Lane agt. Losee and others. vision in question affects any demand, or any part of a demand, arising upon contract, when such contracts are within the meaning of the first section of the act of 1831. We find it under chapter five of the Code, entitled "Provisional Remedies," belonging to Title VII, entitled "Of the Provisional Remedies in Civil Actions." The second chapter of this title relates to the claim and delivery of personal property provides the method, by which a plaintiff claiming specific property can have it delivered to him before or after judg ment. The provision, which is the subject of discussion in this motion, is the last of the three paragraphs appended to the 5th subdivision of § 244. They are not numbered, and are introduced in a loose and informal manner, very unusual in the Code; and I am strongly inclined to suspect that they have got into the wrong place. The first of these paragraphs provides, when a party admits that he has in his possession, or under his control, any money, or other thing, capable of delivery, &c., held by him as trustee for another party, or which belongs, or is due to any other party, the court may order the same to be deposited in court, or delivered to the party to whom it is admitted to belong. This contemplates the admission of the whole claim; and I think, plainly relates to specific property, whether money, or anything else, that can be traced or identified, which it is alleged the defendant unjustly detains, or moneys which is not the subject of a demand, and arising from the breach of an ordinary contract. The second paragraph, appended to this subdivision, authorizes the court, whenever it shall direct the deposit, or delivery, or conveyance of money, or other property, and the order is disobeyed, besides punishing the disobedience as for contempt, to make an order requiring the sheriff to take the money or property, and deposit, deliver, or convey it, in conformity with the direction of the court. This evidently also relates to specific money or other property, or money which is not the subject of a demand arising Lane agt. Losee and others. from the breach of an ordinary contract. Then comes the provision in question relating to the admission of "a part of the claim," importing also a specific thing; or, if money, not an ordinary money demand, authorizing the court to make the same order as when the whole is admitted, and in like manner to punish the disobedience of the order as for contempt. In short, I am of opinion that these provisions are intended for cases denoting more flagrant want of fidelity, and consequently greater moral turpitude, than the nonfulfilment of an ordinary contract; it being more probable that the dereliction in the one case originated in fraud; in the other, in misfortune. In the one, the party is under the most solemn obligations of law and conscience not to risk the loss or deterioration of the property entrusted to his care, and to be ready to account for it at all times; while in the other, the performance of the promise or the payment of the debt, is contingent upon a variety of circumstances, over which the most prudent and upright often have no control. A person who refuses to restore specific funds entrusted to his custody, or which he has received as an agent, or in any fiduciary capacity, or any other specific thing, which he has possession of, belonging to another, whether as a bailor or otherwise, not only fails to perform a promise, but is disloyal to his trust; and to him, and not to the ordinary debtor, do these provisions apply. The motion is denied, with costs. Chappell & M'Alpine agt. Potter. SUPREME COURT. JAMES CHAPPELL & BYRON D. M'ALPINE agt. HENRY S. POTTER. If the rule, that an injunction cannot be issued in one action to stay proceedings in another in the same court, prevails under our present system, it must be confined to cases where the whole object of the injunction would be accomplished by a simple order to stay proceedings. Where an injunction is proper in reference to part of the subject of the action, there is no good reason why one should not be allowed broad enough to embrace the whole case, if a restraint as to the whole is proper, although as to the residue of the controversy the restraint might be obtained by a mere order to stay proceedings. In what mode proceedings in a pending action shall be restrained, is matter of practice purely, and where circumstances render a restraint by injunction the most proper, that mode may be resorted to. Where notes against third persons are turned out as collateral securities for a debt, with the endorsement of the debtor, who afterwards makes partial payments on the principal debt, and subsequently suits are commenced on the notes, and judgments obtained against all the parties, makers, and endorsers, by default; the party who turned out the notes is not concluded by the judgment against him from showing, when sued on the principal debt, or suing to obtain the securities, that less than the amount