#### J. M. MOTSINGER v. CYNTHIA HAUSER et al.

(Filed 18 April, 1928.)

Limitation of Actions — Evidence—Parol Evidence Not Admissible to Show that Action is Continuation of One Nonsuited — Question of Law.

The question as to whether an action is a continuation of a former one so as to bring it within the provisions of O. S„ 415, allowing the same to be brought one year from nonsuit, in relation to the statute of limitations, is one of law to be decided from the original complaint, and when no complaint is filed in the prior action, the identity of the causes of action may not be shown by parol evidence.

Appeal by plaintiff from Shaw, J., at September Term, 1927, of DAVIDSON.

Civil action for slander and malicious prosecution.

From a judgment of nonsuit, entered on motion of defendants at tbe close of plaintiff’s evidence, tbe plaintiff appeals.

IF. E. Brock and. Phillips & Bowers for plaintiff.

A. B. Cummings for defendants.

Stacy, C. J.

It is conceded that plaintiff’s cause of action is barred by the statute of limitations unless the identity of the present suit with one previously entered and nonsuited, in which no complaint was ever filed, can be shown by parol, so as to bring it under the saving provision of the statute allowing a plaintiff, upon payment of costs, to commence a new action within a year after such nonsuit in the original action. C. S., 415. In other words, as no complaint was filed in the first action, so as to enable the court to inspect it and thus determine its character, can the plaintiff show by parol that the present action is but a continuation or renewal of the first, or that it is “the same candle blown out and lighted again” ? ¥e think not. The question is one of law for the court on comparison of the pleadings, and not one of fact for the jury. This was the bolding in Young v. R. R., 189 N. C., 238, 126 S. E., 600; and on authority of the Young case, the present judgment must be upheld.

Affirmed.