R. S. 95, § 40. 1852, 314, § 7. 1859, 196. Punishment for superior court, or before any justice of the peace or police court, the sheriff or other officer before whom the jurors were required to appear shall make known the fact to the superior court, next to be held in the same county, and the court, after due examination and a hearing of the parties who are charged, shall impose the fine. SECT. 39. If any city or town clerk, selectmen, mayor, or alderman fraud in draw is guilty of fraud, either by practising on the jury box previously to a ing jurors. Special juries not affected. R. S. 95, § 42. 1837, 228. 1838, 73. 1839, 149. draft, or in drawing a juror, or in returning into the box the name of any juror which had been lawfully drawn out and drawing or substituting another in his stead, or in any other way in the drawing of jurors, he shall be punished by a fine not exceeding five hundred dollars. EXCEPTION OF SPECIAL JURIES. SECT. 40. Nothing contained in this chapter shall affect the power and duty of coroners or magistrates to summon and empanel jurors when authorized by other provisions of law. CHAPTER 133. OF JUDGMENT AND EXECUTION. ENTERING JUDGMENT; AWARDING AND ISSU- LEVY OF EXECUTIONS AND PERSONAL PROP SECTION ING EXECUTION. 1. Judgment, of what day to be entered. 2. Award of judgment on default. 3. Court may order damages to be assessed 4. or the damages may be ascertained by 5. Judgment may be rendered against such 6. how entered, and separate executions 7. to be entered as of a former term in cer- SALE, &C., OF GOODS TAKEN ON EXECUTION. tain cases. 8. Interest on awards, reports, verdicts, judg- 9. Judgment on forfeiture of a penalty. 10. For what sum execution shall issue, and 11. Scire facias to recover further damages. 34. Goods, how sold on execution. 13. Plaintiff may sue for damages instead of 41. entered. SECTION 1. Every judgment shall be entered as of the last day of Judgment, of the term in which it is rendered, unless there is an express order of the court for the entry thereof on some other day; in which case, the day shall be noted by the clerk on his docket. The court may enter judgment upon default at any time after four days from the day of default. what day to be 1852, 312, § 11. 16 Mass. 381. SECT. 2. When the defendant is defaulted in any stage of the pro- Award of judg ceedings, the court shall award such judgment for the plaintiff as they ment on default. shall upon inquiry find to be just and proper; unless the plaintiff or defendant moves to have the damages assessed by a jury, in which case they shall be so assessed. der damages to SECT. 3. The court may, in all cases in which damages are de- Court may ormanded, refer the assessment thereof to a jury, although it is not moved for by either party. be assessed by jury. may be ascer- tained by the R. S. 97, §4. against such de- SECT. 4. In actions upon promissory notes and other contracts where the amount due appears to be undisputed, the debt or damages may be assessed and ascertained by the clerk, under a general order of the court or by a special reference of the case to him. The judgment in either case shall be entered in the same form as if it had been awarded by the court on an assessment or computation made by themselves. SECT. 5. In any action founded on a contract express or implied in Judgment may which there is more than one defendant, the plaintiff shall be entitled be rendered to judgment against such defendants as are defaulted, and against those who upon trial are found liable on the contract declared on, notwithstanding it is found that all the defendants are not jointly liable thereon. SECT. 6. In such action when any defendants are defaulted, and upon trial any of the others are found liable, the court shall render judgment both against those defendants defaulted and those found liable for the debt or damages with costs to the time of the default, and against those who defend, for all costs accruing after the default; and shall issue separate executions on such judgment. fendants as are how entered, and separate ex- ecutions issued. to be entered as of a former term in certain 1842, 89, § 2. awards,reports, ments, &c. 1847, 153. SECT. 7. When a motion for a new trial is overruled, the court shall enter judgment as of the term when the verdict was rendered, if necessary or expedient to secure the rights of the prevailing party, or prevent loss by reason of the death of either party or otherwise. SECT. 8. When judgment is made up upon an award of county com- Interest on missioners, a committee, or referees, or on the report of an auditor or verdicts, judg master in chancery, or on a verdict of a jury, interest shall be computed upon the amount of the award, report, or verdict, from the time when made to the time of making up the judgment. Every judgment for the payment of money rendered subsequently to the sixth day of May in the year eighteen hundred and forty-seven, shall bear interest from the day of the rendition thereof. The warrant or execution issued on a judgment for the payment of money, shall specify the day upon which judgment is rendered, and shall require the collection or satisfaction thereof with interest from the day of its rendition. forfeiture of a SECT. 9. In actions for a breach of the condition of a bond or to Judgment on recover a penalty for the non-performance of a covenant, contract, or penalty. agreement, when it appears by verdict, default, confession, or otherwise, R. S. 100, § 8. that the condition is broken or the penalty forfeited, judgment shall be 13 Gray, 167 58 7 Met. 116. For what sum execution shall determined. entered for the penal sum, but no execution shall issue thereon except as is provided in the following sections. SECT. 10. The court shall award an execution for so much of the issue, and how penal sum as is then due and payable in equity and good conscience for the breach of the