
    Brown’s Executors v. Putney.
    October Term, 1794.
    Statute of Limitations — Abatement of Suit — Within What Time Plaintiff Must Recommence Suit/ — If the action be commenced within five years from the time the cause of action accrued, and then the suit abates, the plaintiff is within the equity of the proviso in the Act of Limitations, if he recommence his action within a year after the abatement, otherwise he is barred.
    This was an action of assumpsit brought by Putney against the appellants in the District Court of Williamsburg. The defendant pleaded the act of limitations, upon which, issue was taken. The jury, by consent, found a verdict for the plaintiff, subject to the opinion of the court upon the following case, viz: that no assumpsit was proved after the 27th of March 1786, and that the writ in this suit issued the 23d of August 1791: that to avoid the act of limitations the plaintiff produced a writ which issued for the same cause of action from the Court of Hustings of Williamsburg, dated the 24th of October 1786, and which was not served upon Brown ; but in November following *it abated and was dismissed as to him, he being returned, no inhabitant: That the same writ was served upon Eaton another defendant, and abated by his death in August 1787. The verdict to stand if the law be for the plaintiff, otherwise to be set aside, and judgment entered for the defendant. The judgment of the District Court was in favor of the plaintiff, from which the defendant appealed.
    Wickham for (he appellant.
    It appears, that for four years no suit was depending. The clause in the act of limitations which allows the plaintiff one year to recommence his action, after the reversal of his judgment &c. is, I acknowledge, extended, by an equitable construction, to all cases where the plaintiff gets out of court; but a person coming within the benefit of this liberal construction of the law, must recommence his action within the same time after the abatement or dismission, as he must have done in cases coming within the letter of the act, he cited Wilcocks v. Huggins 2 Str. 907.
    Marshall for the appellee submitted the case.
    
      
      Statute oí Limitations — Abatement of Suit — Within What Time Suit Must Be Recommenced, — If the plaintiff commence his action within the time prescribed by the statute of limitations and then the suit is abated, he is within the equity of the proviso in such statute if he recommence his action within a year after the abatement. Catlett y. Rnssell, 6 Leigh 373, citing Brown v. Putney, 1 Wash. 302. As regards this question, the principal case, in Cunningham v. Herndon, 2 Call 534, is said to have no application. See monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
   The PRESIDENT.

The plaintiff according to the'decision in the case of Wil-cocks and Huggins, would have been entitled to the benefit of the proviso in the act of limitations, under the equity thereof, if he had recommenced his suit within a year after the former suit was abated. But as four years had nearly elapsed, between the abatement of that suit, and the bringing of the present, he cannot avail himself of the proviso, but is barred.

The judgment must be reversed, and entered for the defendant.  