UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE POWERS AND DUTIES NOTARIES PUBLIC JUSTICES OF THE PEACE MASSACHUSETTS. BY W. M. SEAVEY, AUTHOR OF "THE MASSACHUSETTS TOWN OFFICER. BOSTON: LITTLE, BROWN, AND COMPANY. 1894. T 1814 Copyright, 180$, By Little, Bbowh, and Compast. ©Lnitorrstto ^Jrcss : Johs Wii.m.n am> Son, Cambridge, i 9.A PREFACE. The author has endeavored in the present work to state in a concise form all the provisions of law which pertain to the powers and duties of notaries public and justices of the peace in this Commonwealth. The powers of notaries public with respect to the protest of commercial paper are derived prin- cipally from the cases decided by the Supreme Judicial Court. These cases have been carefully selected, and to them have been added decisions from some of the important cases on the subject in other jurisdictions, combined with suggestions from the practical experience of notaries public and bank officers in this Commonwealth. The other powers of notaries public, and those of justices of the peace, are almost wholly statu- tory. The statutes relating to these subjects have been collected, and to these have been added selec- tions from the latest decided cases of the Supreme Judicial Court, wherever these tended to make the vi PREFACE. meaning of the statutes clearer, and a selection of appropriate forms. The Index has been made very full, so that one may readily find the provisions relating to the sub- jects treated of in the book. W. M. S. Boston, December, 1893. TABLE OF CONTENTS. (the figures refer to the pages.) PART I. NOTARIES PUBLIC. CHAPTER I. Page Origin of the Office of Notary Public ... 1 CHAPTER II. Method of Appointment 4 Expiration of Appointment 7 Seals 8 CHAPTER III. The Protest of Commercial Paper 10 Foreign Bills l0 Must be for Non-acceptance as well as for Non-payment 11 Inland Bills and Promissory Notes ... 12 Method of Protesting 13 Presentment and Demand 13 (a) When necessary 13 (b) Who may make 14 (c) At what, time to be made 15 (d) How and where to be made 20 Mil TABLE OF CONTENTS. Page Acceptance 22 Noting 23 Notice 23^ (a) Who may give 23 (b) When necessary 24 (c) Form of notice 25 (d) When to be made and given 27 (e) Where and how to be given 29 (f) To whom to be given 34 Diligence 35 Records 37 Extending the Protest 37 Fees for Protesting 41 Liability of Notaries 42 Rates of Damages on Protested Bills . . 42 CHAPTER IV. Powers Given by Statute. Acknowledgments of Deeds 44 Administration of Affidavits 45 Foreclosure Affidavits 46 Opening of Safety Deposit Vaults .... 46 Proofs in Insolvency 47 Savings Bank Affidavits 48 PART II. JUSTICES OF THE PEACE. CHAPTER I. Origin and Appointment. Origin 51 Appointment 52 TABLE OF CONTENTS. IX Page May hold Othf.r Offices 56 Falsely Assuming to be a Justice .... 56 CHAPTER II. Depositions. Method of Taking 58 Summoning of Witnesses G7 Depositions to perpetuate Testimony ... 69 Depositions by Parties 72 Fei 73 CHAPTER III. Calling of Meetings. Corporations 74 Aqueduct Corporations '5 Fire Disi ricts 75 General Fields 76 Meeting-house Proprietors 76 Private Ways and Bridge Proprietors . . 77 Religious Societies 77 Trustees of Methodist Episcopal Churches 78 Social Library Corporations 78 Town Meetings 79 Watch Districts 81 Proprietors of Wharves and Common Lands 82 CHAPTER IV. Acknowledgment of Deeds. In General 83 Whin Grantor refuses to Acknowledge . . 84 Acknowledgment of Deeds conveying Prop- erty outside of the Commonwealth . . 88 Of Shares of Stock 89 Fees ?0 X TABLE OF CONTENTS. CHAPTER V. Page Issuing of Warrants. In Criminal Cases 91 (a) Warrants 91 (b) Bail 93 In other Cases 94 (a) Entry by Board of Health 94 (b) Entry of Premises of Gas Consumer ... 96 (c) Search for Liquor illegally kept 97 (d) Impounding Beasts 102 (e) Infected Articles 106 (f) Lost Goods, Appraisals 107 (g) Removal of Sick Persons 109 (h) Fees 110 CHAPTER VI. Oaths and Affidavits. In General Ill Age and Schooling Certificates ill Collectors of Taxes 112 Notaries Public and Bank Affairs . . . . 112 Notices of Sales of Pews 113 Officers of Religious Societies 113 Pedlers 113 Railroad Police 114 Inspection of Pedlers' Licenses 114 Fees 114 CHAPTER VII. General Powers and Duties. Appointment of Appraisers 115 Arbitration 116 Arrest on Mesne Process 118 TABLE OF CONTENTS. XI Page Powers as Conservators of the Peace . . 119 Not to buy certain Demands for Collection 123 Complaints under Dog Laws 123 Determination of Amount due for Equity of Redemption 127 Foreclosures of Mortgages 127 Habeas Corpus 128 Insolvency Proofs 132 Inspection of Druggists' Books as to Liquor Sales 133 Limited Partnership Acknowledgments . . 133 Marriages 133 Nominations of Guardians 135 Removal of Gates, etc., on Town and Pri- vate Ways I 36 Witnesses 136 Index *"*1 TABLE OF CASES. (the figures refer to the tages.) Page 118 22 64 36 Abbott v. Dexter Arnold v. Dresser Bacon v. Rogers Bank of America v. Shaw Bank of Orleans v. Whitte- niore 21 Bank v. Ayers 13, 33, 37 v. Blaiu-hard 28 v. Buttrick 32 v. Caverl v 17 v. Cox 21 v. Fairbrother 30, 33, 35 v. Fullerton 60 v. Hammatt 32 v. Hathaway 35 v. Lafiin 26 v. Merchants' Bank 17 v. Parker 42 v. Rice 22 v. Townsley 32 v. Warner 24 v. Willard 17, 20 r. Williams 11, 15 r. Willis 22 Blakeley v. Grant 36 Bliss v. Nichols 34 Bonner v. New Orleans 31 Brown v. King 63 Burlingame v. Foster 31 Cabot Bank v. Warner 24 Choteau v. Webster 29 Page City Bank at Providence v. Fullerton 60 Clark v. Eldridge 26 Colt v. Barnard 13, 19, 28 Commonwealth v. Brennan 92 v. Foster 92 v. McGahey 120 v. Moore 129 v. O'Hanlon 92 v. Taber 92 Converse v. Johnson 19 Cribbs v. Adams 15 Culver v. Benedict 69 Davis v. Smith 136 Eagle Bank v. Hathaway 35 Exchange Bank v. Rice 22 Fall River Bank v. Willard 17, 20 Farnsworth v. Allen 10 Farnum v. Buffum 44 V. Fowle 17 Field v. Nickerson 19 Freeman v. Boynton 17, 21 Gilbert v. Dennis 25, 28 Grafton Bank v. Cox 21 Crand Bank v. Blanchard 28 Granite Hank o. Ayers 13, 33, 37 Grosvenor v. Stone 25 XIV TABLE OF CASES. Hale v. Silloway Henry v. Jones Hitchings v. Ellis Hobbs v. Straine Horton v. Wilde Housatonic Bank v Page 65 17 64,67 37 118 Laflin 26 Hunt v. Lowell Gas Light Co. 61 Hutcheon v. Mannington 9 Importers' & Traders' Bank v. Shaw 36 Johnson v. Brown 12, 32 Jones v. Fales 17 Judd v. Tryon 128 Kinsley v. Robinson 24 Learned v. Riley 83 Lenox v. Leverett 11, 29 Lincoln & Kennebec Bank v. Hammatt 32 Littlehale v. Dix 65 Livesey v. Bennett 58 Marvin i . Raigan 64 Mason v. Rumsey 23 May v. Coffin 24 Mechanics' Bank v. Mer- chants ' Bank 17 Milford i . Worcester 134, 135 Morse v. Cliamberlin 30 Murphy v. Murphy 46 Ocean Bank v. Williams 11, 15 O'Neil i'. Webster 84 Opinion of Justices 3, 5, 9 Orr v. Lacey 9 Park v. Page 28 Perkins o. Franklin Bank 16 Pierce v. Cate v. Indseth v. Kittredge Pinkham v. Macy Porter v. Judson Prescott Bank v. Caverly Page 14 9 22 27 36 17 Rand v. Hubbard Rice v. Wesson 15 18, 20, 28 Salem v. Eastern R. R. Sanger v. Stimpson Seaver v. Lincoln Shaw v. McGregory Shaylor v. Mix Shed v. Brett Shelburne Falls Bank Townsley Simpson v. Carleton Smith v. Bowditch v. Whiting Stanton v. Blossom Stevens v. Taft Co. 120 26 19 65 31 26,36 32 64 69 26 24 75 Talbot v. National Bank of the Commonwealth 33 True v. Collins 31 Union Bank v. Willis 22 Wachusett National Bank v. Fairbrother 30, 33, 35 Wamesit Bank v. Buttrick 32 Ward v. Allen 22 Warder ». Tucker 25 Warren Bank v. Parker 42 Webber v. Matthews 34 Wesson v. Newton 118 Wheeler v. Field 21 Wyman v. Adams 14 Young v. Capen 60 v. Durgin 29 PART I. NOTARIES PUBLIC. PART I. NOTARIES PUBLIC. CHAPTER I. ORIGIN OF THE OFFICE OF NOTARY PUBLIC. § 1. The office of notary public is of very ancient origin, and has been known to the majority of the Christian nations for hundreds of years. In those countries which have taken the Roman law as the basis of their legal system, the duties of notaries public are of the greatest importance and very varied in their character, while in countries like the United States and England, which use the com- mon law of England, the duties are much more limited. As notaries public are found in nearly all parts of the civilized world, they were formerly of very great use to shipmasters, merchants, and other persons having dealings with foreign nations, in attesting writings and in certifying to acts done by them or in their presence, which might require to be proved in foreign countries. Now, however, the office is of less importance in its international 1 2 NOTARIES PUBLIC. relations than it was formerly. At the present time states and countries have defined by statutes the majority of the acts which notaries of foreign countries and of places outside of their own juris- diction, as well as those of their own appointment, may perform, and the effect of these acts and the uses which may be made of notarial certificates within the respective jurisdictions of the states and countries have also been defined by statute. § 2. In England notaries public were originally appointed by the authority of the Pope of Rome, but since the passage of the Statute of 25 Hen. VIII., ch. 21, they have been appointed by the Court of Faculties of the Archbishop of Canterbury. § 3. In Massachusetts the first mention that is made of the office is under the Charter of the Col- ony of Massachusetts Bay, where notaries public were elected by the General Court, which prescribed the oath to be taken by them and some of their duties and established their fees and the form of their seals, which were engraved at the expense of the Colony. They were also exempted from militia service. § 4. Until the year 1720 notaries public were appointed by the Governor and Council, in the same manner as judicial officers were appointed. But in that year the House of Representatives contended that notaries public should be elected by the Gen- eral Court, in accordance with the clause in the Charter which granted power to that Court " to ORIGIN OF THE OFFICE OF NOTARY PUBLIC. 3 name and settle annually all civil officers" except those otherwise provided for in the Charter, sub- ject to the approbation of the Governor. This claim was conceded, and afterwards notaries pub- lic were elected by the Council and House of Rep- resentatives in concurrence. § 5. No Provincial statute was passed which defined any of the duties of notaries public, al- though their fees were established by statute. The only duties which they performed under the Prov- ince Charter were those which were attached to the office by custom. § G. The Constitution of the Commonwealth as originally adopted provided that notaries public should be chosen annually by joint ballot of the Senators and Representatives in one room; but this was changed by the Fourth Amendment to the Constitution, so that now notaries are ap- pointed by the Governor in the same manner as judicial officers are appointed, and they hold their offices for seven years. § 7. At the present time notaries public in this Commonwealth arc empowered by statutes to per- form various acts in addition to the presentment and protest of foreign bills of exchange and the noting and extending of marine protests, which are attached to the office of notary public by custom. 1 1 Opinion of the Justices, 150 Mass 586. NOTARIES PUBLIC. CHAPTER II. • METHOD OF APPOINTMENT. § 8. Notaries public shall be appointed by the Governor in the same manner as judicial officers are appointed, and shall hold their offices during seven years, unless sooner removed by the Gover- nor, with the consent of the Council, upon the address of both houses of the legislature. 1 They shall have jurisdiction and the right to act in any and all of the counties of the Common- wealth. And this provision applies to all nota- ries public appointed before the passage of this act (March 2, 1891), as well as to those appointed after it. 2 § 9. There is no statute prescribing the qualifi- cations which persons must have to be appointed notaries public. The requisites which are estab- lished by custom are that the applicant for the office of notary public must be a citizen of the United States, a resident of Massachusetts, more than twenty-one years of age, of high standing and character, and he must not be an officer or em- 1 Mass. Const. Amendments, Art. IV. 2 Sts. 1891, ch. 38. METHOD OF APPOINTMENT. 5 ployee of a national bank. A woman is not eligible for the office. 1 £ 10. A blank application similar to the fol- lowing form may be obtained at tbe office of the Secretary of State. As applications for the office of notary public are scrutinized very carefully, the strongest possible reasons should be alleged to show the necessity for the appointment, and the applicant should secure the names of prominent men as signatures to the application, so that, if need be, they could urge the appointment in person. Form of Application for the Office of Notary Public. COMMONWEALTH OF MASSACHUSETTS. To His Excellency the Governor : We hereby recommend [here state applicant's name in full], of [residence, including street, number, and town or city], [business address, including street, num- ber, and town or city], for appointment to the office of notary public for the Commonwealth of Massachusetts. He is a citizen of the United States, a resident of Massachusetts, more than twenty-one }'ears of age. and of high standing and character. He is not an officer or employee of a national bank. [Strong reasons should be given to show necessity for appointment, — for example, that the applicant has 1 Opinion of the Justices, 150 Mass. 586. 6 NOTARIES PUBLIC. considerable negotiable paper to protest, and that he has occasion to take acknowledgments of conveyances of real estate outside of the State.] [Signatures of those recommending the applicant.] 189 § 11. When the blanks in the application have been suitably filled, it must be deposited in the executive office at the State House. The applicant will be notified in due season, should his applica- tion be acted upon favorably. § 12. Every person appointed by the Governor to the office of notary public shall be notified by the Secretary of the Commonwealth of his appointment, and if he does not, within three months from the date of such appointment, take and subscribe the oaths required to qualify him to execute the duties of the office to which he has been appointed, his appointment shall be null and void, and the Secre- tary shall forthwith notify him thereof and request him to return his commission to be cancelled, and shall also certify said facts to the Governor. 1 § 13. Every person appointed to the office of notary public shall, before the delivery of his com- mission, pay to the Secretary of the Commonwealth a fee of five dollars. 2 i Tub. Sts. ch. 21, §4. - Ibid., §6 METHOD OF APPOINTMENT. 7 § 14. The following oath shall be taken by every person appointed to the office of notary public, be- fore he shall enter on the duties of his office, to wit : — " I, A. B., do solemnly swear that I will bear true faith and allegiance to the Commonwealth of Mas- sachusetts, and will support the Constitution thereof. So help me God." Provided, That when any person shall be of the denomination called Quakers, and shall decline taking said oath, he shall make his affirmation in the foregoing form, omitting the word " swear," and inserting instead thereof the word " affirm," and omitting the words " So help me God," and subjoining instead thereof the words, " This I do under the pains and penalties of perjury." 1 EXPIRATION OF APPOINTMENT. § 15. The Secretary of the Commonwealth shall send by mail to every person commissioned as a notary public a notice of the time of the expira- tion of his commission, not more than thirty nor less than fourteen days before such expiration. 2 § 16. A person who presumes to act as a notary public after the expiration of his commission, and after receiving notice of such expiration, sent as is 1 Mass. Const. Amend., Art. VI. 2 Pub. Sta. ch. 15, § 14. 8 NOTARIES PUBLIC. stated in the preceding section, shall be punished by fine of not less than one hundred nor more than five hundred dollars. 1 § 17. On the death, resignation, or removal from office of a notary public, his records and official papers shall be deposited in the office of the clerk of the courts in the county in which he resided, or, in the county of Suffolk, in the office of the clerk of the Superior Court for Civil Business. 2 § 18. A notary public who neglects for three months after his resignation or removal from office so to deposit his records and official papers shall forfeit a sum not exceeding five hundred dollars. 3 § 19. If the executor or administrator of a de- ceased notary public neglects for three months after his acceptance of such office, so to deposit in the clerk's office the records and official papers of the deceased which come into his hands, he shall forfeit a sum not exceeding five hundred dollars. 4 § 20. Whoever knowingly destroys, defaces, or conceals the records or official papers of a notary public shall forfeit a sum not exceeding one thousand dollars, and be liable in damages to any party injured thereby. 5 SEALS. § 21. By custom, a notary public must have an official seal, and copies of his records must be 1 Pub. Sts. ch. 205, § 24. 2 Ibid., ch. 18, § 2. 3 Ibid, § 3. 4 Ibid., § 4. 5 Ibid, § 5. METHOD OF APPOINTMENT. 9 certified under his seal. 1 The seal used by notaries public in this Commonwealth consists of a stamp which makes an impression on the paper which is to receive the seal, and which contains the name of the notary and the designation of his office. § 22. Judicial notice is taken of the seal of a notary public as an officer recognized by the com- mercial world. 2 Therefore the signature of a notary to an instrument going to a foreign country or to another state, must be authenticated in some way, usually in the case of a foreign country by the con- sul of that country. 3 But in case of a protest made upon the non-acceptance or non-payment of com- mercial paper, the notarial seal is sufficient in itself, without being authenticated. 4 1 Opinion of the Justices, 150 Mass. 589. 2 1 Greenl. Evid., 15th ed., § 5. 8 Ilutchieson v. Mannington, 6 Ves. 823. * On- r. Lacy, 4 McLean (U. S.),243; Pierce v. Indseth, 106 f S. 546. 10 NOTARIES PUBLIC. CHAPTER III. THE PROTEST OF COMMERCIAL PAPER. § 23. When a bill of exchange is presented for acceptance or for payment, or when a prom- issory note is presented for payment, and it is dishonored, (i. e. when such acceptance or pay- ment is refused,) a solemn declaration, written by a notary, must be made stating the fact of the non-acceptance or non-payment, the reason for it if any, and that the bill or note is protested. This declaration is known as a protest. Its object is to fix the liability of the indorsers and other parties to the bill. 1 FOREIGN BILLS. § 24. The most important duties by far of nota- ries public are those which relate to the protest of commercial paper. In the case of the dishonor of foreign bills of exchange, which are bills drawn in one country or state upon a person residing in another country or state, the notarial protest is the sole way in which the dishonor can be proved. 1 Smith's Mercantile Law, .'3d Am. ed., 327, THE PROTEST OF COMMERCIAL PAPER. 11 It cannot be shown by witnesses, or in any other way. And this is true as well when the protest is for non-acceptance as when the instrument is protested for non-payment. 1 MUST BE FOR NON-ACCEPTANCE AS WELL AS FOR NON-PAYMENT. § 25. A holder of a foreign bill of exchange must cause the bill to be protested for non-accept- ance if it requires acecptance, and at its maturity he must also cause it to be protested for non-pay- ment by the drawee, and he must give notice of the non-acceptance and non-payment to such ante- cedent parties to the bill as he intends to resort to for payment. Nor are the duties of the holder varied if the bill be accepted and paid by a friend for the honor of the holder. 2 § 2(3. The custom in Massachusetts is, if a bill of exchange requires acceptance, to cause it to be protested if it is not accepted. Then, if the owner of the bill is near enough so that he may be com- municated with before the time for payment of the bill, he is consulted as to whether he wishes the bill to be presented for payment and protested in case of non-payment. If the owner of the bill is so far away that it would be impossible to hear 1 Ocean Bank v. Williams. 102 Mass. HI. 2 Leuux v. Leverett, 10 Mass. 1. 12 NOTARIES PUBLIC. from him before the maturity of the bill, it is cus- tomary to present the bill for payment, and to protest it for non-payment as well as for non- acceptance. INLAND BILLS AND PROMISSORY NOTES. § 27. In the case of inland bills of exchange, which are those in which both the drawer and drawee reside in the same state, checks, and prom- issory notes, the protest of the notary is an official act, for it is recognized in section 21 of chapter 199 of the Public Statutes, which provides fees for the protesting of bills of exchange, checks, and promissory notes, and by section 22 of chapter 77 of the Public Statutes, which makes protests of these instruments prima facie evidence of the fact of dishonor. Thus, although it is not an absolute necessity to have an inland bill of exchange or a promissory note protested in order to charge the indorser, drawer, or maker, still it is not only more convenient in the case of a suit upon the bill or note, but safer, to have all negotiable instru- ments protested by a notary public, upon their dishonor. A notarial certificate of protest of a domestic bill of exchange or of a promissory note, as well as his certificate of protest of a foreign bill of exchange, shall be prima facie evidence of the dishonor, without further proof. 1 1 Johnson v. Brown, 154 Mass. 105. THE PROTEST OF COMMERCIAL PAPER. 13 METHOD OF PROTESTING. § 28. The usual course is for the holder of the instrument to make presentment and demand for acceptance or for payment, and then, in case of refusal, he must place the paper in the hands of a notary public, who goes and makes presentment and demand again. If payment be refused him, he will then protest the bill or note and give notice to the parties sought to be held. § 29. The protest of a negotiable instrument consists of the following steps : first, the present- ment of the instrument for acceptance or payment and the demand for acceptance or for payment ; second, the noting of the fact of the dishonor; third, the notices to the drawer or to the indorsers of the fact of dishonor; fourth, extending or draw- ing up the formal protest; and a fifth step mi ght be added, i. e. the recording of the protest. PRESENTMENT AND DEMAND. (a.) Wlicn necessary. § 30. A demand and notice is necessary to charge the indorser of a note, although the maker is known to be insolvent. 1 It is also necessary, although a note is overdue when indorsed. 2 Nor 1 Granite Hank v. Avers, It; Tick. .392. 2 Colt v. Barnard, 18 Pick. 260. 14 NOTARIES PUBLIC. is the infancy of the maker of a note a sufficient reason for not making a demand upon him for pay- ment. The holder is bound, in spite of the infancy of the maker, to make a demand upon him for pay- ment, before he can charge the indorser. 