ing possession of the goods; or, if the goods have been replevied, CHAP. 114. and the officer, who made the original attachment, is dead, such copy shall be left with the plaintiff in replevin, or his executors or administrators; and the attachment shall be considered as made, when such copy is delivered, in either of the modes before described. tach goods re SECT. 82. Goods, that have been taken by replevin from an Limitation of attaching officer, shall not be further attached as the property of the right to atthe original defendant, in any other manner than that provided in plevied. the four preceding sections, so long as they are held by the person who replevied them, or by any one holding under him; unless the original defendant shall have acquired a new title to the goods. SECT. 83. When any estate, or goods and chattels, are attached, Attachment not and the debtor dies, before they are taken in execution, the attach- dissolved by defendant's death, ment shall remain in full force, in like manner as if the defendant unless his eswere alive, unless the estate of the deceased shall be represented vent. by the executors or administrators of the deceased as insolvent; 1821, 60, § 32. and a commission of insolvency shall thereupon issue within one year, next after the defendant's death. 7 Mass. 254. 9 Mass. 209. 1 Greenl. 333. Officer to per under attach SECT. 84. After the decease of any defendant, and before the issuing of any commission of insolvency, as mentioned in the pre- mit the appraisceding section, the executor or administrator on the estate of the erty of a dedeceased may demand of the officer, who made the attachment of ceased person such estate or goods and chattels, a certified copy of the return of ment. said attachment, and a description of such property, so particular as to enable such executor or administrator to describe the same in the inventory of the estate, subject to such attachment, so far as is before mentioned; and the appraisers may also demand of such officer a view of such goods and chattels, so that they may know their value and, if such officer shall refuse or neglect to comply with either of such demands, he shall forfeit and pay, to such executor or administrator, a sum not exceeding thirty, nor less than ten dollars. issue, officer to SECT. 85. When a commission of insolvency shall have been If commission issued, within one year from the death of the debtor, and such of insolvency attachment thereby dissolved, the officer, on demand, shall restore return the the goods and chattels attached, to such executor or administrator, property. to be administered according to law, on payment of his legal fees and charges of keeping the goods. shall account SECT. 86. If, before any demand made on the officer as above if he have sold provided, he shall have sold the goods and chattels, attached by the property, he him as aforesaid, upon execution, or any other chattel interest, or for the proright of redemption, he shall not be deemed a trespasser in so doing, ceeds. but shall be liable only for the proceeds of the sale, after deducting his legal fees, and charges for keeping the goods; and such proceeds may be recovered by the executor or administrator, in an action for money had and received. SECT. 87. If such officer shall have paid over the proceeds to If paid to the the judgment creditor, before such demand, the executor or admin- creditor, he istrator may recover such sum from the creditor, by a similar action for money had and received. SECT. 88. In an action founded on either of the preceding sec- Set off not altions, the defendant shall not be allowed, in any manner, to set off lowed, in a action for re CHAP. 114. any demand, that he may have against the executor or administrator, covery of such or against the estate of the deceased. proceeds. Any action by an officer to re cover attached property shall not abate by his death. Money recovered in such suit, not to be assets. Proceedings, if judgment be for defendant. Attachment dissolved, by reference of the SECT. 89. When an action of replevin, trover or trespass shall be brought by an officer against any person, for taking away from his possession any goods or chattels by him attached, such action shall not abate by the death of either of the parties; but may be prosecuted by or against the executors or administrators of the deceased party, in like manner as in actions on contract. SECT. 90. If, in such action, judgment should be recovered by the plaintiff, the goods or money recovered shall be held and appropriated, and disposed of, in the same manner, as they would, and ought to have been, by the officer, if he had lived and recovered the same himself. SECT. 91. If judgment be rendered against the executor or administrator, the goods, and damages recovered, shall be returned, delivered and paid, in full, by the executor or administrator, though the estate of the deceased be insolvent. SECT. 92. Whenever an attachment of real or personal property shall be made, and afterwards the parties in the action, by a action and of all rule of court, submit the same action, and all other demands which 4 Greenl. 