TITLE II. OF ACTIONS AND PROCEEEDINGS THEREIN. CHAPTER 123.-Of the Commencement of Actions and Service of Process. CHAPTER 124.- Of Arrest, Imprisonment, and Discharge. CHAPTER 125. — Of Bail. CHAPTER 126.— Of Proceedings against Absent Defendants, and upon Insufficient Service. CHAPTER 127.- Of Actions which survive, and the Death and Disabilities of Parties. CHAPTER 128. — Of Actions by and against Executors and Administrators. CHAPTER 129.- Of Pleadings and Practice. CHAPTER 130.- Of Set-off and Tender. CHAPTER 131.-Of Witnesses and Evidence. CHAPTER 132.- Of Juries. CHAPTER 133. — Of Judgment and Execution. SECTION 44. Judgment intended in two preceding sections. 45. Attachment dissolved by death of defendant, unless, &c. 46. Proceedings in such case. 47. Officer liable only for net proceeds. 48. Creditor liable therefor, if paid over to him. 49. No set-off allowed in such case. ATTACHMENT OF REAL ESTATE AND LEASEHOLD ESTATES. 50. Attachment, how made. 51. Copy of writ and officer's return to be deposited in clerk's office. 52. Officer's duty and fees. 53. Clerk's duty and fees. 54. When such attachment takes effect. 55. Attachment of real estate fraudulently conveyed, &c. 56. Clerk to enter name of persons having legal title, &c. ATTACHMENT OF GOODS, &C., WHICH CANNOT BE REMOVED. 57, 58. Attachment of goods too bulky to be removed. ATTACHMENT OF SHARES IN CORPORATIONS. 59, 60. Shares in corporations, how to be attached. 61. Penalty on recording officer for refusal or false certificate. ATTACHMENT, &C., OF PERSONAL PROPERTY MORTGAGED OR PLEDGED. 62. Attachment of mortgaged goods. 63. Mortgagee to state amount due him, &c.; liability of creditor. 64. Penalty for demanding too much. 65. Debt to be repaid out of proceeds of sales. 66. Or by mortgagor. 67. Personal property mortgaged in debtor's possession may be attached, and mortgagee summoned as trustee. 68. Court to ascertain what is justly due, and creditor to pay same to mortgagee, or attachment void. 69. Validity of mortgage may be denied by creditor, and tried by jury. 70. Creditor to retain amount paid by him, &c. not recovering judgment, to hold property until repaid, &c. 71. SALE, BY CONSENT, OF PERSONAL PROPERTY ATTACHED. 72. Goods attached may be sold by consent. PERISHABLE PROPERTY ATTACHED. 73. Property attached if perishable, &c., may be appraised and sold. pledged. 90. To be restored on dissolution of attachment. 91. Return of officer; and proceedings in sait upon bond. ATTACHMENTS DISPUTED BY PERSONS HAYING SUBSEQUENT LIENS, &C. 92. Fraudulent attachments, how defeated. 93. Petition by the person objecting thereto. 94. to be supported by affidavit. 95. Prior attachment may be dissolved in case, &c. Questions of fact to be tried by jury. 96. Proceedings not affected by answer, &c., of defendant. 97. Grounds of defence in such case. 98. Damages and costs may be awarded. 99. Petitioner to give security for damages and costs. 100. Proceedings upon appeal. 101. Decision to bar action for fraud against prior attaching creditor. 102. To what cases applied. REDUCTION OF EXCESSIVE ATTACHMENTS. 103. Excessive attachments may be reduced on application to court. DISSOLUTION OF ATTACHMENTS BY GIVING BOND. 104, 105. Attachments dissolved by giving bond with sufficient sureties for payment of judgment. 106. Fees for approving bonds, &c. WHEN OFFICER TO ATTACH OR ARREST. 74. Proceedings upon application for appraise-107. Plaintiff may direct the service of writs by ment. attachment or arrest. Transitory ac be brought. R. S. 90, §§ 14, VENUE OF ACTIONS. SECT. 1. Transitory actions, except in cases in which it is otherwise tions, where to provided, if any one of the parties lives in the state, shall be brought in the county where some one of them lives or has his usual place of business; and if brought in any other county the writ shall abate, and the defendant shall be allowed double costs. If neither party lives in the state the action may be brought in any county. 15. 1856, 70. 4 Mass. 593. 21 Pick. 257. 3 Met. 209. Action concerning land in dif 6 Cush. 528. 10 Cush. 415. 6 Gray, 122. SECT. 2. Where a tract of land lies in different counties, any action concerning the same may be brought in either county, and the court may allow amendments to declarations so as to include the whole tract; this ferent counties, provision shall not apply if a county, the city of Boston, or one of the corporations enumerated in section five, is a party. &c. counties, where SECT. 3. Actions, whether local or transitory, against the inhabitants Actions against of a county, shall be brought either in the county where the plaintiff to be brought. lives or in the defendant county, or in a county adjoining thereto, at the R. S. 90, § 19. plaintiff's election. by counties. SECT. 4. Such actions by the inhabitants of a county shall be brought in the county in which the defendant lives, or in a county adjoining the R. S. 90, § 20. plaintiff county; and when the defendant lives in the plaintiff county it shall be brought in an adjoining county. SECT. 5. When a corporation, other than a county or the city of Boston, is a party to an action, it may be brought as follows, to wit: First. When both parties are cities or towns, school districts, or parishes; in the county in which either of the cities, towns, school districts, or parishes, is situated: Second. When it is between a city, town, school district, or parish, and a natural person; either in the county in which such city, town, school district, or parish, is situated, or in that in which the other party lives: Third. When one of the parties is a corporation of any other description than is before mentioned in this section; in any county in which such corporation has an established or usual place of business, or has held its last annual meeting, or usually holds its meetings; or if the other party is a natural person, in the county where such person lives. when certain R. S. 2010 9 Mass. 321. 