In re Holdforth

By the Court,

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 :—

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 pal, and without any refusal by him to pay. I think he cannot be arrested.

The plaintiff relies npon section 74 of the act of April 22, 1850, commonly called the Practice Act, which is as follows :—

According to the…