Summary
In Fulbright v. Tritt, 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.
Summary of this case from Hannah v. IngramOpinion
(December Term, 1837.)
Where an original writ is returned "not found," and a term is permitted to elapse without suing out an alias, the suit is discontinued; and if, at a subsequent term, an alias be sued, its date is the commencement of the action, and consequently, in an action for slander, if the words were spoken more than six months before its date, the statute of limitation is a bar.
THE plaintiff, on the 20th day of September, 1834, sued out a writ in CASE for slanderous words, commanding the sheriff to take the "body of Henry. Tritt for Archibald Tritt," to answer, c. At Fall Term, 1834, the sheriff returned the writ "executed on Henry Tritt — A. Tritt not to be found." No process issued from this Term against Archibald Tritt. At Spring Term, 1835, the plaintiff entered a nol. pros. as to Henry Tritt, and issued what the clerk instanced as an alias writ, but which was in its terms an original writ, against Archibald Tritt, returnable to Fall Term, 1835; and the sheriff returned the same "not found." Then a writ, which the clerk called a pluries, but which was in terms an alias, issued returnable to Spring Term, 1836. This was executed; and the defendant appeared and pleaded the statute of limitations. The speaking of the words, as charged in the declaration, was within six months of the issuing of the original writ against "Henry Tritt for Archibald Tritt," but not within six months of the date of the first writ issued against Archibald Tritt, which was on the 15th day of April, 1835. His Honor Judge SETTLE, at Haywood, on the last Circuit, was of opinion, that the plaintiff's action was barred by the statute of limitations; and a verdict being rendered accordingly, the plaintiff appealed.
Neither party was represented in this Court.
— We agree with the judge, that the plaintiff's action was barred by the act of limitations. If the original writ had been correctly issued against Archibald Tritt, returnable to Fall Term, 1834, as he was not arrested, the plaintiff should have issued an alias from that term. There was not an alias issued from that term, and the first suit was discontinued. The writ, which issued on the the 15th of April, 1835, against Archibald Tritt, must be considered the original in this action. The words were spoken by the defendant more than six months before the 15th April, 1835. We are of opinion that the judgment must be affirmed.
PER CURIAM. Judgment affirmed.