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defendant to enter his appeal, judgment may be affirmed on

Upon failure of the

shall remain in full force, and he shall account accordingly.
And in case the defendant shall not enter and prosecute
his appeal from the first judgment, the same, upon com-
plaint, may be affirmed; and auditors may thereupon be complaint.
appointed in the same manner they would have been in the
court of common pleas, had no appeal been made from the
first judgment.

1784, act 4, sec. 5.

Whenever there shall be an appeal from a judge of Mass. Stat. Mar. 12, probate, and the appellant shall file the reasons of appeal, and give bonds, and notify the adverse party, according to law; in that case, all further proceedings, in consequence of the order or decree appealed from, shall be stayed until a final determination shall be had thereon in the supreme court of probate.

any

on an appeal from a

the

judge of probate, where a will is in

question, the cause

be

may be tried on a feigned issue, at the

expense of the appel

lant.

On failure of the ap

So also in appeals from a judge of probate, when it shall Mass. Stat. Mar. 12, appear, from the reasons of appeal, that the sanity of the 1784, act 4, sect. 4. testator, or the attestation of the witnesses in his presence, as the law directs, is the question in controversy, on will or codicil, the supreme court of probate may, for determination thereof, direct a real or feigned issue to tried before a jury in the same court, at the expense of the appellant, in case the issue be found against him. And in case the party or parties appealing, fail in the prosecution of the said appeal to effect, then the adverse party, or any pellant to prosecute person interested in the sentence or decree, so appealed from, shall have the benefit of the same, by filing a complaint before the supreme court of probate, in like manner as is provided by law for affirming the judgment of the court of common pleas in the supreme judicial court. And the supreme court of probate may assess reasonable Costs to be assessed. costs, in all cases that may be brought before them; and in case the appellant shall neglect or refuse to pay the costs that may be so assessed against him, the appellee may bring an action of debt therefor, or prosecute the bonds given for appealing.

the appeal, the decree may be affirmed on complaint.

An action lies for the appellee against the appellant forhis costs.

Dexter & Ux. v.

3 Mass. T. R. 32.

Upon an appeal from a decree of the probate court, granting letters of administration to A B; the court may Brown, reverse the decree, as to the appointment of A B, and affirm it as to the residue. And in such case, the papers are remitted to the judge, who is directed to grant administration to CD or E F.

TITLE XI.

APPRAISERS.

1784, sect. 14.

1st. How appraisers are appointed and sworn, for the division of real estate, and for setting off the widow's dower.

2d. How appointed and sworn, for the appraisal of the estate of a deceased person.

3d. How appointed and sworn, for the appraisal of land set off on execution.

4th. How appointed and sworn, for the appraisal of lost goods, and stray beasts.

5th. How appointed and sworn, for the appraisal of creatures, impounded damage feasant.

I. How appraisers are appointed and sworn, for the division of real estate, and for setting off the widow's dower.

In all cases where the appraisers, commissioners, or Mass, Stat. March 4, dividors, appointed, by the judge of probate, to perform any services respecting the estate of any person deceased, or persons appointed to set off the widow's dower therein, and are by law directed to be under oath, or sworn by the judge of probate, they may be sworn before a justice of the peace; and in case there be no justice of the peace in the same town, they may be sworn before the town-clerk; a certificate of such oath to be returned to the probate-office, from whence the warrant or commission, appointing them, issued.

Mass. Stat. Mar. 9.

II. How appointed, and sworn, for the appraisal of the estate of a deceased person.

These appraisers are generally appointed by, and sworn 1784, act 3, sect. 8. before the judge of probate.

Ibid. sect. 16.

But it is provided, that in case the estate of any person, dying intestate, shall lay more than ten miles from the

dwelling place of the judge of probate, of the county in which such estate lies, then it may be lawful for any justice of the peace to appoint the appraisers of such estate; and in case any part of the estate of any person, dying testate or intestate, shall lay without the limits of the county of the judge of probate, to whom it appertains to act as such, in the settlement of the same, then it may be lawful for any justice of the peace to appoint the appraisers of such part of such estate; and, in both the cases last mentioned, the justice of the peace, appointing appraisers, shall administer to them the necessary oaths, and shall certify the same, together with the appointment, which shall be considered as valid and effectual in law as if such persons were appointed and sworn by the judge of probate.

