notice must be given, and the same proceedings had, as are required by law, in the sale of an equity of redemption.

On pews. For the notice necessary in levying executions upon pews, reference may be had to what has been stated as to the manner of attaching them; in other respects the proceedings are the same, as in levying upon any other real estate, except in the city of Boston, where pews are personal property.1

SECT. IV. LEVY OF EXECUTION UPON PERSONAL ESTATE.

2

Time of levying. The rule before stated, as to the time of levying executions upon real estate, applies to a levy upon personal property.

Mode of levying. If the property was attached on mesne process, and then sold, as we have seen it may be, the officer has only to apply the proceeds upon the execution, and make his return accordingly.

But if the execution is to be levied upon goods or chattels, whether they were attached on the writ, or not, the officer must safely keep them, at the expense of the debtor, for the space of four days next after seizing them. If the owner do not redeem them within that time, by satisfying the execution, the officer must proceed to sell them at public vendue, after having posted up notifications of the time and place of sale, in the town or place where the sale is to be had, forty

1 Vide ante page 167, 168.

2 Vide ante page 284.

3 Vide ante page 175.

eight hours, before the expiration of the four days.' If he do not comply with these requisites, his special property acquired by the seizure, will be lost, and the goods may be attached, or seized on execution, by other creditors. But except as against other creditors, he may sell after the fourth day, and satisfy his execution with the proceeds of the sale; but he will be liable to the debtor for any damage sustained by the irregularity.

Officer's return. The officer having thus seized and sold the property, and applied the proceeds upon the execution, must make return thereof with his doings, particularly describing the goods taken and sold, and the sum for which each article was struck off, and the disposition made of the proceeds.^

Upon shares in incorporated companies. Executions must be levied upon shares in incorporated companies, created before the passage of Stat. 1804. ch. 83. in the manner prescribed by that statute. But shares in corporations, created since that statute, may be levied upon in the modes prescribed in their several acts of incorporation.

By the general statute above named, if the shares were attached on the writ, as before stated," and the creditor intend to preserve the lien created by the attachment, the officer must within thirty days

1 Stat. 1783. ch. 57. s. 5.

2 Lane et al. v. Jackson, 5 Mass. Rep. 157. Warren v. Leland, 9 Mass. Rep. 265. Howe v. Starkweather, 17 Mass. Rep. 240.

Howe v. Starkweather, 17 Mass. Rep. 240.

Titcomb v. Union Mar. and Fire Ins. Co. 8 Mass. Rep. 326. "Vide ante page 173.

after judgment, leave an attested copy or copies of the execution, with the clerk and treasurer, or cashier of the corporation, and also, within that time, cause an advertisement of the time and place of sale, to be at least once published. These proceedings will constitute a seizure upon the execution."

The officer must then proceed to notify the debtor, and to give public notice of the time and place of sale, within the time and in the mode prescribed by the statute, which are the same, as upon the sale of an equity of redemption before stated.3

The officer making the sale, or the purchaser, must, within fourteen days after the sale, leave an attested copy or copies of the execution, and of the officer's return thereon, with the clerk and treasurer, or cashier, and pay for the recording of the same; - and the proper officer of the corporation will then be bound to issue to the purchaser, legal certificates of the shares so sold.1

If the shares to be levied on, were not attached on the writ, the same proceedings are still to be had, on the execution, whenever it may be levied.

These proceedings must necessarily be had within thirty days after judgment, only for the purpose of preserving the lien upon the shares, created by the attachment. If they were not attached on the writ, or if the creditor do not wish to preserve his lien, the execution may be levied upon them, at any time.

Upon personal property owned in joint-tenancy,

1 Stat. 1804. ch. 83. s. 2.

2 Ibid. s 3.

"Vide ante page 290.

4 Stat. 1804. ch. 83. s. 1.

tenancy in common, or copartnership. For the mode of levying executions upon personal property, holden in common, &c. reference may be had to the manner of attaching it.'.

Upon personal property mortgaged or pledged. See mode of attaching the same.2

1 Vide ante page 173. 2 Vide ante page 174.

CHAPTER XXVII.

COSTS.

SECT. I. IN ACTIONS AT COMMON LAW.

When in general recoverable. By Stat. 1784. ch. 28. s. 9. it is provided, that in all actions, the party prevailing shall be entitled to his legal costs against the other; and by the same section, if the plaintiff at any stage of his suit, become nonsuit, or discontinue his action, the defendant shall recover costs.

Where, after entry of the action in the Court of Common Pleas, the writ was lost, and the court on motion directed the clerk to record the action as a misentry, it was decided by the Supreme Court, that the defendant should recover costs. It appears, however, from the statement in the opinion of the court, in the case last cited, that the writ was never returned, but had been lost by the sheriff, who served it. Had it been lost after being returned, without the plaintiff's fault, the decision might have been different.

If judgment be arrested, the defendant is entitled to costs as the prevailing party.

If the writ be abated by plea, or on motion, for any defect or insufficiency, the defendant recovers costs.2

1 Gilbreth v. Brown et al. 15 Mass. Rep. 178.

2 Haines v. Corliss, 4 Mass. Rep. 659. Thomas v. White, 12 Mass. Rep. 370. Hart v. Fitzgerald, 2 Mass. Rep. 509. Guild v. Richardson, 6 Pick. Rep. 364.