5 Paige Ch. 530 | New York Court of Chancery | 1836
The last bill in this case, whether considered as an original bill, or as a mere bill of supplement for the purpose of bringing new matters which have arisen since the filing of the original bill before the court, or as an original bill in the nature of a supplementary suit, is but a continuation of the proceedings originally commenced, so far as regards the right of the master to approve of the appeal bond. Whether the complainant is obliged to employ his former solicitor in filing a supplemental bill, or whether the presenting a petition in the name of a new solicitor, and filing a bill and obtaining special orders thereon in the name of such new solicitor, is not a substantial change of the solicitor of the complainant upon the records of the court, are questions which will be more properly considered upon the appeal itself, the decision of which is not necessary or proper upon this application.
It is supposed by the counsel for the complainant, and the master undoubtedly acted upon this supposition, that the restriction in the statute only extends to a master who has been regularly retained by a party as his solicitor or counsel, in the same cause in which he is called upon to act as master. If the master was called upon to do a mere ministerial act in which no exercise of judgment or discretion was required, as in taking an affidavit, or swearing a party as to the truth of a bill, petition, or answer, there would be much good sense in confining this restriction upon the power of the master to the letter of the statute. And such was the decision of this court in another case which was formerly before me. (The People v. Spalding, 2 Paige’s Rep. 326.) But in the approval of an appeal bond, the exercise both of judgment and discretion is required on the part of the officer. Although a neglect to pursue the course suggested by the chancellor, in the case of Van Wezel v. Van Wezel, (3 Paige’s Rep. 39,) might not ren
The case now under consideration comes within this restriction ; although nothing improper was intended, and the master has merely mistaken the law in supposing he was authorised to approve the appeal bond after the two responsible sure