Elwick v. . Rush

Superior Court of North Carolina

Elwick v. . Rush

2 N.C. 28

DecidedApril 5, 1794

StatusPublished

This text of 2 N.C. 28 (Elwick v. . Rush) is published on Counsel Stack Legal Research, covering Superior Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elwick v. . Rush, 2 N.C. 28 (N.C. Ct. App. 1794).

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Opinion

A demand is necessary to entitle to the action, and it must be made by the plaintiff, or by some one by his authority. Here he did not inform the defendant of his authority at the time of making the demand, or say that he demanded in the name of the plaintiff; Therefore it was not a good demand, and the plaintiff was nonsuited.

NOTE. — In the arguing of this case JUDGE WILLIAMS said the act of limitations would run in detinue, without a demand, if the plaintiff knew where the negroes were, and that they were claimed by defendant as his own, and did not bring suit within the time prescribed in the act; but this he said arguendo only. See the case of Berry v. Pullam, ante, 16.

NOTE. — The opinion of the judge on the first point of this case is doubted of by Haywood in his note to Lewis v. Williams, post, 150, and overruled in an anonymous case, 3 N.C. 136, and Shepard v. Edwards,ibid., 186.

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A demand is necessary to entitle to the action, and it must be made by the plaintiff, or by some one by his authority. Here he did not inform the defendant of his authority at the time of making the demand, or say that he demanded in the name of the plaintiff; Therefore it was not a good demand, and the plaintiff was nonsuited.

NOTE. — In the arguing of this case JUDGE WILLIAMS said the act of limitations would run in detinue, without a demand, if the plaintiff knew where the negroes were, and that they were claimed by defendant as his own, and did not bring suit within the time prescribed in the act; but this he said arguendo only. See the case of Berry v. Pullam, ante, 16.

NOTE. — The opinion of the judge on the first point of this case is doubted of by Haywood in his note to Lewis v. Williams, post, 150, and overruled in an anonymous case, 3 N.C. 136, and Shepard v. Edwards,ibid., 186.

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Bluebook (online)

2 N.C. 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elwick-v-rush-ncsuperct-1794.