THE STATE ex rel. CLAUNCH vs. CASTLEBERRY, 23 Ala. 85

CHILTON, C. J. The law wisely withholds from every judge, all temptations to depart from the strict line of duty, from considerations of interest, by rendering him incompetent to sit in any cause in which he is interested. The maxim is £ JV*emo judex in causa propria,’ and it is alike founded in common sense, and a just desire to preserve from impurity the fountains of justice. In Boyer v.

Potts, 14 Serg. & Rawle 157, where the question came up, whether a justice of the peace, who had a demand to collect, had acted as agent for the party plaintiff, the court, per Gibson J. ,use the following language : “ There was no evidence of any delegation of authority, except what was thought to result from the relations in which the parties stood, of magistrate and suitor; and the law, certainly, will not from this presume an agency so fraudulent and base.

Justices of the peace, no doubt, frequently act as agents for those who employ them; but they ought to know, that they do so at the peril of being convicted of a highly aggravated misdemeanor, which is indictable at common law.

Ignorance cannot palliate a crime of this sort; for the turpitude of acting both as judge and party in the same cause cannot but bo obvious to the dullest comprehension.” The earlier common law reports abound with authorities upon this point. — Style 138 ; 1 Vent. 3; Hardress 503; Hob. 87; Salkeld 396, where Holt, C.' J. said : ££ The Mayor of Hereford was laid by the heels, for sitting in judgment in a cause where he himself was lessor of the plaintiff in ejectment, though he, by the charter, was sole judge of the court.” So, in the Earl of Derby's case, 12 Co. 114, it was resolved, that the chamberlain of Chester, ££ being sole judge of equity, cannot decree any thing, wherein himself is a party; for he cannot be a judge in his own cause; and this fundamental principle is adhered to with such pertinacity, that it has been held, that no practice to the contrary shall be allowed to overturn it. — 2 Str. 1173 ; 5 M. & S. 513.

Indeed, Lord Coke, in Doctor Bonham’s case, b Co. 118, clearly intimates that

an act of parliament contravening it would be void, as against common right. — Sec also 12 Mod. 687'; 4 Term R. 71. I am not unapprisod of the fact, that, in an opinion delivered some four years since by Lord Langdale, Master of tho Rolls, in the case of the Grand Junction Canal Company v. Dimes, 12 Bbavan 63, a qualification, cr rather an exception, to the common law rule which we have mentioned, was held to obtain in a ease where the judge’s refusal to act in the cause would amount to a denial of justice, as it was said.

In that case, the plaintiff had filed a bill in the Vice Chancellor’s of England court, to enjoin the defendant from obtain-' ing possession of certain land, claimed by the company upon equitable circumstances not necessary now to be named. The case was heard before the V. Chancellor, and resulted in favor of the company-, and was re-heard before Lord Chancellor Cottenharn, and by him affirmed.

Dimes, the defendant, after-wards discovered that the Lord Chancellor, at the time he made the decision, owned ninety shares of stock in the company, and proceeding upon the ground that the re-hearing was coram non judice and void, gave notice of motion before the Lord Chancellor to discharge the order made by him on the re-hearing, and to order the cost which he had paid to be restored to him ; that the petition for re-hearing be restored to his Lordship’s paper of re-hearings and appeals, and that the proper directions be given by issuing commissions or otherwise, for the trial of the appeal before the Master of the Rolls, assisted by two of the common law judges at Westminster, The Master of the Rolls, at the request of the Lord Chan- , cellor, heard the motion, and overruled it, at the same time recognizing the validity and importance of the general rule, that no one could be a judge in a cause in which ho was interested; yet he maintained that there might arise cases where there would be a failure of justice from the refusal of a judge to sit, and this he considered a greater ovil than the departure from the fundamental rule.

This view is predicated, upon a dictum in Great Charte v. Kennington, 2 Stra. 1173; but is certainly opposed to all the adjudged cases both in this country and in England, so far as my researches extend. The departure from the rule, while it might meet the justice of the particular case, might poison ,and tend to corrupt the very fountains of it in its general administration. It were greatly better, in my opinion, to leave such cases to be provided lor by legislative enactment, than to make shipwreck of principle to meet them.

