Hannah v. . Ingram

| N.C. | Dec 5, 1860

It appeared on the trial that a writ issued 14 February, 1857, returnable to March Term, which was returned "Not found," and that no writ issued to the next ensuing term thereafter, but that one issued returnable to the second term, which was March, 1858, which was marked as an alias, and pursued the language peculiar to that writ.

The court intimated an opinion that the latter writ was the commencement of the suit, and as the words were spoken more than six months prior to the date of its issuing, the action was barred. In deference to this intimation the plaintiff took a nonsuit and appealed. The power to bring an action for words is limited (56) by Rev. Code, chap. 65, sec. 3, to six months after the speaking of them, and the question presented here is: At what time was this action commenced? When the first writ was issued or when the last?

We concur with his Honor below, that it was at the issuing of the last writ — the one from the Fall Term, 1857, to the following spring. This latter, although denominated an alias, does not connect itself with the other, so as to make one continuous suit, a term having intervened from which no process was issued. In Fulbright v. Tritt, 19 N.C. 491" court="N.C." date_filed="1837-12-05" href="https://app.midpage.ai/document/fulbright-v--tritt-3643166?utm_source=webapp" opinion_id="3643166">19 N.C. 491, it was held that such a failure, under precisely similar circumstances, worked a discontinuance of the suit, and the issuing of a writ, purporting to be an alias, at the subsequent term was the beginning of a new suit. Fulbrightv. Tritt is in point, and is satisfactory to us. It decides the cause before us in accordance with the opinion of the judge below, and his judgment should, therefore, be

PER CURIAM. Affirmed.

Cited: Etheridge v. Woodley, 83 N.C. 13; Webster v. Laws, 86 N.C. 180.