III. How appointed and sworn, for the appraisal of land, set off on execution.

In this case, the officer, to whom the execution is di- Mass. Stat. Mar. 17, rected and delivered, shall cause three disinterested and 1784, a&t 1, sect. 2. discreet men, being freeholders in the county, one to be chosen by the creditor or creditors, one by the debtor or debtors, whose land is to be taken, if they see cause, and a third by the officer, (and in case the debtor or debtors shall neglect or refuse to choose as aforesaid, the officer shall appoint one for such debtor or debtors) to be sworn before one of the justices of the peace for the same county, faithfully and impartially to appraise such real estate as shall be shewn to them; who shall appraise the same, to satisfy the same execution with all fees, and shall set out such estate by meets and bounds.

If an officer chooses an appraiser for the debtor, he must state, in his return, that the debtor refused to choose one; for otherwise it will not appear that the debtor had the option given him by law.

IV. How appointed and sworn, for the appraisal of lost goods and stray beasts.

Eddy v. Knapp,
2 Mass. T. R. 134.

The finder of any lost goods or stray beast must, within Mass. Stat. Feb. 13, two months, and before any use or improvement thereof is 1789, a&t 3, sect. 2. made to its disadvantage, procure from the town-clerk, or

1789, act 6, sect. 4.

a justice of the peace, a warrant directed to two such disinterested, judicious persons, as the clerk or justice shall appoint, returnable into the town-clerk's office, in seven days from the date, to appraise and value the stray beast or goods upon oath, at the true value thereof in money, according to their best judgment, and to administer an oath to them for that purpose accordingly.

V. How appointed and sworn, for the appraisal of creatures, impounded damage feasant.

If the person, whose creatures are impounded, damage Mass. Stat. Feb. 14, feasant, shall think the damages, mentioned in the memorandum left with the pound-keeper, are unreasonable, he may have the same ascertained by two or more disinterested, judicious persons, being thereto appointed and duly sworn, by some justice of the peace for the same county, or by the town-clerk, where no justice of the peace is ; which sum, thus ascertained, shall be taken instead of the sum first left with the pound-keeper.

Ibid.

And if the owner doth not, within twenty-four hours after notice, pay the damages and charges of impounding, or replevy the creatures, the party, trespassed upon, may apply to a justice of the peace, or the town-clerk, for a warrant, directed to two or more disinterested, judicious persons; which warrant, the town-clerk of the same town, or any justice of the peace in the same county, may issue, and make returnable into the town or district clerk's office, of the same town or district, as soon as the business is performed; and may also administer an oath to the persons appointed, faithfully and impartially to estimate the damage done the party injured; and also to appraise so many of the creatures impounded, as shall be sufficient to answer the damages and all charges.

[91]

TITLE XII.

APPRENTICE AND SERVANT.

1st. OF

F the authority of overseers of the poor to bind out minors, of a certain description, as apprentices or as ser

vants.

2d. Duty of overseers to inquire into the usage of minors, thus bound; and how, in case of ill usage, such minors may be released from their master.

3d. Of the action of covenant, given by statute, against the master of any such minor.

4th. What proceedings may be had in case of elopement, or gross misbehaviour, of such minor; and herein of the master's remedy against persons enticing to such elopement.

5th. Of the authority of overseers of the poor to bind out to service, adults, of a certain description.

6th. Of the authority of overseers to bind persons who reside in unincorporated places.

7th. How minors may be bound as apprentices or servants, by themselves, parents, or guardians.

8th. Duty of parents, guardians, and selectmen, to inquire into the usage of such minors; and how, in case of ill usage, such minors may be released from the service of their master.

9th. What proceedings may be had, in case such minors abscond from the service of their master.

10th. What proceedings may be had, in case of gross misbehaviour on the part of the minor.

I. Of the authority of overseers of the poor to bind out minors, of a certain description, as apprentices or as ser

vants.

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