Mass. Stat. March 11, 1784, at 3, sec. 8. Sect. 3. time. Where money is lent, it bears interest from the time it becomes payable. But for money, due for goods sold, no interest is allowed. XX. Of the costs. Formerly, if the plaintiff, in any action brought originally at the common pleas, recovered for debt or damage no more than four pounds, the plaintiff was entitled to no more than one quarter part of the amount of the debt or damage, so recovered. However, by statute of February 13, 1787, sect. 3, it is provided, that the party, in such case, may have full costs, if, in the opinion of the court, the plaintiff had a reasonable expectation of larger damages than four pounds.* So, by the same statute, where judgment shall be rendered, upon the report of referees, full costs shall be taxed for the party recovering, notwithstanding the judgment does not exceed four pounds; unless a different adjudication, respecting the costs, shall be made from the report itself. But now, by a subsequent statute, if the action be brought Mass. Stat. March 11, originally before the common pleas, the plaintiff must re1808, sect. 2. cover more than twenty dollars damage; otherwise, he will be entitled to no more than one quarter part so much costs as the damage he recovers. This "reasonable expectation" refers only to matters of fact, and not to matter in law; as where a defendant files his account as a set-off, or when, from evidence unexpectedly produced, the plaintiff's judgment is reduced to four pounds. Toppan vs.Atkinson, 2 Mass. T. R. 365. But, in the case of Bickford vs. Page, 2 Mass. T R. 455, the damages recovered did not exceed four pounds, yet the court allowed full costs; because a different principle had theretofore governed the court in assessing damages, than that by which they were governed in this case; and therefore the plaintiff might reasonably expect a greater sum. However, the action being covenant, in which the title to real estate was brought in question, the plaintiff, on this last ground, was entitled to full costs. TITLE XVII. ATTACHMENT. 1st. WHAT property may be attached. 2d. 3d. What property is exempted from attachment. In what manner an attachment may be lost. 4th. How far an officer is justifiable in breaking the doors of a dwelling-house to make an attachment. I. What property may be attached. Real estate may be attached, but it cannot be taken in execution, when the execution is issued by a justice of the peace. Mass. Stat. oa. 30, Mass. Stat. March 17, So also, all rights in equity of redeeming lands, mortgaged reversions, or the remainders, shall be liable to be 1784, at 1, sect. 4. taken by capias, or attachment upon mesne process, and by execution upon judgment recovered, for the payment of the just debts of the mortgagor or owner. So also, the share or shares, or interest of any person, Mass, Stat. March 8, in any turnpike, bridge, canal, or other incorporated com- 1805, at 7, sec. 1. pany, may, together with all the rights and privileges ap pertaining to such shares, be attached on mesne process, and taken on execution. Mass. Stat. Feb, 28, So also, the goods, effects, or credits of a debtor, deposited with some third person, may be attached in the hands 1795, act 9, sect. 1, of that third person. This furnishes an extensive remedy against fraudulent and absconding debtors; and is given by statute, which enacts, that any person or persons, body politic or corporate, entitled to any personal action, (excepting detinue, replevin, actions on the case for slanderous words, or malicious prosecutions, or actions of trespass for assault and battery,) against any person or persons, (other than bodies politic or corporate,) having any goods, effects, or credits, so entrusted or deposited in the hands of others, By and against whom, and in what cases, actachment tions of foreign atmay be brought. 1806, a& 5, scâ. 1. What articles of fur mestic animals are tachment. that the same cannot be attached by the ordinary process of law, may cause not only the goods of the person, against whom such action lies, to be attached in his own hands and possession, but also all his goods, effects, and credits, so entrusted or deposited, to be attached, in whose hands or possession soever they may be found, by an original writ to issue from the court of common pleas. II. What property is exempted from attachment. By statute it is enacted, that the wearing apparel, beds, Mass. Stat. March 13, bedsteads, bedding, and household utensils of any debtor, necessary for himself, his wife, and children; the tools of niture, and what do- any debtor, necessary for his trade or occupation; the exempted from at- bibles, and school-books, which may be in actual use in his or her family; together with one cow, and one swine; shall be altogether exempted from attachment and execution; and no civil officer shall attach, levy upon, or take the same, or any part thereof, either upon mesne process or execution. Provided nevertheless, that the beds and bedding, exempted as aforesaid, shall not exceed one bed, bedstead, and necessary bedding, to two persons; and the household furniture shall not exceed the value of fifty dollars, upon any just appraisement. Proviso. Mass. Stat. Nov. 19, If an execution debtor be committed, and be legally dis1787. at 2, seat. 4 charged from his confinement, on taking the poor debtor's oath; in such case, the judgment is nevertheless good against the estate of such debtor, and the creditor may either sue the judgment, or take out a new execution 1806, act 5, sect. 1. against any estate attachable by law; but his body cannot be again taken for the same debt. Mass. Stat. March 13, Cooke v. Gibbs, 3 Mass. T. R. 193. Same Case, Per Parsons, Ch. J. Brinley v. Allen, And where an action is brought on the judgment, the writ may command