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USA Statutes : massachusetts
Title : PART III. COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
Chapter : TITLE II. ACTIONS AND PROCEEDINGS THEREIN
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Chapter 223: Section 1. Transitory actions; general provisions Section 1. A transitory action shall, except as otherwise provided, if any one of the parties thereto lives in the commonwealth, be brought in the county where one of them lives or has his usual place of business; provided, however, that if the instrument of the crime is a forged check, credit card, or other negotiable instrument, intending on its face to be presented for payment at another place in another county and the value of the money, goods or services involved is in excess of one hundred dollars, the action may be brought in the county where the instrument was presented or at the place where the instrument was presented for payment, if such place of payment is located in the commonwealth; and provided, further, that except in actions upon negotiable instruments if the plaintiff is an assignee of the cause of action, it shall be brought only in a county where it might have been brought by the assignor thereof. If neither party lives in the commonwealth, the action may be brought in any county. If an action is dismissed because the defendant has raised timely objection to venue, the defendant shall be allowed double costs.
Chapter 223: Section 10. Actions by city of Boston; transfer from county of Suffolk [Text of section applicable as provided by 2004, 252, Sec. 23.
] Section 10. The defendant in an action brought in Suffolk county by the city of Boston or by its collector may, if the action is brought in the supreme judicial or superior court, within thirty days after the day for appearance, file a motion in writing for the removal of the action to Essex, Middlesex or Norfolk county; and the court shall thereupon order it to be removed to the same court in such one of said counties as the attorney of the city of Boston elects.
Chapter 223: Section 100. Action on bond; limitation Section 100. No creditor whose cause of action on such bond accrued more than one year before the commencement of the action shall have judgment or execution.
Chapter 223: Section 101. Creditors; payment and satisfaction Section 101. If property which has been sold, or appraised and delivered to the debtor, in the manner before provided is attached by several creditors, any one of them may demand and receive satisfaction of his judgment, notwithstanding a prior attachment, if he is otherwise entitled to demand the money, and if a sufficient amount of the proceeds of the property, or of its appraised value, remains to satisfy all prior attachments.
Chapter 223: Section 102. Appraisal at request of part owner Section 102. If personal property of two or more part owners is attached in an action against one or more of them, it shall, upon the request of any other part owner, be examined and appraised in the manner provided in sections eighty-eight to ninety-two, inclusive, except that the part owner who makes the application shall, and the debtor shall not, appoint one of the appraisers. This section shall not apply to partnership property.
Chapter 223: Section 103. Delivery to part owner; conditions precedent Section 103. The property so appraised shall be delivered to the part owner at whose request it was appraised, upon his giving bond to the attaching officer in a sufficient sum, with two sufficient sureties, conditioned to restore such property in like good order or to pay to the officer the appraised value of the defendant’s share or interest therein, or to satisfy all such judgments as may be recovered in the action in which it is attached, if demanded within the time during which the property would have been held by the respective attachments. Sections ninety-four to one hundred, inclusive, shall apply to such bond and to an action thereon.
Chapter 223: Section 104. Pledge of property Section 104. If such appraised value or any part thereof is so paid, the defendant’s share of the property shall thereby become pledged to the party to whom it was delivered, and he may sell it, if not redeemed, and shall account to the defendant for the remaining proceeds of the sale.
Chapter 223: Section 105. Restoration Section 105. If the attachment is dissolved, the party to whom the defendant’s share was delivered shall restore it to the defendant, or to the officer, to be by him delivered to the defendant.
Chapter 223: Section 106. Dissolution of prior attachment: application Section 106. If real or personal property has been attached in an action, any person, other than the parties, who claims title or interest therein by a subsequent attachment, purchase, mortgage or other title, may dispute the validity and effect of such prior attachment on the ground that the amount demanded in the first action was not justly due or was not payable when it was commenced, by filing a petition in the court in which the first action is pending, at any time before final judgment therein, stating the facts and circumstances on which his petition is founded, and the grounds of his own claim, and praying that the prior attachment may be dissolved.
Chapter 223: Section 107. Affidavit and bond Section 107. The petitioner, or a person in his behalf, shall make oath that his claim is just and legal and that all the other facts stated in the petition are true or are believed by the deponent to be true; and, upon filing the petition, the petitioner, or a person in his behalf, shall give a bond or recognizance with sufficient surety, conditioned to pay to the adverse party such damages and costs as may be awarded to him upon the petition.
Chapter 223: Section 108. Dissolution of prior attachment; finding of court Section 108. If the court finds that a part of the amount demanded in the prior action is not justly due, or was not payable when the action was commenced, it shall order the attachment dissolved in whole or in part as justice requires; but such order shall have no other effect on the prior action. If the hearing is in the supreme judicial or superior court, the court shall, upon motion, order a jury trial of any question of fact.
Chapter 223: Section 109. Dissolution of prior attachment; effect of pleadings Section 109. The proceedings between the adverse claimants or plaintiffs shall not be affected by any pleading or other act of the defendant in the prior action nor by the judgment rendered therein.
Chapter 223: Section 11. Executors or administrators; transitory actions by or against Section 11. A transitory action by or against an executor or administrator may be brought in a county in which it might have been brought by or against the testator or intestate at the time of his decease.
Chapter 223: Section 110. Dissolution of prior attachment; defences Section 110. No attachment shall be dissolved as aforesaid by reason of a defence to the action which is founded on the laws for the limitation of actions or requiring certain contracts to be made in writing, or by reason of any other like defence, if the court finds that the demand is otherwise well founded and is justly and equitably due.
Chapter 223: Section 111. Costs; damages Section 111. The court may, upon such inquiry, award to either party reasonable costs and, if the prior attachment is maintained, may award to the attaching creditor reasonable damages.
Chapter 223: Section 112. Proceeding upon appeal Section 112. If, during the pendency of the proceedings, the action in which the attachment was made is transferred to another court, the inquiry concerning the attachment shall be transferred to the same court and be there heard and determined.
Chapter 223: Section 113. Judgment; force and effect Section 113. The judgment of the court upon such an inquiry, whether the attachment is thereby vacated or held to be valid and effectual, shall be a bar to any action which may be brought by the petitioner against the party who made the attachment for any supposed fraud or deceit therein.
Chapter 223: Section 113A. Method of dissolving, discharging or reducing attachments Section 113A. Attachments in all cases in law, equity or probate courts of the commonwealth shall be dissolved, discharged or reduced in whole or in part without order of court by any method provided in this chapter.
Chapter 223: Section 114. Excessive or unreasonable attachments; manner of reduction or discharge Section 114. If an excessive or unreasonable attachment, by trustee process or otherwise, is made, the defendant or person whose property has been attached may submit a written motion, in any county, to a justice of the court to which such process is returnable, for a reduction of the amount of the attachment or for its discharge. Notice of such motion shall be served upon each of the parties in accordance with the applicable rules of court. If, upon a summary hearing of the parties, it is found that the action is one to recover for an amount which is liquidated or ascertainable by calculation, and the attachment is for a larger sum than the amount of the claim and such additional amount as is reasonably necessary to include interest thereon and costs likely to be taxed in the action, or if it appears that the amount of the claim is unliquidated and unascertainable by calculation and that the amount of the attachment is excessive or unreasonable, the court shall reduce or dissolve the attachment or order a part of the goods, estates, effects or credits to be released.
Chapter 223: Section 114A. Real estate attachments; expiration by operation of law Section 114A. An attachment of land, or of a right or interest therein, shall, unless otherwise dissolved, expire by operation of law at the end of six years from the date of filing the same in the office of the register of deeds in the county or district where said land or some part of it is situated, unless said register shall, within said period, at the written request of the plaintiff or his attorney bring forward the same upon the books of attachments. At the expiration of six years from the time of any such first or subsequent bringing forward, such attachment shall expire as aforesaid unless within such period it is again brought forward in like manner. The register shall record every such written request in his office and shall be entitled to the same fee for bringing forward each such attachment upon the books where such attachments are recorded as for the original entry thereof in such books.
By Operation of Law Chapter 223: Section 115. Judgment dissolving Section 115. If the judgment in a civil action is for the defendant, the attachment shall be dissolved upon the exhaustion of all possible appellate review of such judgment if it is upheld.
The provisions of this section shall apply to property attached upon a counterclaim when judgment is rendered for the plaintiff upon such counterclaim.
By Operation of Law Chapter 223: Section 115A. Failure of service upon defendant Section 115A. If real property of the defendant is attached in any action and no service is made upon him, the attachment shall be dissolved unless it appears of record that notice of such action has been given to him, in such manner as the court orders, within sixty days after the commencement of the action, or within such further time as the court may allow.
By Operation of Law Chapter 223: Section 115B. Repealed, 1975, 377, Sec. 40 By Operation of Law Chapter 223: Section 116. Death of defendant Section 116. An attachment of real or personal property shall be dissolved if the debtor dies before it is taken or seized on execution and administration of his estate is granted in the commonwealth upon an application therefor made within one year after his decease. The attaching officer shall also, upon demand, and upon receiving from the executor or administrator of such debtor so appointed his legal fees and charges for attaching and keeping the property attached by him, deliver it to such executor or administrator. But no attachment of property, real or personal, shall be so dissolved upon that part of the property which the debtor had alienated before his decease.
By Operation of Law Chapter 223: Section 117. Attaching officer; liability for net proceeds Section 117. If the officer has, before such demand, sold on execution the personal property attached or a right of redeeming land attached as aforesaid, he shall not be a trespasser, but shall be liable only for the proceeds of the sale after deducting his legal fees and charges for attaching, keeping and selling the property attached. Such proceeds may be recovered by the executor or administrator in a civil action.
By Operation of Law Chapter 223: Section 118. Liability of creditor for proceeds paid over to him Section 118. If the officer in such case has, before such demand, paid over the proceeds of the sale to the judgment creditor, he shall not be liable therefor, but the executor or administrator, if appointed as before provided, may recover in a civil action from the judgment creditor the amount so paid to him.
By Operation of Law Chapter 223: Section 119. Counterclaim Section 119. The defendant, in an action founded on either of the three preceding sections, shall not be allowed to counter-claim for a demand against the executor or administrator, or against the estate of the deceased.
Chapter 223: Section 12. Land title actions Section 12. If a tract of land lies in two or more counties, an action relative to it, to which neither a county, the city of Boston nor any corporation named in section eight is a party, may be brought in any of said counties, and the complaint shall be so drawn as to include the whole tract.
By Giving Bond Chapter 223: Section 120. General provisions Section 120. A defendant whose property has been attached in a civil action may at any time dissolve the attachment by giving a bond with sufficient sureties, who shall be approved by the plaintiff or by his attorney in writing, by a master in chancery, or by a justice of a court if the attachment is made within the jurisdiction of such justice, conditioned to pay the plaintiff, within thirty days from the expiration of the time to appeal such final judgment, or within thirty days of the entry of an order of the supreme judicial court or the appeals court affirming such final judgment, such amount, if any, as he may recover; and also to pay to the plaintiff, within thirty days from the expiration of the time to appeal a special judgment entered in accordance with the provisions of chapter two hundred and thirty-five, the amount, if any, for which such special judgment shall be entered. Sureties shall not be sufficient unless they are satisfactory to the plaintiff or unless the magistrate finds that each, if there are only two, is worth, in excess of his indebtedness, an amount equal to that for which the attachment is made; or, if there are more than two, that they are together worth twice such amount.
By Giving Bond Chapter 223: Section 121. Bond; hearing before approval Section 121. Before such bond is approved, the defendant, or a person in his behalf, shall make application in writing to the magistrate, specifying therein the names and residences of the proposed sureties and, except in case the proposed surety is a surety company qualified to do business in the commonwealth, therein setting forth the property with which each of said sureties proposes to qualify, and in case said property, as so set forth, be realty, then giving the name of the town where the same is located. Notice of the time and place of the hearing, containing a copy of the application to the magistrate shall be served upon the plaintiff in accordance with the applicable rules of court; but the plaintiff or his attorney may in writing waive such notice or may approve the bond at any time.
By Giving Bond Chapter 223: Section 122. Debtor’s fees and costs Section 122. If the attachment is dissolved and the defendant prevails, his costs shall include the fees of the magistrate and the premium or premiums paid for the bond dissolving such attachment, if it be a surety company bond.
By Giving Bond Chapter 223: Section 123. Debtor’s bond; filing Section 123. Such bond and the bond required by section one hundred and twenty-seven shall be filed by the defendant with the clerk of the court to which the writ is returnable, or in which the action is pending, within ten days after its approval, and the attachment shall not be dissolved until the bond shall have been so filed. The plaintiff may take such bonds from the files upon leaving on file a copy thereof attested by the clerk; and the plaintiff may tax the cost of such copy as part of his costs in an action on such bond.
By Giving Bond Chapter 223: Section 124. Release of sureties of insolvent debtor Section 124. If, within four months after an attachment of property has been made on mesne process in a civil action founded on a claim which would, if proved, be barred by a discharge in insolvency of the defendant and after such attachment has been dissolved as provided in the four preceding sections, proceedings in insolvency are instituted by or against the defendant, the action shall, upon the suggestion of any party interested, be continued to await the result of such proceedings in insolvency; and if the debtor receives his discharge in insolvency, the sureties on the bond given by him to dissolve the attachment shall be released from all liability thereon.
By Giving Bond Chapter 223: Section 125. Bond to pay value of property Section 125. A defendant may, at any time before execution, issue upon a judgment, release from attachment the property attached, or such part thereof as he may elect, by giving bond to the plaintiff with sufficient sureties, who shall be approved by the plaintiff or by his attorney in writing, by a master in chancery, or by a justice of a court of record if the attachment is made within the jurisdiction of his court, conditioned to pay the plaintiff within the time during which the property so released might have been taken on execution pursuant to section fifty-nine of this chapter, the amount fixed as the value of the property so released, or so much of said amount as may be necessary to satisfy the amount, if any, which the plaintiff may recover, and the property so released shall be described in such bond. The defendant, or a person in his behalf, may make written application to any magistrate who is authorized to approve the sureties upon said bond in the county where the property is situated, stating the names of the parties to the action, the name of the officer who made the attachment, the names and residences of the proposed sureties, and, except in case the proposed surety is a surety company qualified to do business in the commonwealth, setting forth the property with which each of said sureties proposes to qualify, and in case said property, as so set forth, be realty, then giving the name of the city or town where the same is located. The magistrate shall forthwith cause a copy of the application, with notice of the time and place for the hearing, to be served upon the plaintiff, if he resides in the county, otherwise upon the officer who made the attachment; but the plaintiff or his attorney may in writing waive such notice or may approve the bond or sureties at any time, or may agree that the amount of the bond is sufficient without approving the sureties, in which case the appraisal hereinafter provided for need not be made. The notice shall be served twenty-four hours, at least, before the time appointed therein for a hearing and as much earlier as the magistrate may order. At the time and place appointed, after hearing the parties, the magistrate shall appoint three disinterested persons to examine and appraise the attached property described in the application, who shall be sworn, shall appraise the property at its fair market value and shall make return of their doings in writing to the magistrate at a time and place fixed by him to which the hearing shall be adjourned. At such adjourned hearing the defendant may give bond to the plaintiff, with sureties, who shall be approved by the magistrate as herein provided. Upon the filing of such bond, as is required by the provisions of section one hundred and twenty-three, the attachment upon the property described therein shall be dissolved. When successive attachments in favor of different plaintiffs are made upon personal property the defendant may release from the attachments the property attached, or such portion thereof as he may elect, by giving bond with sufficient sureties to be approved as hereinbefore provided. The sheriff of the county in which the first attachment was made shall be the obligee on the bond, which shall be deposited immediately after it is given with the clerk of the courts for the same county, except that in Suffolk county it shall be deposited with the clerk of the superior court for civil business. The bond shall be conditioned on the defendant’s paying to such sheriff within the time fixed by this section for giving bond to release attached property from attachment, the amount fixed as the value of the property so released and the amount so paid shall be held by the sheriff, after deducting the necessary charges, subject to the attachments in the order in which they were made, and shall be disposed of in the same manner as the proceeds of attached personal property sold under section eighty-seven.
By Giving Bond Chapter 223: Section 126. Fees Section 126. The magistrate may adjourn such hearing from time to time. He shall determine the fees of the appraisers. The applicant shall pay the fees of the magistrate and the appraisers; but if final judgment is in his favor, they shall be taxed as a part of his costs. The magistrate’s certificate of the amount shall be filed before said fees are allowed as a part of the taxable costs.
By Giving Bond Chapter 223: Section 127. Fraudulently conveyed realty Section 127. If an attachment of real property is made under sections sixty-seven and sixty-eight, the person in whose name the record title of the property attached stands, or a person in his behalf, may, before final judgment, dissolve the attachment by giving bond to the plaintiff, with sufficient sureties, conditioned to pay him, if he establishes his title to the land in a civil action against the person having the record title thereto at the time of the attachment, the ascertained value of the land, or so much thereof as shall satisfy the amount, if any, which the plaintiff shall recover upon final judgment, or upon a special judgment under chapter two hundred and thirty-five, in the action in which such attachment was made. All proceedings required in the two preceding sections shall apply to the dissolution of an attachment under this section. In the trial of such action to establish title, the record of the attachment and of final or special judgment, as the case may be, in the action in which the attachment was made shall be conclusive evidence of a momentary seisin of the land in the plaintiff to enable him to maintain an action therefor upon his own seisin; but no such action to establish title shall be brought after the expiration of one year from the date of such final or special judgment. If the plaintiff recovers judgment on such action he shall not have an execution for possession, but may have an execution for costs.
By Giving Bond Chapter 223: Section 128. Deposit Section 128. A defendant may dissolve an attachment by depositing with the attaching officer an amount of money equal at least to the amount of the attachment, which the officer shall hold in place of the property attached and which shall be subject to be disposed of in the same manner.
By Giving Bond Chapter 223: Section 129. Individual property of one defendant Section 129. A defendant whose individual property has been attached in an action against several defendants may dissolve such attachment, or any part thereof, in any of the modes provided in the nine preceding sections. But the bond to dissolve such attachment shall be so conditioned as to apply only to a judgment recovered against such defendant alone or jointly.
By Giving Bond Chapter 223: Section 129A. Attaching officer; liability for release of attached property Section 129A. The officer shall not be liable for the release of personal property attached by him if he receives a certificate from the clerk of the court to which the writ is returnable, stating that a bond purporting to dissolve such attachment has been filed in the office of said clerk.
Chapter 223: Section 13. Change of venue Section 13. If the supreme judicial or superior court finds that a party to an action or proceeding pending therein cannot, by reason of local prejudice or other cause, have an impartial trial in the county where the action or proceeding was commenced, it may, upon the application of either party, order it to be removed for trial to another county. Upon the entry of such order, the clerk of the court in which the action or proceeding is pending shall forthwith transmit all the papers in the case and a certified copy of said order to the clerk of the court for the county to which it has been ordered to be removed. The clerk who receives such papers and order shall forthwith enter them on his docket, and the case shall thereupon proceed as if it had been originally commenced in the county to which it has been removed.
By Appointment of Receiver Chapter 223: Section 130. General provisions Section 130. An attachment of property shall be dissolved by the appointment by any court of competent jurisdiction in the commonwealth of a receiver to take possession of such property if the complaint seeking the appointment of such receiver is filed in said court within four months after such attachment was made, unless the court at any time, in its discretion, continues such attachment. In such case the court may authorize the receiver to prosecute or defend the action upon which the attachment was made.
By Appointment of Receiver Chapter 223: Section 131. Discharge of receiver Section 131. If an attachment has been dissolved in the manner provided in the preceding section, the proceedings for the appointment of a receiver shall not thereafter be dismissed and the receiver discharged until all the assets which have come into his hands as receiver have been fully distributed or the claim upon which the attachment was made has been fully paid and discharged, unless the debtor, before such dismissal, deposits with the officer who made the attachment such amount of money as the court before which such receivership proceedings are pending, after notice to the attaching creditor and a hearing, finds reasonable for the protection of his claim in the action in which the attachment was made. Such money shall be held by the officer in place of the property held under the attachment before its dissolution and shall be disposed of as such property would have been disposed of had the attachment not been dissolved.
By Entry or Release in Registry of Deeds Chapter 223: Section 132. Release by plaintiff Section 132. An attachment of real estate shall be dissolved by a release signed and acknowledged by the plaintiff or by his executor, administrator or attorney of record and recorded in the registry of deeds, or by a certificate from the clerk of court in which the action was pending that the attachment has been dissolved or that the action has finally been determined. Such a release describing sufficiently for identification any particular parcels of real estate shall dissolve an attachment in so far as it may affect the particular parcels described. The aforesaid releases, certificates of court and partial releases, shall be recorded in the registry of deeds in the county or district where a certified copy of the original return of attachments is filed or recorded as required by section sixty-three.
Chapter 223: Section 133. Persons authorized; approval Section 133. A bond which is required to be given by a party to a civil action or proceeding may be executed by any person other than the party to the action or proceeding, and may be approved in the same manner as if executed by such party, if it appears to the magistrate who approves it that a there is good reason why it is not executed by him.
Chapter 223: Section 14. Forfeitures Section 14. A civil action for the recovery of a forfeiture, except an action in which the commonwealth is plaintiff, or in which money is sought to be recovered for the commonwealth, shall be brought in the county where the offence was committed, unless the statute imposing the forfeiture otherwise provides.
Chapter 223: Section 15. Erroneous venue; procedure Section 15. If an error in venue is discovered at any stage of the proceedings of a civil action in the supreme judicial or superior court, the court may, upon motion of either party, order the action, with all papers relating thereto, to be removed to the proper county upon terms to the defendant; and it shall thereupon be entered and prosecuted in the same court for that county as if it had been originally commenced therein, and all prior proceedings otherwise regularly taken shall be valid.
Chapter 223: Section 16 to 18. Repealed, 1975, 377, Sec. 24 Chapter 223: Section 19. Unknown defendant; procedure Section 19. In a civil action if the name of the defendant is not known to the plaintiff, the defendant may be designated in the summons and complaint by a fictitious name. The use of a fictitious name shall not be grounds for dismissal of the complaint if sufficient service has been made, and amendments shall be allowed and terms may be imposed.
Chapter 223: Section 19A. Repealed, 1973, 1114, Sec. 86 Chapter 223: Section 2. Transitory actions; district courts Section 2. Except as provided in section twenty-one of chapter two hundred and eighteen, a transitory action in a district court shall be brought in a court in the judicial district where one of the parties lives or has his usual place of business or in a court, the judicial district of which is adjacent to the judicial district where one of the parties lives or has his usual place of business or, if in connection with the commencement of such an action the approval of trustee process is sought, that action shall be brought in a court in the judicial district where one of the parties or any person alleged to be trustee lives or has a usual place of business, or in a court the judicial district of which adjoins the judicial district where one of the parties or one of the alleged trustees lives or has a usual place of business; provided, however, that an action may be brought in the municipal court of the city of Boston as provided in section fifty-four of chapter two hundred and eighteen.
Said courts shall have jurisdiction of a transitory action against a defendant who is not an inhabitant of the commonwealth, if personal service or an effectual attachment of property is made within the commonwealth; and such action may be brought in any of said courts in the county where the service or attachment was made.
Chapter 223: Section 20. Process; issuance Section 20. Process in the supreme judicial and superior court shall be signed, and may be issued, by the clerk, shall bear teste of the first justice of the court who is not a party to the action, may be returnable to the same court in any other county, may run, and shall be executed and obeyed, throughout the commonwealth.
Chapter 223: Section 21, 22. Repealed, 1973, 1114, Sec. 87 Chapter 223: Section 23. Repealed, 1975, 377, Sec. 26 Chapter 223: Section 24. Repealed, 1973, 1114, Sec. 87 Chapter 223: Section 25. Repealed, 1975, 377, Sec. 26 Chapter 223: Section 26 to 30. Repealed, 1975, 377, Sec. 26 Chapter 223: Section 2A. Consolidation of pending actions arising out of same accident or transaction Section 2A. Whenever cross actions between the same parties or two or more actions, including for the purposes hereof other court proceedings and actions transferred under section one hundred and two C of chapter two hundred and thirty-one, arising out of or connected with the same accident, event or transaction are pending in more than one division of the same department of the trial court, the administrative justice of such department of the trial court may, upon motion of any party to such action in such court, order the consolidation of such actions for the purpose of trial together in any division of said department of the trial court to be designated in the order. The party making such motion shall give notice thereof to the clerks, clerk magistrates or registers of probate of the divisions in which said actions are pending, to all parties to such actions, and to the administrative justice of the respective department of the trial court. Thereafter, none of said actions shall be placed on any trial list until after the disposition of said motion. This section shall apply only to actions as to which the time limit for removal to the superior court department under section one hundred and four of chapter two hundred and thirty-one has expired.
Chapter 223: Section 2B. Actions arising out of same accident or transaction pending in both superior and district courts; transfer to superior court Section 2B. Whenever cross actions between the same parties or two or more actions, including for the purposes hereof other court proceedings, arising out of or connected with the same accident, event or transaction are pending, one or more in the superior court and also one or more in one or more district courts, the superior court, upon motion of any party to any of such actions, may order that the action or actions pending in the district court or courts, with all the papers relating thereto, be transferred to the superior court without the payment of any entry fee, or, with the consent of all principal parties to all such actions, may order that such actions be transferred without the payment of any entry fee to a designated district court in which any of such actions is pending.
Chapter 223: Section 2C. Actions arising out of same accident or transaction; procedure after transfer Section 2C. Whenever any action or proceeding is transferred to another court under any provision of section two A or section two B, such action or proceeding shall thereafter proceed in the court to which it is thus transferred as though originally entered there.
Chapter 223: Section 3. Transitory actions; enumeration Section 3. Every action for rent, use and occupation or breach of covenant shall be considered a transitory action.
Chapter 223: Section 31. Summons; leaving at last known address, etc. Section 31. In an action brought in the district court, if service is made at the last and usual place of abode, the officer making service shall forthwith mail first class a copy of the summons to such last and usual place of abode. The date of mailing and the address to which the summons was sent shall be set forth as required by section thirty-five in the officer’s return.
Chapter 223: Section 31A. Summons; service upon persons engaged in voting Section 31A. Personal service of a writ or summons upon a defendant while he is exercising his right to vote shall be null and void.
Chapter 223: Section 32. Repealed, 1975, 377, Sec. 28 Chapter 223: Section 33. Repealed, 1973, 1114, Sec. 91 Chapter 223: Section 34. Further notice to absent defendant Section 34. If the defendant is out of the commonwealth, or if his residence is not known to the officer, and no personal service is made on him or on his agent appointed under section five of chapter two hundred and twenty-seven, he shall, in addition to the service herein prescribed, be entitled to further notice of the action as provided in said chapter.
Chapter 223: Section 35. Process; duty of officer to state place of service in return Section 35. When process is served by an officer by leaving copies of the summons, subpoena, or summons and complaint at the last and usual place of abode of any person, the officer serving the same shall state in his return the place as definitely as is practicable, giving, if possible, the street and number, where service was made.
Chapter 223: Section 36. Repealed, 1975, Sec. 377, Sec. 28 Chapter 223: Section 37. Corporations; persons authorized to be served Section 37. In an action against a county, city, town, parish or religious society, or against the proprietors of wharves, general fields or real estate lying in common, who are incorporated, service shall be made upon the treasurer thereof, or if no treasurer is found, upon one of the county commissioners, the city clerk or one of the aldermen, the town clerk or one of the selectmen, upon one of the assessors or standing committee of the parish or religious society, or upon one of the proprietors of such land or other estate, as the case may be. If there are no such officers as are mentioned in this section, service shall be made upon one of the inhabitants of the county, city or town, or upon one of the members of the corporation.
In an action against a domestic corporation other than one mentioned in the preceding paragraph, service shall be made upon the president, treasurer, clerk, resident agent appointed pursuant to section 49 of chapter 156D, cashier, secretary, agent or other officer in charge of its business, or, if no such officer is found within the county, upon any member of the corporation. If an officer authorized to serve legal process makes a return on such process that, after diligent search, he can find no one upon whom he can lawfully make service as aforesaid, the court to which such process is returned may upon application issue an order of notice to such corporation, directing it to appear and answer within a designated period.
Chapter 223: Section 38. Foreign corporations Section 38. In an action against a foreign corporation, except an insurance company, which has a usual place of business in the commonwealth, or with or without such usual place of business, is engaged in or soliciting business in the commonwealth, permanently or temporarily, service may be made in accordance with the preceding section relative to service on domestic corporations in general, instead of upon the state secretary under section 15.
10 of subdivision A of Part 15 of chapter 156D.
Chapter 223: Section 39. Foreign insurance company; manner of service Section 39. In an action against a foreign insurance company transacting business in this commonwealth, service may be made upon an agent of the company, licensed as such in the commonwealth, who, having authority to issue policies and bind risks for the company, has issued the policy the liability on which is sought to be enforced, or an agent who lives or has his usual place of business in the county and has control over or superintendence of subordinate agents of the company, instead of on the commissioner of insurance under clause third of section one hundred and fifty-one of chapter one hundred and seventy-five.
Chapter 223: Section 39A. Service on certain insurance companies severally, or jointly and severally, liable Section 39A. In an action against insurance companies severally liable upon a policy of insurance issued under section one hundred and two A, one hundred and eleven A or one hundred and seventeen A of chapter one hundred and seventy-five, or jointly and severally liable upon a policy of insurance issued under said section one hundred and eleven A, or in a suit against insurance companies brought by a judgment creditor under section one hundred and thirteen of said chapter one hundred and seventy-five and clause ten of section three of chapter two hundred and fourteen under a policy of liability insurance issued under said section one hundred and eleven A, service upon any one of said companies shall be a valid and sufficient service upon all of such companies as are named in the process. Such service, if on a domestic company, shall be made in the manner provided in this chapter and, if on a foreign company, in the manner provided in section thirty-nine of this chapter, or in the third clause of section one hundred and fifty-one and section one hundred and fifty-four of said chapter one hundred and seventy-five.
Chapter 223: Section 39B. Reciprocal or inter-insurance exchange; service on attorney in fact of subscribers Section 39B. In an action against the subscribers of a reciprocal or inter-insurance exchange defined in section ninety-four A of chapter one hundred and seventy-five and authorized to transact business in the commonwealth under said chapter, service may be made upon the attorney in fact of such subscribers, as defined in said section ninety-four A, if a domestic exchange, as so defined, instead of on the commissioner of insurance under clause Third of section one hundred and fifty-one of said chapter one hundred and seventy-five.
Chapter 223: Section 4. Replevin actions Section 4. An action brought pursuant to chapter two hundred and forty-seven shall be brought in the county where the goods or beasts are detained.
Chapter 223: Section 40. Voluntary associations, service on Section 40. In an action against a voluntary association or trust described in section one of chapter one hundred and eighty-two, engaged in business in the commonwealth, service may be made upon any trustee or like officer thereof.
Chapter 223: Section 41. Repealed, 1973, 1114, Sec. 93 Chapter 223: Section 42. Property subject to attachment Section 42. All real and personal property liable to be taken on execution, except such personal property as, from its nature or situation, has been considered as exempt according to the principles of the common law as adopted and practiced in the commonwealth, or which is specifically exempt from execution under section thirty-four of chapter two hundred and thirty-five, and except as provided in the four following sections, may be attached upon a writ of attachment in any action in which the debt or damages are recoverable, and may be held as security to satisfy such judgment as the plaintiff may recover; but no attachment of land shall be made on a writ returnable before a district court unless the debt or damages demanded therein exceed twenty dollars.
Chapter 223: Section 42A. Amount liquidated or ascertainable by calculation; limitation on attachment Section 42A. In an action or suit for an amount which is liquidated or ascertainable by calculation, no attachment by trustee process or otherwise shall be made for a larger sum than the amount of the claim and such additional amount as is reasonably necessary to include interest thereon and costs likely to be taxed in the action.
Chapter 223: Section 43. Cars and vessels; attachment Section 43. Railroad cars and engines and street railway cars, in use and making regular passages on railroads or railways, and steamboats so in use upon water routes, shall not be attached upon mesne process unless the officer who makes the attachment has first demanded of the owners or managers thereof other property, upon which to make it, equal in value to the amount of the attachment, and such owners or managers have refused or neglected to comply with said demand; except that a steamboat so in use may be attached, if the attachment is made more than forty-eight hours before its fixed time of departure. Such attachment shall be void unless the officer certifies in his return that he has made such demand and that the owners or managers have refused or neglected to comply therewith.
Chapter 223: Section 44. Ships or vessels; conditions precedent Section 44. No ship or vessel shall be attached in a civil action unless the plaintiff or a person on his behalf makes affidavit and proves to the satisfaction of a justice of a court that he has a good claim and reasonable expectation of recovering an amount, exclusive of all costs, equal at least to one-third of the amount of damages claimed, which affidavit shall be annexed to the writ of attachment, and the certificate of the justice that he is satisfied that the same is true shall be annexed to the writ of attachment or endorsed thereon.
Chapter 223: Section 44A. Motor vehicles; conditions precedent Section 44A. Motor vehicles registered under the law of this commonwealth and not exempt from execution under clause Sixteenth of section thirty-four of chapter two hundred and thirty-five shall not be attached by writ of attachment in a civil action based upon a contract unless written consent to such attachment is endorsed on the writ and signed by a justice, associate justice or special justice of the court wherein such action is commenced. Costs in any action in which such a motor vehicle has been attached shall be in the discretion of the court.
Chapter 223: Section 45. Property of newspaper offices Section 45. The press, type, stands, cases, paper and other personal property used in printing and publishing newspapers shall not, within forty-eight hours previous to the issue of any edition of a newspaper, be attached upon mesne process unless the officer who makes the attachment has, at least twenty-four hours previously thereto, demanded of the owners or managers thereof other property, upon which to make it, equal in value to the amount of the attachment and such owners and managers have refused or neglected to comply with such demand. Such attachment shall be void unless the officer certifies in his return that he has made such demand, the time when it was made and that it has not been complied with. Such attachment, made after such demand, shall take effect from the time demand was made, so as to take priority of any mortgage, pledge, conveyance or attachment made subsequent to such demand.
Chapter 223: Section 45A. Attaching officer; powers to require security Section 45A. If there is reasonable doubt as to the ownership of personal property or as to its liability to be attached on mesne process, before or after the attachment has been made, the officer may require sufficient security from the plaintiff to indemnify him for attaching or continuing to hold the same. If sufficient security is not furnished within a reasonable time after the officer has made a written demand upon the plaintiff or his attorney, the officer may refuse to attach such property or, if he has attached it, may release it from attachment, without liability to the plaintiff therefor. Any premium paid by the plaintiff to a surety company on a bond given as security under this section may, in the discretion of the court, be taxed as costs if he prevails in the action in which the attachment is made.
Chapter 223: Section 46. Repealed, 1975, 377, Sec. 33 Chapter 223: Section 47. Successive attachments on different writs Section 47. Personal property which has been attached or taken on execution by a constable may be further attached or taken on execution by a deputy sheriff or other competent officer, upon any writ of attachment or execution which such constable is not qualified to serve; and thereupon such constable shall make return upon and deliver his writ or execution, with the possession of the property, to such deputy sheriff or other officer, who shall complete the service thereof. If such writ of attachment has been returned into court, the constable shall file in the case a certificate of the fact of such surrender of possession.
Chapter 223: Section 48. Keeper; appointment; costs Section 48. An officer directed to make an attachment of personal property may, if the writ bears an endorsement signed by a justice, associate justice or special justice of the court in which the action is commenced and stating that, in his opinion, the appointment of a keeper is necessary, appoint a keeper of such property at or after the time of making such attachment. No writ shall be so endorsed unless the plaintiff, in support of his application for said appointment, shall first have filed an affidavit stating the facts which require such appointment. The officer, if necessary, may appoint a keeper of personal property which has been taken on execution. In either of the aforesaid cases he shall, upon the written request of the defendant, remove such property or the keeper without unreasonable delay. Costs in an action in which a keeper has been appointed shall be at the discretion of the court.
Chapter 223: Section 49. Attached personalty; keeping on owner’s premises Section 49. Personal property which has been attached may, subject to the preceding section, be kept on the premises where it is found, unless the owner or occupant of the premises in writing requests the officer to remove his keeper therefrom; and if the defendant in writing requests the officer to allow property which has been attached on the premises of the defendant to remain there until he may give bond to dissolve the attachment, the property shall not be removed until he has had reasonable opportunity to give such bond.
Chapter 223: Section 5. Actions by the commonwealth Section 5. A civil action in which the commonwealth is plaintiff or in which money due to the commonwealth is sought to be recovered may be brought in the county where the defendant lives or has his usual place of business, or in Suffolk county.
Chapter 223: Section 50. Bulky goods Section 50. If an attachment is made of articles of personal property which, by reason of their bulk or for other cause, cannot be immediately removed, a certified copy of the writ of attachment together with a certified copy of the officer’s endorsement on the original writ of attachment of the date or dates of the executing of the writ, may, within three days after the attachment, be deposited in the office of the state secretary where filing would be required to perfect a security interest in such goods under article 9 of chapter 106 as if the debtor were located in the commonwealth under section 9-307 of said chapter 106. If the goods are fixtures, alternatively, the certified copy of the writ of attachment together with a certified copy of the officer’s endorsement on the original writ of attachment of the date or dates of the executing of the writ, may, within 3 days after the attachment, be deposited in the registry to deeds of the real estate registry in which the goods are located. In either case, such attachment shall thereupon be as valid and effectual as if the articles had been retained in the possession and custody of the officer.
Chapter 223: Section 51. Repealed, 2001, 26, Sec. 44 Chapter 223: Section 52. Personalty; attachment of proceeds of sale Section 52. If personal property has been sold or disposed of by consent of the parties, or after an appraisal as hereinafter provided, the proceeds, while remaining in the hands of the officer, shall be liable to be further attached by him as the property of the original defendant, in the manner in which the property itself might have been attached; and shall be held and disposed of in the same manner as if the attachment had been made on the property itself before the sale thereof. The foregoing provision shall not prevent the officer from paying over to the defendant the surplus of the proceeds of such sale, after retaining enough to satisfy all the attachments actually existing at the time of such payment.
Chapter 223: Section 53. Further attachment of replevied property Section 53. Property which has been replevied from an officer who has attached it shall be considered as remaining in his custody and control so as to be liable to further successive attachments, as if it had remained in his possession.
Chapter 223: Section 54. Replevin; liability of plaintiff for value Section 54. If there is judgment for a return of the property so replevied, the plaintiff in replevin and his sureties shall be liable for the whole of the property or the value thereof, although the attachment for which it is finally held was made after the property was replevied.
Chapter 223: Section 55. Death or removal of first attaching officer Section 55. If an officer dies or is removed from office while an attachment which he has made remains in force, the attached property, whether replevied or remaining in possession of the officer or of his executor or administrator, may be further attached by any other officer so as to bind it or its proceeds, as if the later attachment had been made by the first mentioned officer.
Chapter 223: Section 56. Death or removal of first attaching officer; procedure in subsequent attachment Section 56. The officer who makes such later attachment shall not take the property itself, but he shall make proof of service of the writ of attachment to the court in writing, stating by whom the property was previously attached and shall leave a certified copy of the writ of attachment and of the proof of service of that writ of attachment with the former officer, if living, or, if he is dead, with his executor or administrator or whoever then has possession of the property. The attachment shall be considered as made when such copy is delivered in any of the modes provided in this section.
