ing to him after his estate comes into possession, if not sooner paid, notwithstanding any limitation by lapse of time. sion; SECT. 61. Every mortgagee in possession shall be considered as a Case of a mortproprietor for all the purposes of this chapter; but the mortgagor, if the age in possesaction is brought against him before his right of redemption is fore- R. S. 116, § 54. closed, shall also be liable for all sums so due on account of his share of the mill, so far as the same are not recovered from the mortgagee. All sums paid on this account by the mortgagee shall be considered and allowed, between him and the mortgagor, as so much paid for repairs or improvements of the mortgaged premises. SECT. 62. Every tenant in tail of any part of a mill shall for all the purposes of this chapter be considered as the proprietor thereof in fee R. simple. tenant in tail. S. 116, § 55. tween proprie SECT. 63. All sums due from one proprietor to another for moneys How suits beadvanced by force of this chapter, may be recovered in an action of tors brought. contract; and when two or more proprietors are so indebted, the cred- R$ 116, § 56. 1852, 312. itor or creditors may maintain a suit in equity in the supreme judicial court against any two or more of them, in which suit the court shall determine what amount is due from each of the debtors severally, and shall award judgment and execution against each of them accordingly; and may make all such orders, decrees, and judgments, and issue such process as may be necessary and proper to carry into effect the provisions of this chapter. The court shall apportion the amount so recovered among the plaintiffs in the suit, if more than one, according to their respective rights. SECT. 64. Nothing contained in this chapter shall in any way affect any contract or agreement by or between the proprietors of any mill as to the repair or rebuilding thereof. DUTIES AND COMPENSATION OF MILLERS. Chapter not to ments, &c. affect agree R. S. 116, § 58. scales, &e, and weigh grain, if Millers to keep penalty. R. S. 115, § 59. 1852, 312. SECT. 65. Every miller occupying and using a grist mill shall be provided with scales and weights, or a vibrating steelyard, to weigh corn, grain, and meal, to and from the mill, if required; and if he neglects to keep himself so provided, or refuses so to weigh corn, grain, or meal, when required, he shall for every such neglect or refusal forfeit and pay to any person who sues therefor a sum not exceeding five dollars, to be recovered in an action of tort. SECT. 66. The toll for grinding any sort of grain shall not exceed What toll alone-sixteenth part thereof. lowed. 5. dissolved unless party file statement of account, &c., with city or town clerk in thirty days. Record. 6. Inaccuracy in statement not to invalidate, unless, &c. before police court and justices, &c., if claim does not exceed $100. 10. Petition may be inserted in writ; 11. to contain brief statement of contract, &c. 13. Any number who have labored on same build- 14. Notice to owner, and to other creditors; Lien of colemant for taxes paid. 1875.236. Bond to releas. 1874321 Railroads 1873 c 353 Party furnishing 1852, 307, § 1. 1855, 431, § 1. 20 Pick. 542. /08 m. 103 13 Met. 153. 4 Cush. 536. 5 Cush. 119, 122. 11 Cush. 238, 308. 1 Gray, 576. 13 Gray, 312, 414. SECTION 1. Any person to whom a debt is due for labor performed or furnished, or for materials furnished and actually used, in the erection, alteration, or repair, of any building or structure upon real estate, by virtue of an agreement with, or by consent of, the owner of such building or structure, or any person having authority from, or rightfully acting for, such owner in procuring or furnishing such labor or materials, shall have a lien upon such building or structure, and upon the interest of the owner thereof in the lot of land upon which the same is situated, to secure the payment of the debt so due to him, and the costs which may arise in enforcing such lien under this chapter; except as is provided in the following sections. 3 Allen, 307. 103 Mass. 233, 470. See 1872,318, § 1. 106 Mass. 228, 528, 531. 7 Allen, 85. 11 Allen, 444. 5 Allen, 403,406, 540. 8 Allen, 543, 573, 590. 101 Mass. 435. SECT. 2. Such lien for materials furnished shall not attach unless the person furnishing the same before so doing gives notice to the owner of the property to be affected by the lien, if such owner is not the purSee 1872, 318, § 3. chaser, that he intends to claim such lien. Lien for material not of force against existing not to attach if ing, &c., gives 1855, 431, § 4. dissolved un- statement of ac- city or town clerk Record. 1855, 431, § 2. 109 in 395 13 Gray, 100. 3 Allen, 464. //0/68 Allen, 590. 11 Allen, 154. 