ant does not

stayed one year.

and benefit thereof in an action for money had and received If the demand to the use of such tenant or his legal representative; and if abandon, writ the demandant shall not so make his election on record as of seizin to be aforesaid, no writ of seizin or possession shall issue on a judgment founded on such verdict, unless the demandant shall, within one year from the rendition thereof, have paid into the Clerk's office of the same Court, or to such other person as the Court may for that purpose appoint, for the use of the tenant, or the person or persons justly entitled thereto, such sum with the interest thereof, as the Jury shall have assessed for buildings or improvements as aforesaid; and a new action for the recovery of the same premises shall not be sustained in any Court, unless the demandant shall first have paid to the tenant, all such costs as would have been taxed for him had he prevailed in the first suit: Provided nevertheless, That nothing herein contained, shall extend to any action which is or may be commenced by any mortgagee, his heirs or assigns, against any mortgagor, his heirs or assigns.

Proviso.

Tenant not to cut wood in certain cases.

If the tenant has in posses

provision in such case.

SEC. 2. Be it further enacted, That no tenant against whom judgment shall be rendered in any case, where the value of the buildings and improvements shall have been ascertained as aforesaid, shall unnecessarily cut any wood, or take any timber from off the premises recovered against him, her or them, or make any strip or waste thereof; and such tenant shall be liable to answer therefor in the same way and manner he would have been, had judgment for possession been rendered on the verdict, and possession actually been delivered in execution of such judgment.

SEC. 3. Be it further enacted, That if the tenant, or person sion more than under whom he claims, shall have had in actual possession for is demanded, the term of six years, or more, before the commencement of such action, any land or tenements more than shall be demanded, and by the tenant be defended in said action, lying in the same tract or parcel therewith, to recover which the demandant had, at the time of the commencement of his action, as high and as good a title as he had to recover the demanded premises, such tenant may request that the Jury may by their verdict ascertain the same, and if the Jury shall find, that the demandant had as high and as good a title to recover such lands or tenements not demanded or any part thereof, as he had to recover the demanded premises, they shall not proceed to ascertain any other point by their verdict, and the Court shall thereupon render judgment that the demandant take nothing by his writ, and that the defendant recover his costs: Provided, That if such request be made in any such action now pending or which may hereafter be pending, the Court may permit the demandant without costs so to amend his declaration as to include all the lands or tenements possessed and defended by the tenant in manner aforesaid, of which the demandant had as high and as good a title as he had of the premises originally demanded in the action.

Proviso.

amended, pro

case.

SEC. 4. Be it further enacted, That in any such action, the If the writ is tenant or his attorney may in any stage of the process, and vision in such as often as the writ shall be amended as aforesaid, offer and give notice in open Court at what sum he consents, that the increased value of the premises, by virtue of the buildings and improvements shall be assessed, and also at what sum he consents that the value of the demanded premises, or such part thereof, as is by him defended, shall be estimated without the buildings and improvements, which notice shall be entered on the record of the Court; and if the demandant consent to the same, judgment shall be rendered on said consent of the parties in the same manner, as if the like sums had been found by the Jury in a verdict for the demandant; but if the demandant shall not consent to the said offer and shall proceed in the suit, and the Jury by their verdict shall not reduce the value of the buildings and improvements below the said offer, nor increase the value of the demanded premises as aforesaid above it, he shall not recover costs from and after the first entering of such notice upon the record, but the tenant shall from that time recover his costs, and have his separate judgment and execution for the same, although the verdict on the issue should be against him; unless the demandant shall prevail on a plea of disclaimer in the same suit.

What shall con

provement,

SEC. 5. Be it further enacted, That to constitute the pos- stitute a posses session and improvement intended by this Act, it shall not be sion and im deemed necessary that the premises defended shall have been surrounded by fences or rendered inaccessible by other obstructions; but it shall be sufficient if the possession, occupancy and improvement thereof by the tenant, or those under whom he claims, shall have been open, notorious and exclusive, comporting with the ordinary management of similar estates in the possession and occupancy of those who have title thereto, and satisfactorily indicative of such exercise of ownership as is usual in the improvement of a farm by its owner, and no part of the premises demanded and defended in manner aforesaid shall be excluded from the appraisement herein provided because the same may be woodland or without actual cultivation.

sit on the jury,

SEC. 6. Be it further enacted, That no person shall be al- who shall not lowed to sit upon a Jury for the trial of any such action, where the value of the buildings and improvements are to be ascertained or the value of the premises to be estimated by the verdict, where such person shall be interested in a similar question, either as proprietor or occupant; but the same shall be good cause of challenge to such juror.

