Appeal
from common pleas circuit court of Greenville county; J. H
Hudson, Judge.
Action
by the National Bank of Greenville against William A
Jennings and others. From two several orders of the court
refusing defendants' motion to dismiss the complaint and
refusing a motion by defendant William A. Jennings to vacate
an order of arrest granted against him, said defendant
William A. Jennings appeals. Affirmed.
The
complaint, omitting formal parts, was as follows: "(1)
That at the times hereinafter mentioned the plaintiff was and
is now, as corporation duly chartered under and by the laws
of the United States of America, with its place of business
in the city of Greenville, in the state aforesaid, and by its
charter was authorized to do a general banking business. (2)
That during the first part of the year 1891, and until April
1891, the defendants, with one J. S. Setzer, were partners in
the mercantile business in said city under the firm name of
Jennings, Setzer & Co. (3) That during said period the
plaintiff, at the special request of the said firm, made
certain loans of money of them, for which said firm made
their promissory notes, maturing in the fall of 1891, and
amounting to nineteen hundred and twenty-five 89-100 dollars.
That said loans were made upon the faith of certain
securities hereinafter mentioned, which the said firm
assigned to and deposited with the plaintiff as collateral
security. (4) That thereafter, to wit, about April--, 1891
the said J. S. Setzer withdrew from said firm, and left the
business in charge of the other partners, the defendants
herein, who continued said business under the firm name of
Jennings & Co. (5) That thereafter the plaintiff, at the
special request of the defendants, made to them another loan
of money, for which they made their promissory note to the
plaintiff, maturing in the fall of 1891, and amounting to two
hundred dollars; that said loan was made upon the faith of
certain securities hereinafter mentioned, which the
defendants assigned to and deposited with the plaintiff as
collateral security. (6) That the total amount of said notes
was twenty-one hundred and twenty-five 89-100 dollars, and
the amount of said securities was twenty-three hundred and
ninety-seven 80-100 dollars, all of them maturing in the fall
of 1891, a complete schedule of which securities is given on
the exhibit which is hereto annexed as a part of this
complaint. (7) That the plaintiff made no effort to collect
said securities as they fell due, but, under the arrangement
between them, looked to the defendants to collect said
securities, and to at once turn over to the plaintiff the
proceeds of such collections, and the plaintiff trusted to
the defendants so to do. That, in pursuance of the said
understanding, the defendants did collect considerable sums
of money upon said securities, amounting to sixteen hundred
and seventy-seven 28-100 dollars, the several amounts
collected by the defendants upon said securities respectively
being set forth in the last column on said schedule. And the
plaintiff believes that the defendants have made other
collections thereon, but does not know the amount. (8) That
no part of the proceeds of said collections has been paid to
the plaintiff, and that the defendants have neglected and
refused, and still refuse, to turn over to the plaintiff any
portion thereof, although demand has been made; and that no
part of said notes has been paid. (9) That the defendants
received said money in a fiduciary capacity. That the
plaintiff permitted them to make said collections in the
special confidence that the proceeds would be turned over to
the plaintiff at once, but that the defendants have, with
intent to cheat and defraud the plaintiff, appropriated to
their own use the said sixteen hundred and seventy-seven
28-100 dollars, being money so received in trust, besides
other sums to the plaintiff unknown, and have embezzled the
same. Wherefore the plaintiff demands judgment against the
defendants (1) that they do account for all collections made
upon said securities; (2) for the sum of sixteen hundred and
seventy-seven 28-100 dollars, and for such other sums as the
defendants may have collected upon said securities, with
interest thereon from the date of said collections,
respectively; (3) and for the costs and disbursements of this
actions, and for such other and further relief as may be just
in the premises."
McIVER
C.J.
This
appeal presents two general questions: First, whether the
circuit judge erred in refusing the motion to dismiss the
complaint upon the ground that sufficient facts are not
therein stated to constitute a cause of action; second
whether there was error in refusing the motion to vacate the
order of arrest upon the ground that the affidavits used for
the purpose of obtaining such order of not state sufficient
grounds for the arrest. To determine the first question it is
necessary to confine our attention to the allegations
contained in the complaint, which, for the purpose of the
motion, must be assumed to be true. These allegations are
substantially as follows: That the plaintiff made certain
loans of money to the firm of which the defendants were
members, evidenced by promissory notes maturing in the fall
of 1891, and secured by certain choses in action assigned to
and deposited with the plaintiff as collateral security for
the payment of said loans; that the plaintiff made no effort
to collect said choses in action so assigned and deposited as
collateral security for said loans of money evidenced by the
notes aforesaid, but, under the arrangement between them,
looked to the defendants to collect said choses in action,
and to turn over to the plaintiff at once the proceeds of
such collections, and the plaintiff trusted to the defendants
so to do; that, in pursuance of the said understanding, the
defendants did collect considerable sums of money upon said
choses in action, (the amount being stated;) that no part of
the proceeds of said collections has been paid to the
plaintiff, and that the defendants, after demand therefor,
have neglected and refused, and still refuse, to pay to the
plaintiff any portion of said collections, and that no part
of the said notes secured by said collaterals has been paid;
that the defendants received said money in a fiduciary
capacity, the plaintiff having permitted them to make said
collections in the special confidence that the proceeds
thereof would be at once turned over to the plaintiff, but
that defendants, with intent to cheat and defraud the
plaintiff, appropriated to their own use the amounts so
collected as aforesaid; wherefore judgment is demanded that
the defendants account for all sums collected by them on the
choses in action so assigned and transferred to the plaintiff
as collateral security for the payment of the said notes,
given for the loans of money by the plaintiff to the
defendants. It seems to us that these facts show beyond
dispute that the plaintiff has a cause of action against the
defendants. When the defendants assigned and delivered to the
plaintiff the choses in action as collateral...
