Soulé

By the Court,

Application for a discharge under a writ of habeas corpus. The defendant was arrested in a civil suit, under the first subdivision of section 74 of the Practice Act., (Statutes of 1850, y>. 435,) which authorizes an arrest *346 “ 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 bis employment as such, or by any factor, agent, “ broker, or other person in a fiduciary capacity.” The affidavit, upon which the order of arrest was made, charges that the plaintiff sold to the defendant one half of an invoice of merchandise, and authorized him to proceed from the city of blew York, where the parties then were, to San Francisco, and dispose of the merchandise on joint account, and that the defendant accordingly proceeded to San Francisco, received the property, and sold it. The affidavit then states, that the plaintiff has frequently called upon the defendant for an account of the sale of the goods, which the defendant has positively refused, and still refuses, to render, and that the defendant, although requested, has…