Schadle agt. Chase.

may not by any means intend, and to involve the estate in the expenses of a litigation, which he may have every disposition to avoid. A refusal to do an act, implies that there has been a previous request, and a refusal to refer a rejected claim to three disinterested persons, implies a previous request or offer to refer by the claimant. The proposition to refer must proceed from the claimant after his claim has been rejected. The statute admits of no other construction. To entitle the plaintiff, therefore, to an order charging the costs in this action to the defendant personally, or to the estate which he represents, it must appear affirmatively that he made a proposition or of fer to the defendant to refer the subject in controversy to three disinterested persons, to be approved by the surrogate, and that such proposition or offer was refused. The papers, in my judgment, show nothing of the kind.

The stipulation that the referees shall each receive $10 per day as a compensation for their services, relates exclusively to the measure of their compensation, and does not affect the executors' liability. The second and third branches of the plaintiff's motion must fall with the first, because the costs signify all the plaintiff's taxable fees and disbursements, and unless the defendant is liable for all, he is not liable for a part.

The plaintiff's motion is denied, with ten dollars costs of opposing the motion.

SUPREME COURT.

SCHADLE agt. CHASE.

Although a person cannot be arrested more than once by process out of different courts in the same state, for the same cause of action, the rule does not apply where the first process is absolutely void by reason of want of authority on the part of the court or officer who issued it.

Schadle agt. Chase.

Neither the marine court of the city of New-York, nor any of its judges, possess any power to issue an order of arrest under section 179 of the Code. Where the defendant received as agent or attorney of the plaintiff, a specific sum of money for the specific purpose of paying it over to a certain insurance company, for interest and insurance due to them by the plaintiff, and while the money was in the defendant's hands, the plaintiff demanded it back, and the defendant refused to pay it back, on the ground that the plaintiff had agreed in consideration of the performance of certain conditions by a third person, which was then in progress, the defendant might pay a portion of the money to such third person, and that by paying the money back to the plaintiff it would be violating such agreement, and the plaintiff thereupon procured an order of arrest for the defendant;

Held, that although the defendant might not have acted in bad faith, or was guilty intentionally of any breach of trust, yet he was legally bound to refund the money to the plaintiff when he demanded it; he was merely the agent of the plaintiff, who had a right to dispense with such agency at any time. to discharge arrest denied.

New-York Special Term, October, 1858.

Motion

MOTION to vacate order of arrest. The facts will sufficiently appear in the opinion.

CLERKE, Justice. A person cannot undoubtedly be ar rested more than once by process out of different courts in the same state, for the same cause of action; but this maxim does not apply where the first process is absolutely void by reason of want of authority on the part of the court or officer who issued it. The marine court, in the case under consideration, had jurisdiction of the subject matter of the action, but neither the court nor any of its judges, possess any power to issue an order of arrest under section 179 of the Code; and it was under the second subdivision of that section, that the judge of the marine court issued the order, by virtue of which the defendant was first arrested. On reference to section eight of the Code, it will be seen that the last eleven titles of the second part of the Code apply exclusively to actions in the supreme court, and other courts expressly enumerated; among which the marine court is not mentioned. The order was, therefore, null and void, and the plaintiff had a right on discontinuing his action in the marine court to institute one here,

Schadle agt. Chase.

and to obtain a new order of arrest from a judge of this court. The only question therefore is, do the facts and circumstances of the case, entitle him to the order? It is admitted by the defendant that he received as agent or attorney of the plaintiff, the sum of $274.50, for the specific purpose of paying it to the Mutual Insurance Company for interest and insurance, due to them by the plaintiff. This was the precise amount due by him to the company. But the defendant alleges that after he received this amount, the plaintiff agreed if Mr. Sandford, his attorney in an action pending in the supreme court, would procure an order in that court, allowing the application of certain moneys deposited therein, to the payment of the claim of the Mutual Insurance Company, that the plaintiff would allow to Mr. Sandford the amount of his bill out of the money in the defendant's hands. Afterwards, however, and while Mr. Sandford was taking the necessary steps to procure the order in the supreme court, the plaintiff called upon the defendant and demanded that he should refund the money which he had deposited with him to pay the insurance company. This the defendant refused, on the ground that the plaintiff had made the agreement with Mr. Sandford, and in consequence of this refusal, he has been arrested in this action.

