, § 60.
P. S. 220, § 63.
109 Mass. 162.
Section 37. When a person for whose support a city or town 1
is liable under the provisions of section thirty -five is committed, 2
the master or keeper shall forthwith give notice thereof in writing, 3
by mail or otherwise, to the mayor and aldermen or selectmen of 4
such city or town. 5
CHAPTER 225.
OF THE OFFICERS AND INMATES OF PENAL AND REFORMATORY INSTITU-
TIONS, AND OF PARDONS.
Sections 1-14. — Officers.
Sections 15-131. — Prisoners.
Sections 132-135. — Pardons.
Sections 136-142. — Aid to Discharged Prisoners.
Record of com-
mitments, etc.
1874, 264, §1;
385, § 19.
P. S. 219, § 31.
OFFICERS.
Section 1. The warden of the state prison, the superintendent 1
of the Massachusetts reformatory and of the reformatory prison for 2
women, respectively, and the masters and keepers of jails, houses 3
of correction and of all other penal or reformatory institutions 4
shall keep full and accurate records of all prisoners who may be 5
committed thereto, maintained therein or discharged therefrom. 6
— of property
In possession
of prisoners.
1861, 138.
P. S. 222, § 1.
Section 2. They shall keep a record of all money or other 1
property which is found in the possession of prisoners who are com- 2
mitted to such institutions ; and shall be responsible to the com- 3
monwealth for the safe keeping and delivery of said property to said 4
prisoners or their order upon or at any time before their discharge 5
from prison. 6
•Chap. 225.] officers and inmates of penal institutions. 1887
1 Section 3. They shall keep a record of the name and number Record
2 or other sufficient designation of every person punished by solitary fmpris^nment.
3 imprisonment, the day and hour when he was placed in solitary p.7s'.222§§§2|35
4 imprisonment, the day and hour when released, the offence and such
5 remarks as may be necessary to complete the record. The prison
6 commissioners shall ascertain whether the requirements of this
7 section are observed.
1 Section 4. The jailer, keeper or master of each jail and house calendar of
2 of correction shall keep in a bound book an exact calendar of all fanfetcf s m
3 prisoners committed thereto, in which shall be recorded the names Rfl'AV § sb.
4 of all prisoners, their places of abode and additions, the time, g5| \37g' i |i
5 cause and authority of their commitment, and, if they have been p." s.' 220,' § 28.'
6 committed upon a sentence on conviction of crime, a description of '
7 their persons, and such facts as, with the entries in the prison book,
8 will enable the sheriff or penal institutions commissioner of the
9 city of Boston to make the reports to the prison commissioners
10 which are required by law. He shall record in the same book the
11 time and authority for the release of every prisoner who is released
12 and the time and manner of the escape of a prisoner who escapes.
13 A jailer, master or keeper who neglects to keep such calendar or to
14 enter such facts therein shall forfeit one hundred dollars, which shall
15 be recovered by the county commissioners in the name of the county,
16 or, in the county of Suffolk, by the penal institutions commissioner
17 in the name of the city of Boston, and shall be expended by them
18 or him for the relief of discharged prisoners.
1 Section 5 . All process to be served within the precincts of any service of
2 penal or reformatory institution shall be directed to and served by prisons. m
3 the warden, superintendent, master or keeper thereof or his deputy, ill?; ii8,§§83.
R. S. 144, § 25. G. S. 179, § 3. P. S. 221, § 3.
1 Section 6. All warrants, mittimuses, processes and other of- fact's8 e°tcWar'
2 ficial papers by which a prisoner is committed or released, or attested ^ ^> § 6-
3 copies thereof, shall contain a detailed statement of the fees of the g! s. its, § 25.
PS 220 § 29
4 officer for making the commitment, shall be regularly filed in chron- is9o,'328,'§ 1. '
5 ological order and shall be safely kept with the calendar in a suita-
6 ble box for that purpose. Upon the expiration of the sheriff's
7 commission, his death, resignation or removal from office, it shall be
8 delivered to his successor ; and in default thereof, the sheriff or his
9 executor or administrator shall forfeit two hundred dollars.
1 Section 7. Each jailer and master of a house of correction shall e^t£80nbook,
2 have a prison book, in which he shall keep an account of the value i8i8"i™'§83§7'
3 of the labor of the prisoners, of the salaries of officers and of arti- Jfi|» ?Zjj« f |-
4 cles furnished for the support of the prisoners, the quantity of such g. s*. 17s', § ei.
-1 "PS 2^0 8 65
5 articles, of whom bought and the price paid, classified as follows: is oray/4S9. '
6 cost of provisions, including the portion consumed by the family of
7 the jailer or master ; cost of clothing ; cost of beds and bedding ;
8 cost of medicines ; cost of medical attendance ; cost of religious or
9 secular instruction ; cost of fuel ; cost of light ; allowance to dis-
10 charged prisoners ; allowance to witnesses in money or clothing.
11 The prison book, verified by the oath of the jailer or master, shall
12 be exhibited to the commissioners when his accounts are presented
1888 OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
for examination, and at other times when demanded. A jailer or 13
master who neglects to keep such book or to enter therein such 14
facts, or who wilfully makes any false entry therein, shall forfeit 15
one hundred dollars, which shall be recovered by the county com- 16
missioners in the name of the county, or, in the county of Suffolk, 17
by the penal institutions commissioner in the name of the city of 18
Boston, and shall be expended by them or him for the relief of 19
discharged prisoners. 20
i89Vooi296bookB* Section 8. The master, keeper, superintendent or other officer 1
who has charge of a jail, house of correction, truant school or other 2
county public institution shall keep an invoice book, in which shall 3
be entered, on the day of receipt, all bills for supplies for the 4
maintenance of such institution. Such books shall be as nearly 5
uniform as the character of the institutions will admit and shall be 6
kept posted up to date so that the footings shall at any time show 7
the then actual facts relating to such supplies. Such books shall 8
be county property and shall remain among the records of the in- 9
stitutions to which they belong. 10
reports. Section 9. The warden of the state prison, the superintendent 1
J3 ^ i™ of the Massachusetts reformatory and of the reformatory prison for 2
1857, 40, 290. •> . . •> A
1858,46. women, respectively, sherms, county commissioners and the penal 3
1859 139 §5 1—3
g. s'. its, §§ 69-' institutions commissioner of the city of Boston shall annually, on 4
1864, 307, §§ 2-4. or before the fifteenth day of October, make a report to the prison 5
lira; I!0' §9* commissioners of the salaries of prison officers, of the number and 6
3854§222.,§§2,3; cos* °f suPPort of prisoners, and of such other details relative to 7
ii4' 294' 33 ^ne management and discipline of the several prisons as the com- 8
i8si',66.' ' missioners may from time to time prescribe. The warden of the 9
33,38. ' ' state prison and the superintendent of the Massachusetts reforma- 10
188,255, §§ , ^ory an(j 0f £he reformatory prison for women, respectively, shall 11
also include in their reports the amount of liabilities and outstand- 12
ing claims of said institutions, the names of their debtors and 13
creditors, the amounts due to or from each and when they are pay- 14
able ; detailed accounts of expenditures for the prisons for the year 15
ending on the preceding thirtieth day of September ; the cost of all 16
changes made in the buildings thereof; the names, position, pay 17
and allowances of every officer or employee thereof; the average 18
cost of the support of each prisoner ; the number of volumes in the 19
library of each prison ; and such other facts relative to said prisons 20
as the commissioners consider proper. An officer who refuses or 21
neglects to make such report at the time prescribed or who with- 22
holds it after said date shall forfeit one dollar for each day's neglect, 23
which shall be deducted from his salary or compensation at the 24
first monthly payment after his default has been reported to the 25
proper auditing or disbursing officer. 26
waatchmen°f Section 10. An officer in a jail or house of correction may be 1
1894, 349. transferred to the state prison or the Massachusetts reformatory as 2
a watchman ; and if the place in which he is employed is not in the 3
classified list prepared by the civil service commissioners, they 4
shall give him a non-competitive examination as to his fitness, upon 5
receipt from the warden of the state prison or the superintendent 6
of the Massachusetts reformatory of a statement that the appoint- 7
Chap. 225.] officers and inmates of penal institutions. 1889
8 ment of such officer is desired and that he possesses particular
9 qualifications for the work which will be required of him.
1 Section 11. An officer of the state prison who holds his place at Removal of
2 the pleasure of the warden, or of the warden and commissioners, or officers of*1
3 an officer or employee of the Massachusetts reformatory or reforma- ?827,0ii8, § 7.
4 tory prison for women who holds his place at the pleasure of the Sbf/ilf/li.1'
5 superintendent, or of the superintendent and commissioners, who is §'79' 294' |il.'
6 unfaithful or incompetent, or who uses intoxicating liquor as a ^'■Jot' §21"'
7 beverage, shall be by them forthwith removed. If the warden or 1901', 364; § 3.
8 superintendent and the commissioners do not concur as to the ex-
9 pediency of a removal which requires their concurrence, the question
10 may be referred to the governor and council, who may make such
11 removal.
1 Section 12. The jailer, master or keeper of a jail or house of ^f houses of
2 correction, except in the county of Suifolk, may be removed by the ^T3^0?-
3 superior court for neglect of duty or for wasteful or extravagant g. s. 17s', § 20.
4 use of supplies, upon complaint of the county commissioners, after
5 notice to the sheriff and the person complained of and a hearing.
1 Section 13. The sheriffs of the several counties and the penal ^to^ating
2 institutions commissioner of the city of Boston shall forthwith re- "q^or to be
•^ removed.
3 move any officer who has been appointed by them, respectively, to isss, i62,'§ 2.
4 any position of trust or authority in a jail or house of . correction p." s." 220' § 49.'
5 and who is known to use intoxicating liquor as a beverage. 1882,6, §4.
1 Section 14. The authorities of the state of Vermont shall have Transportation
2 the same power and authority to detain and transport through this Vermont?18 °f
3 commonwealth persons who have been convicted of crime in Ver- 1892> 423,
4 mont and sentenced to imprisonment in a penal institution therein
5 as they have to detain and transport them in said state.
prisoners.
Classification, Registration and Identification.
1 Section 15. The prison commissioners may, with the approval S prison^011
2 of the governor and council, provide for grading and classifying i|&*> 255, § 2s.
3 the prisoners in the state prison and in the Massachusetts reform- 1892; 267; § 1!
4 atory and may establish rules for dealing with the prisoners in the
5 state prison according to their conduct and industry and with the
6 prisoners in the Massachusetts reformatory according to their con-
7 duct, industry in labor and diligence in study.
1 Section 16. They shall, as far as practicable, so classify prison — m jails
2 ers who have been sentenced and committed to the jails and houses of correction.
3 of correction, with reference to their sex, age, character, condition ilfoj 370* 1 2I
4 and offences, as to promote their reformation and safe custody and ^Jl'. lit', § 4';
5 the economy of their support, and to secure the separation of male f^^l
6 and female prisoners. Sheriffs may classify prisoners in houses of
7 correction, subject to the revision of the prison commissioners.
8 The master or keeper of a jail or house of correction shall ascer-
9 tain whether a prisoner committed thereto upon a sentence of six
10 months or more is able to read or write.
1890
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
Classification
in jails and
houses of cor-
rection.
1817, 149, § 2.
1834, 151, § 19.
R. S. 143, § 35.
G. S. 178, § 33.
P. S. 220, § 38.
Section 17. Male and female prisoners shall not be put or
kept in the same room in a jail or house of correction ; nor, unless
the crowded state of the institution so requires, shall any two
prisoners, other than debtors, be allowed to occupy the same room,
except for work. Persons committed for debt shall be kept sep-
arate from convicts and from persons who are confined upon a
charge of an infamous crime. Conversation between prisoners in
different apartments shall be prevented. Minors shall be kept sep-
arate from notorious offenders and from persons who have been con-
victed of an infamous crime. Persons committed on charge of
crime shall not be confined with convicts, and prisoners charged
with or convicted of a crime not infamous shall not be confined
with those charged with or convicted of an infamous crime, except
while at labor or assembled for moral or religious instruction, at
which time no communication shall be allowed between prisoners
of different classes.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Registration of
prisoners.
1890, 316, § 1.
1900, 260, § 1.
[1 Op. A. G.
27.]
Section 18. Prisoners in the state prison, in the Massachusetts 1
reformatory or reformatory prison for women who have been con- 2
victed of a felony, and prisoners in a jail or house of correction 3
upon a sentence of not less than three years for felony, shall be 4
measured and described, in accordance with the Bertillon method 5
for the identification of criminals, by persons in the service of the 6
commonwealth who may be appointed by the prison commissioners 7
for that purpose. 8
District attor-
ney to furnish
criminal his-
tory.
1890, 316, § 3.
1900, 260, § 1.
Section 19. The district attorney who prosecuted such prisoners
as are described in the preceding section shall forward to the officer
in charge of the prison to which he is sentenced the criminal his-
tory of each prisoner as shown upon the trial, upon blanks which
shall be furnished by the prison commissioners.
1
2
3
4
5
Record of
measurements.
1S90, 316, § 2.
1900, 260, § 2.
[1 Op. A. G.
27.]
Section 20. The warden of the state prison, the superintendent 1
of the Massachusetts reformatory and of the reformatory prison for 2
women, respectively, and the keepers of jails and houses of correc- 3
tion shall keep a record of such measurements d"nd descriptions 4
and of the criminal history of prisoners so measured and described 5
as shown by the records of the courts of this commonwealth or of 6
any other state or by any other official records which are accessible, 7
and shall attach to the record, or file in such manner as to be readily 8
found, a photograph or photographs of such prisoner. 9
Publication of
records.
1890, 316, § 4.
1899, 203.
1900, 260, § 1.
Section 21. The record required by the preceding section shall 1
not be published except as far as may be necessary for the identi- 2
fication of persons who are convicted of felony after their release 3
from prison ; but the officer in charge of a prison shall exhibit the 4
record to any person upon the order of a justice of the superior 5
court or of a district attorney. A copy of the measurements, 6
descriptions, photographs and histories shall, upon request, be fur- 7
nished by the officer in charge of any prison to the principal officer 8
of a prison in any other state which requires by law the measure- 9
ment and description of convicts and which has provided for fur- 10
nishing information concerning criminals to other states, and to the 11
chief executive officer of the police force of any city or town in the 12
Chap. 225.] officers and inmates of penal institutions. 1891
13 commonwealth which has in use the said Bertillon method, if such
14 city or town pays for the expense thereof.
1 Section 22. No compensation shall be allowed to an officer for Nocompensa-
2 the performance of any services required by the provisions of the i^o.^ielT8'
3 four preceding sections, but he shall be reimbursed by the com- 1900' 260' § *■
4 monwealth for his actual travelling expenses incurred in the per-
5 formance of any duties therein required.
1 Section 23. The prison commissioners may send or cause to Descriptions
2 be sent to any national bureau of identification which may be estab- n™f0naid t0
3 lished for the purpose of exchanging information according to the ^e ^ 2
4 method of identification by the Bertillon method, the measurements
5 and descriptions of all prisoners in this commonwealth who may
6 be measured thereunder.
Discipline and Treatment.
1 Section 24. The warden and officers of the state prison shall Treatment of
2 treat the prisoners with kindness so long as they merit such treat- R- s. 144, § 52.
3 ment by their obedience, industry and good conduct. p.' s.' 221) § 25.'
1 Section 25. The warden shall cause all necessary means to be warden to
2 used to maintain order in the state prison, enforce obedience, sup- OTder.am
3 press insurrection and prevent escapes, and for that purpose he may ^27' 118' §§3>
4 at all times require the aid and utmost exertions of all the officers g- 1- 1^> § 48.
5 of the prison except the chaplain and physician. p. s. 221,' § 26.'
1 Section 26. Prisoners in the state prison shall be constantly prisoners, how
2 employed for the benefit of the commonwealth, but no prisoner shall i^iisfg 13.
3 be employed in engraving. G.s.rre, §40. p. s. 221, §27. 1888,189. fm'zsi'it'
1 Section 27. No communication between the prisoners in the separation of
2 state prison and any person without the prison shall be allowed. S^ulpgis.
3 The prisoners shall be confined in separate cells in the night time, g! I*. 179' § Hi
4 and all intercourse between them in the day time shall, as far as ^6| 276.'
5 is practicable, be prevented ; but the warden may, at such times and
6 under such circumstances as he considers expedient, with the con-
7 sent of the commissioners, allow them to assemble together in the
8 yard for recreation and exercise.
1 Section 28. Prisoners in the state prison and in the reformatory Employment
2 prison for women may be employed, in the custody of an officer, on puAenantto
3 any part of the premises of the prison, and whoever escapes from Fesl^ias §32.
4 said premises shall be deemed to have escaped from state prison. Jf|!!o7§1'
5 Prisoners in the Massachusetts reformatory may be employed, in the isoi'i 106.
6 custody of an officer, upon any land or building which is owned by
7 the commonwealth, and whoever escapes from said land or building
8 shall be deemed to have escaped from said reformatory.
1 Section 29. Prisoners who are serving sentence in any institu- outside labor
2 tion named in section forty-three shall not be employed outside the mrt^forW
3 precincts of such institution in any mechanical or skilled labor for ^ 209.
4 private parties. 1397,434. 1900,269.
1892
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
Ventilation of
prison, and
baths.
Food, clothing
and bedding.
1817, 149, § 1.
1827, 118, §§ 14,
15.
1829, 16, § 2;
114, § 1.
1833, 67, § 3.
1834, 145, § 2;
151, § 11.
R. S. 143, §39;
144, §§ 44, 45, 47.
1848, 324, §§ 1, 2.
1859, 101.
G. S. 178, §32;
179, §§59,61,62.
1879, 294, § 12.
P. S. 219, §16;
220, §37; 221,
§32.
Section 30. All penal institutions shall be suitably and suffi- 1
ciently ventilated. The food, clothes, beds and bedding therein 2
shall be of good quality and of sufficient quantity for the sustenance 3
and comfort of the prisoners, and the bedding shall include mat- 4
tresses, blankets and pillows. The warden of the state prison, the 5
superintendent of the Massachusetts reformatory and of the reforma- 6
tory prison for women, respectively, and the keepers and masters of 7
jails and houses of correction shall see that strict attention is 8
constantly given to the personal cleanliness of all prisoners in 9
their custody. They shall, once at least in each week, cause the 10
shirt of each prisoner to be washed, each male prisoner to be 11
shaved, and each prisoner to have a bath of cold or tepid water 12
applied to the whole surface of the body if such bath would not, by 13
reason of illness, be hurtful or dangerous. Each prisoner shall be 14
provided daily Avith as much clean water as he needs for drink or 15
for the purpose of personal cleanliness, and with a clean towel once 16
a week. Clothes shall not be washed or hung out wet in any room 17
which is occupied by a prisoner during the night. All prisoners 18
who are not in solitary confinement shall be served three times each 19
day with a sufficient quantity of wholesome food, well cooked and 20
in good order. 21
state prison. Section 31. No person, except the governor and council, mem- 1
g5! 3i°79 §§ 48 ^ers °^ *ne general court, officers of justice or other persons who 2
p.' s." 22i,' § 33.' have business at the prison, shall be allowed to visit it without a 3
permit from one of the commissioners or from the warden. 4
Section 32. The warden shall cause a register to be kept of
g5s' 8i°79 §l«2493' ^ne names and residences of all visitors and of the authority by
Register of
visitors.
1854,
P s
50' a' " a which they visit, which shall always be open to the commissioners,
p. s'. 221, §§ 34, He may refuse admission to a person who has a permit, if such ad-
mission would be injurious to the best interests of the prison, but
he shall forthwith report such refusal to the commissioners.
1
2
3
4
5
6
Gag forbidden.
1879, 181.
P. S. 222, § 6.
Punishment.
»
Section 33. Punishment by the use of the gag shall not be 1
allowed in any penal or charitable institution. An officer of any 2
such institution who uses a gag as a punishment shall be punished 3
by a fine of not more than fifty dollars. 4
Solitary labor.
1850, 289, § 1.
G. S. 179, § 41.
1879, 294, § 34.
P. S. 221, § 28.
Section 34. The warden of the state prison, with the consent
of one or more of the commissioners, may, for such time as they
consider necessary to produce penitence, or to promote good order
and discipline, confine obstinate and refractory prisoners to solitary
labor.
1
2
3
4
5
Solitary
imprisonment.
1827, 118, § 18.
R. S. 144, § 32.
G. S. 179, § 42.
P. S. 221, § 29.
Section 35. A prisoner in the state prison who is sentenced to 1
solitary imprisonment or who is subjected thereto for a violation of 2
the rules and regulations of the prison shall be confined in a soli- 3
tary cell and be fed with bread and water only, unless the physician 4
of the prison certifies to the warden that his health requires other 5
diet. 6
Chap. 225.] officers and inmates of penal institutions. 1893
1 Section 36. When a prisoner is sentenced to solitary imprison- Execution of
2 ment and hard labor in a jail or house of correction, the master or solitary6 10
3 keeper shall execute such sentence by confining him in one of the i^isTTu*"
4 cells, and during the time of solitary imprisonment, he shall be fed f^-^f § 20,
5 with bread and water only, unless other food is necessary for the g. s\ ns, '§ 34.
6 preservation of his health. No intercourse shall be allowed with a
7 prisoner in solitary imprisonment, except for the conveyance of
S food and other necessary purposes.
1 Section 37. As soon as the term of solitary imprisonment has work for
2 expired, the master or keeper shall provide the prisoner with tools and chlSn. log
3 and materials or other means for work in a suitable manner, in r3|'.h3 §21
4 which he can be usefully or profitably employed in the house of gaits'' §«1j5
5 correction or jail, or close yard thereof; but no prisoner shall be ^W7-'
6 employed in engraving or printing. Such prisoner may, if neces- '
7 sary, be confined by a log and chain or in such other manner as
8 shall prevent his escape without unnecessarily inflicting bodily pain
9 or interrupting his labor. The county commissioners, or, if the
10 punishment is inflicted in the jail, the sheriff, shall oversee the ex-
11 ecution of all such sentences.
1 Section 38. If a prisoner is refractory, or if, during the time for Punishment of
2 which he is sentenced to hard labor, he refuses or neglects without prisoned7
3 reasonable cause to labor in a suitable manner when required, he r3|\ H3, § 22.
4 shall be kept in solitary imprisonment and fed on bread and water, ^5| ^ ? 36
5 as before provided, so long as he is refractory or refuses to labor; p. s. 220,' § 41.
6 but the keeper of a jail or master of a house of correction shall not
7 keep a prisoner in solitary imprisonment for more than three days
8 at one time without informing the sheriff or county commissioners
9 thereof and of the reasons therefor.
1 Section 39. If a person who is confined in a jail or house of ^SnSiSt'for
2 correction upon a conviction or charge of a crime against the com- refractory
1 00 prisoner.
3 monwealth is refractory or disorderly, or wilfully or wantonly de- 1818,123, §4.
4 stroys or injures any article of furniture or other property or any 1834; 151' § 13.
5 part of such prison, the sheriff or county commissioners or penal mi,' it' § 46'
6 institutions commissioner of the city of Boston, respectively, after p.' |." 212o>' 1 42.*
7 due inquiry, may cause him to be kept in solitary imprisonment not
8 more than ten days for one offence ; and, during such imprison-
9 ment, to be fed with bread and water only, unless other food is
10 necessary for the preservation of his health.
1 Section 40. If a person who is committed to jail on mesne Punisbmentof
2 process or execution, or for any cause other than those mentioned etc? for depre-
3 in the preceding section, is convicted of any of the offences therein f^us, § 3.
4 named, he shall be punished by solitary imprisonment, as directed r3!'.1^',!^'.
5 in said section, for not more than ten days for each offence, and ^; |; 220' I H."
6 shall be liable in an action of tort, to be commenced by the sheriff
7 or county treasurer in the name and to the use of the county, for
8 double the amount of the damage done to the jail, furniture or
9 other property.
1 Section 41. The provisions of the two preceding sections shall j[j)|J|££ j£.d
2 not affect the authority of a sheriff, jailer or master of a house of thonty.
1894
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
1834, 151, § 13.
R. S. 143, § 48.
G. S. 178, § 39.
Solitary cell.
1873, 143.
1876, 61, §§ 1, 3.
P. S. 222, §§3, 5.
correction to preserve order and enforce strict discipline among the
prisoners in his custody.
3
P. S. 220, §44. 4
Section 42. The officers who have the custody and charge of 1
prisoners in the several prisons and other places of confinement 2
shall see to it that every cell therein which may be used as a place 3
for solitary imprisonment is properly ventilated and furnished with 4
a form of boards, not less than six and one-half feet long, eighteen 5
inches wide and four inches high from the floor, and with a suffi- 6
cient amount of bedding to protect the inmate from injury to 7
health. The prison commissioners shall ascertain whether the re- 8
quirements of this section are observed. 9
Section 43.
Labor of Prisoners.
The prison commissioners and the warden of the
§§ 1, 5.
1897, 412, §3;
434.
1900, 269.
1901, 364, § 2.
173 Mass. 217,
Establishment
of industries.
1887, 447, §§i, 7. state prison, the superintendent of the Massachusetts reformatory,
of the reformatory prison for women or of the state farm, masters,
keepers or superintendents of jails and houses of correction, or of
any other penal institution of the commonwealth, or of any county,
shall determine the industries which shall be established and main-
tained in the respective institutions which are under the control of
said officers. The prisoners in said institutions shall be employed
in said industries under regulations which shall be established by
the prison commissioners, but no contract shall be made for the
labor of prisoners, except that, Avith the approval of the prison
commissioners, prisoners may be employed in cane seating and the
manufacture of umbrellas under the " piece price system", so called.
Instructors.
1887, 447, § 2.
1897, 434.
1900, 269.
Articles to be
produced.
1887, 447, § 13.
1898, 334, § 1.
1900, 269.
Section 44. The warden, superintendent, master or keeper of
any institution described in the preceding section may, with the
approval of the prison commissioners, appoint such superintendents
and instructors to instruct the prisoners in said industries as he and
the prison commissioners shall consider necessary. Such superin-
tendents and instructors shall have the same authority relative to
the prisoners as the subordinate officers of the institution in which
they are employed. Their compensation shall be fixed and they
may be removed by the warden, superintendent, master or keeper,
with the approval of the prison commissioners.
Section 45. The prison commissioners shall, as far as possible,
cause such articles and materials as are used in the public insti-
tutions of the commonwealth and of the several counties which are
established, maintained or supported, wholly or in part, by the ap-
propriation of public money or such as are used in the public
institutions of cities which, according to the latest census, state or
national, had a population of forty thousand inhabitants, to be pro-
duced by the labor of prisoners in the institutions named in section
forty-three.
1
2
3
4
5
6
7
8
9
10
11
12
13
1
2
3
4
5
6
7
8
9
10
1
2
3
4
5
6
7
8
9
MasTacnusetts Section 46. They and the superintendent of the Massachusetts 1
llSK^s. reforrnatory shall endeavor to establish in said reformatory such 2
i888;403;§7. industries as, within the provisions of this chapter, will enable 3
prisoners employed therein to learn valuable trades. 4
Chap. 225.] officers and inmates of penal institutions. 1895
1 Section 47. The number of prisoners in all the institutions Limitation of
2 named in section forty-three who may be employed in the industries IS11 mdus"
3 hereinafter named, shall be limited as follows: in the manufacture illf ' H?" § 8.
4 of brushes, not more than eighty ; in the manufacture of cane chairs \Hf f$ § 2-
5 with wood frames, not more than eighty; in the manufacture of 1894)460!
1897 4-12 € 1
6 clothing other than shirts or hosiery, not. more than three hundred ' '
7 and seventy -five ; in the manufacture of harnesses, not more than
8 fifty ; in the manufacture of mats, not more than twenty ; in the
9 manufacture of rattan chairs, not more than seventy -five ; in the
10 manufacture of rush chairs, not more than seventy-five ; in the man-
11 ufacture of shirts, not more than eighty, and they shall be women ;
12 in the manufacture of shoes, not more than three hundred and
13 seventy-five ; in the manufacture of shoe heels, not more than one
14 hundred and twenty-five; in the manufacture of trunks, not more
15 than twenty ; in stone cutting, not more than one hundred and
16 fifty ; in laundry work, not more than one hundred.
1 Section 48. Not more than thirty per cent of the number of £eimto?,iniam'
2 inmates of any penal institution which has more than one hundred employed in
3 inmates shall be employed in any one industry, except cane seating 1897, 412, § 2;"
4 and the manufacture of umbrellas.
480.
1 Section 49. The provisions of the two preceding sections shall ^w^f"0^'
2 not apply to prisoners who are engaged in the manufacture of ^ns;,12 64
3 goods for use in the penal or public charitable institutions or hos-
4 pitals of the commonwealth, of the counties thereof or of the cities
5 described in section forty -five.
1 Section 50. If the prison commissioners and the warden, super- Bids for piece .
2 intendent, master or keeper of any institution named in section i894,e4i°intract8'
3 forty-three consider the employment of prisoners or a part of them 1900' 269!
4 upon the piece price plan expedient, they shall advertise for bids
5 therefor, which shall be opened publicly, and a copy and record
6 thereof shall be kept by the prison commissioners. If said offi-
7 cers consider it inexpedient to accept any of such bids, contracts
8 may be made with other persons. Copies of all contracts for the
9 employment of prisoners shall be kept by the prison commission-
10 ers, and shall at all times be open to public inspection.
1 Section 51. The tools, implements and materials required for purchase of
2 use in manufacturing in any penal institution named in section ami materials.
3 forty-three shall, and such machinery as may be necessary to replace 111?; 403; f^!'9'
4 any which becomes unfit for use, or which is destroyed by fire or i||l' f||l § a*
5 by the malicious acts of prisoners or to establish new trades or in- 1900> 269-
6 dustries may, be purchased by the warden, superintendent, master
7 or keeper thereof under the supervision of the prison commission-
8 ers after estimates or requisitions, in such form as he shall from
9 time to time require, have been approved by him.
1 Section 52. Goods which have been manufactured in any of u^ured"1'
2 the institutions named in section forty -three shall, with the ap- f°07^7 §§9>
3 proval of the prison commissioners, in such manner as they shall is^' ^ ^ '
4 from time to time prescribe, be sold by the warden, supintendent, 1897,' 412,' § 5;
5 master or keeper thereof at not less than the wholesale market price 1906, 269.
1896
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
which prevails at the time of sale for goods of the same descrip- 6
tion and quality ; but this provision shall not apply to goods fur- 7
nished to public institutions for the use of the inmates thereof. 8
The proceeds of such sales shall be paid by the purchasers to the 9
respective institutions from which the goods are delivered. 10
Purchasing
and selling
agents.
1888, 403, § 3.
Section 53. The warden, superintendent, master or keeper of 1
any institution named in section forty-three may, with the approval 2
of the prison commissioners, appoint agents who, under such regu- 3
lations as the prison commissioners shall from time to time establish, 4
shall purchase tools, implements, materials and machinery and sell 5
manufactured goods as aforesaid. They may be removed at the 6
pleasure of the officer by whom they were appointed and shall 7
receive such compensation as said officer with the approval of the 8
prison commissioners shall determine. The prison commissioners 9
shall have no authority to purchase or sell any articles for any 10
institution. 11
Supply of
articles to
institutions.
1887, 447, § 13.
1897, 434.
1898, 334, §§ 2-4.
1900, 269.
Section 54. The warden, superintendent, master or keeper of 1
each institution named in section forty-three shall make a full report 2
to the prison commissioners when and as they require relative to 3
the labor of the prisoners. The prison commissioners shall from 4
time to time send to them, to the principal officers of public insti- 5
tutions which are described in section forty-five, to the auditor of 6
the commonwealth and to the auditing and disbursing officers of 7
each county and city, a list of such articles and materials as can be 8
produced by the labor of the prisoners. The warden, superintend- 9
ent, master, keeper or principal officer of any such institution in 10
which such articles or materials are needed shall apply therefor to 11
the prison commissioners upon forms to be provided by them. The 12
prison commissioners shall thereupon forthwith inform him in what 13
institutions they are produced, and he shall purchase them from any 14
institution so designated. If they are needed immediately and are 15
not on hand, the prison commissioners shall forthwith so notify 16
him, and he may purchase them elsewhere ; but a bill for articles 17
or materials named in said list which are so purchased shall not be 18
paid unless it is accompanied by a certificate of the prison com- 19
missioners that they could not be supplied from any of said institu- 20
tions. 21
Board to deter,
mine prices.
1898, 334, § 5.
1901, 364.
Section 55. The auditor of the commonwealth, the controller 1
of county accounts and the chairman of the board of prison com- 2
missioners shall constitute a board to determine the prices of articles 3
or materials manufactured and sold under the provisions of sections 4
forty-five and fifty-four. The prices shall be uniform and shall con- 5
form as nearly as may be to the usual market price of like goods 6
manufactured elsewhere. The members of the board shall receive 7
no compensation for such services, but the actual and necessary 8
expenses incurred by them in the performance of such services shall 9
be paid from the appropriation for the incidental and contingent 10
expenses of the prison commissioners. 11
lor^iptf Section 56. The receipts from the labor of prisoners in the 1
of expenses1* s^a*e prison, the Massachusetts reformatory, the reformatory prison 2
Chap. 225.] officers and inmates of penal institutions. 1897
3 for women and the state farm shall be paid into the treasury of the i8&t, 303, § 2.
4 commonwealth monthly, and the receipts from the labor of prisoners p.7!'. 221' §59.
5 in a jail or house of correction shall be paid into the county treas- ^; ^ |§2io
6 ury monthly, and so much thereof as is necessary to pay the ex- ^8' 259' 277
7 pense of maintaining the industries in said institutions shall be
8 expended therefrom for that purpose ; but not until schedules of
9 such expenses have been sworn to by the warden or superintendent
10 and approved by the prison commissioners. Receipts from any one
11 of the institutions shall be applied to paying the bills of that institu-
12 tion only. The warden or superintendent of the state prison, Massa-
13 chusetts reformatory, reformatory prison for women or state farm
14 shall, as often as he has in his possession money to the amount of
15 ten thousand dollars which he has received under the provisions of
16 the thirteen preceding sections, pay it into the treasury of the com-
17 mon wealth, and the master or keeper of a jail or house of correction
18 shall, as often as he has in his possession such money to the amount
19 of five thousand dollars, pay it into the county treasury.
1 Section 57. Bills for tools, implements, machinery and mate- Payment of
2 rials purchased by, and the salaries of persons employed in, the bfiiffortoois,
3 state prison, the Massachusetts reformatory, the reformatory prison 1887, 447, §§ 3, 4.
4 for women and the state farm under the provisions of the fourteen 1891> 228> § 3-
5 preceding sections shall be paid monthly from the treasury of
6 the commonwealth, upon schedules prepared and sworn to by the
7 warden or superintendent and approved by the prison commis-
8 sioners. Bills for tools, implements, machinery and materials pur-
9 chased by, and the salaries of persons employed in, the jails and
10 houses of correction under the provisions of said sections shall be
11 paid monthly from the county treasury, upon schedules prepared
12 and sworn to by the master or keeper and approved by the prison
13 commissioners. The schedules of bills for tools, implements and
14 machinery and of bills for materials and salaries shall be kept
15 separate from each other and from the schedules of bills incurred for
16 the maintenance of the prison, reformatory, jail or house of cor-
17 rection.
1 Section 58. The warden, superintendent, master or keeper of fg^8tywa^
2 any institution named in section forty-three may sue or be sued den, etc. ^
3 upon any contract of purchase or sale made by him under the pro- isss! 403; § 4.
4 visions of the fifteen preceding sections. No suit shall abate by
5 reason of a vacancy in any such office, but the successor of any such
6 officer may, and upon motion of the adverse party shall, prosecute
7 or defend it. The warden, superintendent, master or keeper may
8 submit a controversy relative to such contract or an action thereon
9 to the final determination of arbitrators or referees who shall be
10 approved by the governor, or, if the suit is brought by or against
11 the master or keeper of a jail or house of correction, they shall be
12 approved by the county commissioners.
1 Section 59. The prison commissioners may cause the prisoners Preparation of
2 in any jail or house of correction to be employed within the pre- 1898, 365, § 1.
3 cincts of the prison in preparing material for road making ; but
4 no machine except such as is operated by hand or foot power shall
5 be used in connection with such employment.
1898
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
Highway com. Section 60. The Massachusetts highway commission shall, at 1
mission to give _ . ° . J . /.
instruction. the request of the prison commissioners, give them such information 2
and instructions as will enable them to direct said employment in 3
a manner which will furnish suitable and proper material for road 4
building. 5
Sale of road
material.
1898, 365, § 3.
Section 61. Material so prepared may be sold to the county 1
commissioners or to city and town officers who have the care of 2
public roads. All material not so sold shall be purchased by the 3
Massachusetts highway commission, at such price as they determine 4
is fair and reasonable, for use on state highways ; but the prison 5
commissioners may cause any of said prisoners to be employed 6
upon material furnished by said highway commission, who shall 7
then pay for the labor of preparation such price as may be agreed 8
upon by said prison commissioners and said highway commission. 9
Payment of
expenses.
1898, 366, § i.
Section 62. All money received under the provisions of the 1
three preceding sections shall be paid into the county treasury, and 2
the expenses of employing prisoners thereunder shall be paid from 3
the county treasury, in the manner provided in section fifty -six. 4
Payment for material sold or labor performed thereunder shall be 5
made to the master or keeper of the jail or house of correction 6
where it is prepared or performed. 7
dustriaicamp Section 63. The governor and council may purchase or other- 1
1898, 393, §§ 1, 2. wise take in fee any parcel of waste or unused land, not exceeding 2
one thousand acres in area, for the purpose of reclaiming, improv- 3
ing and disposing of it for the benefit of the commonwealth. When 4
land has been so taken, the governor and council shall cause a de- 5
scription thereof as certain as is required in an ordinary conveyance 6
of land to be filed in the registry of deeds for the county or dis- 7
trict in which the land lies, with a statement, signed by the gov- 8
ernor, that it is taken on behalf of the commonwealth for the 9
purposes described in this section. The act and time of filing such 10
description shall be considered the act and time of taking such land, 11
and shall be sufficient notice to all persons that the land has been 12
so taken. The title to such land shall then vest in the common- 13
wealth. 14
Damages.
1898, 393, § 3.
agree-
Section 64. The governor and council may settle by
ment or arbitration the amount to be paid to any person for land
so taken, and if such amount is not so determined within sixty
days after it has been taken, they shall appraise the value of every
unsettled interest therein as far as can be ascertained and file the
appraisal with the auditor, who shall, upon the application of any
person whose interest has been so appraised, certify the amount
awarded to him by such appraisal, and a warrant shall be drawn
for the payment of such amount from the treasury of the common-
wealth. The acceptance of such payment shall be an acknowledg-
ment of full satisfaction. A person who is aggrieved by such ap-
praisal may, upon application within one year after the taking, have
his damages assessed by a jury in the manner provided for the taking
of land for highways.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Chap. 225.] officers and inmates of penal institutions. 1899
1 Section 65. After such land has been so taken, the prison Establishment
2 commissioners, with the approval of the governor and council, shall superintend.
3 cause iron buildings of cheap construction to be erected thereon for ^ 393 §§ ^
4 the accommodation of not more than one hundred prisoners. When
5 such buildings are ready for occupancy, the governor may issue his
6 proclamation establishing on such land a temporary industrial camp
7 for prisoners, and the prison commissioners may appoint a superin-
8 tendent thereof, who shall hold his office at their pleasure, give
9 such bond as they require, receive such salary as they determine
10 and who shall have the custody of all prisoners removed thereto.
11 The superintendent, with the approval of the prison commissioners,
12 may appoint and determine the compensation of assistants, and they
13 shall hold their office at his pleasure.
1 Section 66. Prisoners held at such camp shall be subject to all 0™^™^*
2 the laws applicable to prisoners at the state farm and, with the 1898, 393, §§ 7, 8.
3 approval of the prison commissioners, may be released from said
4 camp by the superintendent thereof in the same manner as prisoners
5 are released from the state farm by the trustees thereof. They
6 shall be employed in reclaiming and improving said land and in
7 preparing material for road building, by hand labor, under regu-
8 lations made by the prison commissioners. The Massachusetts
9 highway commission and the board of agriculture shall from time to
10 time, at their request, give them such information as will enable
11 them to cause the work to be prosecuted to the best advantage.
1 Section 67. The expenses of maintaining said camp shall be Expense of
2 paid by the commonwealth, upon schedules sworn and certified to S^^IT'
3 by the superintendent and approved by the prison commissioners.
4 Purchases and sales on account of said camp, except as to the
5 land, shall be made by the superintendent with like approval. Re-
6 ceipts for articles or materials sold shall be paid into the treasury
7 of the commonwealth each month.
1 Section 68. Land reclaimed or improved, as aforesaid, may be Disposition of
2 applied to the use of the commonwealth, or it may be disposed of ™98,r393e,d§1io.d'
3 by the governor and council at public or private sale. Any road
4 material prepared, as aforesaid, may be sold by the superintendent
5 of said camp, with the approval of the prison commissioners, to
6 the authorities of the commonwealth or of any county, city or
7 town.
Binding Out Female Prisoners.
1 Section 69. The commissioners may, with the consent of a Binding out
2 woman who is serving a sentence in the reformatory prison for e?™a e pnson"
3 women or in a jail or house of correction, and with the consent of ifso^ ill', | ?I
4 the county commissioners, if she is in a jail or house of correction, p-s.2i9, §23.
5 contract to have her employed in domestic service for such term,
6 not exceeding her term of imprisonment, and upon such conditions,
7 as they consider proper with reference to her welfare and reforma-
8 tion. If, in their opinion, her conduct at any time during the term
9 of the contract is not good, they may order her to return to the
10 prison from which she was taken.
1900
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
Penalty for Section 70. If she leaves her place of service, or if, having
refusing to i-ii •• ■ i -i
return to been ordered by the commissioners to return to prison, she neglects
i88o,°i5i, §§ 2-4. or refuses so to do, she shall be held to have escaped from prison
25. ' and may be arrested and returned to the prison from which she was
1894, 260. taken as if she had escaped therefrom, and shall, upon conviction of
such escape, be punished by imprisonment in the reformatory prison
for women or in a jail or house of correction for not less than three
months nor more than one year. The expense of her arrest and
return to prison shall be paid in the same manner as the expenses
of the arrest and return of a prisoner who escapes from prison.
1
2
3
4
5
6
7
8
9
10
Locked letter
box.
1878, 276.
1879, 294, § 12.
P. S. 222, § 7.
Privileges.
Section 71. Every inmate of a penal or reformatory institution 1
shall be allowed to write letters to the principal officer or to any 2
member of the supervising board thereof. A locked letter box, 3
accessible to the inmates, shall be placed in each institution, in 4
which they may deposit such letters, and such letters shall be duly 5
delivered according to the address thereon. The keys of the boxes 6
in the state prison, in the Massachusetts reformatory and in the 7
reformatory prison for women shall be kept by the commissioners, 8
and of those in each of the other institutions by the principal officer 9
thereof. 10
Exercise of
religious be-
lief, etc.
1834, 151, § 16.
