plaintiff, &c. SECT. 11. When there are several plaintiffs or defendants in a per- Death of joint sonal action the cause of which survives, and any of them die before R. S. 93, § 12. final judgment, the action shall proceed at the suit of the surviving 7 Greenl. 421. plaintiff, or against the surviving defendant, as the case may be. 4 Pick. 308. 7 Pick. 62. of all the SECT. 12. If in such case all the plaintiffs or all the defendants die, 9 Pick. 528. the action may be prosecuted or defended by or against the executor or plaintiffs or administrator of the last surviving plaintiff or defendant respectively, defendants. in like manner as if the survivor had been originally the only plaintiff 9 Pick. 532. or defendant. DEATH OF PARTIES IN REAL AND MIXED ACTIONS. ed actions dev see or heir may prosecute. 1852, 312, § 55. 10 Met. 294. Cush. 395. R. S. 93, § 14. SECT. 13. In real and mixed actions, if the demandant dies before In real and mixfinal judgment, his heir or devisee of the land demanded or of the right of action may, at the same term when the death is suggested, or within such further time as the court shall allow, appear and prosecute the suit in the same manner as if it had been originally commenced by him. And in case of a devise, if the first estate in possession under the devise is not a fee simple, the devisee of the first freehold estate in possession shall have the right to appear and prosecute, and the judgment if in his favor shall be conformed to his title. SECT. 14. If there are several demandants, and any of them die before final judgment, the heir or devisee of the deceased party shall be admitted, on motion, to prosecute the suit jointly with the survivors, in the same manner as if he had originally joined with them in commencing the suit. 12 Met. 501. jointly with survivor, if any. R. S. 93, § 15. 10 Mass. 180. 11 Mass. 56. or survivor alone. SECT. 15. If the interest of the deceased party passes to the surviving demandants, or if there is no motion for the admission of another may prosecute person as heir or devisee at the term when the death of the deceased R. S. 93, § 16. party is suggested, or within such further time as the court shall allow, the surviving demandants may prosecute the suit for so much of the premises in question as may then be claimed by them. when tenant SECT. 16. If the tenant dies before final judgment, his heir or devisee Proceedings of the land demanded, may at the term when the death is suggested, or dies. within such further time as the court shall allow, appear and take upon 1855, 364, §§ 1, 2. himself the defence of the suit, which shall thenceforth be conducted in the same manner as if it had been originally commenced against him. If the heir or devisee does not voluntarily appear, the demandant may take out a citation from the court before whom the cause is pending, requiring him to appear and take upon himself the defence of the suit. SECT. 17. When any of several tenants in a real or mixed action die before final judgment, the action may be prosecuted against the surviv- R. S. 93, § 17. ing tenants for so much of the premises as they hold or claim. when any of several dies. 2 Mass. 480. 2 Pick. 23. 19 Pick. 243. partition. R. S. 93, § 18. 2 Mass. 479. 10 Mass. 5. Except in certain cases. DEATH OF PARTIES IN PETITIONS FOR PARTITION, &C. SECT. 18. The same proceedings as are prescribed in the five pre- Same proceedceding sections shall be had in all petitions and actions for partition of inge in suits for lands, in case of the death of any of the parties, except as is provided in the two following sections. SECT. 19. If upon the death of either of several plaintiffs or petitioners in a suit for partition the interest of the deceased party passes to the surviving plaintiffs or petitioners, or to any person admitted to join them in the suit, it shall be prosecuted in the manner before provided respecting real actions; but if the interest of the deceased party passes to any person not so admitted as a plaintiff or petitioner, such person may by order of the court be made a defendant or respondent, and the same proceedings may be had against him as would have been necessary to make him an original defendant or respondent R. S. 93, § 19. Further excep- SECT. 20. If upon the death of either of several defendants or reR. S. 93, § 20. spondents the interest of the deceased party passes to the surviving defendants or respondents, the suit may proceed against them without any new process; but if the interest of the deceased party passes to any other person, that person may be made a defendant or respondent in the manner prescribed in the preceding section. If person hav ing right to ju ry, &c., dies, heirs, &c., may apply. Marriage of a 14 Mass. 295. DEATH OF PARTIES ENTITLED TO APPLY TO COUNTY COMMISSIONERS. SECT. 21. When a person having a right to apply to county commissioners for a jury to assess damages or to hear and determine any other matter, dies without so applying and within the time limited therefor, his executor, administrator, heir or devisee, if interested, may, within one year after his interest vests in him, make such application in the same manner, with the same effect, as if made by the deceased in his lifetime. MARRIAGE. SECT. 22. If an unmarried woman who is a party to a suit either alone or with others marries before final judgment, she may continue to prosecute or defend the suit in like manner as if she were sole, and her husband need not be admitted as a party thereto. Insanity of a R. S. 93, § 22. 