Peel agt. Elliott. If so, it is on some anomalous principle, certainly not on the principle of extinguishment, for the operation of that is to blot out a debt, not to waive a remedy. It is not a waiver, for nothing is waived. The jury found the facts, (see exemplification,) what else could the plaintiff do to signify his adhesion to all his rights in the premises? Is not a waiver a question of intent? If a party takes a higher security and thereby extinguishes a lower security, does he not intend to take it? Would it operate as an extinguishment if it failed to appear that he intended to receive it? Can there be a waiver without a consent expressed or implied? And if the plaintiff did all he could to signify his intent to adhere to all his rights and remedies, what evidence is there of an intent to waive? The defendant lays stress upon the fact that the finding of the jury is entered of "record." But does a record necessarily waive any prior existing remedy? Everything is a record that is recorded or filed with the clerk of the court. The statute of this state provides that in order to enforce and establish a continuance of liens for work, labor, &c., the party shall file a statement of the items of his claim with the clerk of the court, duly verified by his affidavit, and that thereupon the clerk shall record the same, (a proceeding singularly analogous to those had in the case now before the court,) and the claim is thereupon spread upon the records of the court. Does any one pretend that thereby the simple contract is extinguished by a higher security? that a suit brought setting forth the work and labor done, &c., and the filing of the items and affidavit and the record thereof by the clerk, would under our former practice have been an action of debt upon a record? that an action upon the simple contract debt could not have been maintained? It might as well be said that before recording, a suit might be brought upon a mortgage, but that after the mortgage is recorded the suit must be founded upon the record. The defendant lays stress also upon the fact that the jury found that the defendant is "indebted," &c. But if the "record" also shows that it is one of those classes of indebtedness for which a party may be held to bail, how does it help his Peel agt. Elliott. case? If the defendant thinks the word "debt," ought not to have been used, perhaps he will also object to that word in the Code, where it provides that if the "debt" has been fraudulently contracted, the defendant may be held to bail. (See Code, § 179, sub. 4.) The word debt is a word of the broadest possible signification, it includes all classes of obligations and liabilities, whether sounding in tort or contract, whether incurred "in office," or by a "person in a fiduciary capacity," or where the party has otherwise "been guilty of a fraud in contracting the debt or incurring the obligation." (See 3 Met. R. 522, 526; 2 Stephens' Com. 186, 187, and note; 1 Bur. Dic. p. 342; 1 E. D. Smith's Rep. 261.) IV. Let the proceedings recited in the document before the court, amount to what they may, no authority has been shown for saying that the plaintiff must thereby be deprived of an essential part of his remedy against the defendant in this action. It might well be presumed that in a case of so much importance as the present, if any authority existed it would have been produced. We are referred to the case of Goodrich agt. Dunbar, (17 Barb. p. 644,) for the only authority that is attempted to be produced, and upon which alone the defendant relies. Of that case it may be remarked: 1. It does not appear to have been considered in the light of authority either by the court or counsel. No case, doctrine or other authority is referred to by counsel or court, either in the argument or in the opinion. 2. Every syllable of that case upon which the defendant would rely is sheer obiter dictum. The court on the first branch of the case, came to the conclusion that had there been no suit or judgment in California, still the defendant could not be held to bail upon the facts as they were made to appear before the court. It was, therefore, unnecessary to consider the effect of the judgment, and all that is said upon that subject is entirely obiter. But upon the second branch of the case, i. e., the effect of Peel agt. Elliott. the judgment, had it been necessary to consider it, no point was made. There was no ruling, and consequently nothing is or could have been decided. If the judgment roll did not show a case for arrest, (and the court held it does not,) no point could have been raised without offering proof aliunde the record, to show that the cause of action was one for which the defendant might by the provisions of the Code be held to bail. No such proof being offered, the court had nothing to rule upon, and consequently could decide nothing. It is, therefore, insisted that no authority whatever has been produced for the doctrine which the defendant relies upon. The opposite doctrine is clearly held in the case of Wanzer agt. De Baum, (1 E. D. Smith's R. p. 261.) V. Assuming the exemplification before the court to be a record importing verity, (and this is all the defendant claims for it,) it is an absolute nullity for every purpose, save perhaps two: first, it may fix the time from which interest should run, and it will do that provided it amounts to a demand for the money and second, if it should be