ATTACHMENTS DISPUTED BY PERSONS HAVING SUBSEQUENT LIENS, &c. dist ctore. tachments, how SECT. 92. When a person claims title or interest by force of a sub- Fraudulent at 1874, 132 sequent attachment, purchase, or mortgage, or in any other manner, in defeated. any estate real or personal that is attached in a suit between other persons, he may dispute the validity and effect of the prior attachment, on 9 the ground that the sum demanded in the first suit was not justly due, or was not payable when the action was commenced. Pick: 381. SECT. 93. The person objecting to the attachment may file his peti- Petition by the tion in the court in which the first suit is pending, at any time before thereto; person objecting final judgment therein, praying that the prior attachment may be dis- R. S. 90, § 84. solved, and setting forth the facts and circumstances on which his peti tion is founded, and the grounds of his own claim. to be supported by affidavit. SECT. 94. The petitioner or some person in his behalf shall make oath that his claim is just and legal, and that all the other facts set forth R. S. 90, § 85. in the petition are true, or are believed by the deponent to be so. in case, &c. 5 Pick. 410. SECT. 95. The court upon the hearing of the petition shall at the Prior attachment motion of either party direct a trial by jury of any question of fact may be dissolved arising in the inquiry, and if it appears to the court that any part of the RS. 90,$ 86. sum demanded in the prior suit is not justly due, or was not payable 8 Pick. 165. when the action was commençed, it shall order the attachment therein 12 Pick. 199. made to be dissolved in whole or in part as justice requires; but such order shall have no other effect on the prior suit. affected by an SECT. 96. The proceedings between the two adverse claimants or Proceedings not plaintiffs shall not be affected by any answer, plea, or other act, of the swer, &c., of dedefendant in the prior suit, nor by the judgment rendered therein. fendant. case. SECT. 97. No attachment shall be dissolved in manner aforesaid by Grounds of dereason of any defence to the action founded on the laws for the lim- fence in such itation of actions, restraining usury, requiring certain contracts to be R. S. 90, § 89. made in writing, or of any other like defence, if it appears to the court that the demand is otherwise well founded, and is justly and equitably due. costs may be awarded. SECT. 98. The court may upon such inquiry award to either party Damages and reasonable costs; and if the prior attachment is maintained, the courts may award to the attaching creditor reasonable damages, and execution may be issued for such costs and damages. R. S. 90, § 90. security for dam SECT. 99. The court shall also, upon the filing of the petition, Petitioner to give require a bond or recognizance of the petitioner, or of some person in ages and costs. his behalf, with sufficient surety or sureties, conditioned to pay to the R. S. 90, § 91. adverse party all such damages and costs as may be awarded to him in the proceedings upon the petition. appeal. SECT. 100. If, during the pendency of the proceedings, the action Proceedings upon in which the attachment is made is carried to a higher court, the R. s. 90, § 92. inquiry concerning the attachment shall be carried to the same court, and there heard and determined as if the action had been originally commenced there. action against SECT. 101. The decision or judgment of the court upon such an Decision to bar inquiry, whether the attachment is thereby vacated or held to be valid prior attaching and effectual, shall be a bar to any action brought by the petitioner creditor for against the party who made the attachment, for any supposed fraud or R. S. 90, § 93. deceit therein. fraud. plied. SECT. 102. Nothing contained in the ten preceding sections shall To what cases apapply to any action commenced before a justice of the peace or police Rs 90,594. 1874, 152 R. $2 court. REDUCTION OF EXCESSIVE ATTACHMENTS. SECT. 103. If an excessive attachment of goods or estate is made on mesne process, the defendant may apply in writing, in any county, to a justice of the court to which such process is returnable, for a 6 Gray, 528. 