Skillington v. Allison
| Decision Date | 30 June 1823 |
| Citation | 9 N.C. 347 |
| Court | North Carolina Supreme Court |
| Parties | SKILLINGTON v. ALLISON & GARDNER.—From Cabarrus. |
It is a good replication to the plea of the statute of limitations that the plaintiff brought his action wihin one year after a nonsuit, and that it is the same cause of action.
CASE for malicious prosecution. Plea: Statute of limitations.
On 17 December, 1817, Allison, a justice of the peace, at the instance of Gardner, as the prosecutor, issued a warrant to arrest the plaintiff on a charge of felony, and after examination by Allison the plaintiff was committed. On 22 December, 1817, Allison issued a mandate to one Reed, as an officer, to receive the body of the plaintiff from the
jailer of the county and bring him up for further examination. On 23 December the plaintiff was examined by Allison together with Harris and Young, two other magistrates of the county, and was discharged. Plaintiff then commenced a suit against the defendants for malicious prosecution, and it was continued until November Term, 1821, of Cabarrus court, when the plaintiff was nonsuited on the ground that there was no evidence that the plaintiff had ever been legally discharged on the accusation for felony, the warrants and proceedings thereon having never been returned to court and made matter of record. After this nonsuit, and at the same term, the plaintiff procured the warrants, etc., to be returned, and his discharge regularly entered, and on 17 April, 1822, issued his writ in the present suit. To the plea of the statute of limitations, plaintiff replied that he had brought his action within one year after the nonsuit, and that it was the same cause of action.
The court below held that the statute began to run from the time plaintiff was discharged by the magistrates, viz., 23 December, 1817, and that there is no saving in the act of limitations for a plaintiff who is nonsuited. The jury, on the plea of the statute, found for the defendants. The plaintiff moved for a new trial, which was refused. Judgment and appeal.
That a plaintiff who is nonsuited is within the equity of section 6 of the act of 1715, has been uniformly considered in practice as a settled rule, and must be familiar to the profession. Anon., 3 N. C., 63. And though the precise case of a nonsuit may not be found in foreign books, yet it depends upon the same principle which has admitted other cases than those enumerated in the statute, the words of which contain a clear indication that all...
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Blades v. Southern Ry. Co.
...when the judgment has been reversed or arrested, was contained in the Act of 1715. In construing that ancient statute in Skillington v. Allison, 9 N.C. 347, in an opinion Chief Justice Taylor, it was held that when an action instituted by a feme sole abated by reason of her marriage, as the......
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Bradshaw v. Bank
...when the first suit is dismissed for want of jurisdiction. Anonymous, 3 N. C. 231 (2 Hayw. 63); Pearse v. House, 3 N. C. 386; Skillington v. Allison, 9 N. C. 347; Straus v. Beardsley, 79 N. C. 59; Dalton v. Webster, 82 N. C. 279; Harris v. Davenport, 132 N. C. 697, 44 S. E. 406. "At common ......
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Prevatt v. Harrelson
...dismissed in the nature of a nonsuit "does pot deprive the plaintiff of bringing a new suit for the same cause of action." Skillington v. Allison, 9 N. C. 347; Long v. Orrell, 35 N. C. 123; Freshwater v. Baker, 52 N. C. 255; Straus v. Beardsley, 79 N. C. 59; Wharton v. Commissioners, 82 N. ......
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