23 N.C. 305 | N.C. | 1840
A brother of the plaintiff's wife was examined as a witness by (306) the plaintiff. He stated that when the plaintiff, with his wife *235 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. The writ was in debt on 29 April, 1839, returnable to BURKE. Plea in abatement, that on the day of issuing the writ neither the plaintiff nor the defendant was a resident of the county of Burke. On the trial of the issue a brother of the plaintiff's wife deposed that when the plaintiff first went to Yancey from Burke (as stated in the case) it was not regarded in his father-in-law's family (where the plaintiff then resided) as an abandonment 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 show 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 (307) conversation which passed between the plaintiff and the members of the family at the time of his setting off for Yancey, or from the conduct of the plaintiff and family, or from the plaintiff's leaving necessary articles of property, etc. 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.
PER CURIAM. No error.
Cited: Daniel v. Whitfield,