1 § 31. It is not necessary to make an actual de- mand upon the maker when a note is payable at a particular bank, for it is his duty, when the note becomes due, to go to the bank and make payment. All parties are presumed to take notice of the usual hours at which the bank is open. After the expiration of those hours, the time for payment has expired, the maker is in default, and the note is dishonored. But this rule has no application to a note not payable at a bank by its terms or by usage, and not placed in any bank for collection. Therefore a notice to the maker of a note on the last day of grace to the effect that it is unpaid, is of no effect to charge the indorser without a demand on the maker for payment. And this is so in spite of the fact that the indorser knows that the maker is insolvent and has absconded. 2 (b.) Wlw may make. § 32. The proper person to make presentment and demand for acceptance or payment is the holder of the instrument or his agent, usually a i Wyman v Adams, 12 Cusli. 210. 2 Pierce v. Cate, 12 Cash. 190. THE PROTEST OP COMMERCIAL PAPER. 15 notary ; and it is not necessary that the instrument should be indorsed to the notary. § 33. A notary public is accredited on account of his known public character, and demand and presentment made by a notary are undoubtedly good and available if he was employed, and if the note was delivered to him, by the lawful holder. The possession of the negotiable bill or note is evidence of the authority under which he acts, and is sufficient without further proof. 1 § 34. By the common law and according to the uniform practice in this Commonwealth, the duties of a notary must be performed personally, and not by clerk or deputy. He is a sworn officer, clothed with important public duties, which in their nature imply a personal confidence and trust. 2 Therefore a notary cannot present a bill for acceptance or payment, or a note for payment, by deputy. (c.) At what 'Finn to be mode. § 35. On bills of exchange payable within the Commonwealth at sight or at a future day certain, and on negotiable promissory notes, orders, and drafts payable within the Commonwealth at a fu- ture day certain, if there is not an express stipula- tion to the contrary, days of grace shall be allowed 1 Shaw, C. J., in Kami v. Hubbard, 4 Met 252. 2 Bigelow, J., in Cribbs v. Adams, 13 Gray, 597 ; Ocean Bank v. Williams, 102 Mass. 141. 16 NOTARIES PUBLIC. in like manner as they are allowed by the custom of merchants on foreign bills of exchange payable at the expiration of a certain period after date or sight. 1 But no days of grace shall be allowed on a bill of exchange, note, or draft payable on de- mand, nor on a check drawn on a bank. 2 § 36. The time the instrument becomes due being fixed, the statute gives three days from that time for payment, under the term " grace," unless the contrary be expressly stipulated. Such a stipu- lation may be in any form of words which convey the idea that it is to be payable without grace. 3 § 37. The demand must be made at a reasonable hour on the last day of grace, to be determined by the circumstances of the case. Thus, if the instru- ment is payable at any place where business was transacted during certain hours of the day, it must be presented during those hours ; but if it is not payable at such a place, it may be presented to the maker at his place of residence, and at any reason- able hour. 4 § 38. When a draft is payable at sight, it is necessary to present it within a reasonable time after it is received from the indorser. The holder is bound to use reasonable diligence in presenting it, and the question whether a presentment was made within a reasonable time is a mixed question i Pub. Sta. ch. 77, § 9. 2 Ibid., § 10. :i Shaw, C. J., in Perkins v. Franklin Bank, 21 Pick. 485. 4 Farnsworth v. Allen, 4 Gray, 453. THE PROTEST OF COMMERCIAL PAPER. 17 of law and fact, to be decided by the jury under proper instructions from the court. 1 § 39. When a promissory note is made payable in a given number of days from the date or from the day of the date, the day of the date is to be excluded in the computation. 2 sj 40. A demand on the day before the maturity of a note (as before the last day of grace, if the note is entitled to grace) is premature, and will not charge the indorser. 3 £ 41. A demand made after the maturity of a note is insufficient. Payment should be demanded on the day it becomes due. 4 But where the maker resides at a distant or inaccessible place, a reason- able time will be allowed for the demand to reach him. 5 § 42. The holder of a bill payable at a fixed period after date need not present -it for acceptance prior to the day of payment. And although it is usual and safe to do so, as he thereby strengthens his security, or, in case of non-acceptance, acquires an immediate right to call on the other parties to the bill, yet he is under no legal obligation to do it. 6 1 I'rescott Bank v. Caverlv, 7 Gray, 221. - Henry <■. Jones, 8 Mass. 4o2. 8 Jones v. Kales, 4 Mass. 245; Henry v. Junes, 8 Mass. 453; Farnum p. Fowle, 12 Mass. 89; Mechanics' Bank v. Merchants' Bank, 6 Met 13. 4 Farnum '■. Fowle, 12 Mass. 89. 5 Freeman v. Boynton, 7 Mass. 4S. 1 ?. 6 Fall River Bank v Willard, 5 Met. 220. 2 18 NOTAEIES PUBLIC. But if he does so present it, and it is dishonored and not accepted, he must give due notice of such presentment and refusal to accept. 1 § 43. Bills of exchange, drafts, promissory notes, and contracts, due and payable or to be performed on a Sunday, on a Fast or Thanksgiving day ap- pointed or recommended by the Governor of the Commonwealth or by the President of the United States, on Christmas day (when Christmas falls on a Sunday the next day is a holiday), on the twenty-second day of February, on the thirtieth day of May, on the fourth day of July, or on the following day when either of the four days last mentioned occurs on a Sunday, or on the first Monday of September, shall be payable or perform- able upon the business day next preceding said days ; and, in case of non-payment or non-fulfil- ment, may be noted and protested upon such pre- ceding day ; but the holder or holders of such obligations need not give notice of the dishonor, non-payment, or non-fulfilment thereof until the business day next following the days above specified. 2 § 44. Upon a promissory note payable on de- mand, a demand made at or before the expiration of sixty days from the date thereof shall be deemed to be made within a reasonable time ; and any act, neglect, or other thing, which by the rules of law and the custom of merchants is deemed equivalent 1 Rice v. Wesson, 11 Met. 403. 2 Pub. Sts. ch. 77, § 8 ; Sts. 1882, ch. 49 ; Sts. 1887, ch. 263. THE PROTEST OP COMMERCIAL PAPER. 19 to a presentment and demand on a note payable at a fixed time, or which would dispense with such presentment and demand, shall, if it occurs at or before the expiration of said sixty days, be deemed a dishonor of such note, and shall authorize the holder thereof to give notice of the dishonor to the indorser, as upon a presentment to the prom- isor and his neglect or refusal to pay the same. A presentment of such note to the promisor and a demand of payment shall not charge the in- dorser, unless made on or before the last day of said term of sixty days. 1 § 45. In order to charge the indorser of a prom- issory note payable on demand, a demand must be made within a reasonable time, and notice of non- payment given immediately to the indorser. 2 § 46. Orders and drafts for money, payable within the Commonwealth, in which no time of payment is expressed, time notes overdue when indorsed, and promissory notes for a sum certain with interest payable annually but which state no time of payment, are payable on demand, and a demand must therefore be made within a reason- able time upon the drawees or makers in order to charge the drawers or indorsers. 3 1 l'ul. Sts. i'h. 77, § 12. 3 Field v. Xiokerson, 13 Mass. 131 ; Seaver v. Lincoln, 21 Pick 267. 3 Pub. Sts. ch. 77, § 11 ; Colt v. Barnard, 18 Pick. 260, Con- verse v. Johnson, 146 Mass 20. 20 NOTARIES PUBLIC. § 47. The provisions in the statutes, that, upon a promissory note payable on demand, a demand made at or before the expiration of sixty days from its date shall be deemed to be within a reasonable time and shall authorize the holder to give notice of the dishonor of the note to the indorser, does not apply to such note when it is indorsed after sixty days from its date. 1 (d) How and where to he made. § 48. The proper manner of making a present- ment of a bill of exchange for acceptance is for the notary to exhibit the bill to the drawee and un- equivocally demand acceptance. 2 § 49. As a general rule, the person making the demand ought to have the note or bill with him, so as to surrender it if paid. The exceptions to this rule are, where the bill or note is lost, in which case a tender of sufficient security would make the demand valid, without producing the security ; and where, from the usual course of busi- ness of which both parties are cognizant, the security may be lodged in some bank, whose offi- cers shall demand payment and give notice to the indorser, according to the custom of such banks ; the security not being presented at the time of the 1 Rice v. Wesson, 1 1 Mot. 400. 2 Pall River Bank v. Willard, 5 Met 216. THE PROTEST OF COMMERCIAL PAPER. 21 demand, bul the parties being presumed to know where it may be found. 1 § 50. It the maker lias left the state, the holder must demand payment at his actual or last place of abode or of business, within the state. 2 § 51. When a resident in the state, after giving a note, removes from the state, and takes up his residence out of the state, it is not necessary to demand payment of the promisor at his new resi- dence,. in order to charge an indorser to the note. But where the maker of a note, when it is made and indorsed, has a known residence out of the state, which residence remains unchanged at the maturity of the note, demand must be made on him, or due diligence used for that purpose, and notice of non-payment given to the indorser, be- fore the indorser can be charged. 8 § 52. If the maker of a promissory note leaves the Commonwealth, abandoning simultaneously both his residence and his place of business here, although his family remain a few months at the former, it is sufficient to charge one who indorsed the note since the maker absconded, to make a demand at the maker's last place of business, with- out inquiry at his last residence or of the indorser for the maker's present residence. 4 1 Freeman v. Boynton, 7 Mass. 483. - Wheeler v. Field, 6 Met. 290. ; Bank of OrleanB v. Whittemore, 12 Gray, 473. * Grafton Bank v. Cox, 18 Gray, . r >u3. 22 NOTARIES PUBLIC. § 53. When there are several makers of a prom- issory note who are not partners, the note must be presented for payment to all of the makers, and notice must be given to the indorser of their failure to pay, in order to charge the latter. 1 ACCEPTANCE. § 54. A person upon whom a bill of exchange or draft, wnich requires acceptance, is drawn, shall have until two o'clock in the afternoon of the business day next succeeding the first presentation thereof in which to decide whether or not he will accept the same ; but every bill of exchange or draft which is for cause held over one day shall when accepted date from the day of presentation. 2 § 55. The customary method of accepting a bill of exchange is for the drawee to write the word " accepted " across the face of the bill, and to sign his name underneath this ; but the acceptance of a bill of exchange need not be by writing upon the bill itself, but a separate written, or even an oral, promise by the drawee to the holder is binding. 3 § 56. The drawee of the bill of exchange himself or his agent duly authorized is the only one who can give an acceptance which will be binding. The » Union Bank v. Willis, 8 Met. 504 ; Arnold v. Dresser, 8 Allen, 435. 2 Pub. Sts. ch. 77, § 17. 8 Ward v. Allen, 2 Met. 53 ; Exchange Bank v. Rice, 98 Mass 288 j Pierce v. Kittredge, 115 Mass. 374. THE PROTEST OF COMMERCIAL PAPER. 23 acceptance by one partner of a bill drawn upon his linn is sufficient, for in that sense the partner is the agent of the firm. 1 NOTING. § 57. In case acceptance or payment is refused, the notary must " note " the fact on the very day of dishonor. 2 The noting, which may be either upon the protested paper itself or in the records of the notary, is a memorandum of the fact of presentment, of refusal of acceptance or payment, the name of the one to whom it was presented, and the place, the time and date, and signed by the initials of the notary. 3 NOTICE. § 58. When acceptance of a bill or payment of either a bill or note has been refused, the liability of the drawee or indorsee is generally not com- plete, unless notice of dishonor is sent to him. (a) Who may give. § 59. The notice of demand and non-payment must come from the holder of the instrument, or from his agent, usually a notary. Thus, where a notary sent a notice of dishonor to an indorser, and signed it by mistake with the name of the maker 1 Mason v. Ramsey, 1 Campb. 384. 2 Thompson on Bills, 315. u Ibid., 312. 24 NOTARIES PUBLIC. as " notary public," instead of signing it with his own name, it was held to be an insufficient notice. 1 (b) Wlien necessary. § 60. An indorser of a bill of exchange is en- titled to notice of a protest for non-acceptance, although the drawer is insolvent and has ab- sconded. 2 § 61. If the drawer of a bill of exchange had no effects in the hands of the drawee, from the time the bill was drawn to the time it became due, he is not entitled to proof of demand and notice of non- payment. 3 Nor is he entitled to notice as indorser where the bill was payable to his own order, and indorsed by him. 4 § 62. "Where the drawer of a bill of exchange had effects in the hands of the drawee at the time when the bill was drawn, but after the bill was drawn and before it was presented for acceptance the effects in the hands of the drawee were at- tached, the drawer is still entitled to notice of the non-acceptance, for when the bill was made the drawer had a reasonable expectation that it would be paid. 5 § 03. The drawer of a bill on a person who has no funds, but who has agreed to accept and into 1 Cabot Bank r. Warner, 10 Allen, 522. 2 May v. Coffin, 4 Mass. 341. 3 Kinsley v. Robinson, 21 Pick. 327. 4 1 Met. 109, note. 5 Stanton v. Blossom, 14 Mass. 116. THE PROTEST OF COMMERCIAL PAPER. 20 whose hands funds of the drawer come before maturity of the bill, is not liable without due demand and notice. 1 § G4. An indorser of a bill of exchange is en- titled to seasonable notice of a protest for non- acceptance, although he indorsed only for the accommodation of the drawer, and although the drawer had no effects in the hands of the drawee. 2 (c) Form of Notice. § 65. The notice should be such that it will in- form the indorser that the note has become due and been dishonored, and that the holder relies on the indorser for payment. This information may be express, or may be inferred by necessary im- plication from the language used. It is not neces- sary to inform the indorser of the time, place or mode of presentment and demand, nor the means by which it was dishonored, nor matter of excuse or waiver. Whatever legally fixes the promisor with dishonor is sufficient, on due notice given, to charge the indorser. 3 § 66. The notice to the indorser must state that the note has been duly presented to and payment demanded of the maker, and this is what it means when the notice states that the instrument has been " protested for non-payment." And no mis- 1 Grosvenor v. Stone, 8 Pick. 79. - Warder v. Tucker, 7 M;iss. -W9. 3 Gilbert --. Dennis, a Met. 495. 26 NOTARIES PUBLIC. take or misdescription will render the notice insuf- ficient if it is not of a character to mislead the indorser. 1 § 67. A notice by a notary is sufficient if it does not state who holds the note, nor at whose request the notice is given. 2 § 68. If the maker of a note has left the Com- monwealth before the maturity of the note, the notice to the indorser of non-payment need not state this fact. It is sufficient if the demand for payment has been left at the last and usual place of abode of the maker, or at his place of business. 3 § 69. Where a note is payable at a bank, a notice after bank hours, on the last day of grace, that the note "fell due this day, and remains unpaid," sufficiently indicates that the note is dis- honored ; 4 and a notice seasonably given to an in- dorser may be sufficient, although it misstate the day of maturity of the note, and designate the maker by a name not his own, if the indorser is not misled by such errors. 5 § 70. A notice to the indorser of a note, which merely states that the note remains unpaid, and that the holders look to him for payment, is not sufficient to charge the indorser, although the 1 Housatonic Bank v. Lanin, 5 Cash. 546. 2 Shed v. Brett, 1 Pick. 401. 8 Sanger v. Stimpson, 8 Mass. 260. * Clark v. Eldridge, 13 Met. 96. 5 Smith v. Whiting, 12 Mass. 6 THE PROTEST OF COMMERCIAL PAPER. 27 notice is given by a notary public. The notice must be such as to assert or imply that the note has been presented, and payment refused, or other- wise dishonored. 1 Form. B , , 189 . M You are hereby notified that a [bill of exchange, promissory note or check] for dollars T o Met. 215. - Wachusett National Bank v. Faiibrother, 148 Mass. 185. 36 NOTARIES PUBLIC. Thus notice of the dishonor of a bill or note is sufficient to charge an indorser or drawer if it is delivered to him personally, or is left at his place of residence or of business, the postage being prepaid. 1 Going to the place of business of the maker of a note, in business hours, with the note, to demand payment of it and finding it shut, without any person to answer inquiries, is using due diligence, and excuses a want of demand, although the note is not expressly payable at such place of business. 2 Where the holder of a bill drawn by a person who had been absent from the state for several years left a notice at his last dwelling-house, none of his family residing there, which came to the hands of the drawer's wife, it was thought that due diligence had been used. 3 But where a note was dated at Boston, where the maker and all the indorsers re- sided, it was held that the fact that the notary went to various places in Boston, making diligent inquiry of different people for the promisor, but could not find him, nor any one knowing him, nor any one with the funds for the payment of the note, and thereupon sent notices to the several indorsers, did not show reasonable diligence to find the maker which would excuse a want of a presentment and demand ; 4 and where the holder of a note of a firm 1 Bank of America v. Shaw, 142 Mass. 290; Importers and Traders' Hank v. Shaw, 144 Mass. 421. - Shed v. Brett, 1 Pick. 413. s Blakely v. Grant, 6 Mass. 386. 4 Porter v. Judson, 1 Gray, 175. THE PROTEST OF COMMERCIAL PAPER. 37 presented it at the last place of business of the makers, but which was then occupied by strangers, and was told that the makers had gone out of the city without leaving any funds, whereupon he made no further inquiry for them, but in fact one of them lived in the city and his name and place of resi- dence were in the directory, it was held that there had not been sufficient diligence to excuse a demand. 1 § 93. The principle of all the decisions on the subject is, that reasonable diligence must be used by the holder in getting notice of the dishonor to the indorser or drawer. 2 RECORDS. § 94. Notaries public must keep a record in which their transactions with regard to the protests of commercial paper shall be set down. These records must be carefully kept, as they must be delivered up by the notary on the expiration of his appointment, under a heavy penalty. 3 A book prepared for keeping these records may be obtained from law stationers. EXTENDING THE PROTEST. §95. While the notary must "note" the fact of the dishonor of an instrument on the very day 1 Granite Hank i>. Avers, if. Pick. :592. - Bobba '•. Straine, 149 Mass. 2\2. 3 Puh. Sts. ch. IS, £§ 2-1 (£§ 17-19, ante). 38 NOTARIES PUBLIC. upon which it occurs, he may make out the full and complete protest at any reasonable time after- ward, before suit is brought on the instrument. The protests must be duly certified by the notary public under his hand and official seal, and shall be prima facie evidence of the facts stated in the protest and of the notice given to the drawer or indorser. 1 Form of Protest of Bill or Check. COMMONWEALTH OF MASSACHUSETTS. S. Y ss. On the clay of , in the year of our Lord one thousand eight hundred and ninety , I, A. B., Notary Public, duly admitted and sworn, and practising in said county and [in the city or town of B.], at the request of [the holder] went with the original [bill or check] which is hereto annexed, the time therein limited and grace having fully elapsed, and demanded payment thereof [here state manner of demanding pay- ment]. The [bill or check] remaining unpaid, I duly and officially notified the [drawer and indorsers, — here state manner of sending notice, e. g. by mailing notices properly addressed to them] (postage prepaid) of said [non-payment] requiring payment. Wherefore I, the said Notary, by request as aforesaid, have protested, and by these presents do solemnly pro- i Tub. Sts. ch. 77, § 22. THE PROTEST OF COMMERCIAL PAPER. 39 test, against the drawer of said [bill of exchange or check] and all others concerned therein, for exchange, re-exchange, and all costs, charges, [seal.] damages and interest, suffered and sustained, or to be suffered and sustained, by reason or in consequence of the non-pa}*mcnt thereof. In testimony whereof I have hereunto set my hand and affixed my notarial seal, the da}* and year first above written. Fees : Noting non-acceptance . Postage Protesting for non-payment Postage A. B., Notary Public. § 96. Where there have been protests for non- acceptance and non-payment both, it is only neces- sory to draw up one formal protest. This may be done by a form similar to the above, the " Noting Non-acceptance " sufficiently indicating the pro- test for non-acceptance. Where protests for non- acceptance or non-payment alone are required, the above form may be used by making the requisite verbal changes. 