Opinion
(December Term, 1859.)
Judgment of nonsuit is within the equity of the proviso, Rev. Code, ch. 65, sec. 8, and the plaintiff may commence a new action within a year after the termination of the first.
DETINUE, tried before Saunders, J., at Fall Term, 1858, of NEW HANOVER.
Wright and Strange for plaintiff.
E. G. Haywood and London for defendant.
The facts of this case are almost identical with those set forth in Freshwater v. Nichols, ante, 251. The negro in question, Henry, is the son of Orrice, one of the slaves mentioned in the deed of Unity Cruise, John Cruise, and Caleb L. Nichols to Mrs. Freshwater, then Mary Jane Lee. The negro Henry, together with the other slaves, went into the possession of the plaintiff at the death of her mother, and was held by her for two years, when he was taken from her by the (256) defendant, some time in 1850. An action was commenced by her against the defendant for the said negro in the same year, which pended until Spring Term, 1855, when it ended in a nonsuit. Plaintiff proved a demand and refusal before bringing this suit.
The points made by the defendant, and the ruling of the court in this case, are identical with those in Freshwater v. Nichols, supra. Appeal by defendant.
The facts in this case, so far as they relate to the 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 sec. 4, ch. 65, Rev. Stat. (Rev. Code, ch. 65, sec. 8). The time pending the first action is not counted against plaintiffs. Blackwell v. Hawkins, 28 N.C. 428; Long v. Orrell, 35 N.C. 123.
We are of opinion plaintiffs are entitled to recover.
PER CURIAM. Affirmed.
Cited: Wharton v. Comrs., 82 N.C. 15; Prevatt v. Harrelson, 132 N.C. 254; Trull v. R. R., 151 N.C. 549; Bradshaw v. Bank, 172 N.C. 635.
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