March 1808,

SEC. 7. Be it further enacted, That the third, fourth and Parts of Act, fifth sections of an Act of the Legislature of Massachusetts repealed. passed on the second day of March one thousand eight hundred and eight, entitled "An Act for the limitation of certain real actions and for the equitable settlement of certain claims

In what cases

inquests of of

fice may be

Jud. Court.

Attorney Gen

formation,

stating the

tions and breaches.

arising in real actions," and the Acts in addition to the said Act, be, and the same are hereby repealed, and of no further effect in this State.

[Approved June 27, 1820.]

::00::

CHAPTER XLVIII.

An Act directing the manner in which Inquests of Office shall be taken to revest Real Estate in the State or to entitle the State thereto.

SEC. 1. BE it enacted by the Senate and House of Representa tives, in Legislature assembled, That in all cases where lands, taken in the S. tenements or hereditaments have heretofore been granted, or confirmed by the late Province or Colony of Massachusetts Bay, Commonwealth of Massachusetts, or by this State, or which may hereafter be granted or confirmed by this State, on certain conditions in such grants or confirmations mentioned, and the State shall claim to be revested in the same, for the breach of one or more of the said conditions, an inquest of office shall thereupon be taken in the Supreme Judicial Court in the county where the estate lies, in the manner foleral to the lowing, that is to say, the Attorney General shall, upon the direction of the Legislature, file an information in behalf of the State, in the said Court, at any term thereof, in any coungrant, condi- ty, setting forth among other things, the grant or confirmation, with the conditions therein mentioned, and assigning the breaches of such of the said conditions, as shall be directed by the Legislature; or such breach or breaches of conditions as to him shall appear proper; though there shall be no act of the Legislature designating the same; and alleging that by force thereof the State have right by law to be revested in the said estate, and praying that process may issue thereupon Court to issue in due course of law; whereupon the Court shall order a scire seire facins to facias to issue against such person or persons, bodies politic and corporate, or, proprietors as the Attorney General in his information, shall allege, to hold the estate under such grant or confirmation, returnable to the said Court at one of the terms, to be holden in the county where the estate lies; Scire facias to which scire facias shall be served thirty days before the sitting of the Court to which the same is made returnable. And if the defendant shall not appear, or appearing, shall refuse If no appear to plead, judgment shall be rendered, that the State be reseizor partial dis- ed of the estate described in the information; and if the depleaded-judg fendants shall, by plea disclaim to hold the said estate, or be entered, for any part thereof, then judgment shall be rendered that the Attorney General take nothing by his information so far as the same respects the estate so disclaimed, and the defendants, their heirs and assigns shall forever thereafter be estopped from claiming or holding the estate so disclaimed under the said grant or confirmation. But if the defendants shall claim

persons informed against.

be served thirty days before Court.

ance,

claimer be

ment, how to

whole or part as case may be.

Effect of disclaimer.

made, what

to be had.

favor of State

reseizin and

If

prevail-entit

from treasury.

broken be that

more land than

to, Court may

to hold the said estate or any part thereof under such grant or If defence be confirmation, and shall traverse the breaches assigned, issue proceedings are being joined thereon, the same shall be tried by Jury at the bar of the said Court, in the usual and due course of law; and a view may be granted or a plan ordered, when necessary, as in the trial of real actions. And if the issue be found If issue be in in favor of the State, judgment shall be rendered, that the judgment for State be reseized of the said estate, and recover costs of suit; costs. for which costs, execution shall issue in due form of law: but if the issue shall be found for the defendants, judgment shall predefendant be rendered, that they recover their costs of suit to be taxed led to costs by the Court, and paid out of the public treasury, by warrant of the Governor and Council: Provided nevertheless, If the If condition only condition alleged to be broken is, that the defendants defendant holds hold more land under such grant or confirmation than they be is entitled have right, by force thereof to hold, and the same shall ap-inte pear, either by verdict of the Jury, or confession of the de- quantity, fendants; then the Justices of the said Court shall have power to assign to the defendants by metes and bounds, at their request and cost, so much of the land which shall be held by the defendants as aforesaid, as shall be equal in quantity to the land they might lawfully have held under such grant or confirmation, and in such part thereof, as shall be just and reasonable, under all the circumstances of the case, and may to be located by order the same to be located by proper persons to be ap- pointed by the pointed for that purpose by the Court, at the expense of the defendants; which location with a plan thereof, shall be re- and return turned to the said Court, and may be confirmed by the same, Court thereof, unless good cause be shown to the contrary by the Attorney General or the defendants. And if such location shall be If confirmed by them judgment confirmed, then the Court shall order an attested copy thereto be entered. of, and of the said plan, to be filed at the expense of the defendants in the Secretary's office, and judgment shall be rendered, that the State be reseized of the residue and recover costs of suit.