R. S. 143, § 40
G. S. 178, § 40
1875, 126, §§ 1,
1879, 158, §§ 1,
P. S. 222, §§8,
Section 72. An inmate of any prison or other place of confine- 1
ment or public charitable or reformatory institution shall not be 2
■ denied the free exercise of his religious belief and the liberty of 3
'2. worshipping God according to the dictates of his conscience, in the 4
y. place where he is confined ; and he may, in illness, upon request to 5
the warden, keeper or master, receive the visits of any clergyman 6
whom he may wish. The officers and boards of officers who have the 7
management and direction of such institutions shall make such 8
regulations as may be necessary to carry out the intent and pro- 9
visions of this section. The provisions of this section shall not be 10
so construed as to impair the discipline of any such institution, so 11
far as may be needful for the good government and safe custody 12
of its inmates, nor prevent the assembling of all the inmates in the 13
chapel thereof for such general religious instruction, including the 14
reading of the Bible, as the board having charge of the institution 15
considers expedient. 16
Sunday school
and other
instruction.
1838, 152, § 3.
1848, 324, § 3.
G. S. 179, § 43.
1869, 255.
1871, 336.
1879, 294, § 34.
P. S. 221, § 30.
1886, 197.
Section 73. The warden of the state prison, with the consent 1
of the commissioners, may cause a sabbath school to be maintained 2
in the prison for the instruction of the prisoners in their religious 3
duties, and may permit such persons as they consider suitable to 4
attend it as instructors, under such regulations as the commission- 5
ers may establish. The warden may also, subject to the restric- 6
tions and regulations of the commissioners, maintain schools of 7
instruction for the prisoners, at such times, except on Sunday, 8
as he, with the approval of the commissioners, may determine, 9
and for such purpose, may expend, from the appropriation made 10
for the support of the prison, not more than two thousand dollars 11
annually. . 12
Chap. 225.] officers and inmates of penal institutions. 1901
1 Section 74. The superintendent of the Massachusetts reform- school at
2 atory and the commissioners may expend not more than two thou- reformatory"8
3 sand dollars annually for the maintenance of a prison school. im' 255» § 28,
1 Section 75. The county commissioners, or, in the county of Effete onin
2 Suffolk, the mayor of the city of Boston, with the sheriff of the i848,'324,'§ a.
3 county, may, at the expense of their county or city, furnish in- g. s\ 178, § d.
4 struction in reading and writing for one hour each evening, except imi 2G6,' i i?'
5 Sunday, to prisoners in the jails and houses of correction who may
6 be benefited thereby and who wish to receive it.
1 Section 76. The keeper or master of a jail or house of correc- Moral and
2 tion shall, at the expense of the county, provide a copy of the Bible station in
3 or of the New Testament for each prisoner under his charge who is i8i8,'i23C'§4.
4 able and wishes to read, which shall be used by him at proper sea- *p|> ^ § ^
5 sons during his confinement. He may, at the expense of the county, isis, 29, § 1.
6 provide books and papers for the use of such prisoners, but not ex- 1881,125.'
7 ceeding in cost one hundred dollars a year. The county commis-
8 sioners may, in their discretion and at the expense of the county,
9 provide moral and religious instruction for such prisoners.
1 Section 77. In the assignment of cells to prisoners in a house Light for
2 of correction, due regard shall be had to the accommodation of m£\$i\ § 2.
3 those who are able and wish to read ; and from the first day of p< s> 220' § 9*
4 October to the first day of April, annually, all such prisoners who
5 are confined to labor during the day shall be provided with sufficient
6 light to enable them to read for at least one hour each evening.
•
1 Section 78. If the mother of a child under the age of eighteen Female pri6-
2 months is imprisoned in a jail, house of correction, workhouse or custodyaofhave
3 other place of confinement and is capable and desirous of taking i^'g,11^, § 1.
4 care of it, the keeper shall, upon the order of the court or magis- ^ ; |; 220* | II"
5 trate committing her, or of any overseer of the poor, receive the
6 child and place it under the care and custody of its mother.
1 Section 79. If the inspectors, directors or like officers of such f^chlid0/
2 institution are of opinion that the health and comfort of such child jsss. 57, § 2.
3 require its removal, or that it is expedient that it should be removed, p. s. 220, § 35.
4 they shall give notice to the father or other kindred thereof; or,
5 if no kindred can be found to receive it, to the overseers of the
6 poor of the city or town in which it has a legal settlement, who
7 shall receive it. If it has no settlement in this commonwealth, it
8 shall be sent to the state hospital as is provided in the case of alien
9 paupers.
Removals.
1 Section 80. The prison commissioners may remove a prisoner From state
2 held in the state prison upon a sentence for a term of years to the Massachusetts
3 Massachusetts reformatory, and may at any time return him to the Im^mX^;
4 state prison. 1894, 249, §1. 1901,340. wsMass. 168. 331, §5.
1 Section 81. They may, with the consent of the governor and ^ftate
2 council, remove an aged or infirm prisoner in the state prison to 1890, i80,§i.
3 the state farm, and may at any time return him to the state prison.
1902
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
atoiy prison1" Section 82. They may remove a prisoner in the reformatory 1
lsV^TTi prison for women to the state farm or to a jail or house of correc- 2
P-.?'-!1.?" § 5- tion, or, if she has been transferred to said prison from the industrial 3
school for girls, to the state farm or to a house of correction. 4
1896, 317.
<Thusettsre?a' Section 83. They may remove a prisoner in the Massachusetts 1
formatory. reformatory to the state farm or to any jail or house of correction. 2
1884, 255, §§ 12, 15.
17, 292, § 1.
fan™ toMassa. Section 84. They may remove a sentenced male prisoner from 1
chusettsre- the state farm to the Massachusetts reformatory, and may at any 2
formatory. •/ ' J J
1885, 35, § 2. time return him to the state farm. 3
— to house of
correction.
1890, 278, § 1.
Section 8o. They may, upon the application of the trustees 1
of the state hospital and the state farm, remove a sentenced pris- 2
oner from the state farm to any house of correction in the county 3
in which he was convicted, and may, upon like application, return 4
him to the state farm. 5
toryprfsonfor Section 86. They may remove a sentenced female prisoner at 1
is?"1!^ §4 *ne s^a^e farm to the reformatory prison for women, and she shall 2
p. s. 219, § 5. there serve the remainder of her term of sentence. 3
From Lyman
school for
boys, etc.
1884, 255, § 13.
1901, 128, 359.
Section 87. They ma}r, upon the application of the trustees or 1
board in charge of the Lyman and industrial schools, of the house 2
of employment and reformation for juvenile offenders established in 3
the city of Boston, or of any other reform school established under 4
authority of any general or* special act, remove to the Massachu- 5
setts reformatory a boy who is confined in any of said schools upon 6
a sentence for crime, and may at any time, upon like application, 7
return him to the school from which he was transferred. 8
From indus-
trial school
for girls.
1880, 208, § 3.
P. S. 89, § 47.
Section 88. They may, upon the application of the trustees 1
of the Lyman and industrial schools, remove to the reformatory 2
prison for women any girl who was committed for a crime to the 3
industrial school for girls, and, upon like application, may return 4
her to the industrial school for girls. 5
From jail to
jail.
R. S. 143, § 43.
G. S. 178, § 2.
1870, 370, § 2.
1879, 294, § 3.
F.S.219, §4;
220, « 2.
[lOp. A. G.
516.]
From jail to
house of cor-
rection.
Section 89. They may remove a prisoner from one jail to an- 1
other in the same or another county, and he shall serve the 2
remainder of his sentence in the place to which he is removed. 3
The sheriff may, at his discretion, remove a prisoner from one jail to 4
another in the same county for his health or safe keeping or for his 5
more convenient appearance at court. 6
Section 90. They may remove a prisoner in jail under sentence 1
to a house of correction. issi, 220. p. s. 220, §2. 1882,241, §2. 2
From one
house of cor-
rection to
another.
From house of
correction to
jail.
Section 91. They may remove a prisoner from one house of 1
correction to another in the same or another county. 2
1870, 370, § 2. 1879, 294, § 3. P. S. 219, § 4.
Section 92. They may remove a prisoner in a house of correc- 1
tion under sentence to a jail. 1882, 241, § 2. 2
Chap. 225.] officers and inmates of penal institutions. 1903
1 Section 93. They may remove a male prisoner in a jail or From jailor
2 house of correction to the Massachusetts reformatory, if he might, rectfon°toCOr"
3 at the time of such removal, lawfully be sentenced to said reforma- reformatory"8
4 tory, if they are of opinion that he is likely to be benefited by its 1884> 255> § 12-
5 reformatory influences, and they may at any time return him to the
6 place of imprisonment from which he was removed.
1 Section 94. They may remove a prisoner in a jail or house -to state
2 of correction to the state farm, and may at any time return him to if™96, § i.
3 the place of imprisonment from which he was removed. p/s'.lw',!!'.
1885, 35, § 1. 1899, 263, § 1.
1 Section 95. They may, at the request of the governor and ^^f/jg
2 council, remove to the state farm for treatment a sentenced prisoner ism, 214, § 1.
3 in a jail or house of correction who is suffering from disease which,
4 in the opinion of the governor and council, cannot be safely and
5 properly treated in the jail or house of correction, and they may at
6 any time return him to the place from which he was removed.
1 Section 96. They may remove prisoners from jails and houses —to industrial
2 of correction to the temporary industrial camp for prisoners and is98,P393, § 7.
3 may, at any time, return them to the place of imprisonment from
4 which they were removed.
1 Section 97. They may remove a sentenced female prisoner in —to women's
2 a jail or house of correction to the reformatory prison for women, l^aso, § 15.
3 and she shall there serve the remainder of her term of sentence. pJl'.lw'.l 5.
1 Section 98. If it appears to the physician of a house of cor- pregnant
2 rection that a female convict is pregnant, a justice of the superior lsSfill, § 2.
3 court or of a police, district or municipal court may, upon applica- g?IA°78, § 16.
4 tion of the master or keeper of the house, order her to be removed p- s. 220, § 17.
5 to any workhouse in the same count}?" for such term as is expedient ;
6 and, at any time before the expiration of her sentence, may cause
7 her to be returned to the house of correction. The county shall
8 pay two dollars a week for her support and custody to the city or
9 town to which she is so removed.
1 Section 99. The prison commissioners may remove from one Removal of
2 jail or house of correction to another, or to the Massachusetts committed by
3 reformatory, or to the reformatory prison for women, a prisoner ^pf * states
4 who has been sentenced to such jail or house of correction by any 1895> 273,
5 court of the United States.
1 Section 100. They may, upon the certificate of the physician surgical
2 of a prison, jail or house of correction, temporarily place any 1882,207? '
3 prisoner who is under sentence of imprisonment therein or any
4 person who is held in any jail for trial or sentence, except for a
5 capital crime, in such hospital as they shall designate, for such
6 surgical treatment or operation . as cannot otherwise be safely or
7 properly undertaken, and they may, at any time, return such pris-
8 oner or person to the prison, jail or house of correction from which
9 he was temporarily removed. A prisoner or person so placed shall,
10 during his absence from such prison, jail or house of correction, be
1904: OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
deemed to be in the custody of the officer having charge thereof; 11
and, in computing the term of his confinement upon his sentence to 12
imprisonment, the time of his confinement in said hospital shall be 13
considered as a part of such term. 14
Removal Section 101. The state board of insanity shall designate two 1
of insane ... J . . °
prisoners from persons, experts in insanity, to examine prisoners in the state 2
and8reforma- prison, the Massachusetts reformatory or the reformatory prison for 3
i844?i2o. women, who are alleged to be insane. If any such prisoner appears 4
g ft lio, §§ 1-3. to be insane, the warden or superintendent shall notify one of the 5
i88o|250, §5. persons so designated, who shall, with the physician of the prison, 6
p. s. 222, §§ io, examine the prisoner and report to the governor the result of their 7
1885, 320, §§1,2. investigation. If, upon such report, the governor considers the 8
1895', 39o| § 3! prisoner insane and his removal expedient, he shall issue his warrant, 9
1898, , , directed to the warden or superintendent, authorizing him to cause 10
[i3op?a! o.0' the prisoner, if a male, to be removed to the state asylum for insane 11
*13-3 criminals, and if a female, to be removed to one of the state insane 12
hospitals, there to be kept until, in the judgment of the superin- 13
tendent and trustees of the hospital to which the prisoner has been 14
committed, he or she should be returned to prison. When the 15
superintendent and trustees determine that the prisoner should be 16
so returned, they shall so certify upon the warrant of the governor, 17
and notice shall be given to the warden or superintendent of the 18
prison, who shall thereupon cause the prisoner to be reconveyed to 19
the prison, there to remain pursuant to the original sentence, com- 20
puting the time of his detention or confinement in the hospital as 21
part of the term of his imprisonment. The person who makes such 22
examination of a prisoner shall, if he is not a salaried officer of the 23
state board of insanity, receive three dollars a day for his services 24
for each day so employed and his actual travelling expenses, which 25
shall be paid from the annual appropriation of the prison in which 26
the prisoner is examined. 27
prisons!** Section 102. If a prisoner in a jail, house of correction or 1
i£5i'25Ei,§§1'2" Prison other than those named in the preceding section appears to 2
^■s. 180, §§4, 5. be insane, the physician in attendance shall make a report thereof 3
p. s'. 222, §§ 12, to the jailer or master, who shall transmit the same to one of the 4
1895, 390, §3. judges mentioned in section thirty-three of chapter eighty-seven. 5
The judge shall make inquiry into the facts and, if satisfied that 6
the prisoner is insane, shall, if a male, order his removal to the 7
state asylum for insane criminals, or if a female, to one of the state 8
insane hospitals, pursuant to the provisions of sections thirty-four 9
and thirty-five of said chapter. A person so removed who becomes 10
sane before the expiration of the sentence shall be forthwith re- 11
turned to the prison or house of correction from which he or she 12
was removed, there to remain pursuant to the original sentence, 13
computing the time of confinement in the hospital as part of the 14
term of imprisonment. 15
tosaanefprerson Section 103. If a person who is held in jail for trial or for 1
held for trial, sentence, except for a capital crime, appears to be insane, he may 2
p 8s' 222 !§h 3' ^e removed to the state asylum for insane criminals or if a female, 3
1895,' 390,' §3. * to one of the state insane hospitals, in the same manner as a pris- 4
oner may be removed from a house of correction under the provi- 5
Chap. 225.] officers and inmates of penal institutions. 1905
6 sions of the preceding section. If a person so removed is, in the
7 opinion of the trustees and superintendent of the hospital, restored
8 to sanity, he shall forthwith be returned to the jail from which he
9 was removed, where he shall be held in accordance with the terms
10 of the process by which he was originally committed thereto.
1 Section 104. A prisoner who is removed or returned under the Terms of orig.
2 provisions of the twenty-four preceding sections shall be held in £} ^piy?1106
3 the place of imprisonment to which he is so removed or returned, pfs'. f^'/ik
4 in accordance with the terms of his original sentence, unless sooner Jfjo' fio' § 2^'
5 discharged, and the period for which he is so removed shall be f^.^ x!
6 reckoned as a part of the term of his imprisonment. 249, §2/
1895, 273. 1899, 2&3, § 2.
1 Section 105. Every order of removal of the prison commis- order for
2 sioners shall be signed by the secretary of the board and shall be llre,0^ 1.
3 directed to the officer by whom it is to be executed. All mittimuses, pj|. 2w,§§§56,9'
4 processes and other official papers by which a prisoner is committed J|^ 255 § 16
5 or held, or attested copies thereof, shall, at the time of such re- if^'ioA2;.
6 moval, be transferred, with the order of removal, to the institution 278, §3.'
7 to which the prisoner is removed, and be kept therein as if he had i895| 273'.
8 been originally committed thereto ; but if he is returned to the 1899' 268' 3'
9 place from which he was removed, they shall be returned with him.
1 Section 106. An officer who is authorized to serve criminal q^iffl|dt0
2 process may execute an order of removal or return issued under the make re-
. . /. 1 • i movals.
3 provisions of this chapter. i87o, 370, § 5. 1S74, 384, § is. is**. 120, § 2.
1879, 294, § 7. P. S. 219, § 8 ; 222, § 11. 1885, 320, § 2. 1894, 214, § 2. G- S" 180' § 3-
1880, 250, § 5. 1884, 255, § 17. 1890, 180, § 3. 1899, 263, § 3.
1 Section 107. The expense of the commitment of any person Expense of
2 who is sentenced to imprisonment in the state prison, the Massachu- i88M2om§^!'
3 setts reformatory or the reformatory prison for women shall be paid fmiiE'iiL
4 by the county from which the prisoner is committed, and shall be
5 allowed in the same manner as other expenses in criminal cases.
1 Section 108. The expense of the removal of a prisoner to or —of removal.
2 from the Massachusetts reformatory or from the reformatory prison 1874^ 385^ § is.
3 for women to the state farm or to a jail or house of correction, or 294,§2829'§4'
4 from the state farm to the Massachusetts reformatory or reformatory p38^ ^g |§"9j
5 prison for women, or from the state farm to a house of correction, ^ 255 . 18
6 or of the removal of a sick prisoner from a jail or house of correc- i||gl p8'§ 2;
7 tion to the state farm or his return therefrom, shall be paid from ism,' 214,' § 3!
8 the treasury of the commonwealth, and shall, before payment, be
9 approved by the prison commissioners. The expense of the re-
10 moval of a prisoner from one jail or house of correction to
11 another, or from a jail or house of correction to the reformatory
12 prison for women, shall be paid by the county from which such
13 prisoner is removed.
1 Section 109. The expense of supporting a prisoner who is —of support.
1880 156 6 2
2 transferred from the Massachusetts reformatory or the reformatory p. s'. 219, § 1*2.
3 prison for women to a jail or house of correction shall be paid from
4 the treasury of the commonwealth, if the prisoner was not origi-
5 nally sentenced from the county in which such jail or house of
1906
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
correction is situated ; but the bills therefor shall, before payment, 6
be approved by the prison commissioners. 7
Expense of
support.
1866, 280, § 2.
1870, 370, § 4.
1880, 156, § 1.
P. S. 219, § 11.
1890, 278, § 4.
Section 110. The expense of supporting a prisoner who is 1
transferred from a jail or house of correction in one county to 2
another, who is removed from the state farm to a house of correc- 3
tion or who is sentenced to a jail or house of correction in a county 4
other than that in which he was convicted shall be paid by the 5
county in which he was sentenced. If the amount to be paid can- 6
not be agreed upon by the county commissioners of the two coun- 7
ties, it may be determined by the superior court sitting in either 8
county. 9
Same subject.
1876, 96, § 2.
1879, 294, § 6.
P. S. 219, § 7.
1883, 148, § 1.
1886, 101, § 4.
1894, 214, § 3.
1898, 433, § 24.
Section 111. The expense of supporting a state prison convict 1
who is committed to a state insane hospital shall be paid by the 2
commonwealth. The expense of supporting a prisoner who is re- 3
moved from a jail or house of correction to the state farm shall 4
be paid into the treasury of the commonwealth by the county 5
from which he is removed, and the amount thereof shall be deter- 6
mined by the state board of charity. The expense of supporting a 7
sick prisoner who is removed to the state farm under the provisions 8
of section ninety-five, not exceeding three dollars and twenty-five 9
cents a week, shall be paid by the county from which he is removed. 10
Special district
police.
1899, 243.
Section 112. The governor, upon the written recommendation 1
of the prison commissioners, may from time to time appoint any 2
agent of the board a special district police officer for a term of 3
three years, unless sooner removed. Such officer may serve war- 4
rants and orders of removal or transfer of prisoners issued by said 5
commissioners, and shall be paid therefor such amount from the ap- 6
propriation for removing prisoners as the commissioners determine. 7
Deduction for
good conduct.
1857, 284, § 1.
1858, 77.
1859, 108.
G. S. 178, § 47;
179, § 51.
1880, 218, §§ 1,
3,4. ,
1SS1, 40.
P. S. 222, §§ 20,
22.
1886, 323, § 7.
1894, 258.
1898, 443, § 1.
13 Gray, 618.
148 Mass. 168.
172 Mass. 264.
[lOp.A. G.9.]
Permits to be at Liberty, Release on Probation and Discharge.
Section 113. Every officer who is in charge of a prison or 1
other place of confinement, except the Massachusetts reformatory 2
and the state farm, shall keep a record of the conduct of each pris- 3
oner who is in his custody and whose term of imprisonment is four 4
months or more. Every such prisoner, except a prisoner who was 5
sentenced to the state prison for a crime which was committed on 6
or after the first day of January in the year eighteen hundred and 7
ninety-six, whose record of conduct shows that he has faithfully 8
observed all the rules and has not been subjected to punishment 9
shall be entitled to a deduction from the term of his imprisonment, 10
which shall be estimated as follows : upon a sentence of not less 11
than four months and less than one year, one day for each month ; 12
upon a sentence of not less than one year and less than three 13
years, three days for each month ; upon a sentence of not less than 14
three years and less than five years, four days for each month ; 15
upon a sentence of not less than five years and less than ten years, 16
five days for each month; upon a sentence of ten years or more, 17
six days for each month. If a prisoner has two or more sentences, 18
the aggregate of his several sentences shall be the basis upon which 19
Chap. 225.] officers and inmates of penal institutions. 1907
20 the deduction shall be estimated. A prisoner who is entitled to
21 such deduction from the term of his imprisonment shall receive
22 a written permit to be at liberty during the time so deducted, upon
23 such terms as the board which grants the permit shall prescribe.
24 Permits to prisoners in the state prison and in the reformatory prison
25 for women shall be issued by the prison commissioners ; to pris-
26 oners in the state farm, by the trustees ; to prisoners in jails and
27 houses of correction, except in the county of Suffolk, by the county
28 commissioners ; to prisoners in the jails and house of correction in
29 the county of Suffolk, by the penal institutions commissioner. If a
30 prisoner violates any of the rules of his prison or other place of
31 confinement, the board authorized by this section to grant permits
32 shall decide what portion of the time, which would otherwise be
33 deducted from the term of his imprisonment, shall be forfeited by
34 such violation.
1 Section 114. If it appears to the prison commissioners that Permit to pris-
L . i . i oner m state
2 a prisoner who was sentenced to the state prison tor a crime which prison.
3 was committed prior to the first day of January in the year eighteen i895| 252!
4 hundred and ninety-six and who is serving his first sentence therein [l^o'p20!'. g.
5 has reformed, they may, if, after deducting the time to which he is 324>487'5411
6 entitled by the preceding section, two-thirds of the minimum term
7 of his sentence have expired, by a unanimous vote of all the mem-
8 bers of the board, issue to him a permit to be at liberty during the
9 remainder of his term of sentence upon such terms and conditions
10 as they prescribe, if he has an assurance satisfactory to them that
11 he will have employment as soon as he is discharged, or is other-
12 wise so provided for that he will not become dependent upon public
13 or private charhYy.
1 Section 115. If the record of a prisoner who was sentenced to same subject.
2 the state prison for a crime committed on or after the first day of \m't Hi] f 1;
3 January in the year eighteen hundred and ninety-six shows that he n^M^VJek.
4 has faithfully observed all the rules of the prison and has not been
5 subjected to punishment, the commissioners shall, upon the expira-
6 tion of his minimum term of sentence, issue to him a permit to be
7 at liberty therefrom during the unexpired portion of the maximum
8 term of his sentence, upon such terms and conditions as they shall
9 prescribe. If the record shows that he has violated the rules of the
10 prison, he may be given a like permit at such time after the expira-
11 tion of the minimum term of his sentence as the commissioners
12 shall determine. If the prisoner is held in the prison upon two or
13 more sentences, he shall be entitled to receive such permit when
14 he has served a term equal to the aggregate of the minimum terms
15 of the several sentences, and he shall be subject to all the pro-
16 visions of this section until the expiration of a term equal to the
17 aggregate of the maximum terms of said sentences.
1 Section 116. If it appears to the governor and council that a Permit to
_. ,, 1 l , ,° . iu'i.1 habitual
2 prisoner who has been sentenced to the state prison as an habitual criminal.
3 criminal has reformed, they may issue to him a permit to be at lib- 1887> iSo' § *'
4 erty during the remainder of his term of sentence, upon such terms
5 and conditions as they prescribe.
1908
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
Permit to
Srisoner in
[assachusetts
reformatory.
1884, 255, § 33.
1886, 323, § 4.
1887, 375.
1888, 317.
1894, 249, § 2.
148 Maes. 168.
Section 117. If it appears to the prison commissioners that 1
a prisoner in the Massachusetts reformatory, or a prisoner who 2
has been removed therefrom to a jail or house of correction, has 3
reformed, they may issue to him a permit to be at liberty during 4
the remainder of his term of sentence, upon such terms and con- 5
ditions as they shall prescribe ; but no such permit shall, without 6
the consent of the governor and council, be issued to a prisoner 7
who has been transferred thereto from the state prison. They may 8
delegate to a committee of their board or to their secretary, until 9
their next meeting, the authority to decide when such permit shall 10
be issued. 11
— to prisoner
in reformatory
prison for
women.
1880, 221, § 3;
247, § 2.
1881, 90, § 1.
P. S. 220, §68;
221, § 52.
1888, 192.
— to rogues,
vagabonds,
1834, 151, § 8.
R. S. 143, § 13.
G. S. 178, § 17.
1862, 189.
1866, 235, § 5.
P. S. 220, § 66.
1884, 152, § 4.
Section 118. If it appears to the prison commissioners that 1
a prisoner in the reformatory prison for women, or a prisoner who 2
has been removed therefrom to a jail or house of correction, has 3
reformed, they may issue to her a permit to be at liberty during 4
the remainder of her term of sentence ; but no permit shall, with- 5
out the consent of the court which imposed the sentence, or, if the 6
sentence was imposed by the superior court, without the consent of 7
the district attorney for the county in which she was convicted, be 8
issued to a prisoner who has been sentenced for a crime against per- 9
son or property. 10
Section 119. If it appears to the county commissioners, or, in 1
the county of Suffolk, to the penal institutions commissioner of the 2
city of Boston, that a prisoner in a house of correction or work- 3
house who has been convicted of an offence named in section forty- 4
six of chapter two hundred and twelve has reformed and is willing 5
and desirous to return to an orderly course of life, they may issue 6
to him a permit to be at liberty during the remainder of his term of 7
sentence. 8
— to persons
imprisoned for
drunkenness.
1880, 221, § 3;
247, § 2.
P. S. 220, § 68.
1885, 375.
1886, 101, § 4.
1898, 443, § 2.
Release on
probation.
1880, 129, § 6.
1881, 34, §§ 1, 2.
P. S. 220, § 69.
1891, 356, § 7.
Section 120. If it appears to the state board of charity that a 1
person who has been imprisoned for drunkenness at the state farm 2
has reformed, or if it appears to the county commissioners, or, in 3
the county of Suffolk to the penal institutions commissioner of 4
the city of Boston, that a person who has been imprisoned for 5
drunkenness in a jail, house of correction or other place of con- 6
finement has reformed, they may issue to him a permit to be at lib- 7
erty during the remainder of his term of sentence. 8
Section 121. A probation officer may, with the consent of the 1
county commissioners, or, in the county of Suffolk, of the penal in- 2
stitutions commissioner of the city of Boston, investigate the case of 3
any person who is imprisoned in a jail or house of correction for a 4
misdemeanor upon a sentence of not more than six months, or 5
upon a longer sentence of which not more than six months remain 6
unexpired, for the purpose of ascertaining the probability of his 7
reformation if released from imprisonment. If, after such investi- 8
gation, he recommends the release of the prisoner, and the court 9
which imposed the sentence, or, if the sentence was imposed by 10
the superior court, the district attorney, certifies a concurrence in 11
such recommendation, the county commissioners or the penal insti- 12
tutions commissioner may, if they consider it expedient, release him 13
Chap. 225.] officers and inmates of penal institutions. 1909
14 upon probation, upon such terms and conditions as they may pre-
15 scribe and may require a bond for the fulfilment of such conditions.
16 The surety upon any such bond may at any time take and sur-
17 render his principal, and the county commissioners or the penal
18 institutions commissioner may at any time order any prisoner re-
19 leased by them upon probation to return to the prison from which
20 he was released. The provisions of this section shall not apply to
21 persons held upon sentence of the courts of the United States.
1 Section 122. The state board of charity shall have the same Discharge
2 power to discharge a person who has been removed from a jail or fan£.state
3 house of correction to the state farm or from the state farm to a if^; 2^,§§\
4 house of correction as it would have to release him from the state fggf'ljf'ff-
5 farm if he had been originally sentenced thereto, and shall have the 1S90> ™< § 2-
6 same authority to release a prisoner who has been removed thereto
7 from the Massachusetts reformatory as the prison commissioners
8 would have to release him from said reformatory.
1 Section 123. The county commissioners, or, in the city of o^^S™6
2 Boston, the penal institutions commissioner, subject to the approval J| 5|, 69, § |.
3 of a iustice of the court which imposed the sentence, after six months i877,'i47.'
P S 220 S fi7
4 from the time of sentence, may discharge a person sentenced to the i895,'449,'§i6.'
5 house of correction, and the directors of a workhouse may dis-
6 charge a person sentenced thereto upon a conviction under the pro-
7 visions of section fifty-five of chapter two hundred and twelve of
8 being a common night walker, if they are satisfied that the prisoner
9 has reformed, or, for any term during the period of the sentence,
10 they may bind out such prisoner as an apprentice or servant to any
11 inhabitant of this commonwealth. Said commissioners and direct-
12 ors and the master, mistress, apprentice or servant shall have all
13 the rights and privileges and be subject to all the duties set forth
14 in chapter one hundred and fifty-five, as if the prisoner had been
15 bound out by the overseers of the poor ; and the relations of the
16 parties shall not be affected by the age of the person bound. If the
17 master or mistress is discharged from the contract of service or ap-
18 prenticeship as provided in said chapter, the person bound shall
19 be returned to the place of confinement and shall serve out the
20 original sentence, if any portion thereof is unexpired ; but the com-
21 missioners or directors shall not be liable to the costs of the process
22 provided in said chapter.
1 Section 124. A prisoner who has been confined in a prison or -of prisoners
2 other place of confinement eight days for non-payment of a fine or non-payment
3 of fine and expenses not exceeding five dollars, twenty days for °£J£™i
4 the non-payment of a fine or fine and expenses not exceeding ten §65,'^°§i.7'
5 dollars, thirty days for non-payment of a fine or fine and expenses ^-9f||M15-
6 not exceeding twenty dollars, shall be discharged.
1 Section 125. The justices of police, district and municipal ~?sf0P™r
2 courts and trial justices may discharge from the jail persons who r2s'.™9;§16>
3 are confined for the non-payment of fine, or of fine and expenses as.4i8o,§8.
4 not exceeding ten dollars, if they are of opinion that such persons p. s'. 222, § 16.
5 are not able to pay the same, or that it is otherwise expedient;
6 but no fees shall be allowed to any person for such service.
1910
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [CHAP. 225.
Discharge of
poor prisoners,
1799, 7.
1802, 1.
1805, 69.
1833,9.
R. S. 145, § 3.
1850, 185, §§1,2
G. S. 180, §§ 6,
9, 10.
P. S. 222,
19.
1882, 201.
Section 126. If a poor prisoner has been confined in a jail or 1
house of correction for three months for fine or fine and expenses 2
only, the jailer, master or keeper shall make a report thereof, in 3
the county of Suffolk, to the municipal court of the city of Boston, 4
in the county of Nantucket, to a trial justice and in other coun- 5
17_ ties, to a police or district court. The court or trial justice shall 6
inquire into the truth of the report and may require the jailer 7
or keeper to bring the prisoner into court. If the court or trial 8
justice finds that the report is true, and that the prisoner since 9
his conviction has not had any property, real or personal, with 10
which he could have paid the amount for which he was committed, 11
and that he is held for no other cause, the court or trial justice 12
shall order the sheriff, master or keeper to discharge the prisoner. 13
A person under guardianship may have the benefit of the provisions 14
of this section, although it appears that he has property held under 15
guardianship, if it also appears that such property is beyond his 16
actual control, and if he is discharged, the commonwealth may, in 17
an action of tort brought within one year after the discharge, re- 18
cover from his guardian, if he has assets, the amount of fine or fine 19
and expenses which remain unpaid. 20
Section 127. The violation by the holder of a permit to be at
Acts rendering
permit void.
i|84.1||.§§1. 4; liberty granted under the provisions of sections one hundred and
i8S7, 435, § 2. thirteen , one hundred and fourteen and one hundred and sixteen
1894, 440, § 1.
1895, 252; 504,
§2.
1897, 206.
1898, 240, 371.
to one hundred and twenty, inclusive, of any of the terms or
conditions of his permit or the violation of any law of this common-
wealth shall of itself make his permit void. If the holder of a per-
mit issued under the provisions of section one hundred and fif-
teen violates any of its terms or conditions or violates any law of
the commonwealth before the expiration of his maximum term and
is convicted thereof either before or after said expiration, such per-
mit shall thereby become void.
1
2
3
4
5
6
7
8
9
10
11
Revocation of
permits.
1880, 218, §1;
221, §3; 247, §2.
1881, 90, § 1.
P. S. 220, §68;
221, § 52; 222,
§20.
1884,152, §4;
255, § 33.
1886, 323, § 4.
1887, 435, § 2.
1894, 258; 440,
§1.
1895, 252; 504,
§2.
1897, 206.
1898, 371.
Arrest on rev-
ocation or
violation of
permit.
1880, 129, §§ 7,
10; 218, §2;
221, § 4.
1881, 90, § 2.
P. S. 220, §70;
221, §53; 222,
§21.
1884, 152, §§2, 4;
255, § 34.
1886, 323, § 4.
1887, 292, § 2;
435, § 3.
1888, 192.
1894, 440, § 2.
Section 128. The board, commissioners or officer issuing to a
prisoner a permit to be at liberty under the provisions of sections
one hundred and thirteen and one hundred and seventeen to one
hundred and twenty, inclusive, may revoke it at any time pre-
vious to its expiration, and the prison commissioners may re-
voke such permit issued under the provisions of section one
hundred and fifteen at any time before the expiration of the
maximum term for which it was issued, and shall revoke it when
they have knowledge that the person to whom it was issued has
been convicted of a crime which is punishable by imprisonment.
Section 129. The prison commissioners, the state board of
charity, the county commissioners, the directors of a workhouse,
or, in the county of Suffolk, the penal institutions commissioner of
the city of Boston, if a permit to be at liberty issued by them, re-
spectively, to a prisoner under the provisions of sections one hun-
dred and thirteen to one hundred and fifteen, inclusive, and one
hundred and seventeen to one hundred and twenty, inclusive,
has become void or has been revoked, may issue an order authorizing
the arrest of the holder thereof by any officer qualified to serve
civil or criminal process in any county and the return of such 10-
1
2
3
4
5
6
7
8
9
10
1
2
3
4
5
6
7
8
9
Chap. 225. J officers and inmates of penal institutions. 1911
11 holder to the prison from which he was released. The governor, if il^'f?!'53"
12 a permit to be at liberty issued to an habitual criminal under the
13 provisions of section one hundred and sixteen has become void or
14 has been revoked, shall issue his warrant authorizing the arrest of
15 the holder thereof by any officer qualified to serve criminal process,
16 and his return to state prison. A prisoner who has been so returned
17 to his place of confinement shall be detained therein according to
18 the terms of his original sentence. In computing the period of his
19 confinement, the time between his release upon a permit and his
20 return to prison shall not be considered as any part of the term of
21 his original sentence. If, at the time of the revocation of his per-
22 mit, he is confined in any prison, service of such order shall not
23 be made until his release therefrom, and in such case, the time be-
24 tween the revocation of the permit and his return to the place of
25 his original imprisonment shall not be considered as any part of the
26 term of his original sentence.
1 Section 130. A prisoner whose term expires on Sunday shall i>itS?dIfeif)T1
2 be discharged on the preceding Saturday. term ends on
1864, 194, §1. P. S. 222, §24.
1 Section 131. A prisoner, who at the expiration of his sentence, sick prisoner
2 is in such condition from bodily infirmity or disease as to render in piisorTaf ter
3 his removal impracticable shall be suitably cared for in the prison sentence!11 °f
4 or other place of confinement until he is in a condition to be re- ^5| 388-§§ 40_
5 moved. The expense of his support, not exceeding three dollars ^- '
6 and fifty cents a week, shall be paid by the city or town in which 1874,' 170,' § 1.
PS 222 § 25
7 he has a legal settlement, after notice to the overseers thereof, or,
8 if he is a state pauper, to the state board of charity, of the expira-
9 tion of his sentence and of his condition.
PARDONS.
1 Section 132. In a case in which the governor is authorized by Pardons by
2 the constitution to grant a pardon, he may, with the advice and cormt°°pt. 2,
3 consent of the council, and upon the petition of the prisoner, grant isol'.m.8**-8'
4 it, subject to such conditions, restrictions and limitations as he con- ]|;J; JS |Jf;
5 siders proper, and he may issue his warrant to all proper officers to ^-g s^|> §12.
6 carry such pardon into effect. Such warrant shall be obeyed and fiop.A. g.
7 executed, instead of the sentence originally awarded.
1 Section 133. If a prisoner who has been pardoned upon con- Rearrest of
2 ditions to be observed and performed by him violates such con- prisoner.
3 ditions, the warden, superintendent or keeper, respectively, of the g3s'. ut.Ih.
4 institution in which the prisoner was confined shall forthwith cause p.6s'.2i8,§i3.
5 him to be arrested and detained until the case can be examined by
6 the governor and council ; and the officer who makes the arrest
7 shall forthwith give notice thereof in writing to the governor and
8 council.
1 Section 134. The governor and council shall, upon receiving confinement
2 such notice, examine the case of such prisoner, and, if it appears by termofXsen.e
3 his own admission or by evidence that he has violated the condition 5s37,ei»i, § 3.
4 of his pardon, the governor, with the advice and consent of the ^f/3oi7;§§2.6'
1912
OFFICERS AND INMATES OF PENAL INSTITUTIONS. [ClIAP. 225.
1881, 104.
P. S. 218, § 14.
1882, 197.
Ill Mass. 443.
135 Mass. 48.
Execution of
warrant of
pardon.
R. S.142, §13.
G. S. 177, § 17.
P. S. 213, § 15.
[1 Op. A. G.
516.]
council, shall order him to be remanded and confined for the unex- 5
pired term of his sentence, said confinement, if the prisoner is under 6
any other sentence of imprisonment at the time of said order, to 7
begin upon the expiration of such sentence. In computing the 8
period of his confinement, the time between the conditional pardon 9
and subsequent arrest shall not be taken to be part of the term of 10
his sentence. If it appears to the governor and council that he has 11
not broken the conditions of his conditional pardon, he shall be 12
discharged. 13
Section 135. If a prisoner is pardoned or his punishment is com- 1
muted, the officer to whom the warrant for such purpose is issued 2
shall, as soon as may be after executing it, make return thereof, 3
signed by him, with his doings thereon, to the secretary's office, 4
and shall file in the office of the clerk of the court in which the 5
offender was convicted an attested copy of the warrant and return 6
and the clerk shall subjoin a brief abstract thereof to the record of 7
the conviction and sentence. 8
Aid to dis-
charged pris-
oners. Agents.
1845, 176.
1848, 82.
1852, 213, § 1.
G. S. 180, §§ 64,
m, 68.
1861, 78.
1869, 122.
1871, 302.
1S79, 294, § 27.
1881, 179.
1'. S. 219, § 26.
1884, 255, § 35.
1887. 315, 395.
1888, 322, § 2.
1895, 383.
1897, 350, § 1.
Female agent.
1879, 294, § 27.
1881, 179.
P. S. 219, § 27.
1886, 177.
1888, 330, 417.
1897, 350, § 2.
AID TO DISCHARGED PRISONERS.
Section 136. The prison commissioners may employ an agent
for aiding prisoners who have been discharged from the state prison,
at an annual salary of sixteen hundred dollars, payable by the
commonwealth, who, in addition to his other duties, shall assist
the secretary of the board. They may also employ three other
agents, at an annual salary of twelve hundred dollars each, payable
in like manner. Said agents shall endeavor to secure employment
for prisoners who have been permanently discharged or released on
probation from any of the penal institutions under the supervision
of the board, advise such discharged prisoners as seek their aid,
provide them with clothing, board and tools suitable for their
employment and perform such other duties relative to such dis-
charged or released prisoners as the board requires. They shall
also obtain information for the board relative to prisoners who have
been committed to institutions under its supervision, especially as
to the details of their offences and their previous character and
history. They may, for that purpose, require of the police author-
ities any facts in their possession relative to such prisoners if the
communication thereof will not, in the opinion of said authorities,
be detrimental to the public interest. They shall be reimbursed
for the necessary expenses actually incurred by them in the per-
formance of their official duties, after their bills therefor have been
approved by the commissioners. The commissioners may expend
not more than three thousand dollars annually for the assistance of
prisoners discharged from the state prison and not more than five
thousand dollars annually for the assistance of prisoners discharged
from the Massachusetts reformatory or from any institution to which
he was removed from said reformatory.
Section 137. The commissioners may also employ, at an an-
nual salary of one thousand dollars, payable by the commonwealth,
a woman as their agent in rendering assistance to female prisoners
discharged from the prisons in this commonwealth. She shall
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
2
3
4
Chap. 225.] officers and inmates of penal institutions. 1913
5 counsel and advise them, assist them in obtaining employment
6 and, under the direction of the commissioners, may render them
7 pecuniary aid. The commissioners may expend not more than
8 three thousand dollars annually for the assistance of discharged
9 female prisoners and may pay therefrom to the Temporary Asylum
10 for Discharged Female Prisoners such amount as they shall deter-
1 1 mine for the support of women charged with crime whose cases are
12 disposed of without sentence.
1 Section 138. The commissioners shall cause an account to be Account of ex.
2 kept of the money expended by the agents for the necessary ex- afentsUies by
3 penses of the service required by the two preceding sections, for Jf^' 82V22'
4 correspondence and travel in procuring employment for and furnish- ^5| 2/|0' V26-6
5 ing clothing, board and tools to discharged prisoners and for con- ^7| |9*.'§ |8-'
6 veying them to their homes or places of employment ; which, upon
7 approval by the auditor, shall be paid at the end of each month.
1 Section 139. The warden of the state prison may pay from the warden may
2 treasury of the prison not more than five dollars to any prisoner agent money
3 leaving the prison who, in the opinion of the warden, by his good ^pa^to* to
4 conduct deserves it, or he may, in his discretion, pay it to the ^t^iT's 13
5 agents appointed under the provisions of section one hundred and ^f'^jjM53-
6 thirty-six, who shall expend for the benefit of such prisoners issaj 218.' § 3.
7 what they thus receive, and shall account therefor to the commis- isb, §67.'
8 sioners. A prisoner who leaves the state prison shall be provided p'l.lw, §29;
9 with decent clothing. 221, §42/
1 Section 140. The agent for aiding prisoners who have been Annual report
2 discharged from the state prison and the agent for aiding discharged mlfis^'
3 female prisoners shall annually, on or before the fifteenth day of i^;^;
4 October, make full and detailed statements to the commissioners f^'i^'iH'
5 of their doings for the year ending on the thirtieth day of Septem- p- s'- 219'. § 30-
6 ber, which shall be included by the commissioners in their annual
7 report.
1 Section 141. The county commissioners may provide a pris- Aid by county
2 oner who is released from prison on probation with such amount of £°mmiBS10n-
3 money as in their opinion can be wisely used to encourage his ref- pfs'.ilo, §71.
4 ormation, or they may pay it to a probation officer to be used for
5 such prisoner.
1 Section 142. The master or keeper of a jail or house of correc- -by keeper of
2 tion may, with the approval of the county commissioners, expend Igslm
3 such amount, not exceeding ten dollars, in aiding a prisoner dis- n'oP3A'.G^"
4 charged from his custody as in his opinion will assist such prisoner 281-1
5 in his endeavor to reform. He may, in his discretion, pay it to the
6 prisoner, or to some person selected by the master or keeper to be
7 expended by him in behalf of the prisoner or for providing the pris-
8 oner with board, clothing, transportation or tools. The amount so
9 paid by a master or keeper shall be allowed and paid by the county
10 like other prison expenses.
