
    Columbia,
    
      November Term, 1814.
    William Fowler vs. John Williams.
    
      Farrow,/or the Motion.
    
    Stark, Contra.
    
    JfthePlea statute of limitations in aspecial action on the case hft^saie of„a hor9e» a former suit was winchwas l^rTcovev back anun-horse, Hel<V tha~ parolproot that both were for the same action,°f ^ssibiuf* it must he by°the rc-selves
    Motion to set aside a non-suit granted by Judge Smith.
    
    In this case, it appeared that the plaintiff commenced an action ot assumpsit to recover back money he had. paid for an unsound horse, in which ac-íáon he was non-suited. He then commenced a special action on the case for a deceit, in representing the horse to be sound, when he was otherwise, But, four years having elapsed before the last action was commenced, the defendant plead the statute of limitations in bar. To which the plaintiff replied a former writ; and as the brief stated “ with proper averments.”
   Nott, J.

Upon looking into the proceedings, I do not find any plea of the statute of limitations. I do not know what the counsel considers proper averments in such a case. It would appear that the only question made in the court below was, whether he should be permitted to give parol evidence that the former suit was for the same cause of action ? I think the testimony was properly rejected. In England, to the plea of the statute of limitations, it is not unusual to reply a former writ, with an averment that is intended to declare in the same form of aC(.jon< But there could be no such averment in Bus case, because the former proceedings, are before the court, and it appears that the plaintiff declares in a different form of action. But even if it had been the same, and shewn by the record itself, it would still have remained to shew that it would prevent the statute from running. There are certain cases, in which the act of 1712, authorises plaintiffs to commence a second action after the statute would have attached, provided it is commenced within a year after the termination of the former action. But this is not one of the cases. In any point of view, this motion ought not to be granted.

Justices Colcock, Smith, and Grimke concurred..  