40 NOTARIES PUBLIC. Form of Protest of a Promissory Note. [Here affix the original note or a copy.] COMMONWEALTH OF MASSACHUSETTS. > ss. On this day of , in the year of our Lord one thousand eight hundred and ninety , I, A. B., Notary Public by legal authority, commissioned and qualified for said county, and practising in [town or city] , at the request of [the holder], of , went with the original note [if a copy is annexed so state], which is hereto annexed, the time limited therein and grace having elapsed, to [the maker, or place of pay- ment] and demanded payment [here state manner of demanding payment]. The note remaining unpaid, I have officially notified the [e. g. first, second and third] indorsers of the said default by notice addressed to [them], and [here state method of notification]. Wherefore I, the said Notary, at the request afore- said, have protested, and by these presents do solemnly protest against the maker of said [note] , the indorser, and all others whom it doth or may concern, for ex- change, re-exchange, and all costs, charges, damages and interest, suffered, sustained and incurred, or to be suffered, sustained and incurred by reason or in con- sequence of the non-payment of said [note]. [SEAI,.] Thus done and protested in [town or city] aforesaid, and my notarial seal affixed, the da}' and 3 - ear last written. THE PROTEST OF COMMERCIAL PAPER. 41 Charges : Noting, Protest, Record, Notice, Postage, A. B., Notary Public. FEES FOR PROTESTING. § 97. The fees of notaries public shall be as follows : — For the protest of a bill of exchange, order, draft or check, for non-acceptance or non-payment, if the amount thereof is five hundred dollars or more, one dollar ; if it is less than five hundred dollars, fifty cents; for recording the same, fifty cents ; for noting the non-acceptance or non-payment of a bill of exchange, order, draft or check, or the non- payment of a promissory note, seventy-five cents; and for each notice of the non-acceptance or non-payment of a bill, order, draft, cheek or note given to a party liable for the payment thereof, tucnty-five cents: provided, that the whole cost of protest, including necessary notices and the record, when the bill, order, draft, check or note is of the amount of five hundred dollars or upwards, shall not exceed two dollars ; and when it is less than five hundred dollars, shall not exceed one dollar 42 NOTARIES PUBLIC. and fifty cents ; and the whole cost of noting, in- cluding recording and notices, shall in no case exceed one dollar and twenty-five cents. 1 LIABILITY OF NOTARIES. § 98. A notary who fails to make a protest when it is required, or who neglects to give proper notice to parties to be charged in case of dishonor, will be liable for the loss occasioned by his neglect ; but where due demand upon the promisor has been made by a bank with which a note has been left for collection, a notary by whom the note is pro- tested is not liable for negligence in not making further demand. 2 RATES OF DAMAGES ON PROTESTED BILLS. § 99. When a bill of exchange, drawn or in- dorsed within the Commonwealth, and payable beyond the limits of the United States, is duly protested for non-acceptance or non-payment, the party liable for the contents of such bill shall, on due notice and demand thereof, pay such contents at the current rate of exchange at the time of the demand, and damages at the rate of five per cent upon such contents, together with interest on the contents, to be computed from the date of the pro- test ; and said amount of contents, damages and ' Pub. StS. ell- 199, § 21. 2 Warren Bauk v. Parker, 8 Gray, 221. THE PROTEST OF COMMERCIAL PAPER. 43 interest shall be in full of all damages, charges, and expenses. 1 § 100. The rates of damages to be allowed upon hills of exchange duly protested for non-accept- ance or non-payment, if drawn or indorsed within the Commonwealth, and payable at a place beyond its limits but within the United States, shall, in addition to the contents of such bill, with interest and costs, be as follows : if payable in the states of Maine, Now Hampshire, Vermont, Rhode Island, Connecticut, or New York, two per cent ; if in the stales of New Jersey, Pennsylvania, Maryland, or Delaware, three per cent ; if in the states of Vir- ginia, West Virginia, North Carolina, South Caro- lina, Georgia, or the District of Columbia, four per cent ; and if in any other other of the United States or in the territories thereof, five per cent. 2 § 101. The rate of damages upon bills of cx- change or orders for the payment of a sum of money not less than one hundred dollars, drawn or indorsed within the Commonwealth, and payable within the Commonwealth at a place not less than seventy-five miles distant from the place where they are drawn or indorsed, when such bills or orders are not duly accepted or paid, shall be one per cent in addition to the contents thereof, and interest on such contents. 3 1 Pub. Sts. eh. 77, § 18. » Ibid., § 20. 3 Ibid., § -21. 44 NOTARIES PUBLIC. CHAPTER IV. POWERS GIVEN BY STATUTE. ACKNOWLEDGMENTS OF DEEDS. § 102. Notaries public may receive acknowledg- ments of deeds made in this Commonwealth by the grantors, or one of them, or by the attorney execut- ing the deed, and the notary shall indorse a cer- tificate of such acknowledgment upon the deed, or annex the same thereto ; * and where the acknowl- edgment of a deed is taken and certified by a notary public, his certificate need not be authenti- cated by his official seal. 2 Form of Acknowledgment. COMMONWEALTH OF MASSACHUSETTS. S. ss ,189 . Then personally appeared the above-named , and acknowledged the foregoing instrument to be [his] free act and deed, before me. A. B., Notary Public. i Pub. Sts. ch. 120, § 6. 2 Farnutn v. Buffmn, 4 Cosh. 260. POWERS GIVEN BY STATUTE. 45 § 103. Notaries public in this Commonwealth may take acknowledgments of deeds conveying real estate situated in the following states and ter- ritories : Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Loui- siana (must be certified to before a commissioner of Louisiana), Maine, Maryland, Minnesota, Missis- sippi, Missouri, Montana, Nebraska, New Hamp- shire, North Carolina, North Dakota, Ohio, Oklo- homa, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. In the Dis- trict of Columbia, Michigan, New York, Oregon, Pennsylvania, and South Carolina, the authority of the notary to take acknowledgments must be certi- fied to before a clerk of court, under his seal. It is better in every case to use the notarial seal. ADMINISTRATION OP AFFIDAVITS. § 104. Notaries public shall have the same au- thority to administer oaths as justices of the peace; 1 and all oaths and affidavits administered or taken by a notary public, duly commissioned and quali- fied by authority of any other state or government, within the jurisdiction for which he is commis- sioned, and certified under his official seal, shall be a- effectual in this Commonwealth as if adminis- tered or taken and certified by a justice of the peace therein. 2 i Pub. Sts. ch. 18, § 1. -' [bid., eh. 169, S 74. 46 NOTARIES PUBLIC. FORECLOSURE AFFIDAVITS. § 105. The certificate of an entry made for the breach of a condition of a mortgage may be sworn to before a notary public. 1 OPENING OF SAFETY DEPOSIT VAULTS. § 106. A notary public who is not an officer of the company shall, together with the president, treasurer or superintendent of a company organ- ized under the laws of this Commonwealth for the purpose of letting vaults, safes and other recep- tacles for valuables, be present when such vault or safe is opened because of non-payment of the rent. The notary public shall remove the contents of the receptacle, make a list of the same, and shall seal up such contents in a package, and shall mark thereon the name of the person in whose name such receptacle stood on the books of the corporation, and his address as stated on said books ; and such package shall in the presence of the notary and of the president, treasurer or superintendent be placed in one of the storage vaults of the corporation. The notary public shall set forth his proceedings, including the list of contents of the receptacle and his estimate of the total value of the contents, in his own handwriting and under his official seal, in a book kept by the corporation for the purpose. 1 Murphy v. Murphy, 145 Ma.ss. 224. POWERS GIVEN BY STATUTE. 47 The notary public shall swear to this statement before a justice of the peace. 1 PROOFS IN INSOLVENCY. § 107. A notary public may take proofs in in- solvency. The creditor in person, or if he is unavoidably prevented from being present, his agent, must make an oath before the notary public in substance as follows : — I, , do swear that , of , by (or against) whom proceedings in insolvency have been instituted, at and before the date of such pro- ceedings was and still is justly and truly indebted to me in the sum of , for which sum or any part thereof I have not, nor has any other person to my use, to my knowledge or belief, received any security or satisfaction whatever, beyond what has been dis- posed of agreeably to law. And I do further swear that I have not directly or indirectly made or entered into any bargain, arrangement or agreement, express or implied, to sell, transfer or dispose of my claim, or any part of my claim, against said debtor, nor have directly or indirectly received or taken, or made or entered into any bargain, arrangement or agreement. express or implied, to take or receive directly or indi- rectly any money, property, or consideration what- soever to myself, or to any person or persons to my use or benefit, under or with any understanding or agreement, express or implied, whereby my vote for 1 Sts. I ?87, ch. 89. 48 NOTARIES PUBLIC. assignee or my assent to the debtor's discharge is or shall be in any way affected, influenced or controlled, or whereby the proceedings in this case are or shall be affected, influenced or controlled. 1 SAVINGS BANK AFFIDAVITS. § 108. Notaries public may take affidavits under their seals, to be annexed to copies from the records, books and accounts of a savings bank and institu- tion for savings, incorporated under the laws of this Commonwealth, and these shall be competent evi- dence in all cases equally with their originals. The affidavit must set forth that the affiant is the officer having charge of the original records, books and accounts, and that such copy is true and cor- rect, and is full so far as it relates to the subject matter therein referred to. 2 i Pub. Sts. ck 157, §§ 29-31. 2 Sts. 1885, ch. 92. PART IT. JUSTICES OF THE PEACE. PART II. JUSTICES OF THE PEACE. CHAPTER I. ORIGIN AND APPOINTMENT. ORIGIN. § 109. The office of justice of the peace is of very ancient origin. The power of justices of the peace, under the common law, was merely preventive and provisional, except in the case of the smaller class of misdemeanors. § 110. In the beginning justices of the peace were merely conservators of the peace, and they had no judicial powers whatever. They were merely officers, with the power to arrest offenders for committing breaches of the peace in their presence. But when Edward III. came into power, judicial authority w;is given to justices of the peace, and they were appointed by the king. 1 In Massa- chusetts, justices of the peace originally had the power to try the minor class of causes both civil and 1 1 Black. Com :54'.i ; 4 Black. Coin. 212. 52 JUSTICES OF THE PEACE. criminal. But since the passage of the Sts. 1858, ch. 138, § 1, and the Sts. 1877, ch. 211, § 1, justices of the peace have no power to try cases, civil or criminal, nor have they any power to re- ceive complaints or to issue warrants except in certain cases. § 111. At the present time, in Massachusetts, the powers of justices of the peace are very limited, and are confined to certain ministerial acts, which are strictly defined by statutes. APPOINTMENT. § 112. All justices of the peace shall be nom- inated and appointed by the governor, by and with the advice of the council ; and every such nomina- tion shall be made by the governor, and made at least seven days prior to such appointment. 1 § 113. It is much easier to obtain the appoint- ment of justice of the peace than that of notary public. Any man who is more than twenty-one years of age, of good character, a citizen of the United States and a resident of Massachusetts, may be appointed. But if the applicant is not a counsellor at law, it is better to allege good reasons for the appointment, on the application. § 114. Although women cannot be appointed justices of the peace, still women who are attor- neys at law may be appointed special commis- 1 Mass. Const., Part II. ch. ii. art. ix. ORIGIN AND APPOINTMENT. 53 sioners, and shall have the same powers as justices of the peace for the following purposes : to ad- minister all oaths which may be administered by a justice of the peace ; to take depositions and affi- davits ; to take acknowledgments of deeds and other instruments ; and to issue summonses for witnesses. 1 § 115. The applicant for the office must fill out a blank similar in form to the one below, and which may be procured at the office of the secretary of state. The application must be signed by two reputable citizens of the Commonwealth, and de- posited in the executive office of the State House. COMMONWEALTH OF MASSACHUSETTS. To His Excellency the Governor: hereby recommend , of [residence], [business address], for appointment to the office of justice of the peace for the Commonwealth of Massa- chusetts. He is a citizen of the United States, a resident of Massachusetts, more than twenty-one years of age, and of high standing and character. 189 . 1 Sts. 1883, ch. 252; Sts. 1889, ch. 197. 54 JUSTICES OF THE PEACE. § 116. Every person appointed to the office of justice of the peace shall before the delivery of his commission pay to the secretary of the Common- wealth a fee of five dollars. 1 § 117. Every person appointed by the governor to the office of justice of the peace shall be notified by the secretary of the Commonwealth of his ap- pointment, and if he does not, within three months from the date of such appointment, take and sub- scribe the oaths required to qualify him to execute the duties of the office to which he has been ap- pointed, his appointment shall be null and void ; and the secretary shall forthwith notify him thereof, and request him to return his commission to be cancelled, and shall also certify said facts to the governor. 2 § 118. The following oath shall be taken and subscribed by every person appointed to the office of justice of the peace, before he shall enter upon the duties of his office, to wit : — I, A. B., do solemnly swear that I will bear true faith and allegiance to the Commonwealth of Mas- sachusetts, and will support the Constitution thereof. So help me God. Provided, that when any person shall be of the denomination called Quakers, and shall decline taking said oath, he shall make his affirmation in the foregoing form, omitting the word " swear," 1 Pub. Sts. eh. 21, § 6. - Ibid., § 4. ORIGIN AND APPOINTMENT. 55 and inserting instead thereof the word " affirm ; " and omitting the words " So help me God," and subjoining, instead thereof, the words, " This I do under the pains and penalties of perjury." 1 § 119. Justices of the peace shall have jurisdic- tion and the right to act in all counties, except as is stated in § 184, jwst, and hereafter all appoint- ments of justices of the peace shall be made and their commissions issued for the Commonwealth. 2 § 120. In order that the people may not suffer from the long continuance in place of any justice of the peace, who shall fail of discharging the important duties of his office with ability or fidel- ity, all commissions of justices of the peace shall expire and become void, in the term of seven years from their respective dates ; and upon the expira- tion of any commission, the same may, if neces- sary, be renewed, or another person appointed, as shall most conduce to the well-being of the Com- monwealth. 8 § 121. The secretary of the Commonwealth shall send by mail to every person commissioned as a justice of the peace, a notice of the time of the expiration of his commission, not more than thirty, nor less than fourteen days before such expiration. 4 § 122. A person who presumes to act as a jus- tice of the peace after the expiration of his com- 1 Mass. Const., Amend., Art. VI. 2 Pub. Sts. ch. 1 .">."), § 5. :; Ma-s. ('"list.. Part II ch. iii. art. iii. 4 Pub. Sts. ill. 15, § 14. 56 JUSTICES OP THE PEACE. mission, and after receiving notice of such expira- tion sent as stated in the preceding section, shall be punished by fine of not less than one hundred nor more than five hundred dollars. 1 MAY HOLD OTHER OFFICES. § 123. The office of justice of the peace is not subject to the provisions regarding plurality of office. So that a person may be a justice of the peace, and at the same time hold any other office which is within the gift of the governor of the Commonwealth or that of the people. 2 A justice of the peace may be a register in bankruptcy, or may hold a judicial office under the laws of the United States. 3 He shall be exempt from watch and ward duties. 4 § 124. The governor with the advice and con- sent of the council shall from time to time desig- nate and commission in the several counties a suitable number of justices of the peace as trial justices, and may at any time revoke such desig- nation. 5 FALSELY ASSUMING TO BE A JUSTICE. § 125. Whoever falsely assumes or pretends to be a justice of the peace, and takes upon himself 1 Pub. Sts. ch. 205, § 24. 2 Mass. Const., Part II. ch. vi. art. ii. cl. 2 ; Amend., Art. VIII. 8 Pub. Sis. ch. 160, §§ 14, 15. 4 Ibid., ch. 34, § 6. 6 Ibid., ch. 155, § 7. ORIGIN AND APPOINTMENT. 57 to act as such, or to require any person to aid or assist him in a matter pertaining- to the duty of such officer, shall be punished by imprisonment in the jail not exceeding one year, or by fine not exceeding four hundred dollars. 1 i Pub. Stats, ch. 205, § 23. 58 JUSTICES OF THE PEACE. CHAPTER II. DEPOSITIONS. METHOD OP TAKING. § 126. When a witness whose testimony is wanted in a civil cause or proceeding pending in this Commonwealth, lives more than thirty miles from the place of trial, or is about to go out of the Commonwealth and not to return in time for the trial, or is so sick, infirm or aged, as to make it probable that he will not be able to attend at the trial, his deposition may be taken as is hereinafter stated. 1 § 127. When a deposition is taken with a view to a future trial, it is always subject to contingen- cies. Therefore a deposition which is certified by the justice of the peace who took it that it was taken because the witness was about to go out of the Commonwealth, is admissible if the witness is out of the state at the time of the trial, although he testifies in the deposition that he has no present purpose of leaving the state. 2 1 Pub. Sts. ch. 169, § 24. 2 Livesey v. Bennett, 14 Gray, 131. DEPOSITIONS. 59 § 128. At any time after the cause is commenced by the service of process, or after it is submitted to arbitrators or referees, either party may apply to a justice of the peace, who shall issue a notice to the adverse party to appear before said justice or any other justice of the peace, at the time and place appointed for taking the deposition, and to put such interrogatories as he thinks fit. 1 § 129. The brother-in-law of one who as stake- holder is made a party to a suit in equity, is not disqualified to take a deposition in the case as a justice of the peace. The stakeholder has no in- terest in the suit, for he was merely a trustee for both parties, and his brother-in-law, the justice of the peace who took the deposition, cannot be said therefore to be related to any party in interest in the suit. 2 § 130. The notice may be served on the adverse party or his agent or attorney ; and when there are several plaintiffs, defendants or parties, on either side n notice served on cither of them shall be sufficient. 3 ^ lot. Where an attorney puts his name on the record as attorney to one of the parties in an action, notice given to him of the taking of a deposition will be sufficient, the party whom he represents being estopped by the record to allege that he appeared without authority. 4 1 Pub. Srs. ch. 169, § 25. 2 Culvor <•. Benedict, 18 Gray, 7. ■ Pub. Sts. ih. 169, § 26. 4 Smith o. Bowditch, 7 Pick. 137. 60 JUSTICES OF THE PEACE. § 132. The notice shall be served by delivering an attested copy thereof to the person to be noti- fied, or by leaving such copy at his place of abode, not less than twenty-four hours before the time appointed for taking the deposition, and also allowing time for his travel to the place appointed, not less than at the rate of one day, Sundays excluded, for every twenty miles' travel. 1 § 133. The reading to the adverse party of a notice of the time and place appointed for the taking of a deposition, is not a legal service of such notice. 2 § 134. The object of the statute is very clear. The person notified shall have not less than twenty-four hours' notice before the time required for his attendance ; and if he has to travel to the place of attendance, he shall have sufficient time for that purpose, not less than at the rate of one day for every twenty miles' travel. The time and distance are measured by hours, and therefore fractions of a day may be computed both as to notice and the time necessary to reach the place of appointment. 3 § 135. The general rule of law is, that every witness must give his evidence in person before the court and jury, so that they may be able to 1 Pub. Sts. ch. 169, § 27. 2 Young v. Capen, 7 Met. 287. 8 Hubbard, J., iu City Bauk at Providence v. Fullcrtou, 11 Met. 78. DEPOSITIONS. 61 judge of his credibility by his appearance and manner of testifying. There are exceptions to this rule founded on considerations of convenience and necessity. But if a party desires to use the testimony of an absent witness, this can only be done by showing that the provisions of law regu- lating the mode of depositions have been complied with. If any essential requisite is omitted, the deposition, however full and accurate it may be in other respects, is not legal evidence. The in- tent of the statute was, in providing that the adverse party must have twenty-four hours' notice of the time for taking the deposition, that a party should not be suddenly called upon at the pleasure of his adversary to attend to the taking of material testimony, without having some time for prepara- tion and to procure the attendance of counsel. 1 Form of Notice to Adverse Party. COMMONWEALTH OF MASSACHUSETTS. S. \ ss. To A. B., of B., in the County of M., Greeting. Whereas C. D.. of W., in the County of M. has re- quested me to take the deposition of E. F. of R., in the Count)' of E., to be used in an action of [tort or con- tract] pending between you and the said C. D. and the [house, office, or store] of G. H. in said R., and the 1 Bigelow, C. J., in Huut c. Lowell Gas Light Co., 1 Allen, 347. 62 JUSTICES OF THE PEACE. day of , in the year of our Lord one thousand eight hundred and ninety- , at of the clock in the noon, are appointed the time and place for the said deponent to testify what he know relating to said action. You are hereby notified that you may then and there be present, and put such interrogatories as } T ou maj T think fit. Given under my hand and seal, at , on the da} T of , in the year of our Lord one thousand eight hundred and ninety- S. P., | Justice of the Peace, j L SEAL -.J § 136. Instead of the written notice before pre- scribed, the notice may be given verbally by the justice taking the deposition, or it may be wholly omitted if the adverse party or his attorney in writing waives the right to it. But where the adverse party does not appear to defend within the time required by law, the justice may take the deposition without giving any notice. 