question raised by the demurrer, and his Honor erred in holding otherwise.

Mr. James E. Davis, for appellant.

Mr. A. H. Ninestein, for respondent.

February 10, 1917.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

This action was commenced in a magistrate's Court. The plaintiff, after alleging in his complaint that the defendant, Garvin, was indebted to him in the sum of $61, further alleged :

"That plaintiff claims a lien on said property of the defendant to the amount of $61, and he is informed and believes that the defendant is about to secrete, dispose of and ship out of the State the said property, with intent to defraud his creditors, to wit, loading lumber on Southern Railway cars. This plaintiff demands judgment in the sum of $61, and for the costs of this action."

Upon the above complaint a summons was issued in the usual form, and also a warrant of attachment was issued to attach the lumber on the cars of the defendant railroad company. There was, however, no affidavit accompanying the attachment proceedings.

The defendant appeared in response to the summons and complaint, and demurred to the proceedings, in the following

manner:

"Now comes the defendant, by and through his attorney, A. H. Ninestein, solely and only for the purpose of pleading to the jurisdiction of the Court, and prays that the proceedings be dismissed, on the following grounds:

"(1) That there is no affidavit, as is provided by section 281 of the Code, vol. II; hence the proceedings fail for lack of the affidavit.

"(2) Because there was no affidavit served with the complaint or filed with the magistrate within the time prescribed by law.

"(3) Because the complaint was not sworn to or used or intended to be used as an affidavit.

"(4) Because the property sought to be attached is not the property of the defendant.

"(5) Because the alleged complaint fails to give or state a cause of action, in that it fails to allege a cause of action by stating where the plaintiff obtained his information that the defendant was disposing of his property with intent to defraud his creditors."

Upon the hearing of the cause before the magistrate, he overruled the demurrer, and the defendants appealed upon the same grounds as these, upon which they relied in the magistrate's Court, and upon the further ground that the magistrate erred in not dismissing said case for want of jurisdiction upon the record filed with the magistrate.

On hearing the appeal his Honor, the Circuit Judge, granted an order:

"That the appeal be sustained, and the complaint and the proceedings be dismissed, as the magistrate had no jurisdiction of said case, for the reasons set forth in the demurrer." The plaintiff appealed from said order on exceptions which will be reported.

The right of the plaintiff to recover judgment against the defendants on the alleged indebtedness and his right

1

to attach the property in question are entirely separate and distinct.

Formerly an action could be commenced by attachment, but now it is only a provisional remedy in aid of the action.

Central R. R. v. Georgia Co., 32 S. C. 319, 11 S. E. 192.

Therefore, even if the attachment proceedings should 2 be set aside for irregularity, or other ground, such

fact would not deprive the magistrate of jurisdiction to try the case upon its merits. If, however, the plaintiff should fail to recover judgment against the defendants, the attachment proceedings would become inoperative and ineffectual as an aid to the action.

One of the grounds upon which the defendants relied was that the allegations of the complaint were not sufficient to constitute a cause of action, in that they failed to show where the plaintiff obtained his information that the defendant was disposing of his property with intent to defraud his creditors.

3

In the case of Brewton v. Shirley, 93 S. C. 365, 76 S. E. 988, it was held that the action of the Court in sustaining a demurrer was a final judgment, and that the questions thereby determined became res judicata. It is true that the ground upon which the defendants relied was not denominated a demurrer; nevertheless it was intended to have the effect of a demurrer. The demurrer involved the merits to the extent of conferring jurisdiction upon the magistrate.

In the case of Fitzgerald v. Case Co., 94 S. C. 54, 77 S. E. 739, it was held that the appearance of the defendant was not special, but general, when it made a motion for an order allowing it further time within which to answer the complaint. In that case this Court quoted with approval the following language from 3 Cyc. 507, 508:

"A defendant is considered to make a general appearance when he applies for or obtains leave to answer, or when he applies for and obtains an extension of time to answer."

Judgment reversed, and new trial granted.

25-S.C.-106

[ 106 S. C.

