#### T. J. FRESHWATER and wife v. DANIEL B. BAKER.

Judgment of nonsuit is within the equity of the proviso, Rev. Code, chap. G5, sec. 8, and the plaintiff may commence a new action within a year after the termination of the first.

This was an action of detinue, tried before Saunders, J., at Pali Term, 1858, of New JIanover Superior Court.

The facts of this case are almost identical with those set forth in Freshwater v. -Nichols, decided at this term and reported, ante 251. The negro in question, Henry, is the son of Orrice, one of the slaves mentioned in the deed of Unity Cruise, John Cruise, and Caleb L. Nichols, to Mrs. Freshwater, then Mary Jane Lee. The negro, Henry, together with the other slaves went into the possession of the plaintiff at the death of her mother, and was held by her for two years, *256when he was taken from her by the defendant, sometime in the year 1850. An action was commenced by her against the defendant for the said negro, in the same year, which pended until Spring Term, 1855, when it ended in a nonsuit. Plaintiff proved a demand and refusal, before bringing this suit.

The points made by the defendant, and the ruling of the Court, in this case, are identical with those in Freshwater v. Nichols, supra.

Appeal by defendant. *

Wright and Strange, for plaintiff.

F. G. Haywood and London, for defendant.

Manly, J.

The facts in this case, so far as they relate to, tlie first, second and third points of defense, are identical in all matters of substance with those in Freshwater v. Nichols, ante 251. The form of action is different, but the requirements as to proofs are the same. For the reasons, therefore, which governed us in our conclusions, as to these points, reference may be had to the opinion in that case.

The replication to the plea of the statute is good, and is sustained by the proof. The first action was instituted within the year after the defendant took possession, (1850.) There was a nonsuit in 1855, and the present action commenced to the next term of the Court, (within the year.) It has been repeatedly held that a nonsuit, though not specially named, is within the equity of the proviso, in the 4th section of the Revised Statutes, ch. 65, (Rev. Code, ch. 65, sec. 8.) The time pending the first action, is not counted against plaintiffs; Blackwell v. Hawkins, 6 Ired. 428; Long v. Orrell, 13 Ired. Rep. 123.

We are of opinion plaintiffs are entitled to recover.

Per Curiam,

Judgment affirmed.