Chapter 223: Section 57. Replevied property; mode of attaching Section 57. Property which has been replevied from an attaching officer shall not be further attached as the property of the original defendant in any manner other than is provided in the four preceding sections and in section forty-seven, so long as it is held by the plaintiff in replevin or by any person holding under him, unless the original defendant has acquired a new title thereto.
Chapter 223: Section 58. Death of attaching officer; continuance of attachment Section 58. Property which has been attached by an officer, whether in his custody at his death or taken from him by replevin or otherwise, and also all claims for damages to property so taken from him, shall remain subject to the attachment as if the officer had lived, and shall not be considered as assets in the hands of his executor or administrator.
Chapter 223: Section 59. Duration of attachment after judgment Section 59. Upon judgment for the plaintiff in a civil action, property which has been attached in connection with said action shall remain subject to attachment for thirty days after the date which appears on the execution issued upon such judgment pursuant to chapter two hundred and thirty-five, unless sooner dissolved.
If property has been attached in Nantucket county and judgment for the plaintiff rendered in another county, or if judgment is rendered in Nantucket county and property has been attached in another county, it shall be held in like manner, subject to the same conditions, for a period of sixty days.
The provisions of this section shall apply to property attached upon a counterclaim when judgment is rendered for the defendant upon such counterclaim.
Chapter 223: Section 6. Counties; actions by or against Section 6. A local or transitory action by a county shall be brought in the county where the defendant lives or in a county adjoining the plaintiff county. If the defendant lives in the plaintiff county, it shall be brought in an adjoining county. Such action against a county shall, at the election of the plaintiff, be brought in the county where he lives, in the defendant county or in an adjoining county.
Chapter 223: Section 60, 61. Repealed, 1973, 1114, Sec. 103 Chapter 223: Section 62. General provisions Section 62. In attaching land, or a right or interest therein, the officer need not enter upon the land or be within view of it. In attaching leasehold estates, the officer shall state in his return in general terms the leasehold property attached. Every writ on which such an attachment of land, or a right or interest therein, is made shall contain or have endorsed upon it the name and last known residence of each defendant.
Chapter 223: Section 63. Copy of writ; deposit in registry of deeds Section 63. No attachment of land or of any leasehold estate shall be valid against a subsequent attaching creditor, or against a subsequent purchaser in good faith and for value, unless the officer deposits a certified copy of the writ of attachment and so much of his return thereon as relates to the attachment of the estate, in the registry of deeds for the county or district where the land lies.
Chapter 223: Section 64. Attaching officer; duty Section 64. The officer who makes such attachment shall deposit such copy in the registry of deeds.
Chapter 223: Section 65. Register; duty; fees Section 65. The register of deeds shall note on such copy the day, hour and minute of its receipt, and shall record it in his office. He shall also enter in the indexes provided for in chapter thirty-six the name or names of each defendant whose land is attached as appears in said copy, the name of the plaintiff, and the court where the writ under which such attachment was made is returnable. The recording fees may be taxed as a part of the plaintiff’s costs.
Chapter 223: Section 66. Attachment; time of taking effect Section 66. If the copy of the writ is deposited, as aforesaid, within three days after the day when the attachment was made the attachment shall take effect from the time it was made, otherwise, from the time when the copy is so deposited; but attachments of land, and of leasehold estates which have an original term of more than seven years, shall in no case be valid against purchasers in good faith and for value, other than parties defendant, before the time when the copy is deposited as aforesaid, and no attachment shall be valid against such purchasers as to any particular parcel of land, or as to any particular leasehold estate as aforesaid, in any case where the name of the owner thereof under which he acquired title thereto as appears on the public records is not included in the writ unless the writ is seasonably amended to include such name and then only from the time when a correspondingly amended copy is deposited as aforesaid.
Chapter 223: Section 67. Fraudulently conveyed realty; general provisions Section 67. If an attachment on mesne process is made of land, or of a right or interest therein, which has been fraudulently conveyed by the debtor to a third person, or which has been purchased by the debtor, or the purchase money of which has been directly or indirectly paid by him, and the title thereto has been retained in the vendor or conveyed to another person, with the intent and for the purpose of fraudulently securing the land from attachment by a creditor of such debtor, or with the intent and for the purpose of delaying, defeating or defrauding creditors, or which is held on a trust for the debtor, express or implied, whereby he is entitled to a present conveyance, or which was acquired by the debtor by a deed describing him as trustee, regardless of the validity of the trust or the legal effect of the designation as trustee, it shall not be valid against a subsequent attaching creditor, or against a subsequent purchaser in good faith and for value, unless the officer in addition to the return required by sections sixty-two and sixty-three also returns a brief description of the land which has been attached, by its locality, situation, boundaries or otherwise as known to him, and the names of the persons in whom the record or legal title stands.
Chapter 223: Section 68. Fraudulently conveyed realty; duty of register Section 68. The register in such case, in addition to the names of the parties to the action which he is required to enter as provided in section sixty-five, shall also enter in his docket of attachments the names of the persons in whom the record or legal title stands, as returned by the officer, in the same manner as if the estate of such persons were attached as defendants in the action.
Chapter 223: Section 69. Papers in actions in federal courts; duties of registers Section 69. Registers of deeds shall perform the same duties relative to the filing and entering of copies of writs and other papers in actions commenced in the courts of the United States which affect the title to land by attachment or otherwise as are required relative to the filing and entering of such papers in such actions commenced in the courts of the commonwealth.
Chapter 223: Section 7. Defective ways, etc.
; negligence actions Section 7. An action against a town or person to recover for injury or damage received by reason of a defect, want of repair or of an insufficient railing in or upon a public way shall be brought in the county where said town is situated or in the county where the plaintiff lives, except that such action against the city of Boston may be brought in Middlesex county, in Norfolk county or in the county where the plaintiff lives, and such action against the town of Nantucket or against any town in Dukes county may be brought in Bristol county. An action against a town or person to recover for injury or damage received in the commonwealth by reason of negligence other than that relating to such defect, want of repair or insufficient railing shall be brought in the county where the plaintiff lives or has his usual place of business, or in the county where the alleged injury or damage was received. This section shall not apply to actions that may be brought in a district court.
Chapter 223: Section 70. Encumbered realty Section 70. An attachment of land which is subject to a mortgage or other encumbrance shall, if the mortgage is redeemed or the encumbrance is removed before the levy of the execution, hold the land discharged of the mortgage or encumbrance, and execution may be levied in the same manner and with the same effect as if it had never existed.
Chapter 223: Section 71. Prohibited Section 71. Shares of stock shall not be attached in a civil action in which only money damages are sought.
Chapter 223: Section 72. Limitations Section 72. If goods are delivered to a carrier or other bailee by the owner or by a person whose act in conveying title to a purchaser in good faith for value would bind the owner and a negotiable document of title is issued for them, they cannot thereafter, while in the possession of such bailee, be attached by trustee process or otherwise, or be levied upon, unless the document be first surrendered to the bailee or its negotiation enjoined. The bailee shall not be compelled to deliver up the actual possession of the goods until the document is surrendered to him or impounded by the court.
Chapter 223: Section 73. Carrier or warehouseman; property in possession Section 73. Except as provided in the preceding section, property in the possession of a carrier or warehouseman may be attached by trustee process or otherwise; but if the bill of lading or receipt, though non-negotiable, has been transferred, and the carrier or warehouseman notified of the transfer, the title of the transferee shall not be defeated by an attachment in a suit against a prior owner of the goods.
Chapter 223: Section 74. Mortgaged or sold under conditional sales contract Section 74. Personal property of a debtor which is subject to a mortgage, pledge or lien, and of which he has the right of redemption, or personal property sold under a contract of conditional sale reserving title in the vendor, may be attached and held as if it were unencumbered, if the attaching creditor pays or tenders to the mortgagee, pledgee, lienor, conditional vendor, or his assigns, the amount for which the property is so liable within ten days after demand as hereinafter provided.
Chapter 223: Section 75. Mortgagee, lienor, or conditional vendor; duty to state account Section 75. Within a reasonable time after such property has been attached, or, in the case of property subject to a recorded mortgage or covered by a financing statement filed pursuant to the provisions of chapter one hundred and six, within a reasonable time after written notice of the attachment, the mortgagee, pledgee, lienor, conditional vendor or secured party, or his assigns, may demand payment of the money for which the property is liable, giving a just and true account of the debt or demand for which the property is liable to him, showing clearly the balance thereof, whether then payable or payable thereafter, and accompanying it by a reference to the record of recording of a mortgage or the record of filing of a financing statement. Such demand shall be served, either in hand or by registered mail with a request for a return receipt, upon the attaching creditor, or his attorney, or the attaching officer. If the balance as stated in the account, whether then payable or not, is not paid, or tendered to the mortgagee, pledgee, lienor, conditional vendor or secured party, or his assigns, within ten days after such service, the attachment shall be dissolved and the attaching creditor shall be liable to him for any damage he has sustained by the attachment, and the property shall be restored to the person entitled thereto.
Chapter 223: Section 76. Excessive demands; penalty Section 76. If the mortgagee, pledgee, lienor or conditional vendor, or his assigns, demands and receives more than the amount due to him, he shall be liable to the attaching creditor for the excess, with interest thereon at the rate of twelve per cent a year.
Chapter 223: Section 77. Proceeds of sale; payment of creditors Section 77. If property which has been attached and redeemed by the attaching creditor, as aforesaid, is sold on mesne process or on execution, the proceeds thereof, after deducting the charges of the sale, shall be first applied to repay to the attaching creditor the amount so paid by him, with interest.
Chapter 223: Section 78. Redemption of mortgage; duty of debtor to repay redemption price Section 78. If the attaching creditor, after having redeemed the property, does not recover judgment, he may nevertheless hold the property until the debtor repays to him the amount or amounts which he paid for the redemption, or as much thereof as the debtor would have been obliged to pay to the mortgagee, pledgee, lienor or conditional vendor, or his assigns, or any of them, if the property had not been attached, with interest from the time when it was demanded of the debtor.
Chapter 223: Section 79. Holder of encumbrance; summoning; examination Section 79. Personal property upon which a mortgage or lien is claimed, or which is claimed to have been sold under a contract of conditional sale reserving title in the vendor, may be attached as if unencumbered; and the mortgagee, pledgee, lienor or conditional vendor, or his assigns, may be summoned in the same action in which the property is attached as the trustee of the mortgagor, pledgor, lienee or conditional vendee, or his assigns, to answer such questions as may be put to him by the court or by its order relative to the consideration of the alleged mortgage, pledge, lien or contract of conditional sale, and the amount due thereon.
Chapter 223: Section 8. Corporations; actions by or against Section 8. Transitory actions, except those mentioned in the preceding section, to which a corporation, other than a county or the city of Boston, is a party, may be brought as follows:(1) If both parties are cities, towns or parishes, in the county where either party is situated.
(2) If both parties are corporations, other than a city, town or parish, in any county in which either corporation has a usual place of business, or in which it held its last annual meeting, or usually holds its meetings.
(3) If one party is a city, town or parish, and the other a corporation named in clause (2), in any county in which either party might sue or be sued.
(4) If one party is a corporation named in clause (1) or (2), and the other an individual, in any county in which the corporation might sue or be sued, or in the county in which the individual lives or has a usual place of business.
Chapter 223: Section 80. Amount due; determination Section 80. If, upon such examination, or, upon the verdict of a jury as provided in section eighty-one, it appears that the mortgage, pledge, lien or contract of conditional sale is valid, the court, having first ascertained the amount justly due upon it, may direct the attaching creditor to pay the same to the mortgagee, pledgee, lienor or conditional vendor, or his assigns, within such time as it orders; and if he does not pay or tender the amount within the time prescribed the attachment shall be void and the property shall be restored.
Chapter 223: Section 81. Validity of mortgage; determination Section 81. If the attaching creditor denies the validity of the mortgage, pledge, lien or contract of conditional sale, and moves that its validity be tried by jury, the court shall order such trial upon an issue which shall be framed under its direction. If, upon such examination or verdict, the mortgage, pledge, lien or contract of conditional sale is adjudged valid, the mortgagee, pledgee, lienor or conditional vendor, or his assigns, shall recover his costs.
Chapter 223: Section 82. Creditor to retain amount paid by him Section 82. When the creditor has paid to the mortgagee, pledgee, lienor or conditional vendor, or his assigns, the amount ordered by the court, he may retain out of the proceeds of the property attached, when sold, the amount so paid with interest, and the balance shall be applied to the payment of his debt.
Chapter 223: Section 83. Creditor; right to hold property until repaid upon failure to recover judgment Section 83. If the attaching creditor, after having paid the amount ordered by the court, does not recover judgment, he may nevertheless hold the property until the debtor has repaid with interest the amount so paid.
Chapter 223: Section 83A. Application of Secs. 74 to 83 Section 83A. Sections seventy-four to eighty-three, inclusive, shall not apply to security interests in personal property which are recordable under section nine—four hundred and one (1)(b) of chapter one hundred and six.
Chapter 223: Section 84. Insufficient service of process; dismissal of action or further service Section 84. If in a civil action the defendant makes a motion to dismiss the action for insufficient service of process, the court may dismiss the action without prejudice or may quash the process and allow the issuance and service of new process in accordance with the applicable rules of court.
Chapter 223: Section 85, 86. Repealed, 1975, 377, Sec. 37 Chapter 223: Section 86A. Equitable attachments; allowance after entry of judgment Section 86A. Upon motion of the plaintiff at any time after entry of a judgment in his favor in the supreme judicial court, superior court, housing court of the city of Boston, western division of the housing court department, the northeastern division of the housing court department, the southeastern division of the housing court depart mentor housing court of the county of Worcester but before the expiration of the time to appeal therefrom or, if an appeal is claimed, during the pendency thereof, such court shall have jurisdiction by appropriate procedure and process to cause to be reached, held and thereafter applied in payment of any such judgment or decree in his favor in such action or suit the same kind of property, right, title or interest, legal or equitable, of a defendant, within or without the commonwealth, which may be reached and applied under clauses (6) and (7) of section three of chapter two hundred and fourteen, and any property, right, title or interest, legal or equitable, real or personal, including any shares or interests in corporations organized under the laws of the commonwealth or of the United States, and located or having a general office in the commonwealth, fraudulently conveyed by the defendant with intent to defeat, delay or defraud his creditors or to defeat or delay the plaintiff in the satisfaction of his claim, or purchased, or directly or indirectly paid for, by him, the record or other title to which is retained in the vendor or is conveyed to a third person with intent to defeat, delay or defraud the creditors of the defendant or to defeat or delay the plaintiff in the satisfaction of his claim; provided, that, in reaching and applying hereunder the interest of a partner in partnership property, the business of the partnership shall not been joined or otherwise interrupted further than to restrain the withdrawal of any portion of the defendant’s share or interest therein until final judgment or decree in such action or suit. If such equitable relief is granted, the defendant may give to the plaintiff a sufficient bond payable to him with sureties approved by the court conditioned to pay him the amount of his judgment within thirty days of the date when execution may issue upon such judgment, and, upon the filing of such bond with the clerk, the court shall proceed no further in the proceedings to reach and apply and any injunction previously issued in the course of such proceedings shall be dissolved.
Chapter 223: Section 87. General provisions Section 87. Personal property which has been attached on one or more writs may, if the debtor and all the attaching creditors consent in writing, subject to sections seventy-four to eighty-three, inclusive, be sold by the attaching officer in the manner provided by law for selling like property on execution; and the proceeds of the sale, after deducting the necessary charges, shall be held by the officer subject to the attachments and be disposed of as the property would have been held and disposed of had it remained unsold.
Chapter 223: Section 88. Perishable property; appraisal and sale Section 88. If an attachment is made of animals or of goods which are liable to perish, waste or greatly decrease in value by keeping, or which cannot be kept without great and disproportionate expense, and the parties do not consent to a sale thereof as before provided, the property so attached shall, subject to sections seventy-four to eighty-three, inclusive, upon the application of either of the parties interested to the attaching officer, be examined, appraised and sold or otherwise disposed of in the manner following.
Chapter 223: Section 89. Perishable property; appraisal and sale; proceedings Section 89. Upon such application, the attaching officer shall give notice to all the other parties or their attorneys, prepare a schedule of the goods and cause three disinterested persons acquainted with the nature and value of such goods to be appointed and sworn before a magistrate or the attaching officer to the faithful performance of their duty as appraisers.
Chapter 223: Section 8A. Reciprocal or inter-insurance exchange; transitory actions by or against subscribers Section 8A. Transitory actions by or against the subscribers to a reciprocal or inter-insurance exchange defined in section ninety-four A of chapter one hundred and seventy-five and authorized to transact business in the commonwealth under said chapter may be brought as provided in clause (2) or clause (4) of section eight, as the case may be, and for such purposes the subscribers shall be deemed a company or association.
Chapter 223: Section 9. Transitory actions by or against city of Boston Section 9. An action by or against the city of Boston, except actions mentioned in section seven and actions by the collector of said city under sections thirty-five and thirty-six of chapter sixty, may be brought in Suffolk, Essex, Middlesex or Norfolk county, or in the county in which the plaintiff lives.
Chapter 223: Section 90. Absent defendant; notice Section 90. If the defendant is not within the commonwealth and has no attorney therein, the notice in writing shall be left at his last and usual place of abode, if any, in the commonwealth; otherwise, it shall be delivered to, or left at the dwelling house or place of business of, the person who had possession of the property at the time of the attachment.
Chapter 223: Section 91. Appraisers; manner of appointment Section 91. One appraiser shall be appointed by the creditor or creditors in the several actions, one by the debtor or debtors, and one by the officer; and if the debtors or creditors, respectively, neglect to appoint such appraiser, or do not agree in the nomination, the officer shall appoint one in their behalf.
Chapter 223: Section 92. Perishable property; sale after appraisal Section 92. The appraisers shall examine the attached property and, if in their opinion it, or a part thereof, is liable to perish or waste or to greatly decrease in value by keeping or cannot be kept without great and disproportionate expense, they shall appraise the value thereof and the property shall thereupon be sold by the officer and the proceeds held and disposed of as provided in section eighty-seven, unless the goods are taken by the debtor as provided in the following section.
Chapter 223: Section 93. Perishable property; delivery to debtor; condition Section 93. The property so appraised shall, if he requires it, be delivered to the debtor upon his depositing with the attaching officer the appraised value thereof in money, or upon giving bond to the officer in a sufficient sum, with two sufficient sureties, conditioned to pay to him the appraised value of the property or to satisfy all such judgments as may be recovered in the actions in which the property was attached, if demanded within the time during which the property would have been held by the respective attachments or within thirty days after the time when the creditors, respectively, would have been entitled to demand payment out of the proceeds of the property if it had been sold as before provided.
Chapter 223: Section 94. Bond; duty to return with writs Section 94. The officer who takes such bond shall return it with the writ on which the first attachment is made in like manner as bail bonds are returned, with a certificate of his doings therein; and if the bond is forfeited, any of the attaching creditors may bring an action thereon.
Chapter 223: Section 95. Action on bond; executions for costs against attaching creditors Section 95. If judgment is rendered for the defendants in an action on such bond, executions for the costs shall be issued against the attaching creditors by whom the action was brought.
Chapter 223: Section 96. Repealed, 1973, 1114, Sec. 111 Chapter 223: Section 97. Action on bond; distribution of money by court Section 97. The court may, upon a hearing, determine the rights of the several attaching creditors and award a separate execution for the amount due or payable to each, to be served and levied to his own use in the manner provided when a judgment is rendered on an administration bond; or it may award one execution for the whole amount due on the bond and cause the money received to be distributed among the creditors according to their respective rights.
Chapter 223: Section 98. Action on bond; protection of prior attachments Section 98. No judgment or execution shall be awarded for the use of a creditor without reserving as much as may be due upon any prior attachment, whether the creditor in such prior action is or is not one of those by whom the action on the bond is brought.
Chapter 223: Section 99. Action on bond; right of creditor not joining Section 99. A creditor who is entitled to the benefit of the bond, and who has not joined in bringing the action thereon may, upon motion at any time before final judgment, intervene in the action upon terms.
Chapter 223A: Section 1. Person defined Section 1. As used in this chapter, “person” includes an individual, his executor, administrator or other personal representative, or a corporation, partnership, association or any other legal or commercial entity, whether or not a citizen or domiciliary of this commonwealth and whether or not organized under the laws of this commonwealth.
Chapter 223A: Section 10. Taking depositions outside commonwealth; issuance of commissions or letters rogatory Section 10. (a) A deposition to obtain testimony or documents or other things in an action pending in this commonwealth may be taken outside this commonwealth:(1) On reasonable notice in writing to all parties, setting forth the time and place for taking the deposition, the name and address of each person to be examined, if known, and if not known, a general description sufficient to identify him or the particular class or group to which he belongs and the name or descriptive title of the person before whom the deposition will be taken. The deposition may be taken before a person authorized to administer oaths in the place in which the deposition is taken by the law thereof or by the law of this commonwealth or the United States.
(2) Before a person commissioned by the court. The person so commissioned shall have the power by virtue of his commission to administer any necessary oath.
(3) Pursuant to a letter rogatory issued by the court. A letter rogatory may be addressed “To the Appropriate Authority in (here name the state or country).
”(4) In any manner before any person, at any time or place, or upon any notice stipulated by the parties. A person designated by the stipulation shall have the power by virtue of his designation to administer any necessary oath.
(b) A commission or a letter rogatory shall be issued after notice and application to the court, and on terms that are just and appropriate. It shall not be requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient, and both a commission and a letter rogatory may be issued in proper cases. Evidence obtained in a foreign country in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within this commonwealth.
Chapter 223A: Section 11. Discovery within commonwealth for proceedings outside commonwealth Section 11. A court of this commonwealth may order a person who is domiciled or is found within this commonwealth to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this commonwealth. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this commonwealth, for taking the testimony or statement or producing the documents or other things. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this commonwealth issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have power to administer any necessary oath.
Chapter 223A: Section 12 to 14. Repealed, 1979, 344, Sec. 6; 1980, 261, Sec. 41 Chapter 223A: Section 2. Domicile, organization or place of business for personal jurisdiction Section 2. A court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, this commonwealth as to any cause of action.
Chapter 223A: Section 3. Transactions or conduct for personal jurisdiction Section 3. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s(a) transacting any business in this commonwealth;(b) contracting to supply services or things in this commonwealth;(c) causing tortious injury by an act or omission in this commonwealth;(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;(e) having an interest in, using or possessing real property in this commonwealth;(f) contracting to insure any person, property or risk located within this commonwealth at the time of contracting;(g) maintaining a domicile in this commonwealth while a party to a personal or marital relationship out of which arises a claim for divorce, alimony, property settlement, parentage of a child, child support or child custody; or the commission of any act giving rise to such a claim; or(h) having been subject to the exercise of personal jurisdiction of a court of the commonwealth which has resulted in an order of alimony, custody, child support or property settlement, notwithstanding the subsequent departure of one of the original parties from the commonwealth, if the action involves modification of such order or orders and the moving party resides in the commonwealth, or if the action involves enforcement of such order notwithstanding the domicile of the moving party.
Chapter 223A: Section 4. Service outside commonwealth Section 4. When the exercise of personal jurisdiction is authorized by this chapter, service may be made outside this commonwealth.
Chapter 223A: Section 5. Forum non conveniens Section 5. When the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.
Chapter 223A: Section 6. Mode of service outside commonwealth; proof of service Section 6. (a) When the law of this commonwealth authorizes service outside this commonwealth, the service, when reasonably calculated to give actual notice, may be made:(1) by personal delivery in the manner prescribed for service within this commonwealth;(2) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction;(3) by any form of mail addressed to the person to be served and requiring a signed receipt;(4) as directed by the foreign authority in response to a letter rogatory; or(5) as directed by the court.
(b) Proof of service outside this commonwealth may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this commonwealth, the order pursuant to which the service is made, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court.
Chapter 223A: Section 7. Individual making service outside commonwealth Section 7. Service outside this commonwealth may be made by an individual permitted to make service of process under the law of this commonwealth or under the law of the place in which the service is made or who is designated by a court of this commonwealth.
Chapter 223A: Section 8. Service outside commonwealth upon designated individuals Section 8. When the law of this commonwealth requires that in order to effect service one or more designated individuals be served, service outside this commonwealth under this chapter shall be made upon the designated individual or individuals.
Chapter 223A: Section 9. Documents issued in proceedings outside commonwealth; service within commonwealth Section 9. (a) A court of this commonwealth may order service upon any person who is domiciled or can be found within this commonwealth of any document issued in connection with a proceeding in a tribunal outside this commonwealth. The order may be made upon application of any interested person or in response to a letter rogatory issued by a tribunal outside this commonwealth and shall direct the manner of service.
(b) Service in connection with a proceeding in a tribunal outside this commonwealth may be made within this commonwealth without an order of court.
(c) Service under this section shall not, of itself, require the recognition or enforcement of an order, judgment or decree rendered outside this commonwealth.
Chapter 224: Section 1. Definitions Section 1. The word “court”, in this chapter, shall include a justice of such court, and a special justice thereof when exercising the functions of a justice.
The words “person”, “defendant”, “party”, and “debtor”, in this chapter shall include a natural person, a corporation, a trust, a society, a partnership, an incorporated and an unincorporated association and any other legal entity.
Chapter 224: Section 12. Support in jail; discharge Section 12. If the defendant or debtor while confined in jail on execution claims support as a poor person, the jailer shall furnish his support at the rate of one dollar and seventy-five cents a week, to be paid by the plaintiff or creditor, who in such case shall, if required by the jailer, either from time to time advance the money necessary for the support of the prisoner or give the jailer satisfactory security therefor. If the plaintiff or creditor neglects to do so for twenty-four hours after demand upon him, his attorney or the committing officer, the jailer shall discharge the prisoner.
Chapter 224: Section 13. Repealed, 1975, 377, Sec. 50 Chapter 224: Section 14. Supplementary process; application; corporations and certain trusts; service; proceedings Section 14. A judgment creditor or a person in his behalf may file in court an application for supplementary process under this chapter. Upon the filing of such an application, a summons may issue, requiring the judgment debtor to appear at a time and place named therein and submit to an examination relative to his or its property and ability to pay. Such summons may be served by an officer qualified to serve civil process and shall be served at least seven days before the return day thereof. If the debtor is a natural person, service shall be made by delivery in hand or by leaving a copy at the debtor’s last and usual place of abode. If the debtor is a corporation, service shall be made by delivery in hand to, or by leaving a copy at a business office of, the president, treasurer, clerk, resident agent appointed pursuant to chapter 5 of chapter 156D, cashier, secretary, agent or other officer in charge of its business, or, if no such officer is found within the county, any member of the corporation. If the debtor is a trust with transferable shares, service shall be made in the same manner on any trustee. If the debtor is a trust with transferable shares, service shall be made in the same manner on any trustee. If due service is not made, the court may order further notice. A judgment debtor who has been arrested on execution, or a person in his behalf, may file such an application and cause service to be made upon the judgment creditor or his attorney of record in the action, in a similar manner, requiring the judgment creditor to appear at such examination; and upon failure of the judgment creditor to appear personally or by attorney the proceedings under this section may be dismissed. The failure of a judgment debtor personally to appear without reasonable excuse upon such summons, or at an examination otherwise appointed, or to submit to the examination as provided in section fifteen, shall constitute a contempt of court; and if the debtor is a corporation or a trust with transferable shares, the court shall treat the officer, trustee or agent served as the contemnor. Supplementary proceedings shall be in order for examination at the return day and hour set forth in the summons or further notice, but may by order of court for good cause shown be continued from time to time for examination, and may be brought up for further proceedings at such time or times, and in such manner as the court by general or special rule or order may direct. The death of the judgment creditor shall not affect supplementary proceedings.
Chapter 224: Section 15. Judgment debtor; examination Section 15. The judgment debtor, if appearing, shall be examined on oath as to his or its property and ability to pay; provided, however, if the debtor is a corporation the person examined shall be its president, treasurer, cashier or other officer or agent in charge of the payment of debts, or if the debtor is a trust with transferable shares the person examined shall be any trustee or agent in charge of payment of debts; and such examination, if in writing, shall be signed and sworn to by the debtor if a natural person, or by the officer, trustee or agent in charge of payment of debts appearing in its behalf, if a corporation or trust with transferable shares, and filed with the court. Either party may introduce additional evidence, and if the debtor fails to appear at the examination and is a natural person, the examination may proceed and orders may be made in such debtor’s absence. The examination may be oral or in writing, in the discretion of the court. The execution, or a certified copy thereof, shall be sufficient proof of the judgment.
Chapter 224: Section 16. Dismissal of proceedings; orders to produce property or make payment; failure to obey orders Section 16. If the court finds that the debtor has no property not exempt from being taken on execution, and is unable to pay the judgment, in full or by partial payments, or if the creditor fails to appear at the examination, personally or by attorney, the proceedings may be dismissed. If after a full hearing at which the creditor shall have the burden of proof the court finds that the debtor has property not exempt under section thirty-four of chapter two hundred and thirty-five from being taken on execution, the court may order him or it to produce it, or so much thereof as may be sufficient to satisfy the judgment with interest as provided for by section eight of said chapter two hundred and thirty-five, and with costs of execution and costs of the proceedings or in aid of judgment or execution so that it may be taken on the execution; or may order the debtor to execute, acknowledge if necessary, and delivery to the judgment creditor, or to a person in his behalf, a transfer, assignment, or conveyance thereof; or if after such hearing the court finds that the debtor is able to pay the judgment in full or by partial payments, the court may order the debtor to pay the judgment, with interest as provided for by said section eight, and with costs of execution and costs of the proceedings or in aid of judgment or execution in full or by partial payments from time to time; or the court may make an order combining any of the orders above mentioned. The debtor, if an individual, may be ordered to make any payment only to the extent that his income exceeds the amount exempted pursuant to either section twenty-eight of chapter two hundred and forty-six, or sections sixteen hundred and seventy-one to sixteen hundred and seventy-seven, inclusive, of title fifteen of the United States Code, whichever amount is greater; but no debtor may be ordered to make any payment from any income derived from assistance or payments granted pursuant to chapters one hundred and fifteen, one hundred and seventeen, one hundred and eighteen, one hundred and fifty-one A or one hundred and fifty-two, or titles thirty-eight or forty-two of the United States Code. The court may prescribe the times, places, amounts of payments, forms of instruments and other details in making any of the orders above mentioned. The court may at any time renew, revise, modify, suspend or revoke any order made in any proceedings under the provisions of this chapter. Failure, without just excuse, to obey any lawful order of the court in supplementary proceedings shall constitute a contempt of court; and if the debtor is a corporation, the court shall treat the president, treasurer, cashier or other officer or agent in charge of the payment of debts as the contemnor; and if the debtor is a trust with transferable shares, the court shall treat any trustee or agent in charge of the payment of debts as the contemnor.
Chapter 224: Section 17. Redemption of property transferred; refusal or acceptance of transfer by creditor Section 17. The debtor may redeem real property within one year, and personal property within sixty days, after the date of any transfer, assignment or conveyance made under the provisions of section sixteen upon payment of the judgment and costs and the necessary expense actually paid by the creditor for the care or custody of such property. If such property is not redeemed it shall be sold forthwith at public auction, unless in the transfer, conveyance or assignment thereof it was otherwise provided, and the proceeds, after deducting the expenses of such care, custody and sale, shall be applied to the payment of said judgment and costs, and the excess, if any, remaining after such payments, shall be paid to the debtor; or the creditor may take said property at a valuation to be fixed by the debtor in the transfer, assignment or conveyance and apply such amount in payment as aforesaid.
The creditor may refuse to accept a transfer, assignment or conveyance, and his refusal thereof shall not impair his right to have his execution satisfied in whole or in part by a levy on other property in the manner provided by law. If, after such transfer, assignment or conveyance has been made and before the sale of the property conveyed thereby, the execution is satisfied in full by levy or otherwise, the court shall order that the creditor reconvey said property to the debtor upon such terms or conditions as it may determine and may enforce such order by process for contempt.
Chapter 224: Section 18. Contempt; procedure; effect; appeal Section 18. The court may issue warrants for arrest and other processes to secure the attendance of debtors or creditors to answer for any contempt under this chapter. The term debtor, as used in this section shall mean, if the debtor is a corporation or a trust with transferable shares, the contemnor as defined in section fourteen or section sixteen. An arrest shall not be made after sunset unless specially authorized in the warrant for cause. Contempt of court under this chapter shall be punished by a fine of not more than twenty dollars or by imprisonment in the common jail for not more than thirty days. A debtor or creditor in custody, charged with contempt, shall be entitled to a speedy hearing therefor, and the officer having him in custody shall remain in attendance until excused by the court. A debtor or creditor in custody, charged with contempt, may be released by the court and the hearing on the alleged contempt may be continued.
A debtor arrested on a capias after court has adjourned may be lodged with the keeper of the lock-up in the city or town in which he is arrested, or lodged with the keeper of the common jail. Said keeper shall receive the debtor from the arresting officer and hold the debtor until the next sitting of the court issuing the capias, at which time the officer shall call for the debtor and take him before the court. The debtor shall be allowed a reasonable time to procure sureties for his recognizance to appear before the court issuing the capias at the next sitting of court. A master in chancery may accept his recognizance to the creditor with surety or sureties in a sum not less than the judgment, conditioned that he will appear before the court at its next sitting and from time to time until the proceedings are concluded. The provision for the arrest of a debtor after court has adjourned shall not apply to female debtors.
A sentence for contempt shall not end the proceedings, nor any order made therein, and future violations of the order upon which the sentence was founded, or any other order, may likewise be dealt with as for contempt. The court shall retain jurisdiction of supplementary proceedings until an order shall be made expressly dismissing them. If the proceedings are dismissed, the creditor shall not, within one year after the date of such dismissal, file a new application against the same debtor upon the same judgment or a judgment including the same cause of action, unless the court otherwise orders. There shall be no appeal from any judgment, order or sentence under the provisions of this chapter, except as provided in section nineteen.
Chapter 224: Section 19. Charges of fraud; procedure; sentence; appeal Section 19. At any time pending the examination of the defendant or debtor, the plaintiff or creditor or a person in his behalf may allege charges, to wit:First, That, since the debt was contracted or the cause of action accrued, the defendant or debtor has fraudulently conveyed, concealed or otherwise disposed of the whole or a part of his or its property, with intent to secure it to his or its own use or to defraud his or its creditors; orSecond, That, since the debt was contracted or the cause of action accrued, the defendant or debtor has hazarded his or its money or other property to the value of one hundred dollars or more in some kind of gaming prohibited by the laws of this commonwealth; orThird, That, if the action was founded on contract, the defendant or debtor contracted the debt with intent not to pay it.
Such charges shall be in writing, subscribed and sworn to by the plaintiff or creditor or by a person in his behalf, and shall be considered in the nature of an action at law, to which the defendant or debtor may plead that he or it is guilty or not guilty, and the court may thereupon hear and determine the same. The plaintiff or creditor shall not upon the hearing give evidence of a charge which is not made or filed as herein provided, nor of a fraudulent act of the defendant or debtor which was committed more than three years before the commencement of the original action.
If the court finds that the defendant or debtor, if a natural person, is guilty of the charges so alleged, he shall be sentenced to imprisonment in the common jail for not more than one year, and if the defendant or debtor is a corporation or trust with transferable shares and found guilty of the charges so alleged, it shall be fined not more than one thousand dollars; and the proceedings for the examination of the defendant or debtor as to his or its property or ability to pay may be continued by the court to enable the defendant or debtor to appear.
[Fourth paragraph applicable as provided by 2004, 252, Sec. 23.
] A party aggrieved by a judgment rendered under this section may appeal therefrom to the superior court. If the plaintiff or creditor appeals, he shall before allowance thereof recognize with sufficient sureties to enter and prosecute his appeal, to file therewith a copy of all the proceedings on said charges, and to pay all costs if judgment is not reversed. If the defendant or debtor appeals, he or it shall recognize in like manner, and with the further condition that if final judgment is against him, if a natural person, he will, within thirty days thereafter, surrender himself to be taken on execution and abide the order of the court, or, if a corporation or trust with transferable shares, it will, within like time, pay the fine previously ordered, or pay to the plaintiff or creditor the amount due him upon the claim or execution as the case may be. In the superior court trial shall be by a jury or, with the consent of both parties, by the court.
Chapter 224: Section 2 to 5. Repealed, 1975, 377, Sec. 46 Chapter 224: Section 20. Transfer of property pending examination; commitment for contempt; exceptions Section 20. If at the examination of the debtor it appears that after service of supplementary process, the debtor has made a payment of money or a conveyance, assignment or transfer of property which is not exempt from being taken on execution, with intent to prevent it from being transferred or paid to the creditor or applied to the satisfaction of the judgment, and the court so certifies, the debtor or, in the case of a corporation or trust with transferable shares, its officer, trustee or agent as provided in section sixteen, may in the discretion of the court be committed as for a contempt. The payment by the debtor of a debt for necessaries, or a debt due on any judgment on which he or it has previously been summoned to appear in supplementary proceedings, or a reasonable fee for counsel relative to the proceedings, shall not render him or it liable for contempt.
Chapter 224: Section 21. Supplementary proceedings; dismissal; discharge of debtor Section 21. Supplementary proceedings shall be dismissed, and if the debtor or, if a corporation or trust with transferable shares, its officer, trustee or agent, has been imprisoned, he or it shall be discharged from custody, on payment in full to the creditor or his attorney of the amount due on the judgment, with all the costs of the proceedings, or, unless the judgment is upon a bond or recognizance given under the provisions of this chapter, on the giving to the creditor or his attorney of a bond, payable to the creditor, with sufficient surety or sureties, approved by the creditor, his attorney or the court, conditioned that the debtor shall pay to the creditor the amount due on the judgment, with all the costs of the proceedings, within sixty days after the date of giving such bond or within such longer time as the court may allow.
Chapter 224: Section 22. Habeas corpus Section 22. The court may issue a writ of habeas corpus to bring before it for examination or disposition or for the purpose of giving bond, a defendant or debtor, or, in the case of a corporation or trust with transferable shares, its officer, trustee or agent who has been imprisoned under the provisions of this chapter.
Chapter 224: Section 23. Process servers Section 23. Constables qualified to serve civil process, as well as sheriffs and their deputies, shall have authority to serve any process under this chapter.
Chapter 224: Section 24. Debtors of commonwealth; discharge Section 24. If a debtor committed to prison on a warrant of distress in favor of the commonwealth is unable to pay the debt for which he is imprisoned, he shall be entitled to discharge in like manner as a debtor before a court on supplementary proceedings; and the laws relative to such proceedings so far as applicable shall apply, except as hereinafter provided.
Chapter 224: Section 25. Debtors of commonwealth; examination Section 25. If he represents to the jailer that he desires to be examined relative to his property and ability to pay, the jailer shall notify the proper court. The court shall thereupon appoint a time and place for the examination of the debtor and notify the district attorney for the district by a notice, which shall be served by giving to him personally, or by leaving at his usual place of abode, thirty days at least before the time appointed for the examination, an attested copy thereof.
Chapter 224: Section 26. Debtors of commonwealth; appointment of special counsel Section 26. If the district attorney does not reside in the town appointed for or is unable to attend the examination, he may appoint counsel in his stead. For such attendance, suitable allowance shall be made by the superior court for the county.
