
    Harding P. Woods & others vs. Edmund H. Houghton.
    An action commenced, within the time allowed by the statute of limitations, by writ re» tamable according to law, containing a declaration adapted to the cause of action, is an “ action duly commenced,” within the meaning of Rev. Sts. c. 120, § 11, and if defeated for any matter of form, the plaintiff may commence a new action within one year after the determination of the first.
    An abatement or dismissal, for want of jurisdiction, of a trustee process brought in a county in which neither of the trustees resides,is an abatement or dismissal for “matter of form,” within the meaning of Rev. Sts. c, 120, § 11.
    Action of contract, commenced on the 10th of October 1851, on a promissory note, dated August 12th 1845, and payable on demand. A previous action of indebitatus assumpsit for money had and received, <fce. had been brought for the purpose of recovering the same note, within six years from the date of the note, returnable to the court of common pleas for this county at September term 1851, against the defendant and a trustee, both residing in the county of Essex; which action was dismissed or abated, on motion of the defendant, for want of jurisdiction. The parties agreed that if, in the opinion of the court, said first action was sufficient to prevent the cause of action from becoming barred by the statute of limitations, the defendant should be defaulted; otherwise, the plaintiffs should become nonsuit.
    
      
      D. Foster, for the defendant.
    The former action was insufficient to prevent the note in suit from becoming barred. The case is not within Rev. Sts. c. 120, § 11. The former action was not duly commenced, nor defeated for any matter of form. The action, not being brought in the county in which the trustee resided, the court had no jurisdiction over it; Rev. Sts. c. 109, § 7; it was a nullity, and would have been so treated by the court ex officio, or on motion of any one as amicus curiœ. Jacobs v. Mellen, 14 Mass. 135. Bell v. Austin, 13 Pick. 90. Osgood v. Thurston, 23 Pick. 110. The jurisdiction could only have attached by express consent of parties. Nor is this case within the equity of the statute. See Packard v. Swallow, 29 Maine, 458; Cook v. Darling, 2 Pick. 605; Angell on Lim. c. 28; Karver v. James, Willes, 255, and cases there cited.
    
      P. E. Aldrich, for the plaintiffs.
   Metcalf, J.

The question is, whether this action is barred by the statute of limitations — Rev. Sts. c. 120, § 1. The cause of action accrued more than six years before the suit was commenced ; but the plaintiff relies on § 11 of the same chapter, by which it is provided, (among other things) that “ if, in any action duly commenced within the time in this chapter limited and allowed therefor, the writ shall be abated, or the action otherwise defeated, for any matter of form, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit.”

The defendant denies, first, that the original action was duly commenced. We have, therefore, to inquire into the meaning of the words “ action duly commenced.” Their meaning, we believe, is to be learned from the previous legislation on this matter. The English St. 21 Jac. 1, c. 16, § 4, made provision for commencing a second action, after the failure of the first, in three cases only; first, when judgment should be reversed by error; second, when, after verdict, upon matter alleged in arrest of judgment, judgment should be given against the plaintiff, that he take nothing by his plaint, writ or bill; and third, when, in an action brought by original, the defendant therein should be outlawed, and should afterwards reverse the outlawry. Our provincial St. 10 Geo. 3, (Anc. Chart. 672,) and the St. of 1786, c. 52, § 1, allowed, as causes for commencing a second action, only the first two allowed by the statute of James. But by the second section of St. 1793, c. 75, it was further provided, that any action declared in according to the first section of the same chapter, in which the writ purchased therefor should fail of a sufficient service or return, by any unavoidable accident, or by the default, negligence or defect of any officer to whom the writ should be directed, or when such writ should be abated, or the action thereby commenced should be avoided by demurrer, or otherwise, for any informality of proceedings, then another action upon the same demand might be commenced, and the limitation thereof saved. The first section, to which the second referred, was in these words : “Any action of the case, or of debt grounded upon any lending or contract, or for arrearages of rent, actually declared upon in a proper writ, returnable according to law, purchased therefor before the first day of December last, [1793] or which has been or shall be so actually declared in, within the term of. six years next after the cause of such action accrued, shall be deemed and taken to be duly commenced and sued, within the meaning of said act [St. 1786, c. 52, § 1,] for the limitation of personal actions.” The St. of 1786 limited the time within which actions should be originally “ commenced and sued.” The St. of 1793 declared, that the making of a writ and inserting a declaration in it should be a due commencement and suing of an original action, and also of a second action when the first should fail through any of the causes of failure mentioned in that statute. The commissioners for revising the statutes combined, in § 11 of c. 120, the provisions of Sts. 1786 and 1793, concerning the bringing of a second action, and the legislature enacted that section in the words used by the commissioners. We therefore understand that, by an “ action duty commenced,” that section means an action on a claim “ actually declared upon in a proper writ returnable according to law.” And if these last quoted words had been inserted in § 11, instead of the words “ duly commenced,” we could not have understood “ a proper writ ” to mean a writ that could not be abated or defeated for any matter of form, but must have understood it to mean a writ adapted to the cause of ‘action. Lawes Pl. in Assump. 745. Such a writ was sued out and declared in by the plaintiff, in the first action on the note now in suit.

The defendant denies, secondly, that the original writ was abated, or the action otherwise avoided or defeated for any matter of form, because the court dismissed that action for want of jurisdiction. But the bringing of the action in the wrong county might have been pleaded in abatement, and the writ been technically abated. 14 Mass. 134. 6 Cush. 564. Such plea, however, was unnecessary, because the objection was apparent on the writ, and was as well the subject of a motion to dismiss, as of a plea. The dismissal of the action is therefore to have the same legal effect as the abatement of the writ would have had. For the words used in the statutes declaring the cases in which a second action may be maintained, after a failure of the first, have always been construed favorably for the plaintiff", and never have been held to have a technical meaning; but, as said by Shaw, C. J. in Coffin v. Cottle, 16 Pick. 386, are meant to declare, that “ where the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which he can remedy or avoid by a new process, the statute shall not prevent him from so doing, provided he follows it promptly, by a suit within a year.” In that case it was decided that where, upon a scire facias on a judgment, that judgment was held invalid, on facts alleged in a plea to the scire facias, a second action on the original cause of action, commenced within a year, might be maintained, on the ground that such avoidance had the same legal effect under St. 1786, c. 52, as if the judgment had been reversed by reason of error, or arrested on motion, after verdict, according to the letter of that statute. So, under St. 21 Jac. 1, c. 16, it was early decided that a second action was well brought within a year after the outlawry of the defendant had been adjudged void on plea. Fynch v. Lambe, Cro. Car. 294. The court there said: “Although the outlawry is not reversed by a writ of error, but avoided by plea, it is all one within the intent of the statute.” See also 2 Saund. 63 h, note; Blanshard on Lim. 110—115; 2 Greenl. Ev. 431, 432; Downing v. Lindsay, 2 Barr, 385; Givens v. Robbins, 11 Alab. 158.

Defendant defaulted. 
      
       Thomas, J. did not sit in this case.
     