condition, or other non-performance of the contract. The sum shall be ascertained and determined by the court, unless the court thinks proper or either party moves to have it assessed by a jury, in which case it shall be so assessed. R. S. 100, § 9. Scire facias to recover further damages. SECT. 11. If any further sum afterwards becomes due on such bond or other contract, the plaintiff, his executors, or administrators, may R. S. 100, § 10. have a scire facias, on the judgment, from the court in which it was rendered, against the original defendant, his executors, administrators, heirs, devisees, or assigns, as the case may be, suggesting such further breaches of the contract as have occurred, and summoning the adverse party to show cause why execution should not be awarded upon the judgment for the damages caused by such further breaches. Proceedings thereon. R. S. 100, § 11. Plaintiff may 1 SECT. 12. The sum due in such suit shall be assessed and determined in the same manner as in the original suit, and execution awarded accordingly; and like proceedings may be repeated upon occasion of further breaches of the same contract, as often as they occur until the whole of the penalty is exhausted. SECT. 13. Nothing herein contained shall prevent any person from sue for damages bringing an action for the breach of any covenant or other contract, instead of suing for the penalty by which the performance of the covenant or contract was secured. instead of pen- SECT. 14. When judgment is rendered in a local action brought in an erroneous venue, the court shall cause its writ of possession or other roneous venue. needful writ of execution to be directed to the sheriff of the proper county, so that the judgment may be duly executed. 1852, 312, § 79. when to issue. R. S. 97, § 5. 8 Met. 496. not to issue &c. SECT. 15. No execution shall be issued within twenty-four hours after the entry of judgment. SECT. 16. No original execution shall be issued, unless within one after one year, year after the party is entitled to sue out the same; and no alias or other successive execution shall be issued afterwards, unless sued out within five years after the return day of that which preceded it. 1859, 16. 5 Mass. 373. Remedy for creditor after time for taking SECT. 17. If a judgment remains unsatisfied after the expiration of the time for taking out execution thereon, the creditor may have a scire out execution. facias to obtain a new execution, or he may at any time after the judg ment have an action of contract thereon. R. S. 97, § 8. 1852, 312. when a levy R. S. 97, § 43. SECT. 18. If an execution is returned satisfied in whole or in part by is not effectual. the sale of property not liable to such execution, and if damages are recovered against the judgment creditor or the officer who served the execution on account of the seizure and sale of the property, the creditor may have a writ of scire facias on his judgment, and shall thereupon be entitled to a new execution for the sum then remaining justly and equitably due to him. when property, &c., of a stockholder taken on execution against a corporation is recovered back. 1851, 213. Executions, forms of. 1784, 28. R. S. 73, § 54. R. S. 97, § 10. 1853, 269, § 1. 10 Met. 330. SECT. 19. If an execution against a corporation is satisfied in whole or in part by service or levy on the person or property of any member thereof, and the property levied on, or damages for service or levy, are subsequently recovered by such member from the officer or judgment creditor, the creditor may have a writ of scire facias on his judgment, and shall thereupon be entitled to a new execution for the sum remaining justly and equitably due to him. SECT. 20. The forms of executions shall be the same as heretofore established by law and the usage and practice of the courts. Executions issued upon judgments in civil actions in favor of the commonwealth shall be in form like those in favor of citizens. Executions issued by a justice of the peace, or police court, for a sum as damages exceeding twenty dollars, shall be so framed as to direct a levy upon the lands and tenements of the debtor. Alterations in the forms may from time to time be made, or allowed by the courts, when necessary to adapt them to changes in the law, or for other sufficient reasons. changes in, to SECT. 21. All changes in the forms of executions shall be subject to Executions, the final control of the supreme judicial court, and said court may by be under control general rules regulate such changes in all courts of the state. SECT. 22. All executions shall be made returnable in sixty days from R.S. 97, § 11. their date. SET-OFF OF EXECUTIONS. of S. J. C. when returnable. 1852, 312, § 83. 2 Met. 587, 590. 4 Cush. 420. SECT. 23. Executions between the same parties may be set off one against another, if required by either party, as prescribed in the follow- RS.97, $74. ing sections. 13 Met. 482. SECT. 24. When one of the executions is delivered to an officer to be served, the debtor therein may deliver his execution to the same officer, whether the second execution is directed to the same or to any other officer, and the officer shall apply it as far as it will extend to the satisfaction of the first execution; and the balance due on the larger execution may be collected and paid in the same manner as if there had been no set-off. may be set off. 22 Pick. 210. 