Chapter 224: Section 27. Repealed, 1970, 888, Sec. 26 Chapter 224: Section 28. Persons committed for non-payment of tax; manner of discharge Section 28. A person who has been committed to jail for the non-payment of a tax, if since his commitment he has not had any property, real or personal, with which he could have paid the tax, may be discharged at any time in the manner provided by section one hundred and forty-six of chapter one hundred and twenty-seven, for the discharge of poor prisoners who have been confined for three months for a fine.
Chapter 224: Section 29. Insolvency or bankruptcy; effect Section 29. If a person arrested on execution becomes an insolvent debtor under the laws of this commonwealth or a bankrupt under the laws of the United States, he shall be discharged upon his application to a district court in the county where the arrest was made, after such notice as the court shall order.
Chapter 224: Section 30. Adjournments; attendance of witnesses Section 30. In any proceeding under this chapter the court may adjourn the case from time to time, and shall have the same powers relative to all other incidents thereto as other courts have in civil actions; and witnesses duly summoned shall attend as required in civil cases.
Chapter 224: Section 6. Arrest of debtor on execution; proceedings for examination, commitment or discharge; venue; recognizance; bail; sureties; liability for escape Section 6. All proceedings for the examination, commitment or discharge of a defendant arrested on execution, and all supplementary proceedings under this chapter as to a judgment debtor, shall be had in the district court within whose judicial district the defendant or debtor was arrested or lives or has a usual place of business or employment; or, if the defendant or debtor does not live or have a usual place of business or employment within the commonwealth, such proceedings may also be had in the district court within whose judicial district the record of the original action is kept; provided, however, that every proceeding for the examination, commitment or discharge of a defendant so arrested, and every supplementary proceeding under this chapter as to a judgment debtor, which is incidental to a case or matter in the housing court of the city of Boston, in the western division of the housing court department, the northeastern division of the housing court department, the south eastern division of the housing court depart mentor in the housing court of the county of Worcester, shall be had in said housing courts. When arrested on execution the debtor shall be allowed reasonable time to procure sureties for his recognizance. If not released, he shall be taken before a proper court, as provided in this chapter; or if he wishes to recognize he may be taken at his request before a master in chancery. A master in chancery or the court may accept his recognizance to the plaintiff or creditor with surety or sureties in a sum not less than the amount of the judgment debt, unless the court shall expressly fix a smaller sum, conditioned that he will have a time and place appointed for his examination before some court having jurisdiction, which time shall be within thirty days after the time of his arrest, giving notice of the time and place thereof as provided in this chapter, and appear at the time and place appointed for his examination, and from time to time until the proceedings are concluded, and not depart without leave of the court, making no default at any time fixed for his examination, and abide the final order of the court thereon. If the arrest is made when the court is not sitting and the defendant or debtor does not recognize or give bail, the officer making the arrest may deliver him to the keeper of the jail or lockup, to be detained therein until the next sitting of the court, when he shall be delivered to said officer to be taken before the court. If the defendant, when taken before the court, does not recognize to its satisfaction, the court shall cause a certificate thereof to be entered in the record of the action in which the arrest was made, and the defendant shall be committed to jail until he gives bail or recognizes or until the time appointed for his examination, or, if no such time be appointed, then until the further order of the court, when he shall be delivered by the jailer to the officer who made the arrest, or, in his absence or disability, to any officer, to be by him taken before the court.
No person shall be arrested on execution in a civil action unless the creditor or, in case the creditor is a corporation, an officer thereof, after execution has issued makes application for a certificate authorizing said arrest and files affidavit with and proves to the satisfaction of a district court that he believes and has good reason to believe that the debtor intends to leave the commonwealth so that supplementary proceedings will not be effective against him. If a debtor, after being arrested on execution, gives notice that he desires to take an oath that he does not intend to leave the commonwealth, he shall be examined relative thereto, and either party may introduce additional evidence. If the court is satisfied that the debtor did not when arrested, and does not at the time of examination, intend to leave the commonwealth, it shall make certificate thereof, and discharge the debtor from arrest; and immediately upon such discharge, if the creditor so desires, such debtor shall be required, without further notice, to submit to examination and other supplementary proceedings under this chapter. If the debtor when taken before the court does not recognize to its satisfaction he shall be committed to jail until he recognizes or until the time appointed for his examination, or, if no such time be appointed, then until the further order of the court, when he shall be delivered by the jailer to the officer who made the arrest, or in his absence or disability to any other officer, to be by him taken before the court.
If there is reasonable doubt as to the identity of the defendant or debtor or as to the lawfulness of his arrest, at the time of the arrest or thereafter, in the case of arrest on execution, the officer may require sufficient security from the plaintiff or creditor to indemnify him for arresting the defendant or debtor or for continuing to retain him in custody. If sufficient security is not furnished within a reasonable time after the officer has made a written demand upon the plaintiff or creditor or his attorney for such security, the officer shall not be obliged to arrest the defendant or debtor or, if he then has the defendant or debtor under arrest, he may release him from custody without liability to the plaintiff or creditor therefor. If a prisoner, arrested or committed on execution in a civil action, escapes with the consent or by the negligence of the officer, the creditor may recover in tort against the officer such damages as he has suffered by the escape, and may also have against the original debtor an action on the judgment. No arrest on execution shall be made after sunset unless expressly authorized in the certificate for cause.
Any recognizance authorized by this chapter may be accepted on Sunday.
Chapter 224: Section 7. Surrender of principal on recognizance by surety; new recognizance Section 7. Whoever recognizes as surety for another as provided in this chapter may at any time before breach of the recognizance surrender his principal and exonerate himself from further liability, in the manner provided for surrender by bail, and all proceedings on such surrender shall be the same as provided in the case of bail. If a debtor arrested on execution is surrendered by his surety, he may recognize anew for his appearance at the time, place and upon the conditions expressed in the former recognizance.
Chapter 224: Section 8. Recognizances and bonds; breach; remedies Section 8. If the condition of a recognizance or bond taken under this chapter is broken, the creditor may, within one year after such breach, commence an action thereon; and judgment shall be entered for the amount of the penalty, but execution shall issue for so much thereof only as may be justly and equitably due. Such actions in favor of the commonwealth shall be brought in the court in which the original judgment was rendered.
Chapter 224: Section 9 to 11. Repealed, 1975, 377, Sec. 48 Chapter 227: Section 1. Actions in personam Section 1. A personal action shall not be maintained against a person not an inhabitant of the commonwealth unless he or his agent appointed under section five or five A has been served with process in the commonwealth, or unless service has been made upon him outside the commonwealth, as authorized by chapter two hundred and twenty-three A, or unless an effectual attachment of his property within the commonwealth has been made upon a writ of attachment, and in case of such attachment without such service, the judgment shall be valid only to secure the application of the property so attached to the satisfaction of the judgment.
Chapter 227: Section 10. Repealed, 1975, 377, Sec. 60 Chapter 227: Section 11. Execution levied on land Section 11. If the execution in an action under this chapter, except as otherwise provided, is levied on land, no alienation thereof by the original plaintiff shall prevent the defendant from retaking the same or as much thereof as may be necessary to satisfy the judgment or order he recovers upon a proceeding for relief from judgment commenced within one year after the original judgment.
Chapter 227: Section 12. Judgment in real actions Section 12. If the original judgment was for seisin of the land demanded in a real action, the writ of seisin may be issued in favor of the plaintiff without his giving bond; and if the judgment is reversed in whole or in part upon a review or other proceeding, whether sued out or commenced within the year or afterward, the original defendant may have restitution of the land.
Chapter 227: Section 13. Tort actions Section 13. An action of tort against several defendants, any one of whom is absent from the commonwealth at the time of the service of process, shall be conducted with regard to him relative to the service of process, judgment, review thereof and execution as if he were the sole defendant.
Chapter 227: Section 14. Contract actions Section 14. An action of contract against several defendants, any one of whom is in the commonwealth and any other of whom is absent, in which the plaintiff recovers judgment shall not be subject to the provisions of this chapter relative to review, giving bond and alienation of land; but judgment shall not be rendered against any such absent defendant, unless under such circumstances as would entitle the plaintiff to judgment if the absent party were the sole defendant.
Chapter 227: Section 15. Prosecution against persons served; new action Section 15. An action of contract against several defendants in which legal service is not made upon all, either by attachment or otherwise, by reason of their absence from the commonwealth or for other sufficient cause, may be prosecuted against those who are duly served with process, without further proceedings against the others. If judgment so rendered against one or more of several joint contractors remains unsatisfied, an action on the same contract may be maintained against any of the other joint contractors in like manner as if the contract had been joint and several.
Chapter 227: Section 16. Real actions; absence of one of several defendants Section 16. Real actions against several defendants, any one of whom is absent from the commonwealth, shall be conducted relative to him as if he were the sole defendant.
Chapter 227: Section 17. Mixed actions Section 17. The provisions of this chapter relative to judgment, bond and review in actions of tort shall apply to a mixed action if the defendant or one of several defendants is absent from the commonwealth, but, as to the service of process and notice to the defendant, it shall be conducted as a real action.
Chapter 227: Section 2. Counterclaims Section 2. If an action is brought by a person not an inhabitant of the commonwealth or who cannot be found herein to be served with process, he shall be held to answer to any counterclaim brought against him by the defendant or defendants, if there be more than one, in the former action.
Chapter 227: Section 3, 4. Repealed, 1975, 377, Sec. 56 Chapter 227: Section 5. Agents for service of process; duty to appoint by certain individuals; penalty Section 5. Every individual not an inhabitant of the commonwealth and every partnership composed of persons not such inhabitants, having a usual place of business in the commonwealth, temporarily or permanently, or engaged here, temporarily or permanently, and with or without a usual place of business here, in the construction, erection, alteration or repair of a building, bridge, railroad, railway, or structure of any kind, shall, before doing business in the commonwealth, appoint in writing a person who is a citizen and resident thereof to be his or its true and lawful attorney upon whom all lawful processes against such individual or partnership may be served with like effect as if served on such person or partnership; and said writing or power of attorney shall contain an agreement on the part of the maker that the service of any lawful process on said attorney shall be of the same force and validity as service on such individual or partnership. The power of attorney shall be filed in the office of the state secretary, and copies certified by him shall be taken as sufficient evidence thereof. Such agency shall be continued so long as such individual or partnership does business as aforesaid in commonwealth, and the power of attorney shall not be revoked until a similar power is given to another citizen and resident of the commonwealth and filed as aforesaid. If such individual or partnership fails to appoint an agent and does business in this commonwealth, service of process, in duplicate, may be made upon the state secretary. The secretary shall, upon a payment of a fee of five dollars by the plaintiff, give notice to the defendant of said action by mailing by registered mail, return receipt requested, a copy of the legal process to the defendant’s last known address which shall be furnished to the secretary by the plaintiff or his attorney.
Chapter 227: Section 5A. Appointment of city or town clerk as agent for service of process by certain non-residents; certificate; notice of action; filing Section 5A. Except as provided in section five, every non-resident doing business in the commonwealth shall file a certificate with the clerk of each city or town where he does business, setting forth his full name, address and place of business and the trade name under which he does business, and also a statement whereby he appoints the clerk of each such city or town, or his successor in office, his true and lawful agent upon whom all lawful processes may be served in any action arising out of such business in this commonwealth. If such person fails to appoint an agent and does business in this commonwealth, service of process may be made upon the clerk of any city or town where such business is conducted. When legal process against any such person is served upon such clerk, a copy of such process shall forthwith be sent by registered mail with a return receipt requested by the plaintiff to the defendant at his last known address. The plaintiff’s affidavit of compliance herewith, and the defendant’s return receipt, if received by the plaintiff, or other proof of actual notice shall be filed in the case on or before the date on which the defendant’s answer must be filed, or within such further time as the court may allow.
Chapter 227: Section 6. Attachment of realty; dismissal of action upon failure of notice Section 6. If real property of a non-resident is attached and no personal service is made upon him, the action shall be dismissed unless notice thereof is given, in such manner as the court orders, within one year after the commencement of the action.
Chapter 227: Section 7. Notice Section 7. If a defendant in a civil action is absent from the commonwealth or his residence is unknown to the officer serving the summons and complaint, and no personal service has been made on him or his agent appointed under section five, or if the service of process is defective or insufficient by reason of a mistake of the plaintiff or officer as to where or with whom the summons or copy ought to have been left, the court, upon suggestion thereof by the plaintiff, shall order the action to be continued until notice of the action is given in such manner as it may order. If the property of an absent defendant has been attached and the residence of such defendant is known to the plaintiff and no legal service can be made upon him within the commonwealth, except by publication, the court may order personal service to be made on him in such manner as it may direct and, upon proof that service has been so made, such defendant shall be held to answer to the action. If the defendant does not appear, the court may order the action continued and further notice given to him in such manner as it may direct.
Chapter 227: Section 8. Default Section 8. If, after such notice, the defendant does not appear within twenty-one days after the day specified therefor, a default shall be entered and judgment rendered against him as provided in section one.
Chapter 227: Section 9. Bond Section 9. If judgment in a personal action is rendered under the preceding section upon the default of a defendant who is absent from the commonwealth or whose residence is unknown, the plaintiff shall not take out execution thereon within one year thereafter, unless he files with the clerk of the court a bond payable to the defendant with one or more sureties, approved by the clerk or, upon appeal from his decision as to the sufficiency of the sureties, by a justice of the court rendering the judgment, in a sum equal to double the amount recovered, conditioned to repay the amount so recovered if the judgment is reversed, or so much of the amount as shall be recovered upon a proceeding for relief from judgment brought by the original defendant within one year after the original judgment.
Chapter 228: Section 1. Enumeration Section 1. In addition to the actions which survive by the common law, the following shall survive:—(1) Actions under chapter two hundred and forty-seven;(2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury; (c) for goods taken or carried away or converted; or (d) for damage to real or personal property; and(3) Actions against sheriffs for the misconduct or negligence of themselves or their deputies.
Chapter 228: Section 10. Prosecution by survivor Section 10. If the interest of the deceased party passes to the surviving plaintiffs, or if there is no motion for the admission of an heir or devisee at the sitting when the death of the deceased party is suggested or within such further time as the court allows, the surviving plaintiffs may prosecute the action for so much of the land in question as they may then claim.
Chapter 228: Section 11. Death of defendant Section 11. If the defendant in a real or mixed action dies before final judgment, his heir or devisee of the land demanded may, within such time as the court allows, appear and defend the action, which shall be conducted as if commenced against him. If the heir or devisee does not voluntarily appear, the court before whom the action is pending shall, upon the application of the plaintiff, summon such heir or devisee to appear and defend the action. If any of several defendants in such action dies before final judgment, the action may be prosecuted against the surviving defendants for so much of the land as they hold or claim.
Chapter 228: Section 12. Repealed, 1975, 377, Sec. 67 Chapter 228: Section 13. General provisions Section 13. If, during the pendency of an action or suit, any party becomes insane, it may be prosecuted or defended by his guardian in like manner as if it had been commenced after the appointment of the guardian, or the court may appoint a guardian for the action, as the case may require.
Chapter 228: Section 14. General provisions Section 14. An action on a note, bond, contract or other liability made to or with any public officer or trustee appointed under a statute may, after his removal, resignation or death, be commenced or, if pending, may be prosecuted by his successor, as it might have been by the person with whom the contract was made. Chapter 228: Section 2. Death of party in suit against officer Section 2. An action of replevin or tort by or against an officer for personal property attached by him and claimed or taken by another person shall not be abated by the death of any party, but may be prosecuted by or against his executor or administrator.
Chapter 228: Section 3. Judgment for or against executor or administrator of officer Section 3. If judgment in such case is rendered for the executor or administrator of the officer, the property or money recovered shall be disposed of in the same manner as it ought to have been by the officer if he had recovered the same; but if judgment is rendered against such executor or administrator, the property shall be returned or delivered or the damages recovered shall be paid in full by him, if there is sufficient property therefor, although the estate of the deceased is insolvent.
Chapter 228: Section 4. Death of sole plaintiff or defendant Section 4. In a personal action the cause of which survives, if there is only one plaintiff or one defendant and he dies after the commencement of the action and before final judgment, the action may proceed and be prosecuted by or against his executor or administrator, and if the action, or an appeal therein, has not been entered prior to his death, it may be entered thereafter.
Chapter 228: Section 4A. Substitution of executor or administrator Section 4A. In civil actions which are governed by the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure, in such substitution of the executor or administrator shall be in accordance with said rules.
Chapter 228: Section 5. Prosecution or defense of actions by executor or administrator; citation Section 5. In civil proceedings which are not governed by said Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure the death shall be suggested on the record, and the executor or administrator may, within such time as the court shall allow, appear and prosecute or defend the action, which shall thenceforth be conducted in the same manner as if it had been originally commenced by or against the same executor or administrator. If the executor or administrator does not voluntarily appear, the surviving party may take out a citation from the court requiring the executor or administrator to appear and take upon himself the prosecution or defense of the action.
Such citation shall be returnable at such time as the court may order and shall be served fourteen days at least before the return day; but it shall not issue after the expiration of one year from the time such executor or administrator has given bond unless in accordance with section five A.
Chapter 228: Section 5A. Commencement of action for order to executor or administrator to appear and defend notwithstanding failure to take out citation within time limit of preceding section; further orders for determination on merits Section 5A. The plaintiff in a personal action which is not governed by the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure the cause of which survives and who had a right to take out a citation against the executor or administrator of a sole defendant but who did not do so within the time limited in the preceding section may commence a civil action in the supreme judicial or superior court for an order to such executor or administrator to appear in that action and defend the same. The court shall grant such relief if it finds that justice and equity so require and that the plaintiff is not chargeable with excusable neglect.
To effectuate such order the supreme judicial or superior court may further order that any finding, order, judgment or other act therein entered or done, which otherwise would prevent the prosecution of the cause to determination on its merits, be vacated, and upon the filing therein of a copy of the judgment ordering the vacation thereof such finding, order, judgment or other act shall stand vacated, and it may make further orders, all so that said action may proceed to final determination on its merits as though such executor or administrator had been cited in within the time limited by the preceding section.
Chapter 228: Section 5B. Failure of legal representative to give timely notice of death to plaintiff as ground for relief authorized by Sec. 5A Section 5B. Whenever, upon the trial of a civil action in the supreme judicial or superior court seeking the relief authorized by section five A, it shall be made to appear to the court that the legal representative of the deceased person within nine months of his appointment failed to notify in writing the plaintiff of such death and failed within said nine months duly to suggest such death in such action, such facts may be sufficient ground for granting the relief authorized by said section five A.
Chapter 228: Section 5C. Prior payment or distribution unaffected by relief authorized by Sec. 5A or Rules of Civil Procedure Section 5C. Neither the relief authorized by section five A nor any comparable relief authorized by the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure nor the final determination of the action in which the representative is substituted shall affect any payment or distribution not concerned with said action which was made before application was made for such relief pursuant to said section five A or pursuant to any applicable rule of the Massachusetts Rules of Civil Procedure.
Chapter 228: Section 6. Nonsuit or default Section 6. If the executor or administrator does not appear on the return of the citation or within such further time as the court allows, he shall be nonsuited or defaulted and judgment rendered against him in like manner as if the action had been commenced by or against him in his said capacity, except that he shall not be personally liable for costs; but the estate of the deceased in his hands shall be liable for the costs, as well as for the debt or damages recovered.
Chapter 228: Section 7. Death of joint plaintiff or defendant Section 7. If any of several plaintiffs or defendants in a personal action, the cause of which survives, dies before final judgment, the action may be prosecuted by the surviving plaintiff or against the surviving defendant, as the case may be. If all the plaintiffs or defendants die, the action may be prosecuted or defended by or against the executor or administrator of the last surviving plaintiff or defendant, respectively.
Chapter 228: Section 8. Prosecution by devisee or heir Section 8. If, in a real or mixed action, the plaintiff dies before final judgment, his heir or devisee of the land demanded or of the right of action may, within such time as the court allows, appear and prosecute the action in the same manner as if commenced by him. If the first estate in possession under a devise is not a fee simple, the devisee of the first freehold estate in possession may appear and prosecute, and the judgment, if in his favor, shall be conformed to his title.
Chapter 228: Section 9. Death of one of several plaintiffs Section 9. If any of several plaintiffs in a real or mixed action dies before final judgment, his heir or devisee shall be admitted, upon motion, to prosecute the action with the survivors, in the same manner as if he had been originally a party thereto.
entitled Section 1. If the life of a person is lost by reason of a defect or a want of repair of or a want of a sufficient railing in or upon a way, causeway or bridge, the county, city, town or person by law obliged to repair the same shall, if it or he had previous reasonable notice of the defect or want of repair or want of railing, be liable in damages not exceeding four thousand dollars, to be assessed with reference to the degree of culpability of the defendant and recovered in an action of tort commenced within two years after the injury causing the death by the executor or administrator of the deceased person, to the use of the following persons and in the following shares:(1) If the deceased shall have been survived by a wife or husband and no children or issue surviving, then to the use of such surviving spouse.
(2) If the deceased shall have been survived by a wife or husband and by one child or by the issue of one deceased child, then one half to the use of such surviving spouse and one half to the use of such child or his issue by right of representation.
(3) If the deceased shall have been survived by a wife or husband and by more than one child surviving either in person or by issue, then one third to the use of such surviving spouse and two thirds to the use of such surviving children or their issue by right of representation.
(4) If there is no surviving wife or husband, then to the use of the next of kin.
Section 11. In any civil action in which a verdict is given or a finding made for pecuniary damages for the death, with or without conscious suffering, of any person, whether or not such person was in the employment of the defendant against whom the verdict is rendered or finding made, there shall be added by the clerk of the court to the amount of the damages interest thereon at the same rate of interest per annum as provided in section six B of chapter two hundred and thirty-one, from the date of the commencement of the action, even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.
Section 2. A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent; (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent’s death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant; except that (1) the liability of an employer to a person in his employment shall not be governed by this section, (2) a person operating a railroad shall not be liable for negligence in causing the death of a person while walking or being upon such railroad contrary to law or to the reasonable rules and regulations of the carrier and (3) a person operating a street railway or electric railroad shall not be liable for negligence for causing the death of a person while walking or being upon that part of the street railway or electric railroad not within the limits of a highway. A person shall be liable for the negligence or the willful, wanton or reckless act of his agents or servants while engaged in his business to the same extent and subject to the same limits as he would be liable under this section for his own act. Damages under this section shall be recovered in an action of tort by the executor or administrator of the deceased. An action to recover damages under this section shall be commenced within three years from the date of death, or within three years from the date when the deceased’s executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for a cause of action, or within such time thereafter as is provided by section four, four B, nine or ten of chapter two hundred and sixty.
employer, etc. Section 2B. Except as otherwise provided in chapter one hundred and fifty-two, if, as the result of the negligence of an employer himself, or of a person for whose negligence an employer is liable under section one of chapter one hundred and fifty-three, an employee is instantly killed, or dies without conscious suffering, the surviving wife or husband of the deceased or, if there is no wife or husband surviving, the next of kin, who, at the time of such death, were dependent upon the wages of the deceased for support, shall have a right of action for damages against the employer. This section shall not apply to injuries caused to domestic servants or farm laborers by fellow employees.
Section 5A. The causing of a death under such circumstances as would create liability under section one, two or two B on the part of a person, if alive at the time of such death, shall create a like liability on his part if such death occurs after his own death and such liability may be enforced against the executor or administrator of his estate, subject to all provisions of law otherwise applicable.
Section 6. In any civil action brought under section two or five A, damages may be recovered for conscious suffering resulting from the same injury, but any sum so recovered shall be held and disposed of by the executors or administrators as assets of the estate of the deceased.
etc.
; preferences Section 6A. All sums recovered under section one, two, two B or five A shall, if and to the extent that the assets of the estate of the deceased shall be insufficient to satisfy the same, be subject to the charges of administration and funeral expenses of said estate, to all medical and hospital expenses necessitated by the injury which caused the death, to reasonable attorneys’ fees and reasonable costs and expenses of suit incurred in such recovery.
Section 6B. In the event that any sum recovered under section six comes into the hands of the executor or administrator of the deceased after the expiration of one year after the date of the death of the deceased, such sum shall be treated as new assets of the estate of the deceased within the meaning of section eleven of chapter one hundred and ninety-seven.
Section 6C. Except as otherwise provided in chapter one hundred and fifty-two, if a cause of action exists against an employer under section one of chapter one hundred and fifty-three, or because of the negligence of the employer himself, for an injury resulting in death which is not instantaneous or is preceded by conscious suffering, if there is any person who would have been entitled to bring an action under section two B, the legal representatives of the deceased may, in the action under said section one, recover damages both for the injury and for the death, and, if the employer is also liable at common law, may in a separate count in the same action recover damages for conscious suffering resulting from the same injury.
Section 6D. If an action is brought under section two B, or if the action is brought by the legal representatives under the preceding section or under section one of chapter one hundred and fifty-three, such action shall not fail by reason of the fact that it should have been brought under the other section, but at any time prior to final judgment may be so amended as to provide against such failure.
employee; assessment of damages; amount Section 6E. If under section two B or section six C damages are awarded for death or for injury and death, they shall be assessed with reference to the degree of culpability of the employer or of the person for whose negligence the employer is liable.
The amount of damages which may be awarded in an action brought under section two B shall not be less than two thousand nor more than twenty thousand dollars.
The amount of damages which may be awarded for injury and death in an action brought under section six C shall be apportioned by the jury between the legal representatives of the employee and the persons who would have been entitled under section two B to bring an action for his death.
Section 6F. An action under section two B or section six C shall be subject to all the provisions of section six of chapter one hundred and fifty-three relative to notice to the employer of the time, place and cause of injury, and the time within which the action shall be commenced; provided, however, that the time for bringing an action under either of said sections to recover for the death of an employee who dies within two years after the injury which caused the death shall never be less than one year from the date of death, or such period thereafter as is provided by sections four, four B, nine or ten of chapter two hundred and sixty.
Section 1. An action which would have survived if commenced by or against the original party in his lifetime may be commenced and prosecuted by or against his executor or administrator.
unsatisfied judgment Section 10. Upon the return unsatisfied of an execution upon a judgment rendered in a civil action against an executor or administrator for a debt due from the estate of the deceased, the creditor may, by motion or by action in the court which rendered the original judgment, charge the executor or administrator with waste and seek to hold the executor or administrator personally liable for the amount thereof if it can be ascertained, otherwise for the amount due on the original judgment, with interest from the time when it was rendered, and judgment and execution shall be awarded as for his own debt.
effect on pending action Section 11. If an executor or administrator dies or is removed from office during the pendency of an action to which he is a party, it may be prosecuted by or against the administrator de bonis non in like manner as if commenced by or against him; and the provisions of the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure and of chapter two hundred and twenty-eight relative to the appearance, substitution or citation of an administrator and relative to dismissal, nonsuit or default shall apply to such administrator de bonis non.
Section 12. If an executor or administrator dies or is removed after judgment has been rendered for or against him by the probate court, such court may issue a writ of scire facias in favor of or against the administrator de bonis non; and if an executor or administrator dies or is removed after judgment has been rendered for or against him by the supreme judicial, superior, district or land court, such court may upon motion amend such judgment in favor of or against the administrator de bonis non; and a new execution may be issued upon the scire facias or amended judgment in like manner as may be done in favor of or against an original executor or administrator in case of death of his testator or intestate after a judgment rendered for or against him; except that a judgment against the first executor or administrator for costs for which he was personally liable shall be enforced only against his executor or administrator and not against the administrator de bonis non.
Section 13. If judgment is rendered for or against an executor or administrator, an appeal may be claimed therefrom by or against an administrator de bonis non in like manner as it might have been claimed by or against the executor or administrator who was party to the judgment.
Section 2. If an action of tort is commenced or prosecuted against the executor or administrator of the person originally liable, the plaintiff shall recover only the value of the goods taken, or the damage actually sustained, without vindictive or exemplary damages, or damages for any alleged outrage to the feelings of the injured party.
another Section 3. If the executor or administrator of a trustee, carrier, depositary or other person who claimed only a special property in goods which he held for the use and benefit of another recovers such goods, or damages for the taking or detention thereof, the goods or money recovered shall not be assets in his hands, but shall, after the deduction of the costs and expenses of the action, be delivered or paid to the person for whose use and benefit they were so held or claimed by the deceased.
judgment Section 4. If judgment for a return of property is rendered in a civil action against an executor or administrator, the property returned by him shall not be assets in his hands; and if it has been included in the inventory, he shall be allowed therefor in his account if he shows that it has been returned in pursuance of such judgment.
or creditor Section 5. It shall be unnecessary to remove an executor or administrator in order that an action to enforce a claim in favor of the estate may be brought by an administrator to be appointed in his place, when he refuses to bring such action at the request of an heir, legatee or creditor, or is unable to do so by reason of his interest or otherwise, but an heir, legatee or creditor having an interest in the enforcement of any such claim may bring a civil action to enforce it for the benefit of the estate in like circumstances and in like manner as a person beneficially interested in a trust fund may bring an action to enforce a claim in favor of such fund, and in case of such action in respect to real estate, it shall not be an obstacle to the action that a license to sell it has not been obtained by the executor or administrator.
Section 6. Writs of attachment and executions against executors or administrators for debts due from the testator or intestate shall run only against the goods and estate of the deceased in their hands, and not against their bodies, goods or estate.
Section 7. The real and personal property of a deceased person shall not be attached on mesne process in an action upon a debt due from, or upon a claim against, the deceased, except upon the permission of the probate court for the county where the executor or administrator of the deceased person was appointed. This section shall not apply to actions brought under section twenty-nine of chapter one hundred and ninety-seven.
Section 8. If a judgment for costs is rendered against an executor or administrator in an action commenced by or against him, or in an action commenced by or against the testator or intestate, wherein the executor or administrator has appeared and taken upon himself the prosecution or defence, he shall be personally liable for the costs, and execution shall be awarded against his body, goods and estate, as if it were for his own debt. Costs paid by him shall be allowed in his account unless the probate court determines that the action was prosecuted or defended without reasonable cause.
Section 9. If the judgment is for damages and costs, an execution for the damages shall be awarded against the goods and estate of the deceased in the hands of the executor or administrator, and another execution for costs against the goods, estate and body of the executor or administrator, as if for his own debt.
Division of Personal Actions Chapter 231: Section 1, 1A. Repealed, 1975, 377, Sec. 73 Declarations Chapter 231: Section 10 to 13. Repealed, 1975, 377, Sec. 75 Appeals Chapter 231: Section 100. Repealed, 1931, 426, Sec. 111 Appeals Chapter 231: Section 101. Record on appeal to superior court; transmission Section 101. When an appeal is taken from a judgment of a district court, the clerk shall transmit to the clerk of the superior court the complaint, all papers filed in the case, all bonds, and a brief certificate of the proceedings, which shall be there entered by the appellant.
Appeals Chapter 231: Section 102. Docket entries on taking appeal Section 102. When such appeal is taken, the names of all the parties thereto, the nature of the action or proceeding, the doings of the court thereon, the final disposition thereof and the amount of costs taxed shall be entered on the docket; and no other record thereof shall be required.
Appeals Chapter 231: Section 102A. Repealed, 1943, 296, Sec. 3 Appeals Chapter 231: Section 102B. Repealed, 1958, 369, Sec. 2 Appeals Chapter 231: Section 102C. Transfer of action from superior court; trial; decision; notice; judgment; retransfer; trial Section 102C. The superior court may of its own motion or on the motion of a plaintiff or defendant, after determination by said court that if the plaintiff prevails, there is no reasonable likelihood that recovery will exceed twenty-five thousand dollars, transfer for trial any civil action pending in said court to the court from which such action was previously removed, if any, or if such action was originally entered in the superior court, to any district court, including the municipal court of the city of Boston, in which it could have been brought under the provisions of section two of chapter two hundred and twenty-three.
Clerks of the superior court shall, when a case is so transferred, transmit the order of reference and the original papers in the action, or certified copies thereof, together with a copy of the docket entries, without charge to the clerk of the court to which such action was so transferred.
Such action shall, unless retransferred as hereinafter provided, be pending in the court to which it was transferred and shall be tried by a justice sitting in said court. The parties shall have the benefits of and be subject to the district-municipal courts rules of civil procedure. Such action while pending in said court may be consolidated for trial with cross actions as provided in section two A of chapter two hundred and twenty-three. The justice shall file a written decision or finding with the clerk who shall forthwith notify the parties or counsel of record. Any party to the transferred action aggrieved by the finding or decision may as of right have the case retransferred for determination by the superior court and any party to an action consolidated for trial with the transferred action aggrieved by the finding or decision may as of right have his case transferred for determination by the superior court. The request for retransfer or transfer, as the case may be, shall be filed with the clerk of said district court within ten days after notice of the finding or decision. If either party neglects to appear at the time appointed for such trial, or at any adjournment thereof, without just cause, or if at any such time either party refuses to produce in good faith the testimony relied on by him, the justice may close the trial and order that judgment be entered for the adverse party and file a finding or decision to that effect, and if both so fail to appear he may order that the action be dismissed.
Upon the filing with the clerk of a request for retransfer, the decision or finding shall be forthwith transmitted, with any original papers received from the superior court and any original papers filed in the district court after transfer of the case by the superior court, to the clerk of the superior court of the county from which the case was referred. If a request for transfer is filed in an action consolidated for trial with the action transferred from the superior court, the finding or decision shall be forthwith submitted, with all original papers filed in the district court, to the clerk of the superior court of the county from which the transferred case was referred. The clerk of the superior court shall forthwith notify the parties or counsel of record of the receipt and filing of said finding or decision.
The action shall thereafter be tried in the superior court. The decision, and the amount of the damages assessed, if any, by a district court shall be prima facie evidence upon such matters as are put in issue by the pleadings, and no other findings of such court shall at any time be admissible as evidence or become part of the pleadings. A party shall be held to waive any right to jury trial previously claimed, unless within ten days after the filing of the finding or decision in the superior court he shall file a statement that he insists on a jury trial.
Appeals Chapter 231: Section 103. Waiver of jury trial and right of appeal in cases brought in district court Section 103. If a party elects to bring in any district court any action or other civil proceeding which he might have begun in the superior court, he shall be deemed to have waived a trial by jury and his right of appeal to the superior court, unless within thirty days of commencement of the action or service of a responsive pleading, or within such further time as the court may allow, a plaintiff files a claim to a jury trial in the superior court with the district court and within thirty days after notice of the decision or finding files an entry fee of fifty dollars and bond in accordance with the second paragraph of section one hundred and four; provided, however, that if any claim, counterclaim or cross-claim is asserted against a plaintiff who has elected to bring such action or other civil proceeding in any district court, said plaintiff may of right remove said action or proceeding and claim a jury trial in the same manner and upon the same terms as set forth in said section one hundred and four; and, provided further, that if any compulsory counterclaim is asserted by a defendant, said defendant may of right remove the action and claim a jury trial in the same manner and upon the same terms as are set forth in said section one hundred and four. This section and sections one hundred and four to one hundred and ten, inclusive, shall not apply to actions or counterclaims under the provisions of chapter two hundred and thirty-nine.
Appeals Chapter 231: Section 104. Removal from district court to superior court Section 104. Any other party, a plaintiff against whom a claim, counterclaim, or cross-claim is brought, and a defendant who asserts a compulsory counterclaim, may, provided that the amount of the claim against such other party, the amount of the claim, counterclaim or cross-claim brought against such plaintiff, or the amount of the compulsory counterclaim asserted by such defendant, as the case may be, exceeds twenty-five thousand dollars, file in the district court in which the action is pending a claim of trial by the superior court together with the fee for the entry of the claim of each plaintiff in the superior court, and, except as provided in section one hundred and seven, a bond in the penal sum of one hundred dollars, with such surety or sureties as may be approved by the party or parties not asserting such claim of trial by the superior court or by the clerk or an assistant clerk of said district court, payable to the other party or parties, conditioned to satisfy any judgment for costs which may be entered against him in the superior court in said cause within thirty days after the entry thereof. Such claim of trial by the superior court must be filed no later than twenty-five days after service of the pleading which asserts the claim, counterclaim, or cross-claim on which the right to remove is based, provided, however, that in the case of a compulsory counterclaim, the party asserting such counterclaim must file such claim of trial by the superior court no later than five days after the expiration of the time allowed to assert such counterclaim. The clerk shall forthwith transmit the papers and entry fee to the clerk of the superior court and the same shall proceed as though then originally entered there.
Removal of a case under this section shall remove any default and vacate any judgment entered thereon for failure to plead or otherwise defend in the district court, excepting cases in which the amount of the claim does not exceed twenty-five thousand dollars. Cases in which no claims, counterclaims and cross-claims exceed twenty-five thousand dollars and those in which rights of parties to remove for trial in the superior court as provided herein and in section one hundred and three are not properly exercised shall be tried in the district court. A party who would have been entitled to remove the case for trial in the superior court as hereinabove provided but for the fact that the amount of the claim, counterclaim, or cross-claim, as the case may be, does not exceed twenty-five thousand dollars shall, if he desires trial by the superior court, file an entry fee of fifty dollars and bond within thirty days after notice of the decision or finding. Such filing shall have the same effect as a request for retransfer under section one hundred and two C, and the decision shall be transmitted to and the case tried in the superior court subject to the provisions of said section one hundred and two C applicable to retransferred cases.
Appeals Chapter 231: Section 104A. Multiple judgments specification for removal to superior court Section 104A. In any action brought by or against two or more persons in which separate judgments are authorized by the District-Municipal Courts Rules of Civil Procedure, the party seeking removal may specify in his claim of trial by the superior court the parties as to whom such trial is claimed, in which case the cause shall be removed as to such parties only as are specified in such claim, and said district court shall retain jurisdiction as to the remainder. In such case the clerk shall transmit attested copies of the papers in the cause to the clerk of the superior court, in lieu of the originals.
Appeals Chapter 231: Section 105. Repealed, 1956, 302, Sec. 2 Appeals Chapter 231: Section 106. Deposit in lieu of removal bond Section 106. Any party, in lieu of filing the bond required in section one hundred and four, may deposit with the clerk the sum of one hundred dollars. A certificate of such deposit shall be issued to the depositor by the clerk, and the deposit shall be transmitted by him, with the papers, to the clerk of the superior court, who shall receipt therefor and hold said deposit until the final disposition of the case, when he shall apply the same to the satisfaction of any costs awarded against the depositor, and pay the balance, if any, to the depositor or his legal representatives.
Appeals Chapter 231: Section 107. Circumstances making removal bond unnecessary Section 107. No bond or deposit under section one hundred and four or one hundred and six shall be required of the commonwealth or any officer or employee thereof represented by the attorney general, or of a county, city, town or other municipal corporation, or of a board, officer or employee thereof represented by the city solicitor, town counsel or other officer having similar duties, or of a political subdivision, or of a party who has given bond according to law to dissolve an attachment or of a defendant in an action of tort arising out of the ownership, operation, maintenance, control or use of a motor vehicle or trailer as defined in section one of chapter ninety if the payment of any judgment for costs which may be entered against him is secured, in whole or in part, by a motor vehicle liability bond or policy or a deposit as provided in section thirty-four D of chapter ninety; and the court may in any case, for cause shown, after notice to adverse parties, order that no bond be given. Said district court may, upon cause shown and after notice to all adverse parties, permit such removal to the superior court, upon the terms above specified, at any time prior to final judgment.
Appeals Chapter 231: Section 108. Appellate divisions of district courts; assignment and compensation of justices; procedure [Text of section applicable as provided by 2004, 252, Sec. 23.
