In re Leefe — 2 Barb. Ch. 39

Majority

p. 39

In the matter of the petition of Leefe and wife.

Headnote

The constitution having given to parties an appeal to the chancellor from all inferior equity tribunals, and the legislature not having made any provision authorizing any other person to sit for him in a case where he is related to one of the parties, the chancellor is bound to hear an appeal, even wnere a near relative ia personally interested therein.

The provision of the statute, prohibiting any judge from sitting, where he is related to either of the parties, is controlled .by the constitution, as the paramount law.

This was a submission, by the parties, in the nature of an application to dismiss an appeal upon the ground that the chancellor had not jurisdiction to hear it. A petition was originally presented to the chancellor, not only asking directions that the late assistant register should transfer, to the petitioners, property which he held in his official character, but asking further relief against the assistant register personally. Under those circumstances, the chancellor deemed it proper, on account of relationship, to refer the petition to the vice chancellor of "the first circuit, to hear and decide the same. The vice chancellor made a decree affecting the assistant register, in his official character only; from which decree the latter appealed.

Murray Hoffman, for the appellant.

John Anthon, for the respondents.

As the constitution gives to parties an appeal to the chancellor from all inferior-equity tribunals, "and the legislature has made, no provision authorizing any other person to sit for him, in a case where that officer is related to one of the.parties, the chancellor is bound to hear the appeal, even where a near relative is personally interested. This was done by ChanceEor Kent; who took jurisdiction of, and heard, a Htigated cause, in which his brother was one of the parties, and personally interested. He also heard and decided the case of Mooers v. White, (6 John. Ch. R. 360,) where his brother-in-law was the complainant; the legislature not having, authorized

p. 40

any other person to sit for the chancellor, in such a case. The statute, it is true, prohibits any judge from sitting, where he is related to either of the parties within the ninth degree, of affinity or consanguinity; but it . has n.ot provided for any other person, or tribunal, to exercise the appellate ppwer, which is given to the chancellor, by the.constitution, in such cases. The constitution must, therefore, control; as that is the paramount law.

Again; there does not appear to be any valid objection in principle, to my hearing the appeal in this case. For the subj ect matter of the appeal is now, by operation of law, transferred to the new assistant register, who is not a relative; if that subject matter ever belonged to the late assistant register, under the decree, which was made more than twenty-five years before he came into office. And.it appears by the petition, in this case, that the law courts, as well as the vice chancellor, have decided, that the appellant held the legal title to the property in controversy in his character of assistant register merely. X- must, therefore, hold that I have jurisdiction and am bound to hear this appeal. But it is probably a case in which an order should be entered to; have, the proceedings continued in the name of the present assistant, register.; unless he should think proper to submit to. the decision of the vice chancellor, and waive the appeal, after investigating the case.