6 Cush. 524. 5 Cush. 588. 98 man 95 by and against city of Boston. if brought in folk, may be re SECT. 6. Actions, suits, and prosecutions by and against the city of Boston may be brought in either of the counties of Suffolk, Essex, Middlesex, or Norfolk, or in the county where the plaintiff lives; but if brought by the city in the county of Suffolk, may be removed to one of the other of said counties, as provided in the following section. SECT. 7. The defendant or tenant, at the term at which his appearance is entered, may file a motion in writing for the removal of the county of Suf suit, and the court shall thereupon order it to be removed to the proper moved to anothcourt in such one of the other of said counties as the attorney of the R. S. 90, §§ 122, city of Boston elects. Said attorney shall enter the same accordingly in the court so designated, at the then next term, and file therein certified copies of the writ or other process and of the order of removal; and the proceedings shall be conducted in like manner as if the suit had been originally commenced in that county. er county. 123. R. s. act of where to be brought for re SECT. 8. Every civil action for the recovery of a forfeiture shall be brought in the county in which the offence was committed, unless a covery of fordifferent provision is made in the statute imposing the forfeiture. FORMS, ISSUING, AND RETURN, OF WRITS. feitures. Original writs Const. Ch. 6, SECT. 9. Civil actions, except those founded on scire facias or other special writs, shall be commenced by original writs, which shall be signed, sealed, and bear teste, as required by the constitution. SECT. 10. The original writ may be framed, either,To attach the goods or estate of the defendant, and for want thereof, thereof. to take his body; or, It may be an original summons, with or without an order to attach the goods or estate. R. S. 90, §3. ty SECT. 11. When goods or estates are attached on either of the Separate sumwrits before mentioned, there shall be a separate summons, to be mons, if properserved on the defendant after the attachment, and the service thereof R. S. 90, $4. shall be a sufficient service of the original summons. 13 Met. 375. SECT. 12. In actions against corporations, and in other cases in When writ and summons may be combined. R. S. 90, § 5. See Ch. 128, § 5. Writs in actions which goods and estate may be attached, but in which the defendant is not liable to arrest, the writ of attachment and original summons may be combined in one, requiring the officer to attach the goods and estate, and to summon the defendant. SECT. 13. Original writs in actions before justices of the peace shall before justices be signed by the justice before whom the action is brought, and shall be dated and filled up like the other writs before mentioned. of the peace. R. S. 90, § 7. R. S. 90, § 8. SECT. 14. The forms of writs in civil actions shall be the same as heretofore established by law and the usage and practice of the courts; but alterations may be made or allowed by the courts, when necessary to adapt them to changes in the law, or for other sufficient reasons. SECT. 15. All changes in the forms of writs shall be subject to the control of S. J. final control of the supreme judicial court; and said court may by general rules regulate such changes in all the courts. C. to be under R. S. 90, § 9. Proceedings Writs, how is- R. S. 90, § 118. 5 Pick. 360. SECT. 16. When the name of a defendant is not known to the plaintiff, the writ may be issued against him by a fictitious name, and if duly served, shall not be abated for that cause, but may be amended on such terms as the court deems reasonable. SECT. 17. Original writs in the supreme judicial court and all writs and processes in the superior court shall be signed and may be issued in term time or vacation by the clerk, may be returnable to the same court in any other county, may run into any county, and shall be executed and obeyed throughout the state. SECT. 18. The subpoena on bills in equity shall be issued from the clerk's office either in term time or vacation, upon a bill there filed, shall bear teste of the first justice of the court who is not a party to the suit, and shall be under the seal of the court and signed by the clerk. SECT. 19. Original writs issuing from the supreme judicial court, or superior court, if required to be served fourteen days before the return day, shall be made returnable at the court next to be held after the expiration of fourteen days from the date of the writ; and if required to be served thirty days before the return day, shall be made returnable at the court next to be held after the expiration of thirty days from the date of the writ: provided, that writs and processes of the supreme judicial court may be made returnable at any adjourned term, în like manner as at a term established by law. SECT. 20. Original writs, writs of audita querela, scire facias by private persons on judgment or recognizance, writs of error in civil cases, petitions for certiorari, and bills in equity, in which the plaintiff is not an inhabitant of the state, shall before the entry thereof be indorsed by some sufficient person who is such inhabitant; but if one of the plaintiffs is an inhabitant of the state the process need not be so indorsed. Every indorser, in case of avoidance or inability of the plaintiff, shall be liable to pay all costs awarded against the plaintiff, if the suit therefor is commenced within one year after the original judgment. 