ors.

SECT. 14. If there are two or more joint contractors, or joint execu- Promise by one tors or administrators of a contractor, no one of them shall lose the of several debtbenefit of the provisions of this chapter so as to be chargeable by reason only of an acknowledgment or promise made or signed or by payment made by any other or others of them.

4 Pick. 382. 5 Met. 168. 6 Met. 564. 6 Cush. 360.

18.

R. S. 120, §§ 14, a 7 Greenl. 26.

2 Pick. 581. 3 Pick. 291.

such debtors.

SECT. 15. In actions commenced against two or more joint con- Proceedings in tractors, or joint executors or administrators of a contractor, if it action against appears on the trial or otherwise that the plaintiff is barred by the pro- R. S. 120, § 15. visions of this chapter, as to one or more of the defendants, but is entitled to recover against any other or others of them by virtue of a new acknowledgment or promise, or otherwise, judgment shall be given for the plaintiff as to the defendants against whom he is entitled to recover, and for the other defendant or defendants against the plaintiff. SECT. 16. If in an action of contract the defendant pleads or answers in abatement that any other person ought to have been jointly sued, and issue is joined thereon, and if it appears that the action was by reason of the provisions of this chapter barred against the person so named, the issue shall be found for the plaintiff.

in abatement.

R. S. 120, § 16.

2 Met. 168.

SECT. 17. Nothing contained in the four preceding sections shall Effect of part alter, take away, or lessen, the effect of a payment of any principal or dorsements. payment; of ininterest made by any person; but no indorsement or memorandum of R. S. 120, § 17. any such payment written or made upon a promissory note, bill of 6 Met. 559, 564. exchange, or other writing, by or on behalf of the party to whom such & Met. 354. payment is made, or purports to be made, shall be deemed sufficient 6 Cush. 173. proof of the payment, so as to take the case out of the provisions of this 7 Gray, 274. chapter.

9 Met. 485.

demands filed

SECT. 18. The provisions of this chapter shall apply to the case of Limitation of any debt founded on contract, alleged by way of set-off on the part of a in set-off. defendant; and the time of limitation of such debt shall be computed in R. S. 120, § 19. like manner as if an action had been commenced therefor at the time when the plaintiff's action was commenced.

18 Pick. 521.

Suits by com

monwealth lim

Limitation of suits for penalpersons.

ties by private

SECT. 19. The limitations herein before prescribed shall apply to actions brought by the commonwealth, or for its benefit. R. S. 120, § 20. ited. SECT. 20. All actions and suits for a penalty or forfeiture on a penal statute, brought by any person to whom the penalty or forfeiture is given in whole or in part, shall be commenced within one year next after the offence is committed, and not afterwards. 3 Gray, 135. 6 Gray, 338. SECT. 21. If the penalty or forfeiture is given in whole or in part to the commonwealth, a suit therefor may be commenced by or in behalf of the commonwealth at any time within two years after the offence is committed, and not afterwards.

SECT. 22. The provisions of this chapter shall not apply to any otherwise specially limited by law.

R. S. 120, § 21. 11 Cush. 512. of such suits

by commonR. S. 120, § 22.

wealth.

of suits by other statutes. R. S. 120, §§ 4,

23.

payment of

SECT. 23. Every judgment and decree in any court of record of the Presumption of United States, or of this or any other state, shall be presumed to be paid Judgment. and satisfied at the expiration of twenty years after the judgment or R.. 120, § 24. decree was rendered.

22 Pick. 533.

TITLE VI.

OF COSTS AND THE FEES OF CERTAIN OFFICERS.

CHAPTER 156.— Of Costs in Civil Actions.
CHAPTER 157.-Of the Fees of Certain Officers.

CHAPTER 156.

OF COSTS IN CIVIL ACTIONS.

A 34.1862

11 allen 352

Prevailing par-
ty entitled to

costs.

R. S. 121, § 1.

SECTION 1. In all civil actions, the prevailing party shall recover his costs, except in those cases in which a different provision is made by law. 7 Met. 590. 11 Met. 288. 4 Gray, 56, 26. SECT. 2. If the defendant answers in defence that he is discharged tinued, &c., by in bankruptcy or insolvency, and the action is discontinued or the plaintiff nonsuited solely in consequence of such answer, the defendant shall

except when action discon

insolvency.

1843, 55.

4 Cush. 502.

after joinder
of issue upon

discharge in in-
solvency, &c.
1841, 124, § 4.
1848, 267.

Costs on appeal

from a justice

R. S. 121, § 2.

recover no costs.

SECT. 3. If a defence is made to rest upon a discharge in bankruptcy or insolvency alone, and an issue is so made up in writing and found for the defendant, he shall recover his costs after, but not before, the joinder

of such issue.

SECT. 4. In civil actions before a justice of the peace, or a police of the peace, &c. court, if the plaintiff appeals from a judgment in his favor, and does not recover in the court above a greater sum for debt or damages than he recovered by the first judgment, he shall not be entitled for his costs of the whole suit to more than one-quarter part of the sum finally recovered for debt or damages.

in actions

commenced in
when plaintiff
recovers only
$20, &c.