] Section 108. There shall be an appellate division of each district court for the rehearing of matters of law arising in civil cases, in claims of compensation of victims of violent crimes, and in civil motor vehicle infractions. The division of the Boston municipal court shall consist of 3 justices to be designated from time to time by the chief justice therefor. The appellate division of each other municipal court shall be holden by justices for the other divisions of the Boston municipal court department, included in the jurisdiction of the central division, East Boston court, Charlestown court, Brighton court, Dorchester court, Roxbury court, South Boston court, West Roxbury court, which shall be known as the appellate division of the Boston municipal court department. The appellate division of each other district court shall be holden by justices for those other district courts, not exceeding 3 in number out of 5 justices assigned to the performance of appellate duty by the chief justice for the district courts, subject to the approval of the chief justice of the supreme judicial court, as follows: The chief justice for the district courts shall assign 5 justices of districts within the counties of Essex and Middlesex and that part of Suffolk included in the jurisdiction of the district court of Chelsea to act in the appellate divisions of the district courts within those counties and that part of Suffolk county, which shall be known as the northern appellate division district; shall assign 5 justices of the district courts within the counties of Norfolk, Plymouth, Barnstable, Bristol, Dukes and Nantucket to act in the appellate divisions of the district courts within those counties, which shall be known as the southern appellate division district; and shall assign 5 justices of district courts within the counties of Worcester, Franklin, Hampshire, Hampden and Berkshire to act in the appellate divisions of district courts within those counties, which shall be known as the western appellate division district. The assignment may be made for the period of time as the chief justice considers advisable. In each of the foregoing 3 districts, 1 of the justices so assigned shall be designated by the chief justice for the district courts, subject to the approval of the chief justice of the supreme judicial court, as presiding justice, who shall from time to time designate those of the appellate justices who shall act on appeals in each district court in that district and direct the times and places of sittings. The presiding justice of any appellate division may call upon a justice of any other appellate division to serve in his division, and when so requested that justice shall serve therein. Two justices shall constitute a quorum to decide all matters in an appellate division; but each appellate division justice may sit as a single justice of the appellate division for the purpose of hearing and deciding appeals of interlocutory orders, as provided in section 118A of chapter 231.
A justice acting in the appellate division of a district court shall be allowed, in addition to his salary and necessary traveling expenses, incidental expenses and clerical assistance while so acting, which shall be paid by the commonwealth.
Any party to a cause brought in the municipal court of the city of Boston, or in any district court, aggrieved by any ruling on a matter of law by a trial court justice, may as of right, appeal the ruling for determination by the appellate division pursuant to the applicable rules of court. The justice whose ruling is appealed shall not sit upon the review thereof. If the appellate division shall decide that there has been prejudicial error in the ruling complained of, it may reverse, vacate or modify the same or order a new trial in whole or part; otherwise it shall dismiss appeal and may impose double costs in the action if it finds the objection to such ruling to be frivolous or intended for delay. If the party claiming the appeal shall not duly prosecute the same, by preparing the necessary papers or otherwise, the appellate division may order the cause to proceed as though no appeal had been filed and may in like manner impose costs. A trial court justice may, after decision thereon, report for determination by the appellate division any case in which there is an agreed statement of facts or a finding of the facts or any other case involving questions of law only. If a trial justice is of opinion that an interlocutory finding or order made by him ought to be reviewed by the appellate division before any further proceedings in the trial court, he may report the case for that purpose and stay all further proceedings except as necessary to preserve the rights of the parties. The municipal court of the city of Boston shall make rules regulating the procedure and sittings of the appellate division of the court, for appeal thereto, for the preparation and submission of reports and allowance of reports which a trial court justice shall disallow as not conformable to the facts or shall fail to allow by reason of physical or mental disability, death or resignation, for the reporting of cases reserved for report when a trial court justice shall fail to report the same by reason of physical or mental disability, death, resignation, removal or retirement, and for the granting of new trials.
Appeals Chapter 231: Section 109. Appeal to appeals court from appellate division Section 109. An appeal to the appeals court shall lie from the final decision of the appellate division of any division of the district court department including appeals taken hereunder from the appellate division of the Boston municipal court department. Claims of appeal shall be filed in the office of the clerk of the district court within thirty days after notice of the decision of the appellate division. The appeal shall not remove the cause, but only the question or questions to be determined. The completion of such appeal shall be in accordance with the Massachusetts Rules of Appellate Procedure. The expense of the preparation of the necessary papers and copies of papers and their transmission, and the entry fee in the appeals court, shall be taxed in the bill of costs of the prevailing party, if he has paid it.
Appeals Chapter 231: Section 110. Powers of appellate division Section 110. The appellate division of each district court shall have the powers of amendment of the trial court; shall have discretionary power to take further testimony and to render a decision based on such testimony; to decide issues of fact dependent upon issues of law or to direct a trial of such fact issues by a justice of the district court; to draw inferences from cases stated by agreement of the parties; and to render decision according to the justice of the case.
No new trial shall be granted in any civil action or proceeding in any district court on the ground of improper admission or rejection of evidence, or for any error as to any matter of pleading or procedure if the appellate division deems that the error complained of has not injuriously affected the substantial rights of the parties; and, if it appears to the appellate division that said error affects part only of the matter in controversy or some or only one of the parties, the court may direct final judgment as to part thereof, or some or one only of the parties, and may direct a new trial as to the other part only or as to the other parties.
Appeals Chapter 231: Section 110A to 110C. Repealed, 1931, 426, Sec. 119 Report Chapter 231: Section 111. Report by single justice Section 111. A justice of the superior or land court or the judge of the housing court of the city of Boston, the western division of the housing court department, the northeastern division of the housing court department, the southeastern division of the housing court depart mentor the housing court of the county of Worcester, after verdict or after a finding of the facts by the court, may report the case for determination by the appeals court.
If a justice of the superior court is of the opinion that an interlocutory finding or order made by him so affects the merits of the controversy that the matter ought to be determined by the appeals court before any further proceedings in the trial court, he may report such matter to the appeals court, and may stay all further proceedings except such as are necessary to preserve the rights of the parties.
A justice of the superior court may, upon request of the parties, in any case where there is agreement as to all the material facts, report the case to the appeals court for determination without making any decision thereon.
Report Chapter 231: Section 112. Report by single justice of supreme judicial court Section 112. A justice of the supreme judicial court, after a finding of facts by the court may report a case for determination by the full court or the appeals court.
If a justice of the supreme judicial court is of the opinion that an interlocutory finding or order made by him so affects the merits of the controversy that the matter ought to be determined by the full court or the appeals court before any further proceedings in the trial court, he may report such matter to either court, and may stay all further proceedings except such as are necessary to preserve the rights of the parties.
A justice of the supreme judicial court may, upon request of the parties, in any case where there is agreement as to all material facts, report the case to the full court or the appeals court without making any decision thereon.
Report Chapter 231: Section 112A. Appellate proceedings upon report; application of Rules of Appellate Procedure Section 112A. Proceedings before the appeals court or the full court of the supreme judicial court upon a report pursuant to the two preceding sections shall be governed by the Massachusetts Rules of Appellate Procedure. The report shall constitute a notice of appeal within the meaning of said rules, and the entry of such report shall constitute the filing of a notice of appeal for purposes of computing time thereunder. The party aggrieved by an interlocutory finding or order shall be treated as the appellant; the plaintiff shall be treated as the appellant whenever the whole case is reported.
Report Chapter 231: Section 112B. Objections to rulings or orders Section 112B. In civil actions, formal exceptions to rulings or orders of any court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him.
Exceptions Chapter 231: Section 113. Appeal from final judgment of superior court, land court and housing courts Section 113. A party aggrieved by a final judgment of the superior court, the land court, the housing court of the city of Boston, the western division of the housing court department, the northeastern division of the housing court department, the southeastern division of the housing court depart mentor the housing court of the county of Worcester, may appeal therefrom to the appeals court or, subject to the provisions of section ten of chapter two hundred and eleven A, to the full court of the supreme judicial court.
Exceptions Chapter 231: Section 114. Appeal from final judgment of single justice of supreme judicial court Section 114. A party aggrieved by a final judgment of a single justice of the supreme judicial court may appeal therefrom to the full court of the supreme judicial court.
Exceptions Chapter 231: Section 115. Disposition of judgment on appeal; stay of execution Section 115. Upon an appeal the appeals court or the supreme judicial court shall affirm, reverse, or modify the judgment appealed from. Upon reversal of a final judgment either court may remand a cause to the trial court which entered the judgment appealed from with necessary and proper directions for further proceedings, or may render such judgment as the court below should have rendered.
No execution shall issue during the pendency of an appeal. In the event that execution has issued before the filing of a notice of appeal, upon the filing of such notice the clerk shall notify the officer holding the execution, and all further proceedings thereon shall be stayed. Nothing in this section shall be construed to impair the authority of a justice of either court to order a stay of execution upon such terms as are just.
Exceptions Chapter 231: Section 116. Protective orders pending appeal Section 116. Upon an appeal from a final judgment, the justice of the court by whom it was made may make such orders staying the enforcement of the judgment in an action for an injunction or appointment of a receiver as are needful for the protection of the rights of the parties, until the appeal shall be heard by the appellate court. Such order may be modified or vacated by the order of the appellate court, upon motion, after the appeal is taken.
Exceptions Chapter 231: Section 117. Temporary appellate relief from final judgments pending appeal Section 117. After an appeal has been taken from a final judgment of the superior court, the land court, the housing court of the city of Boston, the western division of the housing court department, the northeastern division of the housing court department, the southeastern division of the housing court department or the housing court of the county of Worcester, the appellate court may, by an order, on terms or otherwise, suspend the execution or operation of the final judgment appealed from, pending the appeal, and may modify or annul any order made for the protection of the rights of the parties, pending the appeal; but, until such order has been modified or annulled, the justice of the superior court by whom the final judgment appealed from was made, or any other justice of said court, or the justice of the land court, the judge of the housing court of the city of Boston, the western division of the housing court department, the northeastern division of the housing court department, the southeastern division of the housing court department, or the housing court of the county of Worcester, by whom the judgment appealed from was made, may make any proper interlocutory orders, pending such appeal, including orders for the appointment of receivers, of injunction, of prohibition, and orders for continuing in force such orders previously made, or for modifying or dissolving them. The justice or judge who makes any such interlocutory orders may enforce them by appropriate proceedings, pending the appeal.
Exceptions Chapter 231: Section 118. Temporary appellate relief from interlocutory orders; appeals to appeals court or supreme judicial court Section 118. A party aggrieved by an interlocutory order of a trial court justice in the superior court department, the housing court department, the land court department or the probate and family court department may file, within thirty days of the entry of such order, a petition in the appropriate appellate court seeking relief from such order. A single justice of the appellate court may, in his discretion, grant the same relief as an appellate court is authorized to grant pending an appeal under section one hundred and seventeen. If the petition is filed with respect to a discovery order and is denied, the single justice may, after such hearing as the single justice in his discretion deems appropriate, require the petitioning party or the attorney advising the petition or both of them to pay to the party who opposed the petition the reasonable expenses incurred in opposing the petition, including attorney’s fees, unless the court finds that the filing of the petition was substantially justified or that other circumstances make an award of expenses unjust.
A party aggrieved by an interlocutory order of a trial court justice in the superior court department, the housing court department, the land court department or the probate and family court department, granting, continuing, modifying, refusing or dissolving a preliminary injunction, or refusing to dissolve a preliminary injunction, or a party aggrieved by an interlocutory order of a single justice of the appellate court granting a petition for relief from such an order, may appeal therefrom to the appeals court or, subject to the provisions of section ten of chapter two hundred and eleven A, to the supreme judicial court, which shall affirm, modify, vacate, set aside, reverse the order or remand the cause and direct the entry of such appropriate order as may be just under the circumstances. An appeal under this paragraph shall be taken within thirty days of the date of the entry of the interlocutory order and in accordance with the Massachusetts rules of appellate procedure. Pursuant to action taken by the appellate court the cause shall be remanded to the trial court for further proceedings.
The filing of a petition hereunder shall not suspend the execution of the order which is the subject of the petition, except as otherwise ordered by a single justice of the appellate court.
Exceptions Chapter 231: Section 118A. Appeal from interlocutory order for equitable relief [Text of section applicable as provided by 2004, 252, Sec. 23.
] Section 118A. A party aggrieved by an interlocutory order of a trial court justice in the district court department or the Boston municipal court department issued pursuant to section 19C of chapter 218 in response to a request for equitable relief may file within 10 days of the entry of the order, a petition in the appropriate appellate division seeking relief from the order. A single justice of the appellate division may affirm, modify, vacate, set aside, reverse the order or remand the cause and direct the entry of such appropriate order as may be just under the circumstances. A party aggrieved by an interlocutory order of a single justice of an appellate division granting a petition for relief from the order, may appeal therefrom to the appeals court or, subject to section 10 of chapter 211A, to the supreme judicial court, which shall affirm, modify, vacate, set aside, reverse the order or remand the cause and direct the entry of the appropriate order as may be just under the circumstances.
The filing of a petition hereunder shall not suspend the execution of the order which is the subject of the petition, except as otherwise ordered by a single justice of the appellate division.
Exceptions Chapter 231: Section 119. Harmless error; disposition of judgment on appeal Section 119. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or anything done or omitted by the trial court or by any of the parties is ground for modifying or otherwise disturbing a judgment or order unless the appeals court or the supreme judicial court deems that the error complained of has injuriously affected the substantial rights of the parties. If either court finds that the error complained of affects only one or some of the issues or parties involved it may affirm the judgment as to those issues or parties unaffected and may modify or reverse the judgment as to those affected.
Exceptions Chapter 231: Section 120, 121. Repealed, 1973, 1114, Sec. 203 Power of Full Court on Exceptions, Appeal or Report Chapter 231: Section 122, 123. Repealed, 1973, 1114, Sec. 203 Power of Full Court on Exceptions, Appeal or Report Chapter 231: Section 124. Determination of questions of law by full court on appeal Section 124. Whenever a question in dispute at the trial of an issue of fact in any civil action depends upon the decision of a question of law, the appeals court or the full bench of the supreme judicial court, upon appeal may, if satisfied that it has before it all the facts necessary for determining the question in dispute, direct that judgment be entered or that such other action be taken as shall accord with the determination of such court; or if either court shall be of the opinion that it has not before it sufficient facts to determine said question, it may direct such issues or questions as it shall think proper to be tried before a jury if the case be a jury case, or otherwise before a judge, and may direct in the alternative the action to be taken upon the verdict or finding. When any such question of law shall arise in a trial, the judge shall, by leaving appropriate questions to the jury, or by his own findings where the trial is without a jury ascertain so far as is practicable all the facts both as to liability and damages necessary on any theory of the law to enable an appellate court to make the proper final disposition of the case, unless in the opinion of the court such a course is inexpedient under the circumstances of the case.
Power of Full Court on Exceptions, Appeal or Report Chapter 231: Section 125. Appellate court’s powers of amendment; additional testimony Section 125. Upon appeal in a civil action the appeals court and supreme judicial court shall have all the powers of amendment of the court below; and whenever objections have been taken to the exclusion of evidence, or where the alleged error arises from the omission at the trial of some fact which, under the circumstances of the case, may subsequently be proved without involving any question for a jury, and without substantial injustice to either party the appellate courts shall have full discretionary authority to cause such further testimony to be taken as it deems necessary, either by oral examination in court, by reference, by affidavit or by deposition, and both courts shall have power to render any judgment and to make any order that ought to have been made upon the whole case.
Power of Full Court on Exceptions, Appeal or Report Chapter 231: Section 125A. Further report of material facts in equity and probate appeals Section 125A. Upon appeal in any case, in equity or probate, where the evidence is not reported, the full court, if of opinion that a report of material facts required by or made under section fifteen A of chapter one hundred and eighty-five, section twenty-three of chapter two hundred and fourteen, or section eleven of chapter two hundred and fifteen, is not sufficient to enable the court properly to adjudicate the subject matter involved, may in its discretion, by order transmitted to the trial court, direct the justice, or judge, to make such further report of facts as the full court shall deem necessary. Upon compliance with such direction, seven typewritten copies of such further report shall be filed by the clerk or register with the clerk of the supreme judicial court for the commonwealth for the use of the full court.
Power of Full Court on Exceptions, Appeal or Report Chapter 231: Section 126. Repealed, 1973, 1114, Sec. 205 New Trials Chapter 231: Section 127. Repealed, 1975, 377, Sec. 109 New Trials Chapter 231: Section 128, 129. Repealed, 1973, 1114, Sec. 205 New Trials Chapter 231: Section 130. Costs on refusal of new trial Section 130. If a new trial is refused, the court may impose terms upon the moving party, to be taxed as costs.
New Trials Chapter 231: Section 131. Repealed, 1973, 1114, Sec. 205 Effect of Error not Affecting Whole Case Chapter 231: Section 132. Error not affecting substantial rights; partial new trial Section 132. No new trial shall be granted in any civil action or proceeding on the ground of improper admission or rejection of evidence, or for any error as to any matter of pleading or procedure, if the judge who presided at the trial when application is made by motion for a new trial, or the appeals court or the supreme judicial court when application is made by appeal or otherwise, deems that the error complained of has not injuriously affected the substantial rights of the parties; and, if it appears to such court that said error affects part only of the matter in controversy or some or one only of the parties, the court may direct final judgment as to part thereof, or some or one only of the parties, and may direct a new trial as to the other part only or as to the other parties.
Effect of Error not Affecting Whole Case Chapter 231: Section 133. Repealed, 1973, 1114, Sec. 205 Waiver of Appeal or Exceptions Chapter 231: Section 134. Repealed, 1973, 1114, Sec. 205 Transmission of Papers Chapter 231: Section 135. Repealed, 1973, 1114, Sec. 205 Arrest of Judgment Chapter 231: Section 136. Repealed, 1973, 1114, Sec. 205 Chapter 231: Section 137. Repealed, 1973, 1114, Sec. 205 Chapter 231: Section 138. Amendment of pleadings; notice and hearing requisite to bind certain persons; appeal Section 138. No subsequent attaching creditor or purchaser of property attached, other than parties to the record, shall be bound by an amendment of the pleadings which substantially affects his rights unless he has had due notice of the motion for leave to amend and unless he has had an opportunity to be heard thereon. Such persons shall also have the right of appeal.
Chapter 231: Section 139. Representation of corporate party by officer or agent Section 139. If a corporation is a party to an action or proceeding referred to in this chapter, all motions, pleadings, or other papers requiring the signature or oath of the party may be signed or sworn to in behalf of the corporation by an officer or agent thereunto specially authorized.
Declarations Chapter 231: Section 13A. Invalidity of stipulation waiving service of process or authorizing confession of judgment; vacation of judgment Section 13A. Any judgment entered in an action upon a contract, promissory note or other instrument in which or in a memorandum or writing relating to which is contained a stipulation, whereby the defendant in such action waived or agreed to waive or authorized another person to waive or agree to waive the issue or service of process in such an action shall be set aside or vacated on motion of the defendant, unless it appears that service in the usual manner was had upon him or that the plaintiff sent to him by registered mail at least seven days before the entry of such action a notice of his intention to enter the same on said day and at the time of entry filed an affidavit of giving notice as aforesaid, which affidavit shall be prima facie evidence of the giving thereof. Any stipulation in a contract, promissory note or other instrument, or in any memorandum or writing relating thereto, whereby a party thereto agrees to confess judgment in any action which may be brought thereon or authorizes or agrees to authorize another person to confess judgment as aforesaid shall be void and any judgment by confession taken in pursuance of such a stipulation shall be set aside or vacated on motion of the defendant. When a judgment is set aside or vacated under the authority of this section, all outstanding executions issued thereon shall be stayed or superseded without security.
Declarations Chapter 231: Section 13B. Ad damnum or monetary amount claimed Section 13B. No complaint in any civil action shall contain an ad damnum or monetary amount claimed against any defendant, unless such ad damnum or monetary amount claimed indicates damages which are liquidated or ascertainable by calculation and a statement under oath by a person having knowledge thereof is attached to such complaint setting forth the manner in which the amount of said damages was calculated. For the purposes of this section complaint shall include a claim, crossclaim or counterclaim.
Declarations Chapter 231: Section 14. Repealed, 1975, 377, Sec. 75 Chapter 231: Section 140. Repealed, 1975, 377, Sec. 110 Chapter 231: Section 140A. Conclusiveness of consent judgment in automobile case Section 140A. In an action to recover damages for injuries to person or property, or for death, or consequential damages, so called, sustained by reason of a motor vehicle accident, a judgment entered by agreement of the parties, without a hearing on the merits, shall not operate as a bar to an action brought by a defendant in the action in which such judgment was entered, unless such agreement was signed by the defendant in person.
Chapter 231: Section 140B. Advance payments or settlements of claims by insurers; effect upon liability; admissibility as evidence; credit upon judgment; notice of limitations to claimant by insurer; accrual of cause of action Section 140B. Any person against whom a claim or suit for damages on account of bodily injury, property damage, or death is made, or if such person is insured against loss by reason of his liability to pay such damages the insurer of such person may advance money to, or pay bills incurred by or on behalf of, such claimant, or plaintiff, as the case may be, without affecting the question of liability for such damages, and evidence of such payments shall not be admissible at the trial of such suit on the issue of liability or to mitigate damages; but if, in such case, there shall be a judgment in favor of the plaintiff for money damages, the presiding judge of the court in which the judgment is entered shall, upon motion of the defendant, credit upon such judgment the amount of such payments.
Any such insurer who makes an advance payment under this section shall at the time of making such payment, by notice in writing, inform the claimant of the statute of limitations applicable to his claim and the time within which an action is required to be commenced to enforce such claim in a court of competent jurisdiction.
The cause of action of any claimant who receives an advance payment under this section but who is not given the written notice required hereunder shall accrue on the date such written notice is actually given and not on the date the injury or damage was sustained.
Chapter 231: Section 140C1/2. Settlement of claim of minor or incompetent; judicial powers; petition for settlement approval Section 140C1/2. The trial court may review and approve a settlement for damages because of personal injury to a minor or incompetent person in any case before the court where any party has filed a petition for settlement approval signed by all parties. The trial court may make such orders and take such action as it deems necessary to effectuate the disposition of a settlement approval including but not limited to the appointment of a guardian, the appointment of a guardian ad litem, or the holding of an evidentiary hearing. With respect to a settlement for which approval is requested under this section, a guardian or a guardian ad litem appointed by said trial court shall have the same authority as if appointed pursuant to a proceeding under chapter two hundred and one.
Any party to a settlement of a claim of a minor or incompetent person, when such claim is not in suit, may initiate an action by filing a complaint and petition for settlement approval for the purpose of seeking the court’s approval of the settlement under this section.
Chapter 231: Section 140C. Settlement or partial payment by insurer as admission of liability Section 140C. No settlement or partial payment made under a liability insurance policy of a claim against any person insured thereunder shall be construed as an admission of liability by such person, with respect to any claim arising from the same event.
Chapter 231: Section 141 to 146A. Repealed, 1975, 377, Sec. 110 Chapter 231: Section 147. Repealed, 1975, 377, Sec. 110 Demurrers Chapter 231: Section 15 to 19. Repealed, 1975, 377, Sec. 75 Parties Chapter 231: Section 2 to 5. Repealed, 1975, 377, Sec. 73 Answers, Replications, etc. Chapter 231: Section 20. Repealed, 1975, 377, Sec. 75 Answers, Replications, etc. Chapter 231: Section 21. Pleading following answer in abatement Section 21. If an answer in abatement filed in the land court in an action which is not governed by the Massachusetts Rules of Civil Procedure is overruled on demurrer, or, if, in consequence of such answer in abatement, the plaintiff amends, the defendant within such time as the court orders shall plead to the merits.
Answers, Replications, etc. Chapter 231: Section 22. Pleading the general issue; evidence Section 22. In real and mixed actions in the land court which are not governed by the Massachusetts Rules of Civil Procedure, the defendant may plead the general issue and may give in evidence thereunder all matters which he might formerly have pleaded in bar.
Answers, Replications, etc. Chapter 231: Section 23 to 30. Repealed, 1975, 377, Sec. 77 Answers, Replications, etc. Chapter 231: Section 31. Equitable defenses Section 31. In the district courts, the defendant may allege in defense any facts which would entitle him in equity to be absolutely and unconditionally relieved against the plaintiff’s claim or cause of action or against a judgment recovered by the plaintiff in such action.
Answers, Replications, etc. Chapter 231: Section 32 to 34. Repealed, 1975, 377, Sec. 78 Answers, Replications, etc. Chapter 231: Section 35. Reply avoiding defense in equity Section 35. In civil proceedings which are not governed by the Massachusetts Rules of Civil Procedure, the plaintiff may, in reply to a defense alleged by the defendant, allege any facts which would in equity avoid such defense or which would entitle the plaintiff to be absolutely and unconditionally relieved in equity against such defense.
Answers, Replications, etc. Chapter 231: Section 36 to 38. Repealed, 1975, 377, Sec. 80 Answers, Replications, etc. Chapter 231: Section 39. Real and mixed actions at issue in land court Section 39. Real and mixed actions in the land court which are not governed by the Massachusetts Rules of Civil Procedure shall be considered at issue when the plea is filed.
Interpleader Chapter 231: Section 40, 41. Repealed, 1975, 377, Sec. 82 Endorsement of Process Chapter 231: Section 42. Endorsement of pleading or process before filing or entry; residence Section 42. Any initial pleading or process by which an action is commenced by a plaintiff who is not an inhabitant of the commonwealth, shall before the filing or entry thereof, be endorsed by a responsible person who is such an inhabitant; but if one of the plaintiffs is such an inhabitant, the pleading or process need not be so endorsed. Every endorser, in case of avoidance or inability of the plaintiff, shall be liable to pay all costs awarded against the plaintiff if an action therefor is commenced within one year after the original judgment.
Endorsement of Process Chapter 231: Section 43. Late endorsement of pleading or process Section 43. If a plaintiff, not an inhabitant of the commonwealth, fails, by accident, mistake or inadvertence, to have his pleading or process endorsed as required by the preceding section, the court may at any stage of the case, upon terms, allow him to procure an endorser with the same effect as if the pleading or process had been endorsed before the filing or entry thereof.
Endorsement of Process Chapter 231: Section 44. Endorsement when plaintiff removes from commonwealth Section 44. If, after the commencement of a proceeding mentioned in section forty-two, the plaintiff removes from the commonwealth, the court, upon motion of any other party, shall, and of its own motion may, require the plaintiff to procure a responsible endorser.
Endorsement of Process Chapter 231: Section 45. Procuring new responsible endorser Section 45. If an endorser removes from the commonwealth or ceases to be responsible, the court may require the plaintiff to procure a responsible endorser.
Endorsement of Process Chapter 231: Section 46. Repealed, 1973, 1114, Sec. 168 Endorsement of Process Chapter 231: Section 47. Dismissal on failure to obtain endorser Section 47. If a plaintiff fails to procure an endorser according to the order of the court, his action shall be dismissed and the defendant or other party shall recover his costs.
Endorsement of Process Chapter 231: Section 48. Substitute endorser Section 48. The court may permit the name of an endorser to be stricken out and a new and responsible endorser substituted. Every endorser shall be liable for costs from the commencement of the action.
Abatement Chapter 231: Section 49, 50. Repealed, 1975, 377, Sec. 84 Amendments Chapter 231: Section 51. Amendments as to parties, process or pleading Section 51. In all civil proceedings, the court may at any time, allow amendments adding a party, discontinuing as to a party or changing the form of the action, and may allow any other amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause or for recovery for the injury for which the action was intended to be brought, or enable the defendant to make a legal defense. Any amendment allowed pursuant to this section or pursuant to the Massachusetts Rules of Civil Procedure shall relate to the original pleading.
Amendments Chapter 231: Section 52. Amendment after demurrer Section 52. In all civil proceedings which are not governed by the Massachusetts Rules of Civil Procedure or by the District-Municipal Courts Rules of Civil Procedure, the court may allow a party to whose pleadings a demurrer has been filed to amend, upon terms, within such time as it orders.
Amendments Chapter 231: Section 53, 54. Repealed, 1975, 377, Sec. 87 Amendments Chapter 231: Section 55. Repealed, 1973, 1114, Sec. 170 Amendments Chapter 231: Section 56. Repealed, 1975, 377, Sec. 87 Defaults Chapter 231: Section 57, 58. Repealed, 1975, 377, Sec. 87 Defaults Chapter 231: Section 58A. Notice of default to company issuing motor vehicle liability policy or bond; assessment of damages deferred Section 58A. Damages shall not be assessed, except by special order of the court, in an action in which payment of the judgment is secured by a motor vehicle liability policy or a motor vehicle liability bond, both as defined in section thirty-four A of chapter ninety, and wherein the defendant has been defaulted for failure to enter an appearance, until the expiration of four days after the plaintiff has given notice of such default to the company issuing or executing such policy or bond, and has filed an affidavit thereof. Such notice may be given by mailing the same, postage prepaid, to the said company or to its agent who issued or executed such policy or bond.
Motion for Judgment on Undisputed Facts Chapter 231: Section 59. Repealed, 1975, 377, Sec. 87 Advancing Causes for Speedy Trial Chapter 231: Section 59A. Advancing action for speedy trial [Text of section applicable as provided by 2004, 252, Sec. 23.
] Section 59A. In any action before the supreme judicial court or superior court, the court may, on motion for cause shown, advance the action for a speedy trial. If the court finds that the plaintiff seeks to recover solely for his personal labor, with or without interest, the court shall, upon motion, advance such action for speedy trial.
Expediting the Collection of Debts Chapter 231: Section 59B. Repealed, 1975, 377, Sec. 87 Speedy Trial of Certain Actions for Malpractice, Error or Mistake Chapter 231: Section 59C. Request of either party Section 59C. An action pending before the superior court which alleges malpractice, error or mistake against a physician, surgeon, dentist, optometrist, hospital or sanitarium shall, at the request of either party, be advanced by the court so that it may be heard and determined with as little delay as possible.
Speedy Trial of Certain Actions for Malpractice, Error or Mistake Chapter 231: Section 59D. Speedy trial of actions involving election laws Section 59D. An action commenced in any court of this commonwealth to determine the results of an election, primary or caucus, or to enforce, determine the meaning or application of any of the provisions of chapters fifty to fifty-four A, inclusive, on motion of any party thereto, shall be advanced by the court for speedy trial so that it may be heard and determined with as little delay as possible.
Speedy Trial of Certain Actions for Malpractice, Error or Mistake Chapter 231: Section 59E. Request of either party Section 59E. At the request of any party a proceeding brought to determine the validity of any action taken by a housing authority or a redevelopment authority under chapters one hundred and twenty-one or one hundred and twenty-one A or under section thirteen of chapter six hundred and fifty-two of the acts of nineteen hundred and sixty shall be advanced for speedy hearing.
Speedy Trial of Certain Actions for Malpractice, Error or Mistake Chapter 231: Section 59F. Speedy trial for persons sixty-five years of age or older Section 59F. In any civil action in any court of the commonwealth in which one or more of the parties at the time of commencement of the proceeding is sixty-five years of age or older or during the pendency of the proceeding attains the age of sixty-five, the court shall, upon motion of such person, advance the proceeding for speedy trial so that it may be heard and determined with as little delay as possible.
Speedy Trial of Certain Actions for Malpractice, Error or Mistake Chapter 231: Section 59G. Dismissal for failure to file a timely request for trial; vacation of judgment Section 59G. After notice of judgement a judgement of dismissal for failure to file a timely request for trial entered in an action in the district court shall be vacated upon the filing of a motion therefor within thirty days from entry of said judgement together with a request for trial. Such vacation of judgement shall take effect upon the filing of such motion and request for trial, and upon such vacation the original date of commencement of such action shall control for the purpose of determining compliance with time limitations for actions set forth in chapter two hundred and sixty. The term “district court” as used in this section shall include the Boston municipal court department and any division of the district court department.
Speedy Trial of Certain Actions for Malpractice, Error or Mistake Chapter 231: Section 59H. Strategic litigation against public participation; special motion to dismiss Section 59H. In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss. The court shall advance any such special motion so that it may be heard and determined as expeditiously as possible. The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
The attorney general, on his behalf or on behalf of any government agency or subdivision to which the moving party’s acts were directed, may intervene to defend or otherwise support the moving party on such special motion.
All discovery proceedings shall be stayed upon the filing of the special motion under this section; provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery shall remain in effect until notice of entry of the order ruling on the special motion.
Said special motion to dismiss may be filed within sixty days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.
If the court grants such special motion to dismiss, the court shall award the moving party costs and reasonable attorney’s fees, including those incurred for the special motion and any related discovery matters. Nothing in this section shall affect or preclude the right of the moving party to any remedy otherwise authorized by law.
As used in this section, the words “a party’s exercise of its right of petition” shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.
Parties Chapter 231: Section 6. Assignee of claim assigned by executor or administrator, proceedings Section 6. In an action for the recovery of an outstanding debt or claim sold or assigned by an executor or administrator under a license of the probate court costs shall be recovered by or against the plaintiff but not against the executor or administrator. Any such action which is not governed by the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure shall be brought in the names of the purchaser or assignee, and the fact of the sale shall be set forth in the pleadings. The defendant may avail himself of any defense which would have been open to him upon an action or proceeding brought by an executor or administrator.
Claim of Trial by Jury Chapter 231: Section 60. Repealed, 1973, 1114, Sec. 178 Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60A. Repealed, 1973, 1114, Sec. 178 Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60B. Malpractice actions against providers of health care; tribunal Section 60B. Every action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth under the provisions of section two of chapter one hundred and twelve and an attorney authorized to practice law in the commonwealth, at which hearing the plaintiff shall present an offer of proof and said tribunal shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result.
Said physician shall be selected by the single justice from a list submitted by the Massachusetts Medical Society representing the field of medicine in which the alleged injury occurred and licensed to practice medicine and surgery in the commonwealth under the provisions of section two of chapter one hundred and twelve. The list submitted to the single justice shall consist only of physicians who practice medicine outside the county where the defendant practices or resides or if the defendant is a medical institution or facility outside the county where said institution or facility is located. The attorney shall be selected by the single justice from a list submitted by the Massachusetts Bar Association. The attorney and physician shall, subject to appropriation, each be compensated in the amount of fifty dollars.
Where the action of malpractice is brought against a provider of health care not a physician, the physician’s position on the tribunal shall be replaced by a representative of that field of medicine in which the alleged tort or breach of contract occurred, as selected by the superior court justice in a manner he determines fair and equitable.
Where there are codefendants representing more than one field of health care the superior court justice shall determine in his discretion who shall represent the health care field on the tribunal.
Each such action for malpractice shall be heard by said tribunal within fifteen days after the defendant’s answer has been filed. Substantial evidence shall mean such evidence as a reasonable person might accept as adequate to support a conclusion. Admissible evidence shall include, but not be limited to, hospital and medical records, nurses’ notes, x-rays and other records kept in the usual course of the practice of the health care provider without the necessity for other identification or authentication, statements of fact or opinion on a subject contained in a published treatise, periodical, book or pamphlet or statements by experts without the necessity of such experts appearing at said hearing. The tribunal may upon the application of either party or upon its own decision summon or subpoena any such records or individuals to substantiate or clarify any evidence which has been presented before it and may appoint an impartial and qualified physician or surgeon or other related professional person or expert to conduct any necessary professional or expert examination of the claimant or relevant evidentiary matter and to report or to testify as a witness thereto. Such a witness shall be allowed traveling expenses and a reasonable fee to be fixed by the tribunal which shall be assessed as costs. The testimony of said witness and the decision of the tribunal shall be admissible as evidence at a trial.
If a finding is made for the defendant or defendants in the case the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of six thousand dollars in the aggregate secured by cash or its equivalent with the clerk of the court in which the case is pending, payable to the defendant or defendants in the case for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment. Said single justice may, within his discretion, increase the amount of the bond required to be filed. If said bond is not posted within thirty days of the tribunal’s finding the action shall be dismissed. Upon motion filed by the plaintiff, and a determination by the court that the plaintiff is indigent said justice may reduce the amount of the bond but may not eliminate the requirement thereof.
For the purposes of this section, a provider of health care shall mean a person, corporation, facility or institution licensed by the commonwealth to provide health care or professional services as a physician, hospital, clinic or nursing home, dentist, registered or licensed nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, or acupuncturist, or an officer, employee or agent thereof acting in the course and scope of his employment.
The expenses and compensation of said tribunal shall be paid by the commonwealth, provided, however, that the pro rata percentage of such expenses and compensation engendered by actions brought against providers of health care registered under chapter one hundred and twelve shall not be in excess of the amounts received by the commonwealth for registration fees for such providers of health care under said chapter one hundred and twelve, less the amount expended for expenses and compensation of the respective boards of registration of said providers of health care under said chapter one hundred and twelve.
Whenever the tribunal makes a finding, the clerk of the court shall, no later than fifteen days after such finding, send a copy of the complaint and finding to the board of registration in medicine.
Upon entry of judgment, settlement, or other final disposition at trial court level, the clerk shall, no later than fifteen days after such entry, send a copy of the judgment, settlement or other final disposition, to the board of registration in medicine. The terms of such judgment, settlement, or other final disposition shall not be sealed by agreement of the parties or by any other means and shall be available for public inspection, except, however, the identity of the plaintiff may be kept confidential by the board.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60C. Malpractice complaints; ad damnum prohibited Section 60C. No writ or complaint for malpractice, error or mistake against a provider of health care shall contain an ad damnum or monetary amount claimed against such defendant.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60D. Claim by minor against provider of health care; limitations Section 60D. Notwithstanding the provisions of section seven of chapter two hundred and sixty, any claim by a minor against a health care provider stemming from professional services or health care rendered, whether in contract or tort, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60E. Malpractice action; professional examination of claimant Section 60E. In any civil action for malpractice, error or mistake against a provider of health care where an impartial medical examination has not been ordered at a hearing under the provisions of section sixty B, the presiding justice at a trial may upon the application of either party or upon his own decision appoint an impartial and qualified physician or surgeon or other related professional person or expert to conduct any necessary professional or expert examination of the claimant or relevant evidentiary matter and to report to or testify as a witness thereto. Such a witness shall be allowed traveling expenses and a reasonable fee to be fixed by said justice.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60F. Award of damages; elements and itemization of amounts Section 60F. (a) In every action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services against a provider of health care which is tried to a jury, the court shall instruct the jury that if the jury awards damages to the plaintiff or plaintiffs it shall specify the total amount of damages, as well as the applicable elements of special and general damages upon which the award of damages is based and the amount of the total damages assigned to each element, including, but not limited to:(1) Amounts intended to compensate the plaintiff for reasonable expenses which have been incurred, or which will be incurred, for necessary medical, surgical, X-ray, dental, or rehabilitative services, including prosthetic devices; necessary ambulance, hospital, and nursing services; drugs; and therapy;(2) Amounts intended to compensate the plaintiff for lost wages or loss of earning capacity and other economic losses which have been incurred or will be incurred; and(3) Amounts intended to compensate the plaintiff for pain and suffering, loss of companionship, embarrassment, and other items of general damages, which have been incurred or will be incurred in the future, and whether there is a substantial or permanent loss or impairment of a bodily function, or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of the limitation specified in section sixty I would deprive the plaintiff of just compensation for the injuries sustained.
Each element shall be further itemized into amounts intended to compensate for damages which have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future. In itemizing amounts intended to compensate for future damages, the jury shall set forth the period of weeks, months or years over which such amounts are intended to provide compensation. The court shall apply to each element of past and future damages any rules of law applicable to the review of jury verdicts, including without limitation the sufficiency of the evidence to support the verdict, any set-offs or credits, and appropriate additurs or remittiturs.
