¶1delivered the opinion of the court.
¶2The plaintiff below commenced this action within one year after suffering a non-suit in a cause against the same parties on the same cause of action, (James et al. vs. Biscoe et al., 5 Eng. Rep. 184.) which first action was commenced within three years after the accrual of the cause of action, (Dig. chap. 99, sec. 24, p. 699.) The finding and judgment of the court in the case before us was therefore correct, and consequently there was no error in refusing the motion for a new trial.
¶3And as the execution of the judgment below was not stayed, there seems no good reason for awarding damages upon this affirmance. (Dig. 828, sec. 40.)
¶4Let the judgment be affirmed with costs.