2 2, 312, § 59. POOR DEBTORS ARREST, IMPRISONMENT, AND DISCHARGE. [CHAP. 124. reduction of the amount of the attachment; and such justice shall order a notice to the plaintiff, returnable before himself or any other justice of the same court as speedily as circumstances permit. If, upon summarily hearing the parties, it is found that the attachment is excessive, the justice shall order it to be reduced, or a part of the goods or estate to be released, and thereafter the attachment shall be deemed to be reduced or partially released, according to such order. me subject. 3, 122. D, 27, § 1. Ch. 131, 18-21. 1869, 436. for approvbonds. 1, 27, § 2. llen, 158. DISSOLUTION OF ATTACHMENTS BY GIVING BOND. [See 1870, 291, §§ 2-6; 1871, 114.] SECT. 104. Any person or corporation whose goods or estate are attached on mesne process in a civil action may, at any time before final judgment, dissolve such attachment, by giving bond, with sufficient sureties, to be approved by the plaintiff or his attorney in writing, or by a master in chancery, with condition to pay to the plaintiff the amount, if any, that he may recover within thirty days after the final judgment in such action. No sureties shall be deemed sufficient unless satisfactory to the plaintiff, or it is made clearly to appear to the master that each one, if there are only two, is worth, above what will pay his debts, a sum equal to that for which the attachment is laid; or, if there are more than two, that they are together worth twice such sum. 98 Mass. 359. 100 Mass. 450. 104 Mass. 358. SECT. 105. Before such bond is approved by a master, the party whose goods or estate are attached, or some one in his behalf, shall make application in writing to a master, specifying therein the names and places of residence of the persons proposed as sureties. The same notice of the time and place of the hearing thereon shall be given to the plaintiff or his attorney, as is required in taking depositions; but the plaintiff or his attorney may in writing waive such notice, or may approve the bond at any time. SECT. 106. The fees of the master for approving a bond shall be one dollar for the hearing and decision, and fifty cents for the citation. If the attachment is dissolved, such fees shall be taxed in the defend1870, 291, § 4. ant's costs, if he prevails in the suit. atiff may di the service of t or arrest. .90, $56. WHEN OFFICER TO ATTACH OR ARREST. SECT. 107. When the writ requires the officer to attach the goods , by attach- or estate of the defendant, and for want thereof to take his body, the plaintiff or his attorney may by written or verbal directions require the officer to serve the writ, by an attachment of goods or estate or by arresting the defendant, and the officer shall serve the writ according to such directions, if it is in his power to do so. 88. 60. 14. New notice not to be given until after seven 15. Defendant or debtor to be examined. 18. Defendant may be discharged if he was not in- 19. Examination concerning ability to pay, &c. 21. If magistrate is satisfied, &c., ter oath. he may adminis 22. Certificate of magistrate and effect of discharge. Death of creditor not to affect proceedings. 23. Debtor on bail, &c., may be discharged, &c.; 24. not entitled to oath, after scire facias, until payment of costs. IMPRISONMENT. 25. Debtor, when arrested on mesne process in an action of tort, &c., may be committed, &c; on execution, &c., may be committed, SECTION PUNISHMENT OF FRAUDULENT DEBTORS. 31. When fraud is charged, debtor to plead, &c 33. Proceedings on appeal. 34. Upon default or conviction debtor may be DISCHARGE OF PERSONS IMPRISONED ON WARRANTS 35, 36, 37. Proceedings when committed on war- DISCHARGE OR REMOVAL OF INSANE PERSONS IMPRIS 38. Insane debtors, how released from confinement 39. Legal rights of creditors not affected. SPECIAL PROVISIONS FOR PERSONS IN PRISON OR ON 40. Discharge of persons in jail or on bail when 41, 42. Proceedings when execution issues. 44. Debtor may be committed within thirty days SURRENDER OF PRINCIPAL ON RECOGNIZANCES. 45. Proceedings when principal is surrendered on REMEDY ON RECOGNIZANCES AND BONDS, AND FOR ESCAPES. 46. Remedy on recognizances and bonds; 26. of contract. 1857, 141, § 17. 