277. they may have on each other, to the decision of referees, and judg ment be rendered on their report, such submission and proceeding shall dissolve the attachment. demands. Also, by an a creasing the claim in the SECT. 93. If, by consent of parties, the declaration is amended, mendment, in- so as to embrace a larger demand than it originally contained, and judgment be thereon rendered for the plaintiff, the attachment made on the mesne process shall be thereby dissolved, unless it shall appear by the record, that no claim was allowed to the plaintiff, except those stated in the writ. suit. 7 Greenl. 348. Definition of, "final judgment," in an action. How bail shall 1821, 67, § 1. What bail an officer must take. 9 Mass. 479. 12 Mass. 127. 13 Mass. 187. 2 Greenl. 46. In what cases SECT. 94. The final judgment, mentioned in the thirty fifth and thirty sixth sections, shall be construed to be, that which is rendered in the original action, and not such as may be rendered on review or a writ of error. ARTICLE IV. OF ARRESTS, AND BAIL IN CIVIL ACTIONS. SECT. 95. When bail is taken on mesne process, it shall be by bond to the sheriff, if the process be served by him, or his deputy, otherwise to the officer making the arrest, with condition, that the defendant shall appear and answer to the suit, and that he will abide the final judgment thereon, and not avoid. SECT. 96. No officer shall be obliged to accept a bail bond, unless signed by two sureties, at least, having sufficient property in the county in which the principal is arrested, or held in custody; and, if he shall take a bail bond, with only one surety, he shall be liable to the plaintiff for any deficiency of the bail, though the surety was, at the time he was taken, actually sufficient. SECT. 97. A bail bond shall bind the obligors, though signed by only one surety, or when signed by two or more sureties, when all or any of them had not sufficient property in the county. SECT. 98. The bail bond taken shall be returned with the writ, turned with the and the clerk shall note upon the writ, that a bond is so filed. Bond to be re writ. 1821, 67, § 1. fore court. 1821, 67, § 1. 16 Mass. 218. 1831, 522. SECT. 99. Any person, who has become bail for another, may, CHAP. 114. before the action is entered in court, exonerate himself from all Surrender of liability by surrendering his principal to the common jail in the principal becounty, where the arrest was made, or in the county where the writ is made returnable, leaving with the jailer of such county, within fifteen days after such commitment, an attested copy of the writ or process, whereby the arrest was made, and of the return indorsed thereon, and of the bail bond; and such jailer shall receive the person into his custody, in the same manner as if the officer, who made the arrest, had committed him; and provided, that such bail should have notified, in writing, the plaintiff or his attorney, of the time when, and place where the principal has been committed, within fifteen days after such commitment. arrest on fourth SECT. 100. In all cases of bond, given by a person, charged as Surrender of the father of a bastard child, the sureties shall have the same power pil, in a basprincipal by to surrender the principal, at any time, as well before entry of the tardy process. prosecution, as after, as the bail in civil actions have; and there- 1836, 210, § 2. upon entitle themselves to be discharged from their liability. SECT. 101. No person shall be arrested, in any civil action, on mesne process or execution, or on any warrant of distress for taxes, on the fourth day of July, or on the day of the annual fast or thanksgiving. SECT. 102. On the day of any military training, inspection, review or election, no officer, whose duty it may be to attend, and no soldier, who is enrolled as such, liable to do military duty, and shall have been duly notified to attend on said days, shall be arrested on mesne process or execution, or for taxes as aforesaid. SECT. 103. No elector shall be arrested, except for treason, felony, or breach of the peace, on the days of election of United States, state and town officers. ARTICLE V. LORD'S DAYS. Freedom from of July, and on fast and thanksgiving days. 1836, 232, § 1. Freedom of officers and solrest on training 1836, 232, § 2. diers from ar days. 16 Maine, 132. Freedom of e lectors from ar- 2. 8 Greenl. 187. ed on Lord's days. SECT. 104. No person shall serve or execute any civil process, Civil process from midnight preceding, to midnight following the Lord's day; but not to be servsuch service shall be void, and the person, executing such process, shall be liable in damages to the party aggrieved, in like manner, as if he had not had any such process. 15 Pick. 465. 1821, 9, § 9. CHAPTER 115. OF PROCEEDINGS IN CIVIL ACTIONS IN COURT. SECT. 1. Time of entry. Provision, if the SECT. 5. Bond to be given, if absent de court be not held. 2. Default of defendant, if he fail to 3, 4. Proceedings, if defendant were fendant be defaulted, not having 6. Bond to be left with the clerk. 7. Right of review in one year, in 8. Review after a year in certain cases. CHAP. 115. SECT. 9. No process to abate for circum- SECT. 40. What may be set off, in actions stantial errors. 10. Amendment of such defects. 11. Amendment, if too many defendants have been sued. 12. Amendment, by adding more defendants, and service on them. 13. Distinction between trespass and case abolished. 