Brooks v. . Walters

53 N.C. 428

• Court: Supreme Court of North Carolina
• Decided: June 5, 1862
• Status: Published

Opinion

Manly, J.

In order to sustain the plea of the statute of limitations, relied upon in the defense, it is necessary there should be proof of a demand and refusal of the money more than three years previous to the bringing of the action.

We have considered the matter relied on as proof in this particular, and conclude it ought not to have any weight or tendency to establish it. To allow the inference of a demand and refusal to be drawn from proof that the claim had, once before, been sent to this State and nothing collected on it, Would be leading the jury into the field of conjecture for matter to found their verdict upon. His Honor below, therefore, might have told the jury that there was no legal proof tending to establish the allegation of a demand and refusal more than three years before the bringing of the action, and that the plea should be found, therefore, in favor of the plaintiff.

This result has been attained under the instructions actual ly given, which' makes it unnecessary to discuss their propriety. No injustice has been done the defendant, and the judgment against him should, therefore, be affirmed.

Per Curiam,

Judgment affirmed.