Ten Eick v. Simpson , 11 Paige Ch. 177 ( 1844 )

The Chancellor.

The notice of the appeal served upon the respondent was undoubtedly irregular, as it was not only wrongly entitled but was also served several days before any appeal whatever had been entered with the clerk of the court; so that if the respondent had searched the office to see if the appeal bond itself was given in the wrong suit, he would not have found an appeal bond in any cause. The affidavit of justification of the sureties was also technically defective, in not stating that they were freeholders in this state, as well as residents therein; or that they were householders; that is, housekeepers and masters, and heads of families. (Van Wezel v. Van Wezel, 3 Paige's Rep. 38.) The rule of this court, which directs the master or other officer who is to approve sureties in any case, to require such sureties to justify, means that he shall not only examine them on oath as to the extent of their pecuniary responsibility, but also as to their residences and other qualifications to become such sureties, according to law and the practice of the court; or- he should require an affidavit as to such qualifications. And if the rule of the court is not complied with in this respect, the proceeding is irregular. In the present case, however, it appears that both the sureties in the appeal bond had the requisite qualifications, the one being a freeholder and the other being a freeholder and a householder also; and both having fixed residences in the state. The irregularity in the justification in this respect was therefore merely technical, and is now remedied by these subsequent affidavits.

I am not prepared to say that any provision of the revised statutes prohibits the vice chancellor from approving the appeal bond, in a case in which he was solicitor or counsel previous to his appointment to office. For his acceptance of the office of circuit judge wholly disqualifies him, under the provisions of the constitution, from holding the office of solicitor or counsel, at the same time. The principle, however, which this court applied to the case of a master who had acted as the counsel for one of the parties in a prior stage of the suit, in the case of McLaren v. Charrier, (5 Paige's Rep. 530,) seems to be equally applicable here. It is the same principle which disqualifies a judge from acting as such, in a cause in which he has been at a previous time the solicitor or counsel of one of the parties. In such cases he should decline to act, in his judicial capacity, in any matter requiring the exercise of judgment or judicial discretion; unless in a case of necessity and to prevent a failure of justice, as in a case where there is no other judicial officer who has the power to do the act required to be done by him.

None of the defects in this appeal, however, are of such a nature as not to be amendable under the provisions of the revised statutes. But as the time for appealing has not expired, the bringing a new appeal will be equally beneficial to the complainant, and will not add to the expense. The appeal must therefore be dismissed with $ 15 costs; but without prejudice to the right to bring a new appeal, if the complainant shall be advised to do so, after the intimation of the opinion of the court, upon the merits of the appeal, which was given upon the argument of this motion.