persons ap

Court,

made to the

be taken in the

the lands lie,

Substance of

SEC. 2. Be it further enacted, That in all other cases Inquest in all ' where an inquest of office is necessary by law to entitle the other cases to State to hold lands, tenements, or hereditaments, such inquest county where shall be taken by the Supreme Judicial Court in the county by s. J. Court. in which such estate lies, upon information of the Attorney General, describing among other things the estate claimed, and the title set up thereto by the State: and upon the filing information of such information, the same proceedings shall be had as be- to be filed by fore directed, mutatis mutandis, unless where there is no ter-etal. tenant, and in such case, notice shall be given to any person Notice and or persons claiming such estate, to show cause at such term of the said Court, as shall be mentioned in the notification, why judgment should not be rendered, that the State be seized of such estate, by causing an attested copy of such information with the order of Court thereon to be published in such

Attorney Gen

mode of it.

pearing, judg.

If a defence

to be tried by

jury.

View may be

bad. Proceedings

public newspapers as the Court shall direct, three weeks successively, ninety days at least before the sitting of the said No person ap- Court; and if no person shall appear, and by plea deny the ment for State. title of the State to such estate, then judgment shall be rendered that the State be seized thercof: But if any person shall appear and by plea, deny the title set up by the State, the cause shall be tried by a jury at the bar of the Court; and a view or a plan may be ordered, as in the trial of real actions; and if a verdict shall be found that the State have good title to such estate, judgment shall be rendered, that the State be seized thereof and recover costs of suit against the defendant; for which costs execution shall issue in due form of law but if the jury shall find, that the State hath no title to such estate, and that the defendant hath good title thereto, the defendant shall recover his costs of suit to be taxed by the Court, and paid out of the public treasury by warrant of the Governor and Council; but if the Jury do not find that the defendant hath good title to such estate, then he shall not be allowed his costs.

and judgment.

If defendant recosts to be paid

cover judgment

from State Treasury.

Attorney General to prose

quest for lands,

accrued to the

of heirs,

SEC. 3. Be it further enacted, That when it shall be found cute suit by in- by the Attorney General, for the time being, that there are any &c. that have lands, tenements or hereditaments, which for want of legal State for want heirs, have accrued to the State, that it shall be the duty of the Attorney General to prosecute a suit by inquest of office in the Supreme Judicial Court in the county wherein such estate is situated, in order to cause the State to become seized No defendant thereof; and that on such process and trial, the person, to avail himself against whom such process and suit shall be so brought, shall unless he be his not be allowed to give in evidence, or to avail himself of the title or right of any alien, or subject of another nation or sovereign, unless he can shew that he is tenant to, agent, servant or bailiff of such alien.

of alien's title.

tenant, agent,

&c.

If on trial the defendant

owner or ten

of an alien own

costs, &c.

SEC. 4. Be it further enacted, That if it shall appear to the prove himself Court that the person against whom such estate shall be deant, agent, &c. manded, had, at the time of the service of the process upon er he shall be him, a good and valid title in himself to the premises demandentitled to bis ed, or that he then was in the possession of the same as the tenant, agent, servant or bailiff of any alien who had a right thereto or to any part thereof, then the Court shall award the defendant his full cost, which shall be paid out of the public treasury, according to the Constitution of the State: but if such party had not a title in himself when the process case of title ac. was served upon him, nor was the tenant, agent, servant or quired or privi: bailiff of such alien at that time, but shall have afterwards ter service of acquired a title, been made a tenant, or become the agent, servant or bailiff of any alien in whom such estate is, then judgment shall be awarded against him for the full costs: and the Attorney General shall cease to prosecute further on the process.

Proceedings in

ty existing af

process on defendant.

SEC. 5. Be it further enacted, That when any judgment