Nye v. Nightingale, Assignee

6 R.I. 439

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1860
• Status: Published

Opinion

Ames, C. J.

The substance of this case seems to be, that the petitioner, having obtained the state process for the collection of his debt, has, together with the officer to whom he delivered it, abused the process by levying it upon property other than that of the defendant in execution, to the disturbance and embarrassment of an express trust; and the trustee, having sought and obtained against such abuse an injunction from this court, — the only tribunal competent to grant it, — the petitioner now seeks to remove the suit in which the injunction is granted to a tribunal, which, by the law which limits its jurisdiction, cannot enjoin his process, so' that he may wield it without any equitable control whatsoever. In other words, he seeks our jurisdiction to obtain an execution, and having obtained it, would fly to another to avoid all control against his abuse of it. The suggestion that the court of common pleas, out of which the execution issued, can exercise such control, has no foundation ; for, although a court of law may revoke an execution .unadvisedly issued, it has no power to prevent the improper use of it by the party to whom it has been properly granted.

There is much reason, therefore, in the objection of the respondent, that the petitioner, a citizen of Massachusetts, having applied for and obtained the state process, has thereby so far submitted himself to the state jurisdiction, that he cannot by removing an injunction bill made necessary by his abuse of that process, evade that healthful, equitable, control, which can only be had in the state courts ; but that such bill is, for the purposes of jurisdiction, to be deemed ancillary, and not original, within the spirit of Dunn et al. v. Clarke et al. 8 Peters, 1.

But however this may be, the fact, that Potter, the co-defendant of the petitioner, is a citizen of Rhode Island, is fatal to this petition for removal. He is no formal or unnecessary party, as has been suggested, whose presence a court can disregard in considering this question of jurisdiction; but one, within the criterion recognized in the case of James & wife v. Thurston, Gardner & Co., supra, 428, against whom a decree is asked, and must be had, in order to the direct and effectual relief by injunction, to which the plaintiff, as trustee, is entitled. Neither is he an official party merely, within the line of cases relied on, who represents, by virtue of some special law, the interests of aliens and citizens of other states. He is not pursued in his official, but in his personal character, as one about to commit a wrong under the false pretence of official action. In his official character a court of equity has no control over him whatsoever; but, notwithstanding that character, if he assumes a power over property which the law does not give him, considers him as no longer acting under the authority of his commission, and treats him as a person, merely, dealing with property without any authority whatsoever. Greene v. Mumford, 5 R. I. Rep. 475,. and cases cited. In this it does not differ from a court of law, which regards a sheriff, who, upon an execution against A. seizes the goods of B., as a mere trespasser, to be personally and not officially pursued for his trespass.

.In this view it becomes unnecessary to decide upon any other objection which has been made to the removal of this suit, and this petition must be dismissed, with costs.