(b) In every action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services against a provider of health care which is tried without a jury, if the court awards damages to the plaintiff or plaintiffs, it shall find the total amount of damages, and specify the applicable elements of special and general damages upon which the award of damages is based and the amount of the total damages assigned to each element, including, but not limited to:(1) Amounts intended to compensate the plaintiff for reasonable expenses which have been incurred, or which will be incurred, for necessary medical, surgical, X-ray, dental, or rehabilitative services, including prosthetic devices; necessary ambulance, hospital and nursing services; drugs; and therapy;(2) Amounts intended to compensate the plaintiff for lost wages or loss of earning capacity and other economic losses which have been incurred or will be incurred; and(3) Amounts intended to compensate the plaintiff for pain and suffering, loss of companionship, embarrassment, and other items of general damages, which have been incurred or will be incurred in the future, and whether there is a substantial or permanent impairment of a bodily function, or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of the limitation specified in section sixty I would deprive the plaintiff of just compensation for the injuries sustained.
Each element shall be further itemized into amounts intended to compensate for damages which have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future. In itemizing amounts intended to compensate for future damages, the court shall set forth the period of weeks, months or years over which such amounts are intended to provide compensation.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60G. Reduction of award of damages; collateral sources of benefits Section 60G. (a) In every action for malpractice, negligence, error, omission, mistake, or the unauthorized rendering of professional services against a provider of health care in which the plaintiff seeks to recover for the costs of medical care, custodial care or rehabilitation services, loss of earnings or other economic loss, if the jury returns a verdict specifying the type and amount of such damages under subsection (a) of section sixty F of this chapter, or the court finds the type and amount of such damages as required under subsection (b) of section sixty F of this chapter, on motion by a defendant or upon its own motion, the court shall hear evidence of any amount of such damages incurred prior to the judgment which the defendant or defendants claim was replaced, compensated or indemnified pursuant to the United States Social Security Act, any state or federal income-disability act, any health, sickness or income-disability insurance, any accident insurance that provides health benefits or income-disability coverage, any contract or agreement of any group, organization, partnership, or corporation to provide, pay for or reimburse the cost of medical, hospital, dental or other health care services, any contract or agreement to continue to pay, in whole or in part, the plaintiff’s wages or income, or any other collateral source of benefits whatsoever, except for gratuitous payments or gifts, or benefits received pursuant to chapter one hundred and fifty-two of the General Laws. If the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount the plaintiff himself paid or contributed to secure his right to the benefits concerning which the defendant has introduced evidence.
(b) If the court finds that any such cost or expense was replaced, compensated, or indemnified from any collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the premiums or other amounts paid by the plaintiff for such benefits for the one-year period immediately preceding the accrual of such action.
(c) Notwithstanding the provisions of section seventy A of chapter one hundred and eleven, no entity which is the source of the collateral benefits by which the court has reduced the award to the plaintiff hereunder shall recover any amount against the plaintiff, nor shall it be subrogated to the rights of the plaintiff against the defendant, nor shall it have a lien against the plaintiff’s judgment, on account of its payment of the benefits by which the court has reduced the amount of the plaintiff’s judgment; provided that, if the plaintiff has received compensation or indemnification from any collateral source whose right of subrogation is based in any federal law, the court shall not reduce the award by the amounts received prior to judgment from such collateral source and such amounts may be recovered in accordance with such federal law.
(d) During the pendency of any such action, if a plaintiff has a policy of insurance which provides health benefits or income disability coverage, and the plaintiff is unwilling or unable to pay the costs of renewing or continuing that policy of insurance in force, the defendant or defendants may tender to the plaintiff the cost of maintaining the said policy in force. Upon receipt of such tender, the plaintiff shall continue such policy of insurance in force. Nothing in this subsection shall be construed to compel a plaintiff to renew or maintain any policy of insurance in force prior to receipt of the said tender, or to interfere in any way with the plaintiff’s choice of physician or course of medical treatment.
(e) To the extent the department of public welfare has provided public assistance benefits pursuant to chapters one hundred and seventeen, one hundred and eighteen, and one hundred and eighteen E, as a result of an incident of malpractice, negligence, error, omission, mistake, or the unauthorized rendering of professional services, nothing in this section shall be construed to affect said department’s right of subrogation or right to a lien against any judgment or settlement, nor shall a court reduce an award by the amount of public assistance benefits provided by said department pursuant to chapters one hundred and seventeen, one hundred and eighteen, and one hundred and eighteen E.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60H. Limitation of damages for pain and suffering Section 60H. In any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services, other than actions brought under section two of chapter two hundred and twenty-nine, against a provider of health care, the court shall instruct the jury that in the event they find the defendant liable, they shall not award the plaintiff more than five hundred thousand dollars for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the jury determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained. In any such action which is tried without a jury, the court shall not award the plaintiff more than five hundred thousand dollars for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the aforesaid findings are made specially by the court and stated separately in the judgment entered by the court. Except in those cases where the aforesaid findings are made, if two or more plaintiffs have received verdicts or findings of such damages in a total amount, for all plaintiffs claiming damages from a single occurrence, transaction, act of malpractice, or injury which exceeds five hundred thousand dollars, the amount of such damages recoverable by each plaintiff will be reduced to a percentage of five hundred thousand dollars proportionate to that plaintiff’s share of the total amount of such damages for all plaintiffs. Such limit shall apply, except in those cases where the aforesaid findings are made, regardless of the number of persons liable jointly or severally for the said damages.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60I. Attorney fees; limitations on contingency fees Section 60I. Attorney fees for services rendered on behalf of a claimant or defendant in a medical negligence case shall be fair and reasonable. An attorney representing a claimant may charge a client a contingency fee, which shall be subject to the rules and guidelines of the supreme judicial court. No contingent fee agreement, shall be enforced, and no attorney shall recover a fee thereunder, as a result of services rendered in an action against a provider of health care for malpractice, negligence, error, omission, mistake, or the unauthorized rendering of professional services if, at the time of judgment, the court determines that the amount of the recovery paid or to be paid to the plaintiff, after deduction of the attorney’s reasonable expenses and disbursements for which the plaintiff is liable and the amount of the attorney’s fee, is less than the total amount of the plaintiff’s unpaid past and future medical expenses included in the recovery, unless the contingent attorney’s fee: (a) is twenty per cent or less of the plaintiff’s recovery; (b) is reduced to twenty per cent or less of the plaintiff’s recovery; or (c) is reduced to a level which permits the plaintiff to be paid his unpaid past and future medical expenses included in the recovery.
An attorney shall not contract for or collect a contingent fee for representing any person seeking damages in connection with an action for malpractice, negligence, error, omission, mistake, or the unauthorized rendering of professional services against a provider of health care in excess of the following limits:(1) Forty per cent of the first one hundred and fifty thousand dollars recovered;(2) Thirty-three and one-third per cent of the next one hundred and fifty thousand dollars recovered;(3) Thirty per cent of the next two hundred thousand dollars recovered;(4) Twenty-five per cent of any amount by which the recovery exceeds five hundred thousand dollars.
The limitations shall apply regardless of whether the recovery is by settlement, arbitration or judgment. Nothing herein shall preclude any attorney from contracting to represent a client for less than the above limits, nor shall anything herein preclude a court from assessing reasonable attorney’s fees at any amount below the above limits or from determining that attorney’s fees below such limits are unreasonably high in a particular case.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60J. Negligence actions for serving alcoholic beverages to minors or intoxicated persons; summary judgments Section 60J. Every action for negligence in the distribution, sale or serving of alcoholic beverages to a minor or to an intoxicated person shall be commenced in the superior court department and shall proceed according to the Massachusetts Rules of Civil Procedure unless otherwise provided for by this section.
The plaintiff shall file, together with his complaint, or at such later time not to exceed ninety days thereafter, an affidavit setting forth sufficient facts to raise a legitimate question of liability appropriate for judicial inquiry.
Any party may make a motion for summary judgment pursuant to Rule 56 of the Massachusetts Rules of Civil Procedure. Any such motion shall be heard and decided promptly after issue is joined as to any party, unless the court enlarges the time for discovery. Said enlarged time for discovery shall not exceed ninety days, except on further order of the court.
On or within thirty days of filing a notice of appeal from summary judgment adverse to a plaintiff, the plaintiff shall file a bond in the amount of two thousand dollars for each adverse party on appeal secured by cash or its equivalent with the clerk of the appellate court in which the case is pending. Said bond shall be payable to the named adverse party or parties for costs assessed and attorney fees on appeal, if the appellant does not prevail on appeal. Upon motion filed by the plaintiff, and a determination by a single justice of the appellate court that the plaintiff is indigent, said justice may reduce or eliminate the amount of the bond.
If a judgment is entered for a plaintiff, the court shall report its judgment to the alcoholic beverages control commission.
Providing for Prompt Informal Trials in the Superior Court Chapter 231: Section 60K. Actions for malpractice, negligence, etc. against health care providers; damages; rate of interest Section 60K. In any action for malpractice, negligence, error, omission, mistake or unauthorized rendering of professional services, other than actions brought under section 2 of Chapter 229, against a provider of health care, in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, there shall be added by the clerk of the court to the amount of damages interest thereon, at a rate to be determined as set forth below rather than the rate specified in section 6B of chapter 231, from the date of the commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. For all actions commenced after the effective date of this act, the rate of interest to be applied by the clerk shall be at a rate equal to the weekly average 1-year constant maturity Treasury yield plus 4 per cent, as published by the Board of Governors of the Federal Reserve System for the calendar week preceding the date of judgment. At no point shall the rate of interest established by this section exceed the rate of interest set forth in said section 6B of chapter 231.
Interrogatories Chapter 231: Section 61. Filing interrogatories Section 61. The provisions of this section and of sections sixty-two through sixty-nine, inclusive, shall be applicable only to civil proceedings which are not governed by the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure. Any party, after the commencement of an action, may interrogate an adverse party for the discovery of facts and documents admissible in evidence at the trial of the case. No party shall file as of right more than thirty interrogatories, including interrogatories subsidiary or incidental to, or dependent upon, other interrogatories, and however the same may be grouped, combined or arranged; but for adequate cause shown, the court may allow additional interrogatories to be filed. The word “party”, in this section, in sections sixty-two to sixty-five, inclusive, and in section sixty-seven, shall be deemed to include parties intervening or otherwise admitted after the beginning of the suit.
Interrogatories Chapter 231: Section 62. Answers to interrogatories Section 62. The answers shall be in writing, on oath, and signed by the party interrogated, who shall, before making answer, make such inquiry of his agents, servants and attorneys as will enable him to make full and true answers to the interrogatories. Said answers shall state the date on which the same were signed.
Interrogatories Chapter 231: Section 63. Rules governing use of interrogatories Section 63. Interrogatories shall be filed in the clerk’s office, and notice of such filing, with a copy of the interrogatories, shall be sent by the party interrogating to the party interrogated, or to his attorney of record, and the party interrogated shall file answers to such interrogatories within twenty days after such notice, unless the court otherwise orders; but no party interrogated shall be obliged to answer a question or produce a document tending to criminate him or to disclose his title to any property the title whereof is not material to an issue in the proceeding in the course of which he is interrogated, nor to disclose the names of witnesses, except that the court may compel the party interrogated to disclose the names of witnesses and their addresses if justice seems to require it, upon such terms and conditions as the court deems expedient. A party shall not interrogate an adverse party more than once unless the court otherwise orders.
Interrogatories Chapter 231: Section 64. Failure to answer or to amend or expunge answer Section 64. If a party interrogated fails to answer interrogatories, or to amend or expunge an answer or part of an answer as ordered, the court may make and enter such order, judgment or decree as justice requires except that judgment shall not be entered because of the failure of the party interrogated to answer interrogatories until five days after written notice that such judgment will be entered has been sent by the clerk of the court to said party interrogated, or his attorney of record.
Interrogatories Chapter 231: Section 65. Person answering interrogatories when corporation, municipal corporation, minor or incompetent is party Section 65. If a corporation is a party, the adverse party may examine the president, treasurer, clerk or a director, manager or superintendent, or other officer thereof, as if he were a party. If a municipal corporation is a party, the mayor or the chairman of the board of selectmen may be examined as if he were a party, except that no city or town official shall be interrogated concerning matters of public record. If a minor or person under guardianship is a party, the adverse party may examine as if said party were not a minor or under guardianship; provided, that if the minor be not of such age as to appreciate an oath, or the person under guardianship be mentally incompetent to answer, the person appearing in the suit as the guardian, guardian ad litem or next friend of such party shall make answer.
Interrogatories Chapter 231: Section 66. Order for costs Section 66. Such order may be made respecting costs, in the action or cause or otherwise, as the court may direct by general rule, or by a special order in each case.
Interrogatories Chapter 231: Section 67. Non-disclosure of information not pertinent Section 67. Sections sixty-one to sixty-six, inclusive, shall not affect the right of a party interrogated, under the direction of the court, to seal up or otherwise protect from examination such parts of any document, book, voucher or other writing as contain matters not pertinent to the subject of the action, or affect the power of the court to protect said right, or any right of the party interrogated, by suitable order.
Inspection of Documents Chapter 231: Section 68. Inspecting documents Section 68. Every party to any cause or proceeding may inspect and take copies of any document referred to in the pleading or particulars of any other party and relied on by such other party, unless the court is satisfied that the same is not in his possession or control or that he has some other reasonable excuse for not producing the same for such inspection, and the court may make orders for production for said purposes, enforceable in like manner as orders to answer interrogatories.
Admission of Material Facts and Documents Chapter 231: Section 69. Demand for admissions; answer to demand or refusal of admissions; costs Section 69. In the district courts in actions not governed by the District-Municipal Courts Rules of Civil Procedure, a party by written demand filed in the clerk’s office and notice given by copy thereof by registered mail, return receipt requested, to the other party or his attorney, not less than ten days before the trial of the action or suit, may call upon the other party to admit, for the purposes of the case only, any material fact or facts or the execution of any material paper or document which the party filing the demand intends to use at the trial. Copies of the papers or documents shall be delivered with the demand unless copies have already been furnished. An affidavit of such notice and the return receipt, if any, shall forthwith be filed in the clerk’s office. The court may delay the trial until such demand is answered and on motion before trial may strike out of such demand or any answer filed in response thereto any matter which is irrelevant, immaterial or improperly included therein. After the filing of said affidavit of notice, each of the matters of which an admission is demanded shall be deemed admitted unless within ten days after mailing the demand, or within such further time as the court may allow on motion and notice, the party to whom the demand is directed files in the clerk’s office a sworn statement either denying specifically the matters of which an admission is demanded or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. Any admission made by a party by answering or not answering such demand is for the purpose of the pending proceeding only and neither constitutes an admission by him for any other purpose nor may be used against him in any other proceeding, but said admission shall be binding upon him in the pending proceeding unless he is relieved therefrom by the court for cause shown. If the party upon whom such demand is made refuses to admit any fact or the execution of any paper or document mentioned in the demand, the reasonable expense of proving such fact or the execution of such paper or document, as determined after summary hearing by the justice presiding at the trial, shall, unless the justice certifies that the refusal to admit was reasonable, be paid by said party to the other party and the amount thereof shall be added to the taxable costs of the party in whose favor such amount is awarded or deducted from the amount of any judgment or decree against him.
Parties Chapter 231: Section 6A. Repealed, 1975, 377, Sec. 75 Parties Chapter 231: Section 6B. Interest added to damages in tort actions Section 6B. In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.
Parties Chapter 231: Section 6C. Interest added to damages in contract actions Section 6C. In all actions based on contractual obligations, upon a verdict, finding or order for judgment for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand. If the date of the breach or demand is not established, interest shall be added by the clerk of the court, at such contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action, provided, however, that in all actions based on contractual obligations, upon a verdict, finding or order for judgment against the commonwealth for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at a rate calculated pursuant to the provisions of section six I from the date of the breach or demand. If the date of the breach or demand is not established, such interest shall be added by the clerk of the court from the date of the commencement of the action.
Parties Chapter 231: Section 6D. Damages for pain and suffering in tort actions arising out of operation, etc.
, of motor vehicles; restrictions Section 6D. In any action of tort brought as a result of bodily injury, sickness or disease, arising out of the ownership, operation, maintenance or use of a motor vehicle within this commonwealth by the defendant, a plaintiff may recover damages for pain and suffering, including mental suffering associated with such injury, sickness or disease, only if the reasonable and necessary expenses incurred in treating such injury, sickness or disease for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral expenses are determined to be in excess of two thousand dollars unless such injury, sickness or disease (1) causes death, or (2) consists in whole or in part of loss of a body member, or (3) consists in whole or in part of permanent and serious disfigurement, or (4) results in such loss of sight or hearing as is described in paragraphs (a), (b), (c), (d), (e), (f) and (g) of section thirty-six of chapter one hundred and fifty-two or (5) consists of a fracture.
Parties Chapter 231: Section 6E. Definitions applicable to Secs. 6E to 6G Section 6E. As used in sections 6E to 6G inclusive, the following words shall have the following meanings:—“Court”, the supreme judicial court, the appeals court, the superior court, the land court, any probate court and any housing court, and any judge or justice thereof;“Civil action”, any civil proceeding in any court except those conducted pursuant to chapters one hundred and nineteen, one hundred and twenty-three, chapter one hundred and twenty-three A or chapter two hundred and ten;“Party”, any person, including any officer or agency of the commonwealth or subdivision thereof, or any authority established by the general court to serve a public purpose.
Parties Chapter 231: Section 6F. Costs, expenses and interest for insubstantial, frivolous or bad faith claims or defenses Section 6F. Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge or justice or by a jury, auditor, master or other finder of fact, the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith. The court shall include in such finding the specific facts and reasons on which the finding is based.
If such a finding is made with respect to a party’s claims, the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims. If the party against whom such claims were asserted was not represented by counsel, the court shall award to such party an amount representing his reasonable costs, expenses and effort in defending against such claims. If such a finding is made with respect to a party’s defenses, setoffs or counterclaims, the court shall award to each party against whom such defenses, setoffs or counterclaims were asserted (1) interest on the unpaid portion of the monetary claim at issue in such defense, setoff or counterclaim at one hundred and fifty per cent of the rate set in section six C from the date when the claim was due to the claimant pursuant to the substantive rules of law pertaining thereto, which date shall be stated in the award, until the claim is paid in full; and (2) an amount representing the reasonable counsel fees, costs and expenses of the claimant in prosecuting his claims or in defending against those setoffs or counterclaims found to have been wholly insubstantial, frivolous and not advanced in good faith.
Apart from any award made pursuant to the preceding paragraph, if the court finds that all or substantially all of the defenses, setoffs or counterclaims to any portion of a monetary claim made by any party who was represented by counsel during most or all of the proceeding were wholly insubstantial, frivolous and not advanced in good faith, the court shall award interest to the claimant on that portion of the claim according to the provisions of the preceding paragraph.
In any award made pursuant to either of the preceding paragraphs, the court shall specify in reasonable detail the method by which the amount of the award was computed and the calculation thereof.
No finding shall be made that any claim, defense, setoff or counterclaim was wholly insubstantial, frivolous and not advanced in good faith solely because a novel or unusual argument or principle of law was advanced in support thereof. No such finding shall be made in any action in which judgment was entered by default without an appearance having been entered by the defendant. The authority granted to a court by this section shall be in addition to, and not in limitation of, that already established by law.
If any parties to a civil action shall settle the dispute which was the subject thereof and shall file in the appropriate court documents setting forth such settlement, the court shall not make any finding or award pursuant to this section with respect to such parties. If an award had previously been made pursuant to this section, such award shall be vacated unless the parties shall agree otherwise.
In proceedings under this section in any action which has been heard by the medical malpractice tribunal established pursuant to section sixty B, the decision of the tribunal may be introduced as evidence relevant to whether a claim was wholly insubstantial, frivolous and not advanced in good faith.
Upon receiving an inmate’s complaint and affidavit of indigency, the court may, at any time, upon motion or sua sponte: (1) dismiss a claim or any action without a hearing if satisfied that the claim or action is frivolous or in bad faith; or (2) conduct a hearing presided over by the court or an appointed master, which shall be held telephonically unless the court finds that a hearing in court is necessary, to determine whether the inmate’s action is frivolous and in bad faith.
If the court finds that the claim or action is frivolous or in bad faith, the court shall dismiss the claim or action but if, after hearing, the court finds that the claim is both frivolous and in bad faith in order to abuse the judicial process, the court shall, in addition to dismissing such claim or action, order that the inmate lose up to 60 days of good conduct credit earned or to be earned pursuant to section 129C or 129D of chapter 127.
If the court finds at any time that the inmate has repeatedly abused the integrity of the judicial system through frivolous filings, the court may order that the inmate be barred from filing future actions without leave of court. In determining whether a claim or action is frivolous or in bad faith, the court may consider several factors including, but not limited to, the following:—(a) whether the claim or action has no arguable basis in law or in fact; (b) the claim or action is substantially similar to a previous claim in that it is brought by and against the same parties and in that the claim arises from the same operative facts of the previous claim.
No finding shall be made that a claim or action is frivolous or in bad faith solely because a novel or unusual argument or principle of law was advanced in support thereof.
Parties Chapter 231: Section 6G. Appeals; motions for expenses for insubstantial, frivolous or bad faith claims or defenses Section 6G. Any party aggrieved by a decision on a motion pursuant to section six F may appeal as hereinafter provided. If the matter arises in the superior, land, housing or probate court, the appeal shall be to the single justice of the appeals court at the next sitting thereof. If the matter arises in the appeals court or before a single justice of the supreme judicial court, the appeal shall be to the full bench of the supreme judicial court. The court deciding the appeal shall review the finding and award, if any, appealed from as if it were initially deciding the matter, and may withdraw or amend any finding or reduce or rescind any award when in its judgment the facts so warrant.
Any party may file a notice of appeal with the clerk or register of the court hearing the motion within ten days after receiving notice of the decision thereon. The clerk or register shall then forward the motion, the court’s findings and award, and any other documents relevant to the appeal to the clerk of the court deciding the appeal who, upon receipt thereof, shall refer the matter to the court for speedy decision and shall notify the parties of such decision, which shall be final. Any appeal to the supreme judicial court or the appeals court shall proceed according to the Massachusetts Rules of Appellate Procedure; any appeal to a single justice of the Appeals Court shall proceed under the rules for the regulation of practice before a single justice of that court. The payment of any award made pursuant to section six F shall be stayed until the completion of all appeals relating to the civil action in which the award was made.
Parties Chapter 231: Section 6H. Interest on damages Section 6H. In any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law, there shall be added by the clerk of court to the amount of damages interest thereon at the rate provided by section six B to be determined from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.
Parties Chapter 231: Section 6I. Interest rate; schedule [Text of section applicable as provided by 2004, 352, Sec. 178.
] Section 6I. Interest required to be paid by the commonwealth pursuant to this section shall be calculated at a Weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding date of the judgment; provided, however, that such interest shall not exceed the rate of ten percent per annum. The secretary of administration and finance shall maintain a schedule of the rate described above for the distribution to all clerks of courts.
Declarations Chapter 231: Section 7. Repealed, 1975, 377, Sec. 75 Interlocutory Orders Chapter 231: Section 70. Repealed, 1975, 377, Sec. 91 Interlocutory Orders Chapter 231: Section 71. Motions and interlocutory orders Section 71. In civil proceedings which are not governed by the Massachusetts Rules of Civil Procedure or by the District-Municipal Courts Rules of Civil Procedure, the court may make orders allowing amendments before trial, or a supplemental pleading, or any other interlocutory order necessary to prepare the case for trial but the court shall make such rules relative to notice, the times and places for motions at chambers, and other matters, as shall from time to time be necessary.
Agreements of Parties Chapter 231: Section 72. Agreements regarding amendments and trial procedure Section 72. In civil proceedings which are not governed by the Massachusetts Rules of Civil Procedure or by the District-Municipal Courts Rules of Civil Procedure, the parties may make agreements relative to amendments and the time for filing papers, which shall be equivalent to an order of the court to the same effect. Any order mentioned in section seventy-one may be entered by consent signed by the parties or their attorneys; but no agreement of attorneys relative to such civil proceedings shall be valid unless in writing.
Agreements of Parties Chapter 231: Section 73. Repealed, 1932, 180, Sec. 40 Offer of Judgment Chapter 231: Section 74, 75. Repealed, 1975, 377, Sec. 94 Frivolous Demurrer Chapter 231: Section 76. Repealed, 1975, 377, Sec. 94 Hearing or Trial Chapter 231: Section 77. Repealed, 1973, 1114, Sec. 185 Hearing or Trial Chapter 231: Section 78. Repealed, 1932, 180, Sec. 40 Hearing or Trial Chapter 231: Section 79. Repealed, 1975, 377, Sec. 94 Declarations Chapter 231: Section 8. Repealed, 1973, 1114, Sec. 158 Hearing or Trial Chapter 231: Section 80. Repealed, 1973, 1114, Sec. 187 Hearing or Trial Chapter 231: Section 81. Charges as to facts, etc. Section 81. The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law.
Hearing or Trial Chapter 231: Section 82. Designation of place of trial Section 82. In counties containing two or more shire towns, the supreme judicial or the superior court at the sitting held on or next after the filing of the defendant’s answer may designate the shire town where the action shall be tried, and it shall not then be put on the trial list for sittings held in any other town of that county except by agreement of the parties.
Hearing or Trial Chapter 231: Section 83. Interrupting examination of witnesses Section 83. During the trial of a case in which an official stenographer takes stenographic notes of the evidence, no other person shall interrupt the examination of witnesses for the purpose of taking notes of their testimony.
Hearing or Trial Chapter 231: Section 84. Repealed, 1973, 1114, Sec. 189 Hearing or Trial Chapter 231: Section 84A. Consolidation of actions involving same subject matter Section 84A. If two or more actions to recover damages or indebtedness arising out of the same accident, event or transaction are pending in the superior court, whether in the same or in different counties, the court or any justice thereof may order that some or all of them be tried together in such county as he may designate. This section shall not limit existing powers of the courts or justices thereof relative to the consolidation or joint trial of causes.
Evidence Chapter 231: Section 85. Comparative negligence; limited effect of contributory negligence as defense Section 85. Contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made. In determining by what amount the plaintiff’s damages shall be diminished in such a case, the negligence of each plaintiff shall be compared to the total negligence of all persons against whom recovery is sought. The combined total of the plaintiff’s negligence taken together with all of the negligence of all defendants shall equal one hundred per cent.
The violation of a criminal statute, ordinance or regulation by a plaintiff which contributed to said injury, death or damage, shall be considered as evidence of negligence of that plaintiff, but the violation of said statute, ordinance or regulation shall not as a matter of law and for that reason alone, serve to bar a plaintiff from recovery.
The defense of assumption of risk is hereby abolished in all actions hereunder.
The burden of alleging and proving negligence which serves to diminish a plaintiff’s damages or bar recovery under this section shall be upon the person who seeks to establish such negligence, and the plaintiff shall be presumed to have been in the exercise of due care.
Evidence Chapter 231: Section 85A. Prima facie evidence of owner’s responsibility for operation of motor vehicle Section 85A. In all actions to recover damages for injuries to the person or to property or for the death of a person, arising out of an accident or collision in which a motor vehicle was involved, evidence that at the time of such accident or collision it was registered in the name of the defendant as owner shall be prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was legally responsible, and absence of such responsibility shall be an affirmative defence to be set up in the answer and proved by the defendant.
Evidence Chapter 231: Section 85AA. Liability of registered rescue volunteers Section 85AA. No person duly registered by the department of state police as a search and rescue volunteer who renders assistance in a search and rescue operation under the direct control and instruction of the department and no other person who volunteers in a search and rescue operation and renders assistance, supervised by and under the direct control and instruction of the department shall be liable in any suit for damages as a result of any acts or omissions committed by such person in the course of a search for a missing person, if such person acts in compliance with the Massachusetts state police search and rescue plan, unless such acts or omissions constitute willful, wanton or reckless conduct.
Evidence Chapter 231: Section 85B. Action for consequential damages; presumption of automobile owner’s responsibility Section 85B. In any action to recover the consequential damages specified in section thirty-four A of chapter ninety, arising out of an accident or collision in which a motor vehicle, as defined in sections one and thirty-four A of chapter ninety, was involved, such motor vehicle if registered in the name of the defendant as owner at the time of such accident or collision shall be presumed to have been then operated, maintained, controlled or used by and under the control of a person for whose conduct the defendant was legally responsible, and absence of such responsibility shall be an affirmative defence to be set up in the answer and proved by the defendant.
Evidence Chapter 231: Section 85C. Action to enforce liability policy or bond; presumption of insured’s consent to operation of vehicle Section 85C. In any civil action, under section one hundred and thirteen of chapter one hundred and seventy-five and clause (9) of section three of chapter two hundred and fourteen to reach and apply the proceeds of any motor vehicle liability policy, as defined in section thirty-four A of chapter ninety, by a judgment creditor in any action to recover damages for bodily injuries, including death at any time resulting therefrom, or the consequential damages specified in said section thirty-four A, arising out of an accident or collision in which a motor vehicle, as defined in sections one and thirty-four A of said chapter ninety, was involved, and in any action under section thirty-four G of said chapter ninety on a motor vehicle liability bond, as defined in said section thirty-four A, it shall be presumed that at the time of such accident or collision such vehicle was being operated, maintained, controlled or used with the express or implied consent of the named person insured in such policy or the principal of such bond, and the absence of such consent shall be an affirmative defence to be set up in the answer and proved by the defendant.
Evidence Chapter 231: Section 85D. Imputing negligence of parent or custodian to infant Section 85D. In all actions to recover damages for injury to the person or property of an infant, the negligence of the parent or other custodian of the infant shall not be imputed to the infant from the fact of such parenthood or custodianship.
Evidence Chapter 231: Section 85E. Motor vehicles; defenses in subrogation claims Section 85E. In any action to recover for damage to a motor vehicle brought in the name of a person or persons holding a security interest in said motor vehicle, any defense which would be available as against any registered owner thereof shall be available as against the person or persons holding said security interest.
Evidence Chapter 231: Section 85F. Imputation of negligence of operator of motor vehicle to passenger-owner Section 85F. In an action to recover damages for death or for injuries or property damage arising out of an accident or collision in which a motor vehicle was involved while the owner thereof was a passenger therein, the negligence of the operator of such motor vehicle shall not be imputed to the owner for the sole reason that he was a passenger.
Evidence Chapter 231: Section 85G. Parents’ liability for willful acts of minor children Section 85G. Parents of an unemancipated child under the age of eighteen and over the age of seven years shall be liable in a civil action for any willful act committed by said child which results in injury or death to another person or damage to the property of another, which shall include any damages resulting from a larceny or attempted larceny of property as set forth in section thirty A of chapter two hundred and sixty-six, damage to cemetery property or damage to any state, county or municipal property or damage as set forth in sections one hundred and twenty-six A and one hundred and twenty-six B of chapter two hundred and sixty-six. This section shall not apply to a parent who, as a result of a decree of any court of competent jurisdiction, does not have custody of such child at the time of the commission of the tort. Recovery under this section shall be limited to the amount of proved loss or damage but in no event shall it exceed five thousand dollars.
Evidence Chapter 231: Section 85H. Leased property; failure to return; conversion; presumption Section 85H. In any civil action for damages, failure to return any personal property acquired by a person under a lease or contract of hire or rental, other than a hired horse, carriage or other vehicle to which the provisions of section sixty-four of chapter two hundred and sixty-six apply, within thirty days after notice in writing of the termination of such lease or contract shall create a presumption that said person converted such property to his own use. Said notice of termination shall be delivered in hand by a sheriff or constable to the person who hired or rented such personal property as shown in the lease or contract of hire or rental, or shall be sent to him by registered mail, return receipt requested, with delivery restricted to the addressee only.
Evidence Chapter 231: Section 85I. Emergency care, etc. of injured persons by members of ski patrols; exemption from civil liability Section 85I. No member of a ski patrol duly registered in the National Ski Patrol system, who, in good faith, renders emergency care or treatment to a person who has become injured or incapacitated at a place or in an area where an emergency rescue can be best accomplished by the members of such a ski patrol together with their special equipment, shall be liable in a suit for damages as a result of his acts or omissions, either for such care or treatment or as a result of providing emergency transportation to a place of safety, nor shall he be liable to a hospital for its expenses if, under such emergency conditions, he causes the admission of such injured or incapacitated person.
Evidence Chapter 231: Section 85J. Fraud or deceit in sale of personal property; treble damages Section 85J. Whoever, by deceit or fraud, sells personal property shall be liable in tort to a purchaser in treble the amount of damages sustained by him.
Evidence Chapter 231: Section 85K. Limitation of tort liability of certain charitable organizations; liability of directors, officers or trustees of educational institutions Section 85K. It shall not constitute a defense to any cause of action based on tort brought against a corporation, trustees of a trust, or members of an association that said corporation, trust, or association is or at the time the cause of action arose was a charity; provided, that if the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation, trust, or association, liability in any such cause of action shall not exceed the sum of twenty thousand dollars exclusive of interest and costs. Notwithstanding any other provision of this section, the liability of charitable corporations, the trustees of charitable trusts, and the members of charitable associations shall not be subject to the limitations set forth in this section if the tort was committed in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes.
No person who serves as a director, officer or trustee of an educational institution which is, or at the time the cause of action arose was, a charitable organization, qualified as a tax-exempt organization under 26 USC 501(c)(3) and who is not compensated for such services, except for reimbursement of out of pocket expenses, shall be liable solely by reason of such services as a director, officer or trustee for any act or omission resulting in damage or injury to another, if such person was acting in good faith and within the scope of his official functions and duties, unless such damage or injury was caused by willful or wanton misconduct. The limitations on liability provided by this section shall not apply to any cause or action arising out of said person’s operation of a motor vehicle.
Evidence Chapter 231: Section 85L. Recovery of damages against operator of motor vehicle by guest; ordinary negligence Section 85L. In an action of tort for personal injuries, property damage or consequential damages caused by or arising from the operation of a motor vehicle in which the plaintiff was a passenger in the exercise of due care, the plaintiff may recover in an action against the operator upon proof that said operator was guilty of ordinary negligence resulting in said injuries or damages.
Evidence Chapter 231: Section 85M. Disclaimers of liability by parking facilities not a defense and void Section 85M. In any action of contract or tort in which the defendant is the owner or operator of a privately or publicly owned or operated garage, lot, or other facility used for the parking or storage of motor vehicles for a fee, it shall not constitute a defense that said owner or operator, by means of language appearing on any sign, ticket, or receipt, sought to disclaim, limit or exclude his legal liability. Any such disclaimer, limitation or exclusion of liability shall be void as against public policy.
Evidence Chapter 231: Section 85N. Liability of licensed members of certain professional societies and committees for damages resulting from official acts Section 85N. No member of a professional society or of a duly appointed committee thereof, or a duly appointed member of a committee of a medical staff of a licensed hospital or a health maintenance organization licensed under the provisions of chapter one hundred and seventy-six G shall be liable in a suit for damages as a result of his acts, omissions or proceedings undertaken or performed within the scope of his duties as such committee member, provided that he acts in good faith and in the reasonable belief that based on all of the facts the action or inaction on his part was warranted; nor shall an individual be liable in a suit for damages as a result of acts, omissions or proceedings undertaken or performed within the scope of his duties to a nonprofit corporation, the sole voting member of which is a professional society having as members persons who are licensed to practice medicine; provided, however, that such individual acts in good faith and in the reasonable belief that based on all of the facts the action or inaction on his part was warranted.
For the purposes of this section “professional society” shall mean a society having as members persons who are licensed or admitted to practice in the field of law, medicine, chiropractic, optometry, psychiatry or psychology, dentistry, accounting, engineering, land surveyor, as set forth in section eighty-one D of chapter one hundred and twelve, architecture or social work.
Evidence Chapter 231: Section 85O. Contracts; age of legal capacity and liability in civil actions Section 85O. Any person who has attained the age of eighteen shall have full legal capacity to act in his own behalf in the matter of contracts and shall be liable in any civil action for breach thereof.
Evidence Chapter 231: Section 85P1/2. Child performers; contracts; court approval Section 85P1/2. (a) No person shall employ, or exhibit or cause to be exhibited, or to use, or have custody of for the purpose of exhibition, use or employment, a child under the age of eighteen years, nor shall a person who is responsible for the care, custody or control of such child as a parent, relative, guardian, employer or otherwise, exhibit, use, or procure or consent to the use or exhibition of such child, or neglect or refuse to restrain such child from engaging or acting in a public or private place, except as hereinafter provided, whether or not an admission fee is charged and whether or not such child or any other person is to be compensated for the use of such child therein, in the following activities: singing, dancing, playing upon a musical instrument, songwriting, rehearsing, producing or recording a phonograph record or any derivation thereof, modeling, acting in or rehearsing for or performing in a theatrical or musical performance, or appearing in a pageant, as a subject for use, in or for, or in connection with the making of a motion picture film, or in rehearsing for or performing in a radio or television broadcast or program nor shall a person contract with such child as such child’s agent in connection with any of the foregoing activities. For the purposes of this subsection, “agent” means person entrusted by another whose business it is to acquire employment or engagements, act on behalf of, and represent such child in such foregoing activities.
(b) The provisions of subsection (a) shall not apply to the participation or employment, use or exhibition of a child in a church academy or school, including a dancing or dramatic school, as part of the regular services or activities thereof respectively; or in the annual graduation exercises of any such academy or school; or in a private home; or in any place where such performance is under the direction, control or supervision of a school department; or for recitals given in connection with private instruction associated with a continuing education course of study; or in the performance of radio or television programs in cases where the child or children broadcasting do so from a school, church, academy, museum, library or other religious, civic or educational institution, or for not more than two hours a week from the studios of a regularly licensed broadcasting company, or where the child participates or is employed, used, or exhibited in any motion picture, film, theatrical presentation or radio or television broadcast or program where the child is exclusively used for the temporary purpose of an extra player, where the child is part of a group or background scene, where the child performs as a day player, three day player, weekly player, stunt day player, or on-camera narrator or spokesperson on videotape, audiotape or motion picture film wherein said temporary use accumulates to no more than one hundred and twenty days of collective employment and occurs during hours when attendance for instruction is not required in accordance with law, or where the performance of a child is of a nonprofessional character and occurs during hours when attendance for instruction is not required in accordance with law.
For the purposes of this subsection, an “extra player” means a performer who is used for the temporary purposes of an “extra” or “audience” or “atmosphere” where the child is part of a group or background scene; a “day player” means a performer who is seen and who may speak a line or lines of dialogue and who is compensated in one day increments; a “three day player” means a performer who is seen and who may speak a line or lines of dialogue and who is compensated in three day increments; a weekly player means a performer who is seen and who may speak lines of dialogue and who is compensated in weekly increments; a “stunt day player” means a performer who performs identifiable stunts which illustrates or reacts to on or off-camera narration or messages and who is compensated by the day, an “on-camera narrator or spokesperson” means a performer who explains, or demonstrates, substantially in monologue.
(c) Notwithstanding the provisions of subsection (a), a child may be employed, used or exhibited in any of the exhibitions, rehearsals or performances set forth in said subsection (a); provided, however, that such employment, use or exhibition takes place pursuant to the provisions of a written contract which has been approved by the probate and family court for the county in which the child resides, where the child is employed or where the child performs or renders his services, or if the child is not a resident of the commonwealth in at least one county where a performance is to take place, or if the child is not a resident of the commonwealth and the employment or performance takes place outside the commonwealth, in the county within the commonwealth where the employer has his principal place of business.
