Hanna v. Ingram, 53 N.C. 55, 8 Jones 55 (1860)

Dec. 1860 · Supreme Court of North Carolina
53 N.C. 55, 8 Jones 55
JAMES HANNA v. JOHN N. INGRAM

JAMES HANNA v. JOHN N. INGRAM.

Where a writ in slander was issued, returnable to a term of the Court, and no alias issued from such return term, but a writ issued from the next term thereafter, it was Held that the latter writ was the commencement of the suit, and the limitation to the action must be determined accordingly.

Action for slander, tried before French, J., at the Fall Term, 1860, of Anson Superior Court.

It appears on the trial that a writ issued on the-day of February, 1857, returnable to March Term of that year; 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 Term, 1858, which was marked as an alias, and pursued the language peculiar to that writ.

The Coiirt 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.

MeGorTcle, for the plaintiff.

JR. H. Battle, for the defendant.

*56Manly, J.

The power to bring an action for words is limited by the Revised Code, ch. 65, sec. 3, to six months , after the speaking of themand 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 the case of Fullbright v. Tritt, 2 Dev. and Bat. 491, it was held that such a failure under precisely similar circumstances, worked a discontmuanoe 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. The case of Fullbright v. 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 affirmed.

Per Curiam,

Judgment affirmed.