pant. the time when such new action is commenced, it shall be brought brought against against the tenant or occupant of the premises, and in addition to the tenant or occu service on him a copy of the original writ or summons shall be left with Service and prothe attorney-general or district-attorney fourteen days at least before R. S. 108, § 14. the return day, that he may appear and defend the suit. If the commonwealth has granted away the premises, the action shall be brought against the tenant of the freehold. In either case it shall be conducted and disposed of as if no such information had been filed. ceedings. such case. SECT. 13. The demandant, if he recovers, shall be entitled to the Rents and imrents and profits, and shall be chargeable for all improvements, in like provements in manner as is provided in chapter one hundred and thirty-four, although R. S. 108, § 15. the premises have not been held and possessed under the adverse title as much as six years. SECT. 14. Costs shall be awarded and taxed for the party prevailing. Costs. If the judgment is in favor of the commonwealth, an execution for the R. S. 108, § 4. costs shall issue; if it is in favor of the defendant, the costs shall be paid out of the treasury, by the warrant of the governor and council. ders on land dians. SECT. 15. When any person unlawfully enters into, intrudes upon, Informations or holds, any land, the title to which is in the commonwealth for the against intruuse and benefit of any tribe or body of Indians, or in trustees, guar- held for Indians, treasurers, or agents, appointed by or under the authority of the 1840, 34, §§ 1, 2. commonwealth for the use and benefit of such tribe or body, or of any individuals thereof or their descendants, the same may be recovered upon an information filed and prosecuted by the attorney-general or district-attorney in the superior court for the county where the land is situated. 1853, 186. 1855, 245, § 1. 1859, 196. ney to prose1855, 245, § 2. 1840, 34, § 2. SECT. 16. The district-attorney for such district shall file and prose- District-attorcute such information whenever he has good reason to believe that the cute. land can be recovered. SECT. 17. The trial of such information in the superior court shall Trial in sup. ct. be final, saving to each party the right of exception in matter of law, 1840, 34, § 3. according to the provisions of chapter one hundred and [fourteen] 1859, 196. [thirteen.] final, &c. SECT. 18. The proceedings in the information and the effects thereof Proceedings to conform to preshall in all respects be conformable to the preceding provisions of this ceding provischapter; but if the final judgment is in favor of the commonwealth, a ions. 1840, 34, § 34. writ of possession may be sued out and served like a similar writ in other civil process. SECT. 19. If in any such proceeding the commonwealth recovers possession of land to or in which such trustees, guardians, treasurers, or agents, have title or interest, such possession shall be deemed to be the possession of such trustees, guardians, treasurers, or agents, if any are living, otherwise the commonwealth shall hold the same upon and for the uses and trusts aforesaid until others are appointed. On recovery, trustees, &c. 1855, 245, § 3. title to vest in TITLE IV. OF CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES. CHAPTER 142. — Of Trustee Process. CHAPTER 143.-Of Replevin of Property. CHAPTER 144. — Of Habeas Corpus, Personal Replevin, and Personal Liberty. CHAPTER 145. — Of Audita Querela, Certiorari, Mandamus, and Quo Warranto. CHAPTER 146.-Of Writs of Error and Review. CHAPTER 147.—Of Reference to Arbitration by Agreement before a Justice of the Peace. CHAPTER 148.-Of Improving Meadows and Swamps. CHAPTER 149. — Of the Support and Regulation of Mills. CHAPTER 150.—Of Liens on Buildings and Land. CHAPTER 151.-Of Mortgages, Pledges, and Liens upon Personal Property. CHAPTER 152.- Of Recognizances for Debts. CHAPTER 153. Of Seizing and Libelling Forfeited Goods. 61. Trustee to retain costs out of effects in his 83. Justice may issue scire facias, although, hands and to recover balance of plaintiff. &c. COMMENCEMENT AND SERVICE OF PROCESS. the process lies, 4, 6. 3 Pick. 302. 1 SECTION 1. Ali personal actions either in the superior court or the In what cases heshan quan dawn supreme judicial court, may be commenced by trustee process; except the actions of replevin, actions of tort for malicious prosecution, for slander R. S. 109, §§ 1, either by writing or speaking, and for assault and battery; and any 1859, 196. person or corporation may be summoned as trustee of the defendant 2 Mass. 37. therein. 3 Met. 564. 13 Met. 471. 1 Gray, 424. See § 75. 