In re Holdforth

By the Court,

Bennett, J. Holdforth was arrested in a civil action at the suit of one Cumlorey. upon an order founded on an affidavit, of which the following is a copy :—

[439]“ TtJCKXER CtJMLOBET VS. Chaeles Gf. IIoldfoeth.

“ City and Comity of San Francisco, ss ; Robert S. "Watson “ being sworn, says, that he is the agent and attorney in fact of “ the above named plaintiff—That the above named defendant1, “ in the month of April, 1850, sailed from the port of Hong “ Kong, in the empire of China, in the ship Kelso, bound for “ the port of San Francisco, having in his charge as the agent “ and factor of the plaintiff, a large amount of valuable mer- “ chandise belonging to the plaintiff, and by him placed in charge “ of the defendant for the purpose of sale in the market of San “ Francisco—That on or about the first of June, 1850, the said “ ship bringing with it the said defendant and the said merchan- “ clise of the plaintiff, arrived in the port of San Francisco—That “ shortly after his arrival the said defendant sold and disposed of “ the said merchandise of the plaintiff, received from the vaiious “ purchasers thereof large sums of money, being the price paid “ by them therefor—That the said defendant has not paid over “ the said money so received by him as the agent of the plain- “ tiff to the said plaintiff, but retains the same to the great “ wrong and injury of the plaintiff.

“ Sworn,” &c.

The applicant claims that he is entitled to be discharged from arrest, on the ground that the affidavit sets forth no state of facts which would authorise an order of arrest. The affidavit shoves only the fact, that IToldforth, the agent of the plaintiff, had received money in the capacity of agent, and had not paid it over. Ho circumstances are disclosed from which the inference can be drawn, that the defendant was guilty of any fraud either in procuring the merchandise, or in detaining the money received on the sale. It is not even alleged that a demand had been made, or that the defendant had refused to pay. The question, then, is, whether, in a suit to recover money received by a person as an agent, be can be arrested without any fraudulent conduct on his paid, without any demand on him by the princi[440]