.1914
THE REVISED LAWS AND THEIR EFFECT. [CHAP. 226.
PART V.
OF THE REVISED LAWS AND THE EXPRESS REPEAL
OF CERTAIN ACTS AND RESOLVES.
Chapter 226.
Chapter 227.
Of the Revised Laws and their Effect.
■Of the Express Repeal of Certain Acts and Resolves.
CHAPTEE 226.
OF THE REVISED LAWS AND THEIR EFFECT.
Section 1. This act shall not in any citation or enumeration
of the statutes be reckoned as one of the acts of the year nineteen
Revised Laws;
how cited;
when to take
r. s. 146, §§ i, 2. hundred and one, but may be designated as the Revised Laws,
p.' s! 223, § i.' ' adding the number of the chapter and section when necessary, and
shall take effect from and after the thirty-first day of December in
the year nineteen hundred and one.
— to be a con-
tinuation of
former acts.
G. S. 181, § 9.
P. S. 223, § 2.
138 Mass. 593.
Section 2. The provisions of the Revised Laws, so far as they
are the same as those of existing statutes, shall be construed as a
continuation thereof and not as new enactments, and a reference in a
statute which has not been repealed to provisions of law which are
revised and re-enacted herein shall be construed as applying to
such provisions as so incorporated in the Revised Laws.
1
2
3
4
5
6
1
2
3
4
5
6
rTottoTeVive Section 3. The repeal of a law by this act shall not revive a
former acts, ]aw heretofore repealed or superseded, nor an office heretofore
R.s.i46, §§3,9. abolished. g.s. isi, §3. p. s. 223, §3.
1
2
3
— repeal by,
not to affect
acts done, etc.
R. S. 146, § 5.
G. S. 181, § 4.
P. S. 223, § 4.
18 Pick. 417, 532.
19 Pick. 578.
20 Pick. 99.
21 Pick. 109, 210.
5 Met. 40S.
— repeal by,
not to affect
penalties or
forfeitures,
except, etc.
R. S. 146, § 6.
G. S. 181, § 5.
P. S. 223, § 5.
— repeal by,
not to affect
actions com-
menced, etc.
Section 4. The repeal of a law by this act shall not affect any 1
act done, ratified or confirmed, or any right accrued or established, 2
or any action, suit or proceeding commenced or had in a civil case, 3
before the repeal takes effect, but the proceedings in such case 4
shall, when necessary, conform to the provisions of the Revised 5
Laws. 4 Gray, 490. 2 Allen, 49, 496. 3 Allen, 153. 5 Allen, 150. 125 Mass. 316. 6
Section 5. The repeal of a law by this act shall not affect any 1
punishment, penalty or forfeiture incurred under such law, except 2
that any provision of the Revised Laws by which a punishment, 3
penalty or forfeiture is mitigated may be extended and applied to 4
any judgment pronounced after said repeal. 5
Section 6. The repeal of a law by this act shall not affect any 1
action j suit or prosecution pending at the time of the repeal for an 2
Chap. 227.] express repeal — laws of i88i, 1882. 1915
3 offence committed, or for the recovery of a penalty or forfeiture r. s. ue, §7.
4 incurred, under any of the laws repealed, except that the proceed- p.' |.' 223,' f £.'
5 ings therein shall, when necessary, conform to the provisions of the 1AUen»L
6 Ke vised Laws.
1 Section 7. Whoever, when said repeal takes effect, holds an Tenureof office
2 office under any of the laws repealed shall continue to hold it Rre|ei46,d§8.
3 according to the tenure thereof unless it is abolished or unless a dif- f; |; HI' § ?;
4 ferent provision relative thereto is made by the Revised Laws.
1 Section 8. If a limitation or period of time prescribed in any Periods of
2 of the acts repealed for acquiring a right, barring a remedy or any c^tfnueto0
3 other purpose has begun to run, and the same or a similar limita- i^>7)§4.
4 tion is prescribed in the Revised Laws, the time of limitation shall p." |" 2U' § I.'
5 continue to run and shall have like effect as if the whole period
6 had begun and ended under the operation of the Revised Laws.
CHAPTER 227.
OF THE EXPRESS REPEAL OF CERTAIN ACTS AND RESOLVES.
The acts and resolves, and parts of acts and resolves, which are
specified in the annexed schedule shall be expressly repealed from
and after the thirty-first day of December in the year nineteen hun-
dred and one, subject to all the provisions contained in chapter two
hundred and twenty-six ; but no implication shall be drawn from
such repeal that said acts and resolves were in force until so
repealed.
SCHEDULE OF ACTS AND RESOLVES, AND PARTS OF
ACTS AND RESOLVES, EXPRESSLY REPEALED.
One Thousand Eight Hundred and Eighty-one.
Public Statutes. — An act for consolidating and arranging the General Statutes of the com-
monwealth.
One Thousand Eight Hundred and Eighty-two.
Chapter 6. — An act to correct certain errors in and to amend the Public Statutes.
Chapter 36. — An act relative to notices in cases of injuries received on highways.
Chapter 41. — An act concerning the appointment of an additional associate justice for the
municipal court of the city of Boston.
Chapter 42. — An act relative to the appointment of sealers of weights and measures in cities.
Chapter 43. — An act relating to the death, resignation, absence or disability of the justices of
certain municipal courts in the city of Boston.
Chapter 49.— An act providing that when Christmas day occurs on Sunday the day following
shall be a legal public holiday.
Chapter 53. — An act for the protection of traps, trawls and seines.
Chapter 54. — An act to amend chapter one hundred and twelve of the Public Statutes, requiring
railroad cars to be furnished with certain tools, and for further protection of
passengers against fire.
Chapter 55. — An act relating to the publication of -notices of petitions for partition of lands.
Chapter 63.— An act to establish the salary of the clerk of the police court of Lowell.
Chapter 73. — An act to provide for the testing of locomotive boilers.
Chapter 75.— An act to regulate sales under power of sale in mortgages.
Chapter 76. — An act relating to personal estate subject to taxation.
Chapter 87. — An act to establish the salary of the clerk of the first district court of Eastern
Middlesex.
1916 EXPRESS REPEAL LAWS OF 1882. [CHAP. 227.
Chapter 94. — An act to prevent discrimination in freight rates by railroad corporations.
Chapter 95. — An act concerning appeals in the police, district and municipal courts in civil cases.
Chapter 96. — An act fixing the compensation of officers in attendance upon sheriffs' juries.
Chapter 97. — An act to provide for the instruction and exercise of a portion of the volunteer militia in the
manual and drill of heavy artillery.
Chapter 98. — An act to provide for the preservation of lobsters.
Chapter 102. — An act concerning the fisheries in Great pond and Job's Neck pond in the town of Edgartown.
Chapter 106. — An act in relation to the taxation of foreign mining, quarrying and oil companies.
Chapter 10S. — An act to authorize county commissioners to control travel over bridges constructed or main-
tained in whole or in part by a county.
Chapter 109. — An act to provide for determining the location of common landing places.
Chapter 110. — An act relating to the accounts of the treasurer and auditor.
Chapter 113. — An act to authorize cities and towns to recover for expense incurred in the support or relief of
paupers.
Chapter 127. — An act relating to juvenile offenders.
Chapter 130. — An act regulating the investment of the funds of the commonwealth.
Chapter 131. — An act ceding to the United States jurisdiction over certain land for the fish and fisheries com-
mission.
Chapter 132. — An act relating to the descent of the real estate of illegitimate children.
Chapter 133. — An act relative to the payment of indebtedness by cities and towns.
Chapter 134. — An act concerning the deposit of money in lieu of furnishing sureties in criminal cases.
Chapter 135. — An act providing for appeals from the county commissioners to the board of railroad commis-
sioners in certain cases.
Chapter 139. — An act to permit women to practise as attorneys at law.
Chapter 140. — An act relating to depositions to perpetuate the testimony of witnesses without the commonwealth.
Chapter 141. — An act relating to the distribution of the personal estate of married women.
Chapter 146. — An act to include the town of Winthrop in the judicial district of the municipal court of the East
Boston district.
Chapter 154. — An act authorizing towns and cities to lay out public parks within their limits.
Chapter 156. — An act to establish the salary of the district-attorney for the eastern district.
Chapter 157. — An act to provide for the appointment of an assistant district-attorney for the eastern district.
Chapter 158. — An act relating to the distribution of public documents.
Chapter 162. — An act relating to the fencing of railroads.
Chapter 163. — An act for the protection of forests against fires.
Chapter 164. — An act to define the meaning of the words mayor and aldermen.
Chapter 165. — An act relating to the assessment of taxes on the personal estate of insolvents, joint owners
and tenants in common.
Chapter 166. —An act relative to fishing in the Merrimack River.
Chapter 174. — An act authorizing the appointment of additional pilots for ports other than the port of Boston.
Chapter 175. — An act relating to the assessment of taxes upon mortgaged real estate.
Chapter 178. — An act relating to the compensation of the militia.
Chapter 179. — An act relative to parading with arms by associations composed of soldiers.
Chapter 180. — An act defining the powers of mayors of cities to vote as presiding officers.
Chapter 181. — An act relating to indigent and neglected children.
Chapter 194. — An act concerning statistics of divorce.
Chapter 195. — An act enlarging the powers and duties of associations for charitable and other purposes.
Chapter 197. — An act to amend the Public Statutes in relation to conditional pardons.
Chapter 19S. — An act to punish prisoners escaping from custody when employed outside of their places of con-
finement.
Chapter 199. — An act for the better protection of deer.
Chapter 201. — An act relating to the discharge of poor convicts.
Chapter 207. — An act to provide for the surgical treatment of certain prisoners.
Chapter 213. — An act to provide a burial place for prisoners dying in the reformatory prison for women.
Chapter 215.— An act fixing fees of officers for summoning witnesses in criminal cases.
Chapter 216. — An act in relation to assistant harbor masters.
Chapter 217. — An act providing for returns of property held for literary, benevolent, charitable or scientific
purposes.
Chapter 218. — An act fixing the payment of costs in appeals for abatement of taxes.
Chapter 220. — An act to prohibit the granting of licenses for the sale of intoxicating liquors on premises within
a certain distance of public schools.
Chapter 221.— An act to regulate the inspection and analysis of intoxicating liquors.
Chapter 222. — An act in relation to advertising applications for liquor licenses in the city of Boston.
Chapter 223. — An act relating to the making and entering of decrees of divorce.
Chapter 225. — An act to amend "An act to prevent discrimination in freight rates by railroad corporations."
Chapter 226.— An act in relation to blanks for certain court returns, and to reports of arrests.
Chapter 232. — An act relating to the officers in attendance upon the supreme judicial court in the county of
Suffolk.
Chapter 235. — An act in relation to appeals from taxation of costs in civil actions.
Chapter 236. — An act relating to the illegal taking and using of horses and carriages.
Chapter 237.— An act relating to the settlement of titles to real estate.
Chapter 238. — An act to provide for the preparation of tables and indexes relating to the statutes of the pres-
ent year and subsequent years.
Chapter 241.— An act in relation to transfers and sentences of prisoners.
Chapter 242. — An act to fix the hours of closing premises occupied by common victuallers.
Chap. 227.] express repeal — laws of 1883. 1917
Chapter 244.— An act to authorize the formation of relief societies by the employees of railroad and steamboat
corporations.
Chapter 245.— An act relating to the salaries of certain justices and court officers.
Chapter 246. — An act in relation to law library associations.
Chapter 249. — An act relative to the staying or superseding of executions by writs of review.
Chapter 251.— An act relating to co-operative saving fund and loan associations.
Chapter 253. — An act to divide the commonwealth into districts for the choice of representatives in the congress
of the United States.
Chapter 255.— An act authorizing towns and cities to provide for the preservation and reproduction of forests.
Chapter 257.— An act to fix the compensation of the assistant clerks, doorkeepers, assistant doorkeepers, post-
master, messengers and pages of the senate and house of representatives.
Chapter 258. — An act relating to the fees for licenses of keepers of intelligence offices, dealers in various arti-
cles, and keepers of billiard, pool and sippio rooms and bowling alleys.
Chapter 259. — An act relative to obstructing the view of premises licensed for the sale of intoxicating liquors,
and the statements of sureties on bonds.
Chapter 263. — An act relating to the adulteration of foods and drugs.
Chapter 264. — An act relating to costs in civil actions.
Chapter 265. — An act relative to the establishment of railroad corporations.
Chapter 267. — An act in relation to the attendance of witnesses before a board of police commissioners.
Chapter 269. — An act to provide for notice of the place of storage of gunpowder and other explosive com.
pounds.
Chapter 270. — An act for the better protection of children.
Chapter 272. — An act concerning the sale or use of toy pistols and other dangerous articles.
Res. Chapter 15. — Resolve authorizing the use of the state camp-ground at Framingham by the grand army
of the republic.
Res. Chapter 56. — Resolve providing for the purchase of paper for the commonwealth.
One Thousand Eight Hundred and Eighty-three.
Chapter 31. — An act relative to fishing in the Merrimack River.
Chapter 32. — An act in relation to railroad fares.
Chapter 41. — An act in relation to the assessment of taxes.
Chapter 47. — An act in relation to extra clerical assistance in the municipal court of the city of Boston.
Chapter 48. — An act to establish the salary of the third clerk in the department of the secretary of the com.
monwealth.
Chapter 53. — An act relating to the salary of the clerk of the police court of Gloucester.
Chapter 54. — An act relating to the salary of the messenger of the justices of the superior court in the county
of Suffolk.
Chapter 55. — An act relating to the printing and distribution of the legislative manual.
Chapter 57. — An act to establish the salary of the clerk of the first district court of Plymouth.
Chapter 61. — An act relative to the fees of witnesses and officers at inquests.
Chapter 62. — An act concerning costs under the trustee process.
Chapter 63. — An act to change the time of holding meetings of the county commissioners in the county of
Berkshire.
Chapter 65. — An act relating to the tenure of office of railroad and steamboat police.
Chapter 73. — An act relative to the recording of mortgages of personal property.
Chapter 74. — An act in relation to the taxation of foreign mining, quarrying and oil companies.
Section 1 of Chapter 75. — An act relative to the district court of Hampshire and the salary of the justice
thereof.
Chapter 77. — An act to prevent the wilful detention of books, newspapers, magazines, pamphlets, ormanu-
scripts of certain libraries.
Chapter 78. — An act to provide for the discharge or temporary release of inmates of institutions for the insane.
Section 2 of Chapter 80. — An act providing for a clerk for the district court of Hampshire.
Chapter 81. — An act for the better protection of property of certain libraries.
Chapter 84.— An act permitting municipal officers to authorize manufacturers to ring bells and use whistles
and gongs for the benefit of their workmen.
Chapter 91. — An act relating to the duties of assessors of taxes.
Chapter 93. — An act relating to applications for, and the granting of, licenses to sell intoxicating liquors.
Section 3 of Chapter 97. — An act providing for a clerk for the second district court of Eastern Middlesex.
Sections 1 and 2 of Chapter 98.— An act relating to the name of co-operative saving fund and loan associations.
Chapter 99. — An act in relation to the custody of the archives of Maine lands.
Chapter 100. — An act requiring municipal or other corporations to make returns of the acceptance or failure
to accept certain acts and resolves.
Chapter 102. — An act to punish persons guilty of disorderly conduct on steamboats and other public convey-
ances.
Chapter 110. — An act relative to the trial of juvenile offenders.
Chapter 111. — An act to establish the salary of the justice of the municipal court of the West Roxbury dis-
trict of the city of Boston.
Chapter 117.— An act to promote safety at railroad grade crossings.
Chapter 118.— An act authorizing the secretary of the commonwealth to grant licenses for hawking and ped-
dling to persons over seventy years of age.
Chapter 120. — An act to provide for the punishment of persons present at games or sports in common gam-
ing houses.
1918
EXPRESS REPEAL LAWS OF 1884.
[Chap. 227.
Chapter 121. — An act to authorize the commissioners on inland fisheries to issue permits for fishing in the
Merrimack River.
Chapter 125. — An act amending section one hundred and seventy-nine of "chapter one hundred and twelve of
the Public Statutes, relating to color blindness of railroad employees.
Chapter 127. — An act defining the meaning of the term " net indebtedness " in certain cases.
Chapter 133. — An act in regard to appeals from orders passed by boards of health.
Chapter 138. — An act relative to notices from local boards of health in cases of small-pox.
Chapter 142. — An act to amend section six of chapter eighty -two of the Public Statutes, relative to recording
conveyances of lots in cemeteries, and for other purposes.
Chapter 145. — An act providing for the redemption of real estate sold for non-payment of sewer assess-
ments.
Chapter 148. — An act to provide for the support of the criminal insane by the commonwealth.
Chapter 156. — An act to punish persons who wilfully tear down or deface town meeting warrants and other
papers posted in compliance with law.
Chapter 157. — An act relating to the employment of minors and women.
Chapter 168. — An act empowering cities to regulate by ordinance the sale of certain articles by hawkers and
peddlers.
Chapter 175. — An act in relation to examinations and trials in criminal cases before a trial justice. .
Chapter 183. — An act to amend "An act concerning the transportation of logs and other timber upon the Con-
necticut River."
Chapter 184. — An act to establish the salary of the secretary of the board of agriculture.
Chapter 187. — An act in relation to boarding houses and boarding house keepers.
Chapter 188. — An act relative to the taking of depositions.
Chapter 195. — An act to enforce the attendance of witnesses before special tribunals.
Chapter 216.— An act in relation to the compensation of assessors, masters in chancery and special masters.
Chapter 217. — An act relating to the employment of prisoners.
Chapter 221. — An act relative to the transmission of electricity for the purpose of lighting.
Chapter 223. — An act granting jurisdiction in equity to the superior court.
Chapter 225. — An act to prevent the use of unlawful measures.
Chapter 232. — An act relating to indigent and neglected children.
Chapter 242. — An act relative to unclaimed dividends in insolvency.
Chapter 243. — An act fixing the responsibility of railroad corporations for negligently causing death of em-
ployees.
Chapter 251. — An act to secure better provisions for escape from hotels and certain other buildings, in case of
fire.
Chapter 252. — An act to authorize the governor to appoint women who are attorneys-at-law special com-
missioners to administer oaths and to take depositions and the acknowledgment of deeds.
Chapter 253. — An act to amend chapter forty-nine of the Public Statutes in regard to the payment of damages
where persons have separate interests in the property for which damages are claimed.
Chapter 257. — An act relating to the inspection of vinegar.
Chapter 258. — An act providing for the disposition of unclaimed moneys in the hands of receivers of cer-
tain insolvent corporations.
Chapter 260. — An act to provide for the removal of wrecks and other obstructions from tide waters.
Chapter 262. — An act giving to a wife the right of interment in a burial lot or tomb owned by her husband.
Chapter 264.— An act relating to the payment by the treasurer of the commonwealth of funds received from
public administrators.
Chapter 267. — An act abolishing the office of treasurer and steward of the reformatory prison for women.
Chapter 268. — An act to prohibit certain medical societies from conferring degrees.
Chapter 278. — An act concerning the appointment of superintendent and resident physician at the state alms-
house.
Res. Chapter 45. — Resolve providing for the appointment of an agent to prosecute certain claims of the
commonwealth against the United States.
Chapter 4.-
Chapter 5.-
Chapter 8.-
Chapter 14.-
Chapter 37.-
Chapter 38.-
Chapter 40.
Chapter 42.-
Chapter 43.
Chapter 45.
Chapter 60.
Chapter 64.
Chapter 65.
Chapter 66.
Chapter 76.
One Thousand Eight Hundred and Eighty-four.
-An act relative to the employment of a second clerk in the bureaii of statistics of labor.
-An act concerning the injury or destruction of railroad signals.
-An act to establish the salary of the executive clerk of the governor and council.
- An act to provide for the care and custody of the commonwealth building on Mount "Vernon
street, in the city of Boston.
-An act relating to actions for injuries received on the Lord's day.
- An act to establish the salary of the executive messenger.
- An act to divide the county of Worcester into two districts for the registry of deeds.
-An act to authorize towns to grant and vote money for certain memorial purposes.
-An act in relation to the salaries and duties of certain officers of the reformatory prison for
women.
- An act to provide for an allowance to certain officers in the volunteer militia.
-An act to repeal the Public Statutes relating to the annual election sermon.
-An act to prevent the spread of contagious diseases through the public schools.
-An act to establish the salary of the clerk of the police court of Holyoke.
-An act relating to clerical assistance in the office of the secretary of, and for lectures before, the
board of agriculture.
- An act to prohibit the sale of firearms and other dangerous weapons to minors.
Chap. 227.] express repeal — laws of 1884. 1919
Chapter 78. — An act to provide for the appointment of trustees by churches or religious societies in certain
cases.
Chapter 79. — An act to fix the salary of the secretary of the commonwealth.
Chapter 98. — An act concerning contagious diseases.
Chapter 99. — An act to prohibit the exhibition of deformities for hire.
Chapter 103.— An act to provide for the furnishing of free text-books and school supplies to the pupils of the
public schools.
Chapter 112.— An act to fix the salary of the treasurer of Hampden County.
Chapter 116. — An act providing for the appointment of female assistant physicians in state lunatic hos-
pitals.
Chapter 126.— An act in relation to the verification of the accounts of assignees in insolvency.
Chapter 129. — An act to authorize cities and towns to issue notes, bonds and scrip.
Chapter 131. — An act concerning costs and expenses in probate proceedings.
Chapter 132. — An act in relation to the property rights of husband and wife.
Chapter 134. — An act to authorize railroad companies to take land for additional tracks and for other purposes.
Chapter 141. — An act relating to sessions of probate courts which occur on legal holidays or on the day of the
national or state election.
Chapter 149. — An act to increase the number of the trustees of the state lunatic hospitals.
Chapter 152. — An act relating to the release of prisoners upon probation.
Chapter 154. — An act to prevent the pollution of sources of water supply.
Chapter 155. — An act relating to the establishment of union county truant schools.
Chapter 158. — An act in relation to the sale of intoxicating liquors.
Chapter 161. — An act to establish a standard measure for cranberries.
Chapter 169. — An act concerning the penalty for fraudulently obtaining entertainment at an inn.
Chapter 170. — An act in relation to attorneys at law.
Chapter 171. — An act to limit the time within which trout, land-locked salmon, and lake trout may be taken.
Chapter 172. — An act to prevent bathing in public ponds.
Chapter 173.— An act relating to harbors and harbor masters.
Chapter 174. — An act to provide for the punishment of embezzlement by officers and servants of voluntary
associations.
Chapter 175. — An act to permit adjournment of sales on execution for more than seven days.
Chapter 176. — An act to exempt certain property of horticultural societies from taxation.
Chapter 179. — An act authorizing advances to officers entrusted with the disbursement of public moneys.
Chapter 180. — An act authorizing the formation of corporations to examine and guarantee titles to real estate.
Chapter 185. — An act requiring dog licenses to be recorded in the city or town where the licensed dogs are
kept.
Chapter 186. — An act concerning public and private burial places, and lots therein.
Chapter 188. — An act to authorize sheriffs and their deputies to adjourn sessions of district and police courts.
Chapter 191. — An act relating to warrants in criminal cases.
Chapter 193. — An act concerning the order of trials in criminal cases.
Chapter 197. — An act to establish the salary of the clerk of the police court of Chelsea.
Chapter 199. — An act in addition to an act to regulate the taking of fish in North river in the county of
Plymouth.
Chapter 203. — An act relative to the appointment of receivers of corporations.
Chapter 204. — An act relating to the compensation of the clerk of the fourth district court of Plymouth.
Chapter 205. — An act relating to the compensation of the special justices of the district court of Hampshire.
Chapter 207. — An act relating to the annual report of the auditor of accounts.
Chapter 208. — An act to establish the salary of the justice of the first district court of Eastern Worcester.
Chapter 209. — An act in relation to the compensation of the sheriff of the county of Dukes County.
Chapter 210. — An act in relation to the better protection of children.
Chapter 211. — An act to establish the salary of the justice of the police court of Brookline.
Chapter 212. — An act for the better protection of lobsters.
Chapter 213. — An act relating to the employment of pilots on board whaling vessels outward bound from the
port of New Bedford.
Section 4 of Chapter 215. — An act to establish the first district court of Northern Worcester.
Chapter 219. — An act relating to divorce in cases of long and unexplained absence of the libellee.
Chapter 220. — An act to establish the salary of the justice of the first district court of Bristol, holding court in
Attleborough.
Chapter 222. — An act requiring railroad companies to use safety couplers on freight cars.
Chapter 223. — An act relating to safety appliances in hotels and public buildings.
Chapter 226. — An act in relation to betterments for locating, laying out and constructing streets, ways and pub-
lie parks.
Chapter 229. — An act relating to the transfer of stock in corporations.
Chapter 230. — An act concerning the volunteer militia.
Chapter 231.— An act to establish the salary of the justice of the district court of Southern Berkshire, and to
abolish the office of clerk of said court.
Chapter 234.— An act concerning asylums for the chronic insane.
Chapter 236.— An act to provide for composition with creditors in insolvency.
Chapter 237. — An act in relation to assessments for public improvements.
Chapter 245. — An act concerning the fisheries in waters of the county of Dukes County.
Chapter 247. — An act extending the authority to summon witnesses.
Chapter 252. — An act concerning pilotage.
Chapter 255. — An act to establish a reformatory for male prisoners.
Chapter 258. — An act concerning commitments to the state workhouse.
1920
EXPRESS REPEAL
LAWS OF 1885.
[Chap. 227.
Chapter 260.—
Chapter 265.—
Chapter 268.—
Chapter 269.—
Chapter 272.—
Chapter 277.—
Chapter 279.—
Chapter 280.—
Chapter 284.—
Chapter 285.—
Chapter 286.—
Chapter 289.—
Chapter 291.—
Chapter 293.—
Chapter 294.—
Chapter 297.—
Chapter 301.—
Chapter 302.—
Chapter 304.—
Chapter 306.—
Chapter 307.—
Chapter 308.—
Chapter 310.—
Chapter 313.—
Chapter 316.—
Chapter 317.—
Chapter 318.—
Chapter 320.—
Chapter 321.—
Chapter 322.—
Chapter 323.—
Chapter 324.—
Chapter 326.—
Chapter 328.—
Chapter 329.—
Chapter 330.—
Chapter 331.—
Chapter 333.—
Chapter 334.—
Res. Chapter 7
An act for the further relief of bail upon the death of the principal.
An act in relation to commitments to imprisonment upon two or more sentences.
An act relating to the dismissal of actions in which the real estate of non-residents is attached.
An act for the protection of harbors and navigable waters.
An act to prevent the building and maintaining of barbed wire fences along or upon public
streets and highways.
An act to prevent the sale or exchange of property under the inducement that a gift or prize is
to be part of the transaction.
An act to permit the construction of branch railroads within eight miles from the state house.
An act to extend the provisions of chapter fifty-one of the Public Statutes, relating to the assess-
ment of betterments.
An act relating to the planting and growing of oysters.
An act concerning suits in equity to reach and apply the property of a debtor.
An act relating to warrants issued by justices of the peace.
An act relating to the adulteration of food and drugs.
An act authorizing special administrators to pay the expenses of executors in the proof of wills.
An act relative to the proof of equitable liabilities against insolvent estates.
An act to fix the times and places of holding probate courts in the county of Hampden.
An act providing for the appointment of trustees for the state almshouse and the state work-
house.
An act relating to the powers of married women in the disposal of their separate estate by will or
deed.
An act to regulate the construction and operating of telephonic, telegraphic and other electrical
lines.
An act relating to practice in the superior court.
An act providing for compensation for damages occasioned by the erection of telegraph and
telephone lines.
An act to prevent the adulteration of vinegar.
An act to protect game, and to protect private lands from trespass.
An act in relation to the inspection and sale of milk and butter.
An act concerning conditional sales of furniture or other household effects.
An act relating to service of process in proceedings in equity.
An act relative to fishing in the Merrimack River.
An act to prevent the use of nets in ponds.
An act to improve the civil service of the commonwealth and the cities thereof.
An act to provide for the appointment of a medical examiner for the northern district of the
county of Franklin.
An act to establish a homoeopathic hospital for the insane.
An act concerning the state reform school.
An act relating to pawnbrokers.
An act in relation to the payment of money into the treasury of the commonwealth.
• An act to establish the salary of the governor of the commonwealth.
An act establishing the salaries of the clerk of the senate and the clerk of the house of repre-
sentatives.
An act concerning foreign corporations having a usual place of business in this commonwealth.
• An act in addition to " An act to establish a reformatory for male prisoners."
An act establishing the salary of the sergeant-at-arms.
An act establishing the salary of the assistant clerk of the senate and the assistant clerk of the
house of representatives.
2. — Resolve to provide for a topographical survey and map of the commonwealth.
Chapter
7
Chapter
24
Chapter
27
Chapter
29
Chapter
31
Chapter
32
Chapter
35
Chapter
40
Chapter
41
Chapter
42
Chapter
45
Chapter
4S
Chapter
49
Chapter
59
Chapter
60
Chapter
66
One Thousand Eight Hundred and Eighty-five.
-An act empowering women to hold the office of assistant register of deeds.
-An act relative to publication and presentation to the general court of certain petitions.
- An act relating to the terms of the superior court for Hampden County.
- An act changing the form of indexes kept in registries of deeds.
- An act in relation to commissioners to take acknowledgments of deeds in foreign countries.
- An act relative to the examination of official bonds.
-An act in relation to removals of prisoners to the state workhouse and to the Massachusetts
reformatory.
-An act in relation to the fees of special justices of district, police and municipal courts.
-An act relating to the annual financial estimates for appropriations.
- An act for the relief of the municipal court of the city of Boston.
-An act relating to writs issued by district, police and municipal courts.
-An act to determine the time of holding the law terms of the supreme judicial court in the
county of Worcester.
-An act to establish the salary of the standing justice of the municipal court of the Brighton dis-
trict of the city of Boston.
- An act relative to special judgments against bankrupt and insolvent debtors.
- An act to enable any city or town to lease its public buildings or a part thereof to posts of the
Grand Army of the Republic.
- An act to provide for the disposition of forfeited property which has been used in gaming.
Chap. 227.]
EXPRESS REPEAL LAWS OF 1885.
1921
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter 73. — An act forbidding the sale and use of opium for certain purposes.
Chapter 75. — An act to provide for the service of processes in favor of or against sheriffs.
Chapter 77. — An act to establish the salary of the private secretary of the governor.
Sections 1 and 3 of Chapter 79. — An act to establish the salary of the justice of the municipal court of the
Dorchester district of the city of Boston, and to provide a clerk for said court.
Chapter 83.— An act relating to the signing and recording of licenses for the sale of intoxicating liquors in
the city of Boston.
85. — An act relating to interlocking or automatic signals at railroad crossings.
87. — An act to establish the salary of the first clerk in the office of the secretary of the commonwealth.
90. — An act to prohibit the sale of spirituous or intoxicating liquors between the hours of eleven at
night and six in the morning.
91. — An act relating to proceedings before county commissioners at other times than at regular
meetings.
94. — An act relative to the employment of prisoners in the reformatory prison for women, and to
the escape of prisoners from said prison or land appurtenant thereto.
98. — An act concerning the preparation, storage and sale of unsafe oils made from coal or petroleum
to be used for fuel.
Chapter 106. — An act to require assessors to enumerate and return the number of neat cattle and swine assessed.
Chapter 110. — An act to protect travellers at grade crossings of highways and railroads.
Chapter 118. — An act defining the duties of the board of education relating to the Perkins institution for the blind.
Chapter 119. — An act to establish the salary of the clerk of the board of railroad commissioners.
Chapter 121. — An act relating to co-operative banks.
Chapter 122. — An act relating to the inspection and sale of certain oils.
Chapter 123. — An act relating to surveyors of highways, and to trees in highways.
Chapter 125. — An act to provide for sickness or absence of an officer serving an execution.
Chapter 131. — An act to increase the district police.
Chapter 132. — An act to authorize the justices of the municipal, police and district courts to interchange services.
Chapter 133. — An act to prevent the wilful defacing and mipuse of milk cans.
Section 1 of Chapter 134. — An act authorizing the superior court to hold sessions by adjournment at Brock-
ton in the county of Plymouth.
Chapter 135. — An act allowing special and trial justices to receive fees for taking bail.
Chapter 136. — An act relating to recognizance of witnesses in certain cases.
Chapter 137. — An act to establish the salary of the clerk of the municipal court of the city of Boston for
criminal business, and to provide an additional assistant clerk for said court.
Chapter 141. — An act in relation to summoning of witnesses.
Chapter 147. — An act relating to rent of armories.
Chapter 149. — An act relating to the jurisdiction of municipal, district and police courts in cases concerning the
inspection and sale of milk.
Chapter 150. — An act to prevent the adulteration of vinegar.
Section 3 of Chapter 155. — An act to establish the police court of the city of Brockton.
Chapter 157. — An act providing for the improvement of public grounds in towns.
Section 2 of Chapter 161. — An act relating to the purchase and sale of books by school committees.
Chapter 164. — An act concerning the compensation of the accountant of the board of railroad commissioners.
Chapter 167. — An act in relation to the bonds of public warehousemen.
Chapter 168. — An act to establish the salary of the district-attorney for the middle district.
Chapter 169. — An act exempting from taxation the property of certain persons though owned by such per-
sons jointly with others.
Chapter 176. — An act in relation to the better protection of wives and children.
Chapter 180. — An act to establish the salary of the clerk of the second district court of Eastern Middlesex.
Chapter 183. — An act relating to life and casualty insurance on the assessment plan.
Chapter 189. — An act authorizing cities and towns to entrust certain appropriations to posts of the Grand
Army of the Republic for disbursement.
Chapter 190. — An act requiring clerks of towns and cities to keep indexes of instruments recorded.
Chapter 191. — An act concerning the May term of the superior court for the county of Essex.
Chapter 194. — An act to promote the abolition of grade crossings by railroads and highways.
Chapter 195. — An act to establish the salaries of the auditor of the commonwealth and of the first clerk in
the auditor's department.
An act authorizing cities and towns to license skating rinks.
An act to authorize the selectmen of towns to make rules for the regulation of carriages and
other vehicles.
An act relating to clerical assistance in the office of the register of probate and insolvency for
the county of Suffolk.
Chapter 210. — An act to authorize the payment of checks, demand drafts, and savings bank orders, incase
of the death of the drawer before payment.
Chapter 211. — An act requiring cities and towns to give certain notices concerning state poor supported by
them.
Chapter 216. — An act prohibiting the sale or delivery of intoxicating liquors on election days.
Chapter 220. — An act relating to licenses to plant, grow and dig oysters, and to the taking of scallops.
Chapter 223. — An act to provide for the punishment of fraudulent agents, clerks, servants and officers of per-
sons, firms and corporations.
Chapter 224. — An act in relation to the payment of the salaries of the board of railroad commissioners, of
the clerk and the accountant of said board, and of the inspector and assayer of liquors.
Chapter 225. — An act to protect persons using public libraries from disturbance.
Chapter 235. — An act relating to legal advertisements.
Chapter 196.
Chapter 197.
Chapter 205.
1922 EXPRESS REPEAL LAWS OF 1885. [CHAP. 227.
Chapter 236. — An act creating the ambulance corps of the Massachusetts volunteer militia.
Chapter 237. — An act in amendment of sections five and six of chapter one hundred and twenty-six of the Pub-
lic Statutes relating to joint tenancy.
Chapter 238. — An act relating to the taxation of telephone companies.
Chapter 240. — An act authorizing the formation of corporations for making, selling and distributing gas for
heating, cooking, chemical and mechanical purposes.
Chapter 250. — An act to establish the salary of the second assistant clerk of the superior court for civil busi-
ness in the county of Suffolk.
Chapter 254. — An act relating to expenses incurred by officers in the service of precepts in criminal cases.
Chapter 255. — An act relating to the p.owers of married women in the disposal of their separate estate by will
or deed.
Chapter 256. — An act providing for the enforcement of an act for the protection of lobsters.
Chapter 258. — An act in relation to the sale of real estate by guardians at private or public sale.
Chapter 260. — An act providing for granting administration without notice in certain cases.
Chapter 263. — An act to establish the salary of the treasurer and receiver-general.
Chapter 265. — An act authorizing the formation of corporations for the purpose of cremating the bodies of
the dead.
Chapter 267. — An act to prevent discrimination by telephone companies.
Chapter 274. — An act relating to the bonds of administrators of intestate estates andof administrators with the
will annexed.
Chapter 276. — An act in relation to the distribution of estates of intestates.
Chapter 277. — Au act to establish the salaries of the commissioners of the counties of Essex, Middlesex and
Norfolk.
Chapter 278. — An act to amend chapter eighty -two of the Public Statutes relating to cemeteries and burials.
Chapter 282. — An act respecting notices forbidding the sale of intoxicating liquors.
Chapter 2S3. — An act relating to the settlement of titles to real estate.
Chapter 286. — An act to establish the salary of the clerk of the first district court of northern Worcester.
Chapter 2S8. — An act concerning the great seal of the commonwealth.
Chapter 2S9. — An act concerning the issuing of warrants in bastardy cases.
Chapter 291. — An act providing for the appointment of official stenographers for the superior court.
Chapter 292. — An act in relation to the licensing of dogs.
Chapter 293. — An act in relation to the partition of lands by probate courts.
Chapter 299. — An act requiring notice of assessments of betterments to be given to the party to be charged
thereby.
Chapter 302. — An act in relation to the rights of the widow and family of a deceased person in his family
burial lot.
Chapter 303. — An act in relation to trespass upon land appurtenant to prisons and to the disturbance of such
institutions.
Chapter 304. — An act relating to clerical assistance in the office of the register of probate and insolvency in
the county of Middlesex.
Chapter 305. — An act concerning obscene publications.
Chapter 307. — An act in relation to vacancies in boards of health.
Chapter 309. — An act authorizing cities and towns to license groves to be used for picnics and other lawful
amusements.
Chapter 310. — An act relating to change of business by corporations.
Chapter 312. — An act to limit municipal debt of and the rate of taxation in cities.
Chapter 314. — An act to establish a board of gas commissioners.
Section 1 of Chapter 316. — An act to punish persons making discrimination in public places on account of race
or color.
Chapter 319. — An act to provide paper for the superintendent of the Massachusetts reformatory for certain
printing for departments of the state government.
Chapter 320. — An act to provide for the removal of insane prisoners from the Massachusetts reformatory.
Chapter 322. — An act to increase the criminal jurisdiction of district and police courts.
Chapter 332. — An act requiring physiology and hygiene to be taught in the public schools.
Chapter 334. — An act to authorize the railroad commissioners to forbid or regulate the sounding of locomotive
whistles in certain cases.
Chapter 339. — An act concerning hospital treatment for certain persons subject to dipsomania or habitual
drunkenness.
Chapter 342. — An act relating to buying and selling pools or registering bets.
Chapter 344. — An act in relation to the conservation of the Connecticut River.
Chapter 345. — An act in relation to naturalization.
Chapter 352. — An act in relation to the inspection and sale of milk and butter.
Chapter 353. — An act relating to composition with creditors in insolvency.
Chapter 355. — An act to secure a fair and equal valuation throughout the commonwealth of property sub-
ject to taxation.
Chapter 356. — An act to authorize trial justices to impose sentences to the Massachusetts reformatory.
Chapter 358. — An act relating to the liability of innholders.
Chapter 359.— An act relating to the disposition of cases for the violation of the laws relating to the sale of
intoxicating liquors.
Chapter 365. — An act in relation to the punishment of persons committing offences named in sections twenty-
nine and forty -two of chapter two hundred and seven of the Public Statutes, or convicted of
a third offence of drunkenness within one year.
Chapter 375. — An act relating to the penalty for drunkenness.
Chapter 376. — An act to provide for the disposition of legacies due to persons whose residence is unknown.
Chap. 227.] express repeal — laws of 1886. 1923
Chapter 378. — An act in relation to the appointment and tenure of office of the cattle commissioners.
Chapter 379. — An act relating to medical examiners.
Chapter 380. — An act to secure greater care in the transmission of telegraphic messages.
Chapter 384. — An act relating to return days and to practice in the supreme judicial and superior courts.
Chapter 385. — An act providing for the care of certain insane persons.
One Thousand Eight Hundred and Eighty-six.
Chapter 13. — An act to permit clerks of courts to imprint fac-similes of their signatures upon certain proc-
esses issued by them.
Section 6 of Chapter 15. — An act to abolish the municipal court of the East Boston district and to establish
the East Boston district court.
Chapter 28. — An act to permit the sheriff of the county of Nantucket to retain to his own use all fees received
by him for the service of processes.
Chapter 31. — An act to increase the number of associate justices of the superior court.
Chapter 36. — An act to amend section eleven of chapter one hundred and f orty-five of the Public Statutes
relating to marriage.
Chapter 37. — An act relating to the salaries of certain court officers in the county of Suffolk.
Chapter 38. — An act to establish the salaries of the clerks in the office of the treasurer and receiver-general,
and provide for their proper designation.
Chapter 45. — An act relating to primary declarations in naturalization cases.
Chapter 51. — An act in relation to the compensation of referees for duties performed under direction of the
supreme judicial court and superior court.
Chapter 53. — An act respecting the form of complaints in certain criminal prosecutions.
Chapter 56. — An act in relation to the returns of assessors.
Chapter 63. — An act in amendment of chapter fourteen of the Public Statutes and of chapter forty-five and
chapter two hundred and thirty of the acts of the year eighteen hundred and eighty-four
relating to the militia.
Chapter 64. — An act to authorize police courts to order the defendant in civil cases to file an answer.
Chapter 72. — An act to prohibit the sale or gift of tobacco to persons under sixteen years of age.
Chapter 74. — An act to establish the number of medical examiners and the districts of the same in the county
of Plymouth.
Chapter 76. — An act relating to the authority of towns to grant and vote money for certain memorial purposes.
Chapter 85. — An act giving additional time for the assessment of taxes in certain cases.
Chapter 86. — An act to provide for the redemption of lands set off on execution.
Chapter 101. — An act to establish a state board of health.
Chapter 105. — An act to enable the quartermaster-general to require annual returns of loans of state military
property and to adjust all accounts relating to the same.
Chapter 106. — An act to fix the salary of the clerk of the district court of Hampshire.
Chapter 113. — An act to give selectmen of towns the power to remove engineers of fire departments.
Chapter 114. — An act relating to clerical assistance in the office of the register of probate and insolvency in
Essex County.
Chapter 117. — An act relative to the eligibility to office of members of city councils.
Chapter 120. — An act for the protection of railroad employees.
Chapter 123. — An act to establish the salary of the justice of the second district court of Eastern Middlesex.
Chapter 124. — An act to establish the salary of the clerk of the municipal court of the Dorchester district of the
city of Boston.
Chapter 125. — An act to authorize railroad corporations to join certain relief societies.
Chapter 130. — An act relating to the salaries of certain court officers in the county of Suffolk.
Chapter 132. — An act to establish the salary of the county treasurer of Worcester County.
Chapter 133. — An act to establish the salary of the county treasurer of Essex County.
Chapter 135. — An act in relation to the fees for the services of appraisers and other persons appointed under
legal process.
Chapter 136. — An act to establish the salaries of the constables of the municipal court of the Charlestown
district of the city of Boston.
Chapter 137.— An act in relation to the sale of real estate by executors and administrators at private sale.
Chapter 140.— An act authorizing actions of tort against street railway corporations for loss of life by negli-
gence.