the sheriff to attach the defendant's estate, and to summon him to appear. Nor is it necessary to except, from such command, the articles legally freed from attachment. For if it sufficiently appears, that the plaintiff is entitled to a writ of attachment against the defendant's goods or estate, the precept to the sheriff must be construed to extend to such estate only, as is by law liable to attachment on the writ. An officer cannot attach the estate of a defendant, on mesne process, after having arrested his body on the same writ; and if he attach both, and return only the attach ment of the estate; in such case, he is liable to an action for a false return: And such action also lies for a third person, who had caused the same estate to be afterwards attached at his suit. Mass. Stat. June 22, Every citizen enrolled, and providing himself with the arms, ammunition, and accoutrements required by law, 1793, act 1, sect. 18. shall hold the same exempted from all suits, distresses, executions, or sales for debt, or for payment of taxes. Day v. Bisbitch, *Mass. Stat. March 4, ministrator, in his in Things fixed to the freehold cannot be attached, or taken in execution; and therefore for such taking, trespass will lie. Cro. Eliz. 374. In an action against an executor or administrator, as such, though the estate of the deceased may be attached,* 1784, seat. 9. yet the estate which properly belongs to the executor or administrator, in his individual capacity, cannot be; unless an executor or adProperty belonging to upon a suggestion of waste, founded on the sheriff's return dividual capacity, exof non est inventus, as to the estate of the testator or intestate; in which case a scire facias may issue against the executor or administrator; and upon default of appearance, or not shewing sufficient cause, execution shall be awarded against him of his own proper goods and estate, to the value of such waste, where it can be ascertained; otherwise for the whole sum recovered; and for want of goods or estate, against the body of such executor or administrator. III. In what manner an attachment may be lost. There are numerous ways in which an attachment may be lost. Thus, 1st. An attachment may be lost by the death of the defendant, pending the suit; provided the estate of the deceased be represented as insolvent, but not otherwise. empted from attach ment in an action against him in his official capacity except he be guilty of waste. Mass. Stat. March 17, For by statute it is enacted, that when any goods or estate are attached upon any writ or process, which shall be 1784, at 3, sect z. pending, the same shall not be released or discharged, by * An execution against the goods and estate of a deceased person, in the hands of his executor, may be levied on lands, (of which the testator died seized,) in possession of the alienee of a devisee; and this though the executor, being also residuary legatee, has given bond with sureties to the judge of probate, for the payment of the debts and legacies: Gore vs. Brazier, 3 Mass. T. R. 523. X born & other products of the rail raised annually by Labor & cultivation is personal estate is table to be sired. other om Exer and sold as L à personal estate bering sevincling the х An attachment lost, reason of the death of either party; but be held good to when defendant dies his estate rendered the attachment re- pending the suit, and respond the judgment to be given on such suit or process, insolvent; otherwise in the same manner as by law they would have been, if such deceased person had been living. Provided always, that where any estate, attached as aforesaid, shall, by the executor or administrator of the same, be represented as insolvent, and a commission of insolvency shall thereupon issue; in all such cases, attachments, made as aforesaid, shall have no force or efficacy, after the death of the original defendant or defendants in the action. Mass. Stat. Oa. 30, An attachment lost, where plaintiff omits to take property in days after judgment. Mass. Stat. Feb. 28, Proviso in favour of Mass. Stat. March 8, Attachments, made If personal property possession, it is still 2d. So also an attachment may be lost, by omitting to take the property in execution, within thirty days after final judgment. For by statute it is enacted, that all goods and estate attached upon mesne process, for the security of the debt or damages sued for, shall be held for the space of thirty days after final judgment, to be taken in execution. And if the creditor shall not take them in execution, within thirty days after judgment, the attachment shall be void. However, by a recent statute, the island of Nantucket is excluded from the above provision. It is enacted, that all attachments of goods and estates, made on the island of Nantucket, to satisfy a judgment obtained on mesne process, shall be held for the space of sixty days after final judgment, to be taken in execution. 3d. An attachment may also be lost by reason of a defective or illegal service. And it is for this cause, that attachments are most frequently lost, or rather that they are not acquired. Thus, If an attachment be made on Sunday, it is void. By statute it is enacted, that no person shall serve or execute any civil process, from midnight preceding to midnight following the Lord's day; but the service thereof shall be void, and the person serving the same shall be as liable to answer damages to the party aggrieved, as if he had done the same without any such civil process. If personal property be attached, and the officer leaves it left in the defendant's in the defendant's possession, it is still open to the attachopen to the attachment of another creditor, in the same manner as if no previous attachment had been made. But although the first ment of another cre ditor. х |