But, as the case before us calls for no opinion upon the point involved in that decided by the Master of the Rolls, it is left by this court an open question.

Aside, however, from the provisions of the common law, our statute meets such cases, and declares “ that no judge of probate shall act upon the determination of any cause or proceeding, or take jurisdiction of any matter, in which he is interested, or related to either party, by consanguinity or affinity, or in which he shall have been counsel, executor, administrator or guardian, unless by consent of the parties concerned; but m such cases, the cause or proceedings shall be commenced, or transferred, as the case may be, to the Circuit Court of the proper county, and said court shall take jurisdiction and proceed therein as the Probate Court might have done.” — Acts of 1849-’50 p. 36 §40.

To constitute such interest as will disqualify the judge, within the meaning of this section, from proceeding, it is not necessary that he should be a party. It is sufficient if he is in anywise interested in the subject matter.

Our statute is not unlike that of Pennsylvania upon the same subject; and in that State it was held, that, “ where the judge of probate had a valid claim against the estate of a deceased person, but had determined in his own mind not to enforce it, and exercised jurisdiction over the estate by granting letters of administration, he was interested as a creditor of the estate, and the grant of administration was void for want of jurisdiction ; and that it was not rendered valid by the circumstance that no exception was taken to his jurisdiction.”—See Sigourney v. Sibley, 21 Pick. Rep. 101; See also 5 Barb. Sup. Ct.

Rep. 607; 3 Cush. Rep. 352; 3 Coms. Rep. 547; 2 Tonal. L. Dic. 285. These authorities may suffice to show that, if the recognizance was not void upon which Judge Wooley was bound, he was interested, and all his action in the premises was coram non judice and void.

Wc come, then, to the inquiry, was the recognizance binding upon him 1 The statute declares that the County Court, at the next term to which the justice is required to bind the party to appear, u shall have full and complete cognizance and jurisdiction of said charge of bastardy.” Now it is most improbable that the legislature intended the County Court should be ousted of its jurisdiction, in the event the defendant was not tried at the first court, for this construction would deny the parties concerned the right, under any circumstances, to a continuance.

If, however, the court has power oyer the cause to continue it, and has no power to secure the attendance of the defendant, so as to make him amenable to its judgment, the object which the legislature had in view, in requiring the justice to take a bond with security, conditioned for his appearance at the next County Court, and in the mean time to be of good behaviour, entirely fails ; for, if the bond taken by the justice extends beyond the first eourt to which it is returned, the securities may have failed, so as to make it worthless.

We are of opinion, however, that it was competent for the County Court to take a recognizance from the party, as necessary to carry out the intention of the legislature, and as incident to the plenary jurisdiction conferred on it over the subject matter. The condition of the recognizance should not, however, go beyond the securing of the defendant’s personal appearance and for his good behaviour.

His appearance was ne¿ cessary to enable the court to carry out and render effectual its jurisdiction, in compelling him to enter into bond for the pay« ment of the provision to be made for the support &c., of the bastard, as provided in the fourth section, (Clay’s Dig, p'. 134) and hence is deducible from the statute. As to his good behaviour, the judge, being a conservator of the peace, might well superadd this condition. But the obligation before us is to appear “ from day to day and from term to term,” and to abide the final determination of the court.

So far as it secures the appearance of the defendant we think it is good, and the court.had power to take it. — See 18 Vin. Abr. 163 et seq.', 1 Chitty’s Cr. L. 90; Jac. L. Die. “Recognizance.” If the superadded condition creates any additional obligation, it is void, but the recognizance is valid as to the remaining obligation.—Home v. The State, 1 Ala. Rep. 110. We conclude that the recognizance was not void — that it was well taken for the appearance of the party from term to term, and consequently Judge Wooley had such interest as to render him incompetent to preside at the trial.

His action in the matter being void for want of jurisdiction, it follows that the circuit judge committed an error in repudiating the cause upon demurrer to the petition. We entertain no doubt but that a mandamus was the proper remedy to compel the transfer of the cause. In judgment oí law, the cause Avas still pending in the Orphan’s Court, its decision being a nullity. Let the judgment be reversed, and the cause remanded.