(after stating the case.) 1. Section 295 of The Code, among other things, provides that the order “ shall require the Sheriff * * * * * to arrest him (the defendant) and hold him to bail in a specified sum, and return the order at a place and time therein mentioned to the Clerk of thе Court in which the action is brought, &c.” In exact compliance with this provision the order is made returnable “to the Clerk of the Superior Court of New Hanover County, at his office in the city of Wilmington, county and State above written, on Wednesday, the 18th day of January, A. D. 1888.”
So the order of arrest is not defective in that respect.
*292 2. Section 291, subsection 2, of The Code, authorizes an arrest “ in an action * * * for money received, for property embezzled or fraudulently misapplied by * * * any factor, agent, brоker, or other person in a fiduciary capacity.”
The affidavit alleges that the defendant was the agent of the plaintiff, and. that as such he collected money which he “fraudulently and unlawfully cоnverted” to his own use with “intent to defraud and cheat the plaintiff”, and we think the affidavit was sufficient to warrant the order of arrest.
3. The affidavit of the defendant contains a statement of facts in avoidаnce of the plaintiff’s allegations rather than a denial, and the statement is not very clear or satisfactory. He admits that the notes and accounts were endorsed by him to the plaintiff, and were left with him for collection. Just what he means when he says that he collected “ $300 in cash, which said $300 reрresented the share and percentage which the Gibbs Guano held to the $668.00 collected on sаid notes,’» is not very clear, as the $668.00 is nowhere else mentioned ■ but we assume that it had reference to the alleged fact, that the plaintiff was informed at the time the notes and accounts werе endorsed to him, that they, were executed for various brands of guano.
The defendant also says thаt some of the notes and accounts wei’e collected by one Moore, his agent, and by оne Ross, his partner, and went into the general fund of T. Davenport & Co. H e does not say that this was without his knowledge or approval. His affidavit is met by the counter affidavit of Malloy, supported in a matеrial respect by the written agreement signed by the defendant, and it is found, and as the evidence warrаnted, by the Court below, that for the purposes of this motion the allegations of the plaintiff are truе, and the 3rd ground upon which the defendant bases his motion to vacate the order of arrest cannot be maintained.
4. This is a civil action instituted in the Superior Court of New Hanover County to recover money which the plaintiff *293 alleges the defendant, as his agent, had collected and neglected to pay over to him, and which he refused to pay upon demand, and the plaintiff’s rights in this action cаnnot be affected by the result of any collateral proceeding or prosecution in Sоuth Carolina, and the 4th ground of defendant’s motion cannot avail him.
5. Chapter 69, section 1, of the Acts оf 1869-70, C. C. P., § 149, Bat. Rev., 176, authorized arrest and bail “ in actions arising on contract where the defendant is a non-rеsident of the State.” This provision has not been brought forward in The Code, doubtless because it was thought to be in contravention’of Art. 1, sec. 16, of the Constitution, which declares that “ there shall be no imprisonment for debt in this Stаte except in cases of fraud.” But there is no constitutional protection against “ arrest fоr fraud,” whether the person be a resident or non-resident, and it would be a singular discrimination in favor of non-residents if, when within the jurisdiction of our Courts, they should be allowed immunities not accorded to our own citizеns.
It has been held that under subsection 4, section 291, of
The Code,
a defendant cannot be arrested unless he has been guilty of fraud in contracting the debt.
McNeely
v.
Haynes,
In
Melvin
v.
Melvin,
*294 We think the case before ns comes within the provision of subsection 2, section 291, of The Code, and that the fact that the defendant is a non-resident of the State gives him no immunity from arrest when within the jurisdiction of thе Courts of this State.
6. We are unable to see any force in the 6th ground upon which the defendant basеs his mQtion. Plis own evidence shows that the notes were endorsed to the plaintiff, and that he held them to colleсt for the plaintiff.
7. What is said of the 5th ground for vacating the order, applies to the 7th also. If a pеrson in South Carolina, whether a citizen of that State or of this State, commits a battery in that State upon a citizen of this State, or does any other act for which an action will lie, and afterwards comes within the jurisdiction of this State, he would be liable to an action here, and the lex fori would govern it. The parties are -within the jurisdiction of the Courts of this State, the relief is sought here, and the action in which the remedy or relief is sought is governed by the laws of this State.
There is no error. ’ Affirmed.