Ohio Ex Rel. Lien v. Clarke , 129 N.J. Eq. 372 ( 1941 )

A bill was filed to set aside a transfer of stock as fraudulent. The defendants were non-residents. A sequestrator was appointed pursuant to N.J.S.A. 2:29-89, and he proceeded to impound certain shares of stock according to the direction of the court. The defendants answered the bill and counter-claimed for damages against the sequestrator. The Court of Chancery properly struck the counter-claim. It sounded in tort and was cognizable at law and not in equity. Montclair v. Kip,110 N.J. Eq. 506. Moreover, an action in tort against a receiver or a sequestrator may not be brought without first obtaining the consent of the court appointing such judicial officer. Palys v.Jewett, 32 N.J. Eq. 302; Schuster v. Ventnor Gardens, Inc.,102 N.J. Eq. 357.

The execution of process, as provided for by law, gives rise to no cause of action. If, however, the same was improperly executed an action therefor may be brought. The appellant could have petitioned the court for leave to sue the sequestrator alleging therein the manner in which it was claimed that he had committed a wrong. This it failed to do. Hence, no other course was open to the court than that taken.

The order appealed from is affirmed, with costs.

For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 15.

For reversal — None.