CHAP. 129. Heir may sue for waste done in his ancestor's time. SECT. 2. An heir may bring an action for waste done in the time of his ancestor, as well as in his own time. SECT. 3. If any issue of fact be joined in the cause, it shall be tried by a jury in court in the usual manner, with or without a view Proceedings in of the premises, as the court may order; and, in all cases, the jury, that inquire of the waste, shall assess the damages. court thereon. Action on the case may be brought. Reversioner or remainder man may sue. Such action will lie against executors or SECT. 4. Any person entitled to such action of waste, may, instead of it, bring an action of the case in nature of waste; in which he shall recover the damages he has sustained by reason of the waste. SECT. 5. Such an action may also be maintained by one, who has the remainder or reversion in fee simple or fee tail, after an intervening estate for life, and also by one who has a reversion or remainder for life or years only; and each of them shall recover such damages, as it shall appear he has suffered by the waste. SECT. 6. An action on the case for waste, may be originally commenced against the executors or administrators of the tenant, or administrators. may be prosecuted against them after the death of the tenant, when the action was brought against him. Part owners not to commit waste, without giving thirty days' notice. 1821, 35, § 2. 15 Maine, 198. 22 Pick. 495. Treble damages in such case, ed. SECT. 7. If any joint tenant, coparcener, or tenant in common of undivided lands shall cut down, destroy, or carry away any trees, timber, wood or underwood, standing or lying on such lands, or dig up or carry away any ore, stone or other valuable thing found thereon, or commit any strip or waste thereon, without first giving thirty days' notice in writing under his hand to all other persons interested therein, or to their respective agents or attorneys, of his intention to enter thereon, and improve the land, or if he shall do any of said acts thereon, pending a petition or other suit for a partition of the same premises, he shall forfeit and pay three times the amount of the damages, that shall be assessed therefor; to be recovered and appropriated, as mentioned in the following section. SECT. 8. The above mentioned damages may be recovered by how recovered any one or more of the cotenants, without naming any one but the and appropriat- plaintiff; and the damages shall be appropriated, one half to the 1821, 35, § 2. person who shall sue for the same, and the other half to the same person, together with all the other cotenants, except the defendant in the action; to be divided among them in proportion to their respective interests in the land. SECT. 9. If, in the trial of such cause, the jury shall find, that the defendant had good reason to believe, that he was owner of the land, on which the alleged trespass was committed, in severalty, or if he had been in the exclusive possession of the same, claiming it as aforesaid, for three years next before the time when the alleged trespass was committed, and preventing the plaintiff to occupy in common, according to his asserted right, single damages only shall be recovered in such action. away any SECT. 10. If any person shall cut down, destroy, injure or carry fruit or ornamental trees, timber, wood, underwood, stones, gravel, ore or goods or property of any kind, from land not his own, and without license of the owner, or shall injure or throw down any fences, bars or gates, or leave such gates open, or break any glass in any building, he shall be liable in damages to the owner, to be recovered in an action of trespass. SECT. 11. If, during the pendency of any action for the recov- CHAP. 129. ery of land, the tenant shall make any strip or waste, by cutting, Waste on lands, felling or destroying any wood, timber, trees or poles standing on pending an acsaid lands, he shall, for each offence, pay to the aggrieved party 1821, 35, § 4. treble damages, to be recovered in an action of trespass. tion therefor. 8 Pick. 514. ty. SECT. 12. Where any trespasses are committed on any build- Trespasses on ings or inclosures, monuments or mile stones belonging to any ings or properpublic buildcounty, town or parish, the treasurer of such corporation may sue for the damages in the name of the corporation; and, if the property injured belongs to a school district, the treasurer of the town, in which the district is contained, may sue in the name of such dis trict. taking grass, SECT. 13. If any person shall enter on any grass land, orchard Trespasses, by or garden, and take therefrom without permission of the owner any fruit, or other grass, hay, fruit, vegetable or shrub, he shall be liable to the party vegetables from improved land. injured, in a sum, equal to three times the value of the articles so 1821, 35, § 6. taken away, in an action of trespass. SECT. 14. If any person, whose real estate is attached in any civil action, shall do any act of waste thereon, or shall threaten or make preparations to commit waste, the court, in which the suit is pending, or any justice thereof in vacation or term time, may issue an injunction to stay such waste, with or without notice at discretion; and the court may enforce obedience to such injunction by all such process, as the supreme judicial court may legally employ in an equity case, pending in such court, and dissolve such injunction, whenever it may be deemed proper. Injunction, to prevent waste on lands under attachment. of a person de SECT. 15. If any of the heirs or devisees of any person deceased, Penalty for whose estate may be represented insolvent, shall, between the time waste on lands when such representation shall be made, and the time of the con- ceased, insolveyance of the real estate of the deceased, on sale for the payment vent. 1835, 191, § 4. of debts, in case the estate shall be absolutely insolvent, remove or 1 Fairf. 