
    
      The State of South-Carolina for S. P. Reed vs. Henry Goettie and others.
    
    New trial ordered, the verdict being without evidence to sustain it.
    Payment by sheriff to plaintiff’s attorney after notice from plaintiff not to do so, is no payment.
    So, also, it is no payment, if, instead of actually paying the money, the sheriff applies it to a debt due him by the attorney, taking from him a receipt as plaintiff’s attorney.
    Verdict for defendant upon proceedings under Act of 1846, (11 Stat. 368,) to recover the sum withheld and five per cent, per month, is no bar to an action on the sheriff’s bond for the money actually received: semble.
    
    
      Before O’Neall, J., at Beaufort, Fall Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of debt on the sheriff’s bond for the recovery of money alleged to have been received by Sheriff Goethe, in the cases of Dr. Samuel P. Reed vs. Maria Cook, and the Same vs. John R. Toomer.
    
    
      “ The defendants pleaded non est factum, a former recovery on the same matter in favor of the defendants, and payment of the debt and interest to William B. Fickling, the plaintiff, Reed’s, attorney. A certified copy of the bond, bearing date 1st January, 1847, was given in evidence.
    
      “ In the case of Maria Cook, the plaintiff produced the sheriff’s book, and showed from the entry that execution was lodged 13th November, 1847.
    “ In the same case and book was the receipt of William B. Fickling, plaintiff’s attorney, for the debt, and attorney’s costs, dated 19th May, 1849.
    “In the case of John R. Toomer, the sheriff’s book showed that, on the same day, the money was paid to Fickling.
    “The sheriff Goettie’s letter, dated 22d May, 1849, was given in evidence, in which he stated, that the case against Cook was open; that Toomer’s case was paid to William B. Fielding’s order.
    “ It was proved that one Edward B. Jones, now dead, was the deputy of Sheriff Goettie in the town of Beaufort, where these parties resided. Notice was given to him by Mr. Patterson from Mr. Reed, not to pay over the money in Reed’s cases to Fickling, the attorney. When the case of Cook was paid to the sheriff, he said, Fickling, the attorney, was in debt to him; and Jones, the deputy, said, the money would be applied to the payment of his debt; so said also Goettie, the sheriff.
    “ It was further proved, that Fickling acted as the sheriff’s clerk, or deputy, in Beaufort. This plaintiff had sued Goettie under the Act of the Legislature for the recovery of five per cent, per month, the penalty for the non-payment of money collected by the sheriff, and not paid over on demand; in it there was a verdict for the defendant. This was the recovery pleaded. I thought, and so ruled, it could not bar the plaintiff’s recovery of the money actually received.
    “ The jury were told the plaintiff was entitled to recover, if they believed, (as was proved,) either that the money was paid to Fickling, after notice not to pay him, or if applied in payment of his debt to Goettie, sheriff.
    “ The jury found for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the testimony placed beyond a reasonable doubt the receipt of the money sued for, by Henry Goettie, while in office, and his refusal to pay it to the plaintiff on demand ; and the verdict, therefore, was not only without evidence, but contrary to evidence.
    2. Because if, as a general rule, an attorney on record is authorized to receive for his client money collected by the sheriff in execution, it was distinctly proved in this case that the authority of the attorney on record, William B. Fickling, was withdrawn by his client, and notice thereof given to the sheriff, before he collected the money now sued for.
    3. Because it was proved that the money, particularly that collected by the sheriff under the execution against Mrs. Maria Cook, was appropriated by him to the payment of his own demand against the said W. B. Fickling, and was not paid to the said W. B. Fickling as the agent of the plaintiff, S. P. Reed.
    
      Treville, for appellant.
    
      Tillinghast, contra.
   The opinion of the Court was delivered by

Munro, J.

That the relations of attorney and client, and principal and agent, are identical — and that the power of the principal to revoke the authority of the agent, is an essential element in that relation — are propositions that will scarcely be questioned.

That the plaintiff, Reed, did exercise the power which pertained to him as principal, by revoking the authority of his attorney — and that notice of such revocation was communicated to the defendant before he appropriated the fund he had collected under the plaintiff’s executions — are facts which the defendant has not even attempted to controvert. Suppose, then, that the defendant, after the receipt of such notice, had, nevertheless, either through ignorance or mistake, actually paid over the money to the attorney — however fair such conduct may have served to excuse him in a moral aspect, it would, by no means, have absolved him from legal responsibility. But, unfortunately for the defendant, the facts of the case entirely exclude so charitable a construction of his conduct; for, while the attorney’s receipt for the amount of the Cook execution purports to bear date on the 19th of May, in his own letter, written three days after — the 22d — he admits that the Cook execution was still open.

But was a dollar of the money really paid over by the defendant to Fickling ? On the contrary, the proof is conclusive, that so far from his having done so, he appropriated the entire amount of the fund he had collected for the plaintiff, to the payment of the debt which was due to himself by Fickling.

Viewing the whole case, then, in the most favorable aspect of which it is susceptible, it amounts to so gross a violation of official duty, that even the verdict of a jury, potent as it may be, cannot sanctify it. So that the question remains, Shall a verdict so totally destitute of evidence to sustain it, as this unquestionably is, be allowed' to stand, and so flagrant a wrong be permitted to go unredressed ?

The defendant presumes too much on the impotency of the law, if he imagines for a moment, that this case is beyond its control — for we have abundant authority in our own jurisprudence to sustain the position, that a verdict without evidence, is a verdict contrary to law. In the case of Means vs. Moore, (3 McC. 282,) Johnson, J., in delivering the opinion of the Court, holds the following language: “ The Court need not resort to a metaphysical argument to prove, that a verdict without evidence is contrary to law. The right to control a verdict, under such circumstances, has always been claimed and maintained in this and in every other country where the laws have been properly administered; and of this our own Courts furnish many instances.” In Means vs. Means, (6 Rich. 1,) the same doctrine was affirmed and acted upon; and I cannot conclude this opinion better, than by adopting the concluding language of the Court in that case :

“ The verdict is so totally unsupported by the evidence, that the Court is constrained to grant the motion for a new trial.”

The motion is therefore granted.

O’Neall, Withers, Whitner and Glover, JJ., concurred.

Wardlaw, J., absent at the-hearing.

Motion granted.  