Kivett v. . Massey
Supreme Court of North Carolina
Debt, tried before Barnes, J., at January Special Term, 1868 of the Superior Court of CumberlaND. The action had been commenced by warrant before a magistrate, and upon the trial before his Honor, the plaintiff after showing a receipt given February 1,1849, by the defendant for a claim of some $26.75, proved a collection thereof by him in 1850. The warrant in the present case was issued in 1857,. and there was no previous demand for the money.
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Debt, tried before Barnes, J., at January Special Term, 1868 of the Superior Court of CumberlaND. The action had been commenced by warrant before a magistrate, and upon the trial before his Honor, the plaintiff after showing a receipt given February 1,1849, by the defendant for a claim of some $26.75, proved a collection thereof by him in 1850. The warrant in the present case was issued in 1857,. and there was no previous demand for the money. The pleas were, General Issue, Statute of Limitations. In deference to the opinion of his Honor, the plaintiff submitted to a non-suit, and appealed.
1Opinion of the CourtSettle, J.
Was a demand necessary before the commencement of this suit?
In order to determine this, let us see what was the liability of the defendant. It is true that he received money belonging to the plaintiff, but in what character did ' he receive it ? clearly, as agent. This being so, was he bound to seek the plaintiff in order to pay over the money, which had come to. his hands as agent, or was the plaintiff bound to seek him, and demand it ? He was in no default unless a demand had been made upon him and he had refused or neglected to account for, and pay over, all such sums as the plaintiff was…
2Cited by6 opinions
- Wiley v. . LoganSupreme Court of North Carolina · 1886
- Commissioners of Forsyth v. LashSupreme Court of North Carolina · 1883
- Moore v. . GarnerSupreme Court of North Carolina · 1888
- Price v. FarrarAppellate Court of Illinois · 1880
- Wetherell and Wife v. . Gorman .Supreme Court of North Carolina · 1875
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