S. J. C., &c.,

R. S. 121, § 3.

SECT. 5. In personal actions brought originally in the supreme judicial court, or the superior court, except actions of replevin, if the plaintiff finally recovers a sum not exceeding twenty dollars for debt or damages, he shall be entitled to no costs, except as is provided in the following section. 1859, 196. 8 Cush. 281. 1 Gray, 625. 2 Gray, 214. See Ch. 149, § 25.

plaintiff's claim

SECT. 6. If the plaintiff's claim as established on the trial exceeds Costs, when twenty dollars, and is reduced to that amount or less, or overbalanced, Is reduced by by set-offs which could not have been proved in payment, it shall be set-off. considered for the purposes of the preceding section as having exceeded 8 Mass. 535. twenty dollars, and the party who finally recovers judgment in the suit 12 Mass. 206. shall be entitled to his full costs.

R. S. 121, § 11.

2 Cush. 325.

does not recov

cover no costs.

SECT. 7. In actions at law brought originally in the supreme judicial, when plaintiff court, or removed by consent thereto, if the plaintiff does not recover, er $300 dameither in value of the property claimed or estate in controversy, or in age, &c., to redamages, an amount equal to three hundred dollars, to be assessed by 1859, 196, § 30. the jury who try the cause, or by an assessor agreed upon by the parties, or by an award of arbitrators, he shall recover no costs. SECT. 8. When a defendant brings money into court and offers the same in satisfaction of the damages, the plaintiff shall be entitled to the costs which had previously accrued, though he may not recover a larger sum than is so brought into court.

when defend

ant brings court.

money into

R. S. 121, § 14. 12 Pick. 345. in real ac

SECT. 9. In real actions and actions of replevin, the party finally prevailing shall recover his full costs without regard to the amount of dam- tions, replevin, ages recovered in the action.

SECT. 10. When a plaintiff at the same court brings several actions against the same defendant, upon demands which might have been joined in one, he shall recover costs in one action only, unless it appears to the court that the actions affect different rights or interests, or that for other sufficient reasons they ought not to have been joined. SECT. 11. When there are two or more counts on several and distinct causes of action, and a verdict is rendered for the plaintiff on one or more of them, and for the defendant on any other or others, each party shall recover his costs paid for the travel and attendance of witnesses, and for depositions and other evidence produced, examined, or used, on the trial of the counts upon which the verdict is in his favor, and shall recover nothing for the like charges incurred on the trial of the other counts.

&c.

R. S. 121, § 13. 1852, 312.

7 Mass. 476.

in actions

stayed, &c., till

SECT. 12. When, after a judgment for costs upon a nonsuit or dis- Proceedings continuance, a second suit for the same cause is brought by the original costs of former plaintiff, his executor, or administrator, before the costs of the former suit paid. suit are paid, the court in which the second suit is pending may order R. S. 121, § 17. proceedings therein to be stayed until such costs are paid, and may further order that the suit be dismissed unless the costs are paid within

the time expressed in the order.

taxed.

SECT. 13. In cases in which a party is entitled to recover double Double costs, costs, the sums paid as fees to witnesses, and for the costs of taking how 11, 18. depositions and procuring evidence, and for copies, and all court dues, shall be taxed and recovered singly, and the remainder only of the taxable costs shall be doubled. The same rule shall apply when treble costs are recovered.

tion for certio

SECT. 14. In cases where application is made at the suit or in behalf Costs on petiof a private person for a writ of certiorari, mandamus, quo warranto, rari, &c. or other like process, the court may in its discretion allow costs to any R. S. 121, § 19. person who appears and objects thereto, and may award judgment and execution against the person by whom, or in whose behalf, the application is made.

a

SECT. 15. In suits in equity in which as to one or more of the defendants the plaintiff seeks merely for a discovery of facts material to his rights and interests in a pending or anticipated suit, and not for decree against them, the court shall allow such defendants all reasonable costs, expenditures, and charges, by them made or sustained, according to the usual course of proceeding in equity in like cases. Such allowance shall be made notwithstanding any prayer in the plaintiff's

Costs in suits

in equity, &c., vision is made.

when no pro

R. S. 121, § 20. 9 Met. 320.

in civil suits by commonwealth.

R. S. 121, § 22.

4 Met. 42. 4 Gray, 26.

when brought in name of state

for use of a per

son.

R. S. 121, § 23.

against commonwealth, how paid.

suit for a decree against the defendants, if the court is satisfied that such prayer is either frivolous, a mere pretence, or not essentially connected with the subject matter of the discovery.

SECT. 16. In suits in equity and in other civil suits and proceedings in which no provision is expressly made by law, the costs shall be wholly in the discretion of the court, but no greater sum shall be taxed than is allowed for similar charges in suits at common law.

SECT. 17. In civil suits and proceedings duly instituted by or in the name of the commonwealth, and not on the relation, or in behalf, or for the use, of a private person, the commonwealth shall be liable for costs in like manner and to the same extent as a citizen is liable.

