Fowler v. Williams

5 S.C.L. 414

• Court: Supreme Court of South Carolina
• Decided: November 15, 1814
• Status: Published

Opinion

Nott, J.

Upon looking into the proceedings, I do not find any plea oí the statute of limitations. I do not know what the counsel considers proper averments in such a case. It would appear that the only question made in the court below was, whether he should be permitted to give parol evidence that the former suit was for the same cause of action ? I think the testimony was properly rejected. In England, to the plea of the statute of limitations, it is not unusual to reply a former writ, with an averment that it is intended to declare in the same form of action. But there could be no such averment in this case, because the former proceedings are before the court, and it appears that the plaintiff declares in a different form of action. But even if it had been the same, and shewn by the record itself, it would still have remained to shew, that it would prevent the statute from running. There are certain cases, in which the act of 1712, authorizes plaintiffs to commence a second action after the statute would have attached, provided it is commenced within a year after the termination of the former action. But this is not one of the cases. In any point of view, fifis motion ought not to be granted;

Colcock, Smith, and Grimke, Js., concurred.