Gass v. Bean , 71 Mass. 397 ( 1855 )

Dewey, J.

The limitation of scire facias against bail in civil actions is wholly governed by Rev. Sts. c. 91, § 8, which provide that no such writ shall be maintained, unless served on the bail vzithin one year after the rendition of final judgment against the principal. The second clause of Rev. Sts. c. 120, § 9, is to be taken in connection with the preceding clause of the same section, and, thus construed, is expressly limited to the forms of action mentioned in that chapter, of which scire facias against bail is not one. The object of the second clause was not to embrace a new class of causes of action, but to make more full provisions, in the cases before enumerated, as to the effect of a residence out of the Commonwealth. The first clause had provided for cases of persons out of the Commonwealth when the cause of action accrued; the second includes the case of an absence commencing afterwards. The note of the commissioners who revised the statutes is very full and explicit to this point; and states the object of the clause to be to remove all doubts as to the effect of the absence of the debtor, and to require him to remain within the State during the whole period prescribed for the limitation, in order to avail himself of its provisions. Commissioners’ note to Rev. Sts. c. 120, § 8.

If, therefore, this defence had been taken in the original action, it must have availed, notwithstanding the absence of the defendant from the Commonwealth, as alleged in the plea to this writ of error. This ground of defence, being apparent on the record, and of such a character as could not be affected by any proo to be offered, the judgment may properly be reversed upon t writ of error. Steph. PI. (1st Amer. ed.) 141.

Judgment reversed.