Section 1 of Chapter 142. — An act in relation to the duties and rights of pxirchasers of railroads sold under fore-
closure of mortgage and of their grantees and successors in title.
Chapter 144.— An act to provide for the charge of certain public lands by the board of harbor and land com-
missioners.
Chapter 145. — An act relating to sessions of the probate court for the county of Hampshire.
Chapter 148. — An act to establish the salaries of the constables attending the municipal courts of the Brighton
and West Roxbury districts of the city of Boston.
Chapter 150. — An act to declare women eligible to serve as overseers of the poor.
Chapter 151. — An act to establish the salary of the justice of the police court of Holyoke.
Chapter 154.— An act to establish the salary of the justice of the police court of Lynn.
Chapter 155. — An act to establish the salary of the clerk of the police court of Springfield.
Chapter 156. — An act to establish the salary of the clerk of the first district court of Southern Middlesex.
Chapter 158. — An act to establish the salary of the clerk of the police court of Newton.
Chapter 165. — An act to establish the salary of the clerk of the third district court of Eastern Middlesex.
Chapter 166. — An act to establish the salary of the justice of the first district court of Eastern Middlesex.
1924 EXPRESS REPEAL LAWS OF 1886. [CHAP. 227.
Chapter 167. — An act to establish the salary of the clerk of the first district court of Eastern Middlesex.
Chapter 171. — An act concerning the adulteration of food and drugs.
Chapter 174. — An act relating to the annual collection of statistics of manufactures.
Chapter 175. — An act to establish the salary of the inspector and assayer of liquors.
Chapter 177. — An act to provide for the assistance of women charged with crime whose cases are disposed
of without sentence.
Chapter 179. — An act to provide for the transportation of shipwrecked seamen in certain cases.
Section 2 of Chapter 190. — An act to establish the district court of Western Hampden.
Chapter 192. — An act for the protection of the fisheries in Buzzard's bay.
Chapter 194. — An act to exempt the wages and lay of seamen from attachment by the trustee process.
Chapter 197. — An act in relation to the instruction of prisoners in the state prison.
Chapter 203. — An act to amend section one of chapter three hundred and forty-five of the acts of the year
eighteen hundred and eighty-five relating to naturalization.
Chapter 207. — An act for the better protection of public records.
Chapter 209. — An act authorizing corporations to issue special stock to be held by their employees only.
Chapter 210. — An act to extend the duration of the lien of assessments for main drains or common sewers.
Chapter 214. — An act providing for publishing reports of capital trials.
Chapter 216. — An act relative to the appointment of a law clerkas an assistant in the attorney -general's depart-
ment.
Chapter 219. — An act to provide a building for the chronic insane at the state workhouse at Bridgewater.
Chapter 223. — An act relative to the issuing of process by the clerks of certain courts.
Chapter 224. — An act relating to commitments for contempt of court.
Chapter 226. — An act in relation to the care of jails and houses of correction.
Chapter 230. — An act in relation to the returns of foreign mining, quarrying, and oil companies.
Chapter 231. — An act in relation to the exemption of the property of certain literary and other associations
from taxation.
Chapter 233. — An act relating to sureties on probate bonds.
Chapter 234. — An act for the protection of fish in a portion of the county of Dukes County.
Chapter 237. — An act to establish the salaries of the adjutant-general and the first clerk in the department of
the adjutant-general.
Chapter 238. — An act to establish the salary of the second clerk in the office of the secretary of the common-
wealth.
Chapter 239. — An act in relation to the Protestant Episcopal and Reformed Episcopal churches.
Chapter 245. — An act to authorize the release of estates of tenancy by curtesy by the guardian of an insane
married man.
Chapter 247. — An act in relation to the service of warrants and other criminal process.
Section 2 of Chapter 248. — An act relative to proceedings for violations of the terms and conditions of leases,
of great ponds.
Chapter 250. — An act in relation to the inspection of gas.
Chapter 251. — An act to establish the salaries of the county commissioners of Worcester, Bristol and Plymouth
counties.
Chapter 256. — An act to apportion representatives to the several counties.
Chapter 257. — An act in relation to office hours in the department of the treasurer and receiver-general.
Chapter 258. — An act to amend chapter seventy-two of the Public Statutes relating to public warehouse
receipts.
Chapter 259. — An act to provide for returns of certificates of damage by dogs, and to change the time for pay-
ing over the money received for licenses.
Chapter 263. — An act to provide for a state board of arbitration for the settlement of differences between em-
ployers and their employees.
Chapter 267. — An act in relation to the fees and expenses of agents appointed by the governor to demand of
the authorities of other states offenders fleeing from justice.
Chapter 270. — An act in relation to taxation of telephone companies.
Chapter 275. — An act to establish the salary of the secretary of the board of commissioners of prisons.
Chapter 276. — An act for the better preservation of birds and game.
Chapter 281. — An act to permit a defendant in an action at law to require adverse parties claiming funds in his
hands to interplead.
Chapter 287. — An act to prevent the sale of impure ice.
Chapter 289. — An act in relation to the sale of goods at auction.
Chapter 290. — An act in relation to the schedules required to be furnished by an insolvent debtor to the
messenger.
Chapter 296. — An act for the better protection of forests from fires.
Chapter 298, except Section 11. — An act concerning the Massachusetts school for the feeble-minded.
Chapter 299. — An act relating to licenses to plant, grow and dig oysters, and extending the time in which
oysters may be taken.
Chapter 305. — An act concerning the punishment for rape.
Chapter 307. — An act to establish the salaries of the justice and clerk of the police court of Lowell.
Chapter 313. — An act relating to the tenure of office of teachers.
Chapter 317. — An act in relation to the inspection and sale of imitation butter.
Chapter 318. — An act in relation to the inspection of milk.
Chapter 319. — An act concerning the commitment and custody of insane persons.
Chapter 322. — An act to amend section ninety -three of chapter one hundred and fifty-seven of the Public
Statutes relating to matters avoiding discharge in insolvency.
Chapter 323. — An act concerning sentences to the Massachusetts reformatory and the terms of imprisonment
therein.
Chap. 227.] express repeal — laws of 1887. 1925
Chapter 328. — An act providing for the punishment of embezzlement of property of voluntary associations.
Chapter 329. — An act to punish the crime of seduction and other acts of unlawful sexual intercourse.
Chapter 330. — An act relating to indigent and neglected children.
Chapter 332. — An act to authorize the governor and council to employ counsel to assist in the defence of actions
brought to recover national bank taxes paid to a city or town.
Section 2 of Chapter 333. — An act to provide a clerk for the district court of Southern Berkshire.
Chapter 334. — An act establishing the salaries of the clerks in the department of the treasurer and receiver-
general.
Chapter 337. — An act to authorize street railway companies to use the cable system as a motive power.
Chapter 338. — An act to divide the commonwealth into forty districts for the choice of senators.
Chapter 340. — An act concerning the keeping of dogs known as bloodhounds.
Chapter 342. — An act in relation to procuring unlawful or fraudulent decrees of divorce.
Chapter 346. — An act in relation to gas companies.
Chapter 348. — An act to divide the commonwealth into eight districts for the choice of councillors.
Res. Chapter 32. — Resolve relative to the establishment of an arbor day.
One Thousand Eight Hundred and Eighty-seven.
Chapter 26. — An act to establish the salary of the third clerk in the office of the secretary of the commonwealth.
Chapter 30. — An act to establish the salary of the second clerk in the department of the auditor of the com-
monwealth.
Chapter 33. — An act in relation to the return day of trustee writs issued by trial justices.
Chapter 36. — An act relating to naturalization returns.
Chapter 39. — An act relating to clerical assistance in the office of the register of probate and insolvency in
Worcester County.
Chapter 43. — An act providing for the disposition of useless records, schedules and papers accumulating in
the bureau of statistics of labor.
Chapter 50. — An act relating to land damages in the counties of Nantucket and Dukes County.
Chapter 53. — An act to regulate the disposition of liquors forfeited to the commonwealth.
Chapter 57. — An act to establish the salary of the county treasurer of Middlesex County.
Chapter 58. — An act to establish the salary of the sheriff of the county of Berkshire.
Chapter 61. — An act to establish the salaries of the justice and clerk of the district court of Northern Berkshire.
Chapter 63. — An act relating to sessions of the probate court for the county of Plymouth.
Chapter 67. — An act to prevent persons from unlawfully using or wearing the insignia of the Military Order
of the Loyal Legion of the United States or of the Grand Army of the Republic.
Chapter 74. — An act relating to the fees of official stenographers.
Chapter 83. — An act to establish the salary of the executive clerk of the governor and council.
Chapter 86. — An act in relation to the assessment of taxes.
Chapter 87. — An act concerning the keeping of accounts in sundry state institutions.
Chapter 89. — An act relating to corporations organized for the purpose of letting vaults, safes and other
receptacles.
Chapter 94. — An act regulating the sale of dressed poultry.
Chapter 97. — An act to establish the salary of the district attorney for the western district.
Chapter 98. — An act relating to wrecks and shipwrecked goods.
Chapter 105. — An act to protect the fisheries in the tributaries of Plum Island Bay.
Chapter 110. — An act in relation to the accounts of collectors of taxes.
Chapter 112. — An act to establish the salary of the clerk of courts for the county of Dukes County.
Chapter 116. — An act to fix the compensation of the doorkeepers, assistant doorkeepers, postmaster, messen-
gers and pages of the senate and house of representatives.
Chapter 117. — An act to establish the salary of the clerk of the police court of Chelsea.
Chapter 118. — An act relative to furnishing to cities and towns the index-digest of Massachusetts reports.
Chapter 123. — An act to amend chapter two hundred and ninety-eight of the acts of the year eighteen hundred
and eighty-six entitled " An act concerning the Massachusetts school for the feeble-minded."
Chapter 124. — An act relating to assessing betterments on highways.
Chapter 125. — An act in relation to the assessment of taxes on royalty paying machines.
Chapter 127. — An act to establish the salaries of the district police.
Chapter 128. — An act to more clearly define the duties of the sergeant-at-arms and to establish the salaries of
certain of his appointees and to provide for their proper designation.
Chapter 135. — An act relating to the licensing of dogs in the city of Boston.
Chapter 137. — An act to establish a board of registration in dentistry.
Chapter 143. — An act to punish the obtaining by false pretences of certificates of registration or transfers of
such registrations, and the giving of false pedigrees of cattle and other animals.
Chapter 149. — An act relating to the examination of jurors.
Chapter 156. — An act to establish the salary of the officer in attendance at the sessions of the probate court and
the court of insolvency in the county of Suffolk.
Chapter 159. — An act to establish the salary of the county treasurer of Hampshire County.
Chapter 160. — An act to establish the salaries of the district attorney, the assistant district attorneys and the
clerk of the district attorney, for the Suffolk district.
Chapter 162. — An act in relation to the erection and maintenance of guide posts at crossings and forks of high-
ways.
Chapter 163. — An act to establish the salaries of the justices of the municipal court of the city of Boston.
Chapter 164. — An act to establish the salary of the sheriff of Essex County.
Chapter 170. — An act relating to annual meetings and reports of the trustees of state lunatic hospitals.
1926 EXPRESS REPEAL LAWS OF 1887. [CHAP. 227.
Chapter 171. — An act to establish the salary of the justice of the police court of Springfield.
Chapter 174. — An act to establish the salary of the clerk of the fourth district court of Eastern Middlesex.
Chapter 175. — An act to establish the salary of the clerk of the municipal court of the Charlestown district of
the city of Boston.
Chapter 180. — An act to establish the salary of the justice of the police court of Somerville.
Chapter 190. — An act to establish the salary of the justice of the district court of Central Berkshire.
Chapter 191. — An act extending the time for which railroad corporations may issue bonds.
Chapter 193. — An act for the protection of the fisheries in the waters of the town of Westport.
Chapter 197. — An act concerning the use of gill nets or set nets within one half mile of the shores of the town
of Mattapoisett.
Chapter 199. — An act to establish the salary of the first assistant clerk of the superior court for civil business
in the county of Suffolk.
Chapter 204. — An act to establish the rates of pilotage for the ports of Salem and Beverly.
Chapter 206. — An act to prohibit the unlicensed selling, distributing or dispensing of intoxicating liquors by
clubs.
Chapter 208. — An act to establish the salary of the clerk of the police court of Lawrence.
Chapter 209. — An act to establish the salary of the assistant state librarian and clerk of the board of
education.
Chapter 211. — An act to establish the salaries of the county commissioners of Hampshire county.
Chapter 214. — An act to amend and codify the statutes relating to insurance.
Chapter 216. — An act relating to co-operative banks.
Chapter 218. — An act to amend section ten of chapter one hundred and three of the Public Statutes relating to
the duties and powers of inspectors of factories and public buildings.
Chapter 221. — An act to establish the salary of the messenger to the governor and council.
Chapter 225. — An act requiring annual returns from certain corporations.
Chapter 226. — An act relating to the overlay of taxes.
Chapter 227. — An act to establish the salary of the clerk of the district court of Southern Berkshire.
Chapter 228. — An act exempting corporations whose franchise is subject to taxation from taxation of their
shares.
Chapter 231. — An act in reference to the office of fire marshal of the city of Boston.
Chapter 232. — An act to establish the salary of the inspector and assayer of liquors.
Chapter 234, except Section 3. — An act to provide for the appointment of police matrons in cities, and for the
establishment of a house of detention for women in the city of Boston.
Chapter 239. — An act to change the name of the temporary asylum for the chronic insane at Worcester.
Chapter 243. — An act to authorize the payment of fees to deputy sheriffs and constables for attendance at the
probate courts and courts of insolvency.
Chapter 245. — An act to establish the salary of the clerk of the secretary of the state board of agriculture.
Chapter 246. — An act concerning the collection of claims against the commonwealth.
Chapter 248. — An act concerning limited partnerships.
Chapter 250. — An act to co-operate with the United States in the suppression and extirpation of pleuro-pneu-
monia.
Chapter 256. — An act to increase the district police force.
Chapter 263. — An act to make the first Monday of September, known as labor's holiday, a legal holiday.
Chapter 264. — An act to change the name of the state workhouse at Bridgewater.
Chapter 265. — An act to establish the salary of the clerk of the police court of Somerville.
Chapter 269. — An act to amend an act to provide for a state board of arbitration for the settlement of differ-
ences between employers and their employees.
Chapter 270. — An act to extend and regulate the liability of employers to make compensation for personal
injuries suffered by employees in their service.
Section 2 of Chapter 274. — An act providing for a clerk for the municipal court of the West Roxbury district
of the city of Boston.
Chapter 276. — An act to further amend section twenty-three of chapter one hundred and four of the Public
Statutes in relation to the authority of inspectors of factories and public buildings.
Chapter 277. — An act to enable public warehousemen to collect their charges upon property deposited with
them by the sale thereof.
Chapter 283. — An act concerning taxation of insurance companies.
Chapter 286. — An act concerning partition of lands.
Chapter 289. — An act in relation to the compensation of arbitrators appointed under chapter one hundred and
eighty-eight of the Public Statutes.
Chapter 290.— An act limiting the right of married women to dispose of real estate by will.
Chapter 291.— An act enlarging the duties and regulating the salary of the clerk of the supreme judicial court
in the county of Suffolk.
Chapter 292. — An act authorizing the commissioners of prisons to remove prisoners from the Massachusetts
reformatory to the state farm at Bridgewater, and giving the state board of lunacy and charity
authority over prisoners so removed.
Chapter 293. — An act concerning the jurisdiction of municipal, police and district courts in certain criminal
cases.
Chapter 295. — An act relating to the awards of special commissions in the alterations of crossings of highways
or townways and railroads.
Chapter 298. — An act to provide for the appointment of a pilot for Cohasset harbor.
Chapter 300.— An act relating to the trapping or snaring of ruffed grouse, hares or rabbits.
Chapter 307.— An act to provide for licensing dogs kept for breeding purposes.
Chapter 310.— An act relating to medical examiners.
Chapter 314. — An act for the protection of lobsters.
Chap. 227.] express repeal — laws of 1887. 1927
Chapter 315.— An act to provide for the employment by the commissioners of prisons of additional agents to
aid discharged prisoners.
Chapter 318. — An act to establish the salary of the clerk of the police court of Holyoke.
Chapter 320. — An act to prohibit advertising the business of procuring divorces.
Chapter 323. — An act relative to the rights of owners of real estate in the matter of the granting of liquor
licenses.
Chapter 327. — An act to provide an assistant clerk for the municipal court of the South Boston district, in the
city of Boston, and to establish the salary of said assistant clerk, so far as it establishes the
salary of said assistant clerk.
Chapter 332. — An act to enlarge the jurisdiction of the superior and probate courts.
Chapter 334. — An act relating to the examination of railroad bridges.
Chapter 336. — An act to provide offices for agents for aiding discharged prisoners.
Chapter 338. — An act relative to the abatement of certain nuisances by boards of health.
Chapter 339. — An act to prohibit the illicit conveyance of articles into or from the Massachusetts reformatory.
Chapter 340. — An act relating to voluntary assignments by insolvent persons.
Chapter 341. — An act to establish the salaries of the superintendent and the clerk of the reformatory prison for
women.
Chapter 342. — An act to fix the salaries of the deputy tax commissioner and commissioner of corporations and
the persons employed in his department.
Chapter 345. — An act authorizing cities to appropriate money for the enforcement of the provisions of law
relating to civil service.
Chapter 346. — An act concerning commitments and transfers of the insane.
Chapter 347. — An act in relation to a change of venue in civil actions.
Chapter 348. — An act in relation to fences and other structures erected to annoy, and for the abatement of
nuisances.
Chapter 355. — An act in relation to the removal of subordinate officers of the state prison.
Chapter 362. — An act relating to the heating of passenger cars on railroads.
Chapter 364. — An act concerning the tenure of office of certain officers.
Chapter 365. — An act to prevent the sale of intoxicating liquor in cases of riot or great public excitement.
Chapter 366. — An act in relation to the increase of the capital stock of street railway companies.
Chapter 367. — An act concerning the transfer and removal of pauper inmates of state charitable institutions
and lunatic hospitals.
Chapter 373. — An act extending the provisions of the Public Statutes relating to the taxable valuation of ves-
sels engaged in the foreign carrying trade.
Chapter 375. — An act to provide for the release from and the return to county prisons of prisoners transferred
thereto from the Massachusetts reformatory.
Chapter 380. — An act to authorize the suppression of common nuisances described in section six of chapter one
hundred and one of the Public Statutes.
Chapter 382. — An act constituting the board of gas commissioners a board of gas and electric light commis-
sioners.
Chapter 383. — An act relating to the practice in civil actions in the supreme judicial and superior courts.
Chapter 385. — An act to authorize gas companies to furnish electric light.
Section 3 of Chapter 391. — An act to further regulate the observance of the Lord's day.
Chapter 392. — An act relative to the forfeiture of licenses issued under provisions of chapter one hundred of
the Public Statutes.
Chapter 393. — An act relative to the fencing of canals.
Chapter 395. — An act to provide for aiding prisoners discharged from the Massachusetts reformatory.
Chapter 401. — An act relating to the enforcement of the law for placing pauper children in families.
Chapter 404. — An act to provide for the incorporation of churches.
Chapter 406. — An act providing for the seizure of implements and furniture used in the illegal selling of
intoxicating liquors.
Chapter 407. — An act to provide for the levy of executions on real estate when such levy is suspended by rea-
son of a prior attachment.
Chapter 414. — An act relative to evidence in certain prosecutions for violation of the liquor laws.
Chapter 418. — An act relating to conditions and restrictions on real estate.
Chapter 419. — An act relative to the assessment and collection of taxes by religious societies.
Chapter 422. — An act to prevent illegal peddling and begging by certain minors.
Chapter 426. — An act to authorize the use of the reformatory prison for women at Sherborn and the state
industrial school for girls at Lancaster for the punishment of female offenders convicted in the
courts of the United States.
Chapter 430. — An act authorizing railroad corporations to change their locations for the purpose of improving
the alignment of their roads.
Chapter 433. — An act relating to the employment of minors who cannot read and write in the English lan-
guage.
Chapter 435. — An act to provide for the punishment of habitual criminals.
Chapter 436. — An act to punish unnatural and lascivious acts.
Chapter 438. — An act to provide for the appointment of a controller to audit the accounts of county officers,
officers of inferior courts and trial justices.
Chapter 440. — An act to prevent the removal to the state almshouse of sick paupers.
Sections 3 and 4 of Chapter 441. — An act in aid of the hospital cottages for children in Baldwinville in the
town of Templeton.
Chapter 442.— An act to amend chapter one hundred and sixty-two of the Public Statutes in relation to the
examination and arrest of poor debtors.
Chapter 445. — An act concerning picnics and other lawful gatherings in licensed groves.
1928
EXPRESS REPEAL
LAWS OF 1888.
[Chap. 227.
Chapter 446. — An act concerning the admission of children under thirteen years to certain shows and places of
amusement.
Chapter 447. — An act relating to the labor of the prisoners in the state prison, reformatories and houses of cor-
rection.
Chapter 449. — An act to prevent fraud in the sale of lard.
Chapter 1
Chapter 22
Chapter 41
Chapter 46
Chapter 49
Chapter 50.
Chapter 54.
Chapter 55
Chapter 58.
Section 2 of
Chapter 65
Chapter 67
Chapter 69.
Chapter 84
Chapter 86
Chapter 88
Chapter 89
Chapter 94
Chapter 95
Chapter 105.
Chapter 110
Chapter 114.
Chapter 115.
Chapter 116.
Chapter 134
Chapter 135
Chapter 139.
Chapter 141
Chapter 148.
Chapter 151
Chapter 153
Chapter 154
Chapter 155.
Chapter 157
Chapter 158.
Chapter 160
Chapter 163
Chapter 165
Chapter 173
Chapter 176
Chapter 177.
Chapter 180
Chapter 181
Chapter 184
Chapter 188
One Thousand Eight Hundred and Eighty-eight.
— An act to provide additional clerical assistance for the general court.
, — An act to define the meaning of the words " contract for the labor of prisoners," as used in
chapter four hundred and forty-seven of the acts of the year eighteen hundred and eighty-
seven.
— An act to establish the salary of the secretary of the civil service commission.
— An act to amend section twenty-four of chapter one hundred and ninety-two of the Public Stat-
utes relating to the enforcement of certain liens upon personal property.
— An act relating to sentences of imprisonment in the Massachusetts reformatory.
— An act to establish the salary of the justice of the central district court of Worcester.
— An act to establish the salary of the clerk of the district court of East Norfolk.
— An act to establish the salary of the clerk of the police court of Haverhill.
— An act to increase the number of associate justices of the superior court.
Chapter 60. — An act providing for a clerk for the police court of Brookline.
— An act to establish the salaries of the county commissioners of Franklin County.
— An act to amend section ninety-nine of chapter one hundred and fifty-seven of the Public Stat-
utes, relating to allowances to insolvent debtors.
— An act concerning admissions to the asylum for insane at Tewksbury.
— An act to amend section five of chapter two hundred and fourteen of the acts of the year one
thousand eight hundred and eighty-seven, relating to clerical assistance in the insurance
department.
— An act to amend an act relating to safety appliances in hotels and public buildings.
. — An act to establish the salary of the clerk of the district court of Western Hampden.
— An act to establish the salary of the clerk of the district court of Northern Berkshire.
— An act to amend section sixteen of chapter one hundred and fifty of the Public Statutes relating
to appeals.
— An act to establish the salary of the sheriff of the county of Middlesex.
— An act providing for the registration and licensing of plumbers in the cities and towns of the
commonwealth.
— An act to establish the salary of the justice of the police court of Lawrence.
— An act to amend section nineteen of chapter fifty-two of the Public Statutes, relating to notices
in, and jurisdiction of, cases of injuries received on highways.
— An act to establish the salaries of the first and second clerks of the bureau of statistics of labor.
— An act to amend section thirteen of chapter one hundred and six of the Public Statutes, relating
to the formation of certain corporations.
— An act to authorize the incorporation of labor or trade organizations.
— An act to amend sections ten and eleven of chapter two hundred and three of the Public Statutes
relating to the penalties for the offence of burglary.
— An act to regulate the granting of liquor licenses to be exercised in dwelling houses.
— An act to amend section thirty-one of chapter two hundred and fourteen of the acts of the year
eighteen hundred and eighty-seven, relating to the insurance of mechanic's tools.
— An act in relation to affidavits of notice of appointment and sales of real estate by administrators
and executors.
— An act in relation to actions upon fire insurance policies.
— An act providing for a third assistant clerk of the superior court, civil session, of the county of
Suffolk.
— An act to amend section thirty-three of chapter thirteen of the Public Statutes, relative to the
returns for taxation of insurance companies.
— An act to amend an act to extend and regulate the liability of employers to make compensation
for personal injuries suffered by employees in their service.
—An act to provide for the appointment of an assistant district attorney for the middle district.
— An act in relation to the exemption of the property of certain literary and other associations
from taxation.
— An act relating to the preservation of the purity of water supplies.
— An act to establish public weighers of salt-water fish landed from vessels.
—An act concerning the investments of mutual life insurance companies.
—An act to establish the salary of the justice of the second district court of Southern Worcester.
— An act to prohibit railroad corporations from requiring women and children to ride in smoking
cars.
— An act relative to the stock of associations formed for charitable, educational and other purposes.
— An act relative to the payment of witnesses in inquests and in criminal proceedings before trial
justices and the police, district and municipal courts.
— An act relative to women detained or received at police stations, except so far as it applies to the
city of Boston.
—An act to provide extra clerical assistance for the clerk of the central district court of Worcester.
— An act in relation to voting by proxy at meetings of corporations.
Chap. 227.] express repeal — laws of i888. 1929
■Chapter 189. — An act to amend section twenty-seven of chapter two hundred and twenty-one of the Public
Statutes, relating to the employment of convicts.
Chapter 191.— An act relating to the publication of the annual report of the hoard of commissioners of savings
banks.
Chapter 192. — An act to provide for the release from and the return to county prisons of prisoners transferred
thereto from the reformatory prison for women.
Section 4 of Chapter 193. — An act to establish the second district court of Essex.
Chapter 195. — An act to establish the salaries of the constables in attendance at the sessions of the municipal
court for criminal business in the city of Boston.
Chapter 211.— An act to provide for the preservation of the dockets, records and other official papers of trial
justices.
Chapter 214. — An act to establish the salary of the clerk of the first district court of Northern Middlesex.
Chapter 219. — An act to define what shall be deemed to be intoxicating liquor within the meaning of chapter
one hundred of the Public Statutes.
Chapter 220. — An act to provide a penalty for the violation of the rules or regulations established by boards of
fire engineers.
Chapter 228. — An act to establish the salary of the sheriff of Suffolk county.
Chapter 233. — An act to establish the salary of the clerk of the second district court of Eastern Middlesex.
Chapter 234. — An act to establish the salary of the justice of the police court of Gloucester.
Chapter 235. — An act to establish the salary of the clerk of the police court of Gloucester.
Chapter 239. — An act to provide for the free instruction of deaf mutes or deaf children.
Chapter 240. — An act to amend an act to promote safety at railroad grade crossings.
Chapter 243. — An act to authorize the district police to enter and examine pawn shops.
Chapter 244. — An act to establish the salary of the sheriff of the county of Worcester.
Chapter 246. — An act to provide for extra clerical assistance for the police court of Lowell.
Chapter 248. — An act concerning neglected children and juvenile offenders.
Chapter 253. — An act to amend an act to improve the civil service of the commonwealth and the cities thereof.
Chapter 254. — An act to prohibit the sale of intoxicating liquor on Fast day, Memorial day, Thanksgiving day
and Christmas day.
Chapter 257. — An act relating to the salaries of the clerks of courts and the payment of fees in the superior
court and the supreme judicial court.
Chapter 261. — An act to amend section one of chapter two hundred and sixty-nine of the acts of the year
eighteen hundred and eighty-seven relating to the state board of arbitration and conciliation.
Chapter 262. — An act relative to the conditions upon which licenses to sell intoxicating liquors may be granted.
Chapter 264. — An act in relation to the officers of the state prison at Boston.
Chapter 267. — An act to establish the salary of the district attorney for the southeastern district and to provide
for the appointment of a temporary assistant to the district attorney.
Chapter 273. — An act relating to estates tail.
Chapter 275. — An act relating to the report of the controller of the accounts of county officers, officers of inferior
courts and trial justices.
Chapter 277. — An act relating to costs on search warrants issued under the liquor laws.
Section 1 of Chapter 278. — An act to regulate the running of the cars of one street railway company over the
tracks of another.
Chapter 280. — An act relating to clerical assistance in the office of the register of probate and insolvency for
the county of Suffolk.
Chapter 282. — An act fixing the time when final reports by auditors, masters in chancery and special masters
shall he filed.
Chapter 283. — An act relating to liquor license bonds.
Chapter 285. — An act prescribing uniform dockets and blanks in police and district courts and for trial justices.
Chapter 287. — An act to provide a bounty for the destruction of seals.
Chapter 289. — An act to establish the salary of the assistant district-attorney for the eastern district.
Chapter 290. — An act relating to appeals from probate courts.
Chapter 291. — An act to punish interferences with police signal systems.
Chapter 292. — An act to amend chapter two hundred and seventy-six of the acts of the year eighteen hundred
and eighty-six, being an act for the better preservation of birds and game.
Chapter 297. — An act relating to the seizure and disposition of implements and furniture used in the illegal
keeping or selling of intoxicating liquors.
Chapter 304. — An act concerning the election and the powers and duties of trustees of free public libraries, or
of free public libraries and reading-rooms, in towns.
Section 1 of Chapter 308. — An act to provide for the disposal of fees received by city officials.
Chapter 310.— An act to require the equipment of fire departments with apparatus for the saving of life at fires.
Chapter 311.— An act to punish the sending of women and girls to houses of ill-fame and their detention
therein.
Chapter 313.— An act to amend an act to authorize county commissioners to control travel over bridges con-
structed or maintained in whole or in part by a county.
Chapter 314. — An act to establish additional terms of the superior court for the county of Bristol.
Chapter 315. — An act to enable tenants under obligation to pay taxes assessed on real estate to apply for an
abatement thereof.
Chapter 316. — An act to regulate the erection and construction of certain buildings.
Chapter 317. — An act in relation to the release of prisoners from the Massachusetts reformatory.
Chapter 318. — An act for the protection of great ponds.
Chapter 320.— An act in relation to bonds of city and town clerks.
Chapter 321. — An act authorizing foreign manufacturing corporations to hold real estate in this common-
wealth.
1930 EXPRESS REPEAL LAWS OF 1888. [CHAP. 227.
Chapter 322. — An act to provide for increasing the amount which may be advanced from the treasury for
aiding prisoners discharged from the Massachusetts reformatory, and to provide for aiding
prisoners removed therefrom.
Chapter 323. — An act to amend chapter two hundred and seventeen of the acts of the year eighteen hundred
and eighty-two relating to returns of property held for benevolent, charitable or scientific
purposes.
Chapter 325. — An act in relation to bonds on appeal in actions for the summary process for the recovery of land.
Chapter 326. — An act to enable incorporated religious societies to make by-laws.
Chapter 327. — An act to establish the salaries of the' matrons, deputy matrons and assistant matrons in the
reformatory prison for women.
Chapter 328. — An act in relation to clerical assistance for the commissioners of prisons.
Chapter 329. — An act concerning the negotiability of certain promissory notes and other instruments.
Chapter 330. — An act in relation to the salary of the agent for discharged female prisoners.
Chapter 331. — An act authorizing towns to regulate the catching of pickerel.
Chapter 334. — An act relative to the discharge of persons appointed under the civil service law.
Chapter 335. — An act in relation to the officers of the Massachusetts reformatory.
Chapter 336. — An act to provide for the definition and preservation of town boundary lines.
Chapter 341. — An act prescribing the minimum fees for liquor licenses.
Chapter 344. — An act relative to notice and service of notice of petitions for the enforcement of liens on build-
ings and lands.
Chapter 345. — An act concerning judgment and execution in favor of adverse claimants in trustee process.
Chapter 346. — An act to amend chapter one hundred and seventy-eight of the Public Statutes relating to parti-
tion of lands.
Chapter 350. — An act in addition to an act to establish a board of gas commissioners.
Chapter 352. — An act to establish the compensation of clerks pro tempore of municipal, police and district
courts.
Chapter 357. — An act to establish the number of officers in attendance upon the superior court for the county
of Suffolk and in relation to their duties.
Chapter 362. — An act concerning the assessment of taxes in certain cases.
Chapter 363. — An act to amend section four of chapter eleven of the Public Statutes relating to the taxation of
personal estates.
Chapter 366. — An act to establish a naval battalion to be attached to the volunteer militia.
Chapter 371. — An act relating to certain court officers in the county of Suffolk.
Chapter 372. — An act in relation to agreements to make wills of real and personal estate.
Chapter 375. — An act to protect the purity of inland waters, and to require consultation with the state board of
health regarding the establishment of systems of water supply, drainage and sewerage.
Chapter 379. — An act to authorize cities to indemnify police officers for injuries received or expenses incurred
while acting as police officers.
Chapter 380. — An act relative to the proof of certain probate notices.
Chapter 384. — An act to provide armories for the Massachusetts volunteer militia.
Chapter 385. — An act to establish the salary of the secretary of the commonwealth.
Chapter 387. — An act in relation to mortgage loan and investment companies.
Chapter 388. — An act relative to the discharge of small loans and the redemption of the security given for such
loans.
Chapter 389. — An act to provide for an additional officer on the district police force.
Chapter 390.— An act to amend and codify the statutes relating to the collection of taxes.
Chapter 391. — An act to amend section one of chapter three hundred and five of the acts of the year eighteen
hundred and eighty-six concerning the punishment for rape.
Chapter 393. — An act relative to the validity of mortgages of real estate as against assignees in insolvency.
Chapter 395. — An act to prevent desecration of graves by the removal therefrom of flowers, flags or other
memorial tokens.
Chapter 396. — An act to expedite the settlement of claims for pensions.
Chapter 397. — An act relating to the laying out, alteration, discontinuance and repairs of highways in the city
of Boston.
Chapter 403. — An act in relation to the labor of prisoners.
Chapter 405. — An act providing for special judgments in certain cases where bonds are given to dissolve
attachments or to prosecute reviews.
Chapter 413. — An act in relation to safe deposit, loan and trust companies.
Chapter 414. — An act to regulate the sale of cider apples, beans and peas.
Chapter 415.— An act to amend section thirty of chapter one hundred and fifty -four of the Public Statutes
relating to processes issuing from police and district courts.
Chapter 417. — An act to provide for aiding discharged female prisoners.
Chapter 419. — An act relating to the procedure in poor debtor matters.
Chapter 420. — An act in relation to the confirmation of defective acts or proceedings of probate courts, or of
persons acting under appointment from probate courts.
Chapter 425.— An act to change the title of the law clerk of the attorney-general and to prescribe his duties.
Chapter 429. — An act relating to fraternal beneficiary organizations.
Chapter 431. — An act to aid small towns to provide themselves with school superintendents.
Chapter 432. — An act authorizing the auditor of the commonwealth to employ an additional clerk.
Chapter 433. — An act to amend section twenty-seven of chapter one hundred and eighty-one of the Public
Statutes relating to suits for redemption of mortgaged premises.
Chap. 227.] express repeal — laws of 1889. 1931
One Thousand Eight Hundred and Eighty-nine.
Chapter 11. — An act providing for a second assistant clerk of the courts for the county of Middlesex.
Chapter 12. — An act to establish the salary of the justice of the first district court of Southern Middlesex.
Chapter 16. — An act to establish the salary of the treasurer of the county of Bristol.
Chapter 19. — An act to establish the salary of the clerk of the police court of Marlborough.
Chapter 21. — An act to authorize towns to celebrate the two hundred and fiftieth anniversaries of their incor-
poration.
Chapter 28. — An act to establish the salary of the clerk of the police court of Springfield.
Chapter 30. — An act to establish the salaries of the county commissioners of the county of Hampden.
Chapter 38. — An act to establish the salary of the sheriff of the county of Hampden.
Chapter 39. — An act to establish the salary of the first assistant clerk of the municipal court of the city of Bos-
ton for civil business.
Chapter 41. — An act to establish the salary of the clerk of the third district court of Bristol.
Chapter 50. — An act providing for a fourth assistant clerk of the superior court, civil session, for the county
of Suffolk.
Chapter 54. — An act to establish the salary of the justice of the third district court of Bristol.
Chapter 58. — An act to establish the salary of the treasurer of the county of Berkshire.
Chapter 62. — An act to provide extra clerical assistance for the clerk of the second district court of Bristol.
Chapter 66. — An act in relation to sales and mortgages of trust estates.
Chapter 70. — An act to establish the salary of the auditor of accounts.
Chapter 83. — An act to establish the salary of the clerk of the central district court of Worcester.
Chapter 84. — An act relating to the ownership of real estate for the pxirpose of taxation.
Chapter 85. — An act to provide for clerical assistance in the office of the treasurer of the county of
Middlesex.
Section 1 of Chapter 90. — An act to further provide for the support of the criminal insane by the common-
wealth.
Chapter 92. — An act to establish the salary of the clerk of the municipal court of the West Roxbury district
of the city of Boston.
Chapter 97. — An act to establish the salary of the justice of the police court of Fitchburg.
Chapter 100. — An act relating to the admission of dying declarations as evidence in certain cases.
Chapter 108. — An act enabling towns to authorize boards of health to enforce regulations concerning house
drainage.
Chapter 109. — An act for the further protection, preservation and propagation of lobsters.
Chapter 112. — An act relating to the election, powers and duties of trustees of free public libraries and reading-
rooms in towns.
Chapter 113. — An act relative to imposing sentences upon female convicts.
Chapter 114. — An act to fix the penalties for violations of the liquor laws.
Chapter 115. — An act to amend chapter two hundred and eighty-three of the acts of the year eighteen hundred
and eighty-six relating to the assessment of taxes.
Chapter 123. — An act relating to the discharge of inmates of the state industrial and reform schools.
Chapter 130.— An act to establish the salary of the justice of the district court of Eastern Hampden.
Chapter 135. — An act to amend an act relating to the employment of minors who cannot read and write in the
English language.
Chapter 137. — An act to establish the salary of the clerk of the third district court of Plymouth.
Chapter 143. — An act to establish the salary of the second assistant clerk of the municipal court for civil
business of the city of Boston.
Section 2 of Chapter 152. — An act to provide for the appointment of an assistant clerk of the police court of
Lowell.
Chapter 158. — An act to establish the salary of the justice of the second district court of Eastern Worcester.
Chapter 159. — An act relating to co-operative banks.
Chapter 169. — An act in relation to the inspection of gas and gas meters.
Chapter 170. — An act to provide for the appointment of a third assistant clerk of the municipal court of the city
of Boston for civil business.
Chapter 173.— An act in relation to the drawing and summoning of jurors in the supreme judicial court for the
county of Barnstable.
Chapter 174. — An act to establish the salary of the constables of the municipal court of the Roxbury district of
the city of Boston.
Chapter 177.— An act to establish the salary of the secretary of the civil service commission.
Chapter 182.— An act fixing the times for holding probate courts in the county of Middlesex.
Chapter 183. — An act to amend an act to improve the civil service of the commonwealth and the cities
thereof.
Chapter 185. — An act to provide for the disposition of legacies bequeathed to minors who have no legal
guardian.
Chapter 186. — An act relative to the sale of intoxicating liquors on days of special elections in cities.
Chapter 192. — An act concerning the administration of estates after the expiration of twenty years from the
decease of a testator or intestate.
Chapter 193. — An act relating to appeals from orders passed by boards of health concerning offensive trades.
Chapter 197. — An act enlarging and defining the powers of women appointed special commissioners.
Chapter 198. — An act to establish the salary of the justice of the first district court of Northern Middlesex.
Chapter 204.— An act concerning the property of married women.
Chapter 206. — An act to provide clerical assistance for the clerk of the municipal court of the Charlestown
district of the city of Boston.
1932 EXPRESS EEPEAL — LAWS OF 1889. [CHAP. 227.
Chapter 209. — An act providing for additional clerical assistance in the office of the register of probate and
insolvency for the county of Worcester.
Chapter 210. — An act relative to voting by proxy at meetings of street railway companies.
Chapter 215. — An act relative to the official signatures of assistant clerks of courts.
Chapter 217. — An act to establish the salary of the justice of the municipal court of the Roxbury district of the
city of Boston.
Chapter 218. — An act to establish the salary of the clerk of the second district court of Eastern Worcester.
Section 3 of Chapter 222. — An act relative to the voting as proxies and the soliciting of proxy votes by officers
of corporations and the filing of lists of stockholders.
Chapter 226. — An act to amend an act to provide for the free instruction of deaf mutes or deaf children.
Chapter 227. — An act to establish the salary of the justice of the municipal court of the Charlestown district of
the city of Boston.
Chapter 229. — An act to prohibit sales on street cars by minors under the age of ten years.
Section 2 of Chapter 230.— An act in aid of the hospital cottages for children in Baldwinsville in the town of
Templeton.
Chapter 234. — An act relative to the rights of a husband or wife in the real estate of a deceased wife or husband.
Chapter 237. — An act fixing the times and places for holding probate courts in the county of Plymouth.
Chapter 238. — An act to establish the salary of the clerk of the district-attorney for the county of Suffolk.
Chapter 239. — An act to establish the salary of the assistant clerk of the municipal court of the Roxbury district
of the city of Boston.
Chapter 242. — An act to increase the salar3' of the justice of the municipal court of the South Boston district of
the city of Boston.
Chapter 250. — An act to establish the salary of the district attorney of the middle district.
Chapter 253. — An act relating to the payment of county taxes.
Chapter 258. — An act to authorize manufacturing corporations to support free beds in hospitals for the use of
their employees.
Chapter 260. — An act to establish the salary of the treasurer of the county of Plymouth.
Chapter 261. — An act to establish the salaries of the justice and clerk of the first district court of Bristol.
Chapter 263. — An act to establish the salary of the justice of the district court of East Norfolk.
Chapter 266. — An act to authorize executors and administrators with the will annexed to settle controversies
by arbitration or compromise.
Chapter 269. — An act in addition to an act fixing the times and places for holding probate courts in the county
of Plymouth.
Chapter 277. — An act to establish the salary of the clerk of the police court of Newburyport.
Chapter 281. — An act to establish the salary of the justice of the fourth district court of Plymouth.
Chapter 284. — An act relative to persuading or aiding seamen not to proceed on the voyage for which they have
shipped.
Chapter 286. — An act extending the provisions of the Public Statutes relating to the taxable valuation of ves-
sels engaged in the foreign carrying trade.
Chapter 287. — An act changing the time of the sittings of the superior court for civil business for the county of
Norfolk.
Chapter 289. — An act to establish the salary of the clerk of the police court of Fitchburg.
Chapter 294. — An act in relation to the approval of bills for the maintenance of the state prison, the reforma-
tory prison for women and the Massachusetts reformatory.
Chapter 298. — An act to authorize cities and towns to furnish relief to soldiers and sailors and the widows of
soldiers and sailors who served in the army or navy of the United States during the war of the
rebellion.
Chapter 299. — An act requiring cemetery corporations to keep records of all conveyances of burial lots and
contracts in relation thereto.
Chapter 303. — An act to establish the salaries of the county commissioners for the county of Middlesex.
Chapter 308. — An act changing the time of the sitting of the superior court in the county of Dukes County.
Chapter 309. — An act for the better protection of infants.
Chapter 310. — An act to provide clerical assistance for the treasurer of the county of Essex.
