he accused the plaintiff of the crime of perjury as set forth in the plaintiff's first Forms of count. And as to the second count, he says the plaintiff did feloniously steal, take, and carry away, ten dollars, the property of one S. T., in the possession of said S. T. being found, and converted the same to his own use, and so the plaintiff was guilty of the crime of theft, and the defendant's accusation was true. Assault and Battery. And the defendant comes and says the plaintiff first assaulted him, and he only defended himself. And the defendant comes and says the plaintiff was his apprentice, and deserted and ran away from him, and he retook the plaintiff and forcibly brought him back, using no more force than was necessary. And as to the allegation that the defendant hurt and wounded the plaintiff, the defendant upon his personal knowledge denies the same. Trespass quare Clausum. And the defendant comes and says that a part of the close mentioned in the plaintiff's writ was the soil and freehold of the defendant, the same being described as follows, &c. : Upon his own knowledge he denies that he broke or entered any part of said close, except the part above described. Limitations. And the plaintiff replies as follows, viz.: He says that within six years before the suing out of his writ the defendant executed a writing, a copy whereof is hereto annexed, by which he acknowledged said debt, and agreed to pay the same. He further says the defendant has been absent from this commonwealth for the space of three years last past. Minority. And the plaintiff replies that he is ignorant of the fact, so that he can neither admit nor deny that the defendant was a minor, as stated in his answer, but leaves the defendant to prove the same. He further says the articles mentioned in his bill of particulars were necessaries for the defendant, and suitable to his estate and degree. answers. Replications. SECTION 1. When there are mutual debts or demands between the Mutual deplaintiff and defendant in an action, one demand may be set off against R. S. 96, § 1. mands, &c. the other, as provided in this chapter. 9 Met. 39, 367. 11 Met. 136. 13 Met. 132, 134. 6 Met. 7. SECT. 2. No demand shall be set off unless it is founded upon a Description of judgment or upon a contract, but the contract may be either express or implied, and with or without a seal. 9 Met. 367. SECT. 3. No demand shall be set off unless it is for the price of real or personal estate sold, or for money paid, money had and received, or demands to be demon R. S. 96, § 2. Same subject. 17 Mass. 66. R. S. 96, § 3. Pick. 63. 5 Pick. 312. 4 Met. 430. Same subject, R. S. 96, § 4. for services done, or unless it is for a sum that is liquidated, or one that may be ascertained by calculation. 6 Met. 7. SECT. 4. No demand shall be set off unless it existed at the time 3 Met. 39, 367, of the commencement of the suit, and then belonged to the defendant, nor unless it is due to him in his own right, except as is hereinafter provided. 509. 13 Met. 132. 7 Gray, 170. Set-off of de R. S. 96, § 5. SECT. 5. Any demand assigned to the defendant with notice to mands assigned the plaintiff of the assignment before the commencement of the action, may be set off in like manner as if it had been originally payable to the defendant. 11 Met. 136. 3 Gray, 501. a SECT. 6. If the demand set off is founded on a bond or other contract having a penalty, no more shall be set off than the sum equi tably due. SECT. 7. The set-off shall be allowed in all actions founded upon demands which could themselves be the subject of set-off according to law, and in no others. SECT. 8. If there are several plaintiffs, the demand set off shall be due from all of them jointly; and if there are several defendants, the demand set off shall be due to all of them jointly, except as is provided in the following section. SECT. 9. When the person with whom any contract is made has a dormant partner, and a suit is brought on such contract by or against the partners jointly, any demand due to or from the person with whom the contract was made, may be set off in like manner as if such dormant partner had not been joined in the suit. SECT. 10. If the demand on which the action is brought has been assigned, and the defendant had notice of the assignment, he shall not set off any demand that he acquires against the original creditor after such notice. SECT. 11. When an action is brought by one person in trust or for the use or benefit of another, the defendant may set off any demand against the person for whose use or benefit the action is brought, in like manner as if that person were the plaintiff in the suit. SECT. 12. In actions by executors and administrators, demands against their testators or intestates which belonged to the defendant at the time of their death, may be set off in the same manner as if the action had been brought by the deceased. 9 Pick. 37. 4 Gray, 286. 