13 Mass. 412. fallen 311 Death or re lic officer, &c. R. S. 13, § 24. INSANITY. SECT. 23. If during the pendency of an action or suit either party becomes insane, the action may be prosecuted or defended by his guardian in like manner as if it had been commenced after the appointment of the guardian, or the court may appoint a guardian for the suit, as the case may require. DEATH OR REMOVAL OF A PUBLIC OFFICER, &C. SECT. 24. An action on a note, bond, contract, or other liability made moval of a pub to or with the treasurer of the commonwealth, or of a county, city, town, parish, or other corporation, or to or with any other public officer, or trustee appointed under a statute, may after his removal, resignation, or death, be commenced or if before commenced, may be prosecuted by his successor as it might have been by the person with whom the contract was made. R. S. 100, § 25. 12 Mass. 575. 6 Cush. 230. tor, &c. SECTION 1. All actions which would have survived if commenced What actions by or against the original party in his lifetime, may be commenced and against execuprosecuted by and against his executors and administrators. SECT. 2. When an action of tort is commenced or prosecuted against Damages recov the executor or administrator of the person originally liable, the plain- erable in tort tiff shall be entitled to recover only for the value of the goods taken, or tor, &c. for the damage actually sustained, without any vindictive or exemplary 12, 312. damages, or damages for any alleged outrage to the feelings of the 4 Pick. 218. injured party. against execu R. S. 93, § 9. R. S. 93, § 10. SECT. 3. When the executor or administrator of a trustee, carrier, Recovery by depositary, or other person, who claimed only a special property in in right of angoods to hold them for the use and benefit of another, recovers such other. goods or damages for the taking or detention thereof in an action of 1852, 312. replevin or tort, the goods or money recovered shall not be considered as assets in his hands, but shall after deducting the costs and expenses of the suit be paid over and delivered to the person for whose use and benefit they were so held or claimed by the deceased person. SECT. 4. When judgment for a return in an action of replevin is Goods returned rendered against an executor or administrator, the goods returned by executor, &c., on replevin by him shall not be considered as assets in his hands; and if they have not to be assets. been included in the inventory, it shall be a sufficient discharge for the R. S. 93, § 11. executor or administrator to show that they have been returned in pursuance of such judgment. executors, &c., SECT. 5. Writs of attachment and executions against executors or Writs against administrators for debts due from the deceased testator or intestate, how to run. shall run only against the goods and estate of the deceased in their R. S. 110, § 1. hands, and not against their bodies, goods, or estate. SECT. 6. When a judgment for costs is rendered against an executor Executor, &c., or administrator in an action commenced by or against him, or in an ly liable for when personalaction commenced by or against the testator or intestate, wherein the costs. executor or administrator has appeared and taken upon himself the pros- 16 Mass. 530. ecution or defence, he shall be personally liable for the costs. R. S. 110, § 2. such case. SECT. 7. When judgment is recovered against an executor or admin- Execution in istrator for costs only, the execution shall be awarded against his body, R. S. 110, §3. goods, and estate, as if it were for his own debt. SECT. 8. When the judgment is for debt or damages, and costs, an execution for the debt or damages shall be awarded against the goods and estate of the deceased in the hands of the executor or administrator, and another execution for the costs, against the goods, estate, and body, of the executor or administrator, as if it were for his own debt. Same subject. R. S. 110, § 4. &c. SECT. 9. Costs paid by executors or administrators, and for which Costs to be althey are made personally liable, shall be allowed in their administration lowed to them, accounts, unless the probate court decides that the suit was prosecuted R. S. 110, § 5. or defended without reasonable cause. waste. SECT. 10. When an execution against an executor or administrator Scire facias for a debt due from the estate of the deceased is returned unsatisfied, tor, &c., on sugagainst executhe creditor may upon a suggestion of waste sue out a scire facias gestion of against the executor or administrator. If the defendant does not appear R. S. 110, § 6. and show sufficient