The Massachusetts spy, and Worcester County advertiser. [volume] ([Worcester, Mass.]) 1825-1831, 1830-03-31
STATE LAWS, &c.
CommoswrALrH OF MASSACHUSETTS


of personal property subject to any lien
created by law.
Sac. l.. Be Il enacted bg the Senate and
House of Representatives. in General Court
assembled, and by the authority Of The samer
That whenever any personal property, not ex,
empt by law from attachment, shall hereafte
be mortgaged, pledged or subject to any lien
created by law, the mortgage, Pledge, or
holder NAV be summoned into Court in the
manner and by the process provided by a law of
this Commonwealth, passed on the twenty
eighth day of February, one thousand seven
hundred and ninety five, entitled " An Act to
enable Creditors to recover their Just demands
out of the goods, effects, and credits of their
debtors when the same cannot be attached by
the ordinary process of law as the Trustee of
the mortgager, pledgor, general owner, or the
property so mortgaged, pledged, or subject to
any lien aforesaid may be attached by the
Creditor of the mertgager, plsdger, or general
ow ner in the manner and on the conditions
hereinafter provided. And if the MORTGAGE,
PLEDGE, or hslder shall be summoned as afore-
said and if upon his disclosure it shall appear
that the property was mortgaged, pledged or
subject to lien as aforesaid to secure the pay
ment of debt to the mortgage, Pledge, or
holder, and that the mortgager, pledgor, or gen.
eral owner has any subsisting right in law or
equity to redeem the same by the payment of
such debt, the Court may order and decree that
on payment or tender of such debt by the plain
tiff within such time as the Court shall order.
the person summoned shall deliver over the
property to the attaching officer to be holden
by him in the same manner as if it had been at
taehed on mesne process, and in default there
of that he shall be charged as the Trustee ofthe
principal debtor. And the Court shall enter
such decree and order upon record. And the
plaintiff may have his writ of scire facias against
such Trustee in the manner provided in the
sixth section of the Act aforesaid and if upon
the return thereof duly served, it be made to
appear that he has on his part complied with
the order and decree of the Court made as
aforesaid and that the Trustee has neglected or
refused to comply Herewith then the Court
shall enter up judgment against him for the
amount of the sums returned unsatisfied upon
the execution against the principal debtor if
there appear to have been in his hands property
mortgaged, pledged, or subject to any lien as
aforesaid to that amount; but if not, then the
Court shall enter up judgment against him to
the amount of the property mortgaged, pledg-
ed, or subject to lien as aforesaid, and may as
certain the amount and value thereof in such
manner as it shall deem proper; and if, upon
the disclosure of the Trustee made as aforesaid
1t appear that the property was mortgaged,
pledged, or subject to lien as aforesaid to in
demnify the mortgage, Pledge, or holder
against any liability, or to secure the perform
anee of any contract or condition, and that the
mortgager, pledgor, or general owner has any
subsisting right in law or equity to redeem the
same, the Court may order and decree that the
extiDguishment and discharge by the plaintiff
OF such liability. or on the performance Of said
condition or contract by the plaintiff within
such time as the Court shall order, the person
SO summoned shall deliver over the property to
the attaching officer to be holden as if it had
been attached, and in default thereof shall be
rh rad . ha &c A. LII
as aforesaid, and such decree or order shall be
entered on record, and the same subsequent
proceedings be had as are above provided for
the case of mortgages, pledges, or liens created
by law to secure payment of debts; provided
always that the mortgage, Pledge, or holder
summoned as aforesaid, shall be entitled to re-
celve OF the attacking officer an amount, suffi-
Gent to pay his reasonable Counsel fees and
other necessary expenses occasoned by his be-
ing so summoned and accrung before the sea.
vice OF scire facias upon him, said amount, and
the necessity of employing Counsel to be deter
mined by the Court before whom he may be
summoned.
SEC. 2. Be 1t further enacted, That it shall
be lawful in lieu of summoning the MORTGAGE,
PLEDGE, or holder as aforesaid to attach OF take
IN execution any personal property mortgaged,
pledged, or subject to any lien as aforesaid not
exempt by law from attachment unless the title
OF mortgage, Pledge, or holder thereto shall
have become absolute, as the property of the
mortgager, pledgor, or general owner provided
that the person for whose benefit the same at
taehment is made or execution levied shall first
pay or tender to the mortgage, Pledge, or
holder, the full amount of the demand for which
the said property is mortgaged, pledged, or SUBJ
Ject to any lien as aforesaid. And it shall be
the duty of the officer, who shall sell any such
personal property, or any personal property de-
llYered to him under the provisions of the first
section of this Act on mesne process or execu-
ton to apply the proceeds of such sale after de-
Quoting his fees and charges of the sale to the
payment of the sum SO paid or rendered to the
mortgage, Pledge, or holder, and Of the inter-
est thereon from the time of such payment or
tender to the time of sale; and the residue of
SUCH proceeds shall be applied to the satisfac-
tion of the judgment of the plaintiff in the man
ner provided by law.
SEc. 3. Be it further enacted, That every
mortgage, Pledge, or holder of personal prop
erty shall upon demand in writing, being made
upon him by any person who is DESTROYS of at
taching or taking in execution such property
Tor debt or demand against the mortgager,
pledgor, or general owner, render true and
Just account OF the debt or demand, secured by
such mortgage, pledge, or lien, and any mort
gage, PLEDGE, or holder, who shall, after twen-
fy-iour hours after such demand made, unrea-
sonahy neglect to render such account and
shall receive from the person attaching the
property or taking it in execution more than is
Justly due him on account of the demand secur-
ed by the mortgage, pledge, or lien, shall be IL
able to refund such excess with interest there
on at the rate of twelve per centum per annum
to the time of the recovery of judgment there
for, to be recovered by an action for money had
and received. Aud any mortgage, Pledge,
or holder, who shall under this Act receive
from any person DESTROYS Of attaching the prop
erty, mortgaged, pledged, or subject to any
lien as aforesaid, or Of taking it in execution,
more than is justly due him on account of the
demand secured by the mortgage, pledge, or
lien shall be liable to refund such excess in an
action for money had and received.
Approved by the Governor, March 10, 1880.