Chapter 311. — An act in relation to the appointment of auditors by probate courts.
Chapter 313. — An act to require non-resident assignees in insolvency to appoint an agent resident in the com-
monwealth.
Chapter 315. — An act in relation to proof of notice of appointment and sales of real estate by executors,
guardians and others.
Chapter 316. — An act in relation to the issue of mortgage bonds by street railway companies.
Chapter 326. — An act to prevent the feeding of garbage, refuse or offal to milch cows.
Chapter 327. — An act changing the time of the sittings of the superior court for the county of Franklin.
Chapter 328. — An act relating to the annual returns of railroad corporations.
Chapter 334. — An act to amend chapter three hundred and ninety of the acts of the year eighteen hundred and
eighty-eight relating to the collection of taxes.
Chapter 339. — An act to establish the salaries of the county commissioners for the county of Bristol.
Chapter 342. — An act relating to investments of safe deposit, loan and trust companies.
Chapter 344. — An act to provide for the transfer of liquor licenses from one locality to another in a city or
town.
Chapter 347. — An act to prohibit the sale of intoxicating liquor on Labor day.
Chapter 348 — An act in addition to an act to authorize the New York and New England Railroad Company to
mortgage certain of its terminal lands in the city of Boston, and in relation to the purchase of
such lands from the commonwealth.
Chapter 349. — An act to establish the salary of the paying teller in the office of the treasurer of the common-
wealth.
Chap. 227.] express repeal — laws of 1890. 1933
Chapter 351. — An act to establish the salary of the chief examiner of the civil service commission.
Chapter 352. — An act placing engineers and others having charge of steam boilers in school buildings in the
city of Boston under civil service rules.
Chapter 356. — An act permitting accident insurance companies to insure, under certain conditions, the liability
of employers for injuries received by persons in their employ.
Chapter 360. — An act to amend chapter four hundred and eleven of the acts of the year eighteen hundred and
eighty-seven, entitled an act concerning the militia of the commonwealth of Massachusetts. '
Chapter 361. — An act to prohibit the sales of intoxicating liquor by holders of fourth and fifth class licenses
on election days.
Chapter 370. — An act to establish the salary of the secretary of the state board of health.
Chapter 371. — An act to promote the safety of the public at grade crossings.
Chapter 372. — An act relative to temporary loans by cities and towns.
Chapter 373. — An act to change the name of the board of gas commissioners.
Chapter 377. — An act authorizing cities and towns to contract for the disposition of garbage, refuse and offal.
Chapter 378. — An act authorizing title insurance companies to examine and guarantee titles to personal prop-
erty as well as real estate.
Chapter 380. — An act to authorize towns to employ counsel at hearings before committees of the legislature.
Chapter 384. — An act in relation to returning the names of constables to clerks of courts.
Chapter 387. — An act to amend chapter one hundred and sixty -nine of the Public Statutes relating to proof of
statutes.
Chapter 390. — An act relating to the recovery of damages for sales of intoxicating liquors to minors.
Chapter 391. — An act authorizing cities and towns to prohibit the taking of eels and shell-fish.
Chapter 393. — An act to provide for filing copies of registers of foreign vessels and for service of process on
certain persons and foreign corporations.
Chapter 398. — An act providing for the regulation and removal of posts, wires and other structures in or under
public ways and places.
Chapter 399. — An act to protect the property of the Humane society of the commonwealth of Massachusetts.
Chapter 401. — An act relative to recording of attachments of real estate in registries of deeds.
Chapter 402. — An act to establish the salaries of the attorney-general and of the first and second assistant
attorneys-general.
Chapter 406. — An act relating to composition with creditors in insolvency.
Chapter 408. — An act in relation to the officers of the Massachusetts reformatory.
Chapter 412. — An act in relation to the officers of the state prison at Boston.
Chapter 414. — An act to establish the Massachusetts hospital for dipsomaniacs and inebriates.
Chapter 415. — An act relating to the procedure in poor debtor matters.
Chapter 420. — An act for the relief of insolvent debtors.
Chapter 432. — An act concerning the order of trials in criminal cases.
Chapter 434. — An act relating to the transmission of intelligence by telephone.
Chapter 435. — An act to provide for making the probate of a will or a determination of intestacy conclusive in
certain cases.
Chapter 442. — An act to provide for determining the validity, nature or extent of certain incumbrances upon
titles to real estate.
Chapter 444. — An act providing for a second assistant clerk of courts for the county of Essex.
Chapter 446. — An act providing for the taxation of leased properties in use in this commonwealth.
Chapter 447. — An act to permit the granting of divorces in cases of the excessive use of opium or other drugs.
Chapter 448. — An act relating to the recording of office copies of instruments affecting the title to lands lying
in more than one county or registry district.
Chapter 449. — An act providing for the final distribution of sums of money deposited in the name of a judge of
probate court, as trustee, or by order of any court.
Chapter 452. — An act relative to the carrying on of the business of savings and co-operative banks, and of
banking, mortgage loan and investment and trust business.
Chapter 454. — An act relative to damages done by dogs to sheep, lambs, fowls or other domestic animals.
Chapter 457. — An act relating to licenses for hawkers and pedlers.
Chapter 458. — An act to increase the penalty for larceny in certain cases.
Chapter 461. — An act to provide for an adjournment of the September sitting of the superior court for the
county of Essex to Lawrence and Haverhill.
Chapter 462. — An act requiring guardians and trustees residing or removing out of the commonwealth to
appoint an agent resident in the commonwealth.
Chapter 465. — An act in relation to the exemption of the property of certain associations from taxation.
Chapter 466.— An act relating to the accounts and settlements of executors, administrators, guardians and
trustees.
Chapter 467. — An act in relation to the division of poll tax bills.
Chapter 468. — An act in relation to petitions for partition.
Chapter 469. — An act relating to costs in cases of juvenile offenders.
Chapter 470. — An act for the relief of sureties on bonds given to dissolve attachments in certain cases.
Res. Chapter 103. — Resolve providing for the further collection and preservation of the public records of the
parishes, towns and counties of the commonwealth.
One Thousand Eight Hundred and Ninety.
Chapter 26. — An act relating to the permanent fund and dividends of mutual fire insurance companies.
Chapter 30. — An act to amend an act to protect the fisheries in the tributaries of Plum Island bay.
Chapter 58. — An act to amend an act authorizing advances to officers entrusted with the disbursement of
public moneys.
1934 EXPRESS REPEAL LAWS OF 1890. [CHAP. 227.
Chapter 63. — An act relating to the taxation of co-operative banks.
Chapter 71. — An act relating to the funeral expenses of paupers.
Chapter 72. — An act to determine the license fee for spayed dogs.
Chapter 73. — An act relating to the expiration of the licenses of innholders and common victuallers.
Chapter 74. — An act in relation to the preservation of public health in cities.
Chapter 78. — An act relating to loans of the balances of co-operative banks.
Chapter 93. — An act to establish the salary of the justice of the police court of Newton.
Chapter 97. — An act relating to the reports of the bureau of statistics of labor.
Chapter 102. — An act concerning notice in case of infectious or contagious diseases.
Chapter 104. — An act to amend an act concerning the counterfeiting of private labels, stamps and trade-marks.
Chapter 105. — An act relative to the release of dower by the guardian of an insane wife.
Chapter 111. — An act providing that certain sessions of the public schools shall be devoted to exercises of a
patriotic nature.
Chapter 119. — An act to authorize cities and towns to contract with hospitals to receive and temporarily care for
the unfortunate or sick.
Chapter 124. — An act providing for the purchase or taking of land by cities and towns for the purification and
disposal of sewage.
Chapter 128. — An act relating to the publication of the annual report of the board of commissioners of savings
banks.
Chapter 127. — An act to authorize appeals from assessors of taxes to the superior court.
Chapter 128. — An act relating to the procedure in poor debtor matters.
Chapter 129. — An act to prevent injury to fish in brooks and streams by sawdust.
Chapter 131. — An act to establish the salary of the justice of the first district court of Southern "Worcester.
Chapter 132. — An act to provide for connecting buildings with public sewers.
Chapter 133. — An act to establish the salaries of the county commissioners of the county of Berkshire.
Chapter 137. — An act providing for clerical service in the office of the chief of the district police.
Chapter 143. — An act to establish the salary of the treasurer of Norfolk County.
Chapter 154. — An act to amend an act relating to practice in the superior court.
Chapter 159. — An act relating to the survey and sale of lumber, ornamental wood and ship timber.
Chapter 160. — An act relative to the offices of tax commissioner and commissioner of corporations and to
abolish the office of deputy tax commissioner.
Chapter 166. — An act relating to fees for detention and support of prisoners in lock-ups.
Chapter 173. — An act relative to signals at grade crossings.
Section 3 of Chapter 177. — An act to establish district courts in the county of Barnstable, — so far as it
relates to salaries.
Chapter ISO. — An act to provide for the removal of prisoners from the state prison in Boston to the state farm
in Bridgewater.
Chapter 181. — An act authorizing employees of street railway companies to unite with such companies in
establishing relief societies.
Chapter 1S3. — An act to prohibit the employment of women and minors in manufacturing establishments
between the hours of ten o'clock at night and six o'clock in the morning.
Chapter 191. — An act relating to the par value of shares of associations for charitable, educational and other
purposes.
Chapter 192. — An act relating to clerical assistance in the office of the register of probate and insolvency for
the county of Middlesex.
Chapter 193. — An act to limit the time within which trout, land-locked salmon and lake trout may be taken in
Berkshire, Franklin, Hampshire and Hampden counties.
Chapter 196. — An act relative to preserving ornamental and shade trees on the highways.
Chapter 197. — An act to impose an excise tax upon certain accident, fidelity and guaranty insurance com-
panies.
Chapter 198. — An act to authorize county commissioners to appoint clerks pro tempore.
Chapter 199. — An act relating to certificates of condition of corporations.
Chapter 201. — An act to establish the salary of the first assistant clerk of the courts for the county of Middlesex.
Chapter 202. — An act further providing for the completion of unfinished business by trial justices.
Chapter 204. — An act to fix the time of payment of certain fees to cities and towns.
Chapter 206. — An act relating to the record and certification of orders drawn by county commissioners, to the
vouchers for the same and to the vouchers for incidental expenses in the higher courts.
Chapter 209. — An act relating to clerks' fees in the supreme judicial and superior courts.
Chapter 213. — An act to establish the salaries of the medical examiners for the county of Suffolk.
Chapter 215. — An act relating to deposits of funds by certain public officers.
Chapter 216. — An act relating to accounts and returns of certain public officers.
Chapter 218. — An act to fix the time of payment of certain fines and forfeitures by sheriffs.
Chapter 224. — An act concerning appeal bonds in actions of replevin.
Chapter 225. — An act to provide further with regard to the issue of a summons in minor criminal prosecutions.
Chapter 229. — An act to prohibit the use of set nets and gill nets within one-half mile of the shores of the town
of Mattapoisett.
Chapter 230. — An act to provide for licensing persons to keep more than four horses in certain buildings or
places.
Chapter 231. — An act relative to fishing in unnavigable tidal streams.
Chapter 237. — An act relative to the destruction of foxes and raccoons in the county of Dukes County.
Chapter 238. — An act to establish the salary of the justice of the district court of Central Middlesex.
Chapter 239. — An act concerning the employment of clerks and other assistance in the department of the
secretary of the commonwealth.
Chapter 240. — An act to amend an act authorizing towns and cities to lay out public parks within their limitb.
Chap. 227.] express repeal — laws of 1890. 1935
Chapter 242. — An act in relation to the tables of aggregates required to be made by assessors of taxes.
Chapter 243. — An act to amend the Public Statutes relating to co-operative banks.
Chapter 247. — An act to establish the salary of the insurance commissioner.
Chapter 249.— An act to amend an act for the better preservation of birds and game.
Chapter 251. — An act to amend an act to establish the Massachusetts hospital for dipsomaniacs and inebriates.
Chapter 252. — An act removing restrictions from the manufacture and sale of water gas for illuminating
purposes.
Chapter 255. — An act to change the title of the instructor of the Massachusetts reformatory.
Chapter 256. — An act relating to fees and expenses in criminal cases.
Chapter 259. — An act providing for the appointment of guardians of married women incompetent by reason
of infancy to release right of dower or of homestead.
Chapter 261. — An act relating to certain appeals from probate courts to the superior court.
Chapter 264. — An act relating to public cemeteries.
Chapter 265. — An act concerning the appointment of administrators.
Chapter 266.— An act relating to the sale and distribution of real estate by administrators.
Chapter 267. — An act relating to the removal of subordinate officers of the Massachusetts reformatory.
Chapter 274. — An act concerning real estate owned by certain agricultural societies.
Chapter 276. — An act to require dealers in ice to carry scales in delivery wagons.
Chapter 277. — An act providing fees for witnesses in courts of probate and insolvency in certain cases.
Chapter 278. — An act to authorize the removal of prisoners from the state farm to houses of correction.
Chapter 284. — An act relative to the issuing of search warrants in certain cases.
Chapter 289. — An act making the wages and lay of fishermen subject to attachment by the trustee process.
Chapter 293. — An act for the better protection of lobsters.
Chapter 294. — An act increasing the number of officers who may be appointed for attendance upon the
supreme judicial court in the county of Suffolk.
Chapter 296. — An act relating to invoice books in county institutions.
Chapter 297. — An act authorizing the payment of a bounty to certain agricultural societies.
Chapter 300. — An act amending an act relating to the appointment of port wardens and pilots for Buzzard's
Bay and Martha's Vineyard.
Chapter 302. — An act to amend an act relative to the publication and presentation to the general court of
certain petitions.
Chapter 304. — An act to provide a remedy in cases of alleged violation of law by insurance companies.
Chapter 306. — An act relating to the controller of county accounts and denning the powers of his deputies.
Chapter 308. — An act relating to the oaths of county treasurers and registers of deeds.
Chapter 310. — An act in relation to the business of co-operative banking.
Chapter 315. — An act to amend an act in relation to safe deposit, loan and trust companies.
Chapter 316. — An act to provide for the registration and identification of criminals.
Chapter 319. — An act to fix the tenure of office of the police force in certain cities of the commonwealth.
Chapter 321. — An act concerning the insolvency of foreign corporations.
Chapter 326. — An act relating to the reduction of capital stock by street railway corporations.
Chapter 328. — An act relating to the expenses attending the commitment of prisoners.
Chapter 329. — An act concerning the use of names by certain corporations organized under the laws of other
states or countries and doing business in this commonwealth.
Chapter 330. — An act relating to unclaimed funds in the hands of clerks of courts.
Chapter 331. — An act in relation to the collection of taxes and the fee for preparing a tax deed.
Chapter 332. — An act to amend the Public Statutes relative to placing obstructions upon railroad tracks.
Chapter 334. — An act to provide for the registration of the pedigrees of horses used for breeding purposes.
Chapter 335. — An act relating to the Massachusetts school fund.
Chapter 341. — An act concerning fraternal beneficiary corporations.
Chapter 347. — An act to promote the establishment and efficiency of free public libraries.
Chapter 353. — An act relating to fees of trial justices.
Chapter 359.— An act authorizing the police and district courts in the county of Middlesex to establish uniform
return days and rules for civil business in said courts.
Chapter 360. — An act to amend an act relating to the salaries of the clerks of courts and the payment of fees in
the superior court and the supreme judicial court.
Chapter 368. — An act to permit railroad or street railway companies to use the Meigs system of elevated rail-
ways.
Chapter 370. — An act to amend the Public Statutes relating to divorce.'
Chapter 371. — An act in relation to bonds issued by electric light companies.
Chapter 373. — An act authorizing the treasurer to receive from the United States any sum of money for the
benefit of the Massachusetts Soldiers' Home.
Chapter 374. — An act to require clerks of courts to forward certain papers to the attorney-general.
Chapter 375. — An act constituting nine hours a day's work for all laborers, workmen and mechanics employed
by or on behalf of the commonwealth or any city or town therein.
Chapter 377. — An act in relation to the attachment of the property of newspaper offices.
Chapter 378. — An act for the prevention of fire and the preservation of life at the state hospitals and asylums
for the insane.
Chapter 379.— An act in addition to an act to aid small towns to provide themselves with school superin-
tendents.
Section 3 of Chapter 380. — An act relating to the examination and certification of the accounts of county
treasurers.
Chapter 382. — An act relating to crossings at grade by railroads for private use.
Chapter 383. — An act to enable persons to whom a debt is payable if it were not for a lien on buildings and
land to dissolve such lien by bond.
1936 EXPRESS REPEAL LAAVS OF 1891. [CHAP. 227*
Chapter 385. — An act to amend an act to provide for a state board of arbitration for the settlement of differences
between employers and their employees.
Chapter 387. — An act relating to composition with creditors in insolvency.
Chapter 388. — An act concerning the contingent expenses of civil actions in commonwealth cases.
Section 3 of Chapter 390. — An act providing for the better maintenance and enforcement of the fish and
game laws and the distribution of fish.
Chapter 391. — An act concerning the larceny or destruction of wills or other testamentary instruments.
Chapter 395. — An act to amend an act to provide for licensing persons to keep more than four horses in certain
buildings or places.
Chapter 398. — An act relative to the recovery of interest.
Chapter 400. — An act relating to assessments for disability and death funds by fraternal beneficiary organ-
izations.
Chapter 403. — An act for the better protection of land owners.
Chapter 404. — An act relating to the regulation and supervision of wires over streets or buildings in cities.
Chapter 408. — An act providing for the final distribution of sums of money deposited or invested by order of
probate courts.
Chapter 410. — An act relating to trespass upon real estate.
Chapter 414. — An act to insure hospital care and treatment for certain insane persons.
Chapter 415. — An act authorizing an appropriation for the payment of extraordinary expenses.
Chapter 416. — An act relating to loans or pledges with household goods, wearing apparel or articles of personal
use or ornament as collateral.
Chapter 420. — An act regulating the practice in probate courts and courts of insolvency.
Chapter 421. — An act relating to assessment insurance.
Chapter 425. — An act to amend an act concerning the militia.
Chapter 426, except Sections 3, 4 and 5. — An act relative to standard weights, measures and balances.
Chapter 427. — An act relating to the settlement of titles to real estate.
Chapter 428. — An act to promote the abolition of grade crossings.
Chapter 437. — An act relative to wagering contracts in securities and commodities.
Chapter 439. — An act to regulate the incorporation of clubs.
Chapter 440. — An act relating to fees of salaried officers, to expenses of criminal cases, of inquests and of
commitment of the insane.
Chapter 443. — An act providing for the extermination of the English sparrow in the commonwealth.
Chapter 446. — An act in relation to the employment of persons in places licensed for the sale of intoxicating
liquors.
Chapter 447. — An act to authorize cities and towns to furnish relief to soldiers and sailors and to the widows
and minor children of soldiers and sailors who served in the army or navy of the United States
during the war of the rebellion.
Chapter 448. — An act to prevent and punish fraud in sales of goods, wares and merchandise at public or private
sale by itinerant vendors, and to regulate such sales.
Chapter 449. — An act to regulate sales of goods, wares and merchandise taken into a city or town to be sold by
auction .
Chapter 451. — An act relating to engagements of attorneys in the supreme judicial court and the superior court.
Chapter 452. — An act providing for the disposal of property seized under the provisions of chapter two hundred
and eighty-four of the acts of the year eighteen hundred and ninety.
Chapter 456. — An act to regulate the employment of legislative counsel and agents and to provide for returns
of legislative expenses.
Res. Chapter 67. — Resolve authorizing the color guards of the sons of veterans to parade with fire-arms.
One Thousand Eight Hundred and Ninety-one.
Chapter 15. — An act to prevent persons from unlawfully using or wearing the badges of the sons of veterans
and the woman's relief corps.
Chapter 24. — An act to provide clerical assistance for the state library.
Chapter 33. — An act to amend an act to promote the abolition of grade crossings.
Chapter 38. — An act to enlarge the jurisdiction of notaries public.
Chapter 49. — An act relative to preserving ornamental and shade trees on the highways.
Chapter 58. — An act to prevent deception in the manufacture and sale of imitation butter.
Chapter 59. — An act relating to the unlawful issuing of certificates of divorce.
Chapter 65. — An act requiring assessors of cities and towns to make returns to the secretary of the common-
wealth of the number and value of fowl assessed.
Chapter 70. — An act to amend section eleven of chapter four hundred and forty of the acts of the year
eighteen hundred and ninety, relating to expenses of courts to be paid by counties.
Chapter 71. — An act to establish the salary of the clerk of the police court of Fitchburg.
Chapter 78. — An act providing for a clerk for the police court of Chicopee, — so far as relates to salary.
Chapter 79.— An act to establish the salaries of the county commissioners for the county of Worcester.
Chapter 80. — An act to establish the salaries of the county commissioners for the county of Norfolk.
Chapter 84. — An act to amend section twenty-one of chapter eighty-six of the Public Statutes, relating to the
state almshouse and state paupers.
Chapter 87. — An act relating to the fees of clerks of the supreme judicial and superior courts.
Chapter 89. — An act to provide clerical assistance for the justices of the supreme judicial court.
Chapter 90. — An act to amend chapter eighty-four of the Public Statutes relating to the support of paupers by
cities and towns.
Chapter 92. — An act to establish the salary of the assistant clerk of courts for the county of Worcester.
Chap. 227.] express repeal — laws of i89i. 1937
Chapter 97. — An act relating to the apportionment of sewer assessments in cities.
Chapter 107. — An act to establish the salary of the clerk of the second district court of Eastern Middlesex.
Chapter 108. — An act to establish the salary of the justice of the second district court of Bristol.
Chapter 113. — An act to provide for the appointment of an assistant district attorney for the south-eastern
district.
Chapter 116. — An act extending the provisions of the Public Statutes relating to the taxable valuation of
vessels engaged in the foreign carrying trade.
Chapter 122. — An act to amend an act for the better protection of lobsters.
Chapter 123. — An act to further amend an act to promote the abolition of grade crossings, so as to provide for
the assessment of damages in case of the discontinuance of a public way.
Chapter 124. — An act relative to the filing of certificates by agricultural societies claiming bounties.
Chapter 128. — An act relative to the taking of smelts in the county of Nantucket.
Chapter 129. — An act relative to signals of the approach of trains to crossings above the level of a highway.
Chapter 131. — An act concerning lists of jurors in the counties of Nantucket and Dukes County.
Chapter 135. — An act to prevent the taking of bluefish with nets or seines in a portion of the waters of Wellfleet
bay in the town of Wellfleet.
Chapter 136. — An act to authorize cities to make ordinances to govern the sale of prepared wood, slabs and
edgings when sold by the load.
Chapter 137. — An act relative to the fisheries in the town of Westport.
Chapter 139. — An act relating to pleadings and practice in the district court of Hampshire.
Chapter 140. — An act to authorize the civil service commissioners to summon witnesses and take testimony.
Chapter 144. — An act to amend an act relating to sales of goods, wares and merchandise taken into a city
or town to be sold by auction.
Chapter 153. — An act concerning the support of state poor by cities and towns.
Chapter 154. — An act to establish the salary of the sheriff of the county of Hampshire.
Chapter 158. — An act to amend an act to establish the Massachusetts hospital for dipsomaniacs and inebriates.
Chapter 159. — An act in relation to diplomas granted to graduates of the state normal schools in this common.
wealth.
Chapter 160. — An act to establish the salary of the justice of the municipal court of the Charlestown district of
the city of Boston.
Chapter 161. — An act to establish the salary of the justice of the police court of Somerville.
Chapter 162. — An act to establish the salary of the justice of the police court of Lynn.
Chapter 163. — An act to authorize beneficiary associations to return to members certain additions to death
funds.
Chapter 170. — An act to give towns jurisdiction over highways and county bridges.
Chapter 175. — An act relating to sittings of the superior court for the county of Barnstable.
Chapter 177. — An act relating to the distribution of the school fund.
Chapter 180. — An act relating to primary declarations in naturalization cases.
Chapter 181. — An act relating to certain officers in attendance upon the supreme judicial court for the county
of Suffolk.
Chapter 187. — An act to provide for the returns of prison expenses.
Chapter 188. — An act relating to notice of diseases dangerous to public health.
Chapter 189. — An act to authorize the formation of corporations for the purpose of generating and furnishing
hydrostatic pressure for mechanical power.
Chapter 190. — An act to establish the salary of the clerk of the fourth district court of Plymouth.
Chapter 194. — An act concerning the better protection of infants.
Chapter 195. — An act to authorize foreign life insurance companies to transact the business of accident insurance.
Section 1 of Chapter 196. — An act amending an act to expedite the settlement of claims for pensions.
Chapter 200. — An act relating to sentences of prisoners in the Massachusetts reformatory.
Chapter 204. — An act relating to the making up and shifting of freight trains and the sounding of locomotive
whistles.
Chapter 209. — An act to prohibit the employment of prisoners outside their places of confinement.
Section 7 of Chapter 210. — An act to provide against depredations by the insect known as the ocneria dispar
or gypsy moth.
Chapter 216. — An act to provide additional accommodations for passengers on street railways.
Chapter 218. — An act to authorize any city or town to lease its public buildings or a part thereof to veteran fire-
men's associations.
Chapter 220. — An act relating to stables in cities.
Chapter 221 . — An act relating to temporary loans by cities and towns.
Chapter 223. — An act relating to the employment of legislative counsel and agents and to provide for returns
of legislative expenses.
Chapter 225. — An act to authorize the county commissioners of the several counties, except Suffolk, to provide
for the arranging and indexing of the probate records in their respective counties.
Chapter 227. — An act relating to trials in the superior court without a jury.
Sections 1 and 3 of Chapter 228. — An act to provide for the use of machinery in the state prison, reformato-
ries and houses of correction.
Chapter 229. — An act conferring certain powers upon the chiefs of fire departments in cities.
Chapter 232. — An act concerning the volunteer militia.
Chapter 236.— An act relating to fines, fees and other moneys received by the clerks of the courts and other offi.
cers in the county of Suffolk.
Chapter 244. — An act relating to the discharge of mechanics' liens.
Chapter 249. — An act to regulate the heating of passenger cars on railroads.
Chapter 254. — An act relating to evidence in cases of violation of certain game laws.
Chapter 257. — An act relating to corporate names.
1938 EXPRESS REPEAL LAWS OF 1891. [CHAP. 227.
Chapter 259. — An act relating to the sinking funds of the commonwealth.
Chapter 261. — An act authorizing appeals in certain cases from order of inspectors of public buildings.
Chapter 262. — An act to authorize the governor and council to take action in cases relating to grade crossings.
Chapter 265. — An act relating to officers of incorporated churches.
Chapter 266. — An act in relation to the conservation of the Connecticut River.
Chapter 271. — An act relating to recognizances in poor debtor proceedings.
Chapter 272. — An act to aid small towns to provide themselves with school superintendents.
Section 2 of Chapter 273. — An act to establish the district court of Southern Norfolk, — so far as it relates to
salaries.
Chapter 287. — An act changing the time of the sittings of the supreme judicial court and the superior court for
civil business for the county of Bristol.
Chapter 288. — An act to prevent excessive charges in the redemption of tax titles.
Chapter 289. — An act relating to declaration of dividends by certain insurance companies.
Chapter 291. — An act relating to the appointment of referees to settle matters of difference between insurers
and insured in case of loss by fire.
Chapter 293. — An act conferring additional jurisdiction upon the superior court.
Chapter 295. — An act to punish prisoners who wilfully destroy the property of the commonwealth at the state
prison at Boston.
Chapter 299. — An act changing the time within which the trustees of the state farm at Bridgewater and the
state almshouse at Tewksbury are required to make their annual report.
Chapter 300. — An act to authorize the secretary of the state board of agriculture to employ an assistant clerk.
Chapter 304. — An act providing for the payment of fines collected in prosecutions for cruelty to animals.
Chapter 310. — An act in relation to the deposit of public moneys with certain trust companies.
Chapter 313. — An act providing for the payment of fees in proceedings in poor debtor cases.
Chapter 315. — An act requiring the examination of reservoirs, reservoir-dams and mill-dams by county com-
missioners.
Chapter 319. — An act in addition to an act relating to the adulteration of food and drugs.
Chapter 321. — An act to extend the time within which the city of Boston may pay certain debts.
Chapter 325. — An act relating to fees and expenses in proceedings before trial justices.
Chapter 327. — An act relating to the fisheries in Buzzard's bay.
Chapter 333. — An act to regulate the sale of candy shells inclosing liquid containing alcohol.
Chapter 339. — An act relating to the giving of bonds without sui'eties by trustees.
Chapter 341. — An act concerning foreign corporations having a usual place of business in this commonwealth.
Chapter 342. — An act relating to clerical assistance in the office of the tax commissioner and commissioner of
corporations.
Chapter 343. — An act to prevent false representations to overseers of the poor and the state board of lunacy
and charity.
Chapter 349. — An act relative to the bribery of certain public officers.
Chapter 354. — An act relating to the conveyance of real estate in cases of disseizin.
Chapter 355. — An act to restrict the height of buildings in cities.
Chapter 356. — An act to provide for the appointment of probation officers.
Chapter 358. — An act authorizing the probate court to compel parents to contribute to the support of minor
children under guardianship.
Chapter 360. — An act authorizing the commissioner of corporations to change the names of corporations.
Chapter 362. — An act to authorize sentence in criminal cases in the superior court where an appeal appears
frivolous.
Chapter 367. — An act relating to bonds in bastardy cases.
Chapter 369. — An act in relation to the sale of intoxicating liquors.
Chapter 370. — An act to enable cities and towns to manufacture and distribute gas and electricity.
Chapter 371. — An act relating to the employment of prisoners.
Chapter 374. — An act relative to the sale of articles containing arsenic.
Chapter 375. — An act to establish the salaries of the clerks in the auditor's department.
Chapter 379. — An act relating to prosecutions for capital crimes.
Chapter 381. — An act relating to the administering of oaths to persons bringing in lists of property for assess-
ment.
Chapter 382. — An act to prohibit the issuing of certain obligations to be redeemed in numerical order or in any
arbitrary order of precedence.
Chapter 383. — An act to define the rights of joint owners in personal property.
Chapter 384. — An act relating to the management of the boarding houses at the state normal schools.
Chapter 392. — An act relating to the fees to be paid in the district and municipal courts in the city of Boston.
Chapter 396. — An act to divide the commonwealth into districts for the choice of representatives in the congress
of the United States.
Chapter 400. — An act relative to the settlement of insolvent estates in certain cases after the decease of the
original assignee.
Chapter 402. — An act to establish a nautical training school.
Chapter 403. — An act to authorize the commissioners of savings banks to prevent foreign co-operative banking
corporations from transacting business in this commonwealth.
Chapter 406. — An act to amend chapter one hundred and eighty-five of the acts of the year eighteen hundred
and ninety-one entitled " An act relating to the promotion of anatomical science."
Chapter 407. — An act relative to affidavits in poor debtor cases.
Chapter 410. — An act to establish the salaries of the first and second clerks in the office of the secretary of the
commonwealth.
Chapter 411. — An act to establish the salary of the private secretary of the governor and the executive clerk of
the governor and council.
Chap. 227.] express repeal — laws of 1892. 1939
Chapter 412. — An act to provide for the protection of dairy products and to establish a state dairy bureau.
Chapter 414. — An act to require an affidavit in petitions for administration of estates of deceased persons.
Chapter 415. — An act to give to the probate courts jurisdiction in equity in the administration of the estates of
deceased persons.
Chapter 416. — An act relating to fines in criminal cases.
Chapter 418. — An act relating to disbarred attorneys and persons falsely representing themselves to be
attorneys at law.
Chapter 419. — An act in relation to naturalization.
Chapter 420. — An act to provide for the detention and treatment of inmates of penal and charitable institutions
who are afflicted with certain malignant diseases.
Chapter 425. — An act imposing a tax on collateral legacies and successions.
Chapter 427. — An act relating to the punishment of drunkenness.
Chapter 429. — An act to establish the salary of the executive messenger.
One Thousand Eight Hundred and Ninety-two.
Chapter 16. — An act to authorize the appointment of an executive stenographer.
Chapter 40. — An act in relation to the admission of fraternal beneficiary organizations of other states.
Chapter 50. — An act to exempt certain English bloodhounds from the provisions of the act prohibiting the
keeping of bloodhounds.
Chapter 55. — An act relating to the conditions under which dams may be erected across navigable streams and
outlets of great ponds for flowing cranberry lands.
Chapter 58. — An act to establish the salary of the third assistant clerk of the municipal court of the city of
Boston for civil business.
Chapter 59. — An act relating to the issuing of railroad passes and the compensation of members of the
legislature.
Chapter 63. — An act relative to the packing and branding of nails.
Chapter 67. — An act to raise the standard of the illuminating power of gas.
Chapter 74. — An act relating to the taking of oysters in the town of Yarmouth.
Chapter 87. — An act providing for a fifth assistant clerk of the superior court, civil session, for the county of
Suffolk.
Chapter 93. — An act to establish the salaries of the justice and clerk of the police court of Marlborough.
Chapter 95. — An act to establish the salary of the clerk of the courts for the county of Barnstable.
Chapter 100. — An act to establish the salary of the justice of the East Boston district court.
Chapter 101. — An act to establish the salary of the governor of the commonwealth.
Section 2 of Chapter 102. — An act relating to the pursuing of wild fowl.
Chapter 107. — An act to establish the number of officers in attendance upon the superior and supreme judicial
courts for the county of Middlesex, to define their duties and to establish their salaries.
Chapter 109. — An act relative to the taking land for taxes so as to dispense with the filing of certain papers
connected with such taking.
Chapter 110. — An act authorizing steam railroads to use electricity as a motive power.
Chapter 116. — An act giving probate courts concurrent jurisdiction with the supreme judicial court in equity
in relation to trusts.
Chapter 118. — An act relative to the revocation of a will on the marriage of the testator.
Chapter 121. — An act relating to the residence of registers of deeds and to the place of keeping books, records,
deeds and papers belonging to their offices.
Chapter 123. — An act to provide and define the punishment for perjury.
Chapter 127. — An act authorizing the transfer of cases in the supreme judicial court.
Chapter 128. — An act to establish the salary of the chief of the district police.
Chapter 129. — An act relating to taxes upon certain accident, fidelity and guaranty insurance companies.
Chapter 133. — An act relating to the payment of official stenographers of the superior court.
Chapter 138. — An act relating to the fraudulent conversion of money or securities deposited for a specific
purpose.
Chapter 139. — An act providing compensation for the members of the state dairy bureau.
Chapter 140. — An act to authorize the preparation for the state library of an index of current events.
Chapter 143. — An act to establish the salary of the first clerk of the secretary of the state board of agriculture.
Chapter 144. — An act to provide clerical assistance for the treasurer of the county of Bristol.
Chapter 147. — An act relating to the time of marking shade trees for their preservation.
Chapter 148. — An act in reference to the return days of writs issued by trial justices and district, police and
municipal courts.
Chapter 152. — An act regulating the use of embalming fluid in cases where persons are supposed to have come
to their death by violence.
Chapter 159. — An act authorizing certain boards and commissions to consult and advise with the attorney.
general on questions of law relating to their official business.
Chapter 160. — An act giving trial justices jurisdiction of cases of drunkenness.
Chapter 165. — An act relative to the right to the care and control of lots and tombs in public cemeteries in towns.
Chapter 166. — An act authorizing cities and towns to appropriate money for anniversary celebrations.
Chapter 167. — An act relative to the entry and driving of horses at places where purses or premiums are
competed for.
Chapter 171. — An act to require railroad companies to maintain crossings to give access to lands cut off by-
railroads.
Chapter 177. — An act appropriating ten thousand dollars annually for the Massachusetts state firemen's
association.
1940 EXPRESS REPEAL LAWS OF 1892. [CHAP. 227.
Chapter 178.— An act to authorize cities and towns to incur indebtedness for the purpose of paying damages
occasioned by the taking of land for the alteration of grade crossings.
Chapter 180. — An act providing for the assignment of police officers for special service at agricultural and
horticultural exhibitions.
Chapter 187. — An act to establish the salaries of the first and second assistant clerks of the courts for the
county of Middlesex.
Chapter 191. — An act relative to liens on buildings and land.
Chapter 192. — An act to authorize street railway companies to refund their funded debt in certain cases.
Chapter 198. — An act relative to the change of names of corporations.
Chapter 200. — An act in relation to fees for arrests for drunkenness by officers deriving their sole compensa-
tion from taxable fees.
Chapter 201. — An act relating to changes in the name of certain corporations.
Chapter 202. — An act fixing the time and place of holding probate courts in the county of Suffolk.
Chapter 206. — An act to increase the penalty for the unauthorized removal of gravel, sand and other material
from the beaches.
Chapter 209. — An act relative to special judgments against bankrupt and insolvent debtors.
Chapter 228. — An act relating to crossings of railroads, street railways, highways and other ways.
Chapter 230. — An act relating to clerical assistance in the office of the register of probate and insolvency for
the county of Suffolk.
Chapter 231. — An act to reduce witness fees and other costs where two or more cases are tried together.
Chapter 233. — An act to establish the salary of the first assistant district-attorney for the Suffolk district.
Chapter 234. — An act to increase the bounty for the destruction of seals.
Chapter 238. — An act relative to appointments on the staff of the commander in chief.
Chapter 242. — An act in relation to assistant probation officers for the municipal court of the city of Boston.
Chapter 243. — An act authorizing the reimbursement of expenses incurred by certain towns in the mainte-
nance of the insane.
Chapter 245. — An act to give greater powers to cities and towns in relation to the construction of sewers.
Chapter 249. — An act to establish the salary of the second clerk in the office of the chief of the district police.
Chapter 252. — An act to prohibit the sale of trout less than six inches in length.
Chapter 253. — An act to provide for re-recording certain records.
Chapter 254. — An act requiring street railway companies to contribute to the expense of printing their reports.
Chapter 255. — An act authorizing the furnishing of one hundred dollars' worth of books to the free libraries of
certain towns whose valuation does not exceed six hundred thousand dollars.
Chapter 256. — An act making the record of instruments affecting the title to land conclusive evidence of
delivery.
Chapter 259. — An act requiring certain returns to be made to the board of gas and electric light commissioners.
Chapter 260. — An act relating to the liability of employers to make compensation for personal injuries suffered
by employees in their service.
Chapter 262. — An act requiring the secretary of the commonwealth to give a bond and report annually the
transactions of his office.
Chapter 263. — An act relating to the returns to be made to the board of gas and electric light commissioners.
Chapter 266. — An act in relation to procedure upon writ of error or similar proceedings in criminal cases.
Section 1 of Chapter 267. — An act to authorize the grading and classifying of prisoners in the state prison.
Chapter 268. — An act relating to special justices of inferior courts.
Chapter 270. — An act relating to the payment for labor performed on buildings or public works owned by cities
or towns.
Chapter 271. — An act to increase the number of associate justices of the superior court.
Chapter 274. — An act placing restrictions upon the erection of electric light wires.
Chapter 275. — An act to prevent the acquisition of rights of way across railroads by prescription.
Chapter 286. — An act to establish the salary of the associate medical examiner for the county of Suffolk.
Chapter 289. — An act in relation to the filing for record of claims against real estate.
Chapter 290. — An act to require city and town clerks to notify the commissioners of prisons of the appointment
of certain police officers.
Chapter 291. — An act to establish the salary of the commissioner of state aid appointed by the governor and
council.
Chapter 295.— An act to establish the salary of the treasurer of the county of Norfolk.
Chapter 298. — An act to establish the salaries of the county commissioners for the county of Plymouth.
Chapter 300. — An act relating to the record and return of marriages.
Chapter 302. — An act relating to sentences to the Massachusetts reformatory.
Chapter 303. — An act relating to the age of persons sentenced to the Massachusetts reformatory.
Chapter 312. — An act relating to the abolition of grade crossings.
Section 2 of Chapter 313. — An act relating to the identification of criminals.
Chapter 318. — An act to provide for the licensing and regulating of boarding houses for infants.
Chapter 319. — An act to establish the salary of the district-attorney for the southern district.
Chapter 327. — An act in relation to enforcing the liability of shareholders in trust companies.
Chapter 331. — An act relating to peddling by minors.
Chapter 333. — An act to provide for the appointment of a commissioner of public records.
Chapter 348. — An act relating to naturalization in the inferior courts.
Chapter 354. — An act to establish the salaries of the county commissioners for the county of Essex.
Chapter 359. — An act in relation to the recovery of costs from insolvent estates.
Chapter 361. — An act in relation to the detention of material witnesses in cases of felony.
Chapter 366. — An act to establish a naval brigade, to be attached to the volunteer militia.
Chapter 370. — An act in relation to the accounts and records of collectors of taxes.
Chapter 372. — An act in relation to proof of claims under life policies, and providing certain penalties.
Chap. 227.] express repeal — laws of 1893. 1941
Chapter 377. — An act to provide for the establishment of city governments.
Chapter 378.— An act relating to pensioning members of the police department of cities containing not less than
seventy-five thousand inhabitants.
Chapter 379. — An act to amend an act imposing a tax on collateral legacies and successions.
Chapter 3S0. — An act to establish the salary of the reporter of decisions of the supreme judicial court, and to
provide clerk hire and incidental expenses.
Chapter 382. — An act relating to the duties and compensation of expert assistants appointed by the state board
of arbitration and conciliation.
Chapter 388. — An act relating to obstructions in buildings resorted to for the purpose of unlawful gaming.
Chapter 389. — An act to require railroad corporations to provide mileage tickets which shall be accepted for
passage and fare upon all railroad lines in this commonwealth.
Chapter 390. — An act to authorize selectmen of towns to adopt rules and orders for the regulation and control
of itinerant musicians and persons coasting in the streets.
Chapter 391. — An act changing the time of the sitting of the superior court for civil business for the county of
Middlesex.
Chapter 399. — An act to establish the salaries of the county commissioners for the county of Norfolk.
Chapter 407. — An act relating to the appointment of trustees of the hospital cottages for children.
Chapter 408. — An act providing for an additional trial justice in the county of Dukes County.
Chapter 409. — An act relating to lotteries and policy lotteries.
Chapter 411. — An act relating to conditional sales of furniture or other household effects.
Chapter 413. — An act prohibiting the appointment of persons not residents of the commonwealth as special
police officers.
Chapter 415. — An act relating to the assessment of damages for the laying out or alteration of highways.
Chapter 422. — An act to provide for the payment of transportation of state publications furnished to free public
libraries.
Chapter 423. — An act authorizing the authorities of Vermont to detain and transport prisoners in and through
Massachusetts.
Chapter 425. — An act to provide for the building of an asylum for the chronic insane.
Chapter 428. — An act relative to the discharge of small loans and the redemption of the security given for such
loans.
Chapter 430. — An act relating to the returns of fines, forfeitures, costs, fees and moneys by county treasurers.
Chapter 435. — An act in relation to fraternal beneficiary corporations and other corporations organized for the
transaction of insurance upon the assessment plan.
Chapter 440. — An act relating to the equity docket of the superior court in the counties of Suffolk and Middlesex.
One Thousand Eight Hundred and Ninety-three.
Chapter 23. — An act relative to temporary loans by cities and towns.
Chapter 47. — An act to amend the law relative to fraternal beneficiary corporations so as to further the forma-
tion of such organizations among permanent employees of towns and cities.
Chapter 54. — An act to enlarge the limits within which certain mutual fire insurance companies may do
business.
Chapter 59. — An act to provide conditions under which trout and trout spawn shall be furnished by the com-
monwealth.
Chapter 61. — An act concerning appeals in suits in equity.
Chapter 65. — An act in relation to public ways and laying sewers and water pipes therein.
Chapter 70. — An act relating to the publication of the annual report of the board of commissioners of savings
banks.
