Freshwater v. . Baker

52 N.C. 255

• Court: Supreme Court of North Carolina
• Decided: December 5, 1859
• Status: Published

Opinion

Manly, J.

The facts in this case, so far as they relate to, tlie first, second and third points of defense, are identical in all matters of substance with those in Freshwater v. Nichols, ante 251. The form of action is different, but the requirements as to proofs are the same. For the reasons, therefore, which governed us in our conclusions, as to these points, reference may be had to the opinion in that case.

The replication to the plea of the statute is good, and is sustained by the proof. The first action was instituted within the year after the defendant took possession, (1850.) There was a nonsuit in 1855, and the present action commenced to the next term of the Court, (within the year.) It has been repeatedly held that a nonsuit, though not specially named, is within the equity of the proviso, in the 4th section of the Revised Statutes, ch. 65, (Rev. Code, ch. 65, sec. 8.) The time pending the first action, is not counted against plaintiffs; Blackwell v. Hawkins, 6 Ired. 428; Long v. Orrell, 13 Ired. Rep. 123.

We are of opinion plaintiffs are entitled to recover.

Per Curiam,

Judgment affirmed.