Mode of proceeding to recover such CHAP. 121. thereby, from bringing his action for the share claimed by him, against the person to whom it was assigned, or for whom it was left. SECT. 35. Such action shall be brought against the tenant in possession, in like manner as if the demandant had originally claimed the particular piece demanded, instead of an undivided part of the whole land; and it may be brought in the same time, in which it might have been brought, if no judgment for partition had been rendered. share. Proceedings by a part owner, for whom no to recover the same. 22 Pick. 316. SECT. 36. If any person, who has not appeared and answered, as aforesaid, shall claim any part of the premises described in the share was left, petition, as a part owner with those, who were parties to the suit, or any of them, and, if the part or share, so claimed, was not known or not allowed or left for him in the partition process, he shall be concluded by the judgment, so far as it respects the partition; but he shall not be prevented from bringing an action for the share, claimed by him, against each of the persons, who shall hold any part of the premises under the judgment; and, if he should prevail in such action, instead of his being entitled to a new partition of the whole premises, he shall recover against each of the persons, holding under the judgment for partition, the same proportion held by him, that the demandant was entitled to claim out of the whole premises, before partition was made. New partition, if one shall be e victed of the part assigned to him. Mortgage, or other lien, attaches to the part set off in severalty. Indorsement of petitions. Lots reserved to be set off by tition. SECT. 37. If any person, to whom a share shall have been assigned, or left, shall be evicted thereof by any person, who, at the time of the partition, had an elder and better title, than those who were parties to the judgment, he shall be entitled to a new partition of the residue, in like manner as if no partition had been made. SECT. 38. Any person, having a mortgage, attachment, or other lien on the share in common, of any part owner, shall be bound by the judgment, so far as it respects the partition; but his lien shall remain in full force upon that part, which shall have been assigned to, or left for such owner. SECT. 39. Every petition for partition, originally filed, shall be indorsed in the same manner, as original writs; and all the regulations, concerning the indorsement of writs, contained in the one hundred and fourteenth chapter, shall apply to indorsements of petitions for partition. SECT. 40. In any process for the partition of a tract of land, for public uses, in which certain lots or proportions of such tract are reserved for commissioners public uses, the court shall also order the commissioners, appointed in making par- to made the partition, that they shall first set off, by metes and 1839, 357, § 1. bounds, such reserved lots, or proportions, of an average quality and situation of the lands of said tract, and make return of such location into the land office, of the state, with a description of its quality and location, and then proceed to execute the other duties, assigned them by the court; and the return, being accepted by the court, and recorded as before provided, shall be valid, as a location of such reserved lands. CHAP. 122. CHAPTER 122. OF LOCATION OF RESERVED LANDS. SECT. 1. District court may appoint a com- SECT. 5. Location may be made by the mittee to locate reserved lands. 2. Committee to be sworn. 3. Notice of their meeting. 4. Return, acceptance, and record of their location. grantee and accepted by the court. 6. Location may be made on warrant for partition. a committee to lands. SECTION 1. When, in the grant of townships or parts thereof, District court there shall be certain proportions of the same reserved for the use may appoint of such township, or for public uses, and such proportions have not locate reserved been located in severalty by the grantee, for the respective purpo- 1821, 41, § 1. ses, expressed in the grant, prior to the incorporation of such township, as a plantation or town, the district court in the county where the land lies, on the application of the assessors of such plantation. or town, may appoint three disinterested persons of the county, and issue their warrant, under the seal of the court to them, requiring them, as soon as may be, to locate, in separate lots, the proportions reserved for the purposes before mentioned; and shall designate the use, for which each lot is so reserved and located in said township: such lots to be of an average quality with the residue of the lands therein. SECT. 2. be sworn. Said committee, before acting under such warrant, Committee to shall be sworn to the faithful discharge of the duty assigned them, 1821, 41, § 2. before a justice of the peace; and a certificate thereof shall be indorsed on the warrant. SECT. 3. They shall also give notice of their appointment, and Notice of their of the time and place of their meeting, to execute the same, by meeting. 1821, 41, § 2. publishing the same in some newspaper in the state, to be designated & Greenl. 