1 § 137. The deponent shall be sworn or affirmed to testify the whole truth, and nothing but the truth, relating to the cause for which the deposi- tion is taken. He shall then be examined by the justice, and the parties if they think fit, and his testimony shall be taken in writing. 2 1 Pub. Sts. ch. 169, § 28 ; Sts. 1883, ch. 188, § 1. 2 Pub. Sts. ch. 169, § 29. DEPOSITIONS. C3 § 138. The party producing the deponent shall be allowed first to examine him, either upon verbal or written interrogatories, on all the points which he deems material ; the adverse party may then examine him in like manner ; after which either party may propose such further interrogatories as the case may require. 1 § 139. The deposition shall be written by the justice, or by the deponent, or by some disinter- ested person in the presence and under the direc- tion of the justice, and it shall be carefully read to or by the deponent, and shall then be subscribed by him. 2 § 140. A deposition which is certified as made and subscribed by the deponent is sufficient, for the meaning seems to be that the deposition was written either by the deponent himself, or by the justice, or by some other person by the direction of the justice ; and that it was read to or by the deponent. For if it were not so written and read, it would seem that the justice could not certify of his own knowledge that the deposition was made by the deponent. 3 § 141. Exhibits and documents annexed to a deposition arc not required to be in the handwrit- ing of the justice of the peace or of some person appointed by him. Thus it is no objection to a deposition that the bill of items of the plaintiff's > Pub. Sts. ch. 169, § 30. - Ibid., § 31. 8 Browu v. King, 5 Met. 183. 64 JUSTICES OF THE PEACE. account annexed to the deposition, and sworn to by the deponent, is not in the handwriting of the justice of the peace who took the deposition, or of the deponent, or of some disinterested person. 1 § 142. The justice shall annex to the deposition a certificate of the time and manner of taking it, the person at whose request, the cause or suit for which it was taken, and the reason for taking it, and stating also whether the adverse party at- tended, and if not, stating the notice, if any, that was given to him. 2 § 143. The testimony of witnesses in the form of depositions cannot be received, unless there has been a full compliance with the actual and positive requirements of the law. Therefore if the certifi- cate of the justice who took the deposition does not state that the deponent was sworn to tell the truth, the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken, the law has not been complied with and the deposition will be of no effect. 3 § 144. It is the duty of a justice of the peace taking a deposition to state in his certificate " the reason for taking it ; " but it is not necessary for the certificate to show in what manner or by what evidence the justice of the peace was satisfied of 1 Marvin v. "Raigan, 12 Cush. 132. 2 Tub. Sts. ch. 169, § 32. 8 Simpson v. Carleton, 1 Allen, 116; Hitchings v. Ellis, 1 Allen, 475 ; Bacon v. Rogers, 8 Allen, 146. DEPOSITIONS. 65 the existence of the cause for the taking. It is sufficient that he certifies to the fact upon his official responsibility. 1 § 145. If the certificate of a justice of the peace to a deposition shows that the deponent was sworn to testify in relation to an action pending between A. 13. and C. D., it is sufficient, although it appears that another action with the same title is pending in the same court. 2 $ 140. Where the deposition and the certificate are inclosed together, scaled up and directed to the clerk of the court by the justice of the peace, the certificate is annexed to the deposition within the meaning of the statute. If not the best, it is one method of annexation. 3 Certificate of Justice to be annexed to Deposition. COMMONWEALTH OF MASSACHUSETTS. b. v ss. This is to certify that E. F., the above-named depo- nent, appeared before me at o'clock, M., on the day of , a. d. 189 , at [state place], and gave the foregoing deposition, to be used in an action of [tort or contract] now pending between A. B., of B., in the county of M., and C. D., of W., in 1 Littleliale v. Dix, 11 Cush. 365. - Halo v. Silloway, :$ Allen, 358. :l Shaw >■. McGregory, 105 Mass. 100. 66 JUSTICES OF THE PEACE. the said county of M., before the Court for the count\ T of ; that prior to his examination the said deponent was duly sworn by me to testify the truth, the whole truth, and nothing but the truth, relat- ing to the cause for which said deposition is taken ; that both parties to the said action had an opportunity to examine the said deponent as in the statute provided ; that the said deposition was reduced to writing by me ; that it was carefully read to the said deponent, and was then subscribed by him ; that the said deposition was taken at the request of the [plaintiff or defendant] in said action, the said deponent being , and that the [plaintiff or defendant] in said action attended at the taking of said deposition [if the adverse party did not attend, state the notice, if an} r , that was given him]. Dated at this day of , a. d. 189 . S. P., Justice of the Peace. § 147. The deposition shall be delivered by the justice to the court, arbitrators, referees or other persons before whom the cause is pending, or shall be inclosed and sealed by him, and directed to them, and shall remain sealed until opened by them. 1 § 148. As the deposition with the annexed cer- tificate is in the possession of the justice of the 1 Tub. Sts. ch.169, §33. DEPOSITIONS. 67 peace until it is transmitted by him, he may cor- rect any error or supply by additional statements any deficiency which he may discover in the cap- tion. But after it has been delivered to the court or tribunal where it is to be used, the deposition is in their custody, and no alteration, change or amendment in the certificate of the justice of the peace accompanying it can be made without their order or permission. 1 SUMMONING OF WITNESSES. § 149. A witness may be summoned and com- pelled to give his deposition at a place within twenty miles of his place of abode, in like manner and under the same penalties as he may be sum- moned and compelled to attend as a witness before a court. 2 § 150. A witness not having his place of abode in this Commonwealth, but being at the time herein, may be summoned and compelled to give his depo- sition at any place within ten miles of the place at which the summons is served upon him, in like manner and under the same penalties as he may be summoned and compelled to attend as a witness before a court . :i i Hitcbings v. Ellis 1 Allen, 476. - Pub. Ste. ch. i 69, §38. 3 Ibid., § M. 68 JUSTICES OF THE PEACE. Form of Deposition Summons. COMMONWEALTH OF MASSACHUSETTS. S. Vss, To E. F. of R., in the county of E., Greeting. Whereas C. D. of W. in the county of M., has re- quested me to take your deposition, to be used in ail action now pending between him and A. B. of B., in the county of M., and the [house, office, or store] of G. H. in said R., and the day of , in the year of our Lord one thousand eight hundred and at of the clock in the noon, are appointed the time and place for taking the same deposition. You are hereby required, in the name of the Com- monwealth of Massachusetts, then and there to appear, to testify what you know relating to the said action. Hereof fail not. Given under my hand and seal, at aforesaid, the day of , in the year of our Lord one thousand eight hundred and S. T., Justice of the Peace. V [seal.] § 151. A witness may be summoned and com- pelled in like manner and under the same penalties as are prescribed in chapter 169 of the Public Stat- utes, to give his deposition in a cause pending in a court in any other state or government; which deposi- tion may be taken before a justice of the peace in this DEPOSITIONS. 69 Commonwealth, or before commissioners appointed under the authority of the state or government in which the suit is pending ; and if the deposition is taken before such commissioners, the witness may be summoned and compelled to appear before them, by process from a justice of the peace in this Com- monwealth. 1 DEPOSITIONS TO PERPETUATE TESTIMONY. § 152. When a person is desirous to perpetuate the testimony of another person or of himself, he shall make a statement in writing setting forth briefly and substantially his title, claim or interest in or to the subject concerning which he desires to perpetuate the evidence, and the names of all other persons interested or supposed to be interested therein, and also the name of the witness proposed to be examined ; and shall deliver said statement to two justices of the peace, one of whom shall be either a judge or register of probate and insolvency, a clerk of the supreme judicial court, a master in chancery, or a counsellor at law, requesting them to take the deposition of said witness. 2 $ 153. The justices shall thereupon cause notice to be given of the time and place appointed for tak- ing the deposition to all persons mentioned in said statement as interested in the case. The notice shall be given in the manner prescribed in this 1 l'uli. StS. eh. 169, § 44. •-' [bid., $ 4."). 70 JUSTICES OP THE PEACE. chapter respecting notice upon taking a deposition in this Commonwealth, to be used in a cause here pending ; and when in the opinion of the justices no sufficient provision is made by law for giving notice to parties adversely interested, they shall cause such reasonable notice to be given as they deem proper. 1 § 154. If at the time and place appointed for taking the deposition the witness or a person interested appears and objects, the justices shall not proceed to take the same unless on hearing the parties it is made satisfactorily to appear that such testimony may be material to the petitioner, and is not sought for the purpose of discovery, or of using the same in a suit pending or thereafter to be brought against said witness, and that the peti- tioner is in danger of losing the same before it can be taken in any suit wherein his right, title, inter- est or claim can be tried. In all cases the peti- tioner, his agent or attorney shall, at the request of such witness or of a person interested in the deposition, be examined on oath in relation to the reasons for taking the same. 2 § 155. The deponent shall be sworn and exam- ined, and his deposition shall be written, read and subscribed in the same manner as is prescribed respecting other depositions before mentioned ; and the justices shall annex thereto a certificate under 1 Pill). StS. eh. 169, § 46. 3 Ibid, § 47. DEPOSITIONS. 71 their hands of the time and manner of taking it, and that it was taken in perpetual remembrance of the thing ; and they shall also insert in the certi- ficate the names of the person at whose request it was taken, and of all persons who were notified to attend, and of all who did attend the taking thereof. 1 Form of Certificate to be annexed to Deposition to Perpetuate Testimony. COMMONWEALTH OF MASSACHUSETTS. S. £-ss. ) City [or town] of This day of , in the }-ear of our Lord eighteen hundred and ninety- , personally appeared before us the subscribers, two justices of the peace for the said Commonwealth, the aforesaid deponent, and after being carefully examined and duly cautioned to testify the truth, the whole truth, and nothing but the truth, made oath [or affirmed] that the foregoing depo- sition by him subscribed is true. Taken at the request of , to be preserved in perpetual remembrance of the tiling. And we duly notified all persons living within twenty miles of this place of caption whom we knew to be interested in the propert}- to which said deposition relates ; and attended [if any persons so notified did attend] [or, we not knowing any person 1 Pub. StS. cli. 169, § 48. 72 JUSTICES OF THE PEACE. living within twenty miles of said place of caption, interested in the property - whereunto the said deposi- tion relates, did not notify any persons to attend]. ( [judge or register of probate and insol- S. T., J vency, clerk of supreme court, master ( in chancery, or counsellor at law]. U.V., Justices of the Peace. § 156. The deposition with the certificate, and also the written statement of the party at whose request it was taken, shall within ninety days after the taking thereof be recorded in the registry of deeds in the county or district where the land lies, if the deposition relates to real estate, otherwise in the county or district where the parties or some of them reside. 1 •§ 157. A witness may be summoned and com- pelled to give his deposition in perpetual remem- brance of the thing as before prescribed, in like manner and under the same penalties as are stated in this chapter respecting other depositions taken in this Commonwealth. 2 DEPOSITIONS BY PARTIES. § 158. The testimony of parties may be taken or given by depositions, for the causes and in the man- i Pub. Sts. ch. 169, §49. - Ibid., § 51. DEPOSITIONS. 16 ner provided for other witnesses, and the expenses of such depositions shall be taxed in the bill of costs as in the other cases. 1 FEES. § 159. The fees of justices of the peace for tak- ing a deposition shall he fifty cents; for writing the deposition and caption, at the rate of twelve cents a page of two hundred and twenty-four words ; and for the notice to the adverse party, twenty cents ; the justice shall certify on the deposition his own fees and those of the deponent, and where the at- tendance of two or more justices is required, each of them shall be entitled to the fees prescribed. 2 1 Pub. Sts. ch. 169, § 65. 2 Ibid., ch. 199, § 1. 74 JUSTICES OF THE PEACE. CHAPTER III. 1 CALLING OF MEETINGS. CORPORATIONS. § 160. When by reason of the death, absence or other legal impediment of the officers of a cor- poration there is no person duly authorized to call or preside at a legal meeting, a justice of the peace may, on a written application of three or more of the members, issue a warrant to either of them, directing him to call a meeting by giving such notice as had been previously required by law ; and the justice may in the same warrant direct such person to preside at the meeting until a clerk is duly chosen and qualified, if no officer is present legally authorized to preside. 2 § 161. The justice of the peace who issues a war- rant on the application of three persons represent- ing themselves as members of a corporation, does not pass upon the question whether such persons are legal members of such corporation, or whether 1 Should the justice have occasion to issue warrants under §§ 1GO-172 and 1 74-1 7C>, he will find that the essential parts are stated with sufficient clearness in those sections. 2 Pub. StS. ell. 105, §11. CALLING OF MEETINGS. 75 such meeting is, when assembled, a legal one, and competent to act on the business for which it is assembled. 1 § 162. A justice of the peace upon the written request of a majority of the acting directors of a corporation may call a special meeting of the stock- holders to confirm the legality of the organization of the corporation or of any of its proceedings, whether the corporation is formed under the gen- eral corporation law or under special statutes. 2 AQUEDUCT CORPORATIONS. § 163. Persons who have associated by an agree- ment in writing to become proprietors of an aque- duct for the purpose of conveying fresh water into or within a city or town, or of funds for establish- ing such aqueduct, may apply in writing to a jus- tice of the peace, stating the name and style of their association and the objects of their proposed meeting, and requesting him to call the same. The justice may thereupon issue his warrant stat- ing the time, place and objects of the meeting, and directing some one of the persons applying to notify the same. 9 FIRE DISTRICTS. § 164. If the selectmen, upon the application in writing of not less than seven freeholders, inhabi- i Stevens ft Taft, 3 Cray, 489. - Pub. Ste, eh. 106, §§ 79, 80. a Ibid., ch. 110, § 1. 76 JUSTICES OP THE PEACE. tants of a proposed fire district, requiring them to notify a meeting of the inhabitants of the district duly qualified to vote in town affairs, for the pur- pose of considering the expediency of organizing such district and establishing a fire department, shall refuse or neglect to notify such meeting, a justice of the peace may notify the same. The justice shall notify the meeting in the same man- ner that town meetings are notified. 1 (See § 173, post. ) GENERAL FIELDS. § 165. Upon the application of two or more pro- prietors of general fields to a justice of the peace, the latter shall issue his warrant to one of the applicants, directing him to call a meeting of the proprietors, and expressing in the warrant the time, place and purpose of the meeting. 2 MEETING-HOUSE PROPRIETORS. § 166. A meeting of a corporation of proprietors of meeting-houses to alter, enlarge, repay, rebuild or remove the meeting-house, may be called by a warrant issued by a justice of the peace, on ap- plication in writing by any five of the members of the corporation, which warrant shall be directed to one of the applicants. 3 1 Pub. Sts. ch. 35, § 42. - [bid., ch. 1 1 1, § 22. 8 Ibid., ch. 38, § 32. CALLING OF MEETINGS. 77 PRIVATE WAYS AND BRIDGE PROPRIETORS. § 167. A justice of the peace may issue his war- rant for a meeting of proprietors of private ways and bridges, when four or more persons are the pro- prietors and rightful occupants of a private way or bridge, and three of them make application to such just ire to call a proprietors' meeting. The warrant must set forth the time, place and purpose of the meeting, and shall be posted up in some public place of the town where the way or bridge is situ- ated, seven days at least before the time appointed for the meeting. 1 RELIGIOUS SOCIETIES. § 168. A justice of the peace may, upon the ap- plication of five or more of the qualified voters, call a meeting of a religious society, in the manner stated in the following section, if there arc no assessors or committee, or if such officers unreasonably refuse to call a meeting. - $ 169. Any justice of the peace may, upon ap- plication in writing by live or more of the qualified voters of a religious society, which is legally capable of becoming a corporation, and so desires, issue his warranl directed to some one of the applicants, stat- in- the objects of the proposed meeting, and requir- ing him to warn the qualified voters of the society to meet at a time and place appointed in the warrant. 1 Pub. Stats ili. j2, § 26. - Ibid., ch. 38, § n. 78 JUSTICES OF THE PEACE. Upon due return of the warrant, the same or any other justice of the peace may preside at the meet- ing for the choice and qualification of a clerk. 1 § 170. Any ten or more persons, male or female, who desire to form a religious society, may make for that purpose an application in writing to a justice of the peace. Such justice may thereupon issue his warrant directed to one of the applicants, stating the objects of the proposed society, and requiring him to warn said persons to meet at a time and place appointed in the warrant. 2 TRUSTEES OF METHODIST EPISCOPAL CHURCHES. § 171. The first meetings of the trustees of any society of the Methodist Episcopal Church or of the African Methodist Episcopal Church may be called by a justice of the peace upon the application of three or more of the trustees. The provisions stated in the three preceding sections and in Pub. Stats, ch. 38, in relation to the warning and organi- zation of meetings of religious societies, shall, so far as the same are applicable, apply to meetings for the organization of such trustees. 3 SOCIAL LIBRARY CORPORATIONS. § 172. Upon application of five or more pro- prietors of a social library corporation, a justice of the peace may issue his warrant to one of them, 1 Pub. Sts. ch. 38, § 25. 2 Ibid., ch. 38, § 26. 3 Ibid., § 46. CALLING OP MEETINGS. 79 directing him to call a meeting- of the proprietors at the time and place and for the purpose expressed in the warrant. 1 TOWN MEETINGS. § 173. If the selectmen of a town unreasonably refuse to call a town meeting, a justice of the peace, upon the application of ten or more legal voters of the town, may call such meeting by a warrant under his hand directed to the constables of the town, if there are any, or, if there is no constable, then to any of the persons applying therefor, directing them to summon the inhabitants qualified to vote in town affairs to assemble at the time and place and for the purposes expressed in the warrant. 2 During the election of a moderator at a town meeting, the justice of the peace calling such meeting, if the meeting is so called, and if neither the town clerk nor a selectman is present, shall preside. A justice of the peace, when so presiding, shall have the powers and perform the duties of a moderator. 3 Application for a Toicn Meeting, token the Selectmen have declined to call one. To S. T., Esq., a Justice of the Peace for the Common- wealth of Massachusetts : The subscribers, residents in and legal voters of the town of M., in the county of P., show that application 1 Pub. Sts. ah. 40, § 1.3. - Sts. 1893, ch. 417, § 262. 8 Ibid., § 263. 80 JUSTICES OF THE PEACE. has been made to [here state the names of the select- men], selectmen of said town, to call a meeting of the inhabitants thereof, duly qualified to vote at town meet- ings [here state the purpose for which it was sought to call the town meeting]. But said selectmen have unreasonably refused to call a town meeting for those purposes. The said subscrib- ers therefore request you to issue a warrant, as the law in such cases directs, for calling a meeting of said inhabitants for the purposes aforesaid. Dated , 189 . (Signed) [by ten or more legal voters of the town]. Warrant. P. | ss. To W. H., one of the constables [or if there is no con- stable, then to one of the signers of the application] of the town of M. in said county, Greeting. Whereas A. B. and nine [or more] other residents in, and legal voters of, the said town, have represented to me the subscriber, a justice of the peace for the Com- monwealth of Massachusetts, that application has been made to [here state the names of the selectmen], select- men of said town, to call a meeting of the inhabitants of said town, qualified to vote in town meetings [here state the purpose for which it was sought to call the town meeting], but they have unreasonably refused to call a meeting for those purposes, and have therefore made application to me to call one for those purposes. These are therefore, in the name of the Common- CALLING OF MEETINGS. 