pretended that a suit cannot be brought in this country in behalf of the crown, unless the demand were in such a situation that an action could be commenced upon it in England, then these proceedings would obviate that objection by showing that such proceedings had been so taken, and, therefore, the demand would have been sueable in England. For these purposes it was set forth in the complaint: 1. If a record, it is a record of nothing save what it contains. The court will then look into the record to see what it is a record of. By an inspection of that record, it will be found: First. To recite nothing but a necessary ex parte proceeding upon which to found mesne process in the nature of a warrant of arrest and attachment against the person and property of the defendant. If this be so, then the defendant is reduced to the necessity of embodying his proposition in the following form, viz: "The plaintiff may not lay the foundation for a process to arrest my person, because by doing so he waives the right to arrest me at all." Peel agt. Elliott. Second. It will find that it contains no recital that the defendant was in court, either by its process or by voluntary submission of his person to its jurisdiction. In the absence of recitals in the record to this effect, the record and all proceedings thereby proven or referred to, are absolutely void. (Hulbert agt. The New Hope Mutual Insurance Co., 4 How. per SILL, J., on page 276; S. C., affirmed, id. p. 415; 13 J. R. 192; 15 J. R. 121, 142; 5 J. R. 37; 8 J. R. 87, 91, 193; 6 Cowen, 494; Story's Conf. of Laws, 549, and note opinion of Judge PARSONS.) Third, It will find that the jury found that the defendant while acting in a fiduciary capacity and in office, appropriated money which he had received in such capacity and in such office, for the use of his principal to his own use, and had neglected to pay it over as he ought to have done. That such a secret ex parte proceeding with the intent and purpose for which this was done, should have the effect of waiving a remedy, is little less than an absurdity on its face. Can a waiver take place, unless from the facts and circumstances of the case, it is inferrible that the parties intended it? Here it is shown that the intent of the act done was entirely of an opposite character by the only party who had or now has any knowledge of what was done, (for the defendant swears in his affidavit and answer, that he had and now has no knowl edge or notice whatever of this proceeding.) Can an extinguishment be worked by elevating the nature of the security, where the act which is claimed to have so changed the character of the security was one to which the defendant neither assented nor had any knowledge of? If the character of the security was changed, it must have been by extinguishing the former security and receiving a higher security in the place of it. What evidence is there that the plaintiff ever consented to extinguish the former security? What evidence is there that the defendant ever gave the higher security? This could not have been done by the court, for the court had no jurisdiction of the defendant, and could not affect or vary his rights without first bringing him before it, thereby acquiring jurisdiction over him. But the record here produced, shows no Peel agt. Elliott. a ever so many times, It is the judgment of jury, and the record Here is no judgment adjudication of any court whatever. The bare finding of a jury, though their finding be recorded never operated to extinguish a claim. the court, entered upon the finding of of that judgment that works this effect. of any court, no record of any judgment. The position of the defendant in any view of it, is entirely unsupported by the facts or the law of the case. It cannot be substantiated upon any of the hypotheses he presents, either on principle or by adjudications. It is insisted, therefore, that the order appealed from should be affirmed with costs. By the court-HOGEBOOM, Justice. The question presented for the consideration of the court in this case is, whether the defendant ought to remain under arrest within the provisions of subdivision 2 of section 179 of the Code? That section authorizes the arrest of a party in an action for money received or property embezzled or fraudulently misapplied by a public officer, or by a person in a fiduciary capacity, or for any misconduct or neglect in office. The question was argued wholly upon the effect of the judicial proceedings taken in England upon the case, and I do not, therefore, propose to discuss the question whether the defendant for acts done in England, amounting to a fraud or official misconduct towards that gov ernment, can be held to arrest here as a public officer, or guilty of official misconduct, or whether our statute is limited in its operation to cases of misconduct occurring within its own jurisdiction, or towards its own government. The precise question to be disposed of, therefore, is, whether the legal proceedings which have taken place in England, have essentially altered the original cause of action, and so deprived it of its original character or qualities, that in its present shape the action can no longer be said to be an action for money received or property embezzled or fraudulently misapplied by the defendant as public officer, or for misconduct or neglect in office. This must be determined by ascertaining the legal characterVOL. XVI. 32 |