9 Met. 509. Proceedings for that purposе. R. S. 97, § 75. Such set-off, SECT. 25. Such set-off shall not be allowed in the following cases: First. When the creditor in one of the executions is not, in the when not to be same capacity and trust, the debtor in the other; Second. When the sum due on the first execution was lawfully and in good faith assigned to another person before the creditor in the second execution became entitled to the sum due thereon; Third. When there are several creditors in one execution and the sum due on the other is due from a part of them only; Fourth. When there are several debtors in one execution and the sum due on the other is due to a part of them only; Fifth. Nor shall it be allowed as to so much of the first execution as is due to the attorney in that suit for his fees and disbursements therein. allowed. direct mode of 11 Mass. 317. LEVY OF EXECUTIONS, AND PERSONAL PROPERTY EXEMPT THEREFROM. SECT. 26. When an execution is in the alternative, so that it may be Creditor may lawfully served in either of two or more ways, the creditor or his at- service. torney may require the officer to serve it in either way; and the officer R. S. 97, § 12. shall conform to such directions if in his power. 3 Gray, 497. 2 Gray, 210. SECT. 27. If the creditor directs an officer to levy his execution on real estate, the officer shall serve it as prescribed in chapter one hundred and three. If he directs the officer to levy it on the goods of the debtor, the officer shall serve it as hereinafter provided. SECT. 28. Executions against corporations, when levied upon any corporate property, shall be levied in the same manner as other executions are levied, except in the cases provided for in chapters fifty-seven and sixty-eight. Officer, how to levy on real and R. S. 97, §§ 16, personal estate. 17. 7 Mass. 123. how on property of a corporation. R. S. 97, § 42. What goods lia SECT. 29. All chattels, real or personal, and all other goods which by the common law are liable to be taken on execution, may be taken and tion. sold thereon, except as is otherwise provided in this chapter. 17 Mass. 409. 3 Pick. 308. ble to execuR. S. 97, § 19. 7 Mass. 123. R. S. 97, § 20. SECT. 30. Current gold or silver coin may be taken on execution, and Current coin. may be paid to the creditor as money collected. Bank notes. 4 N. H. R. 198. SECT. 31. Bank notes and all other bills or evidences of debt, issued by a moneyed corporation and circulated as money, may be taken on execution and paid to the creditor at their par value as money col- 3 lected if he will accept them; otherwise they shall be sold like other 9 Mass. 537. chattels. 7 Mass. 438. 20 Pick. 352. 1 Pick. 271. SECT. 32. The following articles of the debtor shall be exempt from What goods are execution, viz. : exempt from execution. First. The necessary wearing apparel of himself and of his wife and children; one bedstead, bed, and the necessary bedding for every two persons of the family; one iron stove used for warming the dwellinghouse, and fuel not exceeding the value of twenty dollars procured and designed for the use of the family; Second. Other household furniture necessary for him and his family, not exceeding one hundred dollars in value; Third. The bibles, school books, and library, used by him or his family, not exceeding fifty dollars in value; Fourth. One cow, six sheep, one swine, and two tons of hay; Fifth. The tools, implements, and fixtures, necessary for carrying on his trade or business, not exceeding one hundred dollars in value; Sixth. Materials and stock designed and procured by him, and necessary for carrying on his trade or business, and intended to be used or wrought therein, not exceeding one hundred dollars in value; Seventh. Provisions necessary and procured and intended for the use of the family, not exceeding fifty dollars in value; Eighth. One pew occupied by him or his family in a house of public worship: provided, that nothing herein contained shall prevent the sale of any pew for the non-payment of any tax legally laid thereon; Ninth. The boat, fishing tackle, and nets of fishermen, actually used by them in the prosecution of their business, to the value of one hundred dollars; Tenth. The uniform of an officer or soldier in the militia, and the arms and accoutrements required by law to be kept by him; Eleventh. Rights of burial and tombs while in use as repositories for the dead. SECT. 33. If there is reasonable doubt as to the ownership of the goods, or as to their liability to be taken on the execution, the officer may require sufficient security to indemnify him for taking them. SALE, &C., OF GOODS TAKEN ON EXECUTION. SECT. 34. Goods seized on execution shall be safely kept by the officer, at the expense of the debtor, for four days at least; and shall be sold by public auction within fourteen days next after the seizure except as hereinafter provided, unless the debtor before such sale redeems them by otherwise satisfying the execution. SECT. 35. The officer shall give public notice of the time and place of the sale, by causing notifications thereof to be posted up forty-eight hours at least before the time of sale in some public place in the city or town where the sale is to be made, or by causing an advertisement of the time and place of sale to be published in some newspaper printed in the county, if there is any such paper. SECT. 36. If the value of the goods to be sold exceeds three hundred dollars, the officer, if requested by either party, shall give notice of the sale by advertisement in a newspaper as provided in the preceding section; and the sale may be made at any time after the expiration of four days, and within thirty days after the seizure on execution. SECT. 37. If at the time appointed for the sale the officer considers it for the interest of all persons concerned therein to postpone the sale for want of purchasers or other sufficient cause, he may postpone it for any time not exceeding seven days, and so from time to time, for like good cause, until the sale is completed; giving notice of every such adjournment by a public declaration thereof at the time and place previously appointed for the sale. take and SECT. 38. If the highest bidder for any article at such sale refuses to for it, the officer shall sell it again by auction, at the same time or within ten days thereafter, giving notice of the second sale; and pay |