18 Pick. 226. 3 Met. 59. 8 Cush. 98. 11 Cush. 89. See Ch. 129, § 29. Original writs, when to be served. R. S. 85, § 8. R. S. 90, § 21. 1859, 196. 5 Met. 334. When,if against tions. SERVICE ON THE DEFENDANT. SECT. 21. Original writs issuing from the supreme judicial court, or superior court, shall be served fourteen days at least before the term at which they are returnable, and original writs issued by a police court or justice of the peace shall be served not less than seven and not more than sixty days before the day on which they are returnable. SECT. 22. When an action is brought against a county, city, town, tertain corpora precinct, parish, religious society, or school district, or against proprie tors of common and undivided lands, or general fields or wharves lying in common, the writ shall be served thirty days at least before the return day. R. S. 90, § 22. 5 Mass. 100. served. SECT. 23. When there is a separate summons to be served after an Summons, how attachment of goods or estate, it shall be served by delivering the sum- R. S. 90, § 39 mons to the defendant or leaving it for him as hereinafter directed; and 13 Met. 475. when there is an original summons without an attachment, it shall be served by reading it to the defendant, or by delivering to him a copy thereof attested by the officer who serves it, or by leaving such copy for him as hereinafter directed. SECT. 24. The separate summons may be served at any time after the attachment is made: provided, it is served the number of days at least before the return day required with respect to the service of the original writ, and the certificate of the service of the summons shall be indorsed on the original writ. same subject. R. S. 90, § 10. if no personal service is made. 5 Met. 400. Cush. 354. SECT. 25. If the summons is not served personally on the defendant, the original or a copy, as the case may be, shall be left at his last and R. S. 90, $5 41, usual place of abode if he has any within the state known to the officer, 45. and if he has none it shall be left with his tenant, agent, or attorney, if & he has any within the state known to the officer. If he has no such last and usual place of abode, and no tenant, agent, or attorney, no service on him shall be required, except as is provided in the three following sections. SECT. 26. If an absent defendant whose goods or estate are attached is sued with one or more others on a joint contract, and he has no such last and usual place of abode, and no tenant, agent, or attorney, within the state, the summons for him, or a copy, as the case may be, shall be left with one of the co-defendants, if there be any within the state. SECT. 27. In real actions, if the defendant or tenant in the action is out of the state and has no last and usual place of abode here known to the demandant, the summons or an attested copy shall, in addition to any other service required, be left for him with the tenant or occupant of the demanded premises if there is any, and if not, in some conspicuous place on the premises. SECT. 28. In all cases when the defendant is out of the state or his place of residence is not known to the officer, and no personal service is made on him, he shall, in addition to the service as herein prescribed, be entitled to further notice of the suit as provided in chapter one hundred and twenty-six. on absent de fendant, if co- defendant in the R. S. 90, § 46. 3 6 Cush. 354. certain corpora SECT. 29. In suits against a county the summons shall be served by Summons, how leaving an attested copy thereof with one of the county commissioners, to be served on or with one of the officers who by law exercise the powers of county tions. commissioners. In suits against a city, town, precinct, parish, religious R. S. 90, § 42. society, or school district, or against the proprietors of common and undivided lands, or general fields or wharves lying in common, the summons shall be served by leaving an attested copy thereof with the clerk of the corporation or proprietors, and another like copy with the mayor or one of the aldermen or one of the selectmen of the city or town, or one of the assessors or standing committee of the parish or religious society, or one of the proprietors of such land or other estate, as the case may be; and if there is no such clerk found within the county, the copy shall be left with one of the other officers before mentioned, or with one of said proprietors; and if there are no such officers, the copy shall be left with one of the inhabitants of the city or town or one of the members of the corporation. R. S. 90, § 43. SECT. 30. In suits against a corporation other than those mentioned how, on other in the preceding section, the summons shall be served by leaving the corporations. original or copy, as the case may be, with the clerk, cashier, secretary, agent, or any other officer having charge of its business; and if there is no such officer found within the county, the summons may be served on any member of the corporation. |