44 N.C. 389 | N.C. | 1853
The plaintiff declared for no particular kind of money, nor was there any proof as to the kind of money received by the defendant of Kesler. The money was not alleged nor proved to have been in a bag, nor to have had any marks to distinguish it from other money.
The defendant insisted that upon this proof the plaintiff could not recover — first, because trover would not lie in such a case for money, and the action should have been assumpsit; secondly, if trover was maintainable in any case for money, it could only be for money in a bag, or having some mark to distinguish it, and it must be for so many Spanish milled dollars, so many bank bills of a particular bank, or the like. And the defendant further insisted, that it was necessary for the plaintiff to produce his letters of administration, to support his chain of title. *361
His Honor, the presiding judge, was of opinion that it was unnecessary for the plaintiff to exhibit his letters of administration; and he informed the jury that if they believed the testimony, the plaintiff was entitled to recover the balance of the hundred dollars, after deducting the amount paid by defendant to the creditors of the intestate. There was accordingly a verdict for the plaintiff, and after a rule for a new trial was discharged, and judgment rendered on the verdict, the defendant appealed to the Supreme Court. Our attention in this case is confined to the error committed by the presiding judge, in deciding that it was not necessary for the plaintiff to produce upon the trial his letters of administration. The error arose from considering what is called the conversion (391) in this case as having taken place in the lifetime of the intestate, J. W. Roseman. The action is in trover, and without deciding whether it can be sustained, we think his Honor erred in his ruling upon the question of testimony. At the time that Eddleman made his demand for the portion of the money due to him the intestate was alive, but so low that, in the language of the case, he was entirely unconscious. If the demand, and the refusal to pay Eddleman the money was evidence of a conversion, it was such evidence as to the claim of Eddleman, and might have given him an action against the defendant; but it was no denial of the right of J. W. Roseman. Before the latter or his representative could maintain any action against the defendant, it was necessary to put him in the wrong by making a demand; for he was a bailee. Accordingly, after the death of J. W. Roseman, the plaintiff, his administrator, did demand the money, and the defendant refused payment. From this refusal to pay, the plaintiff's cause of action arose. The conversion in trover is the gist of the action, and, in this case, it took place after the death of J. W. Roseman, and his intestate was obliged to declare in his own name, because the cause of action arose to him and not his intestate. When the cause of action arises in the lifetime of a deceased man, the plaintiff, his representative, must declare as such, and in that case must, in his declaration, make profert of his letters testamentary, or of his administration; and they are traversable by the defendant. If the representative declare upon his own possession, he need not make any profert, but in that case, as in any other at law, he must show a legal title to the thing demanded, and his letters constitute a necessary link in the chain. *362
There was error in the ruling of the court, occasioned, no doubt, by considering the demand made by Eddleman as evidence of the conversion. For this error the judgment must be reversed, and a venire de novo awarded.
PER CURIAM. Judgment reversed, and venire de novo awarded.
Cited: Mauney v. Ingram,
(392)