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,- oii 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 liis assets in then-hands. There is no pretence to say that the bill is multifarious, as calling them to an aecount.both for Martin’s agency and their own. As to the jurisdiction of the ° , , court, I do not know how it can be doubted, lor the defendants certainly are the bailiffs, agents or receivers, of debts due from others to the pl<iiutiflfSj íind the Ctisc 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 an action of account at law. Per Curiam. — Decree ACCORDINGLY.
McCaskill v. McBryde, 17 N.C. 265, 2 Dev. Eq. 265 (1832)
Kennith McCaskill v. Archibald McBryde and Atlas Jones.
A bill charging that the defendants were the agents of the plaintiff, and also executors of a former agent, and soeking. by reason of their having received assets of their testator, to charge them with the balance due by him, is not multifarious.
The bill'charged, that the plaintiff in the year 1819, being a resident of Moore County, and about to remove to Scotland, appointed one William Merlin Ills agent, to *266collect sundry debts due him, including one 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, authorising the defendants to collect all monies due him in this state ; that under this power they took into their possession all the evidences of debt duo 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 % 2500,, 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.
The defendants demurred, because the bill sought to charge them in the distinct character of agents for the plaintiff, and executors of Martin.
His Honor Judge Daniex, at Moore, on the last circuit, overruled the demurrer, and. the defendants appealed.
W. II, Haywood and Winston, for the defendants,
contended, that the bill was multifarious, and for this was cited Bavouc v. Fanning, (4 John. C. R, 199.) Attorney General v. Corporation of Carmarthen, (Coop. Rep. 30.) *267They insisted that an answer denying combination was not necessary. (Coop. FI. 183. Lausdown'v. Elder ton, 8
wherever the de* fendantis the agent, bailifl or re-ce;vei. 0f t]ie pjaáitii? a court xísdíction for qji account.
As a cause of demurrer ore tenus, it was -urged, that the court had not jurisdiction, tlie remedy at law having been complete, and the plaintiff being barred there, for which was cited Peace v, Nulling, (ante 1 vol.page 289.) Dinwiddle v. Bailey, (6 Ves. 136.) Porter v. Spencer, (2 John. C. R. 169.) ;
Badger, for the plaintiff,
urged,- that wherever a bill containing several distinct matters was demurred to, the defendant must answer by denying the combination ; and as this was not done by the defendants, their demurrer covered too much, and must be overruled. (Verplank v. Cains, 1 John. C. It. 57. .attorney General v. Brown, 1 Swan. 304. Jones v. Frost, 3 .Mad. 8.. Witherhead v. Blackburn, 2 Ves. & Bea. 121.) &,s to the objection to the bill as being multifarious, .he cited Mitford’s treatise, 147.