
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1814.
    William Fowler v. John Williams.
    To a plea of the statute of limitations in a special action on the case for deceit in the sale of a horse, a former suit was replied which was as-sumpsit to recover back money paid for an unsound horse. Held, that parol proof that both were for the same cause of action, was inadmissible. It must be shown by the records themselves.
    Motion to set aside a nonsuit' granted by Judge Smith.
    In this case, it appeared that the plaintiff commenced an action of assumpsit, to recover back money he had paid for an unsound house, in which action he was nonsuited. 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;”
    Farrow, for the motion; Starke, contra.
    
   Nott, J.

Upon looking into the proceedings, I do not find any plea oí 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 it is intended to declare in the same form of action. But there could be no such averment in this 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, authorizes 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, fifis motion ought not to be granted;

Colcock, Smith, and Grimke, Js., concurred.  