53 Mass. 15 | Mass. | 1846
The question here is, whether the case rs saved from the operation of the statute of limitations by the facts stated. It is provided by Rev. Sts. c. 120, § 11, that “ if, in any action duly commenced within the time in this chapter limited,” (six years on a promissory note,) “ the writ shall fail of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it is committed,” &c., “ the plaintiff may commence a new action for the same cause, within one year after the abatement or other determination of the original suit.” The original suit on this note was commenced August 31st 1844, within six years of the date of the note. The present suit was commenced December 31st 1844, within a year of the determination of the former, whether that be the last day of service, oi
The term “ unavoidable accident,” we think, must have a reasonable construction, and does not mean to limit the case to a cause which no possible diligence could guard against, but an unforeseen cause, preventing the service of the writ, where due diligence has been used, by the creditor, to commence his suit seasonably, by the due and ordinary course of law. In the present case, the creditor seasonably commenced his suit, and placed his writ, as he believed, and had good reason to believe, in the hands of a proper officer for service. But by mistake he described the. residence of the debtor, as he had known it, and as it was till within a short time before, when he had changed it to another town and county, of which it does not appear that the plaintiff had any knowledge, and which the officer, who was charged with the service, did not seasonably discover. This is one of the accidents, contemplated by the statute, and brings the case within the saving provision of the eleventh section of the statute of limitations, above cited.
Exceptions overruled.