(d) The probate and family court shall have jurisdiction over the following proceeding for contract approval by and between a child entertainer and a contracting entity. The court shall have the power to appoint a guardian of the property to oversee the child’s funds. A bond shall be required for an appointment of guardianship under the provisions of this section. The guardian of the minor child shall file a bond pursuant to which the court may, in its discretion, require surety. Such guardian shall render accountings as set forth in section one of chapter two hundred and six.
(1) Said proceeding shall be commenced by verified petition by the child’s parent or legal guardian that (i) renders consent and requests that all or a portion of the child’s earnings be set aside and (ii) said petitioner is qualified to be appointed limited guardian to oversee the child’s funds or, if the court finds the petitioner not suitable, the court may appoint a limited guardian. For the purposes of this section, the terms, guardian of the property and limited guardian, shall refer to the same appointed party.
Said petition shall set forth the full name, residence and date of birth of the child with certified copy of birth certificate affixed, the full name and residence of the petitioner, the full name and business address of the contracting entity, a brief statement as to the child’s employment and compensation under the contract, including where services of the child are to be performed, and a statement that the term of the contract during which the child is to perform or render services shall in no event extend for more than three years from the date of approval of the contract.
(2) The court shall ensure that the contract shall contain all the requirements for the rendering of services of the child and that the petition shall include a plan for the protection of earnings thereunder.
The court shall consider the following when determining the protection of earnings:(i) the interest of the petitioner in the contract or proposed contract or in the child’s performance under said contract;(ii) the parties who are entitled to the child’s earnings, and, if the child is not so entitled, facts regarding the property and financial circumstances of the parent or parents or legal guardian or other third party;(iii) a bank or trust account used expressly for the deposit of fees generated under the contract and the relationship of any proposed trustee of the child’s funds;(iv) the percentage of fees generated which are intended for deposit; and(v) the child’s financial advisor or other third party who shall render investment advice and administer the bank or trust account.
(3) The court shall ensure that the contract shall be limited to a term of three years, inclusive of any extensions by options or otherwise, except for television broadcast or program contracts which shall be limited to a term of five years.
(4) The court in its discretion may appoint a guardian ad litem to represent the interests of the child. The guardian ad litem fee shall be paid by the party contracting with the child. The court shall further ensure that the contract shall provide for the continuing education of the child by way of tutoring services in the event that said child performs or renders his services outside of the commonwealth for a period of time pursuant to section one of chapter seventy-six. Costs for said education shall be provided by the party contracting with the child.
(5) The court shall not approve of any contract executed by the child unless the parent, parents or guardian of the child have assented to such contract, in writing, or the court shall find that the child is emancipated.
(6) Prior to determining whether to approve the contract, the child shall appear personally before the court so that the court may make inquiry of the wishes of the child.
(7) The court shall not approve of any contract unless the criteria expressed in paragraphs (2) to (6), inclusive, of subsection (d) have been complied with.
(e) The approval of a contract by the court shall not exempt the child or any person employing such child from other provisions of law regarding employment of minors.
(f) Court approval of a valid contract shall serve to bind the child as if such child executed the contract personally as an adult; and the child shall be bound to all provisions including the permanent sale of intellectual property rights; provided, however, that such revocation of approval of the contract by the court shall not include the transfer back to the child of intellectual property rights unless there has been a showing of fraud or misrepresentation by the employer; and, provided further, that the probate and family court approving such contract shall retain the authority to revoke approval of the contract, or modify its terms if assented to by both parties, if the court finds that the well being of the child requires such disapproval.
(g) For the purposes of subsection (f), intellectual property rights shall be defined as those rights of copyright and trademark explicitly assigned, licensed or otherwise conveyed in the contract by the child to the contracting entity. Any and all rights of privacy and rights of publicity assigned, licensed or otherwise conveyed by the child to the contracting entity shall transfer back to the child upon such revocation of approval.
Evidence Chapter 231: Section 85P. Age of majority; legal capacity Section 85P. Except as otherwise specifically provided by law, any person domiciled in the commonwealth who has reached the age of eighteen shall for all purposes, and any other person who has reached the age of eighteen shall with respect to any transaction governed by the law of the commonwealth, be deemed of full legal capacity unless legally incapacitated for some reason other than insufficient age.
Evidence Chapter 231: Section 85Q. Standard of care owed children; maintenance of artificial condition upon land Section 85Q. Any person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon if (a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass, (b) the condition is one of which the land owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Evidence Chapter 231: Section 85R1/2. Liability for damage to property as a result of shoplifting or attempted larceny; recovery Section 85R1/2. Whoever causes damage to the property of a person as a result of a larceny or attempted larceny of said property as set forth in section thirty A of chapter two hundred and sixty-six or commits or attempts to commit a larceny of goods for sale on the premises of a merchant or commits or attempts to commit a larceny of the personal property of employees or customers or others present on such premises shall be liable in tort to the merchant for damages for not less than fifty nor more than five hundred dollars in addition to any actual damages incurred. An action for recovery may be commenced under the provisions of sections twenty-one to twenty-five, inclusive, of chapter two hundred and eighteen.
Evidence Chapter 231: Section 85R. Boat races or regattas; liability for injuries Section 85R. No member of a sailboat racing committee, club or association or of a yacht club association which conducts a race or regatta shall be liable for injuries to persons or property arising out of the conduct of such race or regatta in the absence of wilful, wanton or reckless conduct.
Evidence Chapter 231: Section 85S. Physical alteration or destruction of fine art Section 85S. (a) The general court hereby finds and declares that the physical alteration or destruction of fine art, which is an expression of the artist’s personality, is detrimental to the artist’s reputation, and artists therefore have an interest in protecting their works of fine art against such alteration or destruction; and that there is also a public interest in preserving the integrity of cultural and artistic creations.
(b) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:“Artist”, the natural person who actually creates a work of fine art but not to include such art as is created by an employee within the scope of his employment. In case of a joint creation of a work of art, each joint creator shall have the rights of an artist with respect to the work of fine art as a whole.
“Fine art”, any original work of visual or graphic art of any media which shall include, but not limited to, any painting, print, drawing, sculpture, craft object, photograph, audio or video tape, film, hologram, or any combination thereof, of recognized quality.
“Gross negligence”, the exercise of so slight a degree of care as to justify the belief that there was an indifference to the particular work of fine art.
“Public view”, means on the exterior of a public owned building, or in an interior area of a public building.
(c) No person, except an artist who owns or possesses a work of fine art which the artist has created, shall intentionally commit, or authorize the intentional commission of any physical defacement, mutilation, alteration, or destruction of a work of fine art. As used in this section, intentional physical defacement, mutilation, alteration, or destruction includes any such action taken deliberately or through gross negligence.
(d) The artist shall retain the right to claim and receive credit under his own name or under a reasonable pseudonym or, for just and valid reason, to disclaim authorship of his work of fine art. Credit shall be determined in accord with the medium of expression and the nature and extent of the artist’s contribution to the work of fine art.
(e) The artist or any bona fide union or other artists’ organization authorized in writing by the artist for such purpose may commence an action in the superior court department of the trial court of the commonwealth without having as prerequisites to a suit any need for: (1) damages, already incurred, (2) a showing of special damages, if any, or (3) general damages in any monetary amount to recover or obtain any of the following (i) injunctive relief or declaratory relief, (ii) actual damages, (iii) reasonable attorneys’ and expert witness fees and all other costs of the action, or (iv) any other relief which the court deems proper.
(f) In determining whether a work of fine art is of recognized quality, the court shall rely on the opinions of artist, art dealers, collectors of fine art, curators of art museums, restorers and conservators of fine art and other persons involved with the creation or marketing of fine art.
(g) The provisions of this section shall, with respect to the artist, or if any artist is deceased, his heir, legatee, or personal representative, continue until the fiftieth anniversary of the death of such artist, continue in addition to any other rights and duties which may now or in the future be applicable, and except as provided in paragraph (1) of subdivision (h) may not be waived except by an instrument in writing expressly so providing which is signed by the artist and refers to specific works with identification and such waiver shall only apply to work so identified.
The attorney general may, if the artist is deceased, assert the rights of the artist on the artist’s behalf and commence an action for injunctive relief with respect to any work of art which is in public view.
(h)(1) If a work of fine art cannot be removed from a building without substantial physical defacement, mutilation, alteration, or destruction of such work, the rights and duties created under this section, unless expressly reserved by an instrument in writing signed by the owner of such building and properly recorded, prior to the installation of such art shall be deemed waived. Such instrument, if recorded, shall be binding on subsequent owners of such building.
(2) If the owner of a building wishes to remove a work of fine art which is a part of such building but which can be removed from the building without substantial harm to such fine art, the rights and duties created under this section shall apply unless the owner has diligently attempted without success to notify the artist, or, if the artist is deceased, his heir, legatee, or personal representative, in writing of his intended action affecting the work of fine art, or unless he did provide notice and that person failed within ninety days either to remove the work or to pay for its removal. If such work is removed at the expense of the artist, his heir, legatee, or personal representative, title to such fine art shall be deemed to be in such person.
Evidence Chapter 231: Section 85T. Negligence action for serving alcohol to intoxicated person prohibited; exceptions Section 85T. In any action for personal injuries, property damage or consequential damages caused by or arising out of the negligent serving of alcohol to an intoxicated person by a licensee properly licensed under chapter one hundred and thirty-eight or by a person or entity serving alcohol as an incident of its business but for which no license is required, no such intoxicated person who causes injuries to himself, may maintain an action against the said licensee or person or entity in the absence of wilful, wanton, or reckless conduct on the part of the licensee or such person or entity.
Evidence Chapter 231: Section 85U. Death or injury to unlawful dwelling occupants; liability of lawful occupants Section 85U. No person who is a lawful occupant of a dwelling shall be liable in an action for damages for death or injuries to an unlawful occupant of said dwelling resulting from the acts of said lawful occupant; provided, however, that said lawful occupant was in the dwelling at the time of the occurrence and that he acted in the reasonable belief that the person unlawfully in said lawful dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said lawful occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall not be a duty on said occupant to retreat from such person unlawfully in said dwelling.
Evidence Chapter 231: Section 85V. Sports program volunteers’ liability; definitions Section 85V. As used in this section, unless the context requires otherwise, the following words shall have the following meanings:—“Compensation”, shall not include reimbursement for reasonable expenses actually incurred or to be incurred or, in the case of umpires or referees, a modest honorarium.
“Nonprofit association”, an entity which is organized as a nonprofit corporation or nonprofit unincorporated association under the laws of the commonwealth or the United States or any entity which is authorized to do business in the commonwealth as a nonprofit corporation or unincorporated association under the laws of the commonwealth.
“Sports program”, baseball, softball, football, basketball, soccer and any other competitive sport formally recognized as a sport by the United States Olympic Committee as specified by and under the jurisdiction of the Amateur Sports Act of 1978 Public Law 95-606, 36 USC sec. 371 et seq.
, the Amateur Athletic Union or the National Collegiate Athletic Association. It shall be limited to a program or that portion of a program that is organized for recreational purposes and whose activities are substantially for such purposes and which is primarily for participants who are eighteen years of age or younger whose nineteenth birthday occurs during the year of participation or the competitive season, whichever is longer; provided, however, that there shall be no age limitation for programs operated for the physically handicapped or mentally retarded.
Except as otherwise provided, in this section, no person who without compensation and as a volunteer, renders services as a manager, coach, umpire or referee or as an assistant to a manager or coach in a sports program of a nonprofit association or who renders services to a sailing program of a nonprofit association, no nonprofit association conducting a sports or a sailing program, and no officer, director, trustee, or member thereof serving without compensation shall be liable to any person for any action in tort as a result of any acts or failures to act in rendering such services or in conducting such sports program. The immunity conferred by this section shall not apply to any acts or failures to act intentionally designed to harm, or to any grossly negligent acts or failures to act which result in harm to the person. Nothing in this section shall be construed to affect or modify any existing legal basis for determining the liability, or any defense thereto, of any person not covered by the immunity conferred by this section.
Nothing in this section shall be construed to affect or modify the liability of a person or nonprofit association for any of the following:(i) acts or failures to act which are committed in the course of activities primarily commercial in nature even though carried on to obtain revenue for maintaining the sports program or revenue used for other charitable purposes.
(ii) any acts or failures to act relating to the transportation of participants in a sports program or others to or from a game, event or practice.
(iii) acts or failures to act relating to the care and maintenance of real estate which such persons or nonprofit associations own, possess or control and which is used in connection with a sports program and or any other nonprofit association activity.
Evidence Chapter 231: Section 85W. Officers and directors of charitable corporations; tort liability Section 85W. Except as provided otherwise in this section and in section eighty-five V, no person who serves without compensation, other than reimbursement for actual expenses, as an officer, director or trustee of any nonprofit charitable organization including those corporations qualified under 26 USC section 501(c)(3) shall be liable for any civil damages as a result of any acts or omissions relating solely to the performance of his duties as an officer, director or trustee; provided, however, that the immunity conferred by this section shall not apply to any acts or omissions intentionally designed to harm or to any grossly negligent acts or omissions which result in harm to the person. Nothing in this section shall be construed as affecting or modifying any existing legal basis for determining the liability, or any defense thereto, of any person not covered by the immunity conferred by this section.
Nothing in this section shall be construed as affecting or modifying the liability of any person subject to this section for acts or omissions which are committed in the course of activities primarily commercial in nature even though carried on to obtain revenue to be used for charitable purposes, nor for any cause of action arising out of such person’s operation of an automobile.
Evidence Chapter 231: Section 85X. Loss of consortium of a dependent child; cause of action Section 85X. The parents of a minor child or an adult child who is dependent on his parents for support shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury.
Evidence Chapter 231: Section 85Y. Child care facilities; liability of owner of property for injury or damage on premises Section 85Y. Notwithstanding any general or special law to the contrary, the owner of any property containing premises operated by a person other than such owner as a child care facility shall not be subject to any claim, liability or penalty arising from or based upon any injury to person or loss or damage to property sustained or occurring on or about such premises unless such injury, loss or damage is proximately caused by the negligence or misconduct of such owner or its agents, contractors or employees. This section shall not be deemed to limit or otherwise modify the provisions of any lease or other contract between such owner and the operator of such child care facility. As used in this section, the term “child care facility” shall mean a day care center or a school age child care program, as those terms are defined in section nine of chapter twenty-eight A.
Evidence Chapter 231: Section 85Z. Conveyances without fair consideration by persons in contempt of an order or judgment for child support; civil action Section 85Z. A person who has been adjudged to be in contempt of an order or judgment for child support entered pursuant to chapter 119, 207, 208, 209, 209A, 209C, 209D or 273 who knowingly makes a conveyance without fair consideration to an individual shall be liable in a civil action to the obligee under said order or judgment in an amount equal to the value of the conveyance made.
A person shall not be liable hereunder if the conveyance made does not exceed $100 in value in any calendar year.
For the purpose of this section, conveyance shall mean any payment of money, gift, assignment, transfer or lease of tangible or intangible property.
A conveyance shall be deemed to be made without fair consideration unless the conveyance was made in exchange for property or goods of equal value or to satisfy an existing debt created in good faith.
Evidence Chapter 231: Section 86. Repealed, 1975, 377, Sec. 96 Evidence Chapter 231: Section 87. Pleadings as evidence; effect Section 87. In any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them.
Evidence Chapter 231: Section 88. Effect of unaccepted offer of judgment Section 88. An offer of judgment made under the provisions of the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure which is not accepted shall not be evidence against the party making it, either in a subsequent proceeding in the action in which it is made or in another action or suit.
Evidence Chapter 231: Section 89. Use at trial of answers to interrogatories Section 89. The answers of a party to interrogatories filed may be read by the other party as evidence at the trial. The party interrogated may require the whole of the answers upon any one subject matter inquired of to be read, if a part of them is read; but if no part is read, the party interrogated shall in no way avail himself of his examination or of the fact that he has been examined.
Declarations Chapter 231: Section 9. Action to recover possession of real property Section 9. In an action to recover possession of real property for a term of years or other interest, if the defendant is wrongfully in possession it shall not be material how he obtained such possession.
Evidence Chapter 231: Section 90. Repealed, 1975, 377, Sec. 98 Evidence Chapter 231: Section 91. Effect of unproved defense of truth in action of slander or libel; proof of statements not contained in pleadings Section 91. In an action of slander or libel, if the defendant alleges that the words spoken or published were true, such allegation, although not supported by the evidence, shall not of itself be proof of the malice alleged in the complaint, nor shall statements of the defendant differing in import from those alleged be admissible to establish his malice unless such statements were published in pursuance of a general scheme to defame or otherwise injure the plaintiff. If the plaintiff proposes to introduce evidence of statements of the defendant other than those contained in his pleadings, he shall give the defendant written notice of such intention, specifying the date and content of each such statement, at least fourteen days before trial begins, or earlier if the court so orders; and, if any such statement is introduced in evidence, the defendant shall be permitted to prove that it was true, or was privileged, or any other facts relating thereto which tend to negative malice.
Evidence Chapter 231: Section 91A. Radio or television broadcast; liability of owner of station, etc. Section 91A. The owner, operator or licensee of a radio or television station or network of such stations or the agent or servant of any such person shall not, in an action for slander or for publishing a libel, be held liable in damages for or on account of any defamatory matter uttered, broadcast, telecast or published over the radio or television facilities of any such station or network by any person whose utterance, broadcast, telecast or publication is not, under the provisions of any law of the United States or any regulation, ruling or order of the Federal Communications Commission, subject to censorship or control by such station or network.
Evidence Chapter 231: Section 91B. Statement relating to bank loan for purchase of goods or services as defense to claim for libel Section 91B. It shall be a defense to any claim for libel or slander brought by a vendor against a purchaser of goods or services that the statement on which the claim is based relates to a loan from a bank used to purchase such goods or services and was made by the purchaser in good faith to an agent or employee of such bank.
Evidence Chapter 231: Section 92. Truth as justification for libel Section 92. The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved.
Evidence Chapter 231: Section 93. Retraction of libel; mitigation of damages; punitive damages Section 93. Where the defendant in an action for libel, at any time after the publication of the libel hereinafter referred to, either before or after such action is brought, but before the answer is required to be filed therein, gives written notice to the plaintiff or to his attorney of his intention to publish a retraction of the libel, accompanied by a copy of the retraction which he intends to publish, and the retraction is published, he may prove such publication, and, if the plaintiff does not accept the offer of retraction, the defendant may prove such nonacceptance in mitigation of damages. If within a reasonable time after receiving notice in writing from the plaintiff that he claims to be libelled the defendant makes such offer and publishes a reasonable retraction, and such offer is not accepted, he may prove that the alleged libel was published in good faith and without actual malice, and, unless the proof is successfully rebutted, the plaintiff shall recover only for any actual damage sustained. In no action of slander or libel shall exemplary or punitive damages be allowed, whether because of actual malice or want of good faith or for any other reason. Proof of actual malice shall not enhance the damages recoverable for injury to the plaintiff’s reputation.
Evidence Chapter 231: Section 94. Evidence in mitigation of damages Section 94. In an action for libel, the defendant may allege and prove in mitigation of damages that the plaintiff already has brought action for or recovered damages for, or has received or has agreed to receive compensation in respect of, substantially the same libel as that for which such action was brought. In an action for libel or slander, he may introduce in evidence, in mitigation of damages and in rebuttal of evidence of actual malice, acts of the plaintiff which create a reasonable suspicion that the matters charged against him by the defendant are true.
Evidence Chapter 231: Section 94A. Probable cause as defence in action for false arrest Section 94A. If a person authorized to make an arrest shall have probable cause to believe that a misdemeanor for which he may make an arrest is being committed in his presence, such probable cause shall be a defence in an action brought against him for false arrest or imprisonment.
Evidence Chapter 231: Section 94B. False arrest; shoplifting; defrauding innkeepers; defenses Section 94B. In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant or an innkeeper, if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the merchant or innkeeper or his agent or servant authorized for such purpose and if there were reasonable grounds to believe that the person so detained was committing or attempting to commit a violation of section thirty A of chapter two hundred and sixty-six, or section twelve of chapter one hundred and forty, or was committing or attempting to commit larceny of goods for sale on such premises or larceny of the personal property of employees or customers or others present on such premises, it shall be a defense to such action.
Evidence Chapter 231: Section 94C. False arrest; theft of public records; defenses Section 94C. In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the custodian of the record, it shall be a defense to such action if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the custodian or his agent authorized for such purpose and if reasonable grounds existed at the time of such detention to believe that such person so detained was committing or attempting to commit a violation of section one hundred and forty-five of chapter two hundred and sixty-six.
Evidence Chapter 231: Section 95. Defense to action on default judgment Section 95. In an action upon a judgment obtained by default and without the knowledge of the defendant, brought within six years after the rendition thereof, the court may, in its discretion and upon terms, allow the defendant to show in defense any payment, satisfaction or extinguishment of the claim, prior to the obtaining of such judgment, or any matter of fraud, which in either case he might have shown in the original suit upon a motion for relief from judgment.
Appeals Chapter 231: Section 96. Relief from final judgment; vacation; effect of attachment Section 96. On motion made pursuant to the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure, and upon such terms as are just, a court may relieve a party or his legal representative from a final judgment. If no attachment was made in the action, such relief may be granted and execution stayed without security; but if there was such attachment, the amount of the bond shall be fixed at the actual value of the property attached, as agreed by the parties or determined by the court. Liability upon an attachment made or bond given in the original action shall not continue after the judgment has been vacated, except that if the prevailing party has been relieved from judgment under this section within thirty days of the entry thereof, such liability shall, if a subsequent judgment is rendered, continue during such time thereafter as it would have continued upon the original judgment had it not been vacated.
Appeals Chapter 231: Section 96A. Repealed, 1947, 361 Appeals Chapter 231: Section 97. Appeal to superior court [Text of section applicable as provided by 2004, 252, Sec. 23.
] Section 97. Unless a written waiver of the right of appeal has been filed by all the parties, a party aggrieved by the judgment of a district court in a civil action may appeal therefrom to the superior court within 6 days after the entry thereof. In that case no execution shall be issued on the judgment appealed from. The case shall be entered in the superior court pursuant to section 101 and shall there be tried and determined as if originally entered therein. This section shall not apply to civil actions for money damages and to summary process actions brought in the district court and Boston municipal court departments pursuant to section 19 of chapter 218 and chapter 239.
Appeals Chapter 231: Section 98. Appeal bond [Text of section applicable as provided by 2004, 252, Sec. 23.
] Section 98. No appeal, other than an appeal by a county, city, town or other municipal corporation, from a judgment of a district court in any civil action or proceeding, except an action of summary process under chapter two hundred and thirty-nine, or a civil action for money damages in the district court and Boston municipal court departments pursuant to section 19 of chapter 218, shall be allowed, except as provided in section ninety-nine, unless the appellant, within six days after the entry of judgment, or within such further time as the justice or clerk for cause shown allows, files a bond executed by him or by his attorney of record on his behalf, payable to the appellee in such reasonable sum and with such surety or sureties as may be approved by the appellee or by the justice or clerk, conditioned to enter and prosecute his appeal with effect, and to satisfy any judgment for costs which may be entered against him in the superior court upon said appeal within thirty days after the entry thereof.
Appeals Chapter 231: Section 99. Deposit in lieu of appeal bond Section 99. The appellant or any person in his behalf, instead of filing a bond as provided in the preceding section, may deposit with the clerk, within the time required for filing a bond, a reasonable amount, to be fixed by the clerk or justice, as security for the prosecution of the appeal and the payment of costs. A certificate of such deposit shall be issued to the depositor by the clerk or justice, and the deposit shall be transmitted by him with the papers to the clerk of the superior court, who shall thereupon deliver a receipt therefor to such clerk or justice and shall hold such deposit until the final disposition of the case, when he shall pay it, or any part thereof, to the appellee for his costs, or to the depositor thereof, as the court may order. The superior court may give directions as to the manner of keeping such deposit.
questions Section 1. The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity or not; and such proceeding shall not be open to objection on the ground that a merely declaratory judgment or decree is sought thereby and such declaration, when made, shall have the force and effect of a final judgment or decree and be reviewable as such; provided, that nothing contained herein shall be construed to authorize the change, extension or alteration of the law regulating the method of obtaining service on, or jurisdiction over, parties or affect their right to trial by jury. When a declaration of right, or the granting of further relief based thereon, shall involve the determination of issues of fact triable by a jury as of right and as to which a jury trial is duly claimed by the party entitled thereto, or issues which the court, in accordance with the practice of courts of equity, considers should be tried by a jury, such issues may be submitted to a jury in the form of questions, with proper instructions by the court, whether a general verdict be required or not.
procedure is applicable Section 2. The procedure under section one may be used to secure determinations of right, duty, status or other legal relations under deeds, wills or written contracts or other writings constituting a contract or contracts or under the common law, or a charter, statute, municipal ordinance or by-law, or administrative regulation, including determination of any question of construction or validity thereof which may be involved in such determination. Said procedure under section one may be used in the superior court to enjoin and to obtain a determination of the legality of the administrative practices and procedures of any municipal, county or state agency or official which practices or procedures are alleged to be in violation of the Constitution of the United States or of the constitution or laws of the commonwealth, or are in violation of rules or regulations promulgated under the authority of such laws, which violation has been consistently repeated; provided, however, that this section shall not apply to the governor and council or the legislative and judicial departments. For the purpose of this section practices or procedures mean the customary and usual method of conducting municipal, county, state agency or official business.
The foregoing enumeration shall not limit or restrict the exercise of the general powers conferred in section one in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
Section 3. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceedings or for other sufficient reasons. The reasons for such refusal shall be stated in the record. The failure to exhaust administrative relief prior to bringing an action under section one shall not bar the bringing of such action if the petition for declaratory relief is accompanied by an affidavit stating that the practice or procedure set forth pursuant to the provisions of section two is known to exist by the agency or official therein described and that reliance on administrative relief would be futile. For the purposes of this section practice or procedure means the customary and usual method of conducting agency or official business.
Section 4. All orders, judgments, decrees and refusals under this chapter may be reviewed as other orders, judgments and decrees.
Section 5. Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith.
In addition to the foregoing when a decree has already been entered declaring an administrative practice or procedure as defined in section two to be illegal, and a person not a party to the original action involving said practice or procedure is adversely affected by the same or similar practice or procedure by the same agency, said person may seek relief under this chapter by filing a petition for contempt against the agency or agent continuing said practice or procedure after the entry of said decree.
Section 6. In any action heretofore or hereafter brought to obtain a judgment or other consequential relief, whether such judgment or relief is granted or not, the court may make a binding determination as provided in this chapter upon application of any party made in his pleadings.
Section 7. In an action wherein a judgment or other consequential relief is sought, the costs shall not be affected by the making or refusal of any determination; but in an action for a determination only, under this chapter, costs shall be wholly in the discretion of the court.
Section 8. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or by-law or of a franchise, license, easement or other privilege granted by the commonwealth or a municipality thereof, the municipality, or the agency granting the privilege, as the case may be, shall be made a party and shall be entitled to be heard. If a question of constitutionality is involved in any proceeding under this chapter, the attorney general shall also be notified of the proceeding and be entitled to be heard.
Nothing set forth in this section shall bar the bringing of a class action for declaratory relief pursuant to the new rules of civil procedure.
Following entry of a final decree or order favorable to the petitioner or petitioners in a class suit, any member of said class thereafter aggrieved by any violation of said order or decree shall be entitled to compel compliance therewith by instituting contempt proceedings in said class suit.
provisions Section 9. This chapter is declared to be remedial. Its purpose is to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations, and it is to be liberally construed and administered. Nothing in this chapter shall be held to affect the jurisdiction of the land court, and the procedure established hereby shall be in addition to any other procedure for declaratory relief.
Section 1. (a) Except as otherwise provided in this chapter, where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them even though judgment has not been recovered against all or any of them.
(b) The right of contribution shall exist only in favor of a joint tortfeasor, hereinafter called tortfeasor, who has paid more than his pro rata share of the common liability, and his total recovery shall be limited to the amount paid by him in excess of his pro rata share. No tortfeasor shall be compelled to make contribution beyond his own pro rata share of the entire liability.
(c) A tortfeasor who enters into a settlement with a claimant shall not be entitled to recover contribution from another tortfeasor in respect to any amount paid in a settlement which is in excess of what was reasonable.
(d) A liability insurer, who by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer, shall be subrogated to the tortfeasor’s right of contribution to the extent of the amount it has paid in excess of the tortfeasor’s pro rata share of the common liability. This provision shall not limit or impair any right of subrogation arising from any other relationship.
(e) This chapter shall not impair any right of indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee shall be for indemnity and not contribution, and the indemnity obligor shall not be entitled to contribution from the obligee for any portion of his indemnity obligation.
liability; determination Section 2. In determining the pro rata shares of tortfeasors in the entire liability (a) their relative degrees of fault shall not be considered; (b) if equity requires, the collective liability of some as a group shall constitute a single share; and (c) principles of equity applicable to contribution generally shall apply.
of judgment against one tortfeasor; judgment determining liability Section 3. (a) Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury, contribution may be enforced by separate action.
(b) Where a judgment has been entered in an action against two or more tortfeasors for the same injury, contribution may be enforced in that action by judgment in favor of one against other judgment defendants by motion upon notice to all parties to the action.
(c) If there is a judgment for the injury against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review.
(d) If there is no judgment for the injury against the tortfeasor seeking contribution, his right of contribution shall be barred unless he has either (1) discharged by payment the common liability within the statute of limitations period applicable to claimant’s right of action against him and has commenced his action for contribution within one year after payment, or (2) agreed while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution.
(e) The recovery of a judgment for an injury against one tortfeasor shall not of itself discharge the other tortfeasors from liability for the injury unless the judgment is satisfied. The satisfaction of the judgment shall not impair any right of contribution.
(f) The judgment of the court in determining the liability of the several defendants to the claimant for an injury shall be binding as among such defendants in determining their right to contribution.
tortfeasors; effect Section 4. When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury:(a) It shall not discharge any of the other tortfeasors from liability for the injury unless its terms so provide; but it shall reduce the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and(b) It shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.
Section 1. For the purposes of this chapter the following words shall have the following meanings unless the context otherwise requires:“Annuity issuer”, an insurer that has issued an annuity contract to be used to fund periodic payments under a structured settlement.
“Applicable law”, any of the following, as applicable in interpreting the terms of a structured settlement:(1) the laws of the United States;(2) the laws of the commonwealth, including principles of equity applied in the courts of the commonwealth; and(3) the laws of any other jurisdiction; (i) that is the domicile of the payee or any other interested party; (ii) under whose law a structured settlement agreement was approved by a court or responsible administrative authority; or (iii) in whose courts a settled claim was pending when the parties entered into a structured settlement agreement.
“Applicable federal rate”, the most recently published applicable rate for determining the present value of an annuity, as issued by the United States Internal Revenue Service pursuant to section 7520 of the United States Internal Revenue Code.
“Assignee”, a party that acquires structured settlement payment rights directly or indirectly from a transferee of such rights.
“Dependents”, a payee’s spouse and minor children and all other family members and other persons from whom the payee is legally obligated to provide support, including spousal maintenance.
“Discount/finance charge”, the sum of all charges payable directly or indirectly from assigned structured settlement payments and imposed directly or indirectly by the transferee as an incident to a transfer of structured settlement payment rights, including:(1) interest charges, discounts and other compensation for the time value of money;(2) all application, origination, processing, underwriting, closing, filing and notary fees and all similar charges, however denominated; and(3) all charges for commissions or brokerage, irrespective of the identity of the party to whom such charges are paid or payable.
The term discount/finance charge shall not include any fee or other obligation incurred by a payee in obtaining independent professional advice concerning a transfer of structured settlement payment rights.
“Discounted present value”, with respect to a proposed transfer of structured settlement payment rights, the fair present value of future payments, as determined by discounting the payments to the present using the most recently published applicable federal rate as the discount rate.
“Independent professional advice”, advice of an attorney, certified public accountant, actuary, or other licensed professional advisor:(1) who is engaged by a payee to render advice concerning the legal, tax and financial implications of a transfer of structured settlement payment rights;(2) who is not in any manner affiliated with or compensated by the transferee of the transfer; and(3) whose compensation for providing the advice is not affected by whether or not a transfer occurs.
“Interested party”, with respect to any structured settlement, the following:(1) the payee;(2) a beneficiary irrevocably designated under the annuity contract to receive payments following the payee’s death or, if such designated beneficiary is a minor, the designated beneficiary’s parent or guardian;(3) the annuity issuer;(4) the structured settlement obligor; and(5) any other party that has continuing rights or obligations under the structured settlement.
“Payee”, an individual who is receiving tax free damage payments under a structured settlement and proposes to make a transfer of payment rights under the structured settlement.
“Qualified assignment agreement”, an agreement providing for a qualified assignment as provided by the United States Internal Revenue Code, Title 26, section 130.
“Responsible administrative authority”, with respect to a structured settlement, a government authority vested by law with exclusive jurisdiction over the settled claim resolved by the structured settlement.
“Settled claim”, the original tort claim or workers’ compensation claim resolved by a structured settlement.
“Structured settlement”, an arrangement for periodic payment of damages for personal injuries or sickness established by settlement or judgment in resolution of a tort claim or for periodic payments in settlement of a workers’ compensation claim.
“Structured settlement agreement”, the agreement, judgment, stipulation, or release embodying the terms of a structured settlement, including the rights of the payee to receive periodic payments.
“Structured settlement obligor”, the party that has the obligation to make continuing periodic payments to the payee under a structured settlement agreement or a qualified assignment agreement.
“Structured settlement payment rights”, rights to receive periodic payments, including lump sum payment under a structured settlement, whether from the settlement obligor or the annuity issuer, where:(1) the payee or any other interested party is domiciled in the state;(2) the structured settlement agreement was approved by a court or responsible administrative authority in the commonwealth; or(3) the settled claim was pending before a court of the commonwealth when the parties entered into the structured settlement agreement.
“Terms of the structured settlement”, the terms of the structured settlement agreement, the annuity contract, a qualified assignment agreement and an order or approval of a court, responsible administrative authority or other government authority authorizing or approving the structured settlement.
“Transfer”, a sale, assignment, pledge, hypothecation, or other form of alienation or encumbrance made by a payee for consideration.
“Transfer agreement”, the agreement providing for transfer of structured settlement payment rights from a payee to a transferee.
“Transferee”, a person who is receiving or will receive structured settlement payment rights resulting from a transfer.
Section 1. The payment or tender of payment of the whole amount due on a contract for the payment of money after it is due and payable and before action is commenced shall, if pleaded, have the same effect as if made at the time provided in the contract. Such payment or tender may also be made after action has been commenced if made at least four days prior to the date by which the answer must be filed, with costs to the time of payment or tender. The tender last mentioned may be made to the plaintiff or to his attorney in the action, and, if not accepted, the defendant may avail himself of the tender in defense in like manner as if made before the commencement of the action, bringing into court the amount so tendered.
Section 2. If such tender is accepted, the parties shall file a stipulation of dismissal in the court in which the action is pending.
Section 3. A person upon whose property a lien is claimed may make in any proceeding a tender or an offer of judgment relating thereto in like manner and with like effect as in matters of contract.
Chapter 233: Section 1. Issuance of summonses for witnesses Section 1. A clerk of a court of record, a notary public or a justice of the peace may issue summonses for witnesses in all cases pending before courts, magistrates, auditors, referees, arbitrators or other persons authorized to examine witnesses, and at all hearings upon applications for complaints wherein a person may be charged with the commission of a crime; but a notary public or a justice of the peace shall not issue summonses for witnesses in criminal cases except upon request of the attorney general, district attorney or other person who acts in the case in behalf of the commonwealth or of the defendant. If the summons is issued at the request of the defendant that fact shall be stated therein. The summons shall be in the form heretofore adopted and commonly used, but may be altered from time to time like other writs.
Chapter 233: Section 10. Enforcing attendance before nonjudicial tribunal Section 10. A justice of the supreme judicial or the superior court, upon application of a tribunal authorized to summon but not to compel the attendance of witnesses and the giving of testimony before it, may, in his discretion, compel the attendance of such witnesses and the giving of testimony before any such tribunal, in the same manner and to the same extent as before said courts.
Chapter 233: Section 11. Requiring testimony Section 11. A justice of the supreme judicial or the superior court, upon the application of a magistrate or tribunal authorized to summon and compel the attendance of witnesses may, in his discretion, compel the giving of testimony by them before such magistrate or tribunal, in the same manner and to the same extent as before said courts.
Chapter 233: Section 12. Summons for attendance at criminal trial outside state Section 12. A justice of the peace, upon receipt of a certificate of the clerk of a court of record in the state of Maine or in a state adjoining this commonwealth that a criminal prosecution is pending in such court, and that a resident of the commonwealth is supposed to be a material witness therein, shall issue a summons requiring such witness to appear and testify at the court in which such case is pending.
Chapter 233: Section 13. Penalty for nonattendance outside state Section 13. If the person on whom such summons is served is paid or tendered double the fees allowed by law for travel and attendance of witnesses in the supreme judicial court, and double traveling expenses for the whole distance out and home by the ordinary traveled route, he shall, if he neglects without good cause to attend as a witness at the court named in such summons, forfeit not more than three hundred dollars.
Chapter 233: Section 13A. Attendance of witnesses outside state; hearing and summons; failure to attend Section 13A. If a certificate wherein a judge of a court of record in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal actions, prosecutions and other criminal proceedings pending, or grand jury investigations and other proceedings commenced or about to commence, in this commonwealth certifies under the seal of such court that there is a criminal proceeding pending in such court, or that a grand jury investigation or proceeding has commenced or is about to commence within the jurisdiction of such court, that a person being within this commonwealth is a material witness in such proceeding or investigation and that his presence will be required for a specified number of days, is presented to a justice of the superior court sitting in and for the county, or the justice or a special justice of the district court in the judicial district, in which such person is, such justice or special justice shall make an order directing such person to appear at a time and place certain for a hearing upon the question of compelling his attendance at such proceeding or investigation.
If at the hearing the justice or special justice determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the proceeding or investigation in such other state, and that the laws of such other state and of any other state through which the witness may be required to pass by the ordinary traveled route will give to him protection from arrest and the service of process, civil or criminal, as provided in section thirteen C, he shall issue a summons, which term shall include a subpoena, order or other notice requiring the appearance of a witness in any state where such process is used in lieu of a summons, with a copy of such certificate attached, directing the witness to attend and testify in the court where the proceeding is pending, or before the grand jury before which the investigation or proceeding has commenced or is about to commence, at a time and place specified in the summons. At any such hearing such certificate shall be prima facie evidence of all the facts stated therein.
If in any such certificate it is recommended that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance at such a proceeding or investigation therein, such justice or special justice may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for said hearing and the justice or special justice at the hearing, if satisfied of the desirability of such custody and delivery, for which determination such certificate shall be prima facie evidence of such desirability, may, in lieu of issuing a summons, order that said witness be taken into custody and delivered to an officer of the requesting state.
If a witness who is summoned as hereinbefore provided, after being paid or tendered by some properly authorized person the sum of ten cents a mile for each mile by the ordinary traveled route to and from the place where the proceeding is pending, or the grand jury investigation or proceeding has commenced or is about to commence, and five dollars for each day that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of a witness who disobeys a summons issued from a court of record of this commonwealth.