116m 375 See 1872, 318, § SECT. 3. Such lien shall not avail or be of force against any mortgage actually existing and duly recorded prior to the date of the contract under which the lien is claimed. SECT. 4. The owner of any such building or structure in process of erection or being altered or repaired, other than the party by whom or in whose behalf a contract for labor and materials has been made, may prevent the attaching of any lien for labor thereon not at the time performed, or materials not then furnished, by giving notice in writing to the person performing or furnishing such labor, or furnishing such materials, that he will not be responsible therefor. SECT. 5. Such lien shall be dissolved unless the person desiring to avail himself thereof, within thirty days after he ceases to labor on, or furnish labor or materials for, such building or structure, files in the office of the clerk of the city or town in which the same is situated, a statement of a just and true account of the amount due him, with all just credits given, together with a description of the property intended to be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known; which certificate shall be subscribed and sworn to by the person claiming the lien, 2. or by some one in his behalf, and shall be recorded in a book kept for the purpose by the clerk of such city or town, who shall be entitled to the same fees therefor as for recording mortgages of equal length. 1875,20 Inaccuracy in SECT. 6. No inaccuracy in such statement relating to the property to be covered by the lien, if the property can be reasonably recognized, or in stating the amount due for labor or materials, shall invalidate the proceedings, unless it appears that the person filing the certificate has wilfully and knowingly claimed more than is his due. SECT. 7. Unless a suit for enforcing the lien is commenced within 5 Allen, 406. 7 Allen, 85. menced in ninety days. 9 Allen, 575. 1858, 55, § 1. forced; Lien, how en- ninety days after the person desiring to avail himself thereof ceases to unless suit comlabor on, or furnish labor or materials for, such building or structure, the lien shall be dissolved. SECT. 8. The lien may be enforced by petition to the superior court in the county where the building or structure is situated. The petition may be filed in term, or in the clerk's office in vacation, and the date of the filing shall be deemed the commencement of the suit. SECT. 9. When the amount of the claim does not exceed one hundred dollars, the lien may be enforced by petition to a justice of the peace, or police court; and such justices and courts shall have like power and authority within their jurisdiction as are herein conferred upon the superior court, with like rights of appeal to the parties as exist in other civil cases. SECT. 10. The petition may be inserted in a writ of original summons, and be served, returned, and entered, as other civil cases. SECT. 11. Whether filed as a petition, or inserted in such summons, the petition shall contain a brief statement of the contract on which it is founded, and of the amount due thereon, with a description of the premises subject to the lien, and all other material facts and circumstances; and shall pray that the premises may be sold, and the proceeds of the sale be applied to the discharge of the demand. SECT. 12. The court may at any time allow either party to amend his pleadings as in actions at common law. claim does not exceed $100. 1855, 431, § 5. Petition may be inserted in writ; 1855, 431, § 5. to contain brief statement of contract, &c. RS.117, § 6. 11 Cush. 308. Parties may amend. 1855, 431, § 6. same building tion. SECT. 13. Any number of persons who have actually performed Any number who labor or furnished labor or materials on one or more buildings or struc- have labored on tures upon different lots of land, where the labor was performed for the may join in petisame owner, contractor, or other person, may join in the same petition 1852, 307, § 2. for their respective liens; and the same proceedings shall be had in 1855, 431. regard to the rights of each petitioner, and the respondent may defend as to each petitioner in the same manner as if he had severally petitioned for his individual lien. 5 3 Allen, 458. creditors; SECT. 14. (R.) [The court in which the petition is entered shall order Notice to owner, notice to be given to the owner of the building or structure, that he and to other may appear and answer thereto at a certain day in the same term, or at R. S. 117, § 7. 1855, 431, § 1. the next term, by serving him with an attested copy of the petition, with Cush 122, 123 the order of the court thereon, fourteen days at least before the time Allen, 458. assigned for the hearing; and the court shall also order notice of the 103 Mass. 231. filing of the petition to be given to all other creditors who have a lien (R), Repeal and of the same kind upon the same estate, by serving them with a copy of 1871, 78. the last-mentioned order in like manner.] 