14. Treasurers may bring actions in their own names. 15. Assignment of breaches, in actions on bonds. 16. Actions for breach of certain cov enants in deeds, how commenced. 17. Grantee, after conveyance to a third person, not to release the covenants of his grantor. 18. Defendant may plead specially, or general issue with a brief statement. Counter brief statement. 19. Justification in a suit for a libel. 20. Demurrer and joinder. 21. Actions for penalties. 22. Defendant may consent to be defaulted for a specified sum. Effect thereof. 23. In case of decease of a joint promissor, the contract may be sued as several. SET OFF. 24. Mutual demands may be set off. 25. Time of filing set off. Notice to the plaintiff. 26. Demand in set off, how described. 27. Must be founded on judgment or contract. 28. What demands may be set off. 29. Must have been originally payable to defendant. Exception. 30. Case, in which a demand assigned to defendant may be set off, 31. Amount equitably due on a bond may be set off. 32. In what actions, set offs may be filed. 33. Set offs, where there are several plaintiffs or defendants. 34. Set off, where there is a dormant partner. 35. If plaintiff's demand has been assigned, what may be set off. 36. If action is brought by one person, in trust for another, what may be set off. 37. What may be set off in actions brought by administrators. 38. Recovery of balance due to the defendant in such case. 39. If the estate be insolvent, judgment not to be rendered therefor. against administrators. 41. In actions by administrators and others in trust, their own proper debts shall not be set off. 42. Issue in cases of set off. 43. Plaintiff's defence against such set off. 44. Statute of limitations applicable to set offs. 45. No costs, if nothing be due to either party, 46. Judgment, and costs, if balance be found due to the defendant. 47. Set offs before municipal and police courts and justices. 48. Plaintiff not to discontinue, after set off is filed. AUDITORS. 49. Court may appoint auditors in certain cases. 50. Auditors to notify parties. 51. Majority may decide, after hearing by all. 52. Witnesses may be compelled to appear. 53. Discharge of auditors. 54. Report may be read in evidence. 55. Compensation. 56. Costs to prevailing party. 57. Proceedings in actions of account. JURIES. 58. Arrangement and empanneling of jurors. 49. Supernumeraries. Transferring or excusing jurors. 60. Oath of traverse jurors. 61. Choice of foreman. 62. Talesmen. 63. How returned. 64. New jurors may be summoned in term time, in certain cases. 65. Challenge of jurors. 66. Manner of finding verdicts. 67. Proceedings if jury do not agree. 68. What interest will not disqualify a juror. 69. Objection to a juror, when to be made. 70. Irregularities in constituting ju ries, not to affect a verdict. WITNESSES. 71. Who may issue summonses for witnesses. 72. Competency, how far affected by religious belief. 73. Manner of administering oaths. 74. Persons, conscientiously scrupulous, may affirm. SECT. 75. Members of certain corporations | SECT. 97. Costs for travel of a corporation. CHAP. 115. competent witnesses, where such corporations are interested. 87. Meaning of double or treble costs. 88. Costs for respondents, on unsuccessful application for certain writs and processes. 89. Costs to be paid, before bringing a new suit after nonsuit or discon- 90. Liability for costs, of an individ- 91. State liable for costs, if such action be for its benefit. 92. State's attorney to tax no travel. 93. Costs, in case a plaintiff brings divers actions at the same court, which might be joined. 94. Taxation of fees for travel. 95. Taxation of fees for attendance in defaulted cases. 96. Costs not taxable in a suit on a judgment, where execution might issue. Proviso. 98. Court may control costs, in certain cases. 99. Costs, in cases of set off. 101. Proceedings, on motion to set EXECUTIONS. 102. When executions may issue, and 103. Justice executions, when return- 104. To issue within one year after 105. May be renewed within three 106. When scire facias is necessary. 108. Courts not to be held on certain 109. In actions of trespass, court or 110. Damages on dishonored bills, 111. Damages on bills payable in the state. 112. Appointment of surveyor, in cer- 113. Subsequent attaching creditor 114 Manner of petitioning. 116. Entry on the record. 118. Proceedings and costs, if peti- 119. If first attachment were fraudu- 120. Actions brought by public offi-. 1821, 59, § 14. SECTION 1. No action shall be entered in the supreme judicial Time of entry. Provision, if the court, or district court, after the first day of the session thereof, court be not without the special permission of the court; and no suit, process held. or proceedings, pending in any court, shall be discontinued, by reason of such court not having been held at any stated term, or at any adjournment thereof; but they shall be respectively returned to, and have day in the term or session, which shall be held next after such failure. SECT. 2. When the defendant shall have been duly served with Default of deprocess, and return thereof made, according to the mandate of the fendant, if he 63 fail to appear: Proviso. |