National Bank v. Jennings

Citations

• 38 S.C. 372
• 17 S.E. 16
• 1893 S.C. LEXIS 57

Syllabus

<p>1. Complaint — Trust Moneys — Collaterals.—A complaint states a cause of action when it alleges that plaintiff lent money to the defendants, a partnership, on promissory notes secured by choses in action, assigned to plaintiff, and deposited as collateral security for the payment of said notes; that by agreement, defendants were to collect these choses and turn over the proceeds to plaintiff, under the special confidence that defendants would properly turn over as agreed ; that defendants collected large sums on these choses in their fiduciary capacity, but fraudulently failed to turn over such collections, and that their notes to plaintiff were wholly unpaid.</p> <p>2. Arrest and Bail — Facts—Appeal.—An unverified complaint will not justify an order for arrest and bail, but facts stated in affidavits must be assumed by this court to be true where they have been so found by the cleric in granting the order, and by the Circuit Judge in refusing to vacate it.</p> <p>3. Ibid. — Fiduciary Relation. — The facts stated in this complaint having been supported by affidavits, and there being none contra, a fiduciary relation was established on the part of the defendants, and the money collected on the pledged securities was shown to have been fraudulently misapplied by a person in a fiduciary capacity, and the partnership guilty of a fraud in contracting the debt — the liability for these collections — for which the action was brought. Therefore, an order requiring arrest and bail of the defendants’ managing member, who had made the misappropriation, was proper.</p> <p>4. Arrest and Bail — Guilty Partner. — The partner who was mainly, if not entirely, responsible for the misappropriation, may be alone arrested for the .moneys fraudulently misapplied to the uses of the firm.'</p> <p>5. Affidavit — Cause of Action. — An affidavit is not defective for uot stating that a sufficient cause of action exists, when it alleges the facts which show a cause of action. . . . .</p>