1859, 166, § 3. See Ch. 17,5 60. Ch. 52.26 Ch. SECTION 1. No person shall be arrested on mesne process in an ac- Arrest on mesne tion of contract, unless the plaintiff or some person in his behalf makes process in actions affidavit and proves to the satisfaction of some justice of a court of record, police court, judge of a probate court, master in chancery, commissioner of insolvency, and except in the county of Suffolk, trial justice, or of any justice of the peace: First. That he has a good cause of action, and reasonable expecta- 2 Allen, 431. tion of recovering a sum amounting to twenty dollars, exclusive of all 97 Mass. 29. costs which have accrued in any former action: Second. That he believes, and has reason to believe, the defendant has property not exempt from being taken on execution, which he does not intend to apply to the payment of the plaintiff's claim and Third. That he believes, and has reason to believe, that the defendant intends to leave the state, so that execution if obtained cannot be served upon him: Or, (instead of the second and third,) that the defendant is an attorney at law; that the debt sought to be recovered is for money collected by the defendant for the plaintiff, and that the defendant unreasonably neglects to pay the same to the plaintiff. And such affidavit and the certificate of the magistrate that he is satisfied the same is true shall be annexed to the writ. 118, § 78; Ch. 165, $36. 13 Gray, 575. 106 Mass. 296, 298. 634 POOR DEBTORS-ARREST ON MESNE PROCESS AND EXECUTION. Arrest on mesne process in actions See Ch. 17, § 60. See Ch. 165, § 36. 8 Allen, 434. 97 Mass. 29. [CHAP. 124 SECT. 2. No person shall be arrested on mesne process in an action of tort unless the plaintiff or some person in his behalf makes oath t the satisfaction of some magistrate named in section one, that he be lieves, and has reason to believe, that he has a good cause of action against the defendant, that he has a reasonable expectation of recover ing a sum equal at least to one-third the damages claimed in the writ 18733526 and that he has reason to believe that the defendant is likely to remov beyond the jurisdiction of the court to which the writ is returnable, s that execution, if obtained, cannot be served upon him; and such affi davit with a certificate of the magistrate that he is satisfied the same i true shall be annexed to the writ. not in actions for slander. 1855, 249, § 2. Officer need not arrest without order. R. S. 90, § 110. Arrest on execution; 1857, 141, §§ 1, 2, 3. See Ch. 17, § 60. 104 Mass. 354. See 1860, 215, §1. 1862, 169, § 2. SECT. 3. No person shall be arrested on mesne process in a civi action for slander or libel. 10 Allen, 76. SECT. 4. The officer who serves an original writ shall not be liabl for not having arrested the defendant unless he has been expressly re quired by the plaintiff or his attorney to make the arrest. SECT. 5. No person shall be arrested on an execution issued for deb or damages in a civil action, except in actions of tort, unless the judg ment creditor or some person in his behalf, after execution is issue amounting to twenty dollars exclusive of all costs, which make part o said judgment, whether the same have accrued in the last action or an former action on the same original cause of action, and while so muc as that amount remains uncollected, makes affidavit and proves to th satisfaction of some magistrate named in section one; or if the execu tion was issued by a justice of the peace the affidavit may be mad before him: First. That the debtor has property not exempt from being take 1873 3523 on execution, which he does not intend to apply to the payment of th plaintiff's claim; or, 115M236 Second. That since the debt was contracted, or the cause of action accrued, the debtor has fraudulently conveyed, concealed, or otherwis disposed of some part of his estate, with a design to secure the same t his own use or defraud his creditors; or, 3 Allen, 181. 1124.394 5 Allen, 393. on execution for costs; See 1862, 169, § 2. Third. That since the debt was contracted, or the cause of actio accrued, the debtor has hazarded and paid money or other property t the value of one hundred dollars or more in some kind of gaming pro hibited by the laws of this state; or, Fourth. That since the debt was contracted the debtor has wilfull expended and misused his goods or estate, or some part thereof, for th purpose of enabling himself to swear that he has not any estate to th amount of twenty dollars except such as is exempt from being taken o execution; or, Fifth, (if the action was founded on contract.) That the debto contracted the debt with an intention not to pay the same; or, Sixth. That the debtor is an attorney at law; that the debt upo which the judgment on which the execution issued was for money col lected by the debtor for the creditor, and that said attorney unreason ably neglects to pay the same. And such affidavit and the certificate o the magistrate that he is satisfied there is reasonable cause to