Delaplaine v. Crowninshield

7 F. Cas. 387, 3 Mason C.C. 329

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1824
• Status: Published

Opinion

STORY, Circuit Justice.

Whatever may be the case as to the other pleas, the plea of the statute of limitations of Massachusetts is a complete bar to the present suit, unless the matter set up in the replication is sufficient to avoid it. In my judgment, it is wholly insufficient. There is no case where the statute is stopped by the commencement of an action, mil ess that action is kept alive after the first process is returned, by continuances, and is the same suit to which the statute is pleaded as a bar. A suit commenced, and-afterwards discontinued, will not aid the plaintiff in another suit, even in the same court for the same cause of action. The case of Smith v. Bower, 3 Term R. 662, is directly in point, and decisive against the plaintiff.. Even if the law were, otherwise on this point, it would be impossible to contend successfully for the proposition, that a suit commenced in another state would take a case out of the statute of limitations of Massachusetts, in an action pending here. No such exception is expressed or can be implied from that statute. The judgment must therefore be for the defendant on the demurrer, the replication being fundamentally bad; and this makes an end of the action. Judgment accordingly.