11 Allen, 157. substitute. to absent parties, &c. 103 Mass. 232 SECT. 15. If it appears to the court that any of the parties entitled to notice are absent or that they cannot probably be found to be served R. S. 117. § 8. with the notice, the court may, instead of the personal notice before 5 Cush. 124. mentioned, or in addition thereto, order notice to all persons interested, by publishing in some newspaper the substance of the petition, with the order of the court thereon, assigning the time and place for a hearing, or may order such other notice to be given, as may under the circumstances of the case be considered most proper and effectual. SECT. 16. If at the time assigned for the hearing it appears to the Further notice. R. S. 117, § 9. court that any of the persons interested have not had sufficient notice 5 Cush. 124. of the suit, the court may order further notice to them, in such manner as may be considered most proper and effectual. proved and con 5 Cush. 122. SECT. 17. At the time assigned for the hearing, or within such fur- Claims may be ther time as the court allows for that purpose, every creditor having a tested. lien of the kind before mentioned upon the same property, may appear RS.11,§ 10. and prove his claim, and the owner and each of the creditors may contest the several claims of every other creditor, and the court shall hear and determine them in a summary manner, either with or without a jury, as the case may require. Facts may be tried by jury. R. S. 117, § 11. 1852, 314, § 2. Claims not payable may be allowed: R. S. 117, § 12. for part per tract. R. S. 117, § 13. 5 Cush. 122. SECT. 18. Every material question of fact arising in the case shall be submitted to a jury, if required by either party or thought proper by the court; and the trial shall be had upon a question stated, or an issue framed, or otherwise, as the court may order. A jury shall be had before a justice of the peace, or police court, only as in other civil cases. SECT. 19. The court shall ascertain and determine the amount due to each creditor who has a lien of the kind before mentioned upon the property in question; and every such claim due absolutely and without any condition, although not then payable, shall be allowed, with a rebate of interest to the time when it would become payable. SECT. 20. When the owner fails to perform his part of the contract, formance of con- and by reason thereof the other party without his own default is prevented from completely performing his part, he shall be entitled to a reasonable compensation for as much as he has performed, in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly. 11 Cush. 240. Sale of premises, SECT. 21. If the lien is established in favor of any of the creditors whose claims are presented, the court shall order a sale of the property to be made by any officer authorized to serve civil process between the 16.196 same parties. Part may be sold if sufficient. R. S. 117, § 15. Notice of sale. See Ch. 103, § 41. Right of redemption. R. S. 117, § 17. See Ch. 103. 106 Mass. 231. Proceeds of sale, how distributed B. S. 117, §18 116m.196 may be brought into court, &c. of distribution. R. S. 117, § 19. SECT. 22. If part of the property can be separated from the residue and sold without damage to the whole, and if the value thereof is sufficient to satisfy all debts proved in the case, the court may order a sale of that part, if it appears to be most for the interest of all parties con cerned. SECT. 23. The officer who makes the sale shall give notice of the time and place in the manner prescribed in relation to the sale on execution of a right of redeeming mortgaged lands, unless the court orders a different notice to be given. SECT. 24. Any interest in real estate so sold may be redeemed in the manner provided in the case of a sale on execution of the right of redeeming mortgaged lands. SECT. 25. If all the claims against the property covered by the lien are ascertained at the time of ordering the sale, the court may order the officer to pay over and distribute the proceeds of the sale, after deducting all lawful charges and expenses, to and among the several creditors, to the amount of their respective debts if there is sufficient therefor; and if there is not sufficient, then to divide and distribute the same among the creditors in proportion to the amount due to each of them. SECT. 26. If all the claims are not ascertained when the sale is ordered, or if for any other reason the court finds it necessary or proper Successive orders to postpone the order of distribution, it may direct the officer to bring the proceeds of the sale into court, there to be disposed of according to the decree of the court; and if by reason of the claims of attaching creditors, or for any other cause, the whole cannot be conveniently distributed at once, the court may make two or more successive orders of distribution, as the circumstances may require. surplus, how disposed of. SECT. 27. If there is any surplus of the proceeds of the sale after RS. 117, $ 20. making all the payments before mentioned, it shall be forthwith paid over to the owner of the property; but such surplus before it is so paid over shall be liable to be attached or taken on execution, in like manner as if it proceeded from a sale made by the officer on an execution. 1855. 431, § 1. 13 Met. 153. 