believ the charges therein contained, or some one of them, are true, shall b annexed to the execution. SECT. 6. No affidavit shall be required to authorize arrest upon a execution issued for costs only, but the debtor arrested shall be com mitted thereon, unless he requires the officer to take him before som magistrate authorized by this act, and all other proceedings in relation to such debtor so arrested shall be in conformity with the provisions of sunset. SECT. 8. No arrest shall be made after sunset, unless specially No arrest after authorized by the magistrate making the certificate, upon satisfactory 1857, 141, § 30. cause shown. DISCHARGE OF PERSONS ARRESTED ON MESNE PROCESS AND EXECUTION. 104 Mass. 354. to be allowed time 1857, 141, 1873c352 SECT. 9. When arrested on mesne process the defendant shall be When arrested, allowed reasonable time to procure bail, and when arrested on such to procure bail, process in an action of contract, or on execution, he shall be allowed &c. reasonable time to procure sureties for his recognizance hereinafter mentioned. When arrested on mesne process in an action of contract, if he does not give bail, and when arrested on execution in any case, he shall be taken before some justice of a court of record, police court, judge of a probate court, master in chancery, commissioner of insolveney, and except in the county of Suffolk, trial justice or two justices. of the quorum. his $$ 4, 18, 22. 7 Gray, 581. 6 Allen, 260. 8 Magistrate may 11 Gray, 226. 14 Gray, 324, 579. 6 Allen, 285, 287. 8 Allen, 150. 10 Allen, 314. 14 all. 514 SECT. 10. When taken before the magistrate, if the defendant or debtor desires to take an oath as hereinafter mentioned, but does not desire any time fixed for his examination, the magistrate may take recognizance with surety or sureties in a sum not less than double the amount of the execution, or of the ad damnum in the writ, if he is arrested on mesne process, that within thirty days from the day of his arrest he will deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof as herein provided, and appear at the time fixed for his examination, and from time to time until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon: provided, that if he is arrested on mesne process and the writ is returnable within thirty days, the number of days within which he shall deliver himself up shall be limited by the magistrate so as not to extend beyond the return day of the writ. 105 Mass. 341, 389. 106 Mass. 118, 455. 354, 433. SECT. 11. A person taken on execution and recognizing for his appearance to take the oath for the relief of poor debtors, may if surrendered by his surety recognize anew for such appearance at the time, place, and upon the conditions, expressed in the first recognizance. SECT. 12. If the defendant or debtor when taken before the magistrate or at any time when entitled thereto desires to take an oath as herein- take oath; after provided and to have a time fixed therefor, the magistrate shall 1857, 141, appoint a time and place for his examination and issue notice thereof Cush. 289. to the plaintiff or creditor, signed by him and designating his official capacity, substantially in the following form: To A C D arrested on mesne process (or execution) in your favor, desires to take the oath for the relief of poor debtors, (or, if arrested on mesne process in an action of contract, the oath that he does not intend to leave the state,) at (naming the day and hour and place.) Notice may be given that the defendant arrested on mesne process as aforesaid desires to take both of said oaths, and the form of notice be varied accordingly. 104 Mass. 221, 103 Mass. 549. 481-484 117m. 1,190 service of. 1857, 141, §§ 4,5. 7 Cush. 263, 265. SECT. 13. The notice shall be served by any officer qualified to serve civil process, by giving to the plaintiff or creditor, his agent or attorney, 7 Met. 287. an attested copy thereof, or by leaving such copy at the last and usual 11 Met. 77. place of abode of the plaintiff or creditor, his agent or attorney, allowing & Gray, 251. not less than one hour before the time appointed for the examination, 10 Gray, 236. and time for travel at the rate of not less than one day for every twentyfour miles' travel. When there is more than one person plaintiff or creditor, or more than one agent or attorney, service on one shall sufficient. When the plaintiff or creditor is dead or not a resident in 1861.04112 1091.216 115m.236 40358 11/M. 76 1129.87 |