Fleming v. Straley, 23 N.C. 305, 1 Ired. 305 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 305, 1 Ired. 305

SAMUEL FLEMING vs. JACOB L. STRALEY.

Where the question was one of domicile at the date of the writ, and the defendant proved that the plaintiff, before the date of the writ, had gone from one county to another, and wished the jury to infer from, this an abandonment of his former home, the testimony of a witness who swears that “this was not regarded in his (the plaintiff’s) father-in-law’s family, where the plaintiff resided, and where the witness, a member of the family, also resided, as an abandonment of the plaintiff’s then place of residence,” is admissible; for it does not appear that the witness came to his knowledge by the ex parte hearsay of any of the members of the family, but he may have derived it from other facts, apparent at the time to the family.

This was an action of debt, tried at the Spring Term, 1810, of Burke Superior Court, before his honor Judge Hall, the writ having been issued from and returnable to the Superior Court of Burke county, directed to the sheriff of Yancy county, and executed by him. The defendant resided in Yancy county. At the return term, the defendant pleaded that, at the time of issuing the writ, the plaintiff was a resident of Yancy, and not of Burke county; to which there was a replication. Upon the trial of this issue, it was proved that the plaintiff formerly resided at his father-in-law’s, in the county of Burke. At the trial the plaintiff was a resident of Yancy. A good deal of testimony was offered by both parties, in relation to the period when the plaintiff established his domicile in Yancy. It appeared in evidenc’e that, about the time the writ issued, the plaintiff, with his wife and one of his children, went from his father-iri-Iaw’s; in the co.unty of Burke, leaving one of his children behind him, to Burnsville, in Yancy, where he and the family he took with him remained about two weeks, living, during that time, in a house which the plaintiff there owned: that after the expiration of that time, he returned with his family to his former abode, in Butke, where he remained about two' or three weeks, when he again went to Burnsville, where he has since continued to reside.

A brother of the plaintiff’s wife was examined as a witness pMintiff. He stated that, when the plaintiff, with his wile and child, left his father-in-law’s, about the time of issuing the writ as before stated, he accompanied them. He further stated that the plaintiff’s departure, on this occasion, from his father-in-law’s, was’not’regarded, in his father-in-law’s family, as an abandonment of the plaintiff’s then place of residence, but merely as a temporary visit to Burnsville. This last testimony of the witness was objected to by the defendant’s counsel, but admitted by the court. The jury returned a verdict for the plaintiff; a motion was made by the defendant for a new trial, because improper testimony had been admitted; but the motion was overruled by the Court, and judgment rendered for the plaintiff. From this judgment the defendant appealed to the Supreme Court.

Saunders for the plaintiff.

No counsel for the defendant.

Daniel, Judge.

The writ was in debt, issued on the 29th of April, 1839, returnable to Burke Superior Court. Plea in abatement, that, on the day of issuing the writ, neither the plaintiff nor the defendant Xvas a resident of the cou nty of Burke. On the trial of the issue, a brother of the plaintiff’s Wife deposed, that when the plaintiff first went to Yancy from Burke (as stated in the case) it was not regarded in his father-in law’s family (whore the plaintiff then resided) as anabandoment of the plaintiff’s then place of residence. We are asked, whether this evidence is admissible? The defendant had not proved any declaration made by the plaintiff of his then abandoning his domicile in Burke, but he had offered in evidence certain facts, from which he wished the jury to presume an abandonment by the plaintiff of his domicile in Burke- at the date of the writ. To repel an'inference of that kind from the facts proved by the defendant, the evidence objected to was offered by the plaintiff to shew how the family, in which he was then living, regarded this movement of his. How the witness derived his knowledge of the impression of the family, is not stated. He may have so understood it from’the conversation which passed between the plaintiif and the members of the family, at the • time of his setting off for Yancy, or'from the conduct of the plaintiff and family, or from the plaintiff’s leaving necessary articles of property, &c. It does not appear that the witness came to this knowledge by the ex parte hearsay of any of the members of the family. We are of opinion that what the witness deposed to was a fact pertinent and proper to go to the jury, to repel the presumption attempted to be raised by the evidence given in by the defendant. The judgment must be affirmed.

Per Curiam. Judgment below affirmed.