Chapter 75. — An act relating to the erection of buildings in public parks.
Chapter 78. — An act to provide for the extermination of insect pests.
Chapter 79. — An act relative to the payment of expenses incurred under quarantine regulations.
Chapter 80. — An act providing that the close season for black bass fishing shall terminate on the first day of
June.
Chapter 82. — An act relative to the laying out and alteration of highways.
Sections 1, 2 and 3 of Chapter 86. — An act relative to the state library.
Chapter 95. — An act to define exemptions from the civil service rules.
Chapter 99. — An act relative to the examination of reservoirs, reservoir-dams and mill-dams by county com.
missioners.
Chapter 103. — An act to establish the salary of the third clerk in the office of the secretary of the commonwealth.
Chapter 105. — An act to-authorize officers qualified to serve criminal processes, and the commissioners on inland
fisheries and game and their deputies, to make arrests without warrant for violation of fish
and game laws.
Chapter 106. — An act in relation to the granting of licenses for carrying on offensive trades.
Chapter 112. — An act concerning the employment of clerks and other assistance in the department of the
secretary of the commonwealth.
Section 1 of Chapter 114. — An act to limit the time within which, safe deposit, loan and trust companies shall
organize and commence business.
Chapter 117. — An act relating to fidelity insurance and corporate surety.
Chapter 118. — An act relative to the appointment of resident agents of non-resident executors, administrators,
guardians, trustees and assignees.
Chapter 124. — An act authorizing advances to the commissioners of the Massachusetts nautical training school.
Chapter 130. — An act to establish the salary of the second clerk of the secretary of the state board of agriculture.
Chapter 131. — An act to provide for quarterly statements by railroad corporations.
1942 EXPEESS EEPEAL LAWS OF 1893. [CHAP. 227.
Chapter 138. — An act to establish the salary of the assistant district attorney lor the middle district.
Chapter 142. — An act to provide for compensation in cases of joint occupancy of railroad stations and grounds.
Chapter 144.— An act requiring state boards and commissions to report recommendations for legislation on or
before the first Wednesday in January.
Chapter 148. — An act relating to the annual report of the secretary of the commonwealth.
Chapter 149. — An act extending the provisions of the Public Statutes relating to the taxable valuation of vessels.
engaged in the foreign carrying trade.
Chapter 151. — An act to authorize the judge of probate and insolvency of Franklin County to appoint an
assistant register.
Chapter 153. — An act to establish the salary of the fifth assistant clerk of the superior court for civil business
for the county of Suffolk.
Chapter 156. — An act to provide clerical assistance for the treasurer of the county of Worcester.
Chapter 173. — An act relative to notice in proceedings to enforce liens upon personal property.
Chapter 183. — An act relating to the taking of lobsters.
Chapter 186.— An act to authorize cities to indemnify persons required to assist police officers in the discharge
of their diities, for injuries received or expenses incurred while assisting such officers.
Chapter 190. — An act to establish the salary of the first assistant clerk of the superior court for civil business
in the county of Suffolk.
Chapter 193. — An act to establish the salary of the first clerk in the office of the adjutant general.
Chapter 194. — An act relative to decrees of divorce.
Chapter 197. — An act extending to towns the provisions of law requiring cities to place their pauper children
in families or asylums.
Chapter 200. — An act relating to superintendents of public schools for small towns.
Chapter 205. — An act for the better protection of the fisheries of Buzzard's bay.
Chapter 208. — An act authorizing cities and towns to provide free evening lectures.
Chapter 210. — An act in relation to the transportation of milk.
Chapter 217. — An act relating to indigent and neglected infants in the state almshouse.
Chapter 223. — An act to provide for printing the reports of the trustees of the Massachusetts hospital for
dipsomaniacs and inebriates.
Chapter 224. — An act relative to trust deposits with the treasurer of the commonwealth.
Chapter 225. — An act to authorize cities and towns to establish and maintain public playgrounds.
Chapter 226. — An act relating to the incorporation of clubs.
Chapter 231. — An act to establish the salary of the additional clerk in the office of the adjutant general.
Chapter 238. — An act in relation to the jurisdiction of county commissioners.
Chapter 241. — An act relating to persons imprisoned for non-payment of a poll tax.
Chapter 247. — An act authorizing assessors in cities of less than one hundred thousand inhabitants to use the
valuation of the year preceding as a basis of taxation.
Chapter 252. — An act relating to indigent and neglected children.
Chapter 253. — An act placing truant officers in the city of Boston under civil service rules.
Chapter 256. — An act to provide for the reimbursement of the trustees of the Massachusetts hospital for dipso.
maniacs and inebriates for expenses incurred by them in the performance of their duties.
Chapter 257. — An act relating to the examination of official bonds of county officers.
Chapter 262. — An act relative to evidence in proceedings for neglect to support a wife or minor child.
Chapter 266. — An act relative to deposits by cities and towns in banks and trust companies.
Chapter 270. — An act to authorize the controller of county accounts to prescribe certain returns, certificates
and vouchers.
Chapter 271. — An act relating to contracts with county officers.
Chapter 272. — An act relative to the distribution of the income of the school fund.
Chapter 273. — An act to reimburse county commissioners for their travelling expenses.
Chapter 274. — An act relative to telegraph and telephone companies.
Chapter 275. — An act relating to county commissioners and their compensation.
Chapter 276. — An act to establish the salaries of the county commissioners for the county of Barnstable.
Chapter 279. — An act to authorize cities and towns to furnish relief to the dependent fathers and mothers of
soldiers or sailors who served in the army or navy of the United States during the war of the
rebellion.
Chapter 280. — An act relating to decrees of divorce.
Chapter 283. — An act relating to the abolition of grade crossings.
Chapter 285. — An act relating to actions commenced by trustee process.
Chapter 288. — An act to establish the salaries of the county commissioners for the county of Worcester.
Chapter 291. — An act to establish the salaries of the county commissioners for the county of Bristol.
Chapter 292. — An act relative to giving credit to students by innholders and others.
Chapter 298. — An act to establish the salaries of the harbor and land commissioners.
Chapter 300. — An act relative to the laying out of public parks by towns and cities.
Chapter 302. — An act relative to notices from local boards of health in cases of diseases dangerous to the public
health.
Chapter 312. — An act relating to the repair of private drains in streets or ways.
Chapter 321. — An act relative to the admission of fraternal beneficiary organizations of other states.
Chapter 324. — An act relating to the trial of capital crimes.
Chapter 331. — An act relative to leasing open spaces for gardens and playgrounds by cities and towns.
Chapter 333. — An act relating to the officers of the Massachusetts reformatory.
Chapter 340. — An act relative to quieting titles to real estate.
Chapter 343. — An act fixing the times and place for holding probate courts in the county of Barnstable.
Chapter 344. — An act relating to clerical assistance in the office of the register of probate and insolvency for
the county of Middlesex.
Chap. 227.] express repeal — laws of 1894. 1943
Chapter 345. — An act relating to the duties of district attorneys.
Chapter 348. — An act fixing the times lor holding probate courts in the county of "Worcester.
Chapter 352. — An act relating to property held for the purposes of a water supply.
Chapter 355. — An act to protect the name and credit of certain educational institutions.
Chapter 358. — An act to establish the salary of the first clerk in the office of the sergeant-at-arms.
Chapter 359. — An act relating to the liability of employers to make compensation for personal injuries suffered
by employees in their service.
Chapter 365. — An act to fix the time of capital trials.
Chapter 367. — An act concerning the volunteer militia.
Chapter 371. — An act to provide additional clerical assistance for the clerk of the municipal court of the city of
Boston for civil business.
Chapter 372. — An act to provide for uniform rules of practice and procedure in the courts of probate and
insolvency.
Chapter 379. — An act relative to the judges of probate and insolvency for the county of Suffolk.
Chapter 380. — An act relating to the apportionment of sewer assessments in cities.
Chapter 385. — An act to authorize trial justices, and police, district and municipal courts to pay reasonable
compensation to interpreters and witnesses from without the commonwealth.
Chapter 394. — An act relating to the compensation of attorneys assigned by the court in murder cases.
Chapter 396. — An act revising and consolidating the laws relating to district and police courts.
Chapter 397. — An act relating to the establishment of corporations for the purpose of generating and furnishing
pneumatic pressure for mechanical power.
Chapter 401. — An act to provide for the payment of an allowance to families of firemen killed or fatally injured
in the discharge of their duties.
Chapter 403. — An act to protect trees from disfigurement.
Chapter 404. — An act relating to the appointment of official stenographers.
Chapter 405. — An act relating to proceedings in insolvency.
Chapter 409. — An act providing additional compensation for the sergeant-at-arms' messenger detailed for duty
with the treasurer and receiver general.
Chapter 411. — An act to provide for the preservation of the records and history of the Grand Army of the
Republic, department of Massachusetts.
Chapter 414. — An act relative to the release of persons arrested for drunkenness.
Chapter 419. — An act relating to the disposition of baggage retained by innholders or remaining unclaimed in
their possession.
Chapter 422. — An act relating to the expense of recording probate proceedings in the county of Suffolk.
Chapter 423. — An act relative to the powers and duties of town officers.
Chapter 424. — An act relative to a loan for the promotion of the abolition of grade crossings and a sinking fund
therefor, — except so far as it relates to Sts. 1892, cc. 374, 433.
Chapter 426. — An act relating to certain officers in the state prison.
Chapter 428. — An act requiring the commissioners of prisons to make certain reports.
Chapter 431. — An act relating to clerical assistance in the office of the register of probate and insolvency for the
county of Suffolk.
Chapter 432. — An act relative to the collection of taxes on collateral legacies and successions.
Chapter 434. — An act requiring a copy of the application to be attached to insurance policies in certain cases.
Chapter 438. — An act relative to the printing of the report of the adjutant general.
Chapter 439. — An act relative to the repair of uniforms and incidental expenses of the volunteer militia.
Chapter 440. — An act to protect the owners of cans, bottles, boxes, siphons and fountains used in the sale of
milk, cream, soda water, mineral and aerated waters, ale, beer, ginger ale or other beverages.
Chapter 445. — An act relating to the overlay of taxes.
Chapter 447. — An act relating to the punishment of drunkenness.
Chapter 452. — An act to establish the salary of the official stenographer for the county of Middlesex.
Chapter 453. — An act providing for the removal of the commissioners of prisons.
Chapter 454. — An act relative to the establishment of municipal gas and electric lighting plants.
Chapter 455. — An act to establish the salary of the warden of the state prison.
Chapter 456. — An act to provide additional watchmen at the state prison.
Chapter 460. — An act to secure the better enforcement of the laws relating to the public health.
Chapter 461. — An act relative to solemnizing marriages.
Chapter 462. — An act to authorize the establishment of a building line on public ways.
Chapter 466. — An act relative to the punishment for rape.
Chapter 469. — An act fixing the salaries of judges, registers, assistant registers and other officers of courts of
probate and insolvency.
Chapter 470. — An act to provide for the care and supervision of the province lands at Provincetown.
Chapter 476. — An act to provide for the appointment of a highway commission to improve the public roads and
to define its powers and duties.
Chapter 477. — An act relative to the licensing of plumbers and the supervision of the business of plumbing.
Chapter 479.— An act relating to the salaries of justices and clerks of certain municipal, district and police
courts.
One Thousand Eight Hundred and Ninety-four.
Chapter 16. — An act relative to the election of surveyors of highways.
Chapter 17.— An act relative to the powers and duties of certain town officers.
Chapter 19. — An act reducing the charges and fees for valuation of life insurance policies.
Chapter 27. — An act to prevent persons from unlawfully wearing the insignia of the union veterans' union.
1944 EXPRESS REPEAL LAWS OF 1894. [CliAP. 227.
Chapter 30. — An act relating to proceedings in insolvency.
Chapter 41. — An act to provide for the blocking of railroad frogs, switches and guard rails.
Chapter 58. — An act relative to the payment of superintendents of public schools for small towns.
Chapter 60. — An act relative to the powers of fraternal beneficiary corporations which limit their membership
to the permanent employees of the commonwealth and of towns and cities.
Section 2 of Chapter 65. — An act to establish the office of assistant clerk of the first district court of Eastern
Middlesex, — so far as it relates to salary.
Chapter 66. — An act to establish the salary of the officer in attendance upon the court of probate and insolvency
for the county of Suffolk.
Chapter 68. — An act relative to the compensation of the official stenographer for the county of Middlesex.
Chapter 83. — An act relative to surveyors of lumber and measurers of wood and bark.
Chapter 97. — An act prohibiting the taking or killing of gray squirrels, hares or rabbits between the first day
of March and the fifteenth day of September.
Chapter 103. — An act to permit insurance companies of this commonwealth having special charters to be
governed by chapter two hundred and fourteen of the acts of the year eighteen hundred and
eighty-seven.
Chapter 104. — An act relative to the partition of real estate by sale where the same cannot be advantageously
divided.
Chapter 105. — An act relating to the care of bears and other wild animals while in the public streets.
Chapter 113. — An act to protect salmon fry in the Merrimac River.
Chapter 117. — An act to prevent persons from unlawfully wearing the insignia of the union veteran legion.
Chapter 118. — An act to abolish the regular sitting of the superior court for civil business for the county of
Worcester on the Monday next after the fourth Monday of August.
Chapter 120. — An act in relation to life insurance policies for the benefit of married women.
Chapter 126. — An act in relation to the election of assessors or standing committees of parishes and incorporated
religious societies.
Chapter 127. — An act authorizing the commissioners of pilots for the harbor of Boston to consult and advise
with the attorney-general on questions of law relating to their official business.
Chapter 128. — An act to authorize guardians to give written leases of the real estate of their wards.
Chapter 129. — An act in relation to the granting of licenses for the sale of intoxicating liquors.
Chapter 130, except Sections 1 and 2. — An act to abolish Fast day and to make the nineteenth day of April a
legal holiday.
Chapter 133. — An act in relation to accident insurance.
Chapter 136. — An act to provide clerical assistance for the clerk of the supreme judicial court for the common-
wealth.
Chapter 137. — An act relating to reinsurance.
Chapter 139. — An act relative to staying proceedings in insolvency.
Chapter 142. — An act relating to the compensation of special justices and clerks pro tempore in the inferior
courts.
Chapter 144. — An act relating to the membership of the state board of agriculture.
Chapter 145. — An act to authorize the taking of land for public library buildings.
Chapter 146. — An act relative to the investment of municipal sinking funds.
Chapter 147. — An act relative to insurance in foreign fire insurance companies.
Chapter 151. — An act relating to vivisection and dissection in the public schools.
Chapter 153. — An act to establish the salary of the sheriff of the county of Barnstable.
Chapter 160. — An act in relation to the treatment of witnesses in custody.
Chapter 164. — An act to give the courts of insolvency jurisdiction in equity in cases of estates of insolvent
debtors.
Chapter 169. — An act to change the term of the superior criminal court now holden at Fitchburg.
Chapter 173. — An act relating to procedure in inferior courts.
Chapter 175. — An act relative to the appointment of auditors by the superior court.
Chapter 176. — An act to establish the salary of the secretary of the board of education.
Chapter 180. — An act relative to intelligence offices.
Chapter 181. — An act relating to the disposition of baggage retained by innholders or remaining unclaimed in
their possession.
Chapter 182. — An act relative to the payment of debts incurred in the establishment of municipal gas and
electric lighting plants.
Chapter 183. — An act relating to the accounts of registers of probate and insolvency.
Chapter 189. — An act for the further protection of smelts in Boston harbor and other waters.
Chapter 195. — An act regulating commitments to lunatic hospitals.
Chapter 196. — An act regulating transfers between certain charitable institutions.
Chapter 198. — An act to establish a law uniform with the laws of other states for a uniform standard of weights
and measures.
Chapter 199. — An act relative to the duties of registers of probate and insolvency.
Chapter 203. — An act to provide for the appointment of receivers of the estates of absent persons in certain cases.
Chapter 204. — An act relating to the trial of indictments for capital crimes.
Chapter 207. — An act relating to the allowance of interest on abatements of taxes.
Chapter 211. — An act relating to the extension of armories.
Chapter 214. — An act relating to the removal of sick prisoners to the state farm.
Chapter 216. — An act relating to the abolition of grade crossings.
Chapter 220. — An act to exempt domestic fowls from taxation.
Chapter 221. — An act extending the time within which certain municipal debts shall be made payable.
Chapter 225. — An act to authorize the beneficiary of a life insurance policy to maintain an action thereon in his
own name.
Chap. 227.] express eepeal — laws of 1894. 1945
Chapter 228. — An act relative to returns of qualifying officers.
Chapter 229. — An act to authorize the reimbursement of probation officers for expenses incurred by them
while in the performance of their duties.
Chapter 230. — An act to authorize the board of education to establish an educational museum.
Chapter 235. — An act relative to granting licenses to innholders and common victuallers.
Chapter 236. — An act to provide for reorganizing the ambulance corps of the militia.
Chapter 245. — An act relating to the amount of money to be advanced to the disbursing officer of the state
board of lunacy and charity.
Chapter 249. — An act relating to the removal of prisoners from the state prison to the Massachusetts reformatory.
Chapter 250. — An act relative to the compensation of special county commissioners.
Chapter 251. — An act relative to transferring insane persons to and from the lunatic ward of the state farm.
Chapter 253. — An act to establish a law uniform with the laws of other states for the acknowledgment and
execution of written instruments.
Chapter 258. — An act authorizing a deduction from the term of imprisonment of prisoners at the state farm.
Chapter 259. — An act relating to clerical assistance in the office of the register of probate and insolvency for the
county of Worcester.
Chapter 260. — An act relating to sentences to the reformatory prison for women.
Chapter 267. — An act extending the provisions of the civil service act to towns having a population of twelve
thousand inhabitants or over.
Chapter 270. — An act relative to the treatment of persons held in jail as witnesses.
Chapter 273. — An act to prohibit the transportation of male and female prisoners together.
Chapter 274. — An act relative to real estate held by safe deposit, loan and trust companies.
Chapter 280. — An act relating to the inspection and sale of imitation butter.
Chapter 281. — An act to provide for an additional district police officer.
Chapter 283. — An act to provide for a session of the superior court in the county of Suffolk for the speedy trial
of certain causes.
Chapter 285. — An act relative to protecting persons, associations or unions of persons in their labels, trade-
marks and forms of advertising.
Chapter 292. — An act to regulate the sale of goods marked sterling, sterling silver, coin, or coin silver.
Chapter 294. — An act to establish uniform forms for the return of property for taxation.
Chapter 297. — An act to increase the salary of the assistant district attorney for the south-eastern district.
Chapter 298. — An act relative to the disposition of the legislative dockets.
Chapter 299. — An act relative to the refusal of gas companies to furnish gas in certain cases.
Chapter 300. — An act relative to mutual fire insurance companies.
Chapter 303. — An act relative to probate accounts of administrators.
Chapter 304. — An act to prevent double taxation of certain machinery.
Chapter 308. — An act to provide for an additional associate justice of the municipal court of the city of Boston.
Chapter 309. — An act relating to the venue of actions for the recovery of damages done by dogs.
Chapter 312. — An act to establish the rank and pay of certain officers in the naval brigade.
Chapter 314. — An act authorizing advances to the sergeant-at-arms from the treasury of the commonwealth.
Chapter 316. — An act to authorize gas and electric light companies to discontinue service for non-payment of
charges.
Chapter 317. — An act revising and consolidating the statutes relating to savings banks and institutions for
savings.
Chapter 318. — An act relative to returns by the assessors of the city of Boston.
Chapter 320. — An act relating to instruction in the use of tools and in cooking in public schools.
Chapter 321. — An act to establish the salary of the justice of the third district court of Plymouth.
Chapter 322. — An act to provide additional clerical assistance in the office of the register of probate for
Plymouth County.
Chapter 324. — An act relative to the reservation of spaces in public ways.
Chapter 326, except Section 3. — An act relating to certain contracts for the conditional sale, lease or hire of
railroad and street railway equipment and rolling stock, and providing for the recording
thereof.
Chapter 327. — An act to confer upon the board of gas and electric light commissioners certain powers in respect
to regulating the price and quality of electric light.
Chapter 328. — An act enlarging the list of beneficiaries in fraternal beneficiary corporations in certain cases.
Chapter 329. — An act to provide for the examination and certification of school teachers by the state board of
education.
Chapter 330. — An act to establish the salary of the court stenographer for the county of Bristol.
Chapter &33. — An act relative to the presentment of bills and notes.
Chapter 334.— An act to provide for a special enumeration of cities and towns in certain cases.
Chapter 336. — An act to establish the salary of the clerk of the second district court of Eastern Middlesex.
Chapter 342. — An act relating to loans by co-operative banks.
Chapter 349. — An act relating to the appointment of subordinate officers in the state prison and the Massachu.
setts reformatory.
Chapter 350. — An act prohibiting the issue of stock or scrip dividends by corporations.
Chapter 352. — An act to establish the salary of the judge of probate and insolvency for the county of Hampden.
Chapter 354.— An act to authorize the abatement of taxes on personal property assessed to executors, adminis-
trators or trustees in certain cases.
Chapter 355. — An act relating to the supervision of vaccine institutions.
Chapter 357. — An act relative to claiming trial by jury.
Section 2 of Chapter 363. — An act providing for a clerk for the municipal court of the Brighton district of the
city of Boston.
Chapter 367. — An act relating to fraternal beneficiary organizations.
1946 EXPRESS REPEAL LAWS OF 1894. [ClIAP. 227.
Chapter 368. — An act to provide for the care of persons placed on probation by the courts.
Chapter 370. — An act relating to the compensation of officers of the state prison.
Chapter 372. — An act providing for the appointment of probation officers pro tempore.
Chapter 373. — An act to establish the salary of the justice of the police court of Lee.
Chapter 374. — An act to establish the salary of the clerk of the district court of Southern Berkshire.
Chapter 375. — An act relative to the bond of the treasurer of the Massachusetts state firemen's association.
Chapter 376. — An act providing for the appointment of delegates to represent the commonwealth at certain
conventions.
Chapter 377. — An act relative to the duties of judges of probate and insolvency.
Chapter 379. — An act to establish the salary of the assistant clerk of the municipal court of the South Boston
district of the city of Boston.
Chapter 380. — An act relative to the payment of the capital stock of aqueduct and water companies.
Chapter 381. — An act relative to the admission of certain foreign corporations to do business in this common-
wealth.
Chapter 382. — An act relative to the construction of buildings to be used as theatres.
Chapter 383. — An act regulating the withdrawal of free checks or free transfers by street railway companies.
Chapter 384. — An act to provide for notice to absent defendants in certain cases.
Chapter 388. — An act relative to sureties upon bonds of persons licensed to sell intoxicating liquors.
Chapter 389. — An act relative to notices in cases of injuries to persons or property.
Chapter 393. — An act relative to the printing and distribution of the laws and public documents.
Chapter 394. — An act to establish the salaries of the assistant clerk of the senate and the assistant clerk of the
house of representatives.
Chapter 397. — An act relating to clerical assistance in the office of the auditor of the commonwealth.
Chapter 398. — An act relative to the jurisdiction and process of district and police courts.
Chapter 399. — An act concerning the storage of petroleum or any of its products and the erection and use of
buildings therefor.
Chapter 401. — An act concerning the marriage of minors.
Chapter 405. — An act relative to furnishing a copy of the declaration to the defendant or his attorney.
Chapter 406. — An act relative to the compensation of persons held in jail as witnesses.
Chapter 409. — An act relative to marriages and the issuing of certificates therefor.
Section 1 of Chapter 410. — An act to provide for the disposition of property seized in gaming houses or pool
rooms.
Chapter 412. — An act relative to exceptions in the supreme judicial and superior courts in certain cases.
Chapter 415. — An act to establish the salary of the sheriff of the county of Essex.
Chapter 422. — An act relative to notices in cases of injuries received on highways.
Chapter 424. — An act relating to official stenographers of the superior court.
Chapter 425. — An act relative to the inspection of milk.
Chapter 427. — An act to amend chapter three hundred and thirty -three of the acts of the year eighteen hundred
and ninety -four, relative to the presentment of bills and notes.
Chapter 428. — An act to provide for the appointment of boards of license commissioners and to define their
powers and duties.
Chapter 429. — An act to regulate the sale of coal.
Chapter 431. — An act relative to the police, district and municipal courts in the county of Suffolk.
Chapter 432. — An act relative to the submission of the question of establishing municipal lighting plants to
popular vote.
Chapter 433. — An act relating to offences against chastity, morality, decency and good order.
Chapter 437. — An act relative to the intimidation of laborers.
Chapter 440. — An act relative to the release of prisoners from the state prison on parole.
Chapter 442. — An act requiring life insurance companies to fully define the terms of the contract in policies
issued by them.
Chapter 444. — An act to establish the office of state fire marshal.
Chapter 448. — An act to authorize the submission of the question of the establishment of a municipal lighting
plant to the voters of a city at a special election.
Chapter 450, except Section 4. — An act relative to the issue of stock and bonds by gas and electric light com-
panies.
Chapter 451.— An act in relation to contracts for prison labor.
Chapter 452. — An act relative to the issue of capital stock and bonds by telegraph, telephone, aqueduct and
water companies.
Chapter 455. — An act relative to the licensing of plumbers and the supervision of the business of plumbing.
Sections 6 and 7 of Chapter 457. — An act to establish additional state normal schools.
Chapter 458. — An act to provide for the registration of physicians and surgeons.
Chapter 460. — An act relative to the employment of prisoners in the manufacture of reed or rattan goods.
Chapter 461. — An act to prevent the mutilation of horses.
Chapter 462, except Section 4. — An act relative to the issue of stock and bonds by railroad and street railway
companies.
Chapter 469. — An act relative to the transaction of express business within the commonwealth upon railroad
and steamboat lines.
Chapter 470. — An act to establish the salaries of the justice and clerk of the police court of Chelsea.
Chapter 472. — An act relating to the increase of capital stock by corporations owning or operating a railroad
or railway by steam or other power, and of gaslight, electric light, telegraph, telephone, aque-
duct and water companies.
Chapter 473. — An act relative to the election of boards of health in towns.
Chapter 476. — An act to prohibit foreign corporations from issuing stock or other securities upon the property,
franchise or stock of certain domestic corporations.
Chap. 227.] express repeal — laws of 1895. 1947
Chapter 477. — An act relative to certain officers of the state prison.
Chapter 479. — An act to regulate the use of bicycles and similar vehicles.
Chapter 481. — An act in relation to the inspection department of the district police and the inspection of build-
ings.
Chapter 484. — An act relating to the annual report of the tax commissioner.
Chapter 489. — An act relative to the sale of cider and native wines.
Chapter 490. — An act to exempt property in the hands of foreign executors, administrators and trustees from
double taxation.
Chapter 491. — An act to codify and consolidate the laws relating to contagious diseases among domestic ani-
mals.
Chapter 493. — An act establishing the fee for physicians' certificates in cases of commitments to insane asylums.
Chapter 496. — An act relative to the discharge of insolvent debtors.
Chapter 497, except Sections 8 and 9. — An act relating to state highways.
Chapter 498. — An act relative to the attendance of children in the schools.
Chapter 499. — An act relating to the liability of employers to make compensation for personal injuries suffered
by employees in their service.
Chapter 500. — An act relating to the par value of shares of the capital stock of certain corporations.
Chapter 502. — An act relative to the increase of the capital stock and bonds of railroad corporations.
Chapter 505. — An act relative to proceedings to prevent the commission of crime.
Chapter 506. — An act relating to leases and consolidations of railroad and street railway companies.
Chapter 508. — An act regulating the employment of labor.
Chapter 511. — An act to provide hospital accommodations for the care and treatment of persons suffering from
contagious diseases in cities.
Chapter 514. — An act relative to the selection of jurors.
Chapter 515. — An act relative to vaccination.
Chapter 522. — An act to amend and codify the statutes relating to insurance.
Chapter 525. — An act relative to itinerant vendors.
Chapter 527. — An act relative to the judges of probate and insolvency for the county of Middlesex.
Chapter 528. — An act to define the lien created by sewer assessments in certain cases.
Section 6 of Chapter 532. — An act to provide an open space on the east side of the state house.
Chapter 533. — An act to authorize cities and towns to furnish gas and electricity for motive power and heating
purposes.
Chapter 534. — An act requiring specifications to be furnished to persons employed in cotton factories.
Chapter 535. — An act to provide for the appointment of steam railroad inspectors.
Chapter 536. — An act relative to personal liberty.
Chapter 537. — An act relative to the sale of land for taxes.
Chapter 538. — An act relative to the purchase of existing gas and electric lighting plants by cities and towns.
Chapter 541. — An act relative to foreign corporations having a usual place of business in this commonwealth.
Chapter 542. — An act relative to gaming and the illegal keeping and sale of intoxicating liquor by incorporated
clubs.
Chapter 545. — An act relative to the payment to the commonwealth by cities and towns of the amount of
expense apportioned to them in the abolition of grade crossings.
Chapter 547. — An act relative to the speedy trial of certain causes in the superior court for the county of
Suffolk.
Res. Chapter 90. — Resolve relative to increasing the Massachusetts school fund.
One Thousand Eight Hundred and Ninety-five.
Chapter 10. — An act authorizing advances to the sergeant-at-arms from the treasury of the commonwealth.
Chapter 11. — An act to provide for the appointment of additional pages.
Chapter 28. — An act to establish the standard weight of the bushel of onions.
Chapter 34. — An act to authorize advances on account of monthly salaries paid from the treasury.
Chapter 46. — An act relative to the registration of agents of domestic insurance companies.
Chapter 54. — An act providing for additional copies of part second of the report of the insurance commissioner.
Chapter 56. — An act to authorize the commissioners on inland fisheries and game to propagate birds and
animals.
Chapter 59. — An act relative to the hazard to be assumed by insurance companies, the licensing of brokers
and the form of the standard policy.
Chapter 66. — An act to authorize the board of commissioners of savings banks to employ additional expert
and clerical assistants.
Chapter 75. — An act relative to the allowance of interest on abatements of taxes made by the superior court.
Chapter 81. — An act to authorize the employment of an actuary in the insurance department.
Section 2 of Chapter 88. — An act to remove the restrictions upon shad and alewife fishing in the Merrimac
River.
Chapter 93. — An act providing for the payment of postage and expressage on documents sent to members of
the general court.
Chapter 94. — An act to authorize towns to pay the tuition of children attending certain academies in towns in
which there is no high* school.
Chapter 96. — An act providing for additional copies of the report of the attorney-general.
Chapter 103. — An act relative to the abolition of grade crossings.
Chapter 104. —An act relative to change of name by fraternal beneficiary corporations.
Chapter 105. — An act to authorize an increase in the number of members of standing committees of churchee.
Chapter 106. — An act relative to boarding vessels arriving in Gloucester harbor.
1948 EXPRESS REPEAL LAWS OF 1895. [CHAP. 227.
Chapter 111. — An act to require advertisements for proposals for county loans.
Chapter 112. — An act relative to the compensation of special county commissioners.
Chapter 113. — An act authorizing the treasurer of the county of Worcester to employ additional clerical assist-
ance.
Chapter 115. — An act relative to flags upon public buildings and schoolhouses.
Chapter 116. — An act relative to jury trials in equity and probate causes.
Chapter 117. — An act fixing the time when liens for the annual rents for the use of common sewers shall attach
to real estate.
Chapter 120. — An act to equalize the right of challenge of the commonwealth and defendants accused of crime.
Chapter 125. — An act to provide additional clerical assistance for the clerk of the municipal court of the city of
Boston, for civil business.
Chapter 127. — An act to extend the power of cities and towns to adopt the provisions of chapter two hundred
and forty-five of the acts of the year eighteen hundred and ninety-two relative to sewers.
Chapter 129. — An act relative to the employment of labor.
Chapter 132. — An act to provide clerical and messenger service for the board of education.
Chapter 133. — An act to provide clerical assistance for the treasurer of the county of Norfolk.
Chapter 134. — An act relative to the distribution of legacies.
Chapter 136. — An act relative to the heating of street railway cars.
Chapter 140. — An act relative to mortgages of real estate by administrators.
Chapter 141. — An act relative to the removal of persons and property unlawfully occupying the premises of the
state prison, Massachusetts reformatory and reformatory prison for women.
Chapter 142. — An act to authorize women to hold the office of assistant town or city clerk.
Chapter 144. — An act requiring specifications to be furnished to persons employed in cotton, worsted and
woollen factories.
Chapter 146. — An act relative to exercise for unemployed convicts in county prisons.
Chapter 153. — An act to extend the time for filing exceptions in the supreme judicial and superior courts.
Chapter 157. — An act relative to the liabilities of officers and stockholders of foreign corporations doing
business in this commonwealth.
Chapter 159. — An act to exempt veteran soldiers and sailors from the payment of fees for certificates of
authority to act as insurance brokers.
Chapter 162. — An act relative to the disposition of fines imposed for publishing or distributing obscene
literature.
Chapter 164. — An act to authorize savings banks to invest in and loan upon bonds of the states of Missouri and
Minnesota and the cities thereof.
Chapter 169. — An act to establish the fees to be paid by corporations for filing and recording certain certificates.
Chapter 171. — An act relative to annual returns of co-operative banks.
Chapter 172. — An act relative to fines which may be charged by co-operative banks.
Chapter 173. — An act to prohibit the obstruction of highways by the receivers and assignees of railroad
corporations.
Chapter 174. — An act relative to additional clerical assistance in the office of the register of probate and
insolvency for the county of Essex.
Chapter 175. — An act to provide for the appointment of a first deputy controller of county accounts.
Section 2 of Chapter 176. — An act to establish the fourth district court of Berkshire, — so far as it relates to
salaries.
Chapter 181. — An act requiring school committees to furnish the public schools with national flags.
Chapter 183. — An act to authorize the sale of estates subject to remainder.
Chapter 186. — An act relative to the watering of streets in towns.
Chapter 190. — An act relative to mutual fire insurance companies with a guaranty capital.
Chapter 193. — An act to fix the compensation of the doorkeepers, assistant doorkeepers, postmaster, messengers
and pages of the senate and house of representatives.
Chapter 194. — An act to provide for the seizure and disposition of property found where opium is smoked or sold
or given away to be smoked, and for the arrest and punishment of persons there found present.
Chapter 195. — An act to provide for the medical supervision of prisoners confined in solitary cells for punish.
ment, in county prisons.
Chapter 199. — An act for the protection of pickerel in the county of Berkshire.
Chapter 201. — An act relative to banking hours on Saturdays which are not holidays.
Chapter 209. — An act relative to insolvent debtors.
Chapter 210. — An act relative to accounts in probate courts.
Chapter 213. — An act relative to the licensing and regulating of stables in cities.
Chapter 214. — An act to increase the annual appropriation for the work of the dairy bureau of the state board
of agriculture.
Chapter 215.— An act relative to the jurisdiction of probate courts and courts of insolvency.
Chapter 217. — An act to authorize cities and towns to pay interest on public gifts in certain cases.
Chapter 218. — An act relative to sentences to the reformatory prison for women.
Chapter 224. — An act relative to certain discretionary sentences and commitments to the house of industry in
Boston.
Chapter 227. — An act relative to laying sewers in private streets.
Chapter 228. — An act to provide greater security against accidents from electric wires.
Chapter 234. — An act relative to the vacation of judgments and writs of and petitions for review.
Chapter 238. — An act to provide copies of the blue book for the use of the supreme judicial and superior courts.
Chapter 243.— An act relative to the issue and cancellation of certain bonds by cities.
Chapter 245. — An act to establish the compensation of clerks pro tempore of police, district and municipal courts.
Chapter 246. — An act to establish the number of officers in attendance upon the supreme judicial, superior and
probate courts for the county of Middlesex and to establish their salaries.
Chap. 227.] express repeal — laws of 1895. 1949
Chapter 250. — An act relative to the printing and distribution of the blue book.
Chapter 251.— An act providing for an assistant clerk of the superior court for equity business in the county of
Suffolk.
Chapter 252. — An act relative to the release of prisoners from the state prison on parole.
Chapter 259. — An act to provide for teaching illiterate prisoners.
Chapter 260. — An act to provide extra clerical assistance for the clerk of the central district court of Worcester.
Chapter 263. — An act relative to the maximum insurable age in cases of accident insurance.
Chapter 271. — An act relative to warranties in life insurance policies.
Chapter 273. — An act to provide for the removal of prisoners committed to county prisons by United States
courts.
Chapter 276. — An act to authorize the employment of a legacy tax clerk in the treasury department.
Chapter 277. — An act to authorize the sale, during February and March, of certain trout artificially reared.
Chapter 282. — An act relative to oyster culture.
Chapter 284. — An act in relation to the care and custody of the state house.
Chapter 286. — An act relative to the commitment of insane persons.
Chapter 288. — An act relative to the accounts of trustees and guardians.
Chapter 290. — An act to authorize the bureau of statistics of labor to print and distribute a bulletin.
Chapter 293. — An act relative to damages from fires communicated by locomotive engines.
Chapter 295. — An act relative to expenditures by fire districts.
Chapter 296. — An act to authorize cities and towns to regulate the width of tires used on highways within their
limits.
Chapter 300. — An act relative to the taxation of corporations formed to construct railroads, or railroads and
telegraphs, in foreign countries.
Chapter 307. — An act relative to taxes on collateral legacies and successions.
Chapter 310. — An act to provide for the appointment of a special district police officer.
Chapter 311, except Section 3. — An act relative t) foreign corporations selling or negotiating bonds, mort-
gages, notes or other choses in action.
Chapter 313. — An act to provide an assistant clerk for the board of railroad commissioners.
Chapter 316. — An act to authorize street railway companies to acquire and hold real estate to be used for pur-
poses of recreation and for pleasure resorts.
Chapter 318. — An act to protect the public from annoyance and injury while travelling on street railways.
Chapter 322. — An act relative to the tenure of office of the general superintendent of prisons.
Chapter 330. — An act relative to injuries to the property of electric light companies and the unlawful diversion
and use of electricity.
Chapter 332. — An act relative to boards of health in cities.
Chapter 337. — An act to prohibit the sale of intoxicating liquor on the twenty-second day of February and the
fourth day of July.
Chapter 338. — An act to authorize cities to provide for the inspection of ice, and to prevent the sale of impure
ice.
Chapter 340. — An act relative to the closing of the affairs of certain fraternal beneficiary and assessment cor-
porations.
Chapter 348. — An act relative to public warehousemen.
Chapter 350. — An act relative to the transmission of electricity for the purposes of heating and power.
Chapter 351. — An act to provide for the payment of bounties to chartered poultry associations in certain cases.
Chapter 356. — An act to authorize railroad corporations to file a location of lands purchased for railroad pur-
poses.
Chapter 361. — An act to make certain army nurses eligible to receive state aid.
Chapter 362. — An act to require locomotives and cars used in traffic within the commonwealth to be equipped
with certain safety appliances.
Chapter 364. — An act to provide for additional clerical assistance in the office of the register of probate and
insolvency for the county of Suffolk.
Chapter 366. — An act relative to the issuing of life insurance policies without previous medical examination.
Chapter 369. — An act establishing the compensation to be allowed deputy sheriffs for attending sittings of the
supreme judicial and superior courts in certain counties.
Chapter 372. — An act relative to the forwarding by clerks of courts of certain papers to the attorney-general.
Chapter 373. — An act relative to the right of state officials to consult with the attorney -general.
Chapter 375. — An act relative to the reimbursement of certain towns for expenses incurred in the maintenance
of the insane at the state almshouse and the state farm.
Chapter 376. — An act to authorize the appointment of a registrar of labor.
Chapter 378. — An act relative to fenders and wheel guards on street railway cars.
Section 1 of Chapter 379. — An act to make notaries public and justices of the peace eligible for the office of
license commissioner.
Chapter 380. — An act relative to executions issued by trial justices.
Chapter 383.— An act relative to the agent for aiding discharged prisoners.
Chapter 385. — An act relative to the feeding of food animals with garbage, refuse or offal.
Chapter 387.— An act to authorize certain foreign manufacturing corporations to hold real estate.
Chapter 388. — An act relative to the approval of sureties on replevin bonds.
Chapter 390. — An act to establish an asylum for insane criminals at Bridgewater and to regulate commitments
and removals to the same.
Chapter 392. — An act to authorize the employment of an assistant bookkeeper in the treasury department.
Chapter 393. — An act to authorize the appointment of an assistant clerk of the superior court, civil session, for
the county of Suffolk.
Chapter 394. — An act relative to fees in insolvency cases.
Chapter 396. — An act to provide for an additional district police officer.
1950
EXPRESS REPEAL LAWS OF 1896.
[Chap. 227.
Chapter 400. — An act to require cities to provide for the treatment of persons suffering from contagious diseases
in certain cases.
Chapter 402. — An act to authorize the secretary of the commonwealth to employ additional clerical and other
assistance.
Chapter 404. — An act relative to the approval of sureties on honds to dissolve mechanics' liens.
Chapter 410. — An act relative to legislative counsel and agents.
Chapter 412. — An act relative to the registration of physicians and surgeons.
Chapter 415. — An act to regulate banking hours on Saturdays which are not holidays.
Chapter 418. — An act relative to the inspection of steam boilers.
Charter 419.— An act relative to gaming.
Chapter 420. — An act relative to the sale of electricity for heating and cooking.
Chapter 424. — An act providing for the payment of the salaries of assistant district-attorneys from the treasury
of the commonwealth.
Chapter 426, except Section 3. — An act relative to crossings of railroads and street railways at grade.
Chapter 427. — An act relative to marriage and the legitimacy of children.
Chapter 428. — An act relative to children in the care of the state.
Chapter 429. — An act relative to physicians' certificates for the commitment of insane persons.
Chapter 430. — An act relative to taxes on collateral legacies and successions.
Chapter 431. — An act to provide additional clerical assistance for the commissioners of prisons.
Chapter 432. — An act relative to the limitation of actions by and against assignees in insolvency.
Chapter 434. — An act to regulate the observance of the Lord's day.
Chapter 437. — An act relative to the record of executions levied upon real estate.
Chapter 438. — An act relative to the weekly payment of wages.
Chapter 444. — An act relative to sidewalks in cities.
Chapter 445. — An act relative to persons receiving public aid.
Chapter 452. — An act establishing the salaries of the employees in the office of the state fire marshal.
Chapter 453. — An act relative to plumbing.
Chapter 456. — An act to exempt veteran soldiers and sailors from the payment of fees for auctioneers'
licenses.
Chapter 457. — An act to provide for the appointment of officers of the municipal court of the city of Boston.
Chapter 459. — An act to provide clerical assistance for the register of probate and insolvency for the county of
Middlesex.
Chapter 460. — An act relative to the acknowledgment and proof of written instruments.
Chapter 461. — An act relative to discriminations in public places on account of race or color.
Chapter 462. — An act to protect manufacturers from the use of counterfeit labels and stamps.
Chapter 463. — An act relative to the annual expenditures and report of the board of gas and electric light
commissioners.
Chapter 465. — An act to increase the efficiency of the militia.
Chapter 469. — An act relative to sentence in criminal cases.
Chapter 471. — An act to regulate steam engineering.
Chapter 474. — An act providing for certain classes of property insurance.
Chapter 475. — An act relative to the establishment of textile schools.
Chapter 476. — An act relative to the compensation of inspectors of animals and provisions.
Chapter 480. — An act relative to the appointment of a sixth assistant clerk of the superior court, civil session,
for the county of Suffolk.
Chapter 481. — An act to protect the business of licensed carriers of goods for hire.
Chapter 483, except Section 13. — An act to establish the Massachusetts hospital for epileptics.
