HILLSBOROUGH,

APRIL TERM, 1794.

#### Elwick’s Ex’rs. v. Rush.

Demand is necessary to sustain the action of detinue, and it must be. made by the claimant him»t if, or by some person for him, and so made known at the time of the demand. Said arguendo by the Judge, that the statute of limitations begins to run from the. time, that tlu- Plaintiff knew where the negroes were, and tliai the Defendant claimed them as his own, although no demand had been made.

Detinue. Plaintiff by one Tally, proved that Barton, who was a legatee, went with him to Rush, and informed Rush that the negroes mentioned in the declaration were of the estate of Elwiek ; that he, Barton, was a legatee, or heir of that estate : and that Col. Taylor was executor and demanded the negroes.— El per Judge Williams, a (It maud is necessary to entitle to the action, audit most be made by the Plaintiff, or by some one by his authority ; here he did not inform the Defendant of his au - thority 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 ran iu detinue, without *38a ilentand, 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’s adm’rs. v. Pullam.

Note. — Tne opinion of the Judge on the first point of this case is doubted of by Haywood in ids note to Lewis v. Williams, post 150, and overruled in an anonymous case, 2 Hay. 136, and Shepard’s adm’rs. v. Edwards, Ibid. 186.