Anonymous

Full title: ANONYMOUS

Court: Superior Court of North Carolina

Date published: Jan 1, 1798

3 N.C. 63 (N.C. Super. 1798)

Opinion

(Spring Riding, 1798.)

1. If a suit to which three years is a limitation be brought before the three years have expired, and there is a nonsuit, the plaintiff may sue again within twelve months, and then only the time elapsed before the first action shall be counted.

2. Whether, if the new action be not commenced within twelve months after the nonsuit, the time elapsed during the pendency of the former suit shall be counted, quere.

THE act of limitations had run about eighteen months, then the plaintiff sues and his action is continued in court about four years, and then he is nonsuited, and upwards of twelve months after that he renews his action, and the defendant pleads the act of limitations.

HAYWOOD and STONE, JJ.

If a suit be instituted before the three years are expired, and there is a nonsuit after three years, the plaintiff may sue again within twelve months, and then only the time elapsed before the first action shall be counted. But then a doubt was conceived whether, if the action be commenced after twelve months from the nonsuit, the time between the commencement of the first action and the nonsuit shall be counted, or only the time before the commencement of the first action and the time after the nonsuit and before the commencement of the second action.

HAYWOOD, J.

If after the nonsuit a new action be commenced in a reasonable time, that time which intervened during the pendency of the first action shall not be counted, because the second suit being commenced with all proper diligence is looked upon to be quasi a (64) continuance of the former; but if it be not commenced in a reasonable time, it will not be considered as a continuance of the former, and then the former being an effectual one, shall not be regarded at all, and consequently the time elapsed during its pendency shall be counted. The reasonable time I speak of is ascertained by the equity of the act itself, sec. 6, to be one year.

STONE, J.

I am not satisfied but that the time elapsed during the pendency of the former action should be rejected, and then the plaintiff is not barred.

Sic adjournatur. Vide Str., 907; 3 Term, 664.

NOTE — See Pearse v. House, post, 386, where the judge seemed inclined to think that it should be counted, which the editor thinks is now the settled construction of the statute.

Cited: Skillington v. Allison, 9 N.C. 348; Bradshaw v. Bank, 172 N.C. 634. (65)