In the Matter of the Petition of John C. Van Eps, for Leave to sue the Official Bond of Ira Harris, Late Master in Chancery

In the Matter of the Petition of John C. Van Eps, for Leave to sue the Official Bond of Ira Harris, Late Master in Chancery. The provision of the act requiring a'master in chancery to file an official bond (chapter 78, Laws of 1883), which provides that if the bond shall become forfeited, the Court of Chancery shall direct its prosecution, gives said court and its successor, the Supreme Court, control and supervision over the prosecution. It is not a matter of course to grant permission to sue. When there has been a breach, by which the bond has become forfeited, the court is bound to exercise its power, but in such exercise it may inquire into the facts and ascertain if there was any excuse" or justification for the master, or whether there exists any reason why a prosecution could be successfully resisted. ' It may also hear, in opposition, facts and circumstances showing such prosecution would be unjust and if satisfied thereof has power to deny the motion. (Argued February 3, 1874; decided February 10, 1874.) This was an application for leave to prosecute the bond of Ira Harris, late master in chancery. In 1842, as such master, Mr. Harris sold certain premises on foreclosure sale. After satisfying the mortgage an amount of surplus money remained in his hands ; he made no report of sale, and it was alleged by the petitioner, who claimed the surplus moneys as trustee of the mortgagor, that such surplus moneys had not been paid over. In opposition to the petition affidavits were presented, showing, in substance, that the sale was not for cash, but that, with the consent and acquiescence of all concerned and for the purpose of realizing as much as possible, time was given the purchaser who did not pay in full until some six years thereafter; and facts were stated showing payments to the trustee and the cestuis■ que trust, with the consent of the former, and expenses incurred, services rendered, etc., with like consent, sufficient to absorb the surplus. It appeared, also, that the eestui que trust and other witnesses were dead, that the papers and vouchers of the master had been lost or abstracted from his office. Held, as above, and that the papers showed facts calling for the application of principles governing the action of courts of equity; that the strictness of the demand, the laches of the petitioner in attempting to enforce his right, his satisfaction at the time with the acts of the master of which he now complains, and long continued acquiescence, and the fact that the sureties to the bond are dead, justified the court below in denying the application. The court put their decision upon the ground of laches and acquiescence, stating that it was not to be understood as justifying or shielding1 the deviation from strict performance of official duty. G. C. Ripsom for the appellant. George W. Miller for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur, except Grover and Raparlo, JJ., not voting. Order affirmed.