Actions of account how

proceeded with.

Auditors.

Defendant's refusal to appear, plaintiff

to recover his whole demand. Auditors may

commit the party who

shall refuse to disclose on oath.

On return of

auditors, final judgment to be given.

Like remedy in actions on book, if above 17 dollars.

Action of account be

when any defendant in any action of account, depending in any sperior or county court in this State, shall plead in his defence any plea (which being true he ought not to account,) it shall be tried by a jury, if either party desire it: and in case the issue be found against the defendant by the jury or otherwise, the court shall enter judgment against him that he shall account: and thereupon shall appoint three able, judicious and disinterested men, auditors in such case; who shall be sworn to hear, examine and adjust the account or accounts; and the auditors appointed as aforesaid, are hereby authorized and impowered to appoint time and place for the hearing and adjusting the accounts aforesaid.(1)

§ 2. And upon the Defendant's refusal (due notice being giv en him of the time and place appointed) to attend upon them and produce his accounts, the auditors shall award to the plaintiff the whole of his demand; and upon the parties producing to them their accounts, the auditors shall have power to administer an oath unto them to answer to such interroga tories as they shall think proper, respecting their accounts : and upon either of the parties refusal to take such oath, or to answer directly to such interrogatories, it shall be in the pow er of the auditors to commit the party so refusing to gaol; there to remain at his own charge, until he will account or answer as aforesaid.(1)

§ 3. And when the auditors have adjusted the accounts, or awarded as aforesaid, and returned the same to the court, (either at the same session or the next) that final judgment shall be made up for the recovery of the sum awarded and the costs, together with such reasonable costs for the service of the auditors, as the court shall award; which shall be by the party in whose favour the cause is determined, then paid down to the auditors; and shall be allowed him in his bill of costs.(1) § 4. And be it further enacted, That in all actions brought on book accounts, if the account be alledged to be above seventeen dollars, the like method may be taken in appointing auditors for the adjustment of the accounts between the parties; and whosoever shall be awarded by them to be in arrears, the court shall enter up judgment for the same, with additional costs as aforesaid.(1)

§ 5. And be it further enacted, That executors who are also residuary legatees, when all or any part of their legacies are tween execu- withholden from them by their co-executors, may bring their tors, &c. action of account against their co-executors for the recovery thereof and the like action is also hereby allowed to residuary legatecs against executors.(2)

Also, between jointtenants, &c. as bailiffs of each other.

§ 6. That when two or more persons have and hold any estate or interest, in common, as joint-tenants, tenants in common, or co-partners, and one or more of the owners of such common-interest, shall take, receive, use, or take benefit of, such common-interest in greater proportion than his or their

(1) Passed in October, 1724; slightly altered at each of the subsequent revisions.

(2) Passed in May, 1729.

interest in the principal estate, such owner or owners, his or their executors and administrators, shall be liable to render his or their reasonable account, for such his or their taking, use and profit of such common-interest and estate, to his or their fellow-commoner or commoners, jointly or severally; and that such their fellow-commoner or commoners, or any or either of them, their executors or administrators, may and are hereby enabled to have his or their action of account against such receiver or receivers, or either of them, as their bailiffs for receiving more than their part or proportion as aforesaid.(3) § 7. And no appeal shall be allowed from any judgment No appeal. given on an award of auditors.(4)

(3) Passed in May, 1759.

(4) Passed in May, 1762.

TITLE V. Accounts public.

CHAP. I.

An Act for regulating and auditing the public Ac

counts.

FOR preventing inconveniences in the public accounts, and that no arrears in the state's accounts be standing out after the year be expired.

E it enacted by the Governour and Council and House of Auditors to be

$1. B Representatives in General Court assembled, That annually ap

tober, &c.

meet persons shall by this court be appointed annually in May, pointed in Octo make up and audit the state's accounts with the treasurer; which accounts shall be audited and perfected before the sitting of the general court in October yearly. And all such persons as shall be appointed to audit said accounts, shall before their entering upon that service, take the oath provided by law for such auditors.

§2. And the treasurer is hereby obliged to make himself Treasurer's debtor for the several sums due from every of the towns in this duty. state, and also for all fines belonging to the state treasury; and so for the whole rate or sum total arising, by bringing the several particular sums into one entire sum; and to bring in credit (according to law) until he shall consummate and perfect the state's account as aforesaid.

§3. And this the said treasurer shall do annually, on the Penalty on the

penalty of sixty-seven dollars, to be forfeited to this state, for treasurer.

every month after the month of September annually, that he shall neglect to make up and perfect the said accounts, and pay

according to the order of this court, such sum or sums as remain due.

加

§ 4. And the treasurer of each respective county in this County treastate, shall annually make himself debtor for all fines and other surer's duty. monies belonging to the county whereof he is treasurer, and al

so make a fair account of his payments, how he hath disposed of them. And the accounts of each county treasurer shall be

Secretary to settle his ac

counts annually with the Treasurer.

annually audited and perfected by the judge and justices of the county courts respectively, and their respective trea

surers.

§ 5. And be it further enacted, That the secretary of this state, and the clerk of the superior court, shall annually render an account to the treasurer of this state, of all the fines and forfeitures due to the public treasury, appearing by the records in their respective offices, that the same may be collected and paid into the treasury, for the use of the state; and shall in like manner render an account to the treasurer, of all fees by them respectively received for the use of the state, and pay into the treasury what shall be due thereon: and they shall likewise seasonably transmit a copy of their said accounts annually, to the auditors appointed to audit the treasurer's accounts: and the secretary shall also transmit to said auditors an account of all the treasurer's receipts for money paid into the treasury, that shall be lodged with him.(1)

(1) An Act contained in the first printed edition of the statutes provided. that meet persons should be appointed yearly to audit the accounts of the jurisdiction. In the edition revised and published in 1702, we find “An Act for auditing the public accounts,” in nearly its present form. In May, 1726, an Act was passed, requiring the auditors to

Account of expences of county courts to be kept. Also, of the avails.

