Opinion
(December Term, 1832.)
1. A bill charging that the defendants were the agents of the plaintiff, and also executors of a former agent, and seeking by reason of their having received assets of their testator, to charge them with the balance due by him, is not multifarious.
2. Wherever the defendant is the agent, bailiff, or receiver of the plaintiff, a court of equity has jurisdiction for an account.
THE bill charged that the plaintiff in 1819, being a resident of Moore County, and about to remove to Scotland, appointed one William Martin his agent to collect sundry debts due him, including one (266) from Martin himself, and to sell several articles of personal property and make remittances to the plaintiff; that Martin, under this agency, collected money, the particulars of which were specified, but made no remittances; that he was dead, having appointed executors, of whom the defendants were the survivors, and had received assets to an amount exceeding the debts due by their testator; that upon the death of Martin, the plaintiff executed a power of attorney, authorizing the defendants to collect all moneys due him in his state; that under this power they took into their possession all the evidences of debt due the plaintiff, and had made him some remittances, but still had in their hands a large sum due him — particularly, that the defendant Jones had collected $2,500, which he had not paid over, but had removed from the State, having placed notes in the hands of the other defendant to make good his default. The bill then charged that the defendants either had, or ought to have collected the balance due the plaintiff by Martin, as well for the debt he owed as for collections made by him, having as his executors assets to pay and discharge all his debts; that the plaintiff had, at the request of the defendant McBryde, commenced an action at law against him, as the executor of Martin, for the balance due to the plaintiff, to which the defendant had pleaded the several statutes protecting dead men's estates, and thereby defeated the action. The prayer was for a discovery, and an account.
W. H. Haywood and Winston for defendants.
Badger for plaintiff.
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.
(268)