2 R.I. 382 | R.I. | 1853
We are satisfied that the court has an entire control over its process, *384 and that it is in the discretion of the court to grant or stay the execution in each particular case, according to the circumstances. But this discretion must be judicially exercised; and unless facts are brought to the knowledge of the court, which furnish a just ground for interposition, the court will not interfere with the regular course of proceedings. We have examined the testimony bearing upon the alleged fraud of the petitioner and the purchaser of the judgment, and are satisfied that no fraud was intended or practised by the purchaser. The directors seem to have come to the conclusion that the execution could not be levied upon Whitman. The execution bears on its face the mandate of the State to levy on Whitman Budlong, and it is scarcely conceivable that its plain import should have been misunderstood, and, if it was, their ignorance is no defence. There are, however, some grounds to suspect that the persons who moved the purchase had another object than simply to obtain satisfaction, but as there is no positive proof of a collusion between them and the co-defendant, Budlong, the, court cannot act upon them. The objection that one of the directors, who voted for the transfer, was not qualified, cannot affect the rights of third parties dealing with the Bank. The discharge of Whitman, written on the back of the execution, can have no effect.
After the judgment of the court had been declared, Whitman moved for leave to introduce testimony to show a collusion between the petitioner and Budlong to have the execution served upon Whitman alone, contrary to the equities existing between them as co-partners, in order to procure a stay of the execution until said Whitman could file a bill in equity to ascertain the rights between them, and have the execution satisfied in accordance *385 therewith, and the court granted time for this purpose, on condition that the Bank should meanwhile deposit in the registry of the court the amount of the judgment and costs to be paid to the petitioner, in case the court should refuse, upon the further proof, to issue the alias execution. But upon the coming in of the evidence, the court, not being satisfied that there was any collusion, ordered the money deposited to be returned and the alias to issue.