Balance to be paid by the state.

Controller

to adjust the account and order payment.

take an oath, the form of which was therein prescribed; which provision, the form of the oath being omitted, was annexed to the first paragraph of this act, at the revision in 1750. At that in 1784, the provisions of the last paragraph were extended to the olerk of the superior court, and to fees.

CHAP. II.

An Act making provision for defraying the expences of the courts of common pleas.

B

[Enacted in May, 1803.]

E it enacted by the Governour and Council and House of Representatives in General Court assembled, That in future the treasurers of the several counties shall keep a true account of the expences of the courts of common pleas, within their respective counties, including the compensation to the judges, and the incidental expences of the court; and also of the avails of the court, including all the fines and penalties collected and paid into said Trsasuries in each year. And it shall be the duty of each court at their sessions next preceeding the first day of May annually to settle and adjust their accounts, and when it shall appear on such settlement that the avails of any court shall be insufficient to defray the expences of such court for the year preceeding such settlement, such court may present their accounts to the controller of the public accounts for his examination and adjustment. And it shall be the duty of said Controller to draw his order in favor of the treasurer of such county, on the treasurer of this state, for such sum as he shall find due to such court, whe shall pay the same accordingly.

Provided, That in no case shall any order be drawn for a greater sum than the amount of the duties, arising on civil process, which shall be paid into the state treasury from such county, in the year next preceding the presenting their accounts to said comptroller.

TITLE VI. Actions civil.

CHAP. I.

An Act for the directing and regulating of civil

§ 1. B

Actions.

E it enacted by the Governour, and Council, and House of Representatives, in General Court assembled, That Ordinary prothe ordinary process in civil actions in this State, shall be a cess what. summons or an attachment, fairly written, signed by a magistrate, justice of the peace, or clerk of the court, mentioning the court, the time and place of appearance; therein also containing a declaration of the substance of the action: which How served. attachments may be granted against the goods or chattels of the defendant; and for want of them, the lands or person of the defendant may be attached; provided the plaintiff when he prays out an attachment, gives sufficient security to prosecute his action to effect, and answer all damages in case Ire make not his plea good.(1) And like security shall be

(1) The provisions of this paragraph, relating to process in civil actions, have grown out of several antecedent acts, some of which are of an early date. An act under the title of " Attachments," in the code compiled in 1650, provided, that the ordinary process should be a summons, fairly written, signed by a magistrate, mentioning the time and place of appearance; and in default of appearance, an attachment was to issue against the person of the defendant, returnable to the next court, for contempt. By a subsequent paragraph of the same act, it was provided, that attachments might be granted “to seize upon a man's lands or estate," in two cases: first, where the defendant was a foreigner, not dwelling or inhabiting within the jurisdiction; and, secondly, where it appeared, upon credible information, that an inhabitant, being indebted, was about to convey a way his estate to defraud his creditors, or to convey away his person out of the jurisdiction, so that he could not be served with process. As an attachment against property issued in the first instance, it was deemed necessary, expressly to authorize the plaintiff to declare upon it, at the return. The par

ty taking out an attachment was required to give sufficient security to prosecute his action, and to answer to the defendant such costs as should be awarded to him by the court; and, in case of an attachment against the goods or lands of a person living within the jurisdiction, to give him notice personally, or to leave it in writing at his house, or place of usual abode. Unless these requirements were complied with, the suit could not proceed. How long this act had been in force, when the statutes were first compiled, we cannot precisely ascertain. It appears, however, that that part which requires security to be given upon an attachment against property, was passed in June, 1644; the necessary inference from which is, that the other provisions were in force before that time. By an act passed in May, 1660, the process by attachment was considerably extended. The provisions of that act were introduced by reciting that the former statutes had not attained their end. It was then provided, that such creditors as had debts due to them in corn, or any other special pay, might, after demand and refusal, take out an attachment, and levy it upon the specific

Bond for pro- given by some substantial inhabitants of this state, on granting sccution, in a summons, when the plaintiff is not an inhabitant of this state(2) or if it shall appear to the authority signing the same, that the plaintiff is unable to pay the cost of prosecution, if recovered against him.(3) And all writs and processes shall be To whom di- directed to the sheriff, his deputy, or some constable, if such officer can be had without great charge or inconvenience: [And in every case wherein the authority signing a writ shall find it necessary to direct the same to an indifferent person, such authority shall insert the name of the indifferent person in the direction of the writ, and the reason of such direction: and if any writ be othwise directed, it shall abate.]

Provided nevertheless, Nothing herein shall extend to af fect summonses for witnesses, warrants to collectors of rates, or warrants granted by military officers.(4)

§ 2. And that no person shall be required to make answer in any civil action, real, personal or mixt, except the writ or process, if returnable to the superior or county court, hath been served upon him at least twelve days inclusive, before the day of the court's sitting or if returnable to an assistant or justice, the same hath been served six days inclusive, as aforesaid ;(5) which service shall be, if a summons, by reading the same in the hearing of the defendant or defendants, or leaving an attested copy thereof at the place or places of his or their usual abode; but if an attachment, the service shall be