135. by the court, and by posting up written notifications in two or more public places in the same plantation or town, at least thirty days next prior to their making such location. cord of their SECT. 4. They shall make return of said warrant and their Return, acceptdoings thereon, under their hands, to the next district court in the ance, and recounty, after having completed the service; which, being accepted location. by the court, and recorded in the registry of deeds, of the same 1821, 41, § 3. county within six months, shall be a legal assignment and location of such reserved proportions, for the uses designated. be made by the SECT. 5. Whenever the grantee of any such lands shall sever Location may and locate such reserved proportions thereof for the purposes men- grantee, and actioned in the grant, designating the use for which each lot is located, cepted by the and present the same to said court, such court may confirm the court. same; and such location shall then be deemed legal and conclusive, after being recorded, as before mentioned. 1821, 41, § 4. SECT. 6. Or the severance and location of such reserved lands Location may may be made and completed in the manner, prescribed in the forti- be made on eth section of chapter, one hundred and twenty one, as circumstan- tition. ces may render it convenient. warrant for par CHAP. 123. In what cases the supreme judicial court may grant reviews. CHAPTER 123. OF GRANTING REVIEWS. SECT. 1. In what cases the supreme judicial SECT. 7. Mode of petitioning, on the ground SECTION 1. The justices of the supreme judicial court may grant a review in all civil actions, including petitions for partition, originally commenced in the late court of common pleas or district court, and in which judgment has been or shall be rendered in that court or in the supreme judicial court, whenever they shall judge. 1 Greenl. 322. it reasonable, and for the advancement of justice, without being limited to particular cases; including also, prosecutions for maintenance of bastard children. 1821, 57, § 2. 6 Mass. 498. 9 Mass. 520. 3 Greenl. 92. 4 Greenl. 58, 534. 6 Greenl. 412, 479. 12 Pick. 172. SECT. 2. Any justice of the district court may, concurrently 8 Greenl. 211. with the supreme judicial court, grant reviews of actions, of the kinds, and in the circumstances mentioned in the preceding section, in which judgment was rendered in said district court; and also in actions wherein the judgment was rendered by a justice of the peace, or municipal or police court. In what cases the district them. court may grant 1835, 165, 3. 6 Greenl. 412. Notice. 1821, 57, § 1. Application, where filed. Only one review to be granted. Ï821, 57, § 3. SECT. 3. No review shall be granted by either court, until due notice has been given to the adverse party. SECT. 4. The application, to the supreme judicial court, for a review may be filed in any county, and the order of notice made returnable in the county where the judgment was rendered. SECT. 5. same action. Not more than one review shall be granted in the SECT. 6. No review shall be granted, unless application is made 13 Mass. 490. therefor, within three years next after the rendition of the judgment, complained of. Limitation of application. 1821, 57, § 3. 2 Greenl. 114. Mode of petitioning, on the ground of newly discovered evidence. 6 Greenl. 479. Court may stay execution, on ed. 1821, 57. § 5. 1831, 502, § 3. 11 Mass. 407. SECT. 7. Whenever an application for a review is filed, if one of the grounds of application be the alleged discovery of new evidence, the substance of such new evidence, and the names of all the witnesses by whom the allegation is intended to be proved, must be stated in the application, under oath. SECT. 8. On application for a review by a defendant in a personal action, the court may, in their discretion, stay execution on bond being fil- the judgment complained of, or grant a supersedeas, upon his filing in court his bond, with sureties to be approved by the court, or such person as they may appoint, in a penal sum, equal to double the amount of the damages and costs, conditioned to pay said amount, if such should be the final judgment on the review, with interest thereon from the date of said bond up to the time of rendition of judgment in the action on said bond, at the rate of twelve per cent. annually. SECT. 9. When any person, whose claim on an insolvent estate cute a rejected has been rejected, in whole or in part, by the commissioners apan insolvent es- pointed by the judge of probate, by accident or mistake has omitted to give notice at the probate office, within the time by law pre Leave to prose claim against tate. Limita tion. 1821, 57, § 8. scribed, of his intention to have his claim determined at law, said CHAP. 123. court may, after due notice to the executor or administrator on the estate, if they think that justice requires it, give such applicant leave to institute a suit for recovery of his claim, at the next district court in the county, where the executor or administrator resides; but such application must be made, within two years after the return of the commissioners; and leave shall not be granted after the lapse of four years from the time administration was granted; and no distribution shall be disturbed by any judgment, which may be recovered in such action. trial SECT. 10. Whenever a review is granted, by either of said Where new courts, the trial shall be had in the court by which the review was granted. may be had. shall be prose cuted. 