McCaskill v. . McBryde , 17 N.C. 265 ( 1832 )

The defendants demurred because the bill sought to charge them in the distinct character of agents for the plaintiff and executors of Martin.

DANIEL, J., at Moore, on the last circuit, overruled the demurrer, and the defendants appealed. This demurrer for multifariousness was certainly put in under a mistaken view of the case; for the bill seeks to charge the defendants on account of their own agency only, on their own undertaking, and in no way calls them to account for the agency of their testator. It is true, the agency of Martin is also stated, and that they are his executors, and that assets came to their hands; but this is only an unnecessary statement of the evidence, which it would be more proper to show before the master to prove that they themselves had collected, or might have collected, the debts due from Martin, by proof of his assets in their hands. There is no pretence to say that the bill is multifarious, as calling them to an account both for Martin's agency and their own. As to the jurisdiction of the court, I do not know how it can be doubted, for the defendants certainly are the bailiffs, agents, or receivers of debts due from others to the plaintiffs, and the case is strengthened, if it needed it, by the removal of the principal to a foreign country. Can there be a doubt but that it is a proper case for an action of account at law?

PER CURIAM. Decree accordingly.

Cited: Dunn v. Johnson, 115 N.C. 257.

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