7 Gray, 170. SECT. 13. When upon such a set-off against an executor or adminis trator, a balance is found due to the defendant, the judgment therefor against the plaintiff shall be in the same form and have the same effect as if the suit had been originally commenced by the defendant. SECT. 14. In actions against executors and administrators and against trustees and others, sued in their representative character, the defendants may set off demands belonging to their testators or intestates or those whom they represent, in the same manner as the persons represented would have been entitled to set off the same in an action against themselves. SECT. 15. In suits brought by or against executors, administrators, or trustees, in their representative character, no demand shall be set off that is due to or from such executors, administrators, or trustees, in their own right. SECT. 16. When the defendant relies on a claim by way of set-off, he shall file with his answer a declaration, entitling it a declaration in. set-off, and adapted to the claim in like manner as though an action were brought upon it. SECT. 17. The subsequent allegations and pleadings respecting the defendant's demand shall be governed by the same rules as if an action Gray, 200. 1852, 312, § 37. 7 Gray, 194. had been brought thereon; and the plaintiff shall be entitled to every R. S. 96, § 19. Sen 19 192 R. S. 96, § 20. // allen 103. when demand SECT. 19. If an amount is proved to be due on the set-off equal to Judgment, the amount due to the plaintiff, the court may award costs to either in set-off is party or dismiss the action without costs; and if the amount so proved equal, &c. is less than the sum due to the plaintiff, he shall have judgment for the balance. SECT. 20. If it appears that there is a balance due from the plaintiff to the defendant, judgment shall be rendered for the defendant for the amount thereof with his costs; but no such judgment shall be rendered against the plaintiff when the demand for which the action is brought was assigned before the commencement of the suit, nor for any balance due from any other person than the plaintiff. R. S. 96, § 21. 4 Gray, 511. R. S. 96, § 24. 10 Cush. 313. Set-off in suits before a justice of the peace, &c. R. S. 96, § 23. 1859, 190. SECT. 21. After a declaration in set-off is filed, the plaintiff shall not Plaintiff not to be allowed to discontinue his action, unless by consent of the defendant. discontinue. SECT. 22. In actions before a justice of the peace, or police court, the defendant shall file his declaration in set-off at the time when the action is entered, or within such further time as the justice or court for special reasons may allow. All the other proceedings shall be the same as are before prescribed with respect to actions in other courts: provided, that judgment for the defendant shall not be entered for more than one hundred dollars, or for more than three hundred dollars in the police court of Boston, exclusive of costs. TENDER. day, &c. SECT. 23. The payment or tender of payment of the whole sum due Payment or on any contract for the payment of money, although made after the tender after money has become due and payable, may be alleged in an answer to an R. S. 100, § 14. action subsequently brought, in like manner and with the like effect as 'if such payment or tender had been made at the time prescribed in the contract. SECT. 24. A tender may also be made after an action is brought on such contract, of the whole sum due thereon with the legal costs of suit incurred up to that time: provided, it is made four days at least before the return day of the original writ. 1519035528 Tender after ac- R. S. 100, § 15. how to be made, and deR. S. 100, § 16. fence. SECT. 25. The tender last mentioned may be made either to the plaintiff or to his attorney in the suit, and if not accepted the defend- ant may avail himself of it in defence in like manner as if it had been made before the commencement of the action, bringing into court the amount so tendered for costs, as well as for the debt or damages. SECT. 26. If such tender is accepted, the plaintiff or his attorney Proceedings shall, at the request of the defendant, sign a certificate or notice thereof when tender is to the officer who has the writ, and deliver it to the defendant; and if R. S. 100, § 17. any further costs are incurred for any service made by the officer after the tender and before he receives notice thereof, the defendant shall pay the same to the officer, or the tender shall be invalid. accepted. summons for, by whom served. fees to be tendered to. liability of, for not attending. further liability of. may be brought in on warrant. 8, 9. Mode of administering oaths. 10, 11. Who may affirm. 12. Persons other than Christians, how sworn. 14. Parties in civil suits may testify, except, 15. Witnesses to wills. 16. When wife may testify. DEPOSITIONS. 17, 18. Depositions, when taken, &c. 19. Notice to be given to adverse party. 20. how to be served. 23, 24. Deponent, how sworn and examined. 27. Deposition to be transmitted to court, &c. 30. Deposition, when may be used in another 31. Courts may make rules concerning deposi- 32. Deponent may be compelled to testify. 34. Depositions, how taken out of state. 38. Depositions may be taken for courts in DEPOSITION TO PERPETUATE TESTIMONY. SECTION 39. Depositions to perpetuate evidence, how taken. 40. Notice to be given to all persons interested. 41. Depositions to perpetuate testimony not to be taken when objections are made, except, &c. 42. mode of taking. Certificate to be an nexed. 43. 44. to be recorded in registry of deeds. in what cases used. 45. Deponent may be summoned and compelled 46. Such depositions may be taken out of state. 