Statute of Limitations — Burden of Proof.
1. Where the statute of limitations is pleaded the burden is upon the plaintiff to show that the cause of action accrued within the time limited.
2. Where a party upon whom the burden of proof rests fails to offer evidence to sustain it, it is proper for the trial judge to direct a verdict against him.
CLARK, J.
The statute of limitations having been pleaded, the burden was upon the plaintiff to show that the cause of action accrued within the time limited. Parker v. Harden, 121 N.C. 57; Graham v. O'Bryan, 120 N.C. 463; Koonce v. Pelletier, 115 N.C. 233; Hobbs v. Barefoot, 104 N.C. 224; Moore v. Gardner, 101 N.C. 374; Hussey v. Kirkman, 95 N.C. 63. The evidence was that the plaintiff's (222) testatrix was adjudged restored to sanity in 1889, and after demand made by her on her guardian, defendant's testator, for her estate, an order was made to restore the same to her; and it was further in evidence that the said guardian was indebted to his ward in the sum of about $500, which has never been paid. It is not necessary to decide whether the statute began to run from the termination of the trust upon the adjudication of sanity in 1889 or upon the demand and failure to pay, for if it began to run only from the latter, the plaintiff, having failed to show that it was within three years before the action begun (in May, 1906), is barred. Kennedy v. Cromwell, 108 N.C. 1, and cases therein cited. The burden being upon him, there was no error in his Honor's intimating that he would instruct the jury to find against him. Spruill v. Ins. Co., 120 N.C. 141; Collins v. Swanson, 121 N.C. 67; Bank v. School Committee, ibid., 107; White v. R. R., ibid., 484.
No error.
Cited: Houston v. Thornton, post, 375; Dunn v. Beaman, 126 N.C. 769; Hooker v. Worthington, 134 N.C. 285; Dunn v. Dunn, 137 N.C. 534; Sprinkle v. Sprinkle, 159 N.C. 82; Ditmore v. Rexford, 165 N.C. 621.