5 Cush. 122. Prior attaching creditor pre ferred. Propor- held, &c. See 1861, 131. SECT. 28. If the interest of the owner in the building, structure, or land, is under attachment at the time of filing and recording the statement of the account, the attaching creditor shall be preferred to the extent of the value of the buildings and land as they were when the statement was recorded; and the court shall ascertain by a jury or otherwise, as the case may require, what proportion of the proceeds of the sale shall be held subject to the attachment, as derived from the value of the property when the statement was recorded. SECT. 29. If the attaching creditor recovers judgment he shall be such proportion entitled to receive on his execution the proportion of the proceeds held execution. to be applied on subject to his attachment, or as much thereof as may be necessary to R. S. 117, § 22. satisfy his execution, and the residue of the proceeds shall be applied in the same manner as if there had been no such attachment. tachment to be SECT. 30. If the interest of the owner of the property is attached Subsequent atafter the recording of the statement, the proceeds, after discharging all satisfied after prior liens and claims, shall be applied to satisfy the execution of such lien attaching creditor, in like manner as is provided in chapter one hundred and thirty-three, in the case of two or more successive attachments or seizures in execution of a right of redemption. R. S. 117, § 23. SECT. 31. If an attachment is made after the recording of such state- Attachment inment, and if after the attachment another like statement is recorded, tween two liens. tervening bethe creditor in the latter statement shall be entitled to be paid only out R. s. 117, § 24. of the residue of the proceeds remaining after paying all that is due on the demands, a statement of which is recorded before the attachment, and satisfying the attaching creditor. of persons having themselves. SECT. 32. When there are several attaching creditors, they shall as Rights of attachbetween themselves be entitled to be paid according to the order of ingreditors and their attachments; but when several creditors who are entitled to the liens, as between lien provided for in this chapter have equal rights as between them- R. S. 117, § 25. selves, and the fund is insufficient to pay the whole, they shall share it equally in proportion to their respective debts. estate less than interest. SECT. 33. If the person for whom the work is done, or materials are Debtor having an furnished, has an estate for life, or any other estate less than a fee sim- fee simple, &c., ple, in the land, or if the property at the time of recording the state- lien to bind his ment is mortgaged, or under any other incumbrance, the lien before R. S 117, § 26. provided for shall bind his whole estate and interest therein, in like 1855, 481. manner as a mortgage would have done; and the creditor may cause 5 Cush. 122. the right of redemption, or whatever other right or estate the owner 11 Allen, 154. had in the property, to be sold and applied to the discharge of his debt 101 Mass. 437. according to the provisions of this chapter. 13 Met. 155. 3 Gray, 235. 103 Mass. 471. 106 Mass. 231. forced against 1855, 431. SECT. 34. If the person indebted dies or conveys away his estate or Lien may be eninterest before the commencement of a suit on the contract, the suit may heirs or assigns; be commenced and prosecuted against his heirs, or whoever holds the R. S. 117, § 27. estate or interest which he had in the premises at the time the labor 5 Cush. 123. or materials were performed or furnished; or if a suit is commenced in his lifetime, it may prosecuted against his executors, administrators, heirs, or assigns, in like manner as if the estate or interest had been mortgaged to secure the debt. be SECT. 35. If the creditor dies before the commencement of a suit, the suit may be commenced and prosecuted by his executors or administrators; or if commenced in his lifetime, it may be prosecuted by them as it might have been by the deceased if living. by executors or R. S. 117, § 28. administrators. S. J. C. SECT. 36. Any party interested in a suit brought under this chapter Appeal allowed to may appeal to the supreme judicial court, from the final decree or judg- R. S. 117, § 29. ment of the superior court, as is prescribed in relation to other civil 1840, 87. cases, and the cause shall be thereupon heard and determined in the supreme judicial court, according to the provisions of this chapter. by one creditor when, &c. SECT. 37. If it appears in any stage of the proceedings that the suit Suits commenced was commenced by the petitioning creditor before his right of action may be proseaccrued or after it was barred, or if he becomes nonsuit, or fails to estab- cuted by another lish his claim, the suit may be prosecuted by any other creditor having R. S. 117, § 30. such lien, in the same manner as if it had been originally commenced by him, if the circumstances of the case are such that he might then, or at any time after the commencement of the original suit, have commenced a like suit on his own claim. |