Chapter 233: Section 13B. Attendance of witness from another state; fees; failure to attend Section 13B. If a person in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal proceedings pending, or grand jury investigations and proceedings commenced or about to commence, in this commonwealth is a material witness in a criminal proceeding pending in a court of record of this commonwealth, or in a grand jury investigation or proceeding which has commenced or is about to commence within the jurisdiction of such a court of record, a justice or special justice of such court may issue a certificate under the seal of the court, stating such facts and specifying the number of days the witness will be required, which certificate may be presented in accordance with the laws of such other state to a magistrate or officer thereof for appropriate action to secure the attendance of such witness in this commonwealth. Such certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this commonwealth to assure his attendance in this commonwealth.
If the witness is summoned to attend and testify in this commonwealth he shall be tendered the sum of ten cents a mile for each mile by the ordinary traveled route to and from the place where the criminal proceeding is pending, or the grand jury investigation or proceeding has commenced or is about to commence, and five dollars for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this commonwealth a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court having jurisdiction of the criminal proceeding or grand jury investigation or proceeding; and any court order that such witness remain after the time for which he was summoned shall be conditioned upon the immediate tender to him of five dollars for each day during which his further attendance as a witness is ordered. If such a witness, after coming into this commonwealth, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of a witness who disobeys a summons issued from a court of record of this commonwealth.
Chapter 233: Section 13C. Exemption from arrest and process of witnesses from outside state Section 13C. If a person comes into this commonwealth in obedience to a summons or order directing him to attend and testify in a criminal proceeding or grand jury investigation or proceeding in this commonwealth he shall not, while in this commonwealth pursuant to such summons or order, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this commonwealth under the summons or order.
If a person passes through this commonwealth while going to another state in obedience to a summons or order to attend and testify in a criminal proceeding or grand jury investigation or proceeding in that state, or while returning therefrom, he shall not, while so passing through this commonwealth, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this commonwealth under the summons or order.
Nothing in this section or either of the two preceding sections shall preclude action under sections twelve and thirteen or under similar reciprocal provisions of law in other states.
Chapter 233: Section 13D. Short title; construction of law Section 13D. Sections thirteen A to thirteen C, inclusive, may be cited as the uniform law to secure the attendance of witnesses from without a state in criminal proceedings, and shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of the states which enact similar laws.
Chapter 233: Section 14. Persons authorized to administer oaths Section 14. Arbitrators, referees, masters and auditors appointed according to law may administer oaths or affirmations to all persons offered as witnesses before them.
Chapter 233: Section 15. Mode of administering oaths Section 15. The usual mode of administering oaths now practiced in the commonwealth, with the ceremony of holding up the hand, shall be observed in all cases in which an oath may be administered by law, except as provided in sections sixteen to nineteen, inclusive.
Chapter 233: Section 16. Mode requested by affiant Section 16. If a person to be sworn declares that a different mode of taking the oath is in his opinion more solemn and obligatory than the upholding of the hand, the oath may be administered in such mode.
Chapter 233: Section 17. Affirmation by Quakers Section 17. A Friend or Quaker when called on to take an oath may solemnly and sincerely affirm under the penalties of perjury.
Chapter 233: Section 18. Affirmation for reasons of conscience Section 18. A person who declares that he has conscientious scruples against taking an oath shall, when called upon for that purpose, be permitted to affirm in the manner prescribed for Quakers, if the court or magistrate on inquiry is satisfied of the truth of such declaration.
Chapter 233: Section 19. Oaths of non-Christians Section 19. A person believing in any other than the Christian religion may be sworn according to the appropriate ceremonies of his religion. A person not a believer in any religion shall be required to testify truly under the penalties of perjury, and evidence of his disbelief in the existence of God may not be received to affect his credibility as a witness.
Chapter 233: Section 2. Service of summons Section 2. Such summons may be served in any county by an officer qualified to serve civil process or by a disinterested person by exhibiting and reading it to the witness, by giving him a copy thereof or by leaving such copy at his place of abode.
Chapter 233: Section 20. Competency of witnesses; husband and wife; criminal defendant; parent and child Section 20. Any person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal, in court or before a person who has authority to receive evidence, except as follows:First, Except in a proceeding arising out of or involving a contract made by a married woman with her husband, a proceeding under chapter two hundred and nine D and in a prosecution begun under sections one to ten, inclusive, of chapter two hundred and seventy-three, any criminal proceeding in which one spouse is a defendant alleged to have committed a crime against the other spouse or to have violated a temporary or permanent vacate, restraining, or no-contact order or judgment issued pursuant to section eighteen, thirty-four B or thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, section three, three B, three C, four, or five of chapter two hundred and nine A, or sections fifteen or twenty of chapter two hundred and nine C, or a similar protection order issued by another jurisdiction, obtained by the other spouse, and except in a proceeding involving abuse of a person under the age of eighteen, including incest, neither husband nor wife shall testify as to private conversations with the other.
Second, Except as otherwise provided in section seven of chapter two hundred and seventy-three and except in any proceeding relating to child abuse, including incest, neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other;Third, The defendant in the trial of an indictment, complaint or other criminal proceeding shall, at his own request, but not otherwise, be allowed to testify; but his neglect or refusal to testify shall not create any presumption against him.
Fourth, An unemancipated, minor child, living with a parent, shall not testify before a grand jury, trial of an indictment, complaint or other criminal proceeding, against said parent, where the victim in such proceeding is not a member of said parent’s family and who does not reside in the said parent’s household. For the purposes of this clause the term “parent” shall mean the natural or adoptive mother or father of said child.
Chapter 233: Section 20A. Privileged communications; communications with clergymen Section 20A. A priest, rabbi or ordained or licensed minister of any church or an accredited Christian Science practitioner shall not, without the consent of the person making the confession, be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs; nor shall a priest, rabbi or ordained or licensed minister of any church or an accredited Christian Science practitioner testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.
Chapter 233: Section 20B. Privileged communications; patients and psychotherapists; exceptions Section 20B. The following words as used in this section shall have the following meanings:—“Patient”, a person who, during the course of diagnosis or treatment, communicates with a psychotherapist;“Psychotherapist”, a person licensed to practice medicine, who devotes a substantial portion of his time to the practice of psychiatry. “Psychotherapist” shall also include a person who is licensed as a psychologist by the board of registration of psychologists; a graduate of, or student enrolled in, a doctoral degree program in psychology at a recognized educational institution as that term is defined in section 118, who is working under the supervision of a licensed psychologist; or a person who is a registered nurse licensed by the board of registration in nursing whose certificate of registration has been endorsed authorizing the practice of professional nursing in an expanded role as a psychiatric nurse mental health clinical specialist, pursuant to the provisions of section eighty B of chapter one hundred and twelve.
“Communications” includes conversations, correspondence, actions and occurrences relating to diagnosis or treatment before, during or after institutionalization, regardless of the patient’s awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes of the foregoing.
Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition. This privilege shall apply to patients engaged with a psychotherapist in marital therapy, family therapy, or consultation in contemplation of such therapy.
If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his behalf under this section. A previously appointed guardian shall be authorized to so act.
Upon the exercise of the privilege granted by this section, the judge or presiding officer shall instruct the jury that no adverse inference may be drawn therefrom.
The privilege granted hereunder shall not apply to any of the following communications:—(a) If a psychotherapist, in the course of his diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided however that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities.
(b) If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such communications shall be admissible only on issues involving the patient’s mental or emotional condition but not as a confession or admission of guilt.
(c) In any proceeding, except one involving child custody, adoption or adoption consent, in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.
(d) In any proceeding after the death of a patient in which his mental or emotional condition is introduced by any party claiming or defending through or as a beneficiary of the patient as an element of the claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected.
(e) In any case involving child custody, adoption or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, in the exercise of his discretion, determines that the psychotherapist has evidence bearing significantly on the patient’s ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between patient and psychotherapist be protected; provided, however, that in such cases of adoption or the dispensing with the need for consent to adoption, a judge shall determine that the patient has been informed that such communication would not be privileged.
(f) In any proceeding brought by the patient against the psychotherapist, and in any malpractice, criminal or license revocation proceeding, in which disclosure is necessary or relevant to the claim or defense of the psychotherapist.
The provision of information acquired by a psychotherapist relative to the diagnosis or treatment of a patient’s emotional condition, to any insurance company, nonprofit hospital service corporation, medical service corporation, or health maintenance organization, or to a board established pursuant to section twelve of chapter one hundred and seventy-six B, pertaining to the administration or provision of benefits, including utilization review or peer review, for expenses arising from the out-patient diagnosis or treatment, or both, of mental or nervous conditions, shall not constitute a waiver or breach of any right to which said patient is otherwise entitled under this section and section thirty-six B of chapter one hundred and twenty-three.
Chapter 233: Section 20C. Immunity from prosecution; privilege against self-incrimination Section 20C. In any investigation or proceeding before a grand jury, or in a criminal proceeding in the supreme judicial court, appeals court or superior court involving any offense listed in section 20D, a witness shall not be excused from testifying or from producing books, papers or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture, if he has been granted immunity with respect to the transactions, matters or things concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence by a justice of the supreme judicial court, appeals court or superior court, as provided in section 20E.
Chapter 233: Section 20D. Crimes subject to immunity Section 20D. A witness who is called or who may be called to testify before a grand jury or in a criminal proceeding in the supreme judicial court, appeals court or superior court may, in the manner provided in section twenty E, be granted immunity in any proceeding or investigation involving the following crimes: abortion, arson, assault and battery to collect a loan, assault and battery by means of a dangerous weapon, assault to murder, breaking and entering a dwelling house or a building, bribery, burning of a building or dwelling house or other property, burglary, counterfeiting, deceptive advertising, electronic eavesdropping, embezzlement, extortion, firearm violations, forgery, fraudulent personal injury and property damage claims, violation of the gaming laws, gun registration violations, intimidation of a witness or of a juror, insurance law violations, kidnapping, larceny, lending of money or thing of value in violation of the general laws, liquor law violations, mayhem, murder, violation of the narcotic or harmful drug laws, perjury, prostitution, violations of environmental control laws (pollution), violations of conflicts of interest laws, consumer protection laws, pure food and drug law violations, receiving stolen property, robbery, subornation of perjury, uttering, or any felony, being an accessory to any of the foregoing offenses and conspiracy or attempt or solicitation to commit any of the foregoing offenses.
Chapter 233: Section 20E. Application for witness immunity by attorney general or district attorney; hearing; representation of witness; notice or waiver; transcript Section 20E. (a) A justice of the supreme judicial court, appeals court or superior court shall, at the request of the attorney general or a district attorney, and after a hearing, issue an order granting immunity to a witness, provided that such justice finds that the investigation or proceeding before the grand jury or the criminal proceeding in the supreme judicial court, appeals court or superior court involves an offense listed in section 20D and that the witness did validly refuse, or is likely to refuse, to answer questions or produce evidence on the grounds that such testimony or such evidence might tend to incriminate him. If such justice so finds, such justice shall order the witness to answer the questions or produce the evidence requested and, if he so orders, such order and the order granting immunity shall be in writing and shall become effective upon the refusal of the witness to answer any question or produce any evidence requested on the basis of his privilege against self-incrimination.
(b) The witness shall be entitled to representation by an attorney at the hearing, which shall not be open to the public. The court may appoint counsel for the witness.
(c) An application filed pursuant to this section shall, at the request of the attorney general or a district attorney, act to stay any criminal proceedings in the supreme judicial court, appeals court or superior court, but not grand jury proceedings, until such time as a justice acts upon such application; provided, however, that a justice shall conduct an expedited hearing when such application is brought after the impanelment of a jury in the superior court.
(d) When the attorney general or a district attorney brings such application, he shall, at least three days before the date fixed for hearing on his application, send by certified mail or deliver a copy of such application to the attorney general and to each other district attorney in the commonwealth. The attorney general and any of the district attorneys may waive, either orally or in writing, his right to be served with such application. The attorney general and any such district attorney may file an appearance and have the right to be heard at the hearing as herein provided.
(e) An affidavit of proof of service or, in the alternative, waiver of such service, upon each district attorney and the attorney general shall be filed with the court.
(f) A transcript shall be made of the proceedings at the hearing and a certified copy of said transcript shall be transmitted to the grand jury or the court, whichever is appropriate.
Chapter 233: Section 20F. Repealed, 1998, 188, Sec. 5 Chapter 233: Section 20G. Scope of immunity; copies of transcript of testimony compelled and documents furnished; availability to witness Section 20G. A witness who has been granted immunity as provided in section 20E shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction matter, or thing concerning which he is so compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal or civil proceeding against him in any court of the commonwealth, except in a prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion, pursuant to section 20C or 20E.
A witness who has been granted immunity shall be given a certified copy of the transcript, if he so requests, of any testimony that he furnished in compliance with an order of the court to testify, and shall be given a copy of all documents he has furnished in compliance with such order.
A transcript of said testimony and copies of said documents shall be maintained by the supreme court, appeals court or superior court, and shall be available at the request of such witness in any subsequent proceeding involving the witness.
Chapter 233: Section 20H. Contempt of court; punishment; appeal Section 20H. If a witness has been granted immunity pursuant to the provisions of section twenty E by a justice of the supreme judicial court, appeals court or superior court and thereafter refuses to testify or produce evidence after being so ordered by such justice, the attorney general or district attorney shall institute contempt proceedings against such witness in the court where the alleged contempt occurred, and, after hearing or trial, if such witness is adjudged in contempt of court, he shall be punished by imprisonment in the house of correction for a term not to exceed one year or until he complies with the order of the court, whichever occurs first. The rules of practice and procedure relative to criminal appeals as provided by the Massachusetts Rules of Criminal Procedure and the Massachusetts Rules of Appellate Procedure shall apply to appeals under this section.
Chapter 233: Section 20I. Necessity of corroborating testimony of, or evidence produced by, person granted immunity Section 20I. No defendant in any criminal proceeding shall be convicted solely on the testimony of, or the evidence produced by, a person granted immunity under the provisions of section twenty E.
Chapter 233: Section 20J. Sexual assault; confidential communications with sexual assault counsellor; disclosure; discovery Section 20J. As used in this section the following words, unless the context clearly requires otherwise, shall have the following meaning:—“Rape crisis center”, any office, institution or center offering assistance to victims of sexual assault and the families of such victims through crisis intervention, medical and legal counseling.
“Sexual assault counsellor”, a person who is employed by or is a volunteer in a rape crisis center, has undergone thirty-five hours of training, who reports to and is under the direct control and supervision of a licensed social worker, nurse, psychiatrist, psychologist or psychotherapist and whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.
“Victim”, a person who has suffered a sexual assault and who consults a sexual assault counsellor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by such sexual assault.
“Confidential communication”, information transmitted in confidence by and between a victim of sexual assault and a sexual assault counsellor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term includes all information received by the sexual assault counsellor which arises out of and in the course of such counseling and assisting, including, but not limited to reports, records, working papers or memoranda.
A sexual assault counsellor shall not disclose such confidential communication, without the prior written consent of the victim; provided, however, that nothing in this chapter shall be construed to limit the defendant’s right of cross-examination of such counsellor in a civil or criminal proceeding if such counsellor testifies with such written consent.
Such confidential communications shall not be subject to discovery and shall be inadmissible in any criminal or civil proceeding without the prior written consent of the victim to whom the report, record, working paper or memorandum relates.
Chapter 233: Section 20K. Domestic violence victims’ counselors; confidential communications Section 20K. As used in this section the following words shall unless the context clearly requires otherwise have the following meanings:—“Abuse”, causing or attempting to cause physical harm; placing another in fear of imminent physical harm; causing another to engage in sexual relations against his will by force, threat of force, or coercion.
“Confidential communication”, information transmitted in confidence by and between a victim and a domestic violence victims’ counselor by a means which does not disclose the information to a person other than a person present for the benefit of the victim, or to those to whom disclosure of such information is reasonably necessary to the counseling and assisting of such victim. The term includes all information received by the domestic violence victims’ counselor which arises out of and in the course of such counseling and assisting, including, but not limited to, reports, records, working papers, or memoranda.
“Domestic violence victims’ counselor”, a person who is employed or volunteers in a domestic violence victims’ program, who has undergone a minimum of twenty-five hours of training and who reports to and is under the direct control and supervision of a direct service supervisor of a domestic violence victims’ program, and whose primary purpose is the rendering of advice, counseling or assistance to victims of abuse.
“Domestic violence victims’ program”, any refuge, shelter, office, safe home, institution or center established for the purpose of offering assistance to victims of abuse through crisis intervention, medical, legal or support counseling.
“Victim”, a person who has suffered abuse and who consults a domestic violence victims’ counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by such abuse.
A domestic violence victims’ counselor shall not disclose such confidential communication without the prior written consent of the victim, except as hereinafter provided. Such confidential communication shall not be subject to discovery in any civil, legislative or administrative proceeding without the prior written consent of the victim to whom such confidential communication relates. In criminal actions such confidential communication shall be subject to discovery and shall be admissible as evidence but only to the extent of information contained therein which is exculpatory in relation to the defendant; provided, however, that the court shall first examine such confidential communication and shall determine whether or not such exculpatory information is therein contained before allowing such discovery or the introduction of such evidence.
Chapter 233: Section 20L. Confidentiality of domestic violence victims’ program and rape crisis center locations Section 20L. The location and street address of all domestic violence victims’ programs, as defined in section twenty K and rape crisis centers, as defined in section twenty J, shall be absolutely confidential and shall not be required to be revealed in any criminal or civil proceeding.
Chapter 233: Section 21. Proof of conviction of crime to affect credibility Section 21. The conviction of a witness of a crime may be shown to affect his credibility, except as follows:First, The record of his conviction of a misdemeanor shall not be shown for such purpose after five years from the date on which sentence on said conviction was imposed, unless he has subsequently been convicted of a crime within five years of the time of his testifying.
Second, The record of his conviction of a felony upon which no sentence was imposed or a sentence was imposed and the execution thereof suspended, or upon which a fine only was imposed, or a sentence to a reformatory prison, jail, or house of correction, shall not be shown for such purpose after ten years from the date of conviction, if no sentence was imposed, or from the date on which sentence on said conviction was imposed, whether the execution thereof was suspended or not, unless he has subsequently been convicted of a crime within ten years of the time of his testifying. For the purpose of this paragraph, a plea of guilty or a finding or verdict of guilty shall constitute a conviction within the meaning of this section.
Third, The record of his conviction of a felony upon which a state prison sentence was imposed shall not be shown for such purpose after ten years from the date of expiration of the minimum term of imprisonment imposed by the court, unless he has subsequently been convicted of a crime within ten years of the time of his testifying.
Fourth, the record of his conviction for a traffic violation upon which a fine only was imposed shall not be shown for such purpose unless he has been convicted of another crime or crimes within five years of the time of his testifying.
For the purpose of this section, any period during which the defendant was a fugitive from justice shall be excluded in determining time limitations under the provisions of this section.
Chapter 233: Section 21A. Evidence of reputation Section 21A. Evidence of the reputation of a person in a group with the members of which he has habitually associated in his work or business shall be admissible to the same extent and subject to the same limitations as is evidence of such reputation in a community in which he has resided.
Chapter 233: Section 21B. Evidence of sex crime victim’s sexual conduct; admission hearing; findings Section 21B. Evidence of the reputation of a victim’s sexual conduct shall not be admissible in any investigation or proceeding before a grand jury or any court of the commonwealth for a violation of sections thirteen B, thirteen F, thirteen H, twenty-two, twenty-two A, twenty-three, twenty-four and twenty-four B of chapter two hundred and sixty-five or section five of chapter two hundred and seventy-two. Evidence of specific instances of a victim’s sexual conduct in such an investigation or proceeding shall not be admissible except evidence of the victim’s sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim; provided, however, that such evidence shall be admissible only after an in camera hearing on a written motion for admission of same and an offer of proof. If, after said hearing, the court finds that the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim, the evidence shall be admitted; otherwise not. If the proceeding is a trial with jury, said hearing shall be held in the absence of the jury. The finding of the court shall be in writing and filed but shall not be made available to the jury.
Chapter 233: Section 22. Cross-examination of adverse party; corporation’s agent as adverse party Section 22. A party who calls the adverse party as a witness shall be allowed to cross-examine him. In case the adverse party is a corporation, an officer or agent thereof, so called as a witness, shall be deemed such an adverse party for the purposes of this section.
Chapter 233: Section 23. Impeachment of party’s own witness Section 23. The party who produces a witness shall not impeach his credit by evidence of bad character, but may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testimony; but before proof of such inconsistent statements is given, the circumstances thereof sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked if he has made such statements, and, if so, shall be allowed to explain them.
Chapter 233: Section 23A. Admissibility of written or recorded statements of party to personal injury action Section 23A. In any action to recover damages for personal injuries or consequential damages, so called, resulting therefrom, no statement in writing signed by any party to the action or statement taken on a recording instrument, concerning the facts out of which the cause of action arose, given by such party, or a person in his behalf, to any other party to the action, or to his agent or attorney, or to the insurer of such other party, or to the agent or attorney of such insurer, shall be admissible in evidence in, or referred to at, the trial of such action or in any proceeding connected therewith unless a copy of such statement or verbatim written transcription of such recorded statement is furnished to the party making the same or to his attorney within ten days after written request therefor made by such party or attorney to the adverse party or his attorney, or within such further time as the court may allow on motion and notice.
Chapter 233: Section 23B. Accused; statements made while undergoing psychiatric examination; admissibility Section 23B. In the trial of an indictment or complaint for any crime, no statement made by a defendant therein subjected to psychiatric examination pursuant to sections fifteen or sixteen of chapter one hundred and twenty-three for the purposes of such examination or treatment shall be admissible in evidence against him on any issue other than that of his mental condition, nor shall it be admissible in evidence against him on that issue if such statement constitutes a confession of guilt of the crime charged.
Chapter 233: Section 23C. Work product of mediator confidential; confidential communications; exception; mediator defined Section 23C. All memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes.
For the purposes of this section a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body.
Chapter 233: Section 23D. Admissibility of benevolent statements, writings or gestures relating to accident victims Section 23D. As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:“Accident”, an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.
“Benevolent gestures”, actions which convey a sense of compassion or commiseration emanating from humane impulses.
“Family”, the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted children of parent, or spouse’s parents of an injured party.
Statements, writings or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.
Chapter 233: Section 23E. Alternative procedure for determining competency of witnesses with mental retardation Section 23E. (a) For the purposes of this section, the following words shall have the following meanings, unless the context clearly requires otherwise:—“Witnesses with mental retardation”, a witness in a proceeding whom the presiding justice has found after hearing, as provided in paragraph (1) of subsection (b), to have mental retardation.
“Mental retardation”, substantial limitations in present functioning manifesting before age eighteen and characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.
(b)(1) In any judicial proceeding in which a witness with mental retardation will testify, the court, on its own motion or on motion of the proponent of the witness with mental retardation and after hearing on the witness’s competency to testify, may order the use of alternative procedures for taking testimony of the witness with mental retardation; provided, however, that the court finds at the time of the order, by clear and convincing evidence in the case of a criminal proceeding, and by a preponderance of the evidence in the case of a noncriminal proceeding, that the witness with mental retardation is likely, as a result of submitting to usual procedures for determining competency or as a result of testifying in open court, as the case may be, (i) to suffer severe psychological or emotional trauma; or (ii) to suffer a temporary loss of or regression in cognitive or behavioral functioning or communicative abilities, such that his ability to testify will be significantly impaired. If the court so finds, the court may order the use of alternative procedures for determining competency to testify or for taking testimony of the witness with mental retardation including, but not limited to, the following:(i) permitting a person familiar to the witness, such as a family member, clinician, counselor, social worker or friend, to sit near or next to such witness;(ii) permitting the witness with mental retardation to testify in court but off the witness stand; provided, however, that if the proceeding is a bench proceeding, testimony may be taken at another location within the courthouse but outside the courtroom; and, provided further, that if the proceeding is a jury trial, testimony may be taken on videotape out of the presence of the jury or in a location chosen by the court or by agreement of the parties; or(iii) combining alternative procedures provided in clauses (i) and (ii).
[There is no paragraph (2).
] (c) When the proceedings are not criminal or juvenile delinquency related, testimony taken by videotape pursuant to an order under paragraph (1) of subsection (b) shall be taken in the presence of the judge, counsel for all parties and such other persons as the court may allow. Counsel shall be given the opportunity to examine or cross-examine the witness with mental retardation to the same extent as he would be permitted if ordinary procedures had been followed.
(d) When the proceedings are criminal or juvenile delinquency related, the defendant shall have the right to be present during the taking of the testimony, to have an unobstructed view of the witness with mental retardation, and to have the witness’s view of the defendant be unobstructed.
(e) If the court orders that the testimony of the witness with mental retardation be videotaped out of the presence of the jury, the videotape shall be shown in court to the jury in the presence of the judge, the parties and the parties’ counsel. The videotape shall be marked as an exhibit and retained by the court as part of the record of the case.
(f) Testimony taken by alternative procedures authorized by this section shall be admissible as substantive evidence to the same extent as and in lieu of live testimony by the witness in any proceeding in which such testimony is taken.
(g) The witness requesting that testimony be taken by videotape shall bear the responsibility of producing an acceptable videotape of the testimony. The commonwealth shall reimburse such witness for reasonable costs of producing such videotape. Each party shall be afforded an opportunity to view the recording before it is shown in the courtroom.
(h) The fact that the witness with mental retardation has been found in a court proceeding to be incompetent to make informed decisions of a personal, medical or financial nature or that he is under a guardianship or conservatorship shall not preclude such witness from testifying if he is found to be competent to testify and shall not preclude a determination of competency to testify.
(i) A witness shall not be denied the benefit of appropriate alternative procedures provided by this section and the court shall allow such additional time or continuances to permit application of such procedures.
(j) A person with expertise in mental retardation may be called by the proponent of the witness to testify in all relevant matters, including the competency determination of such witness.
(k) Nothing in this section shall be construed to prohibit a court from using other appropriate means consistent with this section and any other general or special law and with the defendant’s rights to accomplish the purposes of this section.
Chapter 233: Section 23F. Admissibility of past physical, sexual or psychological abuse of defendant Section 23F. In the trial of criminal cases charging the use of force against another where the issue of defense of self or another, defense of duress or coercion, or accidental harm is asserted, a defendant shall be permitted to introduce either or both of the following in establishing the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent, the reasonableness of the defendant’s belief that he had availed himself of all available means to avoid physical combat or the reasonableness of a defendant’s perception of the amount of force necessary to deal with the perceived threat:(a) evidence that the defendant is or has been the victim of acts of physical, sexual or psychological harm or abuse;(b) evidence by expert testimony regarding the common pattern in abusive relationships; the nature and effects of physical, sexual or psychological abuse and typical responses thereto, including how those effects relate to the perception of the imminent nature of the threat of death or serious bodily harm; the relevant facts and circumstances which form the basis for such opinion; and evidence whether the defendant displayed characteristics common to victims of abuse.
Nothing in this section shall be interpreted to preclude the introduction of evidence or expert testimony as described in clause (a) or (b) in any civil or criminal action where such evidence or expert testimony is otherwise now admissible.
Chapter 233: Section 24. Depositions in civil cases authorized Section 24. Depositions may be taken as provided in this chapter to be used only in those proceedings in the land court and probate court which are not governed by the Massachusetts Rules of Civil Procedure. The provisions of this section and of sections twenty-five through forty-five, inclusive, of this chapter, shall not apply to civil actions governed by said rules, or by the District-Municipal Courts Rules of Civil Procedure.
Chapter 233: Section 24A. Medical witnesses Section 24A. At trial of a civil matter in the district court department of the trial court, the justice may order, or, upon the request of a party, authorize the taking of a deposition of the testimony of a medical witness. Said deposition shall be taken for use as medical evidence only, and shall be admissible in whole or in part in a proceeding before said district court department. The expense for stenographic service in connection with the taking of such deposition shall be paid by the party requesting that such witness be deposed, or whose witness is ordered to be deposed; provided, however, that if the judgment entered by the district court justice is in favor of the plaintiff, the cost of such stenographic expense shall be added to such judgment and shall be paid by the insurer, if the defendant has insurance, or by the defendant, if he does not have such insurance.
Chapter 233: Section 25. Grounds for deposition Section 25. If a witness or party whose testimony is wanted in a civil cause or proceeding pending in the 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 ill, aged or infirm as to make it probable that he will not be able to attend at the trial, his deposition may be taken.
Chapter 233: Section 26. Notice of taking deposition Section 26. After service of process in an action, or after a submission to arbitrators or referees, either party may apply to a justice of the peace or a notary public, who shall issue a notice to the adverse party to appear and propose interrogatories before said justice or any other justice of the peace or before said notary or any other notary public at the time and place appointed for taking the deposition.
Chapter 233: Section 27. Persons on whom notice may be served Section 27. The notice may be served on the adverse party, his agent or attorney, and if there are several plaintiffs or defendants, on any of them.
Chapter 233: Section 28. Mode of service Section 28. The notice shall be served by delivering an attested copy thereof to the person to be notified, 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 not less time than at the rate of one day, Sundays excluded, for every twenty miles’ travel to the place appointed.
Chapter 233: Section 29. Verbal notice; waiver of notice, etc. Section 29. The justice or notary who takes the deposition may give a verbal instead of the written notice. If the adverse party or his attorney in writing waives notice, or if the defendant does not enter his appearance in the action within the time required by law, no notice shall be required.
Chapter 233: Section 3. Witness fees; payment or tender Section 3. No person shall be required to attend as a witness in a civil case or for the defendant in a criminal case except a person summonsed to attend as a witness for an indigent defendant in a criminal case, unless the legal fees for one day’s attendance and for travel to and from the place where he is required to attend are paid or tendered to him.
Chapter 233: Section 30. Oath and examination of deponent Section 30. The deponent shall be sworn or affirmed to testify the truth, the whole truth and nothing but the truth, relative to the cause for which the deposition is taken. The deponent shall then be examined by the justice or notary, and may be examined by the parties, and the testimony may be taken in writing or by any recording device, including an electronic device, which will accurately preserve such testimony.
Chapter 233: Section 31. Order of examination Section 31. The party producing the deponent shall be allowed first to examine him, either upon verbal or written interrogatories, on all the points which he considers material; the adverse party may then examine him in like manner, after which either party may propose further interrogatories.
Chapter 233: Section 32. Mode of taking deposition Section 32. The deposition shall be written by the justice or notary or deponent or by a disinterested person in the presence and under the direction of the justice or notary, shall be carefully read to or by the deponent, and then subscribed by him.
Chapter 233: Section 33. Certification of deposition Section 33. The justice or notary shall annex to the deposition a certificate of the time and manner of taking it, the person at whose request and the cause in which it was taken, the reason for taking it, and that the adverse party attended, or if he did not attend what notice was given to him.
Chapter 233: Section 34. Delivery and preservation of deposition Section 34. The deposition shall be delivered by the justice or notary to the court, arbitrators, referees or other persons before whom the cause is pending, or shall be enclosed and sealed by him and directed to it or them, and shall remain sealed until opened by it or them.
Chapter 233: Section 35. Exclusion of deposition Section 35. The court may exclude the deposition if it finds that the adverse party failed without fault to attend the taking thereof, and shall exclude it if it finds that the reason for taking it, or other sufficient cause for its use, no longer exists.
Chapter 233: Section 36. Objections to deposition Section 36. Objections to the competency or credibility of the deponent and to the admissibility of any questions asked of or answers made by him may be made when the deposition is produced in the same manner as if he were personally examined as a witness at the trial; but if a deposition is taken upon written interrogatories annexed to a commission, all objections to an interrogatory shall be made before the commission issues, and unless the interrogatory is withdrawn shall be noted in the deposition, otherwise they shall not be allowed.
Chapter 233: Section 37. Use of deposition in second action Section 37. If a plaintiff discontinues his action or becomes nonsuit, and another action is afterward commenced for the same cause between the same parties or their respective representatives, depositions lawfully taken for the first action may be used in the second in the same manner and subject to the same conditions and objections as if originally taken for the second action, if the deposition was duly filed in the court in which the first action was pending and has remained in the custody of the court from the termination of the first action until the commencement of the second.
Chapter 233: Section 38. Compelling giving of deposition; place Section 38. A person may be summoned and compelled to give his deposition at a place within twenty miles of his place of abode, in like manner and under the same penalties as are provided for a witness before a court.
Chapter 233: Section 39. Place of taking deposition of nonresident found within commonwealth Section 39. A person not a resident of but found within the commonwealth may be summoned and compelled to give his deposition 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.
Chapter 233: Section 3A. Representation of commissioner of banks Section 3A. If the commissioner of banks is summoned as a witness in any proceeding involving his official acts, unless the court or tribunal shall otherwise order, it shall be a sufficient compliance if he causes an employee or other assistant in his department having knowledge in the premises to appear.
Chapter 233: Section 4. Liability for nonattendance Section 4. If a person who has been duly summoned and required to attend as a witness under the preceding sections or section thirty-seven of chapter two hundred and eighteen fails, without a sufficient excuse, to attend, he shall be liable to the aggrieved party in tort for all damages caused by such failure.
Chapter 233: Section 40. Rules for taking depositions Section 40. The courts may make rules regulating the time and manner of opening, filing and safe keeping of depositions, and the taking and use thereof.
Chapter 233: Section 41. Taking deposition outside commonwealth Section 41. The deposition of a person without the commonwealth may be taken under a commission issued to one or more competent persons in another state or country by the court in which the cause is pending, or it may be taken before a commissioner appointed by the governor for that purpose, and in either case the deposition may be used in the same manner and subject to the same conditions and objections as if it had been taken in the commonwealth.
Chapter 233: Section 42. Written interrogatories; notice to adverse party; production of documents Section 42. Unless the court otherwise orders, a deposition taken before commissioners shall be taken upon written interrogatories, which shall be filed in the clerk’s office and notice thereof given to the adverse party or his attorney, and upon cross interrogatories, if any are filed by him. But if the defendant does not enter his appearance in the action within the time required by law, no notice to him shall be required. The court may in any case order depositions to be taken before commissioners, in the manner provided by law for taking the depositions of witnesses within the commonwealth in actions at law, or in such manner as the court orders, and in such cases shall determine what notice shall be given to the adverse party, his agent or attorney, and the manner of service thereof, may authorize the taking of depositions of witnesses not specifically named in the commission, and may limit the extent of the inquiry. The court may order the production before the commissioner of any books, instruments or papers relative to any matter in issue.
Chapter 233: Section 43. Rules for taking depositions outside of commonwealth Section 43. The courts may make rules for the issuing of commissions, the filing of interrogatories and all other matters relative to depositions taken without the commonwealth.
Chapter 233: Section 44. Foreign depositions obtained contrary to statute Section 44. Depositions and affidavits taken without the commonwealth in any manner other than is provided in the three preceding sections, if taken before a notary public or other person authorized by the laws of any other state or country to take depositions, may be admitted or rejected in the discretion of the court; but such deposition or affidavit shall not be admitted unless the court finds that the adverse party had sufficient notice of the taking thereof and an opportunity to cross-examine the witness, or that from the circumstances of the case it was impossible to give him such notice.
Chapter 233: Section 45. Deposition for use in another state Section 45. A person may be summoned and compelled, in like manner and under the same penalties as are provided for a witness before a court, to give his deposition in a cause pending in a court of any other state or government. Such deposition may be taken before a justice of the peace or a notary public in the commonwealth, or before a commissioner appointed under the authority of the state or government in which the action is pending. If the deposition is taken before such commissioner, the witness may be summoned and compelled to appear before him by process from a justice of the peace or a notary public in the commonwealth.
Chapter 233: Section 46. Application to take deposition to perpetuate testimony Section 46. If a person desires to perpetuate his own testimony or the testimony of another person, he shall apply in writing to two justices of the peace or notaries public, or a justice of the peace and a notary public, one of whom shall be an attorney at law, requesting them to take his deposition or the deposition of the person whose testimony he desires to perpetuate, and stating briefly and substantially his title, claim or interest in or to the subject relative to which he desires the evidence perpetuated, the names of all other persons interested or supposed to be interested therein and the name of the witness proposed to be examined.
Chapter 233: Section 47. Notice of taking deposition; compelling testimony Section 47. The justices or notaries shall thereupon cause notice of the time and place appointed for taking the deposition to be given to all persons named in said statement as interested in the case, in the manner provided in sections twenty-six to twenty-nine, inclusive; and if in the opinion of the justices or notaries 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 consider proper. A person may be summoned and compelled to give a deposition in perpetuation of his testimony in like manner and under the same penalties as are provided for a witness before a court.
Chapter 233: Section 48. Objections to taking deposition; procedure Section 48. If at the time and place so appointed a witness or a person interested appears and objects, the justices or notaries shall not take the deposition unless upon hearing the parties they shall find that such testimony may be material to the petitioner and, except when the witness himself is petitioner, that it is not sought for the purpose of discovery or of using it in an action then pending or thereafter to be brought against said witness, and that the petitioner is in danger of losing the same before it can be taken in any action wherein his right, title, interest or claim can be tried. In all cases the petitioner, his agent or attorney shall, at the request of such witness or of a person interested, be examined on oath relative to his reasons for taking the deposition.
Chapter 233: Section 49. Mode of taking deposition Section 49. The deponent shall be sworn and examined, and his deposition shall be written, read and subscribed in the manner provided in sections thirty to thirty-two, inclusive; and the justices or notaries shall sign and annex thereto a certificate of the name of the person at whose request it was taken, the names of all persons who were notified to attend, of all who attended the taking thereof, of the time and manner of taking it, and that it was taken for the purpose of perpetuating the testimony therein.
Chapter 233: Section 5. Penalty for nonattendance; contempt Section 5. Such failure to attend as a witness before a court, justice of the peace, master in chancery, master or auditor appointed by a court, or the county commissioners, shall also be a contempt of the court, and may be punished, in case of such failure to attend as a witness in a criminal prosecution, by a fine of not more than two hundred dollars or by imprisonment for not more than one month or both, or, in case of any other such failure to attend as aforesaid, by a fine of not more than twenty dollars.
Chapter 233: Section 50. Recording deposition Section 50. The deposition, the certificate and the application of the petitioner shall, within ninety days after the taking of the deposition, be recorded in the registry of deeds in the county or district where the land lies, if the deposition relates to land; otherwise, in the county or district where the parties or some of them reside.
Chapter 233: Section 51. Use of deposition in action Section 51. If, at the time of taking such deposition or afterward, an action is pending between the petitioner and the persons named in his application or any of those who were notified as aforesaid, or any persons claiming under any of said persons, relative to the title, claim or interest set forth in the application, the deposition or a certified copy of it from the registry of deeds may be used in such action in the same manner and subject to the same conditions and objections as if it had been originally taken therefor.
Chapter 233: Section 52. Perpetuation of testimony of nonresidents Section 52. Depositions to perpetuate the testimony of persons living without the commonwealth may be taken without the commonwealth upon a commission issued by the supreme judicial or the superior court.
Chapter 233: Section 53. Application to perpetuate testimony of nonresidents Section 53. The person who desires to take such deposition shall file in either of said courts the application provided for in section forty-six; and if the subject of the proposed deposition relates to land within the commonwealth, a copy of the application with the statement therein shall be filed in the registry of deeds for the county or district where the land or any part thereof lies; otherwise, in the registry of deeds for the county or district where the parties or some of them reside.
