The opinion
RufKIN, J.,
after stating the case. So far as regards the plaintiff’s first cause of action, the case seems to be parallel with that of
Daniel
v.
Commissioners of Edgecombe,
74 N.
C.,
494 . It was there held to be contrary to equity and good conscience for the defendants to plead 'the statute of limitations, after they were understood by the plaintiff’s attorney in the cause, to have agreed that his claim should abide the result of another action to be instituted, on a similar claim, by another person, and had in pursuance of that agreement accepted the service of the summons taken out at the instance of that other person. This holding is supported by the clearest authorities and is in itself reasonable and just. Courts of equity will prevent a party from setting up an unconscientious defence at law, acting by means of an injunction to that end, when the courts of law and courts of
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equity are separate and distinct tribunals, but directly in the case where the two have been consolidated as with us, 2 Story Eq. Jur., 903.
The jurisdiction of a court of equity thus to- restrain a party from pleading the statute of limitations-,, who has-agreed not to take advantage of the delay in bringing the-action,, thereby contributing to such delay, is distinctly recognized in
Lyon
v
Lyon,
8 Ired. Eq., 201 , and also in High on Injunctions, 72.
In view of these authorities, we think His Honor erred in deciding that the plaintiff’s right of action as to his-smaller demand is barred hjT the statute, that is,as a matter of law and upon the statement as made in the complaint. How it will turn out to be when the facts are fully developed,, we cannot now tell,
This renders it unnecessary that we should consider any other points made in the- argument a-s- they m-ay not be raised on another trial, except to say, that the writ of mandamus is no longer regarded as an extraordinary remedy, to be issued only by the express order of the- court, whose high prerogative it is to see that sufficient cause for it is shown, and that without it, there would be a failure of justice. According to modern practice, it has become to be a writ of right, to be issued as ordinary process in any case to which it is applicable, and the statute of limitations applies to it with the same force as to any other form of action.
Brown
v.
Turner,
70 N. C., 93 ;
Kendall
v.
The United States,
12 Peters, 524 ;
Commonwealth of Kentucky
v.
Dennison,
24 How., 66 .
Error- Reversed and
venire de
novos