81 wealth of Massachusetts, to require )'ou to notif\ T the inhabitants of said town, qualified by law to vote in town affairs, to assemble at , on , the day of next, at o'clock in the noon, for the purposes above mentioned. Given under my hand and seal this day of , in the year of our Lord eighteen hundred and ninety S. T., Justice of the Peace. WATCH DISTRICTS. § 174. A justice of the peace, in case of the re- fusal or neglect of the selectmen, may, upon the application in writing of not less than seven free- holders of a village which is competent to establish a watch district, the limits of which shall he defined in the application, requiring him to notify a meet- ing of the persons in such district qualified to vote in town affairs, for considering the expediency of establishing such watch district, forthwith give notice to such voters, in the manner in which notice of town meetings is given, to assemble at some suitable place within the district for said pur- pose, the substance of which shall be expressed in the notification. 1 £ 175. When a village in which a watch district may be established belongs to two or more towns, the voters thereof may organize such district at a 1 Pub. StB. ch. 34, § 9. 6 82 JUSTICES OF THE PEACE. '- meeting called and notified by a justice of the peace, as is stated in the preceding section, to whom application has been made by at least five voters of each town who are inhabitants of such district. 1 PROPRIETORS OF WHARVES AND COMMON LANDS. § 176. Upon the application of five or more pro- prietors who hold in common lands, wharves or other real estate, and who wish to form themselves into a corporation, to a justice of the peace, such justice shall issue his warrant to one of the applicants directing him to call a meeting of all the proprietors, and expressing in the warrant the time, place, occasion and purpose of the meeting. 2 i Pub. Sts. ch. 34, § 10. 2 Ibid., ch. Ill, §§ 1,2. ACKNOWLEDGMENT OF DEEDS. 83 CHAPTER IV. ACKNOWLEDGMENT OF DEEDS. IN GENERAL. § 177. The acknowledgment of a deed shall be by the grantors or one of them, or by the attorney executing the deed, and, if made in this Common- wealth, shall be made before a justice of the peace or notary public ; and the justice of the peace, be- fore whom the acknowledgment is made, shall indorse a certificate of such acknowledgment upon the deed, or annex the same thereto. 1 § 178. Taking the voluntary acknowledgment of a deed under our statutes is a purely ministerial, and not a judicial act, nor in any way connected with a judicial proceeding. The general principles of law. the nature of the act and the language of the statute, all show that any justice of the peace may take an acknowledgment of a deed in any county within the state. 2 § 179. The only use of a certificate of a justice of the peace of the acknowledgment of a deed, is to i Pub. Sta. eh. 120, § 6. 2 Learned V. Riley, 14 Allen. 109. 84 JUSTICES OF THE PEACE. entitle the deed to be recorded. The certificate is not conclusive evidence that the grantor executed the deed. 1 Form of Acknowledgment of a Deed. COMMONWEALTH OF MASSACHUSETTS. S. jss. 189 . Then personally appeared the above-named , and acknowledged the foregoing instrument to be free act and deed, before me. Justice of the Peace. WHEN GRANTOR REFUSES TO ACKNOWLEDGE. § 180. If a grantor refuses to acknowledge his deed, the grantee or any person claiming under him may apply to a justice of the peace in the county where the land lies or where the grantor or a subscribing witness to the deed resides, and such justice shall thereupon issue a summons to the grantor to appear before him at a certain time and place to hear the testimony of the subscribing wit- nesses ; which summons, with a copy of the deed annexed, shall be served seven days at least before the time therein assigned for proving the deed, and at such hearing or any adjournment thereof the due i O'Nei] v. Webster, 150 Mass. 572. ACKNOWLEDGMENT OF DEEDS. 85 execution of the deed may be proved by the testi- mony of one or more of the subscribing witnesses. The execution of a deed shall not be proved in the manner above stated, unless it has at least one sub- scribing witness. 1 Application to a Justice of the Peace, when a Grantor or Lessor refuses to acknowledge a Deed, or a Lease for more then seven years. COMMONWEALTH OF MASSACHUSETTS. To S. T., Esq., a justice of the peace for the said Com- monwealth. Complains A. B. of , that C. D. of , on the da}- of , in the year of our Lord eighteen hundred and ninety , signed and sealed a deed conveying to him [in fee simple, fee tail, for term of life, or lease for more than seven years, as the case may be] ; [here the premises may be generally described], which deed the said C. D. has refused, and still continues to refuse, to acknowledge before a jus- tice of the peace. He therefore requests you to issue a summons to the said C. D. to appear before you, to hear the testimony of the subscribing witnesses there- unto, and that such other proceedings may be had thereon as the law in such cases directs. , 189 . (Signed) A. B. l Puh. Sts. ch. 120, §§ 9, 12. 86 JUSTICES OF THE PEACE. Summons thereon. COMMONWEALTH OF MASSACHUSETTS. S. }ss. To C. D. of Whereas A. B. of , has complained to me, a justice of the peace for the said Commonwealth, that on the day of , you signed and sealed a deed, conveying to him [in fee simple, fee tail, for term of life, or lease for more than seven \ T ears, as the case may be], [here describe the premises], a copy of which is hereto annexed. Which deed, he says, you have refused and still do refuse to acknowledge before a justice of the peace, and has therefore requested me to summon you to appear before me, to hear the testimony of the sub- scribing witnesses thereunto, and further to proceed thereon as the law in such cases directs. I do therefore, in the name of the Commonwealth of Massachusetts, hereby notify and summon }*ou to appear before me, on the day of , at o'clock in the noon, at in , in the said county of S., then and there to hear the testimony of the subscribing witnesses E. F. and G. H., that such proceedings may be had thereon as the law of the Commonwealth in such cases directs. Given under my hand and seal this da}' of , in the year of our Lord 189 . S. T., Justice of the Peace. ACKNOWLEDGMENT OF DEEDS. 87 A certificate of the proof of the execution of a deed shall be indorsed upon the deed or annexed thereto by the justice of the peace before whom such proof is made, and the justice of the peace shall state in his certificate whether the grantor was present at the hearing. 1 Certificate to be annexed. COMMONWEALTH OF MASSACHUSETTS. r 8S * I hereby certify, that on this day of , in the year of our Lord eighteen hundred and ninet} 7 - , E. F. and G. H., [or E. F., one of] the witnesses whose names are subscribed to the [foregoing or within] deed [or lease for more than seven years, as the case may be], appeared before me the subscriber, a justice of the peace for the said Commonwealth, and made oath that they [or he, as the case may lie] saw the above [or within] named ('. D. sign and seal the above [or within] deed [or lease], and that they [or he, as the ease may be] subscribed their names as witnesses thereunto at the same time, the said C. D. being present [or the said C. D., although duly summoned according to law, was not present, as the case may be] when they [or he] took the said oath. S. T.. Justice, of the Peace. 1 I'nk Sts. cL 120, § 1 3 88 JUSTICES OF THE PEACE. ACKNOWLEDGMENT OF DEEDS CONVEYING PROPERTY OUTSIDE OF THE COMMONWEALTH. § 181. Justices of the peace in this Common- wealth may take acknowledgments of deeds con- veying real estate situated outside of Massachusetts and in the following states and territories : Cali- fornia, Colorado (the certificate of the justice must be affixed, and also a certificate by the clerk of some court of record of the county, city, or district wherein the justice resides, under the seal of such court, that the justice certifying the acknowledg- ment is the officer he assumes to be, that he has authority by the laws of Massachusetts to take and certify such acknowledgment, and that his signa- ture is genuine), Connecticut, District of Columbia (there must be a certificate of the register, clerk or other public officer having cognizance of the fact, under his official seal, that at the date of ac- knowledgment the justice was in fact a justice of the peace), Florida, Idaho, Illinois (the official character of the justice must be certified by the clerk of the county court), Indiana (the acknowl- edgment shall be certified by the clerk of the county court where the justice resides, and at- tested by the seal of the court), Iowa (a certificate of the official character of the justice and of the genuineness of his signature is required), Kansas (the acknowledgment must be accompanied by a certificate of the official character of the justice ACKNOWLEDGMENT OF DEEDS. 89 under the hand of the clerk of some court of rec- ord and seal of the court), Louisiana (the official character of the justice must be properly verified before a commissioner of the State), Maine, Michi- gan, Minnesota (the justice should state his official character in his certificate), Mississippi (the official character of the justice shall be certified under the seal of some court of record in his county), Mon- tana (the official character of the justice must be certified under the seal of the court, tribunal or officer within and for the county in which the jus- tice of the peace may be acting, which has cog- nizance of the official character of the justice), New Hampshire, North Dakota, Ohio, Rhode Is- land, South Dakota, Vermont. In Nebraska, Nevada, New York, North Carolina, Oregon, Penn- sylvania, Washington, Wisconsin, and Wyoming, the acknowledgment must be accompanied by the certificate of the clerk of a court of record of the county having a seal, showing the official character and the genuineness of the signature of the justice. OF SHARES OF STOCK. § 182. A justice of the peace shall receive ac- knowledgments of deeds of shares of stock which are sold by treasurers of corporations, because of the failure of the proprietors to pay the assess- ments due upon the shares. 1 1 Pub. Sts. ch. 106, § 45. 90 JUSTICES OF THE PEACE. FEES. § 183. The fees of a justice of the peace for tak- ing the acknowledgment of a deed by one or more grantors, if done at the same time, shall be twenty- five cents. 1 1 Pub. Sts. ch. 199, § 1. ISSUING OF WARRANTS. 91 CHAPTER V. ISSUING OF WARRANTS. IN CRIMINAL CASES. (a) Warrants. 1 § 184. The governor, with the advice and con- sent of the council, may from time to time, upon the petition of the selectmen of a town included within, the judicial district of a district or police court, and in which neither a justice nor the clerk of such court resides, designate and commission some justice of the peace residing in said town, who may issue warrants returnable to said court in criminal cases arising within such judicial dis- trict, and take bail therein. 2 The fee for issuing a warrant under this section shall be one dollar. 3 § 185. A justice of the peace who has been des- ignated and commissioned, as is stated in the pre- ceding section, with authority to issue warrants in criminal cases, may lawfully receive the complaints 1 Forms for warrants of various kinds may be had at the clerk's office of the district or police court in the district of which the jus- tice of the peace is commissioned to issue warrants and take bail. - Sts. 1884, cli. 286. 3 p UOi gts. ch. 199, § 1. 92 JUSTICES OP THE PEACE. upon which such warrants are issued. Since the warrants cannot be issued without complaints, au- thority to receive complaints is implied from the authority to issue warrants. 1 § 186. A justice of the peace who has authority to issue warrants in criminal cases arising any- where within a certain district, and whose residence falls within a new town formed by the incorporation of a part of an old town in the district, may con- tinue to issue warrants in cases which arise within the new town, as well as elsewhere in the district. 2 § 187. A justice of the peace has no authority to direct his warrant to a private person, except where it is absolutely necessary, and where the necessity is expressed in the warrant ; but he must direct to a sheriff, deputy-sheriff or a constable. 3 § 188. Upon complaint made to the justice of the peace that a criminal offence has been com- mitted, he shall examine on oath the complainant and any witnesses produced by him ; shall reduce the complaint to writing, and cause the same to be subscribed by the complainant, and if it appears that such offence has been committed, the justice of the peace shall issue a warrant reciting the sub- stance of the accusation, and requiring the officer to whom it is directed forthwith to take the person 1 Commonwealth v. Taber, 155 Mass. 5 ; Commonwealth v. O'Hanlon, ibid., 198. 2 Commonwealth v. Brennan, 150 Mass, 63. 8 Commonwealth v. Foster, i Mass. 493. ISSUING OP WARRANTS. 93 accused and bring him before the court which the justice of the peace has the power to issue war- rants returnable to, to be dealt with according to law, and in the same warrant may require the officer to summon such witnesses as shall be therein named to appear and give evidence on the examination. 1 § 189. No justice of the peace not designated and commissioned as a trial justice shall have, or exercise power, authority or jurisdiction to try cases, civil or criminal, or receive complaints, or issue warrants, except as is stated in § 184, ante, and except that a justice of the peace, who is also a clerk or assistant clerk of a police, district or municipal court, may receive complaints and issue warrants, returnable before some trial justice, or police, district or municipal court, having jurisdic- tion of the examination of the person charged with the offence. 2 (b) Bail. $ 190. In cases where the offence charged in the warrant is not punishable by death or imprison- ment in the state prison, the justice may admit the person arrested to bail by taking from him a recognizance with sufficient sureties for his appear- ance in the court within the judicial district of which the offence charged was committed. 3 1 PuIj. Sts. ch. 212, § 15. - Ibid., eh. 155, § 6. U. id., ch. 212. S 21. 94 JUSTICES OF THE PEACE. § 191. The justice of the peace who so admits the person arrested to bail shall certify that fact upon the warrant, and shall deliver the same with the recognizance to the officer. 1 IN OTHER CASES. (a) Entry by Board of Health. § 192. When the board of health thinks it ne- cessary for the preservation of the lives or health of the inhabitants to enter any land, building, premises or vessel within its town, for the pur- pose of examining into and destroying, removing or preventing a nuisance, source of filth or cause of sickness, and the board or any agent thereof sent for that purpose is refused such entry, any member of the board or such agent may make complaint under oath to two justices of the peace of the county, stating the facts of the case so far as he has knowledge thereof ; and said justices may thereupon issue a warrant directed to the sheriff or any of his deputies, to such agent of the board, or to any constable of such town, commanding him to take sufficient aid, and at any reasonable time repair to the place where such nuisance, source of filth or cause of sickness complained of may be, and to destroy, remove or prevent the same, under the directions of the board. 2 1 Pub. Sts. ch. '212, § 22. - Pub. Sts. ch. SO, § 27. ISSUING OF WARRANTS. 95 Form of the Warrant. COMMONWEALTH OF MASSACHUSETTS. s. > ss. To the Sheriff of our County of S., or an}' of his depu- ties, or any Constable of the cit}' [or town] of B., or to T., agent of the Board of Health of the said city [or town] within our said county, Greeting: Whereas complaint under oath is made to us, the subscribers, two of the justices of the peace for the said Commonwealth, by , [a member or agent of, as the case may be], the board of health of the said city [or town] of B., that of the said city [or town] of B. has caused to exist a [nuisance, cause of sickness, or source of filth, as the case may be], [here particularly describe the nuisance and state its locality], and the same nuisance does still keep up and continue. You are therefore, in behalf of said Com- monwealth, commanded to take sufficient aid, and at any reasonable time to repair to said place where said [nuisance, source of filth or cause of sickness] exists, and to destroy, remove or prevent the same, under the directions of said board of health. Given under our hands and seals, this day of , in the year of our Lord eighteen hundred and ninety s. T., [seal.] V. V.. [seal.] Justices of the Peace. 96 JUSTICES OF THE PEACE. (b) Entry of Premises of Gras Consumer. § 193. If any officer or servant of a gas-light company, having been duly authorized in writing by an officer of the company, is prevented or hin- dered from entering premises lighted with gas supplied by such company, for the purpose of ex- amining or removing the meters, pipes, fittings and works for supplying and regulating the supply of gas, and of ascertaining the quantity of gas consumed or supplied, such officer or servant may make complaint under oath to a justice of the peace, stating the facts so far as he has knowledge of them, and the said justice may thereupon issue a warrant directed to the sheriff or either of his deputies, or to a constable of the city or town where such company is located, commanding him to take sufficient aid, and to repair to said premi- ses with such officer or servant. 1 Form of the Warrant. COMMONWEALTH OF MASSACHUSETTS. S. | ss. To the Sheriff of the County of S., or any of his depu- ties, or any Constable of the city [or town] of B., within our said county, Greeting: Whereas complaint under oath is made to us, the subscribers, two of the justices of the peace for the said i Pub. Sts. ch. 61, § 15. ISSUING OF WARRANTS. 97 Commonwealth, by T.. an ollieer [or servant, as the case may be] of the C. Company, a corporation organ- ized for the purpose of supplying gas to the inhabitants of the said city [or town] of B., said T. being duly authorized, in writing, by the [president, treasurer, agent or secretary] of the said company, that he has been prevented from entering the premises of D.. situated in said city [or town] ofB. [here describe premises and state locality], for the purpose of [here state purpose for which entry to the premises was sought]. You are therefore, in behalf of the Commonwealth, commanded to take sufficient aid and to repair to said premises with said T., and cause him to enter for the purpose aforesaid. ( riven under our hands and seals, this day of , in the year of our Lord eighteen hundred and ninety S. T., U. v.. Justices of the Peace. (c) Search for Liquor illegally kept. § 194. If two persons of full age, and competent to testify, make complaint under oath or affirma- tion before a justice of the peace who is authorized to issue warrants in criminal eases, that they have reason to believe, and do believe, thai any spirit- uous or intoxicating liquor, described in the com- plaint, is kept or deposited by a person named therein in a store, shop, warehouse, building, vehi- cle, steamboat, vessel or place, and is intended for 98 JUSTICES OF THE PEACE. sale contrary to law, or has been brought into a town or city in violation of the provisions of § 17 of chapter 100 of the Public Statutes, such justice of the peace, upon its appearing that there is prob- able cause to believe said complaint to be true, shall issue a warrant of search to any sheriff, deputy-sheriff, city marshal, chief of police, deputy- marshal, police officer or constable, commanding him to search the premises in which it is alleged such liquor is deposited, and to seize such liquor, with the vessels in which it is contained, and all implements of sale and furniture used, or kept and provided to be used, in the illegal keeping or sale of such liquor, and securely keep the same until final action is had thereon, and return the warrant with his doings thereon as soon as may be to the court having jurisdiction in the place where such liquor is alleged to be kept or deposited. 1 Form of Complaint to search for Intoxicating Liquor. COMMONWEALTH OF MASSACHUSETTS. M. >ss. To N. C, Esquire, a justice of the peace, authorized to issue warrants in criminal cases in the town of B. in the county of M. J. S. and L. P., both of said li., and both being of full age and competent to testify, in behalf of the Com- i Pub. Sis. cli. 100,§30; Sts. 1884, ch. 191 ; Sts. 1888, cli. 297, § 1. I -SUING OF WARRANTS. 99 monwcalth of Massachusetts on oath complain that they have reason to believe, and do believe, that intoxicating liquors, to wit [here describe the liquors, as a certain quantity of rum, being about, and not exceeding gallons; a certain quantity of gin, etc., according to the facts] on the day of , in the year eighteen hundred and , were and still are kept and deposited by D. E., of said B., in a certain , situate [here describe the building or other place, with particulars of its location sufficient to identify it] in said B., and occupied by said 1). E., and which liquors are intended by said D. E. for sale in this Common- wealth, said D. E. not being authorized to sell the same in this Commonwealth or keep the same for sale, for any purpose, by any legal authority whatever, against (lie peace of the Commonwealth and the form of the statute in such case made and provided ; and said complainants pray for a warrant to search said , described as aforesaid for liquors, and that the same be declared to be forfeited, and that said D. I". and all other persons claiming an interest in said liq- uors, may be summoned to appear before a court having jurisdiction of the case, to show cause, if any they have, why said liquors should not be declared forfeited. [If the place intended to be searched is a dwelling-house, and no tavern, store, grocery, eating-room or place of common resort is kept therein, the complaint should conclude as follows : — ] And !,.T. S., one of the above complainants, on oath, say that I have reason to believe, and do believe, that intoxicating liquor, such as above mentioned, has been sold in the house above mentioned [or has been taken 100 JUSTICES OF THE PEACE. from the house above mentioned for the purpose of being sold] b}' the occupant of said house, contrary to law, within one month next before this daj r , and that said liquor above mentioned is now kept in said house for sale by D. E. contrary to law, and my belief afore- said is founded on the following facts and circumstances [here let such facts and circumstances be stated]. J. S. L. P. Received and sworn to at said B. , before me this day of , in the year eighteen hundred and ; and it appears to me that there is probable cause to believe the foregoing complaint to be true. N. C, Justice of the Peace. Form of Warrant to Search for and Seize Liquors unlawfully kept for Sale. COMMONWEALTH OF MASSACHUSETTS. M. 1 ss. To the Sheriff of our county of M., or either [L. S.] of his deputies, or any Constable of the town of B., in said county, Greeting: Whereas J. S. and L. P., both of said B., and both of full age, and competent to testify, on the day of , in the year eighteen hundred and , al said B., in behalf of the Commonwealth aforesaid, on oath complained to the undersigned, a justice of the peace authorized to issue warrants in criminal cases in ISSUING OF WARRANTS. 