Sanborn v. Dennis

75 Mass. 208

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

By the Court.

The provision of St. 1853, c. 318, is explicit, that when a bill in equity for the redemption of a mortgage of real estate is inserted in a writ, the depositing of the writ or a copy thereof in the clerk’s office shall be deemed the commencement of the suit, unless it is so deposited within three days after service, and in that case the service shall be deemed the commencement of the suit.

As it is admitted in this case, that the service was made on the last day of the three years, and no copy of the writ was deposited in the clerk’s office within three days after that, the suit ■ was commenced too late.

The Sts. of 1855, c. 194, and 1856, c. 38, defining the general equity jurisdiction of this court, do not affect this specific provision of the St. of 1853, c. 316. They are not upon the same subject matter.

There is no evidence of any fraud, mistake or accident, to require the interposition of a court of equity.

Judgment for the defendant.