Although I do not believe the defendant acted in bad faith, or was guilty intentionally of any breach of trust, yet I think he was legally bound to refund the money to the plaintiff whenever he demanded it. The defendant was not a stakeholder, he was under no legal liability to retain the money, either for Mr. Sandford or the insurance company; he was merely the agent of the plaintiff, who had a perfect right to reclaim his money at any time before it was actually paid over to either of them. He had a right to dispense with the agency and services of the defendant in the premises at any time; and if he neglected to satisfy the claim of the insurance company, or violate his agreement with Mr. Sandford, he alone and not the defendant, was amenable to them. The defendant was only the custodian of the fund, he was in no respect a party to

Schadle agt. Chase.

the agreement with Mr. Sandford, and certainly had not incurred any legal obligation to the insurance company.

It appears that the receipt which the defendant first drew on receiving the money from the plaintiff, specified the purpose to which it should be applied, with the words, “subject only to his fees and disbursements." The plaintiff positively swears that these words were erased on his objecting to them, before the receipt was delivered to him; while the defendant as positively swears that they were retained, and that the plaintiff must have erased them afterwards. However this may be, it is quite clear that the money consisted of the precise sum due to the insurance company, and that it was deposited with the defendant for that purpose alone. The designated words therefore, seem to be quite at variance with the purpose for which the money was intrusted to the defendant. At the time the plaintiff demanded the restoration of the money, the defendant did not place his refusal on the ground that he had any lien upon it; but purely on the ground that he would be acting "wrongly to Mr. Sandford and to the insurance company," by surrendering it.

The defendant, consequently, under no aspect of the case was legally justified in withholding the money, and as he received it as an agent, he has made himself liable to arrest under the second division of section 179 of the Code, for not restoring it to his principal, when he demanded it.

The motion to vacate the order of arrest, must be denied, but as I do not think the defendant was guilty of bad faith, I will not allow costs.

Gregory agt. Campbell.

SUPREME COURT.

JAMES H. GREGORY agt. CYRUS N. CAMPBELL and others.

On an order of reference in a mortgage foreclosure case, the first duty of the referee under the statute, aside from computing the amount due on the mortgage, is to ascertain whether the mortgaged premises are so situated that they can be sold in parcels without injury to the interests of the parties. So far as the duty of the referee is concerned under this branch of the order of reference, the inquiry is simply how can the mortgaged premises be sold so as to realize therefrom the greatest amount of money?

A sale of the whole premises in one parcel can only be most beneficial to the parties, when the mortgagee will receive and the mortgagor pay from the sale thereof the largest amount of the mortgage debt, and leave the largest surplus after payment of the whole debt. The benefit mentioned and intended by the stat ute is a benefit common to both parties.

The report of the referee in such cases is but part of the evidence before the court

and upon which it is called upon to decide whether it will or will not be most beneficial to the parties to decree a sale of the whole premises in one parcel in the first instance. The court will look to the pleadings, and will receive other evidence in its discretion, and will consider any stipulations. offers and admissions of the parties or of other persons presented to it on the hearing. Where it appeared to the court that the mortgaged premises consisted of about 150 acres of land mostly within the limits of the city of Rochester, and was laid out for the most part into city lots, intersected by streets, and upon the map consisted of a variety of distinct blocks of ground, and that the bond and mortgage, (which were given to secure purchase money,) were given to secure the sum of $35,920, of which only the sum of $2,592.08 was due and payable, the residue being payable in instalments running through a period of about fourteen years. And the evidence before the referee and otherwise, being quite conclusive that eligible sales for cash in hand of said lands in parcels large or small, could not then be made at a forced sale. And the fact that the plaintiff then tendered a stipulation to bid on the sale in one parcel the whole amount of principal and interest due, and to become due on the bond and mortgage with costs, so as to leave no deficiency for which the defendants would be responsible.

Held, that the case came within the statute, and within the case in 1 Paige, 450, making it the duty of the court to decree a sale of the whole premises in one parcel, as most beneficial to the parties.

Monroe Special Term, July, 1858.

FORECLOSURE.

The issues of fact presented by the pleadings had been tried VOL. XVI.

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