101 said town of B., that they have reason to believe, and do believe, that on the da}- of , in the year eighteen hundred and , at said B., intoxi- cating liquors, to wit : [here describe the liquors as in the complaint] are kept and deposited by D. E. of said B., in a certain , situate [here describe the build- ing or other place, as in the complaint] in said B., and occupied by said I). E. as a , and that said liquors were, and are, intended for sale by the said I). E., in this Commonwealth, contrary to law, — he, said D. E., not being then and there authorized to sell or keep such liquors for sale in this Commonwealth for any purpose by any legal authority whatever: whereby said Liquors have become forfeited. [In case the place to be searched is a dwelling-house, and no tavern, store, grocery, eating-room or place of common resort is kept therein, the warrant should contain the following clause. But in a warrant for searching any other place besides a dwelling-house, the following clause should be omitted.] (And J. S., one of the said complainants, has duly made oath that he has reason to believe, and doth believe, that intoxicating liquors, such as are mentioned in tin- complaint, have been illegally sold in said house, within one month last past, by the occupant thereof [or with the permission and consent of the occupant thereof, or have Keen taken from said house for the purpose of being sold] contrary to law. within one month lasl past, and thai Buch liquors are kept and depos- ited in said house by said I). I-'... and intended for sale in this Commonwealth, contrary to law. and has, in his said oath, stated the following facts and circumstances on which his said belief was founded : [here let the 102 JUSTICES OF THE PEACE. facts and circumstances be repeated, as in the com- plaint.] ) And said complainants have also prayed that due process may issue to search for said liquors, and that such further proceeding may be had in the premises as to law and justice in that behalf may appertain ; and whereas it appears to me, the subscriber, on the com- plaint aforesaid, that probable cause has been shown for the issuing of a warrant of search thereupon : — These, therefore, are to require you, in the name of the Commonwealth, taking with 3 r ou proper assistants, forthwith to enter the , herein above described, and make diligent and careful search for all the liquors herein above described, and if such liquors are found therein, to seize and conve} T the same, and the vessels which contain such liquors, and all implements of sale or furniture used, or kept and provided to be used, in the illegal keeping or sale of such liquors, to some place of safet} r , and safely keep the same, to await the final action and decision of the court upon said complaint. Herein fail not, and make due return of this warrant, with your doings thereon. Witness my hand and seal at said B., this day of , in the year eighteen hundred and N. C, Justice of the Peace. (d) Impounding Boosts. § 195. When an owner or keeper of beasts is dissatisfied with the claim of the person impound- ing them, he may have the amount for which he is liable ascertained and determined by two dis- ISSUING OF WARRANTS. 103 interested and discreet persons, to be appointed and sworn for that purpose by a justice of the peace. 1 FORMS. Warrant for asct rtaining Damage done by Beasts take n up ami Impounded, to be issued at the request of the Owners of such Beasts. To A. B. and C. D. of , two disinterested and judicious persons, Greeting: You are hereby appointed and empowered faithfully and impartially to estimate upon oath the damage done to E. F. by [here describe the beasts], which for that cause have been taken up by G. II. and impounded [here state the pound and place where impounded]. Given under my hand this day of , in the year of our Lord eighteen hundred and ninety S. T., Justice of the Peace. Oath. S. J- ss. The above [or within] named A. B. and C. D. per- sonally appeared and made oath that in estimating the above [or within] mentioned damages, they would act faithfully and impartially, according to their best skill ami judgment. Before me, S. T., Justice of the Peace. 1 Pub. Sts. ch. 36, § 34. 104 JUSTICES OP THE PEACE. Appraisers' Return. B. , 189 . Pursuant to the within warrant, we have considered the damage done by the beasts within mentioned, and do upon oath estimate the same at A. B. C. D. § 196. A justice of the peace on an application from the person who has impounded beasts, and who has not received the sum for which the beasts were impounded, within fourteen days after notice of the impounding had been given, shall issue a warrant to two disinterested and discreet persons to be appointed and sworn by such justice, to as- certain and determine the sum due from the owner or keeper of the beasts. 1 FORMS. Warrant for Estimating the Damages done by Beasts taken up and Impounded, to be issued on the appli- cation of the one who Impounded them. To A. B. and C. D. of , two disinterested and judicious persons, Greeting: You are hereby appointed and empowered faithfully and impartially to estimate upon oath the damage done to E. F. by [here describe the beasts], which for that cause have been taken up and impounded by G. H. [in i Pub. Sts. ch. 36, § 35. ISSUING OF WARRANTS. 105 such pound or in such place], and also in like manner to appraise so many of the said beasts as shall be suffi- cient to answer the said damages and all charges. Given under my hand this day of , in the year of our Lord eighteen hundred and ninety S. T., Justice of the Peace. Oath. S. | ss. The above [or within] named A. B. and C. D. person- ally appeared and made oath, that in estimating the within [or above] mentioned damages and appraising any of the within mentioned beasts, they would act faithfully and impartially, according to their best skill and judgment. Before me, S. T., Justice of the Peace. Appraisers' Return. Pursuant to the within warrant, we have considered the damage done by the beasts within mentioned, and do upon oath estimate the same at We have also appraised the following beasts [or the said beasts] to answer said damages [here insert the kind and price]. A. B. C. 1). 106 JUSTICES OF THE PEACE. (e) Infected Articles. § 197. When upon application of the board of health, it appears to a justice of the peace that there is just cause to suspect that baggage, cloth- ing or goods, found within the town, are infected with the plague or other disease dangerous to the public health, he shall, by warrant directed to the sheriff or his deputy, or to any constable, require him to impress so many men as said justice may judge necessary to secure such baggage, clothing or goods, and to post said men as a guard over the house or place where such articles are lodged. 1 § 198. The justice may by the same warrant, if it appears to him necessary, require the officers, under the direction of the board of health, to impress and take up convenient houses or stores for the safe keeping of such articles. 2 \ FORM of the Warrant. ss. To the Sheriff of our County of S., or any of his depu- ties, or any Constable of the city [or town] of B., within our said county, Greeting : It appearing to me the subscriber, a Justice of the Peace for the Commonwealth of Massachusetts, upon 1 Pub. sts. ch. so. s; 44. - Ibid . § 45. ISSUING OF WARRANTS. 107 application of the board of health of said town, that there is just cause to suspect that [baggage, clothing or goods] at , within said town, are infected with [here state the disease] dangerous to the public health. You are hereby directed, in the name of the said Commonwealth, to impress [here state the number] men and secure said [baggage, clothing, or goods], and to post said men as a guard over [here state the place where the articles are], and to take up, under the direction of said board of health, such houses or stores as may be convenient for the keeping of said articles. Given under my hand and seal, this day of , in the year of our Lord eighteen hundred and ninety S. T., Justice of the Peace. (f) Lost Goods, Appraisals. $ 199. A justice of the peace, upon application of a finder of lost goods or stray beasts of the value of ten dollars or more, shall issue a warrant directed to two disinterested persons, to be ap- pointed by such justice, and returnable into the office of the clerk of the city or town within seven days from date, requiring them to appraise the lost goods or stray beasts at their true value. Such persons shall be sworn by the justice. 1 1 Pub. Sta cli. 95, § 4. 108 JUSTICES OP THE PEACE. FORM. Warrant to appraise Lost Goods or Stray Beasts. 8. I ss. To E. B. of , and C. D. of , two dis- interested and judicious persons, Greeting : By virtue of the power and authorit\- to me given, in and by section four of chapter ninety-five of the Public Statutes, I do hereby appoint 3'ou to appraise upon oath, at the true value thereof in money, according to your best skill and judgment, [here mention the goods or beasts found] found by E. F. at , and of the value of ten dollars or more. Having performed this service, 3011 are to make return of this warrant into the clerk's office of said G. within seven days from the date hereof. Given under my hand and seal, this da} r of , in the year of our Lord eighteen hundred and ninet}' S. T., Justice of the Peace. Oath. S. }ss. 189 . The above named E. B. and C. D. personally appeared and made oath, that they would faithfully and impar- tially perform the service to which they are appointed by the above warrant. Before me, S. T., Justice of the Peace. ISSUING OF WARRANTS. 109 § 200. A justice of the peace, in case of disa- greement between the owner and the finder of lost goods, as to what are the proper charges for the former to pay to the latter, shall determine the amount of the charges. 1 (g) Removal of Sick Persons. § 201. Two justices of the peace may, if need be, make out a warrant directed to the sheriff of the county or his deputy, or to any constable, requiring them under the direction of the board of health to remove any person infected with con- tagious sickness, or to impress and take up con- venient houses, lodging, nurses, attendants and other necessaries for the accommodation, safety and relief of the sick. 2 FORM of the Warrant. S. i ss. To the Sheriff of our County of S., or any of his depu- ties, or any Constable of the city [or town] of B., within our said county, Greeting : Whereas complaint is made to us the subscribers, two of the justices of the peace for the Commonwealth of Massachusetts, by the board of health of said city [or town] of B.. that are [or is] sick with at the bouse of in said town, and ought to be 1 Pub. Sts. ch. 95, § 5. - Ibid., ch, so. ^ 43. 110 JUSTICES OF THE PEACE. removed therefrom for the safety of the public health. You are hereby required, in the name of the Common- wealth of Massachusetts, with the advice and under the direction of the board of health of the said city [or town] of B., [to remove from the house of , in said town, to ], or [to impress] [here state the articles which are judged necessary for the accom- modation, or safety and relief, of the said , as the case ma} T be] . Given under our hands and seals, this day of , in the year of our Lord eighteen hundred and ninety S. T., U.V., Justices of the Peace. (h) Fees. § 202. The fees of justices of the peace for granting a warrant of appraisement of lost goods or stray beasts, and in all other cases, shall be twenty cents, and where two or more justices are required to act, eacli is entitled to the prescribed fees. 1 i Pub. Sts. ch. 199, § 1. OATHS AND AFFIDAVITS. Ill CHAPTER VI. OATHS AND AFFIDAVITS. IN GENERAL. § 203. Justices of the peace may administer oaths or affirmations in all cases in which an oath is required, unless a different provision is expressly made by law. 1 § 204. The usual mode of administering oaths now practised in this Commonwealth, with the ceremony of holding up the hand, shall be observed in all cases in which an oath may be administered by law. 2 ACK AND SCHOOLING CERTIFICATES. § 205. A justice of the peace may administer the oath provided for in the Age and Schooling certificate of 1888, as follows : — Age and Schooling < '< rtifieate. Law of 1888. This certifies that I am the [father, mother, or guardian] of [name of child], and that [he or she] was born at [name of town or city], in the county of [name i Pub. Sts. eh. 1 .-).->, § 2. - [bid., ill. 169, § 13. 112 JUSTICES OF THE PEACE. of county, if known], and state [or country] of [name], on the [clay and year of birth] , and is now [number of years and months] old. [Signature of father, mother, or guardian.] [Town or city and date.] Then personally appeared before me the above named [name of person signing], and made oath that the foregoing certificate by [him or her] signed is true to the best of [his or her] knowledge and belief. Justice of the Peace. 1 COLLECTORS OF TAXES. § 206. Justices of the peace shall receive the affidavits of collectors of taxes of the service of notice on the purchaser of real estate at a sale for non-payment of taxes, that the tax title is invalid, and also affidavits of the publication of such notice ; affidavits of collectors of taxes of the posting and publishing notices of intention to take real estate for taxes ; and affidavits of collectors of taxes, of no bid, and of the non-payment of bid- ders at sales of real estate for the non-payment of taxes. 2 NOTARIES PUBLIC AND BANK OFFICERS. § 207. Justices of the peace shall receive the oaths of notaries' public and bank officers that 1 Sts. 1888, ch. 348, §§ 4, 5. 2 Sts. 1888, ch. 390, §§ G7, 70; Sts. 1892, ch. 109, § 1. OATHS AND AFFIDAVITS. 113 the statements which they have made concerning the contents of safety deposit vaults which have been opened for non-payment of rent, are true. 1 NOTICES OF SALES OF PEWS. § 208. An affidavit of a notice of sales of pews in a church for the non-payment of assessments, in order to be allowed as a mode of proof of the posting up of the notification, must be made before a justice of the peace.*-* OFFICERS OF RELIGIOUS SOCIETIES. § 209. A justice of the peace may administer thf oaths of office to the clerks, assessors, treasurers and collectors of religious societies. Such oaths shall be substantially the same as are required to be taken by the clerk, assessors and collectors of towns. 8 PEDLERS. § '210. Justices of the peace shall certify the oaths of pedlers that they are the persons named in their certificates, and that they are, or have declared their intention to become, citizens of the United States. 4 1 Sts. 1887, ch. 89. - Pub. Sts. ch. 38, § 35. [bid., ch. 38, § 14. * [bid., ch. 68, § 4. 114 JUSTICES OF THE PEACE. RAILROAD POLICE. § 211. Railroad police officers shall be sworn before any justice of the peace. 1 INSPECTION OF PEDLERS' LICENSES. § 212. Justices of the peace may command ped- lers to exhibit to them their licenses. The licenses are granted for the term of one year by the secre- tary of the Commonwealth ; they must contain the names of the cities and towns which the pedler selects, with the sums to be paid to the respective treasurers ; they may be granted for the sale of any goods, wares or merchandise, except jewelry, wines, spirituous liquors, playing cards, indigo and feathers. 2 FEES. § 213. The fee of a justice of the peace for administering an oath required by law, except on a trial or examination before himself, whether to one or more persons at the same time, shall be twenty-five cents. 3 i Sts. 1883, ch. 65. 2 Pub. Sts. ch. 68, §§ 13, 3-5. s Ibid., ch. 199, § 1. GENERAL POWERS AND DUTIES. 115 CHAPTER VII. GENERAL POWERS AND DUTIES. APPOINTMENT OF APPRAISERS. § 214. A disinterested justice of the peace may appoint appraisers of any part of the estate of a deceased person, which may be in the county in which such justice resides. The appraisers shall be three in number, and shall be sworn to the faithful discharge of their duties. The justice of the peace who has appointed the appraisers, shall issue an order to them, in substance as follows : — - S3. To , of in said county. You are hereby appointed to appraise on oath the estate and effects of , late of , deceased, which may he in said county. When you have performed that ser- vice, you will deliver this order and your doings in pur- suance thereof to , executor [or administrator, as the case ma}' be] of said deceased, that he may return the same to the probate court for the county of Given under my hand this day of , in the year Justice <>f the Peace. 1 i Puh. Sts. ch. 132, §§ 6, X. 116 JUSTICES OP THE PEACE. § 215. The fee of a justice of the peace for granting a warrant of appraisement of the estate of a deceased person, shall be twenty cents. 1 ARBITRATION. § 216. All controversies which might be the subject of a personal action at law or of a suit in equity may be submitted to the decision of one or more arbitrators in the following manner : — The parties to all controversies which might be the subject of a personal action at law or of a suit in equity, and who wish to settle such controver- sies by submitting them to the decision of one or more arbitrators, shall appear in person, or by their lawful agents or attorneys, before a justice of the peace, and shall there sign and acknowledge an agreement in substance as follows : — Know all men that , of , and , of , liereb}' agree to submit the demand, a state- ment whereof is hereto annexed [and all other demands between them, as the case may be], to the determina- tion of and , the award of whom, or of the greater part of whom, being made and reported within one year from this day to the superior court for the county of , the judgment thereon shall be final ; and if either of the parties neglects to appear before the arbitrators, after due notice given him of the 1 Pub. Sts. ch. 19«J, § 1. GENERAL POWERS AND DUTIES. 117 time and place appointed for hearing the parties, the arbitrators ma} 1 proceed in his absence. Dated this day of , in the year The justice, who may be one of the arbitrators, shall subjoin to the agreement his certificate, in substance as follows : — Iss. Then the above named and personally appeared [or the above named personall}', and said by , his attorney, appeared, as the case may be], and acknowledged the above instrument by them signed to be their free act. Before me, Justice of the Peace. 1 § 217. Reasonable compensation to arbitrators appointed under the provisions stated in the pre- ceding section, upon whose award judgment is entered, shall be awarded by the supreme court. 2 The fees of a justice of the peace in a reference to arbitration, for the agreement of submission and acknowledgment, shall be forty cents. 3 ^ 218. A submission to arbitration to which a partnership is one party, must show who are 1 Pub. Sts. eh. 188, SS l. -'• - Sts 1886, . GENERAL POWERS AND DUTIES. 125 ( 'omplaint respecting a Dog found out of the Enclosure of its Oicner. To S. T., Esq., a Justice of the Peace for the Common- wealth of Massachusetts. Complains upon oath E. B. of , that within forty-eight hours last past he found a dog, which he really suspects to lie dangerous and mischievous, stroll- ing out of the enclosure of , the owner [or out of the immediate care of , the keeper] of said dog, at in B. , 189 . (Signed) E. B. S. jss. ,189 . The above named E. B. personally appeared and made oath to the truth of the above complaint by him signed. Before me, S. T., Justice of the Peace. Certificate to be given to one who has been Assaulted by a Mischievous Dog. S. jss. , 189 . I hereby certify, that on this day of in the year of our Lord eighteen hundred and ninety , personally came before me the subscriber, a Justice of the Peace tor the Commonwealth of Massa- chusetts, E. B. of , in said county, and made oath, that within forty-eight hours last past he has been 126 JUSTICES OF THE PEACE. suddenly assaulted, while he he was quietly and peace- ably walking [or riding] from to , at , in said county, by a dog belonging to [or in the keeping of] C. D. of ; the same dog being- then and there out of the enclosure [or immediate care] of the said C. D., and that he really suspects that the said dog is dangerous and mischievous. It is therefore the duty of the said C. D., agreeably to a law of the Commonwealth in such cases made and provided, forthwith to kill or confine the said dog. S. T., Justice of the Peace. Certificate resx>ecting a Bog found out of the Enclosure of its Owner. S. | ss. , 189 . I hereby certify, that on this day of , in the year of our Lord eighteen hundred and ninety , personally came before me the subscriber, a Justice of the Peace for the Commonwealth of Massa- chusetts, E. B. of , in said county, and made oath, that within forty-eight hours last past he found a dog which he really suspects to be dangerous and mis- chievous, strolling out of the enclosure of , the owner [or out of the immediate care of , the keeper] of said dog, at , in It is therefore the duty of the said C. D., agreeably to a law of the Commonwealth in such cases made and provided, forthwith to kill or confine the said dog. S. T., Justice of the Peace. GENERAL POWERS AND DUTIES. 127 DETERMINATION OF AMOUNT DUE FOR EQUITY OF REDEMPTION. ^ 232. When lands or rights are taken and set off or sold on execution, the debtor may in all cases cause the amount due for redemption to be ascertained at his own expense by three justices of the peace in the manner following : One of the justices shall be chosen by the debtor, one by the creditor, and the third by the two first chosen ; or if the creditor neglects to choose one, the justice chosen by the debtor shall appoint the other two. After a hearing and examination of the case before the three justices, they or any two of them shall make and sign a certificate of the sum which they adjudge to be due for the redemption of the prem- ises, which certificate shall be final and conclusive between the parties. The debtor may then make a tender of the sum so adjudged to be due, which shall be valid and effectual, notwithstanding he has made a previous tender of a different sum. 1 FORECLOSURES OF MORTGAGES. § 233. A certificate of two competent witnes to prove an entry without a judgment for breach of a condition of a mortgage, shall be made and sworn to before a justice of the peace. 2 1 Pub. Ste. ch. 17.', § 33. - [bid., cb. 181, § 2. 128 JUSTICES OF THE PEACE. § 234. A certificate of the entry of a mortgagee, for the purpose of foreclosure, sworn to before himself as a justice of the peace, is invalid. It is as contrary to elementary principles of justice to allow a justice of the peace to administer the requisite oath to such a certificate of his own entry under a mortgage to himself, as to permit him to take in his official capacity a deposition in a suit to which he is a party, or an acknowledg- ment of a deed to himself, or a recognizance for a debt due to him personally. 