Mackay v. Blackett — 9 Paige Ch. 437

Majority

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Mackay vs. Blackett & Stubbs.

Headnote

Where a solicitor of the court of chancery was sued in an action for false imprisonment for causing a party to a suit in chancery to be arrested upon process which was afterwards set aside for irregularity; Held, that if he desired the protection of the court of chancery against the suit at law, he should have applied to that court before the trial of that suit.

Wherever the jurisdiction of the court of chancery, the title of its officers, or the validity of its process or of its orders, is disputed or attempted to be drawn in question, by a suit in another court against those who were acting under the process or order of the court of chancery, that court is bound to interfere for their protection.

But where the process of the court of chancery has been irregularly and illegally issued, and has been set aside by the court itself for that reason, or where an officer of the court, under color or pretence of executing its order, has transcended his authority and interfered with the personal rights of others, the court may allow the injured party to seek his redress by an action at law.

Where process of the court of chancery is set aside for irregularity, the court, in its discretion, upon a summary application may restrain the parties against whom such process issued from proceeding at law for any act done under such irregular process; although it was not made a condition of the order setting aside the process that no such suit or proceeding should be instituted. But the party who desires the court of chancery to take the matter into its own hands, and to give to the injured party such redress as he may be entitled to in that court, must seek the aid of the court promptly, and before he has tried the chances of a litigation of the matter in another court.

March 1.

This was an ex parte application, on the part of the complainant, in the nature of an appeal from the decision of the vice chancellor of the first circuit refusing to grant an injunction upon the complainant’s bill. The complainant was a solicitor of this court, and as such had been retained to defend a suit commenced before the vice chancellor, by Blackett and Stubbs and others, against Lainebeer and* others. And the bill having been dismissed with costs for want of prosecution, Mackay as solicitor for two of the defendants in that suit procured a capias ad satisfaciendum to be issued, upon which Blackett and Stubbs were imprisoned; which execution was afterwards set aside by the vice chancellor as having been improperly is

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sued, and in violation of the provisions of the act to abolish imprisonment for debt. Separate suits were thereupon brought, by Blackett and Stubbs respectively, against Mackay and the sheriff, in the court of common pleas of the city of New-York, for the false imprisonment; in both of which suits verdicts were found against Mackay sufficient to carry full costs. The complainant thereupon filed his bill in this cause and prayed for an injunction to restrain the defendants from proceeding any further in their actions at law.

H. S. Mackay, in person.

I think the vice chancellor was right in supposing that the complainant came too late with his application for an injunction ; even if he was right in bringing his case before the court in "the form of an original bill instead of a summary application to the vice chancellor, before whom the suit was pending in which the irregular process had been issued. Where the jurisdiction of this court, the regularity of its process, or the validity of its orders is not in question, it is not a matter of course to restrain all proceedings against its officers in other courts for alleged misconduct in relation to proceedings here. In Frowd v. Lawrence, (1 Jack. & Walk. Rep. 636,) Lord Eldon does indeed appear to have laid down the broad proposition that this court was bound in all cases to interfere and restrain any proceedings against its officers, in other courts, for alleged misconduct in executing its process or orders ; and to compel the injured party to seek redress by an application to the justice of this court alone. But in the more recent case of Aston v. Heron, (2 Myl. & Keen’s Rep. 390,) Lord Brougham has more correctly stated the principles upon which the court proceeds in such cases. Wherever the jurisdiction of this court, the title of its officers, or the validity of its process or of its orders is disputed, or attempted to be drawn in question, by a suit instituted in another court against those who are acting under the orders

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or the process of the court of chancery, it is bound to interfere for their protection. In such cases the court has no choice ; it cannot allow any proceedings of the kind to go on without abandoning its own jurisdiction. It must restrain of course ; otherwise it permits its own orders to be rescinded and its jurisdiction to be questioned—its orders to be rescinded indirectly and not by the superior court of appeal; its jurisdiction to be questioned by courts of inferior or co-ordinate authority. But where the process of the court has been irregularly and illegally issued, and has been set aside by the court itself for such irregularity, or where an officer of this court under color or pretence of executing its orders has transcended his authority and interfered with the personal rights of others—where the process or the orders of this court have furnished a mere pretext for doing wrong— there are no considerations either of principle or of practical convenience which require the court, in every case, to draw to itself the consideration of the matter, to prevent all other tribunals from punishing the wrong-doer, and to exclude the injured party from access to all redress save that which its own jurisdiction can afford. (See Parker v. Browning, 8 Paige’s Rep. 388.)

Where process is set aside for irregularity, I believe all courts exercise the power of making it a condition of the order that no suit shall be brought for acts done under such voidable process, if the court, in the exercise of its discretion, thinks proper to insert such a condition in its order. And this court, upon a summary application, may restrain the prosecution of any such suit, although it has not been made a condition of the order that no suit shall be brought. But as, upon such an application, this court may afford the injured person redress here, the party who wishes this court to take the matter into its own hands and restrain all proceedings elsewhere, should seek the aid of this court promptly and before he has tried the chances of a litigation of the matter in another tribunal. The complainant, in the present case, therefore, instead of waiting the result of a trial by jury in the court of common pleas, should have

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applied at once to the vice chancellor, before whom the original suit in which the irregular process had been issued was pending, to stay the proceedings at law ; if he thought it was a proper case for the interference of this court. Having taken the chance of a successful defence in another tribunal, or of a verdict for nominal damages merely in that court, and the result having proved disastrous to his interests so far as the amount of damages given by the jury is concerned, it was too late for him to ask the vice chancellor to take the matter into his own hands, and thereby to give the complainant the chance of having a different measure of justice meeted out to his adversaries in this court.

Even if the application had been made in time, and was in other respects a proper case for the interference of this court, I think the regular mode of proceeding was by petition to the vice chancellor, instead of a formal injunction bill. In other words, applications of this kind are to be disposed of by summary proceedings before the chancellor or vice chancellor having jurisdiction of the original cause in which the matter arose, and not by a regular suit in this court.

The application for an injunction must, for these reasons, be denied.