Argument of Counsel.

9612

BANK OF WILLISTON v. ALDERMAN ET AL.

(91 S. E. 296.)

1. JURY-RIGHT TO TRIAL BY JURY-ACTION FOR RECOVERY OF MONEY ONLY.-Where plaintiff bank mistook certificate number of a $15 draft for the amount and paid defendant $528.20, and, upon his refusal to surrender surplus, brought suit, alleging mistake and fraud and asking injunction and recovery, this was an equity action, and Code Civ. Proc., sec. 312, providing trial by jury in action for "recovery of money only," did not apply.

2. BANKS AND BANKING OVERPAYMENT OF DRAFT-DUTY OF PAYEE.Where plaintiff bank mistook the certificate number of a draft for the amount and overpaid defendant, it was the latter's duty to give notice of the mistake as soon as he discovered it, and refusal to return it after demand was a conversion and fraud upon the bank. 3. TRUSTS "CONSTRUCTIVE TRUST"-NATURE OF.-A "constructive trust" arises whenever one party has obtained money which does not equitably belong to him, and it is not essential that there be an actual fiduciary relation existing, or that there be actual fraud.

Before RICE, J., Aiken, August, 1916. Appeal dismissed.

Action by the Bank of Williston against Owen Alderman and another. Defendants appeal from an order of reference granted upon plaintiff's motion, on the ground that he is entitled to a jury trial.

Messrs. Croft & Croft, for appellants, cite: As to character of action: 100 S. C. 158, 159; Minor (Ala.) 75; 4 Harr. 170; 28 Ga. 242; 46 Am. Dec. 655; 6 Am. Dec. 86; 45 N. H. 482; 55 Am. St. Rep. 878; 27 Cyc. 866; Kerr Fraud 407 to 409; 2 Pom. Eq. Juris. 839; Story Eq. Juris. 105; 20 S. C. 489; Bail. Eq. 495; Dudley 261; 2 Bay 80; 22 Cyc. 766. Deceit: 9 Rich. 300. Right to jury trial: 20

S. C. 486; 27 Cyc. 885.

FOOTNOTE. As to right of bank to recover money paid out by mistake, see note in 1 A. & E. Ann. Cas. 632.

Messrs. Hendersons, for respondent, cite: As to injunction: 84 S. C. 112; Bailey Eq. 495; 2 Pom. Eq. Juris. 856; 102 S. C. 308. Constructive trusts: 3 Pom. Eq. Juris. 1047, 1051; 39 Cyc. 169, 170, 172; 23 S. C. 686; 56 S. C. 273; 23 S. C. 148. Mode of trial: 69 S. C. 196; 43 S. C. 242, 243. Motion for issue to jury: 73 S. C. 507.

February 10, 1917.

The opinion of the Court was delivered by MR. CHIEF JUSTICE GARY.

This is an appeal from an order of reference, on the ground that the appellant was entitled to a trial by jury. The second paragraph of the complaint is as follows: "That on the 24th day of July, 1915, the defendant, Owen Alderman, presented to the plaintiff, at its banking house, a certain check or draft, or warrant, drawn by the superintendent of the Atlantic Coast Line Relief Department, upon the treasurer of the Atlantic Coast Line Railroad Company, at Wilmington, N. C., in favor of Ina E. Alderman, for the sum of fifteen dollars ($15.00). That said draft bore certificate number 52820 and had been duly indorsed by Ina E. Alderman and thereby assigned and transferred unto the bearer thereof, who was the said defendant, Owen Alderman. That upon the presentation of said draft the plaintiff, acting through its cashier, through error and mistake, mistook the certificate number 52820 for the amount of the draft, and considered that the said draft was for the sum of five hundred and twenty-eight and 20-100 dollars ($528.20), and forthwith and immediately paid in good and lawful currency of the United States of America, unto Owen Alderman, for said draft, the sum of five hundred and twenty-eight and 20-100 dollars ($528.20), instead of paying him the amount of the draft, which was fifteen dollars ($15.00)."