Opinion
December 9, 1901.
December 9, 1901.
Present: HOLMES, C.J., KNOWLTON, LATHROP, HAMMOND, LORING, JJ.
In the requirement of Pub. Sts. c. 167, § 8, amended by St. 1894, c. 405, that a copy of the declaration must be furnished on demand if there is an attachment and "the declaration and bill of particulars, when necessary, are not inserted in the writ," the words "when necessary" qualify "bill of particulars" alone, and the declaration always must be furnished.
APPEAL from an order of the Superior Court ordering an action discontinued. The writ issued March 21, 1901, and an attachment was made by trustee process. On April 9, 1901, the defendants made a demand in writing upon the plaintiff's attorney for a copy of the declaration stating the plaintiff's cause of action. The demand was not complied with, and the defendants moved for the order from which the appeal was taken.
Pub. Sts. c. 167, § 8, as amended by St. 1894, c. 405, is as follows: "The declaration may be filed in the clerk's office on or before the day on which the writ is returnable, unless an arrest of the person is made. If there is an attachment of property, and the declaration and bill of particulars, when necessary, are not inserted in the writ, a copy thereof shall be furnished to the defendant or his attorney within three days after he has demanded the same in writing of the plaintiff or his attorney, and if not so furnished, the action may, upon motion of the defendant, be discontinued."
J.B. Dixon, for the plaintiff.
P.S. Maher E.S. Hall, for the defendants, submitted the case on a brief.
The statute requires a copy of the declaration to be furnished on demand in all cases where there is an attachment and the declaration is not inserted in the writ. St. 1894, c. 405. The comma after the word "particulars" raises no reasonable doubt that the following words, "when necessary" qualify "bill of particulars" alone.
Judgment affirmed.