Donnell v. Gatchell

Shepley, C. J. — The question presented is, whether this suit is within the exceptions to the operation of the statute of limitations, c. 146, § 12, permitting suits, commenced within six months after an abatement or defect of a former suit for the same cause of action, to be maintained. It is alleged in argument, that it was the intention to permit a new suit to be maintained, whenever the first suit had been abated for any cause, or defeated for matter of form. Writs may be abated on trial of issues of fact, and for causes which would prevent the maintenance of any suit for the same cause of action, between the same parties on the [219] same facts. It does not appear to have been the intention to suspend for six months the operation of the statute of limitations -in such cases, to allow another action to be commenced. The statute only allows another action to be commenced within that time, when a writ has been abated or an action defeated “ for any matter of form or by the death of either party.” The writ in the former action was not abated for any matter of form, but because it appeared upon inspection to have been commenced and made returnable in the county of Lincoln, when it should have been in the county of Cumberland. This action not having been commenced within six years after the cause of action accrued, is barred by the statute of limitations. Plaintiff nonsuit, Tenney, Appleton and Cutting, J. J., concurred.