cause to the contrary, he shall be deemed guilty See Ch. 120, § 3. of waste, and shall be personally liable for the amount thereof, when it can be ascertained, otherwise for the amount due on the original judgment, with interest from the time when it was rendered; and judgment and execution shall be awarded as for his own debt. SECT. 11. When an executor or administrator dies or is removed from office during the pendency of a suit in which he is a party, the suit may be prosecuted by or against the administrator de bonis non in like manner as if it had been originally commenced by or against such last administrator. Death of execu- ing suit. 4 Mass. 611,613. Proceedings in R. S. 110, § 8. Death of execujudgment. R. S. 110, § 9. SECT. 12. The proceedings in such case, with respect to the appearance of the administrator de bonis non, whether voluntarily or upon a citation, and with respect to his nonsuit or default if he does not appear, shall be conducted in the manner prescribed in chapter one hundred and twenty-seven upon occasion of the death of either party during the pendency of a suit. SECT. 13. If an executor or administrator dies or is removed after tor, &c., after judgment is rendered either for or against him, a scire facias may be sued out either by or against the administrator de bonis non, and a new execution may be issued in like manner as it may be done by or against an original executor or administrator, in case of the death of his testator or intestate after a judgment rendered for or against him; except that a judgment against the first executor or administrator for costs for which he was personally liable, shall be enforced only against his executor or administrator, and not against the administrator de bonis non. Writ of error in such case. R. S. 110, § 10. SECT. 14. When a judgment is rendered for or against an executor or administrator, a writ of error may be brought thereon by or against 4 Mass. 611, 613. an administrator de bonis non in like manner as it might have been brought by or against the executor or administrator who was party to the judgment. SECTION CHAPTER 129. OF PLEADINGS AND PRACTICE. PLEADINGS. Forms at Law. 1. Forms of actions. Declarations, fc. 2. Forms of declaring at law. Substantial 3. In real actions on mortgage, &c. 4. Declarations, &c., where persons are sever- 5. Mode of referring to statutes. 6. Plaintiff's close to be described in tort, &c. 8. Declaration to be filed first day of court. 10. Bill of particulars, when required. 11. Demurrer. Demurrers. 12. causes of, specified. Certificate. Answers, Replications, fc. 13. Answer in abatement, &c. 14. When answer in abatement overruled. 15. Special pleas in bar abolished, and general issue, except, &c. 16. Joint answer. SECTION 17. Substantive facts denied, &c. 18. Answers and denials, when and how made. 19. Must declare whether whole or part is denied. 20. Each substantive fact relied on to be clearly 21. Written instruments set out, &c. 24. Further pleading, demurrer, &c. Joinder 25. Facts occurring since suit. Supplemental declaration, &c. 50. Officers of corporation may be examined. 55. Costs, when answer irrelevant, &c. 57. Court may allow interrogatories filed, dur- SECTION Hearing, Trial, Evidence. 64. Demurrers, how heard, determined, &c. &c. 66. Jury trial may be waived, and cause heard 67. Exceptions. New trial. Review. 68, 69. Trials not to be delayed or postponed, 70. Local action in wrong county, court may 71. Counts not proved, &c., may be stricken out. 73. Offer of judgment not accepted, not evi- 74. Answers to interrogatories may be read at 75. One matter in answer not evidence of an- 76. Justification in slander not proof of malice. 78. In action on judgment by default, court Arrest of Judgment. 79. No arrest of judgment for cause before ver- General Provisions. 80. Suggestions entered on record. 83. Affidavits. When corporation is a party. 85. Specified sections to apply to civil actions 86. Interrogatories in actions before police Forms. 87. Forms authorized. May be altered by [* applies to civil actions before justices of the peace and police courts. See § 85. PLEADINGS. tions. 1852, 312, § 1. *SECTION 1. There shall be only three divisions of personal actions: Forms of acFirst. Actions of contract, which shall include those heretofore known as actions of assumpsit, covenant, and debt, except for penalties. Second. Actions of tort, which shall include those heretofore known as actions of trespass, trespass on the case, trover, and all actions for penalties. Third. Actions of replevin. Declarations, &c. *SECT. 2. The form of declaring in personal actions shall be accord- Form of deing to the following particulars: First. The action shall be named in conformity with the divisions specified in section one. claring at law. 1852, 312, § 2. Second. No averment need be made which the law does not require 5 Gray, 22, 543. to be proved. Substantial Third. The substantive facts necessary to constitute the cause of facts only re action may be stated with substantial certainty, and without unneces- quired. sary verbiage. |