1 HABEAS CORPUS. § 235. Every person imprisoned or restrained of his liberty, except in the cases mentioned in the following section, may as of right and of course prosecute a writ of habeas corpus, according to the provisions of chapter 185 of the Public Statutes, to obtain relief from such imprisonment or re- straint, if it proves to be unlawful. 2 § 236. The following persons shall not be en- titled as of right, to demand and prosecute said writ : — First, Persons committed for treason or felony, or on suspicion thereof, or as accessories before the fact to a felony, when the cause is plainly and specially expressed in the warrant of commitment. 1 Judd v. Tryon, 131 Mass. 345. 2 Pub. Sts. ch. 185, § 1. GENERAL POWERS AND DUTIES. 129 Second, Persons convicted or in execution upon legal process, civil or criminal. Third, Persons committed on mesne process in a civil action on which they were liable to be ar- rested and imprisoned, unless when excessive and unreasonable bail is required. 1 The writ of habeas corpus may be granted in poor debtor proceedings. 2 § 237. The writ may be issued by a justice of the peace if there is no judge of the supreme judi- cial court, of the superior court, or of a probate police, district or municipal court who is known to said justice of the peace to be within five miles of the place where the party is imprisoned or restrained ; and the writ may be issued by said justice of the peace, without regard to the county in which is the place of imprisonment. 3 § 238. When a writ of habeas corpus is issued by a justice of the peace, it should appear on the face of the writ, or else on the face of the petition when it is annexed to the writ, that the case exists in which authority is given to a justice of the peace to issue the writ. That is, it should appear that no judge of the supreme or superior courts, or of a probate, police, district or municipal court is known to the justice of the peace to be within live miles of the place where the party is imprisoned or restrained. 4 sj 239. Application for the writ shall be made to the justice of the peace authorized to issue the 1 Pub. StB. eh. 185, § 2. - StS. 1888, ch. 419, § 12. 3 Tub. Sts. ch. 185, § 3. * Com. v. Moore, 19 Pick. 339. 9 130 JUSTICES OF THE PEACE. same by complaint in writing, signed by the party for whose relief it is intended, or by some person in his behalf, and setting forth — First, The persons by whom, and the place where the party is imprisoned or restrained, nam- ing the prisoner and the person detaining him if their names are known, and describing them if their names are not known. Second, The cause or pretence of such imprison- ment or restraint, according to the knowledge and belief of the person applying. Third, if the imprisonment or restraint is by virtue of a warrant or other process, a copy of such warrant or process shall be annexed, unless it is made to appear that such copy has been de- manded and refused," or that by some sufficient reason a demand therefor could not be made. The facts set forth in the complaint shall be veri- fied by the oath of the person making the applica- tion or of some other credible witness. 1 § 240. The justice of the peace to whom the complaint is made shall without delay award and issue a writ of habeas corpus, substantially in the form heretofore established and used in this Com- monwealth, and returnable forthwith at such place as shall be designated in the writ before the supreme judicial court, or before some justice thereof, in term time or vacation, and whether the court is in session or not. 2 1 Pub. Sts. cli. 185, § 4. 2 Ibid., § 5. GENERAL POWERS AND DUTIES. 131 § 241. In cases of imprisonment or restraint by a person not a sheriff, deputy sheriff or jailer, and it seems that the same form of writ may be used in any case, the writ shall be in the following form : COMMONWEALTH OF MASSACHUSETTS. i- -, To the Sheriffs of our several counties and [seal] to their respective deputies, Greeting : We command you that the body of , of , by , of , imprisoned and restrained of his liberty, as it is said, you take and have before , a justice of our supreme judicial court at , imme- diately after the receipt of this writ, to do and receive what our said justice shall then and there consider con- cerning him in this behalf; and summon said then and there to appear before our said justice to show the cause of the taking and detaining of said ; and have you there this writ with your doings thereon. Witness at , this day of , in the year The writ shall be signed by the justice of the peace issuing the same, and it may be served in any county by a sheriff or deputy sheriff thereof, or of any other county. 1 § 242. If the party is detained for a cause or of- fence for which he is bailable, he shall be admitted to bail if sufficient bail is offered ; and if not, he shall be remanded, with an order of the court or 1 Tub. Sts. eh. 185. §§ 6, 7. 132 JUSTICES OF THE PEACE. judge expressing - the sum in which he shall be held to bail, and the court at which he shall be required to appear ; and any justice of the peace may, at any time before the sitting of said court, bail the party pursuant to such order. 1 INSOLVENCY PROOFS. § 243. A justice of the peace may take proofs in insolvency. The creditor in person, or if he is unavoidably prevented from being present, his agent, must make an oath before the justice of the peace in substance as follows : — I, , do swear that , of , by [or against] whom proceedings in insolvency have been instituted, at and before the date of such proceedings was and still is justly and truly indebted to me in the sum of , for which sum or any part thereof I have not, nor has any other person to my use, to my knowl- edge or belief, received any securit}' or satisfaction whatever, beyond what has been disposed of agreeably to law. And I do further swear that said claim was not procured by me for the purpose of influencing the proceedings in this case. And I do further swear that I have not directly or indirectly made or entered into any bargain, arrangement or agreement, express or implied, to sell, transfer or dispose of my claim, or any part of my claim, against said debtor, nor have directly or indirectly received or taken, or made or entered into 1 Pub. StS. ch. 185, § 22. GENERAL POWERS AND DUTIES. 133 an\- bargain, arrangement or agreement, express or implied, to take or receive, directly or indirectly, any money, property or consideration whatsoever to myself, or to an} T person or persons to my use or benefit, under or with any understanding or agreement, express or implied, whereby my vote for assignee or my assent to the debtor's discharge is or shall be in any way affected. influenced or controlled, or whereby the proceedings in this case are or shall be affected, influenced or controlled. 1 INSPECTION OF DRUGGISTS' BOOKS AS TO LIQUOR SALES. § 244. Justices of the peace may inspect drug- gists' books, certificates and prescriptions of sales of intoxicating liquor. 2 LIMITED PARTNERSHIP ACKNOWLEDGMENTS. § i?45. A justice of the peace shall receive ac- knowledgments of limited partnership certificates. The certificate must be acknowledged by all the partners before the justice. 3 MARRIAGES. § 246. A marriage may be solemnized by a justice of the peace who resides in the Common- wealth and continues to perform the functions of 1 Pub. Sts. eh. 157, §§ 29-31. - Sts. 1887, ch. 431, § 4. 3 Pub. Sts. ch. 75, § 5. 134 JUSTICES OF THE PEACE. his office ; but every marriage shall be solemnized in the city or town in which the person solemniz- ing it resides, or in which one or both of the per- sons to be married reside. 1 Any form may be used by a justice of the peace in solemnizing a marriage. § 247. A justice of the peace shall receive a certificate of intention of marriage from the parties wishing to be married. This certificate is given to the parties by the clerk or registrar of the city or town where they respectively dwell, or in which they propose to have the marriage solemnized. 2 § 248. If the parties themselves make mutual agreements in the presence of a justice of the peace, with his assent, he undertaking to act in his official capacity, it is a legal marriage. 3 § 249. Every justice of the peace shall make a record of each marriage solemnized before him, and of all facts relating to the marriage which are required by law to be recorded. He shall also between the first and tenth days of each month return a copy of all such records for the month next preceding to the clerk or registrar of the city or town in which the marriage was solemn- ized, and shall, when one or both of the parties to the marriage resided in a city or town other than that in which the marriage was solemnized, return a copy of the record of such marriage to the clerk i Pub. Sts. ch. 145, § 22. 2 Ibid., §§ 1G, 17. 3 Milford v. Worcester, 7 Mass. 48. GENERAL POWERS AND DUTIES. 135 or registrar of the city or town in which either party resided, and to the clerks or registrars of both cities or towns when the parties resided in different places. Every justice of the peace neg- lecting to make these returns shall forfeit for each neglect not less than twenty nor more than one hundred dollars. 1 § 250. A justice of the peace who joins persons in marriage contrary to the provisions above stated, knowing that the marriage is not duly authorized, shall forfeit not less than fifty nor more than one hundred dollars. 2 $ 251. When a marriage appears to have been celebrated by a competent officer, as a justice of the peace, the marriage is deemed lawful, although it is not duly authorized by law, and although the justice of the peace may have incurred a penalty for his irregularity. 3 § 252. For lawfully certifying and solemnizing a marriage, a justice of the peace shall be entitled to receive one dollar and twenty-five cents. 4 NOMINATIONS OF GUARDIANS. £ 258. The nomination of a guardian by a minor above the age of fourteen years may be made be- fore a justice of the peace, who shall certify the fact to the probate court." 1 1 Pub. Sts. ch. 145, § 24. s Ibid., § 25. Milford v. Worcester, 7 Mass. 56. 4 Pub. Sts. ch. 199, § 17. 5 Ibid., eh. 139, § 3. 136 JUSTICES OF THE PEACE. REMOVAL OP GATES, ETC., ON TOWN AND PRIVATE WAYS. § 254. If fences, gates, rails or bars are upon or across a town way or private way, they may be removed by the order of a justice of the peace, unless they are there placed for the purpose of preventing the spreading of a disease dangerous to the public health, or unless they are erected or continued by license of the town, or of the person for whose use such private way was laid out. 1 § 255. The power conferred upon justices of the peace to order fences, gates, rails or bars across town ways or private ways to be removed, is no more a judicial power than if it had been vested in the selectmen or in the surveyors of highways, or than is the similar power which any citizen has, to remove like obstructions in a county highway. Thus not being a judicial power, an order of a justice of the peace for the removal of such ob- struction is not in the nature of a judicial warrant, and the sheriff or his deputy is not required in his official capacity to serve it 2 WITNESSES. § 256. Every justice of the peace may issue summonses for witnesses in all cases pending before courts, magistrates, auditors, referees, arbi- 1 Pub. Sts. ch. 54, § 5. 2 Davis v. Smith, 130 Mass. 1 13. GENERAL POWERS AND DUTIES. 137 trators and other persons authorized to examine witnesses ; and the summons shall be in the form heretofore adopted and commonly used, but may be altered from time to time like other writs: provided however, that justices of the peace shall not issue summonses for witnesses in criminal cases unless requested so to do by the attorney- general or other person acting in the case in behalf of the state, or by the party prosecuted ; and in the latter case, it shall be expressed in the summons that it is granted at the request of the party prose- cuted ; and the witness shall not be required to attend unless upon payment or tender of his legal fees. 1 Form of Subpoena with duces tecum. COMMONWEALTH OF MASSACHUSETTS. To A. B. of T., in the county of E., and within said Commonwealth, Greeting . You are hereby required, in the name of the Com- monwealth of Massachusetts, to appear before the court , holden at , within and for the county of , on the day of , at o'clock in the noon, and from day to day thereafter, until the action hereinafter named is heard by said court, to give evidence of what you know relat- 1 Sts. 1885, eh. 141. § 1. 138 JUSTICES OF THE PEACE. ing to an action of then and there to be heard and tried between C. D. of M., in the county of S. and within said Commonwealth, plaintiff, and E. F. of said M., defendant [if a simple subpoena without the duces tecum is desired, the following may be omitted] ; [and you are further required to bring with you [here state what, if an}-, books, papers, etc., must be brought].] Hereof fail not, as you will answer your default under the pains and penalties in the law in that behalf made and provided. Dated at B. the day of , a. d. 189 . S. P., Justice of the Peace. § 257. The fees of justices of the peace for a subpoena for one or more witnesses shall be ten cents. 1 i Pub. Sts. ch. 199, § 1. INDEX. INDEX. (the figures refer to the sections except when- otherwise STATED.) Section ACCEPTANCE, time for ■ . . . 54 method of 55 may be oral in certain cases 55 who may give an 56 may be by one partner of a bill drawn on a firm 56 ACKNOWLEDGMENTS OF DEEDS, notaries may take 102 need not affix their seals to 102 may take of property conveyed in certain other states 103 form of pp. 44, 84 justices of the peace may take .... 177-179 when grantor refuses to acknowledge .... 180 forms of application to a justice, summons there- on, and certiticate to be annexed when grantor refuses to acknowledge . . • • PP- 85, 86, 87 justices may take, of property conveyed in certain other states *81 of shares of stock before justices 182 fees of justice for receiving l83 142 INDEX. Section AFFIDAVITS, notaries may administer 104 of notaries taken outside the Commonwealth to be effectual here 104 (See Oaths.) AGE AND SCHOOLING CERTIFICATES, justices may administer oath in 205 form of 205 APPRAISERS, justices may appoint, of estates of deceased persons 214 form of warrant 214 fee for granting warrant 215 AQUEDUCT CORPORATIONS, justices may call meetings of proprietors of . . 163 ARBITRATION, controversies may be submitted to, before jus- tices 216-218 form of agreement to submit to 216 certificate of justice to be annexed to agreement to submit to ; form of certificate . . . . 216 fees of justices in reference to 217 submission to, by a partnership or partners . . 218 ARBITRATORS, justices may be 216 reasonable compensation to be awarded to . . 217 ARRESTS, justices may order, for certain offences . . 222-224 HAIL, iustices may admit persons arrested to, in certain 190 cases ±OKJ INDEX. 148 Section BAIL — continued. shall he certified upou the warrant . . . . 191 justices may issue, in habeas corpus suits . . . 242 BANK OFFICERS, justices shall receive oaths of, regarding contents of safety deposit vaults 207 BILLS OF EXCHANGE, protest of foreign, must be made to prove dishonor 24 inland, recognized as an official act . . . 27 must be protested for non-acceptance as well as for non-payment 25 26 makers and indorsers of, entitled to notice of dis- honor 88 rates of damages on protested 99-101 form of protest of p. 38 BOARDS OF HEALTH, two justices may issue warrants for entry by . 192 form for warrants for entry by p. 95 BRIDGES. (See Private Ways and Bridges.) CERTIFICATES, to be annexed to depositions by justices of peace 142 what to contain 142-145 how " annexed " to depositions 14(3 form of p. 65 justice may alter, before transmitted by him . . 148 CHECK, form of protest of p. 38 COLLECTORS OF TAXES, justices may receive affidavits of. in certain cases 20G 144 INDEX. Section COMMON LANDS, justices may call meetings of proprietors of . . 176 COMPLAINTS, certain justices may receive, in criminal cases . 185 shall be reduced to writing by justices . . . 188 CORPORATIONS, justices may call meetings of, in certain event . 160 DAMAGES, rates of, on protested bills of exchange . . 99-101 DEMAND. (See Presentment and Demand.) DEMANDS FOR COLLECTION, justices shall not buy certain 230 DEPONENT, how sworn, and examined 137, 138 DEPOSITIONS, method of taking 126-148 when taken 126 subject to certain contingencies 127 notice to adverse party of taking . . 128, 130-136 certain persons not disqualified from taking . . 129 by whom to be written 139, 140 certain documents annexed to, need not be in same handwriting 141 certificate to be annexed to 142-146 to whom to be transmitted when taken . . . 1 47 summoning of witnesses for 149-151 to perpetuate testimony 152-157 by parties 158 fees of justices for taking 159 INDEX. 145 Section DEPOSITIONS — continued. to perpetuate testimony, form of certificate of justice to be annexed to p. 7] DILIGENCE, reasonable, must be used in giving notices of dis- honor 92^ 93 defined 99 DOGS, justices shall take complaints concerning, and shall issue certificates to persons complaining 231 form of complaint of one assaulted by . . p. 124 respecting, found at large .... p. 125 certificate given to one assaulted by . p. 125 respecting, found at large .... p. 126 DRUGGISTS' BOOKS, justices may inspect, as to liquor sales . . . 244 EQUITY OF REDEMPTION, determination of amount due for, may be ascer- tained by three justices 232 FEES, of notaries for protesting paper 97 to be paid by notaries and justices before deliv- ery of commissions 13 116 159 183 202 213 215 217 of justices for taking depositions . . receiving acknowledgments of deeds issuing warrants in certain cases . administering oaths granting warrants of appraisement references to arbitration . . . hearing application for certificate to ar on mesne process 221 10 est 146 INDEX. Section FEES — continued. of justices for solemnizing marriages .... 252 subpoenas 257 FIRE DISTRICTS, justices may notify meetings for establishment of, in certain cases 164 FORECLOSURES, notaries may take affidavits of entry . . . . 105 certificates of entry to be sworn to before justices 233 justice must be other than the mortgagee . . 234 FORMS, application for appointment to office of notary public p. 5 oath to be taken by notaries notice of dishonor . . protest of bill or check promissory notes . acknowledgment of deed . creditor's oath .... application for appointment to office of justice of peace p. 53 notice to adverse party of taking deposition . p. 61 certificate of justice to be annexed to deposition p. 65 deposition summons p. 68 certificate to be annexed to deposition to perpet- uate testimony p application for town meeting when selectmen have refused to call one p warrant for town meeting issued by justice . . p. application to justice when grantor refuses to acknowledge deed p. 85 summons by justice when grantor refuses to acknowledge deed p. 86 . p. 7 . p. 27 . p. 38 p. 40 . pp. 44, 84 . pp. 47, 132 71 79 80 INDEX. 147 FORMS — continued. certificate to be annexed by justice when grantor refuses to acknowledge deed p. 87 warrant for entry by board of health . . . . p. 95 warrant for entry of premises of gas consumer p. 96 complaint to search for intoxicating liquor . p. 98 warrant to search for liquors unlawfully kept p. 100 warrants for ascertaining damage done by beasts pp. 103, 104 appraisers' returns, on warrants for ascertaining damage done by beasts .... pp. 104, 105 warrant to secure infected articles . . . . p. 106 warrant to appraise lost goods or stray beasts p. 108 warrant for removal of persons sick with conta- gious diseases p. 1 09 age and schooling certificate, law of 1888 . p. Ill appointment of appraisers p. 115 agreement to submit to arbitration . . . . p. 116 certificate of justice to be annexed to agreement to submit to arbitration p. 117 complaint of one assaulted by a dog ... p. 124 respecting dogs found at large ... p. 125 certificate to be given to one who has been as- saulted by a dog p. 125 certificate respecting a dog found at large . p. 1 26 writ of habeas corpus p. 131 subpoena p. 137 subpoena duces tecum p. 138 GAS CONSUMER, two justices may issue warrants to enter premises of 193 form of the warrant p. 96 148 INDEX. • Section GENERAL FIELDS, justices may call meetings of proprietors of . . 165 GRACE, when days of, are allowed 35, 36 GUARDIANS, nominations of, may be made before justices . 253 HABEAS CORPUS, who may prosecute writs of 235, 236 writs of, may be issued by justices of the peace 237,240 authority of justice to appear on writ .... 238 contents of applications for writs of .... 239 writs of, to be signed by justice issuing them . 241 form of writ of 241 issuing of bail by justices 242 IMPOUNDED BEASTS, justices may issue warrants to determine damage done by 195, 196 form of warrants for ascertaining damage done by pp. 103, 104 1NDORSERS, of bills and notes entitled to notices of dishonor 88 successive, how notified 91 INFECTED ARTICLES, justices may issue warrants to secure . . 197, 198 form of warrant issued to secure . . . . p. 106 INSOLVENCY, notary public may take proofs in 107 form of creditor's oath in proofs in . .107, 243 proofs in, may be taken by justices .... 243 INDEX. 149 Section INTOXICATING LIQUOR, justices may issue warrants to search for . . . 194 form of complaint to search for p. 98 warrant to search for p. 100 JUSTICES OF THE PEACE, origin of 109-111 powers of, at present very limited . . . 110, 111 to be appointed by the governor 112 requisites for appointment 113 women cannot be appointed 114 women may have certain powers of . . . 114 method of applying for appointment to the office of 115 form for application for appointment . . . . p. 53 fees of, for commission 116 shall be notified of appointment within a certain time 117 must take oath of office within certain time . 117 form of oath of 118 shall have right to act throughout the Common- wealth 119 expiration of commissions of 1 20 commissions of, may be renewed 120 notification of expiration of commission to be sent 121 penalty for acting after expiration of commission 122 may hold other offices 123 shall be exempt from watch and ward duties . 1 23 in certain cases designated to act as trial jus- tices 124 penalty for falsely assuming to be 125 duties of, as regards depositions . . . 126-159 calling of meetings 160-176 150 INDEX. Section JUSTICES OF THE PEACE —continued. duties of, acknowledgment of deeds . . 177-183 issuing of warrauts 184-202 oaths and affidavits 203-213 in general 214-257 LIMITED PARTNERSHIPS, justices may take acknowledgments of 245 LOST GOODS, justices may issue warrants to determine value of 199 in certain cases justices shall determine amount of charges on 200 form of warrant to appraise p. 108 MARRIAGES, justices may solemnize 246 form of 24(5 justices to receive certificates of intentions of . 247 mutual agreements before justices are legal . . 