365. destroy any building, or cut down, destroy or carry away any trees, 15 Maine, 205. standing on said land, or lying on it, for timber or fire wood, except what may be necessary for fuel and repairs, or commit any strip or waste on the land, afterwards sold and conveyed as aforesaid, he shall forfeit and pay treble the value thereof; to be recovered by the executor or administrator on said estate, in an action of trespass. Iministrator for such waste. 1835, 191, § 4. SECT. 16. If such executor or administrator, being heir or devi- Liability of exsee as aforesaid, shall commit any of said trespasses or wastes, ecutor or adwithin the time limited as aforesaid, on proof before the judge of committing probate of the same, he shall be liable in damages to the same extent, as mentioned in the preceding section; and in both cases, the damages, when recovered by the executor or administrator, or found and adjudged against him by the judge of probate, shall be accounted for in the administration account. tenants in com tions for dama SECT. 17. All or any one or more tenants in common, copar- One or more ceners, or joint tenants of any lands, may join or sever in personal mon may join actions for injuries done to the same; setting forth in the declara- or sever, in action the names and additions of all the other cotenants, if known. SECT. 18. Whenever any such cotenant shall bring such action, Notice to the he shall, before trial thereof, give to all the other cotenants such other cotenants, notice as the court shall order; and all or any of them may, at any come parties. ges. who may be CHAP. 129. time before final judgment, become parties to the action; and the plaintiff, with such of the other cotenants as shall thus become parties, may prosecute the suit for the benefit of all concerned. SECT. 19. The court shall enter up judgment for the whole ing judgment, amount of the injury, proved to have been done to such lands; but shall award execution only for the proportion thereof sustained by the plaintiffs, actually prosecuting the suit. Mode of enter and awarding execution. Scire facias by the other co tenants on such judgment. Sec. 20. The remaining cotenants may, afterwards, either jointly or severally, sue out a scire facias on such judgment, and execution shall be thereupon awarded for their proportion of the damages, adjudged in the original suit. Owner, of ed, may re plevy them. 1821, 80, § 1. CHAPTER 130. OF REPLEVIN OF BEASTS AND CHATTELS. SECT. 1. Owner of beasts distrained, may SECT. 11. Judgment for a return. SECTION 1. Any person, whose beasts are distrained or impoundbeasts distrain- ed, in order to recover any penalty or forfeiture supposed to have been incurred by their going at large, or to obtain satisfaction for any damages, alleged to have been done by them, may maintain a writ of replevin against the impounder or finder therefor, to be sued out and prosecuted before any justice of the peace for the county, in the form prescribed in chapter, one hundred and fourteen. 1834, 137, 8. The process. Bond to be given, before service of the writ. SECT. 2. The writ shall be sued out, served and returned, and the cause shall be heard and determined, in like manner as is provided in the case of other civil actions before a justice of the peace, except as otherwise prescribed. SECT. 3. The writ shall not be served, unless the plaintiff, or some one in his behalf, shall execute and deliver to the officer a 1834, 137, 9 8. bond to the defendant, with sufficient sureties, to be approved by the officer, in a penalty double the actual value of the property to be replevied, conditioned as stated in the prescribed form of the writ, and to be returned with the writ, for the use of the defendant. SECT. 4. If it shall appear upon the nonsuit of the plaintiff, or CHAP. 130. upon a trial, or otherwise, that the beasts were lawfully taken or Judgment, if distrained, the defendant shall have judgment for such sum, as shall the beasts be lawfully disbe found to be due from the plaintiff for the penalty or forfeiture, trained. or for the damages, for which the beasts were impounded, together 1821, 80, § 2. with all the legal fees, costs and expenses incurred by reason of the distress, and also the costs of the action of replevin; or, instead of such judgment, the justice, or court having cognizance thereof, may, in his or their discretion, enter judgment for a return of the beasts to the defendant, to be held by him for the original purpose, irrepleviable by the plaintiff, and for the defendant's damages for the taking thereof by the replevin, and the costs of suit. SECT. 5. If it shall appear, upon default of the defendant, or Judgment, if upon a trial or otherwise, that the beasts were taken or distrained, trained. unlawfully diswithout any sufficient or justifiable cause, the plaintiff shall have 1821, 80, § 2. judgment for his damages caused by the unjust taking and detaining the beasts, and for his costs of the suit. SECT. 6. Either party may appeal from the final judgment of Appeal. the justice, as in other civil actions. a cause may be transferred from justice to the 