of the judgment against him as endorser on the collateral securities is due from him on the principal debt. At Chambers, November 21, 1854. MOTION to vacate an injunction. The facts sufficiently appear in the opinion. W. F. COGSWELL, for defendant. T. R. STRONG, Justice. Upon the plaintiffs' theory of this case, that the judgments and plankroad stock are held by the defendant as collateral security for a sum of money due to him from their assignor, and that he refuses to relinquish the securities to them on being offered and tendered payment of that sum, with the costs of recovering the judgments, this action is properly brought. Chappell & M'Alpine agt. Potter. The plaintiffs might obtain a stay of proceedings on the judgments by motion in the actions in which the judgments were obtained; but that is only part of the relief to which they are entitled, even in respect to the judgments. They seek to obtain, and are entitled to the benefit of the judgments as against the principal debtors therein; and they also seek to obtain, and are entitled to the stock. For the same reason that the action is proper, the defendant should, upon the plaintiffs' application, be restrained from enforcing or disposing of the judgments, or transferring the stock, until the determination of the action, with a view to the relief asked. It is claimed on the part of the defendant, that this stay of proceedings cannot regularly be by injunction, and that the only correct practice is to obtain a simple order for that purpose by a special motion in the actions in which a stay is desired. pro In Dyckman agt. Kernochan, (2 Paige, 26,) the late CHANCELLOR says, that "it is not the practice of this court to permit an injunction bill to be filed, either by parties or privies to the proceedings in a former suit, to restrain proceedings under the decree. The court can control its own process and the ceedings of its own officers, without an original bill being filed for that purpose." He further says, "If any order was proper, the present complainants should have applied by petition to the chancellor." (See also 1 Hoff. Chan. Prac. 89, and note 2; 1 Barb. Chan. Prac. 619.) This doctrine has been applied under the Code; and it has been held that an injunction cannot be issued in one action to stay proceedings in another in the same court. (Dederick agt. Hoysradt, 4 How. Prac. Rep. 350.) If this rule is applicable under our present system, it must, I think, be confined to cases where the whole object of the injunction would be accomplished by the simple order to stay the proceedings. Where, as in this case in respect to the stock, an injunction is proper in reference to part of the subject of the action; or where, as in this case, it is sought not only to re Chappell & M'Alpine agt. Potter. strain proceedings to enforce securities, but also the disposal of them, there is no good reason why an injunction should not be allowed broad enough to embrace the whole case. Unless such an injunction is allowable, a party must, in such cases, resort to an injunction in part, and in part to an ordinary order, to obtain the full restraint desired, and proper to be had. This should not be necessary. In what mode proceedings in another action shall be restrained is a matter of practice purely; and, when circumstances render a restraint by injunction the most proper, I think that mode may be resorted to. The counsel for the defendant insists, that these plaintiffs are concluded by the judgments obtained by the defendant on the securities, other than the stock, against their assignor and the other parties, from alleging that the whole amount of those judgments was not due when they were recovered; and therefore that there is no equity in the plaintiffs' case. I think the assignor of the plaintiffs, upon their view of the case, might have successfully resisted a recovery against him as endorser upon the collateral securities for more than the amount actually due from him upon the principal debt; but I am inclined to think he was not bound to do so in order to protect his rights. There was actually due, upon the collateral obligations, the full amount for which the judgments were rendered; and he might allow judgment against him as endorser to that amount without prejudice to his right, when sued upon the principal debt, to prove that less was due, or to show that a smaller sum was due; and thereupon, on payment thereof, to have the benefit of the judgments. The judgments, like the demands upon which they were obtained, are merely collateral security for the sum actually due the defendant. Although the defendant in his affidavit avoids the whole equity of the complaint, the affidavits in reply are so full and strong that the injunction cannot be dissolved on that ground. But I am satisfied that the Revised Statutes, in regard to security to be given upon an injunction "to stay proceedings at law in a personal action after judgment," apply to this case. The defendant claims to be the absolute owner of the judg |