248 records of, to be made by justices 21!) penalty for performing, not duly authorized . 250 may be legal although not duly authorized . . 251 fees of justices for solemnizing 252 MEETING-HOUSES, justices may call meetings of proprietors of . . 166 MEETINGS, calling of, by justices, 160-176 MESNE PROCESS, justices may receive affidavits of plaintiffs seeking to arrest persons on 219, 220 contents of affidavits 219,220 fees of justices 221 INDEX. 151 Section METHODIST EPISCOPAL CHURCHES, meetings of trustees of, may be called by justices 171 MODERATORS, justices shall perform the duties of, in certain cases 173 NOTARIES PUBLIC, origin of the office of 1_7 shall have jurisdiction throughout Commonwealth 8 shall hold office for seven years 8 women cannot be 9 qualifications of, for appointment .... 9 how appointed 8, 10 11 must take the oath of office within a certain time after appointment 12 form of oath of 14 fee for commission 13 notifications of expiration of commission to be sent 15 penalty for acting as, after expiration of commis- sion 16 on death, etc., their records to be deposited, etc. 17 penalty for neglect to deposit records . . 18, 19 seals of 21, 22 protest of commercial paper by .... 23-101 statutory powers of 102-108 must keep a record of protests 94 fees of, for protesting paper 97 liability of, for failure to make protests ... 98 justices shall receive oaths of, regarding contents of safety deposit vaults 207 form of application for appointment to office of p. 5 152 INDEX. Section NOTICE OF DEPOSITION, to be given to adverse party 128 on whom to be served 130, 131 how served 132, 133 when served 132, 134, 135 form of p- 61 may be given verbally 136 omitted in certain cases 136 NOTICE OF DISHONOR, drawee or indorsee not liable without .... 58 notary may give, as agent of the holder ... 59 must be given, although drawer is insolvent, and has absconded 60 not necessary where drawer had no effects in hands of drawee 61 drawer not entitled to, where bill was payable to and indorsed by him 61 is necessary where drawee had funds at time bill was drawn 62 when funds afterward come into hands of drawee 63 accommodation indorser entitled to .... 64 certain requisites of 65-68, 70 if erroneous, may be sufficient if indorser is not misled 69 form of p. 27 when to be given of dishonor of a demand note 71 must be given seasonably 72-74 in certain cases may be given without present- ment and demand 73 must be so given as to reach indorser promptly 75 may be deposited in post-office properly directed 76-78, 80-84 INDEX. 153 Section NOTICE OF DISHONOR — continued. may be left at residence or place of business of indorser 77, 79, 85 must be sent to drawers and indorsers of bills, and indorsers of notes 88, 89 sent to partnership is notice to all the members 90 in case of successive indorsers . 91 NOTING, must be done on the very day of dishonor . . 57 may be upon the instrument or upon the records of the notary 57 how performed 57 OATHS, of office to be taken by notaries public and jus- tices 12, 117 forms of, to be taken by notaries and justices 14, 118 justices may administer 203, 205-213 method of administering 204 fees of justices for administering 213 PEDLERS, justices may inspect licenses of 212 PEWS, justices shall receive affidavits of notices of sales of 208 PRESENTMENT AND DEMAND, when necessary 30 31 notaries public may make 32 33 cannot act by deputy in making .... ;; | at what time to be made 35-47 must be made on last day of grace 37 must be made within a reasonable time in case of sight drafts 38 154 INDEX- SECTION PRESENTMENT AND DEMAND — continued. method of computing time for, in promissory notes 39 insufficient if made before or after maturity . 40, 41 in case of bills payable at a fixed period after date 42 when to be made on paper due on Sundays or holidays 43 promissory notes payable on demand 44, 45, 47 certain orders to be payable on demand ... 46 how to be made 48 the person making, should have the instrument with him 49 where to be made when maker has left the state 50-52 of a note with several makers 53 not necessary in certain cases 73 not sufficient if made at former place of business of maker 86 PRIVATE WAYS AND BRIDGES, justices may call meetings of proprietors of . . 167 PROMISSORY NOTES, protest of, recognized as an official act ... 27 indorsers of, entitled to notice of dishonor . 88, 89 form of protest of p. 40 PROTEST, definition of 23 object and purpose of 23 is a necessity in the case of foreign bills ... 24 must be for non-acceptance as well as for non- payment 25, 26 of jnland bills and promissory notes .... 27 method of 28, 29-97 liability of notaries who fail to make .... 98 "extending" the 95 INDEX. 155 Section PROTEST — continued. rime for making the full and complete . . . 95 must be certified by the notary under seal . . 95 shall be prima facie evidence of facts stated therein 95 form of, of bill or check p. ;js form of, of promissory note p. 40 only one formal, necessary where protests for non-acceptance and non-payment both ... 9G fees of notaries for making 97 QUAKERS, may affirm iustead of swear when appointed to office of notary public or justice of the peace 14, 118 RAILROAD POLICE, shall be sworn before justices 211 RECORDS. of notaries public to be deposited with clerk of court on expiration of appointment .... 17 penalty for neglect to deposit 18,19 destroying 20 of protests, notaries public must keep .... 94 books for, how procured 94 of marriages solemnized, justices shall keep . 249 copies of, of marriages to be sent to town clerks or registrars 249 REGISTERS IX BANKRUPTCY, justices of the peace may be 123 RELIGIOUS SOCIETIES, justices may call meetings of, in certain manner 1G8-170 formation of, by justices 17o justices may administer oaths to officers of . . 2U ( ,> 156 INDEX. Section RESIDENCE, what constitutes, in law of negotiable instruments 87 SAFETY DEPOSIT VAULTS, notary public shall be present at opening of, for non-payment of rent 106 duties of notaries at opening of 106 SAVINGS BANK AFFIDAVITS, notaries may take 108 contents of 108 SEALS, notaries public must have 21 form of 21 judicial notice taken of seals of notaries ... 22 of notaries need not be authenticated in case of protest of commercial paper 22 SHARES OF STOCK, justices may receive acknowledgments of deeds of 182 SICK, two justices may issue warrants for removal of . 201 form of warrant for removal of p. 109 SOCIAL LIBRARY CORPORATIONS, meetings of proprietors of, may be called by jus- tices 172 SUBPOENA, justices may issue 25fi form for p. 137 fees of justices for issuing 257 TOWN AND PRIVATE WAYS, obstructions on, may be removed by order of jus- tices 254, 255 INDEX. 157 Section TOWN MEETINGS, justices shall call, in certain event 173 form of application for, when selectmen have re- fused to call p. 79 warrant for, by justice of the peace . . p. 80 TRIAL JUSTICES, justices of the peace to be appointed in certain cases 124 UNLAWFUL ASSEMBLIES, justices may suppress 226-229 WARRANTS, In criminal cases. certain justices of the peace authorized to issue 184, 186, 189 fees of justices for issuing 184 must not be directed to a private person . . . 187 manner of issuing 188 In other cases. justices may issue, to call meetings of certain cor- porations 160-176 form of, for calling town meetings by justices . p. 80 two justices may issue, for entry by board of health * 192 form of warrant for entry by board of health . p. 95 two justices may issue, to enter premises of gas consumer 193 form of warrant to enter premises of gas con- sumer p. 96 justices may issue warrants to search for intoxi- cating liquor 194 form of, to search for intoxicating liquor . . p. 100 158 INDEX. Section WARRANTS — continued. justices may issue, to determine damage done by beasts 195, 196 forms of, to determine damage done by beasts pp. 103, 104 justices may issue, to secure infected articles 197, 198 form of, issued to secure infected articles . . p. 10G . 199 p. 108 . 201 p. 109 . 202 justices may issue, to appraise lost goods . form of, for appraisal of lost goods two justices may issue, for removal of sick form of, for removal of sick fees of justices for issuing WATCH AND WARD, justices of the peace are exempt from the duties of 123 WATCH DISTRICTS, justices may notify meetings of inhabitants of towns for the purpose of establishing . 174, 175 WHARVES, justices may call meetings of proprietors of . . 176 WITNESSES, who may give depositions 126 may be summoned for depositions . . . 149-151 form of deposition summons for p. 68 summons for, may be issued by justices . . . 256 form of subpoena for p. 137 fees of justices for issuing subpoenas for . . . 257 WOMEN, cannot be notaries or justices of the peace . 9, 114 shall have certain powers of justices of the peace 114 T 11 E STUDENTS' SERIES. ELEMENTARY LAW TREATISES BY ABLE WRITERS, including the most important topics of law. The volumes of the Students' Series are in use as Text-Books in leading Law Schools throughout the United States. In planning this series of law bonis for students, you have rendered a very great ser- vice, not only to Is tht mselves, but also to the profession. There hat greater obstacle to ali efforts for a higher standard of legal education than tht such books. — Prof. William G. Hammond, Law Department, Iowa State University. If tir ding volumes, so full of instruction, are estimated at their (rue value, their sal 11 not be confined to tht !< gal profession alone. — Hon. John Crowkll, LL.D., President of Ohio State and Union Law College. The plan needs only development to rentier it popular, and the volumes now out ore Hon of it. . Either volume would serve the purposes of a mature lawyer, desiring to refresh his memory of the general principles of the subject. — N. Y. Times. VOLUMES READY. BIGELOW ON TORTS. BIGELOW ON EQUITY. HEARD ON CRIMINAL PLEADING. HEARD ON CIVIL PLEADING. COOLEY ON CONSTITUTIONAL LAW. LANGDELL'S SUMMARY OF CONTRACTS. CURTIS ON UNITED STATES COURTS. MAY ON CRIMINAL LAW. STIMSON'S LAW GLOSSARY. ROBINSON'S ELEMENTARY LAW. EWELL'S MEDICAL JURISPRUDENCE. STEPHEN'S DIGEST OF EVIDENCE. ROBINSON ON FORENSIC ELOQUENCE. BIGELOW ON BILLS. NOTES, AND CHECKS. IN ACTIVE PREPARATION. BRYANT ON CODE PLEADING. ABBOTT ON WILLS. PRICE OF EACH VOLUME. — CLOTH, 12.50 net; Law Sheep, S3 00 net. Postage 10 cents per volume additional 1 I. BIGELOW ON TORTS. The style is attractive, the definitions concise and accurate, and the size of the volume so moderate as to he equally attractive both to the practitioner and the student. — From Hon. John Crowell, President of Ohio Stale and Union Law College, Cleveland. AN ELEMENTARY TREATISE ON THE LAW OF TORTS. — By Mel- ville M. Bigelow, Ph.D., author of " A Treatise on the Law of Estoppel/' "A Treatise on the Law of Fraud," and Editor of "Leading Cases in the Law of Torts," etc. Fourth edition, revised and enlarged. Cloth, $2.50 net ; law sheep, $3.00 net. Among the best books for the use of students, this popular manual de- servedly takes a high rank. It is in use in law schools all over the country : for example, in Boston University ; University of Michigan; Northwestern University, Chicago; University of Texas; Washington and Lee University; also in Canada at the Osgoode Hall Law School, Toronto; and a few years since was adopted as a text-book in the famous university of Cambridge, England. Probably no other students' book is so widely used. The new fourth edition embraces many late cases, and a new chapter on Malicious Interference with Contracts. The whole book has been carefully revised, and many passages rewritten. It seems to rne admirably adapted to the purpose for which it is written. Mr. Bigelow is very happy in his statement of legal principles, and nowhere so much so, I think, as in this book. — Hon. Thomas M. Cooleij. I have looked through this volume with particular interest, from my own expe- rience in teaching the same topic ; and I have no hesitation in saying that it is much better fitted for the student than any work on Torts we have had before. — Prof. William G. Hammond. Mr. Bigelow, in his clear and succinct statement of the duties of individuals toward each other as members of society, has made a valuable contribution to your Law Stu. dents' Series. — Hon. Morrison R. Waile, Chief Justice of the United Stoles. Its methodical arrangement of the classes of Torts, its clear style, and its simple man- ner of treatment, render it specially useful to beginners in the study of law. — James B. Black, Central Law School oj Indiana. It is the product of real thought and diligent labor ; and the thought and labor have 1 11 too skilfully applied not to result in a substantial addition to legal literature. — Boston Daily Advertiser. II. BIGELOW ON EQUITY. The arrangement and treatment of the subject are admirable. — From Samuel D. Davis, Professor of Lane Professor of Law in Harvard University. Second edition. 12mo. Cloth, $2.50 net ; law sheep, $3.00 net. VII. CURTIS ON UNITED STATES COURTS. A work of the highest standard on tin; subject treated —Bolton Po ' CURTIS ON THE UNITED STATES COURTS. —Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the United States. By BENJAMIN 1!. I'rRTis. LL.D. Edited l>v George Ticknor Curtis and Benjamin 11. Ci ktis. I.ino. Cloth, $2.50 net; law sheep, $3.00 utt. These lectures were delivered by the late Judge Curtis to a cla.-s of students in the Harvard Law School, in the academic year 1872-73. Cannot tail to be of great service to the student in the prosecutiou of his legal studies. Chicago Legal News. It is by far the best epitome of that extensive subject, and the clearness of the style and orderly arrangement of the learned author will especially recommend it to students. Hon. Edmund II Bennett, Dean of School "/Line, Boston University. There is not to-day in existence so admirable a treatise ou United States courts and their jurisdiction as this little book. — Milwaukei Republican. VIII. MAY'S CRIMINAL LAW. I have carefully examined and read through May's Criminal Law. This work i* certainly one of distinguished merit. Its definitions and statements of principles are clear and concise. Its discussions of doubt- ful or controverted points are calm and scholarly. The cases to which it refers embrace the most recent English and American decisions, ami therefore, both as a Bade mecum for the criminal lawyer and as a text- book for the student, it must at once take a high position in the literature of that branch of jurisprudence. — From William C. A Professor of Criminal Law, >■/>-,, Yale C THE LAW OF CRIMES. - My J. Wilder May, chief Justice of the .Municipal Curt of the City of Boston. Second edition, edited by Joseph Henry Hkai.k, Jr., Assistant Professor of Law in Harvard University. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. This new edition of Judge May's deservedly popular work contains large additions. The editor states in the preface that the original plan included no discussion of the subjects "t Criminal Pleading and Practice, but it was found that it would lie better adapted to the use of student- if tl ijects were brietly considered, and this has accordingly been done. Much has also been added to the first chapter, which contain- the general principles underlying the criminal law. It is to lie especially commended n>r its clear and concise definitions, as also for its citation- .,f lea lirectlj upon the matter under discussion. — From J. II. Carpen'. .,;/,/ ,,/ H',',, It is ict a mere synopsis, but an interesting discussion, quite full enough to give •it a rrue view of the subject, and minute enough to be a useful handbook to the practitioner —A IX. STIMSON'S LAW GLOSSARY. It is a valuable addition to the Students' Series, and I shall cordially recommend it as a lirst dictionary to our students. — Hon. Edmund H. Bennett t Dean of School of Law, Boston University. GLOSSARY OF TECHNICAL TERMS, PHRASES, AND MAXIMS OF THE COMMON LAW. — By Frederic Jesup Stimson. 12mo. Cloth. $2.50 net ; law sheep, $3.00 net. A concise Law Dictionary, giving in common English an explanation of the words and phrases, English as well as Saxon, Latin, or French, which are of common technical use in the law. Specimen of the Definitions in Sthnson's Law Glossary. Dower. The life estate which the widow has in her husbancTs lands on his death ; usually one-third part of any lauds of which he was seised in an estate of in- heritance at any time during the mar- riage, if the husband's estate in such lands was such that the common issue might haye inherited. Dower ad ostium ecclesise, I. (at the church door) was anciently where the husband specifically endowed his wife with certain of his own lands ; or of his father's lands, Dower ex assensu patris. If this was not done, she was assigned her Reason- able dower, Dos rationabilis, I., The information crowded by Mr. Stimson in his duodecimo volume of a little more than three hundred pages, is \ery great; his explanations are given with remarkable brevity, and legal technicalities are avoided so completely as to make the work a valu- able and welcome supplement to the common English Dictionaries. —Boston Daily Advertiser. Dower by the common law, a third part of the husband's land. Dower by custom : varied in amount according to local usage Dower de la pluis belle, Jr. (of the fairest part): where the wife was endowed of socage lands held by her as guardian. Writ of dower or Writ of right of dower : an old real action lying for a widow against a tenant who had deprived her of part of her dower. Dower unde nihil habet, I. : a similar writ which lay for a widow to whom no dower had been assigned. X. ROBINSON'S ELEMENTARY LAW. The book is convenient to the instructor who will use it as a text to be amplified in his lectures, and valuable to the student who will con- sult the references. —Prof. M. F. Force, LL.D., Cincinnati Law School. ELEMENTARY LAW.— By William C. Robinson, LL.D., Professor of Elementary Law in Yale College. l2mo. Cloth, $2.50 net; law sheep, $3.00 net. It contains a statement of the principles, rules, and detinitions of American Common Law, both civil and criminal, arranged In logical order, with refer- ences to treatises in which such delhiitiniis, rules, and principles are more extensively discussed. This volume is used largely in law schools, and the author bus a special knowledge of the requirements of the student, being a leading instructor at the Law School of Yale College. The student who intelligently studies this work may store his mind with lucid and concise statements of the leading topics of law; and, having been grounded in this primary information, a course of read- ing is laid down, including the best text-books together with the special por- tions of the works which relate to the subjects in question. It may also be used with great benefit as a review book for examinations. The purpose of this most useful elementary work cannot better be explained than by here reprinting, from page 33, Section 01, relating to Transfer of Estates: — Section 61. Of the Ownership and Transfer of Estates. An estate may belong to one person or to several persons collectively. It may also be transmitted from one person to another, or lesser estates may be carved out of it by the owner and be granted to others. The relation between co-owners or successive owners of the same estate, or between persons one of whom derives his estate from the other, is known as privity oft Mute. Read 2 131. Comm., pp. 107, 17!', 200, 201. 1 Wash. K. P., [?. i. Ch. xiii, Sec. 1, § 1. 2 Wash. i:. P., B. ii, Ch. i. Sec. 1, § 16. 1 Greenl. Ev., §§ 189, 523. The principles are admirably stated. — Albany Lair Journal. It would be a benefit to every law student to put this volume into his hand, and make it his vade mecum throughout the whole of his professional studies. — Boston Advertiser. It might worthily be adopted BS a text-book tor every seuior class in a male or female college, aud will be found an invaluable accession to every public and private library. — .v< w York World. XI. EWELL'S MEDICAL JURISPRUDENCE. It is excellently done. I wish it might be read by every student of law as well as by every student of medicine. — Prof. Henry Wade Rogers, University of Michigan. A MANUAL OF MEDICAL JURISPRUDENCE FOR THE USE OF STUDENTS AT LAW AND OF MEDICINE. — By Marshall D. Ewbll, M.D.. LL.D., of the Union College of Law. Chicago l2mo. Cloth, 82.50 net ; law sheep, S3.00 n< t. Mr. Ewell has endeavored to produce a work which, within a mi p its, States all the leading fact- and principles of the science concisely and yet clearly. In it will be found the substance of all the principles stated in the more voluminous and expensivi works. XII. STEPHEN'S DIGEST OF EVIDENCE. Shorl a* it is, I believe it will be found to contain practically tbe whole law of tbe subject.— The author. A DIGEST OF THE LAW OF EVIDENCE. — By Sir Jamka FrrzjAMKS Sn inr.N. K.c.s.l., : , Judge of tbe High Coutl of Justice, Queen's Bench Division. From the Fourth English Edition. With Notes and Additional Illustrations to the Present Time, chiefly from American Cases, including those of John Wilder May, late Chief Justice of the Municipal Court of the City of Boston, author of "The Law of Insurance," etc. 12mo. 251 pages. Cloth, $250 net; law sheep, $3.00 net. A full and exact reprint of the Fourth (latest) English Edition, revised by the author, with references to American cases. Many editions of the work have been published in America, but the present will be found to be the most useful, as it includes the very valuable notes prepared by the late John Wilder May, author of "The Law of Crimes," etc., together with a selection of cases and references supplementing his important editorial work. XIII. ROBINSON'S FORENSIC ELO- QUENCE. This is a book which no student of law can afford to pass by with- out a thorough study of it. It is also a work which no practising lawyer who understands the trial of causes and is not already an acknowledged leader in the courts, can afford not to read and read again. — American Law Review. FORENSIC ELOQUENCE, A MANUAL FOE, ADVOCATES. —By William C. Robinson, Professor of Elementary Law in Yale College, author of "The Law of Patents for Useful Inventions," "Elementary Law," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. A new and suggestive work on the Duties and Functions of the Advocate. XIV. BIG-ELOW'S BILLS, NOTES, AND CHECKS. AN ELEMENTARY TREATISE ON THE LAW OF BILLS, NOTES, AND CHECKS - By Melville M. Bigelow, Ph.D., author of "An Elementary Treatise on the Law of Torts," etc. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. XV. BRYANT ON CODE PLEADING-. PRINCIPLES OF CODE PLEADING FOR THE USE OF STUDENTS. By Hon. Kdwin E. Bktant, Dean of Law Department of State Univer- sity of Wisconsin. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. (In preparation.) XVI. ABBOTT'S LAW OF WILLS. ELEMENTS OF THE LAW OF WILLS. — By Nathan Abbott, Pro- fessor of Wills, etc, at Northwestern University, Chicago. 12mo. Cloth, $2.50 net; law sheep, $3.00 net. LITTLE, BROAVTv & CO., Publishers, 254 Washington Street, Boston. 8 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 785 581