1821, 57, § 4. SECTION 1. Whenever a person is entitled, as a matter of right, In what courts, to a review of an action, as provided in the seventh section of the a writ of review one hundred and fifteenth chapter, or whenever a review is granted by the supreme judicial court, or by the district court, a writ of review, in the former case, shall be sued out, and prosecuted in the same court in which the judgment complained of was rendered; and, in the latter case, the writ shall be sued out and prosecuted in the court, which granted the review. SECT. 2. It shall not be necessary, in the writ of review, to Form of the recite at length the writ and proceedings in the original suit, but it writ. may merely contain a summons to the defendant to appear and answer to the plaintiff in the review of an action, which was brought by the plaintiff; and such suit, and the judgment therein, may be described and identified in a condensed form, so as to render it intelligible and sufficiently certain. SECT. 3. Such writ of review may be served in the same man- Mode of serner, as other writs; or, when the defendant is not an inhabitant of, vice. or found in the state, it may be served on the person, who appeared, as his attorney, in the original suit. SECT. 4. If the writ of review is sued out by the original plain- Attachment of tiff, he may cause the defendant's property to be attached, as might property. have been done in the original suit, and the form of the writ may be varied accordingly. CHAP. 124. Entry of the action, and filing 1821, 57, § 4. 1826, 317, papers. 1 Mass. 159. 5. 1 Greenl. 399. Pleadings, and issue. 1821, 57, § 4. Same subject. 1821, 57, § 4. Evidence, and proceedings. 1821, 57, § 4. Judgment. 1821, 57, 6 4. 10 Mass. 218. Costs. 1821, 57, § 5. 4 Mass. 614. 1 Greenl. 255. 2 Greenl. 397. Original attach SECT. 5. The plaintiff in review shall enter the action at the next term after it is granted, unless for special reasons the court on motion grant leave to enter it at the second term; and he shall produce in court, there to be filed, certified copies of the writ and judgment, and all proceedings in the former suit, and the originals or copies of all depositions, used and filed therein. SECT. 6. The cause shall be tried on the issue joined in the former suit; but the court may allow amendments in any of the pleadings, as they might have done in the original action, or they may admit additional issues, or brief statements. SECT. 7. If the former judgment was rendered on default, or without any issue joined, the proper pleadings shall be made on the trial of the review, and the cause be tried thereon. SECT. 8. Each party may introduce any legal evidence, whether produced on the former trial or not; and the cause shall be disposed of by verdict, nonsuit, default or otherwise, as if it were an original suit. SECT. 9. Judgment on the review shall be given, as the merits of the cause, upon law and evidence, shall require, without any regard to the former judgment, except as is hereinafter mentioned. SECT. 10. The party, prevailing in the review, shall recover his costs, but this shall not prevent the court, when granting a review on petition, from imposing on him such terms as to costs, as they may deem reasonable. SECT. 11. No attachment made, or bail taken, in the original not continued action, shall be liable to satisfy the judgment, which shall be ren ment, or bail, by review. 1821, 57, § 6. Form of judgment, if dama ges be reduced. Form, if damages be increased. Provision, in in and set off. dered on the review. SECT. 12. If any sum is recovered by the plaintiff in the original action for debt or damages, and that sum is reduced on the review, the original defendant shall have judgment and execution for the difference, with his costs; or, if the former judgment has not been satisfied, one judgment may be set off against the other, and an execution shall issue for the balance. SECT. 13. If the original plaintiff shall recover on the review a greater sum for debt or damage, than was awarded to him on the original judgment, he shall have judgment and execution for the excess, and costs on the review. SECT. 14. In review of actions of replevin, and in actions cases of replev- where an offset is filed, the defendant shall be considered, so far as it respects the damages, that may be awarded to him, in the original action, or on the review, like a plaintiff in other actions. CHAPTER 125. OF MORTGAGES, THEIR REDEMPTION AND FORECLOSURE, AND OTHER LIENS ON REAL AND PERSONAL ESTATE. SECT. 1. How mortgages of real estate are made. 2. Mortgagee may enter before breach, unless otherwise agreed. SECT. 3. Modes of obtaining possession for foreclosure. 4. Foreclosure in three years. |