1821, 80, $ 3. district court. SECT. 7. When it shall appear, that the sum demanded for the In what cases, a penalty, forfeiture or damages, exceeds the sum of twenty dollars, or that the property of the beasts is in question, and that their value exceeds twenty dollars, or that the title to real estate is concerned or brought in question, the case shall, at the request of either party, be transferred either to the district court, to be there disposed of as is provided in chapter, one hundred and sixteen, with respect to other civil actions brought before a justice of the peace, in which the title to real estate is concerned, or brought in question; provided, the party, requesting such transfer, shall recognize as in actions of trespass brought before a justice of the peace, in such reasonable sum as the justice shall order, to enter the said action at the next term of the court, to which the action is transferred, and prosecute the same with effect, and to pay all intervening damages and costs. Any goods, unlawfully detained, may be replevied. 1821, 80, § 4. 4 Greeni. 306. SECT. 8. When any goods shall be unlawfully taken, or unlawfully detained from the owner or the person, entitled to the possession thereof, or when any goods of that value, which are attached on mesne process, or taken in execution, are claimed by any person, other than the defendant in the suit, in which they are so attached and taken, such owner or person may cause them to be replevied. SECT. 9. If the value of the goods aforesaid shall exceed the In what courts, sum of twenty dollars, the writ may be sued out of, and returnable to replevin may be brought. the district court, or the supreme judicial court for the county, in 1821, 80, § 4. which the goods are detained, and substantially of the form pre-1933, 67. scribed in chapter, one hundred and fourteen; and, if the goods 3 Mass. 199. aforesaid should not exceed the value of twenty dollars, the writ Green 133. may be sued out and returnable before a justice of the peace of the 2 Greenl. 162. county, where the goods to be replevied are detained, and substan- 3 Fairf. 51, 261. tially of the same form, but to be made applicable to the jurisdiction; and may be directed to any county where any defendant may reside; said writs, in both cases, may be sued out, served and returned like 1829, 443. 1 6 Greenl. 261. CHAP. 130. other writs in civil actions, in all particulars, in which a different course is not prescribed. SECT. 10. The officer, before serving the writ, shall take from the plaintiff, or some one in his behalf, a bond to the defendant, with sufficient sureties, in double the value of the goods to be replevied, conditioned as in the bond described in section, three; which bond shall be returned to the court from which the writ issued, with the writ, for the use of the defendant. SECT. 11. If it shall appear upon the nonsuit of the plaintiff, or upon a trial or otherwise, that the defendant is entitled to a return of the goods, he shall have judgment therefor accordingly, with damages for the taking thereof by the replevin, with his costs, and a writ of return and restitution thereupon accordingly. SECT. 12. If the goods, when replevied, were taken in execution, or, if they were attached, and judgment be afterwards rendered for the attaching creditor, and if, in either case, the service of the execution be delayed by means of the replevin, the damages to be assessed for the defendant, in case of a judgment for a return, be not less than at the rate of twelve per cent. by the year, on the value of the goods, for so long time as the service of the execution shall be so delayed. shall SECT. 13. All sums, recovered in an action of replevin by any officer, for or on account of any goods attached or taken on execution by him, or recovered in an action upon the bond given upon replevin of such goods, shall be applied and disposed of, as far as they will go, in the following manner : First. To pay the lawful fees and charges of the officer and the reasonable expenses of the action of replevin, and the action on the bond, so far as they are not reimbursed by the costs, that may be recovered; Secondly. To pay to the creditor, at whose suit the goods were attached, or taken in execution, the sum, if any, recovered by him in that suit, or as much thereof as shall remain unpaid, with interest therefor, at the rate of twelve per cent. by the year, for such time, if any, as the money shall have been withheld from the creditor, or the service of his execution delayed, by reason of the replevin; and, Thirdly. If the attaching creditor, in such case, shall not recover judgment in the suit in which the attachment was made, or if any balance shall remain of the money, so recovered by the officer, after paying what is due to the creditor, as before provided, such balance or the whole amount, as the case may be, shall be applied and disposed of, in the same manner, as would and ought to have been done with the surplus, if any, of the proceeds of sale, in case the same goods had been sold on execution. SECT. 14. All sums, received by such creditor, for the proceeds of sale of any goods, that had been attached or taken on execution, and which are afterwards returned, and all sums, received for the value of any of such goods, as are not returned, and also all sums, recovered from the officer for the insufficiency of the sureties in the bond, shall be applied toward the discharge of the judgment recov ered by the creditor; but all sums, received as interest or damages |