In Equity, 1 N.C. 6, 1 Tay. 6 (1799)

March 1799 · North Carolina Superior Court

1 N.C. 6, 1 Tay. 6

In Equity.

Master in Equity cannot act as Solicitor.

MOTION to dismiss an original bill in Equity, which had been drawn by the Master of the Court, and signed by him as Solicitor.

Henderson, in support of the motion,

urged, among other reasons, that such a practice, if tolerated, would have a most fatal effect upon the administration of justice, whose very sources it had a tendency to corrupt; that it was in truth, to constitute the Master Solicitor and Judge in the very same cause, thereby holding out a temptation to iniquitous judgment, irresistible to many men, and certainly dangerous to all. Independent of the evil consequences that would result to the public, from thus giving to the Master the means of multiplying the business of his office, it would be absurd in the highest degree, that the person who filed a bill, should report upon any matter arising out of it; that the Counsel who filed exceptions to an answer, should determine upon its sufficiency, and so on, through the many deviations from the first principles of justice, which every step must produce.

He asked what confidence suitors could have in the decisions of a tribunal, where the advocate of one party, clothed with the power by his official station, was no less concerned in interest, to spread an unfavourable colouring over the adversary’s case. That it was the policy of the law in cases of such moment to the citizens, to regard the principle as inflexible, whatever might be the personal character of the individual; and that, as this was the first attempt of the kind he knew of, he trusted the Court would check it, so that, having no precedent, it might not furnish an example.

Holland for the complainant argued,

against the dismission of the bill, that it was not any where declared illegal for a Master in Equity, to practise as a Solicitor, the authority for which is derived under a licence from the Judges, and is not revoked by the subsequent appointment of the Master. That it could not be expected, that the Master would act as referee in any case where he was Solicitor; the smallest share of delicacy would be sufficient to restrain any person from becoming such; and then the evil effects adverted to would not arise. That even if it were improper, the Court might sustain the bill, and their opinion as to the general rule, would regulate the practice in future.

Macay, J.

I am clearly of opinion that the practice of a Master acting as a Solicitor in the same Court, is improper, in whatever light it is viewed. If the proposed remedy be adopted, namely, that the Master shall not act in his own cases, then, he may be disqualified as to every case in court; consequently the office would not exist, to any one purpose of public utility. I think therefore the bill ought to be dismissed.

Taylor, J.

I entertain no doubt on the general question, but incline to the opinion that it would be the more regular way to take it up upon demurrer, so that the reasons of the order may appear upon the record.

The bill was afterwards withdrawn.