50. Deposition, how taken and returned. 52. S. J. C. may make rules concerning such 53. Such depositions when to be used. 55, 56. Proceedings therefor. 57. Such depositions to be recorded in registry of deeds. Witnesses, by whom summonses for WITNESSES. SECTION 1. Every clerk of a court of record, and every justice of the peace, may issue summonses for witnesses in all civil cases pending may be issued. before any court, magistrates, auditors, referees, arbitrators, or other persons authorized to examine witnesses; and the summons shall be in the form heretofore adopted and commonly used, but may be altered from time to time like other writs. 1784, 28. R. S. 85, § 38. summons for, by whom served. R. S. 94, § 2. fees to be tendered to. R. S. 94, §3. 4 Cush. 249. liability of, SECT. 2. Such summons may be served by any officer qualified to serve a civil process or by a disinterested person, by exhibiting and reading it to the witness, or by giving him a copy thereof, or leaving such copy at the place of his abode. SECT. 3. No person shall be obliged to attend as a witness, unless the fees allowed by law for one day's attendance, and for travelling to and returning from the place where he is required to attend, are paid or tendered to him. SECT. 4. If a person duly summoned and obliged to attend as a wit ing. ness, fails so to do without a reasonable excuse, he shall be liable to the for not attendaggrieved party for all damages occasioned by such failure, to be recov- Rs. 94, § 4. ered in an action of tort. SECT. 5. Such failure to attend as a witness before any court, justice of the peace, master in chancery, or the county commissioners, or before an auditor appointed by the supreme judicial or superior court, shall also be considered a contempt of the court, and may be punished by a fine not exceeding twenty dollars. persons SECT. 6. The court, justice, master in chancery, county commissioners, or auditor, in such case, may issue a warrant to bring such witness before them to answer for the contempt, and also to testify as a witness in the cause in which he was summoned. 1858, 93, §§ 2, 3. SECT. 7. Arbitrators, referees, and auditors, appointed according to law, may administer oaths or affirmations to all offered as witnesses before them. SECT. 8. The usual mode of administering oaths now practised in this state, with the ceremony of holding up the hand, shall be observed in all cases in which an oath may be administered by law, except as is hereinafter provided. SECT. 9. When the court or magistrate before whom a person is to be sworn, is satisfied that such person has any peculiar mode of swearing which is in his opinion more solemn or obligatory than holding up the hand, they may adopt that mode of administering the oath. 4 Cush. 249. Witnesses, fur- R. S. 94, § 5. 1856, 284, § 9. may be brought in on R. S. 94, §6. warrant. 1838, 42. Mode of admin- R. S. 94, firm. SECT. 10. Every Quaker when called on to take an oath shall be who may afpermitted, instead of swearing, solemnly and sincerely to affirm under RS. 94, § 9. the pains and penalties of perjury. Same subject. R. S. 94, § 10. 2 3 Gallis, 364. SECT. 11. Every person who declares that he has conscientious scruples against taking any oath, shall, when called upon for that purpose, be permitted to affirm in the manner prescribed for Quakers, if the court or magistrate on inquiry is satisfied of the truth of such declaration. SECT. 12. Every person believing in any other than the Christian Persons other religion, may be sworn according to the peculiar ceremonies of his reli- than Christians, gion, if there are any such. Every person not a believer in any religion R. S. 94, § 11. shall be required to testify truly under the pains and penalties of perjury; and the evidence of such person's disbelief in the existence of God may be received to affect his credibility as a witness. 10 Cush. 321. be how sworn, &c. excluded by crime, &c. 17 Mass. 537, 9 Pick. 512. suits may tes 1857, 305, §1. 1859, 230, §2. 5 Gray, 440. 7 Gray, 82. 30741954 11 allen 22 1864 che 212 1867 SECT. 13. No person shall be excluded by reason of crime or interest Witnesses not from giving evidence as a witness either in person or by deposition in any proceeding civil or criminal in court or before a person having authority to receive evidence. But the conviction of any crime may shown to affect the credibility of a witness. 11 Cush. 253. 2 Gray, 562. SECT. 14. Parties in civil actions and proceedings, including probate Parties in civil and insolvency proceedings, suits in equity, and divorce suits, (except tify, except, those in which a divorce is sought on the ground of alleged adultery of 1851, 255, §3. either party,) shall be admitted as competent witnesses for themselves or any other party; and in any such case in which the wife is a party or one of the parties, she and her husband shall be competent witnesses for and against each other, but they shall not be allowed to testify as to private conversations with each other: provided, that where one of the / original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor; and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will, or the appointment of the administrator. 85 141 15 16 5 |