Chapter 493. — An act establishing the salaries of registers and assistant registers of deeds, and providing for
the payment of fees received by them to the several counties.
Chapter 496. — An act relative to inspection of domestic animals.
Chapter 497. — An act to regulate the making of loans upon deposits or pledges of personal property.
Chapter 500. — An act to establish the salary of the clerk of the police court of the city of Brockton.
Chapter 503, except Section 12. — An act to establish the Massachusetts hospital for consumptives and tuber-
cular patients.
Chapter 504. — An act relative to sentences to the state prison.
Chapter 86.
Chapter 96,
Chapter 102,
Chapter 108,
Chapter 124.
Chapter 126,
Chapter 128,
Chapter 133,
Chapter 136.
Chapter 137.
Chapter 140,
One Thousand Eight Hundred and Ninety-six.
- An act relative to the printing of the reports of the civil service commission.
- An act to authorize certain charitable, educational and other corporations to hold additional real
and personal estate.
-An act concerning fraternal beneficiary organizations.
- An act relative to taxes on collateral legacies and successions.
- An act to authorize foreign burglary insurance companies to transact business in this common-
wealth.
- An act relative to mutual companies with a guaranty capital.
-An act relative to the date for sending to the controller of county accounts copies of estimates
for .county taxes.
- An act to provide for the receipt and payment of money for the support of practice and model
schools.
-An act in relation to certain organizations paying only funeral and sick benefits.
-An act in relation to the compensation of referees appointed by the insurance commissioner.
- An act to extend the powers of fire insurance companies.
Chap. 227.] express repeal — laws of 1896. 1951
Chapter 147. — An act relative to clerical assistance for the treasurer of the county of Essex.
Chapter 152. — An act to authorize towns to appropriate money for the celebration of the fourth of July.
Chapter 158. — An act relative to the apportionment of assessments for betterments.
Chapter 162. — An act to provide that when the nineteenth day of April occurs on Sunday the following day
shall be a public holiday.
Chapter 169. — An act relative to sureties upon bonds of persons licensed to sell intoxicating liquors.
Chapter 171. — An act to authorize insurance companies to make additional investments of their capital stock.
Chapter 172. — An act to provide that payment for assistant registers whose salaries are not fixed by law, and
for clerical assistance in registries of deeds, shall be subject to the approval of the board of
county commissioners.
Chapter 176. — An act to reimburse the treasurers of the counties of Bristol, Essex, Middlesex and Worcester
for their travelling expenses.
Chapter 178. — An act to authorize additional investments by savings banks and institutions for savings.
Chapter 179. — An act relating to the returns of school committees to the state board of education.
Chapter 182. — An act relative to the naval brigade of the militia of the commonwealth.
Chapter 186. — An act relative to teachers' institutes.
Chapter 189. — An act to provide for printing additional copies of the report of the treasurer and receiver
general.
Chapter 190. — An act to provide for the preservation of public shade trees, and to authorize towns to elect tree
wardens.
Chapter 193. — An act relative to the calling in of books of deposit by savings banks and institutions for
savings.
Chapter 199. — An act relative to parks.
Chapter 203. — An act relative to foreclosures of power of sale mortgages.
Chapter 208. — An act relative to suits on probate bonds.
Chapter 218. — An act to authorize the appointment of an additional assistant clerk of courts for the county of
Middlesex.
Chapter 219. — An act relating to clerical assistance in the office of the register of probate and insolvency for the
county of Hampden.
Chapter 220. — An act relating to trials in inferior courts.
Chapter 221. — An act to provide for additional copies of the report of the harbor and land commissioners.
Chapter 223. — An act to provide for printing the annual report of the metropolitan sewerage commissioners.
Chapter 225. — An act relative to the evidence of regularity of the appointment of railroad and steamboat
police.
Chapter 229. — An act relative to black bass fishing.
Chapter 230. — An act relative to the registration of physicians and surgeons.
Chapter 231. — An act to require savings banks and institutions for savings to make extra dividends in certain
cases.
Chapter 234. — An act to provide for an additional special justice of the municipal court of the city of Boston.
Chapter 236. — An act relative to the collection of sewer assessments and charges.
Chapter 241. — An act relative to the weekly payment of wages.
Chapter 247. — An act relative to arrest on mesne process and execution.
Chapter 248. — An act relative to the supervision of the state printing.
Chapter 251. — An act relative to the collection of sewer and sidewalk assessments.
Chapter 252. — An act relative to the pollution of sources of water supply. .
Chapter 253. — An act relative to directors of domestic stock insurance companies.
Chapter 254. — An act relative to the tenure of office of members of the state board of agriculture.
Chapter 256. — An act relative to appointments in the Boston fire department.
Chapter 258. — An act relative to illustrations in reports made to the governor or to the general court.
Chapter 264. — An act to regulate the sale of condensed milk.
Chapter 268. — An act relative to the taking of scallops.
Chapter 269. — An act relative to the issue of notes, bonds and scrip by cities and towns.
Chapter 270. — An act relative to the admission of mutual fire insurance companies to transact business in this
commonwealth.
Chapter 272.— An act to prevent the sale of adulterated spirituous or intoxicating liquor.
Chapter 275.— An act relative to the water supply of the reformatory prison for women.
Chapter 277. — An act relative to loans by co-operative banks.
Chapter 279. — An act relative to the burial of deceased indigent soldiers, sailors or marines who served in the
army or navy of the United States during the war of the rebellion, and to the burial of their
wives and widows.
Chapter 280. — An act relative to temporary loans by fire districts.
Chapter 285. — An act relative to the forfeiture of shares in co-operative banks.
Chapter 286. — An act relative to the transaction of the business of co-operative banking by foreign corpora-
tions.
Chapter 288. — An act relative to minor children indentured or placed in charge of persons, associations or
institutions.
Chapter 291. — An act to authorize towns to make appropriations to meet the expense of dedicating soldiers'
monuments.
Chapter 297. — An act to regulate the sale of commercial fertilizers.
Chapter 302. — An act relative to reports of evidence given at inquests in cases of death by accident on railroads
and street railways.
Chapter 303. — An act relative to the investigation of fires and the report to the fire marshal.
Chapter 304. — An act relative to sentences to the reformatory prison for women.
Chapter 306. — An act relative to marriages.
1952 EXPRESS REPEAL LAWS OF 1896. [CHAP. 227.
Chapter 308. — An act to prohibit the selling or giving away of intoxicating liquors on certain holidays by the
holders of fourth and fifth class licenses.
Chapter 313. — An act relative to the building line and height of buildings on parkways, boulevards and
parks.
Chapter 314. — An act to provide for the appointment of a reserve police force in cities.
Chapter 316. — An act relative to the travelling expenses of judges and registers of probate and insolvency.
Chapter 317. — An act relative to removals from the reformatory prison for women.
Chapter 326. — An act relative to extra clerical assistance in the office of the treasurer and receiver general of
the commonwealth.
Chapter 327. — An act to impose a penalty for refusal to make reports or for making false reports to the board
of commissioners of savings banks.
Chapter 332. — An act relative to the licensing and regulating of stables in cities.
Chapter 334. — An act relative to the weekly payment of wages by contractors.
Chapter 335. — An act to authorize the appointment of an examiner for the insurance department.
Chapter 337. — An act providing for a clerk for the district court of Eastern Hampden.
Chapter 338. — An act relative to accidents from gas or electricity.
Chapter 339. — An act to prevent immoral shows and entertainments.
Chapter 342. — An act relative to legislative counsel and agents.
Chapter 343. — An act regulating the placing of traversing machinery in cotton factories.
Chapter 344. — An act to provide for the punishment of convicts who wilfully destroy property at the state
prison, reformatories and houses of correction.
Chapter 345. — An act relative to state highways.
Chapter 346. — An act relative to the bonds of treasurers of manufacturing and other corporations.
Chapter 347. — An act relative to the salary of the lieutenant governor.
Chapter 348. — An act relative to service medals in the militia.
Section 2 of Chapter 353. — An act to establish the district court of Franklin.
Chapter 355. — An act relative to appeals by municipal corporations.
Chapter 356. — An act to require gas and electric light companies to keep uniform station records.
Chapter 361. — An act relative to the bonds of treasurers and employees of savings banks and institutions for
savings, and co-operative banks.
Chapter 369. — An act relative to annual returns from certain corporations.
Chapter 377. — An act relative to the sale of imitation butter.
Chapter 380. — An act relative to vacancies in the office of mayor.
Chapter 381. — An act relative to the presentation of certain petitions to the general court.
Chapter 384. — An act relative to the votes and proceedings of county commissioners.
Chapter 385. — An act relative to tramps.
Chapter 388. — An act to authorize the revocation or revision of orders requiring recognizances.
Chapter 389. — An act relative to larceny committed in buildings, or on ships and vessels.
Chapter 391. — An act relative to the paying in of capital stock and to the liability of officers and stockholder*
of foreign corporations doing business in this commonwealth.
Chapter 396. — An act relative to the removal of license commissioners.
Chapter 397. — An act to regulate the practice of pharmacy.
Chapter 398. — An act relative to the inspection and standard of milk.
Chapter 401. — An act relative to trial lists and to notifying attorneys of trials in the superior court.
Chapter 402. — An act relative to bonds given by agents of foreign insurance companies.
Chapter 404. — An act relative to liens on vessels.
Chapter 408. — An act relative to the salaries of public school teachers in small towns.
Chapter 409. — An act in relation to the increase of the capital stock of street railway companies.
Chapter 412. — An act relative to the sittings of the superior court for the county of Essex.
Chapter 413. — An act providing for the performance of clerical duties in the superior court sitting at Boston
for the hearing of cases for counties other than Suffolk.
Chapter 418. — An act relative to bakeries and persons employed therein.
Chapter 422. — An act relative to boxing matches.
Chapter 423.— An act relative to safe deposit, loan and trust companies.
Chapter 424. — An act relative to the qualifications of firemen.
Chapter 425.— An act relative to discharges from the volunteer militia.
Chapter 426. — An act relative to the duties and jurisdiction of the board of gas and electric light commissioners.
Chapter 427. — An act to exempt certain officers of courts from serving as jurors.
Chapter 429. — An act relative to agents of the state board of education.
Chapter 439. — An act relative to the payment by the commonwealth of the expenses apportioned to It in the
abolition of grade crossings.
Chapter 443. — An act relative to registers of deeds.
Chapter 444. — An act to facilitate the collection of small debts for manual work or labor performed.
Chapter 445. — An act relative to evidence in actions against the estates of deceased persons.
Chapter 447. — An act to authorize credit insurance companies to do business in this commonwealth.
Chapter 448. — An act relative to insurance brokers.
Chapter 449. — An act relative to the employment of laborers in the cities of the commonwealth.
Chapter 451. — An act relative to the filing of exceptions in the supreme judicial and superior courts.
Chapter 455. — An act to authorize cities and towns to appropriate money for memorial observances in honor
of firemen.
Chapter 456. — An act providing for the appointment of guardian ad litem or next friend in certain cases.
Chapter 459. — An act providing for the appointment of an official stenographer for the superior court, criminal
session, in the county of Suffolk.
Chapter 464. — An act relative to the levy of executions on real estate.
Chap. 227.] express repeal — laws of i897. 1953
Chapter 470. — An act relative to the surrender value of endowment policies.
Chapter 473.— An act relative to the issue of stock and bonds by gas and electric light companies.
Chapter 476. — An act providing for the appointment of special commissioners.
Chapter 477. — An act to authorize towns to appropriate .Toney for the purpose of marking spots of historic
interest.
Chapter 480. — An act relative to station records required to be kept by companies engaged in the supply either
of gas or of electricity for lighting.
Chapter 482. — An act relative to transfers of the insane.
Chapter 490. — An act relative to the duties and authority of the attorney -general and to the employment of
attorneys by state boards, commissioners and officers.
Chapter 494. — An act relative to the employment of mechanics and laborers on public works.
Chapter 496. — An act to abolish days of grace on commercial paper except sight drafts.
Chapter 499. — An act relative to marriage and the legitimacy of children.
Chapter 501. — An act to provide for the extension of the franchises of street railway companies.
Chapter 502. — An act relative to the civil service of the commonwealth and the cities thereof.
Chapter 509. — An act to divide the commonwealth into districts for the choice of senators and councillors, and
to apportion representatives to the several counties.
Chapter 517. — An act relative to the public service of the commonwealth and the cities and towns thereof, and
the employment of veterans therein.
Chapter 519. — An act in addition to an act to divide the commonwealth into districts for the choice of repre-
sentatives in the congress of the United States.
Chapter 522. — An act relative to office hours in the department of the treasurer and receiver general.
Chapter 523. — An act relative to the payment of certain fees in the office of the secretary of the commonwealth.
Chapter 526. — An act to increase the number of associate justices of the superior court.
Chapter 540. — An act relative to injuries received on highways resulting from snow or ice.
Chapter 544. — An act relative to the use of streets by corporations.
Chapter 546. — An act relative to the licensing of engineers and firemen of stationary engines.
One Thousand Eight Hundred and Ninety-seven.
Chapter 62. — An act relative to oaths by the officers of mutual fire insurance companies.
Chapter 63. — An act relative to bonds of insurance agents.
Chapter 64. — An act relative to insurance agents.
Chapter 65. — An act relative to returns of fires.
Chapter 66. — An act relative to the definition of insurance.
Chapter 67. — An act relative to the duties of examiner for the insurance department.
Chapter 89. — An act relative to returns now required to be made by judges of probate and insolvency.
Chapter 97. — An act to authorize certain charitable, educational and other corporations to hold additional real
and personal estate.
Chapter 99. — An act relative to calling meetings of street railway corporations.
Chapter 109. — An act relative to the division of profits of savings banks and institutious for savings.
Chapter 110. — An act relative to fishing in the Merrimac River.
Chapter 113. — An act to provide that stenographic reports of committee hearings of the general court shall be
deposited in the state library.
Chapter 114. — An act concerning the annual appropriation for the state library.
Chapter 116. — An act to authorize cities and towns to make by-laws and ordinances regulating the use of sewers.
Chapter 117. — An act relative to concentrated commercial feed stuffs.
Chapter 118. — An act relative to returns of fires.
Chapter 119. — An act relative to preferred claims in cases of involuntary insolvency.
Chapter 120. — An act relative to the management of insolvent estates.
Chapter 124. — An act relative to proceedings against insolvent corporations.
Chapter 126. — An act relative to payments by collectors of taxes in towns and to the inspection of their books.
Chapter 128. — An act relative to the duties and liabilities of county treasurers and to the borrowing of money
by counties.
Chapter 129. — An act relative to the examination and certification of the accounts of county treasurers.
Chapter 130. — An act imposing penalties for the violation of duties imposed by law upon county officers.
Chapter 131. — An act relative to suits on bonds of executors, administrators, guardians and trustees.
Chapter 132. — An act to authorize towns to appropriate money for the payment of the charges of insurance
companies as sureties on bonds of town officials.
Chapter 134. — An act relative to the board of library commissioners.
"Chapter 136. — An act to authorize the sale of estates subject to remainder or reversion.
Chapter 137.— An act to further define the powers and duties of county commissioners.
Chapter 138. — An act relative to the division of sewer assessments on real estate divided subsequent to the
making of the assessment.
Chapter 140. — An act for the protection of small game on Cape Ann.
Chapter 141. — An act relative to printing certain public documents.
Chapter 147.— An act relative to the appointment of appraisers in proceedings before probate courts.
Chapter 148. — An act to lessen the burden of taxation upon certain disabled soldiers and sailors and the wives
of such soldiers and sailors.
Chapter 151. — An act relative to assessments, rents and charges for the construction and use of sewers.
Chapter 153. — An act relative to estimates for county taxes and the expenditure ^f money by counties.
Chapter 160.— An act to prohibit the sale of intoxicating liquors by holders of licenses of the first three classes
on days succeeding certain holidays when said holidays fall on Sunday.
1954 EXPRESS REPEAL LAWS OF 1897. [CHAP. 227.
Chapter 161. — An act relative to co-operative banks.
Chapter 164. — An act relative to the burial of indigent soldiers and of their wives or widows.
Chapter 165. — An act to restrict the use of tuberculin.
Chapter 173. — An act relative to guardians of spendthrifts.
Chapter 180. — An act relative to the jurisdiction of district, police and municipal courts.
Chapter 183. — An act to provide for the appointment of a fourth assistant clerk of the municipal court of the
city of Boston for civil business.
Chapter 184. — An act for the better protection of wild fowl.
Chapter 186. — An act to prohibit Massachusetts insurance companies from soliciting or transacting business in
any state wherein they have not been authorized to transact business.
Chapter 187. — An act relative to registration in dentistry.
Chapter 188. — An act relative to the executive stenographer.
Chapter 196. — An act relative to the registration of physicians and surgeons.
Chapter 197. — An act relative to assessments by mutual fire insurance companies.
Chapter 199. — An act authorizing special administrators, by leave of the probate court, to pay debts of the
deceased.
Chapter 204. — An act to establish a military museum.
Chapter 206. — An act relative to the release of prisoners from the state prison on parole.
Chapter 207. — An act to prevent the sale of intoxicating liquors in the public parks, pleasure grounds and
reservations within the commonwealth.
Chapter 208. — An act to provide for the stocking of the great ponds of the state with food fish .
Chapter 213. — An act to authorize street railway companies to make certain contracts and leases.
Chapter 220. — An act to authorize the appointment of an assistant clerk of courts for the county of Hampden.
Chapter 224. — An act to provide for the removal of county commissioners from office in certain cases.
Chapter 227. — An act to provide for refunding a portion of the amount paid for a liquor license in case of the
death of the licensee before the expiration of the license.
Chapter 228. — An act to permit adopted children and adopting parents to become legal beneficiaries of fraternal
beneficiary organizations.
Chapter 233. — An act regulating the payment by treasurers of cities and towns to the treasurer of the common-
wealth of moneys received for liquor licenses.
Chapter 236. — An act defining the powers of probation officers.
Section 2 of Chapter 237. — An act relative to certain fees in municipal, district and police courts in bastardy
cases, and to the service of bastardy warrants.
Chapter 241. — An act relative to the personal liability of members of parishes.
Chapter 243. — An act to limit the cost of illustrations in reports made to the governor or to the general court.
Chapter 245. — An act relative to the furnishing of law books and blank books for district and police courts.
Chapter 247. — An act relative to composition in insolvency with the creditors of Massa'chusetts corporations.
Chapter 253. — An act relative to the compensation of janitors of armories.
Chapter 254. — An act to provide for the better protection of trees and for the prevention of fires in woodlands.
Chapter 256. — An act to authorize the employment of a messenger in the treasury department.
Chapter 257. — An act to provide clerical assistance for the treasurer of the county of Plymouth.
Section 2 of Chapter 260. — An act to establish the office of assistant clerk of the third district court of Eastern
Middlesex.
Chapter 262. — An act to authorize savings banks and institutions for savings to invest in the bonds of the
Boston, Revere Beach and Lynn Railroad Company.
Chapter 263. — An act to provide for clerical assistance in the third district court of Bristol.
Chapter 264. — An act relative to the abolition of grade crossings of railroads and private ways.
Chapter 266. — An act relative to the appointment of women as assistant probation officers in the municipal
court of the city of Boston.
Chapter 269. — An act to authorize the purchase of street railways and the consolidation of street railway com-
panies in certain cases.
Chapter 271. — An act to further regulate the transportation of spirituous and intoxicating liquors into no-license
cities and towns.
Chapter 272. — An act relative to the return to prison of prisoners who have violated the conditions of their
release.
Chapter 273. — An act relative to marking the carrying capacity of lighters or other vessels employed in trans-
porting stone, gravel or sand.
Chapter 274. — An act relative to the apportionment of sewer assessments.
Chapter 287. — An act to provide for a commission to divide the county of Suffolk into representative districts.
Chapter 288. — An act for the better protection of fish and game.
Chapter 292. — An act to provide a lien for lodging-house keepers on the baggage and effects of lodgers.
Chapter 294. — An act relative to sentences to the state prison.
Chapter 299. — An act to authorize the taking of land for schoolhouses.
Section 3 of Chapter 300. — An act relative to the use of buildings for stables.
Chapter 303. — An act relative to unclaimed deposits and dividends in insolvency.
Chapter 304. — An act relative to safe deposit, loan and trust companies.
Chapter 305. — An act relative to the liability of innholders for losses sustained by guests.
Chapter 306. — An act to provide for the appointment of an assistant district-attorney for the southern
district.
Chapter 315. — An act to permit street railway companies to allow street sprinkling apparatus to be used upon
their tracks.
Chapter 316. — An act relative to the approval of plans for county prisons.
Chapter 317. — An act to provide for clerical assistance in the office of the register of probate and insolvency for
the county of Suffolk.
Chap. 227.] express repeal — laws of 1897. 1955
Chapter 318. — An act to establish the salary of the justice of the police court of Somerville.
Chapter 321.— An act to authorize executors and administrators to provide for the perpetual care of burial lots.
Chapter 322. — An act to establish the salary of the clerk of the district court of Southern Berkshire.
Chapter 324.— An act to establish the salary of the justice of the police court of Gloucester.
Chapter 325.— An act to establish the salary of the justice of the police court of Williamstown.
Chapter 326. — An act relative to voluntary assignments for the benefit of creditors.
Chapter 328.— An act relative to the registration by the civil service commissioners of applicants for labor.
Chapter 329. — An act to establish the salary of the deputy superintendent of the reformatory prison for women.
Chapter 334. — An act relative to the appointment of a seventh assistant clerk of the superior court, civil
session, for the county of Suffolk.
Chapter 337, except Section 3. — An act relative to the issue by railroad and street railway companies of
coupon notes and other evidences of indebtedness.
Chapter 342. — An act to establish the compensation of deputy sheriffs for attending sittings of the supreme
judicial and superior courts.
Chapter 344. — An act relative to the adulteration of food.
Chapter 349. — An act relative to the enforcement of the laws relating to the inspection and sale of dairy
products and imitations thereof.
Chapter 350. — An act relative to the agents of the commissioners of prisons.
Chapter 351. — An act relative to clerical service in the office of the secretary of the commonwealth.
Chapter 355. — An act relative to state highways.
Chapter 356. — An act to establish the salary of the justice of the municipal court of the Roxbury district of the
city of Boston.
Chapter 357. — An act relative to arbitration under the Massachusetts standard fire insurance policy.
Chapter 358. — An act to establish the salary of the justice of the fourth district court of Eastern Middlesex.
Chapter 359. — An act to establish the salary of the justice of the police court of Springfield.
Chapter 360. — An act to establish the compensation of the special justices of the municipal court of the city of
Boston.
Chapter 362. — An act to establish the salary of the second clerk in the office of the board of commissioners of
savings banks.
Chapter 376. — An act to define and extend the duties of railroad inspectors.
Chapter 379. — An act relative to the building line and height of buildings on parkways, boulevards and parks.
Chapter 381. — An act providing for the speedy trial of certain civil cases.
Chapter 382. — An act relative to executions with certificates of arrest attached.
Chapter 383. — An act relative to the junior judge of probate and insolvency for the county of Middlesex.
Chapter 385. — An act to increase the penalty for giving false alarms of fire.
Chapter 386. — An act to simplify the proof of attested instruments.
Chapter 389. — An act relative to the running of steamboats on the Lord's day.
Chapter 390. — An act to establish the salary of the justice of the second district court of Eastern Middlesex.
Chapter 391. — An act to authorize the change of one or more regiments of infantry to heavy artillery.
Chapter 392. — An act to authorize the board of harbor and land commissioners to lease the commonwealth flats
at South Boston.
Section 1 of Chapter 397. — An act to provide clerical assistance for the clerk of the municipal court of the
Dorchester district of the city of Boston.
Chapter 398. — An act to authorize the granting of licenses to dealers in paints and dealers in chemicals, for the
sale of pure alcohol for mechanical, manufacturing or chemical purposes.
Chapter 400. — An act to provide that certain claims shall be preferred in settlements by receivers.
Chapter 402. — An act relative to actions upon assigned claims.
Chapter 404. — An act relative to attachments.
Chapter 409. — An act defining the penalty for stealing bicycles.
Chapter 412. — An act relative to prison labor.
Chapter 416. — An act to authorize actions of tort against gas and electric light corporations for the loss of life
by negligence.
Chapter 418. — An act relative to the commitment and transfer of insane persons.
Chapter 419. — An act relative to the watering of streets in cities.
Chapter 422. — An act to establish the salary of the clerk of the first district court of Eastern Middlesex.
Chapter 423. — An act relative to the liability of officers and stockholders in foreign corporations doing business
in this commonwealth.
Chapter 424. — An act relative to marriages.
Chapter 427. — An act to protect creditors of insolvent debtors.
Chapter 428. — An act relative to the powers and duties of town officers.
Chapter 430. — An act to provide for the employment of two special agents in the bureau of statistics of labor,
and to establish salaries therein.
Chapter 431. — An act relative to practice in municipal, police and district courts.
Chapter 434. — An act relative to the labor of prisoners in the jails and at the state farm.
Chapter 437. — An act relative to the burial of human bodies.
Chapter 438. — An act relative to the term of office of brigadier generals in the militia.
Chapter 439. — An act relative to public records.
Chapter 443. — An act relative to weights and measures.
Chapter 444. — An act relative to the registry and return of births, marriages and deaths.
Chapter 447. — An act relative to the settlement of estates of persons who have been absent and unheard from
for more than fourteen years.
Chapter 448. — An act concerning the volunteer militia.
Chapter 452.— An act to require street railway companies to enclose the platforms of cars during certain
months of the year.
1956 EXPRESS REPEAL LAWS OF 1898. [CHAP. 227.
Chaptee 454. — An act relative to the salary and expenses of the sheriff of the county of Bristol.
Chapter 460. — An act to provide for the discharge of attachments in certain cases.
Chapter 461. — An act to authorize the appointment of justices of the peace to issue warrants and take bail in
certain cities.
Chapter 462. — An act relative to the sale of property held for churches, cemeteries and other like trusts.
Chapter 463.— An act relative to filing in the registry of deeds notice of the pendency of certain actions.
Chapter 466. — An act relative to female poor debtors.
Chapter 472. — An act relative to new trials in civil causes.
Chapter 474. — An act relative to escapes and discharges from the Massachusetts hospital for dipsomaniacs and
inebriates.
Chapter 478. — An act relative to stenographers in the supreme judicial court and in criminal cases.
Chapter 480. — An act relative to the employment of prison labor in the industry of cane seating and in the
manufacture of umbrellas.
Chapter 487. — An act relative to the forfeiture of liquors seized under the provisions of chapter two hundred
and seventy-one of the acts of the year eighteen hundred and ninety-seven and the penalties
to be imposed thereunder.
Chapter 490. — An act relative to the criminal business of the superior court.
Chapter 491. — An act relative to the liability of employers to make compensation for personal injuries suffered
by employees in their service.
Chapter 492. — An act relative to certificates and returns of corporations.
Chapter 496. — An act relative to the filing of incorporation papers by certain corporations, for record in the
office of the secretary of the commonwealth.
Chapter 498. — An act to enable certain small towns to take advantage of the act providing for the payment of
a part of the compensation of school teachers from the state school fund.
Chapter 505. — An act relative to law library associations.
Chapter 508. — An act to establish a state board of bar examiners.
Chapter 510. — An act relative to the pollution of sources of water supply.
Chapter 515. — An act to provide for a uniform system of preparing jury lists and impanelling juries throughout
the commonwealth.
Chapter 517. — An act relative to the authorized standards of weights and measures.
Chapter 522. — An act relative to suits to quiet the title to real estate.
Chapter 524. — An act relative to the protection of certain birds.
Chapter 525. — An act relative to actions for libel.
Res. Chapter 95. — Resolve to provide for additional copies of the report of the Massachusetts highway com
mission, — so far as it prescribes the number of copies of the Massachusetts highway commis-
sion to be annually printed.
One Thousand Eight Hundred and Ninety-eight.
Chapter 45. — An act to authorize cities to appropriate money for the payment of the charges of insurance
companies as sureties on bonds of city officers.
Chapter 53. — An act to authorize the examiner in the insurance department to examine the accounts of
receivers of insolvent insurance companies.
Chapter 54. — An act relative to the duties of the insurance commissioner.
Chapter 64. — An act relative to certificates and returns of corporations.
Chapter 65. — An act relative to the distribution of trust estates.
Chapter 67. — An act to authorize the commissioner of public records to expend money for the preservation of
certain public records.
Chapter 69. — An act relative to the probate of wills, the granting of letters testamentary, and the appointment
of administrators in certain cases.
Chapter 76. — An act relative to advertising hearings before legislative committees.
Chapter 84.— An act relative to the placing of officers of the volunteer militia upon the retired list.
Chapter 104. — An act to change the title of the executive clerk.
Chapter 117. — An act to provide clerical assistance in the office of the register of probate and insolvency for
the county of Worcester.
Chapter 121. — An act to regulate the use of bicycles and similar vehicles.
Chapter 124. — An act to more effectually prevent the unlawful use of ferrets for hunting purposes.
Chapter 125. — An act relative to the use of public baths, wash houses, and open bathing places in towns, and
to provide for instruction in the art of swimming.
Chapter 131. — An act relative to the authority of judges of probate and insolvency.
Chapter 134. — An act to require the description and plan of lands purchased or taken for public sewer, street
and highway purposes, to be filed in the registry of deeds.
Chapter 138. — An act relative to the appointment of testamentary guardians.
Chapter 146. — An act to provide for the appointment of an officer of the probate court and court of insolvency
for the county of Suffolk.
Chapter 148. — An act relative to savings banks.
Chapter 150. — An act relative to the manufacture and sale of clothing made in unhealthy places.
Chapter 157.— An act relative to approving bonds in bastardy cases.
Chapter 160. — An act to relieve the insurance commissioner from the obligation to approve the accounts of the
state fire marshal.
Chapter 162. — An act to provide that fire engines and apparatus shall have the right of way while passing
through the streets of a city or town.
Chapter 165. — An act relative to life-saving apparatus used by fire departments.
Chap. 227.] express eepeal — laws of 1898. 1957
Chapter 167. — An act relative to the inspection of steam boilers.
Chapter 168. — An act relative to furnishing water in certain cases.
Chapter 169. — An act to define the limits of Buzzard's Bay.
Chapter 175. — An act relative to printing the report of the attorney-general.
Chapter 181. — An act relative to the preservation of deer.
Chapter 183. — An act to authorize the payment of five hundred dollars annually to the commander of the naval
brigade on account of military property of the commonwealth in his charge.
Chapter 184. — An act relative to the investments of savings banks and institutions for savings.
Chapter 187. — An act to enlarge the powers of women appointed as special commissioners.
Section 1 of Chapter 190. — An act to authorize towns to adopt by-laws relating to the removal of snow from
sidewalks.
Chapter 192. — An act relative to the sale of poisons.
Chapter 193. — An act to prohibit the use of certain coloring matter in the manufacture of sausages.
Chapter 196. — An act relative to the reimbursement of expenses incurred by certain towns in the maintenance
of the insane.
Chapter 199. — An act to determine the times and places of holding probate courts for the county of Bristol.
Chapter 200. — An act to provide for allowing costs to parties recovering damages in grade crossing cases.
Chapter 201. — An act to determine the times and places of holding probate courts for the county of Norfolk.
Chapter 204. — An act relative to inquests and fees in district, police and municipal courts.
Chapter 205. — An act relative to fines and forfeitures under the laws for the protection of fish and game.
Chapter 208. — An act to provide for the appointment of constables in cities.
Chapter 213. — An act relative to the admission of sane voluntary patients to the Massachusetts hospital for
epileptics.
Chapter 216. — An act to establish the salary of the justice of the district court of Northern Berkshire.
Chapter 219. — An act to provide for an additional clerk in the office of the chief of the district police.
Chapter 230. — An act relative to the relief of destitute shipwrecked seamen.
Chapter 234. — An act to provide for the appointment of an assistant register of probate and insolvency for the
county of Hampden.
Chapter 235. — An act to equalize the salaries of the assistant district-attorneys for the Suffolk district.
Chapter 238. — An act relative to clerical assistance for clerks of courts.
Chapter 240. — An act relative to sentences to the state prison.
Chapter 247. — An act relative to co-operative banks.
Chapter 254. — An act to provide for the appointment of one additional court officer for attendance upon the
several sessions of the municipal court of the city of Boston for civil business.
Chapter 256. — An act relative to the travelling expenses of the justice and clerk of the first district court of
Northern Worcester.
Chapter 259. — An act relative to the payment of the expenses of maintaining prison industries.
Chapter 261. — An act to provide for the appointment of additional members of the boiler inspection department
of the district police.
Chapter 264. — An actrelative to returns of qualification of officers by county commissioners.
Chapter 265. — An act relative to the organization of state boards and commissions.
Chapter 266. — An act relative to the liability of officers of corporations for corporate debts.
Chapter 267. — An act to authorize cities to pension firemen.
Chapter 277. — An act relative to the labor of prisoners in jails and houses of correction.
Chapter 280. — An act to establish the salary of the judge of probate and insolvency for the county of Berk-
shire.
Chapter 286. — An act to provide for clerical assistance in the police court of Lawrence.
Section 2 of Chapter 287. — An act to establish a district court for the county of Dukes County.
Chapter 294. — An act to establish the salary of the treasurer of the county of Middlesex.
Chapter 299. — An act to provide for an examination and renewal of the monuments marking the boundary
lines of the commonwealth.
Chapter 307. — An act relative to the employment of prisoners of the Massachusetts reformatory upon lands
and buildings owned by the commonwealth.
Chapter 312. — An act to provide for the payment of the expenses of the state board of bar examiners.
Chapter 315. — An act relative to the temporary release of children from truant schools.
Chapter 316. — An act relative to the compensation of special commissioners in counties.
Chapter 317. — An act to exempt the county of Nantucket from the operation of certain statutes relative to
counties and county officers.
Chapter 318. — An act to provide for the appointment of associate medical examiners.
Chapter 320. — An act relative to the printing of certain public documents.
Chapter 322. — An act to establish the salary of the treasurer of the county of Bristol.
Chapter 323. — An act to establish the salary of the treasurer of the county of Hampden.
Chapter 324.— An act to establish the salary of the sheriff of the county of Middlesex.
Chapter 326, except Sections 8 and 9. — An act to regulate the infliction of the death penalty.
Chapter 328. — An act to authorize street railway companies to use their cars and tracks for the transportation
of snow, ice, stones, gravel, dirt, street sweepings and grading materials.
Chapter 330. — An act to establish the salary of the treasurer of the county of Norfolk.
Chapter 331. — An act to provide clerical assistance for the clerk of the police court of Lynn.
Chapter 332. — An act to provide clerical assistance for the register of probate and insolvency for the county of
Middlesex.
Chapter 333. — An act to establish the salary of the assistant register of deeds for the Middlesex southern
district.
Chapter 334. — An act to provide for the employment of prisoners in making goods for the use of the prisons
and other public institutions.
1958 EXPRESS REPEAL LAWS OF 1898. [CHAP. 227.
Chapter 336. — An act to require corporations created by special charter to file evidence of their organization in
the office of the secretary of the commonwealth.
Chapter 339. — An act relative to the protection of certain birds.
Chapter 348. — An act relative to the militia.
Chapter 351. — An act to authorize cities and towns to construct bicyle paths.
Chapter 353. — An act to extend the provisions of the Public Statutes relating to the taxable valuation of vessels
engaged in the foreign carrying trade.
Chapter 354. — An act relative to the funeral expenses of paupers.
Chapter 355. — An act to change the time of the sittings of the superior court for the county of Franklin.
Chapter 356. — An act to provide for the reference of disputed claims for soldiers' relief to the commissioners
of state aid.
Chapter 358. — An act to establish the salary of the justice of the third district court of Eastern Middlesex.
Chapter 359. — An act relative to the staff of the commander-in-chief.
Chapter 361. — An act to require cities and towns to pay interest on arrears of sums due to the commonwealth,
on account of liquor licenses.
Chapter 362. — An act to establish the salary of the justice of the police court of Newton.
Chapter 365. — An act relative to employing prisoners in preparing road material by hand labor.
Chapter 366. — An act relative to the annual reports of state boards and commissions charged with the expend-
iture of money.
Chapter 367. — An act to authorize the granting of half holidays to public employees.
Chapter 369. — An act to establish the office of clerk of the first district court of Southern Worcester, — so far as
it relates to salary.
Chapter 370. — An act relative to the exemption of the property of widows of soldiers or sailors from taxa-
tion.
Chapter 371. — An act relative to sentences to the state prison.
Chapter 372. — An act to establish the salary of the justice of the police court of Springfield.
Chapter 374. — An act relative to the giving of testimony by witnesses before special tribunals.
Chapter 376. — An act to establish the salary of the assistant clerk of courts for the county of Bristol.
Chapter 380. — An act relative to insurance against loss by bombardment.
Chapter 381. — An act relative to the appointment of a justice of the peace in the city of Quincy, with authority
to issue in criminal cases warrants returnable to the district court of East Norfolk, and to take
bail in such cases.
Chapter 382. — An act to establish the salary of the clerk of the second district court of Eastern Worcester.
Chapter 384. — An act relative to the admission of attorneys-at-law.
Chapter 388. — An act to establish the salary of the justice of the second district court of Eastern Worcester.
Chapter 391. — An act relative to the support of state poor by cities and towns.
Chapter 393. — An act relative to reclaiming and improving waste and unused land with the labor of prisoners
from jails and houses of correction.
Chapter 394. — An act relative to the protection of children.
Chapter 396. — An act relative to the support of the poor in towns.
Chapter 397. — An act relative to arrest on mesne process.
Chapter 404. — An act to authorize street railway companies to acquire land for the avoidance of grade cross-
ings with railroads.
Chapter 407. — An act to authorize the formation of additional companies of the naval militia.
Chapter 411. — An act to secure uniformity in taking bail in criminal cases.
Chapter 414. — An act relative to special administrators.
Chapter 416. — An act relative to married women doing business on their separate account.
Chapter 417. — An act relative to the taxation of street railway companies.
Chapter 420. — An act relative to attachments.
Chapter 425. — An act relative to the pauper laws of the commonwealth.
Chapter 428. — An act to provide for the restoration to their former positions in the militia of officers and men
entering the military or naval service of the United States, and for the raising and organizing
of provisional companies, battalions and regiments.
Chapter 429. — An act to establish the salary of the justice of the third district court of Bristol.
Chapter 432. — An act to provide for the summary investigation of county and municipal expenditures.
Chapter 433. — An act to establish a state board of insanity.
Chapter 436. — An act relative to the report of the attorney-general.
Chapter 437. — An act to authorize cemetery corporations to incinerate bodies of the dead.
Chapter 438.— An act relative to the commitment of the insane.
Chapter 443.— An act relative to sentences to the state farm.
Chapter 444. — An act relative to the punishment of offences against chastity and morality.
Chapter 453. — An act to provide for the custody of certain records.
Chapter 454.— An act to allow the restoration to the public service of persons leaving it for military service in
time of war.
Chapter 457.— An act relative to suits to quiet the title to real estate.
Chapter 458.— An act relative to administrators, executors and trustees.
Chapter 459. — An act to establish the salary of the first clerk of the secretary of the 6tate board of agriculture.
Chapter 460.— An act to establish the salaries of the justice and clerk of the fourth district court of Berkshire..
Chapter 465. — An act relative to the granting of discharges to insolvent debtors.
Chapter 466. — An act relative to the employment of superintendents of schools by small towns.
Chapter 474. — An act relative to fraternal beneficiary organizations.
Chapter 476. — An act relative to state highways.
Chapter 477.— An act to authorize the appointment of a third deputy by the controller of county accounts.
Chapter 479.— An act relative to the promotion of anatomical science.
Chap. 227.] express repeal — laws of 1899. 1959
Chapter 480. — An act to authorize the erection and maintenance of dams across streams not navigable, for
making and maintaining ice ponds.
Chapter 481. — An act to extend the operation of the law relative to the weekly payment of wages.
Chapter 483. — An act to define the powers of a special district police officer.
Chapter 485. — An act relative to limited partnerships.
Chapter 486. — An act relative to the licensing of private detectives.
Chapter 487. — An act relative to libels for divorce.
Chapter 488. — An act relative to practice in municipal, police and district courts.
Chapter 489. — An act relative to the issuing of executions in suits founded on a judgment previously rendered.
Chapter 490. — An act relative to the abuse of corporate powers.
Chapter 494. — An act to regulate the employment of labor.
Chapter 496. — An act relative to school attendance and truancy.
Section 3 of Chapter 497. — An act to establish the district court of Western Norfolk, — so far as it relates
to salaries.
Chapter 498. — An act to authorize the construction of booms across the Connecticut river.
Chapter 499. — An act to establish the salaries of the board of gas and electric light commissioners.
Chapter 500. — An act relative to the disfigurement of objects by the posting of advertisements or otherwise.
Chapter 502. — An act to authorize certain corporations to surrender their certificates of incorporation.
Chapter 503. — An act to require approval by the commissioner of corporations of certificates of change of par
value of shares and of addition to or change of business by certain corporations.
Chapter 504. — An act to authorize certain corporations to add to or change their purpose of incorporation.
Chapter 505. — An act to prohibit deductions in the wages of women and minors employed in manufacturing
and mechanical establishments.
Chapter 507. — An act to provide for uniformity in the assessment of taxes.
Chapter 511. — An act to provide for the appointment of probation officers in the superior court.
Chapter 514. — An act relative to entries for breach of conditions in deeds.
Chapter 515. — An act to authorize the district police to examine pawnbrokers' books.
Chapter 51S. — An act to establish the salary of the assistant clerk of courts for the county of Norfolk.
Chapter 519. — An act relative to the seal and coat-of-arms of the commonwealth.
Chapter 521. — An act to provide for additional assistance in the office of the auditor of the commonwealth.
Chapter 526. — An act to authorize cities and towns to make certain temporary loans.
Chapter 527. — An act to provide for the appointment of conservators of the property of aged persons who are
unable to care therefor.
Chapter 528. — An act relative to state highways.
Chapter 533. — An act relative to negotiable instruments.
Chapter 535. — An act relative to declarations of deceased persons.
Chapter 537. — An act relative to reinsurance contracts.
Chapter 538. — An act relative to the abolition of grade crossings.
Section 3 of Chapter 544. — An act to require the state board of agriculture to take charge of the work of
exterminating the brown tail moth.
Chapter 545. — An act relative to contracts for the conditional sale of personal property.
Chapter 548. — An act to revise and codify the laws relative to elections.
Chapter 549. — An act to provide an equitable process after judgment in certain cases.
Chapter 554. — An act relative to nominations for aldermen in the city of Boston.
Chapter 555. — An act to provide that the expenses of trial justices for office rent shall be paid by the county.
Chapter 559. — An act relative to poor debtor proceedings.
Chapter 562. — An act to provide for registering and confirming titles to land.
Chapter 565. — An act relative to the liability of persons and corporations for negligence resulting in the death
of persons not in their employ.
Chapter 567. — An act to limit the connection between savings banks and other banks and national banking
associations.
Chapter 571. — An act to prevent over-insurance.
Chapter 572. — An act to establish the salaries of the harbor and land commissioners.
Chapter 574. — An act relative to special commissioners.
Chapter 576. — An act relative to trading stamps, coupons and other devices.
Chapter 577. — An act relative to small loans and the redemption of the security therefor.
Chapter 578, except Section 28. — An act relative to street railways.
Chapter 580. — An act to amend chapter four hundred and ninety-six of the acts of the year eighteen hundred
and ninety-eight relative to school attendance and truancy.
Res. Chapter 66.— Resolve in favor of the Massachusetts school for the feeble-minded.
