Troxler v. . Gibson

2 N.C. 465

Opinions

Davie moved for a nonsuit, saying it was needless to go into the examination of testimony, since it was impossible for the plaintiff to give any evidence respecting the land really in dispute, as it was not demanded in this declaration. Land not demanded cannot be recovered by any judgment of the court; and in the present case no land is demanded but that which the plaintiff has no claim to. This point has been often decided in our Court. It was so decided in this very Court a very few years ago, in Hunter v. Jones. Let the plaintiff be called.

The Court recommended to Mr. Duffy to take a rule to show cause why the declaration should not be amended, saying perhaps authorities may be found to justify an amendment, or perhaps the act of 1790 may authorize it. A rule was taken.

Afterwards the case was argued by Mr. Duffy for the amendment and Davie against it. Mr. Duffy produced a great number of cases, but seemed to rely chiefly on the case in 4 Burr., 2448.