SECT. 18. When a suit or proceeding is instituted in the name of the commonwealth, on the relation, or in behalf, or for the use, of a private person, such person shall be liable for the costs in like manner, and to the same extent, as if the suit or proceeding had been instituted in his own name, and judgment may be rendered and execution issued therefor.

SECT. 19. When a judgment for costs is rendered against the commonwealth, the treasurer of the county where the court is held shall R. S. 121, § 24. pay the same upon the production of an attested copy of the judgment, and the sum so paid shall be allowed to him in his account with the treasury of the commonwealth.

for commonwealth, how taxed.

R. S. 121, § 25.

power of ar

bitrators, &c.,

as and of courts in case of amend

ments, &c., not

affected.

R. S. 121, §§ 21,

26.

2 Cush. 325.

by whom

taxation.

R. S. 121, § 27. 8 Met. 275.

SECT. 20. When costs are taxed for the commonwealth as a party in a civil suit or proceeding, no fees shall be taxed or allowed for the travel of the attorney-general or any other attorney for the commonwealth.

SECT. 21. Nothing contained in this chapter shall take away or control the power of arbitrators or referees to make such award concerning costs as justice and equity require; nor the power of any court to require costs to be paid by either party, as the condition of an amendment, continuance, or other order, passed at his motion, or to withhold and refuse costs, on like occasions.

SECT. 22. Bills of costs shall be taxed by the clerk of the court, or taxed; notice of in suits before justices of the peace, or courts having no clerk, by the justice. No costs shall be taxed without notice to the adverse party, if he gives seasonable notice in writing to the clerk or justice of his desire to be present at the taxation, or causes such notice to be entered on the docket; and notice given by or to the attorney in the suit shall be equivalent to notice by or to the party himself.

appeal from

taxation of by

clerk.

R. S. 121, § 58. 8 Met. 275.

ed.

how conduct

SECT. 23. Either party may appeal from the taxation by the clerk, to the court in which the suit is pending, or any one of the justices thereof.

SECT. 24. The appeal shall be heard and determined at the next term or session, unless the party who recovers costs elects to have it R. S. 121, § 29. determined before one of the justices in vacation, and gives seasonable notice thereof to the adverse party; in which case it shall be thus determined. In either case the judgment shall be considered as rendered on the day when the costs are finally taxed and allowed, except as is provided in the following section.

Appellee may take execution in certain cases before appeal is

settled.

R. S. 121, § 30.

Costs of appeal.

R. S. 121, §31.

SECT. 25. If the appeal is made by the party who is to pay the Costs, the other party may take out his execution and cause it to be satisfied, if he first gives bond to the adverse party with sufficient surety or sureties, to be approved by the clerk, in a sum equal to the whole amount of the costs, conditioned to repay such part of the costs as may be disallowed on the appeal, and to perform such other order as the court or judge shall make thereon.

SECT. 26. The court or judge before whom such appeal is heard may allow to either party, as justice may require, the costs incurred by the appeal; and the same may be added to or deducted from the costs

awarded in the principal suit, or a separate execution may be issued therefor, as the case may require.

SECT. 27. Parties recovering costs in civil causes shall be allowed as follows:

For an attorney's fee in the supreme judicial court or superior court, when an issue in law or fact is joined, two dollars and fifty cents; in all other cases, one dollar and twenty-five cents:

For the declaration in each writ in any justice's or other court,

cents:

and

fifty

For a term fee in the supreme judicial court or the superior court, five dollars for each term while the action is pending; but the plaintiff shall be allowed only one term fee if the defendant is defaulted without having appeared:

For attendance before a justice of the peace or police court, thirtythree cents for each day's actual attendance by the party or his attorney; but for not more than three days when the defendant is defaulted without having appeared; nor shall attendance be allowed after the day on which the action is nonsuited, defaulted, continued, or otherwise finally disposed of for the term, which day shall be entered on the docket:

For travel in either of the courts before mentioned, or before a justice of the peace, thirty-three cents for every ten miles' travel; but no allowance shall be made for travel to or from the clerk's office to take out or to carry thereto any writ or process, nor for more than eighty miles out and home, unless the party or some agent or attorney for him actually travels more than forty miles for the special purpose of attending the court in such cause; in which case allowance may be made, in the discretion of the court, according to the distance that is actually travelled.

for a corpora

SECT. 28. When a corporation is entitled to costs, an allowance shall Costs of travel be made for travel as in other cases, and the travel shall be computed tion. from the place where the corporation is situated, if it is in its nature R. S. 121, § 35. local, otherwise from the place in which its business is chiefly or commonly transacted.

SECTION 1. The fees of the several officers hereinafter mentioned, for the services specified with respect to each of them, shall be as follows, viz. :

JUSTICES OF THE PEACE.

Fees of officers.
R. S. 122.

See Ch. 163, § 22.

SECT. 2. For a blank writ of original summons, or attachment and of justices of summons, seventeen cents, or if issued by a police court, five cents:

the peace.