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 *Page 198 jailer of the county and bring him up for further examination. On 23 December the plaintiff was examined by Allison together with (348) 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 the cases were not intended to be enumerated, by (349) referring in general to "all such cases." Hence, where a person brought an action before the statute had run, and died before judgment, the time being then expired, it was held that his executor or administrator might bring a new action within the year (2 Salk., 425), and this was when the death of either party worked an abatement of the suit. And a still stronger case was where a suit was abated by the marriage of afeme sole plaintiff. She and her husband were allowed to bring a new action within the year, though the second action could not, in the nature of the thing, be a continuance of the former writ. Willes, 259. The marriage of the plaintiffs was a voluntary act, and would seem less entitled to a favorable construction than a nonsuit occasioned by the neglect of the magistrates to return the warrant and discharge, which *Page 199 the plaintiff had no means of hastening or compelling. The replication to the plea ought, upon authority and principle, to be sustained.
PER CURIAM. New trial.
Cited: Straus v. Beardsley, 79 N.C. 64; Wharton v. Comrs., 82 N.C. 15;Prevatt v. Harrelson, 132 N.C. 254.