21 Pick. 109. SECT. 2. The writ shall be signed, sealed, bear teste, and be issued, like other original writs in civil actions. SECT. 3. It shall be in the form heretofore established, authorizing an attachment of the goods and estate of the defendant in his 1794, 65, § 1. own hands, and also in the hands of the trustee, and shall be subject to alteration as is provided in chapter one hundred and twentythree. SECT. 4. If all the persons named in the writ as trustees dwell or have usual places of business in one county, the writ shall be returnable in such county, otherwise it may be returnable in any county in which either of them dwells or has his usual place of business, without regard to the domicil of the other parties. 12 Cush. 284. 5 Gray, 311. 7 Gray, 282. SECT. 5. The attachment of the goods and estate of the defendant in his own hands and possession, if any, shall be made in the usual manner, and the writ shall be further served on the defendant and each of the trustees in the manner prescribed for the service of an original summons without an attachment. Writ, how is sued. R. S. 109, §3. where return- 1852, 287. 22 Pick. 250. Cush. 588. 6 Cush. 560. service of. 1837, 210, § 1. 13 Met. 471. vice. SECT. 6. The plaintiff may at any time insert the names of other New trustees trustees, and cause the writ to be served on them; and after service on and new sera trustee the writ may be again served on him in like manner and with R. S. 109, § 9. the same effect as if it had not been previously served. If service is made on a trustee after service on the defendant, it shall be again served on the defendant. &c. SECT. 7. If all the trustees are discharged, the plaintiff shall not pro- Suit not to proceed in the suit against the defendant unless there has been legal service ceed, unless, of the writ on him, or notice of the suit, or unless he actually appears R. S. 109, § 10. and answers thereto. 13 Met. 471. 722 Trustee to file answer, &c. 1852, 312, § 56. 3 Met. 297. may be further examined on written interrogatories. 1852, 312, § 57. Corporations, 3 Met. 564. Answer to be taken as true, &c. R..S. 109, § 15. 2 Mass. 96. 4 Mass. 85. 11 Mass. 488. Mode of trial. APPEARANCE AND ANSWER OF TRUSTEE. SECT. 8. Every person summoned as trustee shall appear and file his answer within the first ten days of the return term of the writ if the court sits so long, or otherwise before the adjournment of the court, unless the court for good cause shown allows further time therefor. The answer shall be sworn to by the trustee, and shall disclose as plainly, fully, and particularly as practicable, what goods, effects, or credits, of the defendant, if any, were in his hands or possession at the time of the service of the writ upon him. SECT. 9. The plaintiff may from time to time examine the supposed trustee upon written interrogatories filed in the clerk's office. The answers thereto shall be sworn to and filed in the clerk's office within seven days after notice to the trustee or his attorney of the filing of the interrogatories, unless the court otherwise orders. If answers are not so filed, the court may pass such order as the case may require. SECT. 10. Corporations summoned as trustees may appear and answer by their cashier, treasurer, secretary, or such other officer as they shall appoint or as the court shall require to attend for that purpose. The answer and examination on oath of such officers or persons shall be received as the answer and examination of the corporation. SECT. 11. The answers and statements sworn to by a trustee shall be considered as true, in deciding how far he is chargeable, but either party may allege and prove any other facts not stated nor denied by him, that may be material in deciding that question. 7 Pick. 194. 4 Cush. 314. 8 Pick. 67. 9 Cush. 530. 10 Cush. 104. SECT. 12. Any question of fact arising upon such additional allega R. S. 109, § 16. tions may be tried and determined by the court, or may be submitted to a jury in such manner as the court shall direct. Trustee, default of. SECT. 13. When a person duly summoned as a trustee neglects to R. S. 109, § 14. appear and answer to the suit as herein provided, he shall be defaulted and adjudged a trustee. 1852, 312, § 56. penalty on, for perjury. 1852, 312. 4 Mass. 272. 10 Mass. 258. 8 Cush. 199. SECT. 14. If a person summoned as trustee, or the executor or adR. S. 109,78. ministrator of such person, or if an officer, agent, or other person, who and answers for a corporation so summoned, upon his examinaappears tion on oath, knowingly and wilfully answers falsely, he shall, out of his own goods and estate, pay to the plaintiff in the trustee process, or to his executors or administrators, the full amount due on the judgment recovered therein, with interest therefor, to be recovered in an action of tort; and he shall moreover, on conviction thereof upon indictment, be adjudged guilty of perjury. Adverse claim- 7 Cush. 483. Proceedings in R. S. 109, § 18. Testimony, how taken. PROCEEDINGS IN RELATION TO ADVERSE CLAIMANTS. SECT. 15. If it appears that any goods, effects, or credits, in the hands of a supposed trustee, are claimed by another person by force of an assignment from the defendant or otherwise, the court may permit such