Chapter 233: Section 54. Notice of taking deposition Section 54. The court shall order notice of such application and statement to be served on all the persons named therein as adversely interested, and living within the commonwealth, fourteen days at least before the time therein appointed for hearing the parties, and shall order reasonable notice to be given to such persons living without the commonwealth.
Chapter 233: Section 55. Issuance of commission Section 55. If, upon hearing the parties who appear, the court finds that there is sufficient cause for taking the deposition, it shall issue a commission therefor in like manner as for taking a deposition to be used in a cause pending in the same court.
Chapter 233: Section 56. Written interrogatories Section 56. The deposition shall be taken upon written interrogatories filed by the applicant, and cross interrogatories, if any are filed by any party adversely interested, and it shall be taken and returned substantially in the same manner as if taken to be used in a cause pending in the same court.
Chapter 233: Section 57. Rules for perpetuation of testimony of witnesses without commonwealth Section 57. The supreme judicial court may make rules for taking depositions to perpetuate the testimony of witnesses without the commonwealth, taken under a commission from the supreme judicial or the superior court, and for filing or recording them.
Chapter 233: Section 58. Use of deposition Section 58. Depositions to perpetuate the testimony of witnesses which are taken without the commonwealth under this chapter may be used in like manner as if taken within the commonwealth.
Chapter 233: Section 59. Perpetuation of testimony for use against all persons Section 59. Depositions to perpetuate the testimony of witnesses within or without the commonwealth, so that they may be evidence against all persons, may, after public notice, be taken upon a commission issued by the supreme judicial court or the superior court.
Chapter 233: Section 6. Warrant for nonattending witness Section 6. The court, justice, master in chancery, master, auditor or county commissioners may in such case issue a warrant to bring such witness before them to answer for the contempt, and also to testify in the case in which he was summoned.
Chapter 233: Section 60. Application for deposition Section 60. The person who desires to have such deposition taken may apply to either of said courts in the manner provided in section fifty-three, and the proceedings thereon shall be the same as are provided in sections fifty-four to fifty-six, inclusive.
Chapter 233: Section 61. Naming persons interested; notice of taking deposition Section 61. The court shall, in addition to the proceedings before provided, require the applicant, upon oath or otherwise, in its discretion, to state the names of all persons known or supposed to be interested in the subject matter of the application, and shall in the commission direct the commissioner or commissioners to publish in such newspaper within or without the commonwealth, or both, or in such other manner, as the court orders, such notice of the time and place of taking such deposition and of the subject matter thereof as the court approves. Such notice shall be addressed by name to all persons who are known or supposed to be interested in the subject matter of the application, and generally to all others, and shall state that they may attend and propose cross interrogatories to the witness. The court may require additional personal notice of the time and place of taking and of the subject matter of such deposition to be given to such persons and in such manner as it orders.
Chapter 233: Section 62. Recording deposition Section 62. After such deposition has been taken, it shall be returned to the court by whose order the commission issued, which, if the deposition is found to have been taken according to law and the directions contained in the commission, shall order it to be recorded within thirty days after the date of the order in the registry of deeds, in the manner provided in section fifty.
Chapter 233: Section 63. Use of deposition against any person Section 63. A deposition taken and recorded under the provisions of the four preceding sections, or a certified copy thereof from the registry of deeds, may be used by the person at whose request it was taken, or by any person who claims under him, against any person whatever, in any action or process wherein is brought in question the title, claim or interest set forth in the statement upon which the commission was founded, in the same manner, and subject to the same conditions and objections, as if it had been originally taken for said action or process.
Chapter 233: Section 64. Admissibility of dying declaration of woman Section 64. In prosecutions under section nineteen of chapter two hundred and seventy-two in which the death of a woman is alleged to have resulted from the means therein described, her dying declarations shall be admissible in evidence.
Chapter 233: Section 65. Admissibility of declaration of decedent Section 65. In any action or other civil judicial proceeding, a declaration of a deceased person shall not be inadmissible in evidence as hearsay or as private conversation between husband and wife, as the case may be, if the court finds that it was made in good faith and upon the personal knowledge of the declarant.
Chapter 233: Section 65A. Admissibility of deceased party’s answers to interrogatories Section 65A. If a party to an action who has filed answers to interrogatories under any applicable statute or any rule of the Massachusetts Rules of Civil Procedure dies, so much of such answers as the court finds have been made upon the personal knowledge of the deceased shall not be inadmissible as hearsay or self-serving if offered in evidence in said action by a representative of the deceased party.
Chapter 233: Section 66. Evidence in actions against an executor or administrator Section 66. If a cause of action brought against an executor or administrator is supported by oral testimony of a promise or statement made by the testator or intestate of the defendant, evidence of statements, written or oral, made by the decedent, memoranda and entries written by him, and evidence of his acts and habits of dealing tending to disprove or to show the improbability of the making of such promise or statement, shall be admissible.
Chapter 233: Section 67. General rule Section 67. Evidence in any proceeding seeking equitable relief shall be taken in the same manner as in actions at law, unless the court otherwise orders; but this section shall not prevent such use of affidavits as had been heretofore allowed.
Chapter 233: Section 68. Proof of signature Section 68. A signature to an attested instrument or writing, except a will, may be proved in the same manner as if it were not attested.
Chapter 233: Section 69. Records of courts of other states or United States Section 69. The records and judicial proceedings of a court of another state or of the United States shall be admissible in evidence in this commonwealth, if authenticated by the attestation of the clerk or other officer who has charge of the records of such court under its seal.
Chapter 233: Section 7. Witnesses before executive council Section 7. Witnesses may be summoned to attend and testify at a hearing before the executive council, or a committee thereof, as to matters within its authority. They shall be summoned in the same manner, be paid the same fees and in the same manner, and be subject to the same penalties for default, as witnesses before the general court.
Chapter 233: Section 70. Judicial notice of foreign law Section 70. The courts shall take judicial notice of the law of the United States or of any state, territory or dependency thereof or of a foreign country whenever the same shall be material.
Chapter 233: Section 71, 72. Repealed, 1926, 168, Sec. 2 Chapter 233: Section 73. Foreign oaths and affidavits Section 73. All oaths and affidavits administered or taken by a notary public, duly commissioned and qualified by authority of any other state or government, within the jurisdiction for which he is commissioned, and certified under his official seal, shall be as effectual in this commonwealth as if administered or taken and certified by a justice of the peace therein.
Chapter 233: Section 74. Evidence of acts of incorporation Section 74. Acts of incorporation shall be held to be public acts and as such may be declared on and given in evidence.
Chapter 233: Section 75. Admissibility of printed copies of acts of legislative and administrative bodies Section 75. The printed copies of all statutes, acts and resolves of the commonwealth, public or private, which are published under its authority, and copies of the ordinances of a city, the by-laws of a town or of the rules and regulations of a board of aldermen, if attested by the clerk of such city or town, shall be admitted as sufficient evidence thereof in all courts of law and on all occasions. Printed copies of rules and regulations purporting to be issued by authority of any department, commission, board or officer of the commonwealth or of any city or town having authority to adopt them, or printed copies of any city ordinances or town by-laws or printed copies of the United States Code Annotated or the United States Code Service and all federal regulations, and the the titles, chapter, subchapters, parts and sections thereof, shall be admitted without certification or attestation, but, if their genuineness is questioned, the court shall require such certification or attestation thereof as it deems necessary.
Chapter 233: Section 76. Admissibility of authenticated records of governmental departments Section 76. Copies of books, papers, documents and records in any department of the commonwealth or of any city or town, authenticated by the attestation of the officer who has charge of the same, shall be competent evidence in all cases equally with the originals thereof; provided, that, except in the case of books, papers, documents and records of the department of telecommunications and energy in matters relating to common carriers, and of the registry of motor vehicles, the genuineness of the signature of such officer shall be attested by the secretary of the commonwealth under its seal or by the clerk of such city or town, as the case may be.
Chapter 233: Section 76A. Authenticated copies of documents filed with securities and exchange commission Section 76A. Photostatic or other copies of applications, reports, books, records, returns, papers or documents filed with the federal securities and exchange commission, or any successor thereof, pursuant to the provisions of the act of congress known as the Securities Act of 1933, or the act of congress known as the Securities Exchange Act of 1934, as heretofore or hereafter amended, if authenticated by the attestation of the officer or person who has charge of the same together with a certificate of any one of the members of said commission, or of the secretary to said commission, or of any successor thereof, that such attestation is in due form and by the proper officer or person, shall be competent evidence in all cases equally with originals thereof.
Chapter 233: Section 76B. Printed copies of schedules, classifications and tariffs filed with interstate commerce commission Section 76B. Printed copies of schedules, classifications and tariffs of rates, fares and charges, and supplements to any such schedules, classifications and tariffs, filed with the Interstate Commerce Commission, which show an Interstate Commerce Commission number, and an effective date shall be presumed to be correct copies of the original schedules, classifications, tariffs and supplements on file with the Interstate Commerce Commission, and shall be received as good and sufficient evidence, without certification, in any court of this commonwealth to prove such schedules, classifications, tariffs and supplements.
Chapter 233: Section 77. Authenticated copies of records of banks and trust companies Section 77. Copies from the records, books and accounts of a trust company, co-operative bank, national bank or savings bank, doing business in the commonwealth, shall be competent evidence in all cases, equally with the originals thereof, if there is annexed to such copies an affidavit, taken before a clerk of a court of record or notary public, under the seal of such court or notary, stating that the affiant is the officer having charge of the original records, books and accounts, and that the copy is correct and is full so far as it relates to the subject matter therein mentioned.
Chapter 233: Section 77A. Bank account statement together with legible copy of check; prima facie proof of payment Section 77A. A statement of account of a bank showing payment of a check or other item, together with a legible copy of the check or other item, shall be competent evidence in all cases to constitute prima facie proof of the payment in the amount of the check or other item. For the purposes of this section, the terms “bank”, “check” and “item” shall have the meanings set forth in Article 4 of chapter 106.
Chapter 233: Section 78. Entry, writing or record made in regular course of business; impeachment Section 78. An entry in an account kept in a book or by a card system or by any other system of keeping accounts, or a writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall not be inadmissible in any civil or criminal proceeding as evidence of the facts therein stated because it is transcribed or because it is hearsay or self-serving, if the court finds that the entry, writing or record was made in good faith in the regular course of business and before the beginning of the civil or criminal proceeding aforesaid and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. For the purposes hereof, the word “business”, in addition to its ordinary meaning, shall include profession, occupation and calling of every kind. The court, in its discretion, before admitting such entry, writing or record in evidence, may, to such extent as it deems practicable or desirable, but to no greater extent than the law required before April eleventh, nineteen hundred and thirteen, require the party offering the same to produce and offer in evidence the original entry, writing, document or account or any other from which the entry, writing or record offered or the facts therein stated were transcribed or taken, and to call as his witness any person who made the entry, writing or record offered or the original or any other entry, writing, document or account from which the entry, writing or record offered or the facts therein stated were transcribed or taken, or who has personal knowledge of the facts stated in the entry, writing or record offered. When any such entry, writing or record is admitted, all other circumstances of the making thereof, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight and when such entry, writing or record is admitted in a criminal proceeding all questions of fact which must be determined by the court as the basis for the admissibility of the evidence involved shall be submitted to the jury, if a jury trial is had for its final determination.
Chapter 233: Section 79. Records and copies of records of hospitals and certain institutions; admissibility in evidence Section 79. Records kept by hospitals, dispensaries or clinics, and sanatoria under section seventy of chapter one hundred and eleven shall be admissible, and records which the court finds are required to be kept by the laws of any other state or territory, or the District of Columbia, or by the laws and regulations of the United States of America pertaining to the department of national defense and the veterans administration, by hospitals, dispensaries or clinics, and sanatoria similarly conducted or operated or which, being incorporated, offer treatment free of charge, may be admitted by the court, in its discretion, as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases and the court may, in its discretion, admit copies of such records, if certified by the persons in custody thereof to be true and complete; but nothing therein contained shall be admissible as evidence which has reference to the question of liability. Copies of photographic or microphotographic records so kept by hospitals, dispensaries or clinics, or sanatoria, when duly certified by the person in charge of the hospital, dispensary or clinic, or sanatorium, shall be admitted in evidence equally with the original photographs or microphotographs.
A record kept by any hospital, dispensary or clinic, or sanatorium under section seventy of chapter one hundred and eleven which is required to be produced in court by any party shall be certified by the affidavit of the person in custody thereof to be a true and complete record, and shall be delivered by such hospital, dispensary or clinic, or sanatorium to the clerk of such court, who shall keep the same in his custody until its production is called for at the trial or hearing by the party requiring the said record. Such record, so certified and delivered shall be deemed to be sufficiently identified to be admissible in evidence if admissible in all other respects. The party requiring the production of said record and, in the discretion of the court, any other party may examine said record in the custody of the clerk at any time before it is produced in court. The clerk upon completion of such trial or hearing shall notify such hospital that said record is no longer required and will be returned to the hospital by certified mail unless an authorized representative of the hospital calls for the same at the office of said clerk within seven days of said notice.
Chapter 233: Section 79A. Certified copies of public and private records Section 79A. Copies of public records, of records described in sections five, seven and sixteen, respectively, of chapter sixty-six, and of records of banks, trust companies, insurance companies and hospitals, whether or not such records or copies are made by the photographic or microphotographic process, shall, when duly certified by the person in charge thereof, be admitted in evidence equally with the originals.
Chapter 233: Section 79B. Fact statements published for persons in particular occupation Section 79B. Statements of facts of general interest to persons engaged in an occupation contained in a list, register, periodical, book or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated.
Chapter 233: Section 79C. Statements of fact or opinion in scientific publication; notice of intention to use Section 79C. Statements of facts or opinions on a subject of science or art contained in a published treatise, periodical, book or pamphlet shall, in so far as the court shall find that the said statements are relevant and that the writer of such statements is recognized in his profession or calling as an expert on the subject, be admissible in actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitaria, as evidence tending to prove said facts or as opinion evidence; provided, however, that the party intending to offer as evidence any such statements shall, not less than thirty days before the trial of the action, give the adverse party or his attorney notice of such intention, stating the name of the writer of the statements, the title of the treatise, periodical, book or pamphlet in which they are contained, the date of publication of the same, the name of the publisher of the same, and wherever possible or practicable the page or pages of the same on which the said statements appear.
Chapter 233: Section 79D. Photographic copies of newspaper in library; prints from photographic films Section 79D. Copies of any newspaper, or part thereof made by the photographic or microphotographic process deposited in any public library or a library of any college or university located in the commonwealth, shall, when duly certified by the person in charge thereof, be admitted in evidence equally with the originals.
A print, whether enlarged or not, from any photographic film, including any photographic plate, microphotographic film, photostatic negative or reproduction of any original record, document, instrument, plan, book or paper destroyed, lost or for any reason unavailable after such film was taken, shall be admissible in evidence in all instances that the original record, document, instrument, plan, book or paper might have been admitted in evidence, and shall have the full force and effect of said original if it is proved that (a) such reproduction was made in the regular course of any business and that it was the regular course of any such business to make such reproductions; (b) said photographic film, microphotographic, photostatic or similar reproduction was taken in order to keep a permanent record of the original; and (c) the said original was subsequently destroyed, lost or is unavailable.
Chapter 233: Section 79E. Reproductions of public or business records Section 79E. If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity, has kept or recorded any memorandum, writing entry, print, representation or combination thereof of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, shall be as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduced record, enlargement or facsimile, shall not preclude admission of the original.
Chapter 233: Section 79F. Proof of public way Section 79F. A certificate by the secretary of the public works commission in the case of a state highway, or the secretary of the metropolitan district commission in the case of a highway under the control of said commission, or by a city or town clerk in the case of a city or town way, that a particular way is a public way as a matter of record shall be admissible as prima facie evidence that such a way is a public way.
Chapter 233: Section 79G. Medical and hospital services; evidence Section 79G. In any proceeding commenced in any court, commission or agency, an itemized bill and reports, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person, including, but not limited to hospital medical records subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services or by the pharmacist or retailer of orthopedic appliances, shall be admissible as evidence of the fair and reasonable charge for such services or the necessity of such services or treatments, the diagnosis of said physician or dentist, the prognosis of such physician or dentist, the opinion of such physician or dentist as to proximate cause of the condition so diagnosed, the opinion of such physician or dentist as to disability or incapacity, if any, proximately resulting from the condition so diagnosed; provided, however, that written notice of the intention to offer such bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or their attorneys, by mailing the same by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency or commission forthwith after said receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to the action to summon, at his own expense, such physician, dentist, pharmacist, retailer of orthopedic appliances or agent of such hospital or health maintenance organization or the records of such hospital or health maintenance organization for the purpose of cross examination with respect to such bill, record and report or to rebut the contents thereof, or for any other purpose, nor to limit the right of any party to the action or proceeding to summon any other person to testify in respect to such bill, record or report or for any other purpose.
The words “physician” and “dentist” shall not include any person who is not licensed to practice as such under the laws of the jurisdiction within which such services were rendered, but shall include chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered.
The word “hospital” shall mean any hospital required to keep records under section seventy of chapter one hundred and eleven, or which is in any way licensed or regulated by the laws of any other state, or by the laws and regulations of the United States of America, including hospitals of the Veterans Administration or similar type institutions, whether incorporated or not.
The words “health maintenance organization” shall have the same meaning as defined in section one of chapter one hundred and seventy-six G.
Chapter 233: Section 79H. Tort actions for personal injuries or death; admissibility of reports of deceased physicians Section 79H. In an action of tort for personal injuries or death, or for consequential damages arising from such personal injuries, the medical report of a deceased physician who attended or examined the plaintiff, including expressions of medical opinion, shall, at the discretion of the trial judge, be admissible in evidence, but nothing therein contained which has reference to the question of liability shall be so admissible. Any opposing party shall have the right to introduce evidence tending to limit, modify, contradict or rebut such medical report. The word “physician” as used in this section shall not include any person who was not licensed to practice medicine under the laws of the jurisdiction within which such medical attention was given or such examination was made.
Chapter 233: Section 79I. Actions to recover from insurer for theft of personal property from motor vehicle or trailer; prima facie evidence of forcible entry into vehicle Section 79I. In an action to recover from an insurer under a policy which provides coverage for theft of personal articles from a motor vehicle or trailer if all windows and doors are locked and if there are visible signs of forcible entry into the vehicle or trailer, the fact that such motor vehicle or trailer was stolen shall be prima facie evidence that there was a forcible entry.
Chapter 233: Section 79J. Business records required to be produced in court; certification, admissibility and inspection; copies Section 79J. A record kept by any business which is required to be produced in court by any party shall be certified by the affidavit of the person in custody thereof to be a true and complete record and shall be delivered by such business to the clerk of such court who shall keep the same in his custody until its production is called for at the trial or hearing by the party requiring the said record. Such record, so certified and delivered shall be deemed to be sufficiently identified to be admissible in evidence if admissible in all other respects. The party requiring the production of said record and, in the discretion of the court, any other party may examine said record in the custody of the clerk at any time before it is produced in court. The clerk upon completion of such trial or hearing shall notify such business that said record is no longer required and will be returned by mail unless an authorized representative of the business calls for the same at the office of said clerk within seven days of said notice.
A copy of such record made by the photographic process may be delivered to the clerk of such court in place of the original and, if certified as hereinbefore provided, shall be admitted in evidence equally with the original.
Chapter 233: Section 79K. Duplicate of computer data file or program file; admissibility Section 79K. A duplicate of a computer data file or program file shall be admissible in evidence as the original itself unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
For the purposes of this section, if data is stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, shall be an original.
A “duplicate of a computer data file or program file” shall mean a file produced by the same impression as the original, or from the same matrix, or by mechanical or electronic recording, in the normal way such a duplicate is produced on a computer, or by other equivalent techniques that accurately reproduce the original.
Chapter 233: Section 8. Bodies authorized to summon witnesses; oath Section 8. Witnesses may be summoned to attend and testify and to produce books and papers at a hearing before a city council, or either branch thereof, or before a joint or special committee of the same or of either branch thereof, or before a board of selectmen, a board of police commissioners, a fire commissioner or a board of fire commissioners, a commissioner of public safety, a school board, the alcoholic beverages control commission established by section forty-three of chapter six, a licensing board or licensing authorities, as defined in section one of chapter one hundred and thirty-eight, a board of registrars of voters, the police commissioner or election commissioners of Boston, the Massachusetts Water Resources Authority, the state racing commission, the parole board or a board of appeals designated or appointed under section thirty of chapter forty, as to matters within their authority; and such witnesses shall be summoned in the same manner, be paid the same fees and be subject to the same penalties for default, as witnesses in civil cases before the courts. The presiding officer of such council, or of either branch thereof, or a member of any such committee, board or commission, or any such commissioner, may administer oaths to witnesses who appear before such council, branch thereof, committee, board, commission or commissioner, respectively.
Chapter 233: Section 80. Transcripts from stenographic notes Section 80. Transcripts from stenographic notes duly taken under authority of law in any court proceeding by a stenographer duly appointed for the purpose and sworn, when verified by the certificate of such stenographer, shall be admissible as evidence of testimony given whenever proof of such testimony is otherwise competent.
Chapter 233: Section 81. Criminal proceedings; out-of-court statements describing sexual contact; admissibility Section 81. (a) An out-of-court statement of a child under the age of ten describing an act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence in any criminal proceeding; provided, however, that the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; the person to whom the statement was made or who heard the child make the statement testifies; the judge finds pursuant to subsection (b) that the child is unavailable as a witness; and the judge finds pursuant to subsection (c) that the statement is reliable.
(b) The proponent of such statement shall demonstrate a diligent and good faith effort to produce the child and shall bear the burden of showing unavailability. A finding of unavailability shall be supported by specific findings on the record, describing facts with particularity, demonstrating that:(1) the child is unable to be present or to testify because of death or physical or mental illness or infirmity; or(2) by a ruling of the court, the child is exempt on the ground of privilege from testifying concerning the subject matter of such statement; or(3) the child testifies to a lack of memory of the subject matter of such statement; or(4) the child is absent from the hearing and the proponent of such statement has been unable to procure the attendance of the child by process or by other reasonable means; or(5) the court finds, based upon expert testimony from a treating psychiatrist, psychologist, or clinician, that testifying would be likely to cause severe psychological or emotional trauma to the child; or(6) the child is not competent to testify.
(c) If a finding of unavailability is made, the out-of-court statement shall be admitted if the judge further finds: (1) after holding a separate hearing, that such statement was made under oath, that it was accurately recorded and preserved, and there was sufficient opportunity to cross-examine; or (2) after holding a separate hearing and, where practicable and where not inconsistent with the best interests of the child, meeting with the child, that such statement was made under circumstances inherently demonstrating a special guarantee of reliability.
For the purposes of finding circumstances demonstrating reliability pursuant to clause (2) of subsection (c), a judge may consider whether the relator documented the child witness’s statement, and shall consider the following factors:(i) the clarity of the statement, meaning, the child’s capacity to observe, remember, and give expression to that which such child has seen, heard, or experienced; provided, however, that a finding under this clause shall be supported by expert testimony from a treating psychiatrist, psychologist, or clinician;(ii) the time, content and circumstances of the statement;(iii) the child’s sincerity and ability to appreciate the consequences of such statement.
(d) An out-of-court statement which is admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.
Chapter 233: Section 82. Civil proceedings; out-of-court statements describing sexual contact; admissibility Section 82. (a) The out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator shall be admissible as substantive evidence in any civil proceeding, except proceedings brought under subparagraph C of section twenty-three or section twenty-four of chapter one hundred and nineteen; provided, however, that such statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; the person to whom such statement was made or who heard the child make such statement testifies; the judge finds pursuant to subsection (b) that the child is unavailable as a witness; and the judge finds pursuant to subsection (c) that such statement is reliable.
(b) The proponent of such statement shall demonstrate a diligent and good faith effort to produce the child and shall bear the burden of showing unavailability. A finding of unavailability shall be supported by specific findings on the record, describing facts with particularity, demonstrating that:(1) the child is unable to be present or to testify because of death or existing physical or mental illness or infirmity; or(2) by a ruling of the court, the child is exempt on the ground of privilege from testifying concerning the subject matter of such statement; or(3) the child testifies to a lack of memory of the subject matter of such statement; or(4) the child is absent from the hearing and the proponent of such statement has been unable to procure the attendance of the child by process or by other reasonable means; or(5) the court finds, based upon expert testimony from a treating psychiatrist, psychologist, or clinician, that testifying would be likely to cause severe psychological or emotional trauma to the child; or(6) the child is not competent to testify.
(c) If a finding of unavailability is made, the out-of-court statement shall be admitted if the judge further statement was made under oath, that it was accurately recorded and preserved, and there was sufficient opportunity to cross-examine; or (2) after holding a separate hearing and, where practicable and where not inconsistent with the best interests of the child, meeting with the child, that such statement was made under circumstances inherently demonstrating a special guarantee of reliability.
For the purposes of finding circumstances demonstrating reliability pursuant to clause (2) of subsection (c) a judge may consider whether the relator documented the child witness’s statement, and shall consider the following factors:(i) the clarity of the statement, meaning, the child’s capacity to observe, remember, and give expression to that which such child has seen, heard, or experienced; provided, however, that a finding under this clause shall be supported by expert testimony from a treating psychiatrist, psychologist, or clinician;(ii) the time, content and circumstances of the statement;(iii) the existence of corroborative evidence of the substance of the statement regarding the abuse including either the act, the circumstances, or the identity of the perpetrator;(iv) the child’s sincerity and ability to appreciate the consequences of the statement.
(d) An out-of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.
Chapter 233: Section 83. Custody hearings; out-of-court statements describing sexual contact; admissibility Section 83. (a) Any out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator offered in an action brought under subparagraph C of section twenty-three or section twenty-four of chapter one hundred and nineteen shall be admissible; provided, however that the person to whom the statement was made, or who heard the child make the statement testifies, and the judge finds that the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable effort.
(b) An out-of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.
Chapter 233: Section 9. Warrant for witness failing to attend before nonjudicial tribunal Section 9. If a witness who has been so summoned and paid or tendered the proper fees fails to attend in pursuance thereof, the presiding officer of such city council, or of either branch thereof, or the chairman of such committee, board or commission, or any such commissioner, may issue a warrant to bring such witness before them, to testify in the case in which he was summoned.
Chapter 234: Section 1. Qualifications; exemptions Section 1. A person of either sex qualified to vote for representatives to the general court, whether a registered voter or not, shall be liable to serve as a juror, except that the following persons shall be exempt:The governor; lieutenant governor; members of the council; state secretary; members and officers of the senate and house of representatives during a session of the general court; judges and justices of a court; county commissioners; clerks of courts and assistant clerks and all regularly appointed officers of the courts of the United States and of the commonwealth; registers of probate and insolvency; registers of deeds; sheriffs and their deputies; constables; marshals of the United States and their deputies, and all other officers of the United States; attorneys at law; settled ministers of the gospel; officers of colleges; preceptors and teachers of incorporated academies; registered practicing physicians and surgeons; superintendents, officers and assistants employed in or about a state hospital, psychiatric hospital, jail, house of correction, state industrial school or state prison; teachers in public schools; enginemen and members of the fire department of Boston, and of other cities and towns in which such exemption has been made by vote of the city council or the inhabitants of the town; Christian Science practitioners and readers, respectively; trained nurses; assistants in hospitals; attendant nurses; members of religious orders.
A parent or person having custody of and being responsible for the daily supervision of a child under fifteen years of age may elect not to have his name placed on the list of jurors and in such event he shall be treated as a person exempt from jury duty under this section.
A person seventy years of age or over may elect not to have his or her name placed on the list of jurors and in such event he or she shall be treated as a person exempt from jury duty under this section.
Chapter 234: Section 10. Writs of venire facias Section 10. The clerks of the supreme judicial and superior courts shall, before each sitting and at such other times as the respective courts may order, issue writs of venire facias for jurors, requiring their attendance on such day of the sitting as the court may order. The number of jurors required by such writs shall be apportioned among the cities and towns, as nearly as may be, according to their respective populations.
Chapter 234: Section 11. Service Section 11. The venires shall be delivered to the sheriff of the county to be transmitted by him to a deputy sheriff of the county, or to a constable in each of the cities and towns to which they are respectively issued, who shall forthwith serve them in cities on the board authorized to draw jurors and in towns on the selectmen and town clerk.
Chapter 234: Section 12. Additional venires Section 12. Either court may issue venires for additional jurors when necessary for the convenient despatch of its business. They shall be served and returned, and the jurors required to attend on such days, as the court orders.
Chapter 234: Section 13. Dukes county Section 13. If a case is pending in the superior court for Dukes county, in which the inhabitants of a town in said county are disqualified from serving as jurors, a justice of the court may order the clerk thereof to issue writs of venire facias for a sufficient number of jurors to try such case, from any town whose inhabitants are not so disqualified.
Chapter 234: Section 14. Bristol county Section 14. At the sittings of the supreme judicial court in Bristol county for which jurors are summoned to attend, one or more jurors from Nantucket county and at least four from Dukes county shall be summoned, the venires for which shall be issued by the clerk of the courts for Bristol county. The cost of their travel and attendance shall be paid by the counties from which they are summoned.
Chapter 234: Section 15. Repealed, 1936, 161, Sec. 1 Chapter 234: Section 16. Venires in Barnstable Section 16. No venires for the drawing and summoning of jurors for the sitting of the supreme judicial court for Barnstable county shall be issued unless at the time for their issue there shall be one or more cases to be tried thereat by jury.
Chapter 234: Section 17. Drawing of jurors Section 17. All jurors shall be selected by drawing ballots from the jury box.
Chapter 234: Section 18. Drawing jurors in cities Section 18. If jurors are to be drawn in a city, the mayor and city clerk shall meet with the aldermen at its regular place of meeting. The ballots in the jury box shall be shaken and mixed and one of the aldermen, designated by the mayor, shall, without seeing the names written thereon, openly draw a number of ballots equal to the number of jurors required. He shall announce clearly and distinctly the names of the jurors so drawn, and shall then hand the ballots drawn by him to the mayor, who shall examine and verify them. The mayor shall then hand such ballots to the city clerk, who shall announce clearly and distinctly the names upon the ballots and return the same to the jury box, after making the endorsements thereon required by law, and the names so drawn shall be recorded as part of the proceedings and shall be published if and when the proceedings are published officially. In the absence of the mayor, the chairman or president of the board of aldermen shall perform the duties required of the mayor by this section.
Chapter 234: Section 19. Drawing jurors in towns Section 19. When jurors are to be drawn in a town, the town clerk and selectmen shall meet at the clerk’s office or at some other public place appointed for the purpose, and, if the clerk is absent, the selectmen may proceed without him. The ballots in the jury box shall be shaken and mixed and one of the selectmen, without seeing the names written thereon, shall openly draw therefrom a number of ballots equal to the number of jurors required.
Chapter 234: Section 1A. Excusing persons from jury duty Section 1A. If at any time it appears that the public interest will be served by excusing any person from jury service, or if the performance thereof will impose undue hardship or unusual inconvenience upon any person, the judge presiding at the court or the clerk/magistrate of the court to which the juror has been called for service may excuse such person from jury duty.
No person shall be required to serve in the trial of any prosecutions under sections twenty-two to twenty-four, inclusive, of chapter two hundred and sixty-five or under sections one to thirty-five, inclusive, of chapter two hundred and seventy-two if, upon the representation of such person, it appears to the presiding justice that such person would be likely to be embarrassed by hearing the testimony or by discussing the same in the jury room.
Chapter 234: Section 1B. Compensation of municipal employees while serving as jurors in state or federal courts Section 1B. An employee of a city or town who serves as a grand or traverse juror in a federal court or in the courts of the commonwealth shall receive from such city or town the difference between his salary and the compensation he received for such jury service, exclusive of any travel or other allowance.
Chapter 234: Section 2. Subsequent service Section 2. A person attending and serving as a juror in any court in pursuance of a draft shall not be liable to be drawn or to so serve again within three years after the termination of such service, except in Nantucket and Dukes counties, in which he shall be so liable once in every two years.
Chapter 234: Section 20. Return of names to box Section 20. If a person drawn as provided in the two preceding sections is exempt or unable by reason of illness or absence from home to attend as a juror, or has so served in any court within the time provided in section two, his name shall thereupon be returned to the box and another drawn.
Chapter 234: Section 21. Endorsement on ballot Section 21. If a person is drawn and returned to serve as a juror in a court, the selectmen or the city clerk, respectively, shall endorse on the ballot the date of the draft and return it to the box; and when there is a revision and renewal of the ballots in the box, the date of all the drafts made within the time provided in section two shall be transferred to the new ballots.
Chapter 234: Section 22. Names drawn at town meetings Section 22. If a town at a meeting votes that drafts for jurors shall be made in open town meeting, they shall be so made by the selectmen in the manner provided in the three preceding sections. When in such town a venire is served upon the selectmen, they shall cause a town meeting to be notified and warned for the purpose in the manner ordered by the town or otherwise provided by law.
Chapter 234: Section 23. Meetings for drawing jurors Section 23. The meeting for drawing jurors shall, unless the court otherwise orders when issuing venires for additional jurors under section twelve, be not less than twenty days before the day when the jurors are required to attend.
Chapter 234: Section 24. Summoning jurors; return of venire Section 24. The deputy sheriff or constable shall, fourteen days at least before the time when the jurors are required to attend unless the court otherwise orders when issuing venires for additional jurors under section twelve, summon each person who is drawn, by reading to him the venire with the endorsement thereon of his having been drawn, or by leaving at his place of abode a written notice of his having been drawn and of the time and place of the sitting of the court at which he is required to attend, and shall make a return of the venire with his doings thereon to the clerk of the court, before the sitting of the court by which it was issued. After the service of such venire has been made, no person shall, except as otherwise provided by law, question any person so summoned for the purpose of obtaining information as to his background in connection with his jury duty.
Chapter 234: Section 24A. Summoning jurors; mail as alternative method; summons; questioning prohibited Section 24A. In addition to the manner of summoning jurors as provided in section twenty-four, jurors may be summoned in the following manner:—at least twenty days prior to the time when jurors are required to attend unless the court otherwise orders when issuing venires for additional jurors under section twelve, a clerk of court may send a juror a summons with the endorsement thereon of his having been drawn by first class mail or certified mail to the home address of said juror. Said summons shall state the name and home address of the juror, and the date, time, and place of the sitting of the court at which he is required to attend. A facsimile of the signature of the chief justice or clerk of court imprinted upon the juror summons shall have the same validity as a written signature. After such summons has been received by a juror as hereinbefore provided, no person shall, except as otherwise provided by law, question any juror so summoned for the purpose of obtaining information as to his background in connection with his jury duty.
Chapter 234: Section 24B. Juror information form; return Section 24B. The commissioner of probation shall prepare a juror information form which may be enclosed together with a self-addressed return envelope with a juror summons described in section twenty-four A. The person summoned as a juror shall, not later than two days after receipt thereof, sign, complete and return said form to the sender.
Chapter 234: Section 25. Impanelling Section 25. On the day when jurors are summoned to attend at court for the trial of civil or criminal cases, except capital cases, the clerk of the court shall cause the name, together with the information provided for in sections four and five, of each person so summoned to be written on separate ballots, substantially of uniform size, and shall cause them to be placed in a box provided therefor, unless such information is otherwise available in the courtroom on a list prepared for that purpose. When a case is ready for trial the clerk in open court, after shaking the ballots thoroughly, shall draw them out in succession until the names of twelve or such greater number as the court may order under section twenty-six B are drawn who appear and are not excused or set aside. For trials by juries of six the clerk shall draw said ballots in succession until the names of six or such greater number as the court may order under section twenty-six B are drawn who appear and are not excused or set aside. The persons so drawn shall be duly sworn and impanelled and, subject to said section twenty-six B, shall be the jury to try the issue, and one of them shall be appointed foreman by the court. The ballots containing names of the jurors so sworn shall be kept apart by the clerk until the verdict of such jury has been recorded or such jury has been discharged, when such ballots shall be returned to the box. If a case is ready for trial before the verdict in the preceding case has been recorded or the jury discharged, the court may order a jury for the trial of such issue to be impanelled by the drawing in the manner aforesaid of ballots from those remaining in the box.
Chapter 234: Section 26. Capital cases; impanelling jury Section 26. If a jury is to be impanelled for the trial of a capital case, the clerk of the court shall cause the name of each juror summoned therein to be written on a separate ballot and each ballot to be folded uniformly in such manner that the name written thereon shall not be visible, and shall cause such ballots to be placed in a box provided therefor. He shall then in open court draw the ballots in succession from said box, and the twelve persons, or such greater number as the court may order under section twenty-six B, whose names are upon the ballots first drawn and who are not excused or otherwise set aside, shall be sworn as the jury for the trial of the case.
Chapter 234: Section 26A. Repealed, 1979, 344, Sec. 9 Chapter 234: Section 26B. Protracted trials; impanelling jurors; verdicts Section 26B. In a civil or criminal case, including a capital case, to be tried with a jury in the superior court, which trial, in the opinion of the court, is likely to be protracted, the court may order impanelled a jury of not more than sixteen members and the court shall have jurisdiction to try the case with such jury subject to the following provisions of this section. If at the time of the final submission of the case by the court to the jury more than twelve members of the jury who have heard the whole case are alive and not incapacitated or disqualified, the court shall direct the clerk to place the names of all of the remaining jurors, except the foreman, in a box and draw the names of a sufficient number to reduce the jury to twelve members. Those jurors whose names are so drawn shall not then be discharged, but shall be known as alternate jurors and be kept separate and apart from the other jurors in some convenient place, subject to the same rules and regulations, until the jury has agreed upon a verdict or has been otherwise discharged. If, at any time after the final submission of the case by the court to the jury and before the jury has agreed on a verdict, a juror dies, or becomes ill, or is unable to perform his duty for any other good cause shown to the court, the court may order him to be discharged and direct the clerk to place the names of all of the remaining alternate jurors in a box and draw the name of an alternate, who shall then take the place of the discharged juror on the jury, which shall then renew its deliberations with the alternate juror. The court shall have jurisdiction to receive the verdict of the jury constituted under the provisions of this section and shall have jurisdiction to render judgment in said case.
In any case where the court is otherwise authorized to direct a verdict, the court may do so without first eliminating any of the jurors in excess of twelve.
In those cases that are to be tried by juries of six in a district, municipal or juvenile court, the court may certify that a certain trial is likely to be protracted, and may order impanelled a jury of not more than eight members and the court shall have jurisdiction to try the case with such jury subject to the following provisions. If at the time of the final submission of the case by the court to the jury more than six members of the jury who have heard the whole case are alive and not incapacitated or disqualified, the court shall direct the clerk to place the names of all of the remaining jurors, except the foreman, in a box and draw the names of a sufficient number to reduce the jury to six members. Those jurors whose names are so drawn shall not then be discharged, but shall be known as alternate jurors and be kept separate and apart from the other jurors in some convenient place, subject to the same rules and regulations, until the jury has agreed upon a verdict or has been otherwise discharged. If, at any time after the final submission of the case by the court to the jury and before the jury has agreed on a verdict, a juror dies, or becomes ill, or is unable to perform his duty for any other good cause shown to the court, the court may order him to be discharged and direct the clerk to place the names of all of the remaining alternate jurors in a box and draw the name of an alternate, who shall then take the place of the discharged juror on the jury, which shall then renew its deliberations with the alternate juror. The court shall have juri
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