#### LARKIN BROOKS v. ASA J. WALTERS.

Where it appeared that the plaintiff, who lived in Virginia, had put a note into the hands of the defendant, who collected it, and at the time of employing another to make demand plaintiff stated that he had once before sent the defendant’s receipt over and had got nothing, it was held that this did not amount to proof that a demand had been made more than three years before the bringing of the suit, so as to put the statute of limitations in motion.

Action of assumpsit on the common counts, tried before Heath, J., at the Spring Term, 1861, of Washington Superi- or Court.

The plaintiff proved that in the year 1865, he placed in the defendant’s hands, for collection, a note of one Griffin, for about $85, and that some time thereafter, the defendant received the money. The defendant rested his defense on the statute of limitations. By the plaintiff’s witness, it appeared that within three years thereafter, and within three years pri- or to the bringing of this suit, the plaintiff, who lived in Virginia, handed to a witness in Bertie county, in this State, the defendant’s receipt for the note; and that this witness demanded payment immediately, which the defendant refused. This took place after the defendant had received the money. This witness also stated, that at the time of handing him the receipt, the plaintiff said, he had sent the receipt over once be*429fore and had got nothing on it. At what time this occurred, the plaintiff did not state, nor did he state any thing more of that transaction than that recited. The defendant relied on this as evidence that there had been a former demand of the money and a refusal more than three years prior to the bringing of this suit, and called on his Honor’to instruct the jury that plaintiff’s claim was barred by the statute of limitations. Eds Honor declined so to charge, but told the jury, among other things, that as to the first alleged demand, if it was made, (which was a question for them,) the defendant Ijnew when, where and by whom it was made; and the fact that he gave no such evidence, might be considered by them as tending to show that no such demand was made; or if made, was .made within the limit of the statute. The defendant’s counsel excepted to this part of the charge.

Yerdict and judgment for the plaintiff and appeal by the defendant.

No counsel appeared in this Court for the plaintiff.

Winston, Jr., for the defendant.

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*430ly 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.