claimant to appear and maintain his right. If he does not voluntarily appear, notice for that purpose may be issued and served on him in such manner as the court shall direct. he be admitted as a party appears, may SECT. 16. If such claimant to the suit so far as respects his title to the goods, effects, or credits, in question, and may allege and prove any facts not stated nor denied by the supposed trustee; and such allegations shall be tried and determined in the manner before provided. SECT. 17. Upon the trial of any question arising upon the additional R. S. 109, § 19. allegations of a party, any part of the testimony may be given by depositions taken and reduced to writing in the usual form, and filed in the case, or orally, as the court shall direct. 1839, 107, § 1. PROCEEDINGS WHEN SUIT IS PENDING AGAINST TRUSTEE. ment of a de R. S. 109, § 31. SECT. 18. If during the pendency of an action the defendant is sum- Case of attachmoned as the trustee of the plaintiff, the first suit may nevertheless pro- mand already in ceed so far as to ascertain by a verdict, award, or otherwise, what sum is suit. due from the defendant. The suit shall not be delayed on account of 7 Mass. 149. the trustee process, unless the court for good cause shown sees fit to continue it for judgment until the termination of the trustee suit, or until the attachment therein is dissolved by the discharge of the trustee, or by the satisfaction of the judgment, or otherwise. such case. SECT. 19. The court may, on application of the plaintiff in the Proceedings in trustee process, continue the other suit, on such terms as it deems just R. S. 109, § 32. and reasonable. If it is not so continued, and judgment is rendered against the defendant, he shall not afterwards be adjudged a trustee on account of the demand so recovered against him, so long as he is liable to an execution on the judgment. R. S. 109, § 33. SECT. 20. If, before final judgment is rendered in the first suit, the Same subject. defendant in that suit is adjudged a trustee in the other, and pays thereon the money demanded in the first suit, or any part thereof, the fact shall be stated on the record of the first suit, and judgment therein shall be rendered for the costs due to the plaintiff, and for such part of the debt or damages as remains due and unpaid. WHEN AND FOR WHAT TRUSTEES ARE CHARGEABLE, &C. trustees. 2 Pick. 617. SECT. 21. When a person is summoned as trustee having goods, Liability as effects, or credits, of the defendant intrusted or deposited in his hands R. S. 109, § 4. or possession, such goods, effects, and credits, shall be thereby attached and held to respond the final judgment in the suit, in like manner as goods or estate when attached by the ordinary process, except as hereinafter provided. 13 Met. 471. 4 Cush. 314. 7 Cush. 483, 487. 6 Gray, 116, 320. 7 Gray, 491. SECT. 22. Debts, legacies, goods, effects, or credits, due from, or in the hands of, an executor or administrator as such may be so attached in his hands. 19 Pick. 354. 20 Pick. 563. 3 Met. 507. 2 Cush. 111. 7 Cush. 406. 2 Gray, 251. SECT. 23. Any dividend of an estate of an insolvent debtor, if it is not upon a claim for wages which would not have been attachable in the hands of the original debtor, may after the dividend is declared be so attached in the hands of the assignee. SECT. 24. Any money or other thing due to the defendant may be attached as herein mentioned before it has become payable, if it is due absolutely and without any contingency; but the trustee shall not be compelled to pay or deliver it before the time appointed by the con tract. 7 Mass. 259. Pick. 302. Pick. 28, 178. 3 5 6 Pick. 120. 3 Met. 303. 12 Met. 397. of executors and administrators. R. S. 109, § 62. 7 Mass. 271. 8 Mass. 246. of assignees of insolvents. 1858, 40. 6 Cush. 558. See § 29. Debt may be at- is payable. veyance to SECT. 25. If a person summoned as trustee has in his possession Fraudulent congoods, effects, or credits, of the defendant, which he holds by a convey- trustee. ance or title that is void as to the creditors of the defendant, he may be R. S. 109, § 35. adjudged a trustee, although the defendant could not have maintained & Mass. 390. an action therefor against him. 4 Mass. 508. 12 Mass. 140. principal and R. S. 109, § 36. SECT. 26. Every trustee shall be allowed to retain or deduct out of Mutual dethe goods, effects, and credits, in his hands, all demands against the mands between defendant of which he could have availed himself if he had not been trustee. summoned as a trustee, whether by way of set off on a trial, or by the 16 Mass. 473. set-off of judgments or executions between himself and the principal; 12 Met. 567. and he shall be liable for the balance only, after all mutual demands between him and the principal are adjusted. 7 Gray, 153. mands exclud SECT. 27. In the demands mentioned in the preceding section to be Certain deadjusted between the trustee and the defendant, there shall not be ed. |