Opinion
06-01-1851
IN THE MATTER OF HOLDFORTH ON HABEAS CORPUS.
R. N. Morrison, for the Petitioner. John Chetwood, Contra.
R. N. Morrison, for the Petitioner. John Chetwood, Contra.
By the Court, BENNETT, J. Holdforth was arrested in a civil action at the suit of one Cumlorey, upon an order founded on affidavit, of which the following is a copy:
"TUCKLER CUMLOREY v. CHARLES G. HOLDFORTH.
"City and County 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 defendant, in the month of April, 1850, sailed from the port of Hongkong, 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 merchandise 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 merchandise of the plaintiff, arrived in the port of San Francisco; that shortly after his arrival the said defendant sold and disposed of said merchandise of the plaintiff, received from the various 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 plaintiff 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 authorize an order of arrest. The affidavit shows only the fact, that Holdforth, the agent of the plaintiff, had received money in the capacity of agent, and had not paid it over. No 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, he can be arrested without any fraudulent conduct on his part, without any demand on him by the princi- pal, and without any refusal by him to pay. I think he cannot be arrested.
The plaintiff relies upon section 74 of the Act of April 22, 1850, commonly called the Practice Act, which is as follows:
"The defendant may be arrested as hereinafter described in the following cases: First, in an action for money received, or property embezzled, or fraudulently misapplied, by a public officer, or by an attorney or counsellor, or by an officer or agent of a corporation, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity," &c
According to the construction given by the plaintiffs counsel to this section, all that is necessary to be set forth to justify an order of arrest is, that the defendant received money as agent, and has not paid it over. I am inclined to agree with the counsel for the plaintiff in his construction of the statute, but I am not required to express a definite opinion on this point, inasmuch as, if that be the correct interpretation, then I am of the opinion that the statute covers a broader ground than the Constitution will permit.
Section 15 of Article 1 of the Constitution declares: "No person shall be imprisoned for debt, in any civil action on mesne or final process, unless in cases of fraud; and no person shall be imprisoned for a militia fine in time of peace."
The claim of the plaintiff was a debt; the action was a civil action; the process, on which the defendant was arrested, was mesne process; and there is nothing whatever to show any fraud or suspicion of fraud on the part of the defendant. The section of the Constitution above cited expressly prohibits an arrest in such a case, and the statute should, if possible, be construed so as not to conflict with the Constitution; and, if that be not possible, then the statute must yield to the superior authority of the organic law of the State. The defendant must be discharged.
Ordered accordingly.