TITLE III.

ACCOUNTS FILED IN OFF-SET.

By statute it is enacted, that when an action shall be

of

an account against an action brought

on book account, a valebat,

quantum meruit, or for services done upon an agreed price.

brought to recover a debt due on book account, an account Mass. Stat. Oct. 30, 1784, sect. 12. stated by the parties, a quantum meruit, quantum valebat, or for services done upon an agreed price, the defendant Defendant may file may file any account he hath in the clerk's office, seven days before the sitting of the court of common pleas, where quantum the action is brought, or, if the suit be before a justice peace, the account shall be filed before the justice, four days before the day of trial, and, upon the general issue, give the same in evidence against the plaintiff's demand. And if upon the trial it shall appear that there is a balance due to the defendant, he shall recover the same, in the same manner as if he had brought his action therefor.

It will be readily perceived, that the demand, which the defendant is here permitted to file and set off against the plaintiff's claim, is such only as had arisen on book account; and also that this account cannot be filed against a note of hand, or any contract other than those which are specifically expressed. For this reason the legislature enlarged its provision, as it respects the nature both of the account filed, and the demand against which it is filed.

And now, by a further statute, it is enacted, that in any action brought, or which shall be brought, for any debt upon simple contract or promise in writing, not under seal, the defendant therein may give in evidence, under the general issue, his or her demands against the plaintiff, for goods delivered, monies paid, or services done, whereof an account shall be duly filed in the clerk's office of the court, whereto such action is or shall be brought, seven days, and before a justice, four days at least, preceding the time

Mass. Stat. Feb, 27, 1794, at 10, sect. 4.

Defendant may file an

account,for goods delivered, monies paid,

or services done, a

gainst an action upon

any simple contract.

of trial. And in all cases of mutual demands, as aforesaid, the account of the defendant, if any time of limitation shall be objected thereto by the plaintiff, shall be considered and allowed, as if an action had been duly commenced thereon, by declaring in the same, at the time when the plaintiff's action was or shall be commenced, any law, usage, or custom to the contrary notwithstanding.

TITLE IV.

ACKNOWLEDGMENT OF DEEDS.

1st. WHAT conveyances are required to be acknowledged. 2d. What magistrate may take such acknowledgment. 3d. What shall be deemed equivalent to an acknowledgment, where the grantor is dead, is gone beyond sea, or has removed from the commonwealth, and the deed is unacknowledged.

4th. Proceedings by which to authenticate a deed before a justice of the peace, on refusal of the grantor to acknowledge it.

5th. Mode of authenticating a deed, and giving it the force of an acknowledgment, where the grantor and the subscribing witnesses are dead.

6th. What shall be deemed sufficient caution to all persons against purchasing, or extending execution upon, an estate already conveyed by deed, not acknowledged.

I.

What conveyances are required to be acknowledged.

No bargain, sale, mortgage, or other conveyance, in fee simple, fee tail, or for term of life, or any lease for more than seven years from the making thereof, of any lands, tenements, or hereditaments, within this commonwealth, shall be good and effectual in law to hold such lands, tenements, and hereditaments, against any other person or persons, but the grantor or grantors, and their heirs only, unless the deed thereof be acknowledged and recorded.

What magistrate may take such acknowledgment. The deed may be acknowledged before a justice of the peace in this state, or before a justice of the peace or magistrate in some other of the United States of America,

Mass. Stat. March 10, 1784, act 1, sect. 4.

Ibid.

or in any other state or kingdom, wherein the grantor or vendor may reside at the time of making and executing the deed.

III. What shall be deemed equivalent to an acknowledgment, where the grantor is dead, is gone beyond sea, or has removed from the commonwealth, and the deed is unacknowledged.

When any grantor or lessor shall go beyond sea, or be Mass, Stat. March 1, removed out of this state, or be dead, before the deed or 1784, act 1, sect. 4. conveyance by him executed shall be acknowledged; in every such case, the proof of such deed or conveyance, made by the oath of one or more of the witnesses, whose names may be thereunto subscribed, before any court of record within this commonwealth, shall be equivalent to the party's own acknowledgment thereof, before a justice of the peace.

I Mass. T. R. 58.

The removal of the grantor or lessor must be a perma. nent removal.

For where on motion to prove a deed, it appeared that the family of the grantor resided in the commonwealth, and that he was absent only for a particular purpose, and had not taken up a permanent residence out of the state, the court held, that this could not be considered as a removal within the meaning of the statute, and refused the motion.

IV. Proceedings by which to authenticate a deed before a justice of the peace, on refusal of the grantor to acknowledge it.

If the grantor or lessor refuse to acknowledge his deed, Mass. Stat. Mar. 10, any justice of the peace, in the same county, after such 1784, act 1, sect. 5. refusal, at the request of the grantee or lessee, his heirs, executors, administrators, or assigns, may issue a summons for such grantor or lessor to appear, (if he see cause) at a certain time and place therein mentioned, to hear the testimony of the subscribing witnesses thereunto; which summons shail be served by the proper officer, seven days at least before the time therein assigned for proving the deed; and at such time and place, whether the grantor or lessor be present or not, it being made to appear by the

oath of one or more of the witnesses thereunto subscribed, that they saw the grantor or lessor voluntarily sign and seal the deed, and that they subscribed their names as witnesses thereunto at the same time, such proceedings, and a certificate thereof, under the hand of the justice, annexed to the deed (wherein the presence or absence of the adverse party shall be noted) shall be equivalent to the acknowledgment of the grantor, before a justice of the

peace.

V. Mode of authenticating a deed, and giving it the force of an acknowledgment, where the grantor and the subscribing witnesses are dead.

Mass. Stat. June 28,

Where the grantor shall be deceased, before the deed by him executed shall be acknowledged, and the witnesses, 1787. whose names may be subscribed thereto, are also deceased, the proof of the hand-writing of the grantor, and of the subscribing witnesses thereto, made by the oath of two witnesses, before any court of record within this commonwealth, shall be equivalent to the party's own acknowledgment thereof before a justice of the peace.

In such case, however, the statute requires, that it be made to appear to the satisfaction of the court, before whom such proof shall be made, that the grantee or grantees, mentioned in such deed or conveyance, have, in the life time of the grantor or grantors, taken actual possession of the real estate conveyed by such deed; and that the said grantee or grantees, or some person or persons, claiming under him or them, have continued such actual possession quietly, to the time when such application shall be made to such court, for the purposes aforesaid.

VI. What shall be deemed sufficient caution to all persons against purchasing, or extending execution upon, an estate, already conveyed by deed, not acknowledged.

Ibid.

It may sometimes so happen, that before the grantee can Mass. Stat. March 10, authenticate the deed in the manner pointed out by the 1784, act 1, sect. 5.