One Thousand Eight Hundred and Ninety-nine.
Chapter 54. — An act relative to the amount of money to be advanced to the disbursing officer of the state
board of insanity.
Chapter 81. — An act relative to insolvent estates of deceased persons.
Chapter 85.— An act relative to the securing of materials by cities and towns for the construction, repair or
improvement of streets or ways.
Chapter 90.— An act to provide for the deposit of money in a savings bank in the name of a judge of probate,
and for the payment of such deposit.
Chapter 91.— An act relative to the price of certain writs.
Chapter 100.— An act relative to the clerks and the assistant clerks of the senate and the house of represent-
atives.
1960 EXPRESS REPEAL LAWS OF 1899. [CHAP. 227.
Chapter 103. — An act to provide for the enforcement of orders made by the commissioners on inland fisheries
and game relative to flshways.
Chapter 107. — An act to provide for the cultivation of food fish.
Chapter 108. — An act relative to deposits by county treasurers.
Chapter 110. — An act relative to the travelling expenses of the special justice of the first district court of
Bristol.
Chapter 111. — An act to provide school registers and other school blanks for the towns and cities of the com-
monwealth.
Chapter 115. — An act relative to expenditures for the clerical and contingent expenses of the bureau of
statistics of labor.
Chapter 116. — An act to make the Lord's day close season for birds and game.
Chapter 120. — An act relative to summary process for the recovery of land.
Chapter 123. — An act relative to the taking of depositions.
Chapter 125. — An act to limit the amount payable under the land registration act from the assurance fund.
Chapter 129. — An act relative to the election of city officers by city councils.
Chapter 130. — An act relative to days of grace on sight drafts.
Chapter 131. — An act relative to registering and confirming titles to land.
Chapter 139. — An act relative to the inspection of buildings.
Chapter 140. — An act to establish a sitting of the superior court for the county of Bristol in the city of Fall
River.
Chapter 143. — An act to provide for the better enforcement of the laws relative to the public health.
Chapter 146. — An act relative to nomination papers and conventions.
Chapter 147. — An act relative to sales of real estate by guardians.
Chapter 148. — An act relative to the preparation of voting lists.
Chapter 151. — An act to authorize the employment of a messenger in the department of the auditor of the
commonwealth .
Chapter 153. — An act to authorize the treasurer of the county of Bristol to employ additional clerical assist-
ance.
Chapter 154. — An act to establish the salary of the clerk of the first district court of Southern Worcester.
Chapter 156. — An act to relieve certain towns from the support of inmates of certain state institutions.
Chapter 158. — An act to authorize transfers from the Lyman school for boys and from the state industrial
school for girls to the hospital cottages for children or the Massachusetts school for the
feeble-minded.
Chapter 164. — An act to authorize the change of names of insurance corporations.
Chapter 166. — An act relative to search warrants authorizing search in the night time.
Chapter 169. — An act relative to the inspection of milk.
Chapter 170. — An act relative to the election of city officers by city councils or by other municipal bodies or
boards.
Chapter 171. — An act to authorize towns to print and publish their town records.
Chapter 178. — An act relative to special commissioners.
Chapter 184. — An act relative to the public health in towns.
Chapter 190. — An act relative to the counting of ballots at caucuses.
Chapter 191. — An act to provide for the appointment of an assistant register of probate and insolvency for the
county of Hampshire.
Chapter 192. — An act relative to the care of the state library.
Chapter 193. — An act relative to juvenile offenders in need of hospital treatment.
Chapter 196. — An act to provide for the better protection of county buildings, and for the appointment of
county police by county commissioners.
Chapter 197. — An act relative to marriages of minors.
Chapter 198. — An act relative to the conveyance of insane women to insane hospitals and asylums.
Chapter 199. — An act relative to mechanical and manufacturing corporations.
Chapter 201. — An act relative to the temporary release of children under sentence for truancy.
Chapter 203. — An act to provide for the extension of the Bertillon method of identifying criminals.
Section 2 of Chapter 204. — An act to provide an assistant clerk for the police court of Springfield and to
establish his salary, — so far as it relates to salary.
Chapter 207. — An act relative to territorial jurisdiction in certain inquest proceedings.
Chapter 209. — An act relative to the counting of ballots at elections.
Chapter 211. — An act relative to the admission of patients to the Massachusetts hospital for epileptics.
Chapter 215. — An act to authorize savings banks and institutions for savings to loan upon the bonds of the
Boston Terminal Company.
Chapter 217. — An act to establish the salary of the clerk of the district court of Northern Berkshire.
Chapter 218. — An act relative to fees for serving precepts for elections and subpoenas.
Chapter 220. — An act relative to the order in which political designations shall be placed upon the official ballot
in elections.
Chapter 223. — An act relative to the standard quality of milk.
Chapter 226. — An act to regulate the discharge of convicts committed to prison or other place of confinement
for non-payment of fine, or fine and costs.
Chapter 229. — An act relative to domestic and foreign mutual assessment life insurance corporations.
Chapter 234. — An act to establish the salary of the assistant clerk of the police court of Lowell.
Chapter 235. — An act relative to the licensing of auctioneers.
Chapter 238. — An act relative to collection agencies.
Chapter 242. — An act giving the superior court jurisdiction for preventing unlawful blasting.
Chapter 243. — An act to authorize the appointment of special officers for the removal and transfer of prisoners.
Chapter 245. — An act relative to the appointment of assistant watchmen at the state prison.
Chap. 227.] express repeal — laws of 1899. 1961
Chapter 246. — An act to authorize the establishment of vacation schools.
Chapter 247. — An act to extend the application of the law relative to the weekly payment of wages.
Chapter 252. — An act relative to the injury or destruction of street railway signals.
Chapter 253. — An act relative to the appointment of park commissioners.
Chapter 254. — An act to prevent the improper use of the flag of the United States or of the commonwealth of
Massachusetts.
Chapter 256. — An act to provide for the establishment of city and town seals.
Chapter 259. — An act to provide that reports shall be made to the state board of charity by certain charitable
corporations.
Chapter 260. — An act relative to the sale of ice.
Chapter 261. — An act to exempt certain loan companies from procuring local licenses.
Chapter 262. — An act to authorize clerks of police, municipal and district courts to approve bastardy bonds.
Chapter 263. — An act relative to the removal of prisoners to the state farm.
Chapter 264. — An act to establish the salary of the assistant register of probate and insolvency for the county
of Worcester.
Chapter 266. — An act relative to commitments to the Massachusetts hospital for dipsomaniacs and inebriates.
Chapter 269. — An act relative to the investments of savings banks and institutions for savings.
Chapter 271.— An act to change the time of the April sitting of the superior court for the county of Barnstable.
Chapter 276. — An act to provide for the better protection of infants.
Chapter 278. — An act relative to bonds in probate courts signed by surety companies.
Chapter 284. — An act relative to the release by the guardian of an insane married man of estates of tenancy
by curtesy and rights by statute.
Chapter 286. — An act relative to the examination of street railway bridges.
Chapter 297. — An act to establish the salary of the clerk of the third district court of Eastern Middlesex.
Chapter 299. — An act relative to the establishment of textile schools.
Chapter 301. — An act relative to special administrators.
Section 1 of Chapter 302. — An act relative to the placing of officers upon the retired list.
Chapter 309. — An act relative to the annual report of the commissioners of prisons.
Chapter 310. — An act to provide for the retirement of justices of the supreme judicial court and of the superior
court.
Chapter 311. — An act relative to the allowance to be paid in certain cases to the widow and children of a
deceased person.
Chapter 313. — An act to provide for two additional associate justices of the municipal court of the city of Boston.
Chapter 314. — An act to establish the salary of the justice of the district court of Central Berkshire.
Chapter 315. — An act to establish the salaries of the justice and clerk of the police court of Fitchburg.
Chapter 316. — An act to define the crime of larceny.
Chapter 319. — An act relative to making connections of estates with sewers.
Chapter 320. — An act relative to the regulation of electric wires.
Chapter 323. — An act to provide that a person applying to vote in the city of Boston shall not be required to
write his name on the voting list.
Chapter 325. — An act relative to discharges from the Massachusetts hospital for dipsomaniacs and inebriates.
Chapter 326. — An act relative to unauthorized structures in a city or town.
Chapter 329. — An act relative to caucuses and elections.
Chapter 330. — An act to codify and amend the laws relative to the preservation of trees.
Chapter 333. — An act relative to entry fees and other charges in bastardy cases.
Chapter 336. — An act relative to the printing and distribution of the blue book.
Chapter 337. — An act relative to the regulation and supervision of wires over streets and buildings in towns.
Chapter 339. — An act to establish the salary of the justice of the police court of Brockton.
Chapter 340. — An act relative to renovated butter, so-called.
Chapter 344. — An act to make eight hours a day's work for city and town employees.
Chapter 345. — An act relative to the duties of judges of probate and insolvency.
Chapter 346. — An act relative to political committees and caucuses of political parties.
Chapter 348. — An act to authorize trust companies to act as executors and in other fiduciary capacities.
Chapter 350. — An act relative to clerical assistance for clerks of courts.
Chapter 352. — An act relative to public warehousemen and other depositaries.
Chapter 353. — An act to authorize additional clerical assistance for the clerk of the municipal court of the city
of Boston for civil business.
Chapter 354. — An act relative to ink6 for public records and to making such records by means of typewriting
machines.
Chapter 357. — An act relative to appeals in actions at law upon demurrers and agreed facts.
Chapter 358. — An act to provide for the protection of historical monuments.
Chapter 359. — An act relative to the registration and protection of labels, trade-marks, stamps and forms of
advertisements.
Chapter 360. — An act relative to fines and forfeitures under the laws protecting fish and game.
Chapter 361. — An act relative to the duties of assessors in the city of Boston.
Chapter 364. — An act relative to the authority of foreign surety companies to become surety on bonds to the
commonwealth.
Chapter 368, except Section 12. — An act relative to the licensing of engineers and firemen.
Chapter 372. — An act relative to military aid.
Chapter 373. — An act relative to notices of petitions to the supreme judicial court for the construction of wills.
Chapter 374. — An act relative to state aid.
Chapter 376. — An act to provide for the better enforcement of the laws relative to the civil service.
Chapter 377. — An act to provide for an additional assistant clerk of the superior court for civil business for the
county of Suffolk.
1962
EXPRESS REPEAL LAWS OF 1900.
[Chap. 227.
Chapter 379. — An act relative to the taking of land by cities and towns.
Chapter 381. — An act relative to examining boards for officers of the volunteer militia.
Chapter 383. — An act relative to the travelling expenses of jurors.
Chapter 387. — An act relative to the solemnization of marriages.
Chapter 389. — An act relative to delaying service of warrants in criminal cases.
Section 2 of Chapter 391. — An act to establish the district court of Eastern Franklin, — so far as it relates
to salaries.
Chapter 394. — An act to provide for part payment of taxes and of certain claims against cities and towns.
Chapter 408. — An act relative to infectious diseases among domestic animals, and to establish a new board of
cattle commissioners.
Chapter 409. — An act to provide for the simplification of criminal pleadings.
Chapter 412. — An act to authorize sheriffs and constables to store property removed by them from premises in
the service of execution.
Chapter 413. — An act relative to the employment of minors.
Chapter 417. — An act to provide for the payment of an allowance to families of certain persons not firemen,
but who are killed or fatally injured while doing fire duty.
Chapter 422. — An act relative to the practice of pharmacy.
Chapter 423. — An act to authorize the appointment of a permanent court officer for the probate court of the
county of Middlesex.
Chapter 425. — An act relative to the service of process in the collection of taxee.
Chapter 436. — An act relative to the protection of shade trees.
Chapter 442. — An act relative to fraternal beneficiary corporations.
Chapter 444. — An act relative to suits to quiet the title to real estate.
Chapter 445. — An act relative to equitable process after judgment in certain cases.
Chapter 453. — An act relative to the use of streets by corporations.
Chapter 458. — An act relative to the compensation of commissioners appointed to assess damages in certain
cases.
Chapter 459. — An act relative to the payment of certain expenses of state officials from the treasury of the
commonwealth.
Chapter 462. — An act relative to the number of places which may be licensed for the sale of intoxicating
liquors.
Chapter 465. — An act relative to the inspection of gas and gas meters.
Chapter 467. — An act relative to the business of trust companies.
Chapter 468. — An act to exempt certain trades unions from the laws relative to fraternal beneficiary
organizations.
Chapter 470. — An act to establish the salary of the district-attorney for the south-eastern district.
Chapter 472. — An act relative to statements required to be made to the insurance commissioner by insurance
corporations doing business on the assessment plan.
Chapter 474. — An act to provide a penalty for trespassing upon bicycle paths.
One Thousand Nine Hundred.
Chapter 64. — An act to provide for the protection of Mongolian, English and golden pheasants.
Chapter 92. — An act to authorize burglary and theft insurance companies to do business in this common-
wealth.
Chapter 102. — An act relative to the burial of the dependent mothers of indigent soldiers, sailors and marines.
Chapter 106. — An act relative to the practice of pharmacy.
Chapter 112. — An act relative to making connections of estates with sewers.
Chapter 116. — An act relative to the recorder and assistant recorders of the court of registration.
Chapter 117. — An act to provide for the disposal of checks given by the treasurer and receiver general in
certain cases.
Chapter 119. — An act relative to the repair of county buildings by day work.
Chapter 120. — An act relative to caucuses held preparatory to national party conventions.
Chapter 127. — An act to provide for the appointment of trustees for preparative meetings of the society of
Friends or Quakers.
Chapter 128. — An act relative to the destruction of hawks in the county of Dukes County.
Chapter 129. — An act relative to the maintenance of bastard children.
Chapter 137. — An act to establish the salary of the third deputy in the office of the controller of county
accounts.
Chapter 138. — An act to establish the office of clerk of the police court of Lee.
Chapter 144. — An act to provide for the appointment of an assistant register of probate and insolvency for
the county of Bristol.
Chapter 147. — An act relative to executors and administrators.
Chapter 154. — An act relative to the payment by railroad companies of rebates on cash fares.
Chapter 157. — An act to authorize towns to regulate by by-law the sale of certain articles by hawkers and
pedlers.
Chapter 159. — An act to regulate the taking of herring and mackerel in Mill River and Plum Island River and
their tributaries.
Chapter 162. — An act relative to parading with imitation firearms.
Chapter 166. — An act to authorize cities and towns to provide free evening lectures.
Chapter 168. — An act relative to the rate of interest on overdue taxes.
Chapter 174. — An act to extend the time at which the act to revise the laws relative to the distribution of the
estates of deceased persons shall take effect.
Chap. 227.] expkess repeal — laws of 1900. 1963
Chapter 175. — An act relative to the annual certificate which school committees are required to return to the
state board of education.
Chapter 177. — An act to give the superior court equity powers in cases of taking or sale of real estate for the
payment of taxes.
Chapter 179. — An act relative to the appointment of constables of police, district and municipal courts.
Chapter 180. — An act relative to the printing and sale of probate indexes.
Chapter 183. — An act to authorize the making of insurance upon the health of individuals.
Chapter 185. — An act to permit fraternal beneficiary corporations organized under the laws of the Dominion
of Canada or any province thereof to transact business in this commonwealth.
Chapter 187. — An act to provide school registers and other school blanks for the towns and cities of the
commonwealth.
Chapter 188. — An act to increase the efficiency of the militia.
Chapter 189. — An act relative to the furnishing of soldiers' relief by cities and towns.
Chapter 191. — An act relative to the trustee process.
Chapter 192. — An act to change the name of the Massachusetts hospital for consumptives and tubercular
patients.
Chapter 197. — An act relative to the transportation of scholars of the public schools by street railway
companies.
Chapter 198. — An act to change the name of the county office of special commissioner to that of associate
commissioner.
Chapter 201. — An act relative to the licensing of engineers and firemen.
Chapter 209. — An act to regulate the shooting of black duck, geese, brant and other aquatic birds in Plymouth
harbor or bay.
Chapter 213. — An act to authorize and regulate the appointment of additional constables in towns.
Chapter 214. — An act relative to the purchase and sale of real estate by co-operative banks.
Chapter 215. — An act to provide for the inspection of city and town almshouses by the state board of charity.
Chapter 217. — An act to establish the salaries of the first and second clerks in the office of the auditor of
accounts.
Chapter 218. — An act relative to the length of the school year in certain towns.
Chapter 219. — An act relative to summer schools for teachers.
Chapter 220. — An act to authorize cities to indemnify police officers and members of fire departments for
damages sustained or expenses incurred in certain cases.
Chapter 223. — An act to require railroad companies to equip their cars with platform gates.
Chapter 225. — An act relative to printing certain public documents.
Chapter 229. — An act to establish the salary of the justice of the police court of Williamstown.
Chapter 230. — An act relative to the taking of lobsters.
Chapter 231. — An act relative to political designations of candidates for state, city and town offices.
Chapter 232. — An act relative to the issuance of letters of guardianship to non-resident guardians of non-
resident wards.
Chapter 233. — An act to authorize the board of free public library commissioners to purchase books for the
free public libraries of certain towns.
Chapter 239. — An act to provide for an appeal from orders of inspectors of factories and public buildings.
Chapter 241. — An act to require the commissioners of prisons of Massachusetts and certain other officials to
transmit to the election commissioners of the city of Boston the names of residents of said city
confined in certain penal and charitable institutions.
Chapter 245. — An act relative to nomination papers.
Chapter 246. — An act to authorize cities to pension firemen.
Chapter 248. — An act relative to the employment of superintendents of schools by cities and towns.
Chapter 249. — An act relative to the places in which the business of co-operative banks shall be conducted.
Chapter 253. — An act relative to injuries received on state highways.
Chapter 254. — An act for the better protection of children.
Chapter 256. — An act relative to mechanics' hens for the removal of buildings or other structures.
Chapter 257. — An act relative to the reserve of trust companies.
Chapter 260. — An act to provide for the identification of female criminals.
Chapter 261. — An act relative to the service of process upon the commissioner of corporations.
Chapter 265. — An act to establish the salary of the justice of the police court of Lynn.
Chapter 266. — An act to authorize the treasurer of the commonwealth to make advances of money to bonded
paymasters of the militia.
Chapter 267. — An act relative to the attendance of witnesses before boards of registrars of voters.
Chapter 268. — An act to establish the salary of the justice of the police court of Lawrence.
Chapter 269. — An act relative to the employment of prisoners in making goods for public use.
Chapter 273. — An act relative to the distribution of profits by co-operative banks.
Chapter 279. — An act to provide for the reimbursement of probation officers for expenses incurred by them in
the performance of their duties.
Chapter 280. — An act relative to foreign corporations having a usual place of business in this commonwealth.
Chapter 281. — An act relative to the office hours of clerks of police, district and municipal courts.
Chapter 282. — An act to prohibit corporations from requiring bonds of their employees in certain cases.
Chapter 284. — An act to regulate fishing in brooks stocked by the commissioners on inland fisheries and
game.
Chapter 286.— An act to authorize the appointment of an electrician and an assistant engineer at the state
prison.
Chapter 290. — An act relative to the service of process in the collection of taxes.
Chapter 294. — An act relative to registration in dentistry.
Chapter 295. — An act to establish the salary of the sheriff of the county of Norfolk.
1964 EXPRESS REPEAL LAWS OF 1900. [CHAP. 227.
Chapter 297. — An act to provide for obtaining a portrait of the present governor of the commonwealth,
portraits of two of the colonial governors, and portraits of future governors, — except sec-
tion 2 and so much of section 1 as is temporary.
Chapter 298. — An act relative to passenger fares on certain morning and evening trains on railroads entering
the city of Boston.
Chapter 299. — An act relative to the jurisdiction of the superior court to assess damages for the taking of
property by right of eminent domain.
Chapter 300. — An act relative to the adulteration of, milk.
Chapter 307. — An act relative to corrupt practices in elections.
Chapter 311. — An act to authorize the reporting of matters for determination by the supreme judicial court in
certain cases.
Chapter 312. — An act relative to the display of lights upon bicycles.
Chapter 317. — An act to regulate the practice of pharmacy.
Chapter 318. — An act to require railroad companies to transport the bicycles of passengers as baggage.
Chapter 319. — An act to provide rooms in the city of Boston in which to hold the probate court of Norfolk
County in certain cases.
Chapter 325. — An act relative to the manufacture and sale of textile fabrics and papers containing arsenic.
Chapter 326. — An act to establish the office of clerk of the third district court of Southern Worcester, — so far
as it relates to salary.
Chapter 327. — An act to provide for establishing fixed hours for the recording of papers in registries of deeds.
Chapter 328. — An act to establish the salary of the assistant register of probate and insolvency for the county
of Essex.
Chapter 329. — An act to establish the salary of the second assistant clerk of courts for the county of Essex.
Chapter 330. — An act to establish the salary of the clerk of the municipal court of the Roxbury district of
the city of Boston.
Chapter 331. — An act to establish the salary of the assistant clerk of the municipal court of the Roxbury
district of the city of Boston.
Chapter 332. — An act to establish the salary of the assistant clerk of the first district court of Eastern
Middlesex.
Chapter 333. — An act to change the name of the state almshouse.
Chapter 334. — An act to regulate the width of tires on draft wagons.
Section 1 of Chapter 335. — An act to provide for the protection of human life in the case of fire or panic.
Chapter 339. — An act to regulate the size of berry baskets.
Chapter 344. — An act relative to the construction of fishways by the commissioners on inland fisheries and game.
Chapter 345. — An act relative to temporary guardians.
Chapter 347. — An act to establish the salary of the assistant register of probate and insolvency for the county
of Middlesex.
Chapter 350. — An act relative to the commitment of insane persons to insane asylums.
Chapter 352. — An act to establish the rank of the commissary general.
Chapter 353. — An act to establish the rank of the judge-advocate general.
Chapter 354. — An act relative to registering and confirming titles to land.
Chapter 357. — An act relative to the hours of labor for city and town employees.
Chapter 359. — An act to protect milk dealers and consumers against the unlawful use and destruction of milk
cans and other receptacles.
Chapter 363. — An act relative to life insurance.
Chapter 368. — An act relative to the work of the dairy bureau of the state board of agriculture.
Chapter 369.— An act relative to the sealing of bottles and cans used by milkmen.
Chapter 371. — An act to provide for the collection of collateral legacy taxes in certain cases.
Chapter 372. — An act relative to appeals and exceptions at common law and in equity.
Chapter 373. — An act to provide for the appearance of the attorney-general before committees of the general
court in certain cases.
CHAPTER 374. — An act relative to naturalization.
Chapter 376. — An act relative to the sale of real estate for the payment of taxes.
Chapter 378. — An act relative to the hours of labor of women and minors iu mercantile establishments.
Chapter 379. — An act to provide for the better protection and to regulate the sale of game birds.
Chapter 381. — An act to authorize receivers to sell the property, locations and franchises of street railway
companies.
Chapter 383. — An act to establish the salaries of the first and second clerks in the office of the secretary of the
commonwealth.
Chapter 3S4. — An act to establish the salary of the justice of the third district court of Bristol.
Chapter 3S5. — An act to establish the salaries of the justices of the supreme judicial court and of the superior
court.
Chapter 386. — An act relative to printing certain parts of the annual report of the insurance commissioner.
Chapter 395. — An act relative to railroad fares in the suburban district of Boston.
Chapter 397. — An act to provide for the care and maintenance of indigent and neglected children.
Chapter 398. — An act relative to interest to be paid by corporations to the commonwealth on overdue taxes.
Chapter 399. — An act relative to the limit of the municipal debt and the rate of taxation in the city of Boston.
Section 6 of Chapter 400. — An act to abolish the police court of Gloucester and to establish the district court
of Eastern Essex.
Chapter 404. — An act relative to contracts between cities and towns and the Massachusetts highway commis-
sion for the construction of state highways.
Chapter 406. — An act to establish the salaries of the railroad commissioners.
Chapter 408. — An act to establish the salaries of the judges of probate and insolvency for the county of
Worcester and the county of Essex.
Chap. 227.] express repeal — laws of 1901. 1965
Chapter 409. — An act relative to trials of speed and strength upon grounds of associations for encouraging the
raising of choice breeds of horses.
Section 5 of Chapter 413. — An act to authorize the board of metropolitan park commissioners to grant
locations to street railway companies.
Chaptek 414. — An act to require street railway companies to enclose the platforms of cars during certain
months of the year.
Chapter 418. — An act relative to proceedings before auditors.
Chapter 419. — An act to establish the salary of the clerk of the police court of Brockton and to provide clerical
assistance for said court.
Chapter 425. — An act relative to the hours of labor of employees of county jails and houses of correction.
Chapter 428. — An act to provide for the better protection of lobsters.
Chapter 432. — An act relative to the repair of state highways by or under the direction of the Massachusetts
highway commission, and to the construction or repair of highways in certain small towns.
Chapter 433. — An act relative to the appointment of court officers in the municipal courts in the county of
Suffolk.
Chapter 437. — An act relative to the taking of land by cities and towns for the erection of public buildings.
Chapter 440. — An act relative to the sale of tobacco on the Lord's day.
Chapter 446. — An act to extend the time for giving notices under the employers' liability act.
Chapter 447. — An act relative to actions in police, district and municipal courts.
Chapter 448. — An act to regulate the sale of ice.
Chapter 449. — An act relative to the probation service.
Chapter 450. — An act to revise the laws concerning the distribution of estates of deceased persons and the
rights of surviving widows and husbands therein.
Chapter 459. — An act relative to the inspection of gas and gas meters.
Chapter 463. — An act relative to the abolition of grade crossings.
Chapter 469. — An act relative to the employment of laborers on public works.
Chapter 470. — An act relative to the weekly payment of wages by the commonwealth and its officers.
Chapter 474. — An act relative to the Massachusetts highway commission.
Chapter 475. — An act to authorize the Massachusetts highway commission to alter locations.
One Thousand Nine Hundred and One.
Chapter 37. — An act relative to the appointment of resident agents of non-resident executors, administrators,
guardians, trustees, and assignees in insolvency.
Sections 1 and 3 of Chapter 54. — An act relative to the board of railroad commissioners.
Chapter 58. — An act relative to the raising and preserving of forest trees.
Chapter 59. — An act relative to the procuring of fire or bombardment insurance in foreign insurance com-
panies.
Chapter 61. — An act relative to the jurisdiction of probate courts and courts of insolvency.
Chapter 70. — An act relative to the sittings of the superior court at Fitchburg in the county of AVorcester.
Chapter 76. — An act to authorize fire districts to appropriate money for payment of the charges of insurance
companies as sureties on the bonds of fire district officials.
Chapter 78. — An act to extend the provisions of the civil service law to the police and fire forces of towns.
Chapter 80. — An act relative to Sunday work by bootblacks.
Chapter 87. — An act relative to the sale of intoxicating liquors by pharmacists.
Chapter 89. — An act relative to the counting of ballots at elections.
Chapter 91.— An act relative to the recording of sales of intoxicating liquors by retail druggists and apothe-
caries.
Chapter 94. — An act to authorize certain insurance companies to insure persons against physical disability
arising from sickness.
Chapter 96. — An act to authorize certain charitable, educational and other corporations to hold additional
real and personal estate.
Chapter 100. — An act to establish the standard weight of soy beans and Japanese barnyard millet.
Chapter 102. — An act relative to the taking or killing of gray squirrels, hares and rabbits.
Chapter 104. — An act to provide for examination by the state board of health of the outlets of sewers, and as
to the effect of sewage disposal.
Chapter 106. — An act relative to the employment of convicts on the premises of the state prison.
Chapter 108. — An act relative to the collection of taxes.
Chapter 109. — An act relative to payments to certain county treasurers by treasurers and clerks of cities and
towns.
Chapter 110. — An act to place the financial affairs of truant schools under the supervision of the controller
of county accounts.
Chapter 112. — An act relative to the publication by the state board of education of matter to promote the
interests of common school education.
Chapter 113. — An act to require the posting of time-tables in mercantile establishments.
Chapter 114.— An act relative to the annual report of the board of commissioners of savings banks.
Chapter 116. — An act relative to voting at annual town meetings on the question of granting licenses for the
sale of intoxicating liquors.
Chapter 117. — An act relative to the time of holding caucuses and conventions of political parties.
Chapter 120. — An act relative to the penalty for keeping unlicensed dogs.
Chapter 121.— An act to provide for the better protection of trout.
Chapter 123. — An act relative to co-operative banks.
Chapter 124. — An act relative to the time for filing certificates of nomination and nomination papers.
1966 EXPRESS REPEAL LAWS OF 1901. [CHAP. 227.
Chapter 125. — An act to provide for the appointment of conservators of the property of persons who are unable
to care therefor.
Chapter 126. — An act relative to requisitions upon county treasurers by clerks of inferior courts and trial
justices.
Chapter 128. — An act relative to the transfer of boys to and from the Massachusetts reformatory.
Chapter 130. — An act relative to the publication by the state board of agriculture of matter to promote the
interests of agriculture.
Chapter 134. — An act relative to the killing and rendering of horses and other animals.
Chapter 138. — An act to prohibit the taking of shellfish from contaminated waters.
Chapter 141. — An act relative to the snaring of partridges, hares and rabbits.
Chapter 142. — An act to include the month of August in the close season for trout fishing in the county of
Hampden.
Section 1 of Chapter 149. — An act relative to the appointment of commissioners in foreign countries.
Chapter 150. — An act relative to the service of process in the collection of taxes.
Chapter 151. — An act to prohibit persons from unlawfully wearing or using the insignia of the naval and mili-
tary order of the Spanish- American war, or of the legion of Spanish war veterans.
Chapter 152. — An act to authorize any city or town to lease its public buildings or a part thereof to camps of
the legion of Spanish war veterans.
Chapter 153. — An act relative to the improper use of the flag of the United States or of the commonwealth.
Chapter 157. — An act to provide for the performance of the duties of the auditor of accounts in case of his
temporary disability.
Chapter 162. — An act to change the times of the sittings of the superior court for civil business for the county
of Middlesex.
Chapter 164. — An act to prohibit the employment of minors under eighteen years of age in the manufacture of
. certain acids.
Chapter 166. — An act to provide for the better protection of workmen on iron or steel framed buildings.
Chapter 167. — An act relative to the return of births, marriages and deaths in certain cities.
Chapter 171. — An act to provide for the establishment in cities of hospitals for persons having smallpox or
other diseases dangerous to the public health.
Chapter 173. — An act to transfer the towns of Boylston and Northborough to the fourth district of medical
examiners for Worcester county.
Chapter 174. — An act relative to the protection of wild fowl.
Chapter 176. — An act relative to equitable process after judgment in certain cases.
Chapter 177. — An act to authorize the state board of charity to prescribe the form of records kept by overseers
of the poor and of registers kept by masters of almshouses.
Chapter 178. — An act to provide for the further protection of wild pigeons, gulls and tern.
Chapter 179. — An act relative to the reports which certain charitable corporations are required to transmit to
the state board of charity.
Chapter ISO. — An act relative to regulation of fares charged by street railway companies.
Chapter 185. — An act to provide for the appointment of special district police officers with authority to return
prisoners to the state farm.
Chapter 186. — An act to restrict the sale of native wines in cities and towns which refuse to license the sale of
intoxicating liquors.
Chapter 188. — An act relative to the manufacture and sale of textile fabrics and papers containing arsenic.
Chapter 191. — An act to provide for official copies of engrossed acts and resolves of the general court which
have become illegible.
Chapter 192. — An act to authorize cities and towns to regulate the speed of certain vehicles in the streets.
Chapter 193. — An act to provide for the better protection of egg-bearing lobsters.
Chapter 197. — An act relative to the use in evidence of deeds given by tax collectors.
Chapter 202. — An act to provide for the protection of dairymen.
Chapter 210. — An act relative to the publication and distribution of the manual for the general court.
Chapter 211. — An act to establish the salaries of the clerks in the department of the treasurer and receiver
general.
Chapter 213. — An act relative to temporary guardians.
Chapter 215. — An act relative to the release of persons arrested on a criminal charge who have forfeited bail
or have been surrendered by a probation officer.
Chapter 222. — An act relative to interest to be paid by corporations to the commonwealth on overdue taxes.
Chapter 224. — An act relative to the entertainment of visitors at the state prison and the Massachusetts
reformatory.
Chapter 237. — An act relative to the taking of scallops in the waters adjacent to Nantucket.
Chapter 238. — An act relative to foreign corporations engaged in this commonwealth in the construction, erec-
tion, alteration or repair of any building, bridge, railway or other structure.
Chapter 240. — An act to provide for an increased edition of part one of the annual report of the board of com-
missioners of savings banks.
Chapter 242. — An act relative to the probate of wills.
Chapter 244. — An act relative to appeals from decrees of the superior court in equity cases.
Chapter 246. — An act to provide that the expenses of trial justices for office rent shall be paid by the county.
Chapter 249. — An act relative to notices of caucuses and the withdrawal of a person nominated by a nomina-
tion paper for an office to be filled at a caucus.
Chapter 252. — An act relative to infectious diseases among domestic animals.
Chapter 254. — An act to authorize street railway companies to carry newspapers and the United States mail.
Chapter 255. — An act to limit the total liabilities of any person, firm or corporation for money borrowed from
safe deposit, loan and trust companies having a capital stock of five hundred thousand dollars
or more.
Chap. 227.] express repeal — laws of 1901. 1967
Chapter 257. — An act relative to the annual reports of the public document series.
Section 1 of Chapter 259. — An act to determine the times and places of holding probate courts for the county
of Franklin.
Chapter 262. — An act to increase the amount of money allowed for clerical and messenger service for the state
board of education.
Chapter 263. — An act relative to the printing of certain public documents.
Chapter 265. — An act relative to voting lists used at caucuses.
Chapter 268. — An act relative to certain offences against property.
Chapter 274. — An act to authorize the color guards of the grand army of the republic and of the legion of
Spanish war veterans to parade in public with firearms.
Chapter 275. — An act relative to beneficiaries which may be named in certificates issued by fraternal bene-
ficiary corporations.
Chapter 277. — An act to authorize the sale of real estate by administrators and executors for the non-payment
of taxes.
Section 1 of Chapter 281. — An act relative to the care of deposits made with the treasurer and receiver
general in trust.
Chapter 282. — An act relative to the commitment of women subject to dipsomania or inebriety.
Chapter 283. — An act relative to the burial of indigent soldiers, sailors and marines, and others.
Chapter 286. — An act relative to examination of witnesses before the board of railroad commissioners.
Chapter 287. — An act to authorize towns to appropriate money for memorials of those who served in the
Spanish-American war.
Chapter 289. — An act to extend the time within which school committees are required to make certain returns
to the state board of education.
Chapter 290, except Section 3. — An act relative to certain returns made to the commissioners on inland
fisheries and game.
Chapter 291. — An act to provide for the supervision of the Massachusetts state sanatorium by the state board
of charity.
Chapter 294. — An act relative to the sale or abandonment of lands by cities and towns.
Chapter 295. — An act to provide clerical assistance for the clerk of the central district court of northern Essex.
Chapter 296. — An act to authorize insurance companies to insure against loss arising from accidents to
machinery and from similar causes.
Chapter 297. — An act relative to the tax on collateral legacies and successions.
Chapter 298. — An act to provide for the protection of stone walls and fences.
Chapter 299. — An act to provide compensation for the managers of the Norfolk, Bristol and Plymouth Union
truant school.
Chapter 302. — An act relative to clerical assistance for the register of probate and insolvency for the county
of Norfolk.
Chapter 303. — An act relative to the expenditures of certain state institutions.
Chapter 313. — An act to authorize the temporary taking of water for emergency purposes by cities and towns.
Chapter 315. — An act relative to the sale of real estate by administrators.
Chapter 321. — An act relative to the packing, inspection and branding of fish.
Chapter 322. — An act relative to certain evidence in actions for libel or slander.
Chapter 327. — An act relative to the size of berry baskets.
Section 1 of Chapter 329. — An act relative to the compensation of official stenographers of the superior
court.
Chapter 332. — An act relative to the terms of office of city clerks.
Chapter 335. — An act to establish the salary of the second clerk of the secretary of the state board of agri-
culture.
Chapter 336. — An act to provide extra clerical assistance for the clerk of the central district court of Worcester.
Chapter 339. — An act relative to the removal, suspension or transfer of veterans of the civi? war in the public
service.
Chapter 340. — An act relative to the removal of prisoners from the state prison to the Massachusetts reform-
atory.
Chapter 341. — An act relative to the sale of articles of food and drink which contain antiseptic or preservative
substances.
Chapter 343. — An act to authorize the arrest of persons engaged in the business of collecting money who
unreasonably neglect to pay over the same.
Section 1 of Chapter 345. —An act to authorize cities and towns to indemnify the commonwealth against
damages sustained by reason of the construction of highways by the Massachusetts highway
commission.
Chapter 351. — An act to authorize the treasurer and receiver general of the commonwealth to receive and hold
moneys devoted to the perpetual care and maintenance of any cemetery in the commonwealth
not owned by a corporation, or of any lots therein.
Chapter 358. —An act relative to the imprisonment at the state prison of persons sentenced by the United States
courts.
Chapter 360. — An act relative to the sealing of glass bottles or jars used by milkmen.
Chapter 362. — An act to establish the salary of the clerk of the first district court of Bristol.
Chapter 364. — An act to establish a board of prison commissioners, and to regulate the appointment of officers
of the state prison and reformatories.
Chapter 366. — An act relative to the compensation of commissioners appointed by the supreme judicial court
and the superior court.
Chapter 368.— An act relative to the opening of railroads and railways for public use.
Chapter 369. — An act to provide for the appointment of a messenger for the pro'iate court and court of insol-
vency for the county of Middlesex.
1968 EXPRESS REPEAL LAWS OF 1901. [CHAP. 227.
Chapter 370. — An act relative to specifications to be furnished to persons employed in cotton, woolen and
worsted factories.
Chapter 371. — An act to prohibit the forging or counterfeiting of the tickets, mileage books or passes of rail-
road companies.
Chapter 372. — An act to establish the salary of the clerk of the municipal court of the Charlestown district of
the city of Boston.
Chapter 373. — An act to prohibit the sale or gift of cigarettes to persons under eighteen years of age.
Chapter 377. — An act relative to pensioning members of police departments in certain cities and towns.
Chapter 383. — An act relative to hours of business in registries of deeds.
Chapter 388. — An act to provide clerical assistance in the office of the treasurer of the county of Middlesex.
Chapter 389. — An act relative to restrictions upon the erection of electric light wires.
Chapter 391. — An act relative to the inspection and branding of the carcasses of animals slaughtered for human
food.
Chapter 392. — An act to establish the salary of the clerk of the fourth district court of eastern Middlesex.
Chapter 396. — An act relative to the labelling of certain articles of food and drink.
Chapter 398. — An act to provide for surveys and improvements for the preservation of harbors and for repair.
ing damages occasioned by storms along the coast line or river banks of the commonwealth.
Chapter 401. — An act relative to indexes in the registry of deeds for the county of Suffolk.
Chapter 402. — An act relative to the nomination and election of senators and members of state committees in
the Suffolk senatorial districts.
Chapter 404. — An act relative to the filling of vacancies in delegations to conventions in certain cases.
Chapter 405. — An act relative to the incorporation of charitable corporations or homes for the care and support
of minor children.
Chapter 408. — An act relative to imprisonment for non-payment of poll taxes.
Section 4 of Chapter 413. — An act to authorize the Wachusett mountain state reservation commission to
grant locations to street railway companies.
Chapter 414. — An act relative to the location of street railways on town roads which it is proposed to place
under the control of the Massachusetts highway commission.
Chapter 415. — An act to establish the salary of the clerk of the police court of Newburyport.
Chapter 416, except Section 3. — An act to give to the Massachusetts highway commission the management
and maintenance of all road machinery owned by the commonwealth, and to provide for the
use of such machinery by certain towns.
Chapter 418. — An act to establish the salary of the clerk of the police court of Lynn.
Chapter 422. — An act relative to fraternal beneficiary corporations.
Chapter 423. — An act relative to the sale of coke, charcoal and coal.
Chapter 424. — An act to establish a uniform poll tax.
Chapter 425. — An act to confer additional authority upon the deputy sealer of weights and measures of the
commonwealth.
Chapter 427. — An act to provide for the abatement of the smoke nuisance.
Chapter 428. — An act relative to the punishment of kidnapping and similar offences.
Chapter 433. — An act relative to the improvement by the Massachusetts highway commission of highways In
small towns.
Chapter 435. — An act relative to nomination papers.
Chapter 439. — An act relative to safety appliances on elevator cars.
Chapter 441. — An act relative to the transmission by certain officials to the election commissioners of Boston
of the names and residences of certain inmates of public institutions.
Chapter 449. — An act relative to clerical assistance in the office of the tax commissioner and commissioner of
corporations.
Chapter 452. —An act to provide penalties for wilfully obstructing the tracks of street railway companies and
for delaying the passing of cars thereon.
Chapter 457.— An act to establish the salary of the justice of the first district court of eastern Middlesex.
Chapter 459. — An act relative to wagering contracts in securities and commodities.
Chapter 461. — An act to postpone the time when an act revising the laws concerning the distribution of the
estates of deceased persons and the rights of surviving widows and husbands therein shall
take effect.
Chapter 463. — An act relative to the approval of bonds given to judges of probate courts.
Chapter 467, except Section 5. — An act relative to the registration of physicians and surgeons.
Section 1 of Chapter 469. — An act to transfer the powers and duties of the commission on the topographical
survey and map of Massachusetts to the board of harbor and land commissioners.
Chapter 470. — An act to authorize certain corporations to receive deposits to secure future or contingent
indebtedness, and to require the payment of interest upon such deposits.
Chapter 472. — An act to provide for the furnishing of free text-books and school supplies to the pupils of the
public schools.
Chapter 478. — An act to provide for the protection of traders.
Chapter 482.— An act relative to the election of town clerks and to their duties.
Chapter 485. — An act to establish the salaries of the judge and register of probate and insolvency for the
county of Nantucket.
Chapter 487. — An act to authorize members of fraternal beneficiary corporations to name as beneficiary any
home maintained and supported by any secret fraternity or order.
Chapter 495. — An act to authorize the secretary of the commonwealth to grant to disabled veterans of the
Spanish war special licenses as hawkers and pedlers.
Chapter 497. — An act to provide for the inspection of electric meters.
Section 1 of Chapter 499. — An act relative to the annual expenditures of the board of gas and electric light
commissioners.
Chap. 227.] express repeal — laws of 1901. 1969
Chapter 500. — An act to increase the salary of the assistant district attorney of the southeastern district.
Chapter 503. — An act relative to the construction and operation of street railways upon private land.
Chapter 510. — An act to establish the salary of the first assistant clerk of courts for the county of Essex.
Chapter 511. — An act to divide the commonwealth into districts for the choice of representatives in the con-
gress of the United States.
Chapter 512. — An act to give to the civil service commissioners additional authority in cases of violation of the
civil service acts and rules.
Chapter 519. — An act to establish the form of tax collector's deed.
Chapter 520. — An act relative to the custody of convicts under sentence of death.
Chapter 522. — An act further to define the duties of the board of registration in pharmacy.
Chapter 523. — An act to authorize the appointment without notice of temporary guardians of minors in certain
cases.
Chapter 527. — An act to provide for the punishment of persons who interfere with fire signal systems.
Chapter 531. — An act relative to the purchase of voting and counting machines by the city of Boston.
House of Representatives, November 21, 1901.
Passed to be enacted. JAMES J. MYERS, Speaker.
In Senate, November 21, 1901,
Passed to be enacted. RUFUS A. SOULE, President.
November 21, 1901.
Approved.
W. MURRAY CRANE.
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