Former interest as stockholder is not a disqualification. Where the judge has no interest of no interest of his own, but only as arising out of relationship to others, or as having been of counsel, then the term "party," in prohibition, shall perhaps be construed with some strictness. In some of the stockholders' cases, it has been held that disqualification through kinship is where the relative is a party; and that as a stockholder cannot be said to be a party to the suit of the corporation, in whose affairs his interest is somewhat remote, the judge is competent, notwithstanding relationship to a stockholder. Some have taken a different view. At common law, consanguinity was not a bar; and statutes disqualifying relatives of parties do not apply. But in suits going to the life of the corporation the stockholder is probably a "party" within the rule under consideration.

(d) What Interest Disqualifies.-In the absense of statute, any interest is enough to disqualify. And as has been indicated, the legislature would no doubt be unable to empower a judge to act in a case in which he had a direct, immediate, substantial interest.

1. Johnson v. Marietta etc. R. Co., 70 Ga. 712; Palmer v. Lawrence, 5 N. Y. 389.

That he had been director at the time services of attorney were rendered does not prevent his presiding on trial før compensation for those services. Johnson v. North Georgia R. Co., 70 Ga. 712.

Honorary membership in a corporation as a bar association does not prevent presiding in a prosecution instituted by the representatives of the corporation. Bowman's Case, 67 Mo. 146. 2. Place . Butternups etc. Mfg. Co., 28 Barb. (N. Y.) 503.

7.

3. Searsburgh Turnpike Co. v. Cutler, 6 Vt. 315: Matter of Dodge & Stevenson Mfg. Co., 77 N. Y. 101; reversing s. c., 14 Hun (N. Y.) 440; Place . Butternuts W. & C. Mfg. Co., 26 How. Pr. (N. Y.) 601 (opinion unreported), reversing same case, 28 Barb. (N. Y.) 503, Bank of Lansingburgh . McKie, 7 How. Pr. (N. Y.) 360, 369. Compare subs. 7 hereof?

4. Trustees of Internal etc. Fund v. Bailey, 10 Fla. 230; Baldwin . McArthur, 17 Barb. (N. Y.) 414, 422; Hesketh v. Braddock, 3 Burr. 1847, LORD MANSFIELD, respecting interest of wit

ness or juror. And see Pearce . Atwood, 13 Mass. 324, 341 (and Massachusetts statute there cited removing the interest of inhabitants in penalties, "with a view to avoid this difficulty"); Taylor v. Williams, 26 Tex. 583; S Coke 118; Boyer v. Potts, 14 S. & R. (Pa.) 157.

Power of attorney to receive money for heirs, and to take out percentage. makes a probate judge interested and disqualified. Estate of White, 37 Cal.

190.

In Moon v. Stevens, 53 Mich. 144, it was held that a justice to whom a claim had been sent for collection with instructions that it was not to be sued until he had notified defendant that it would be sued if not paid, was not an interested party, even though he was to be compensated whether suit was brought or not. But where a note was sent to a justice for collection, and was made payable to the justice or order for collection, it was held that an endorsement for collection was as effectual as any other to pass the legal title; that the justice was therefore not merely an agent, but an agent holding actual title, and therefore disqualified through interest. West v. Wheeler, 49 Mich. 505.

Unserved Party.-A judge who is a codefendant of record, but who is not served, must grant motion for change of venue, though made by the other defendant. Dismissal subsequently of the suit as respects the judge will not cure the error. Hawpe v. Smith, 22 Tex. 410.

Interest, to disqualify, must be direct and immediate.1 Where there is no necessary interest, there is not disqualification.2 If the judge himself is interested, it is not requisite, to disqualify him, that he is a party. It is enough "if he is in any wise interested in the subject matter"3—interest being understood in the sense indicated.4

(e) What Interest Does Not Disqualify.-Where there is no necessary interest, there is no disqualification.5 Relationship in equal degree to both parties, it has been intimated, does not disqualify. It is not a disqualification that a judge has an interest in the question but not in the cause; or has only a speculative possibility.8

5. Void and Voidable Acts.-At common law, the disqualified judge's actions were regarded somewhat as an irregularity, the proper mode for its correction being appeal or writ of error.9 But

the legislation of most States has rendered absolutely void the orders, judgments, etc., of disqualified judges.

Ministerial and formal acts are neither void nor voidable, but are sustained, though by a judge disqualified for other purposes.1 Where the act is really that of the litigant, as where a complainant, under statutory permission so to do, dismisses his bill, the judge's order to that effect is valid.2 The Missouri court appears to have

49

considered their statute to prohibit even formal orders.1 The principle allowing action by interested judge in formal matters has also been recognized where the incompetency grows out of relationship or affinity to parties.2

6. Removal of Disqualification—(a) Generally.—Where one would be ineligible to office on account of a disqualification, he must get rid of the disqualification before he is appointed or elected; but where the prohibition extends only to the exercise or enjoyment of another office, it is sufficient that the person appointed be qualified before he is sworn.3

Incompetency by reason of relationship cannot be avoided by the judge's dismissing the suit as to those to whom he is related, adjudicating the rights of the others; but where liability of defendant is several as well as joint, it was held that the justice can strike out the name of the party in whom he is interested.5

(b) Consent of Parties—The statutes of a number of States contain consent clauses, allowing parties to waive objection to judge based on his interest, relationship, former connection with case,

1. In Missouri, under the doctrine of stare decisis, a cast-iron rule has apparently been adopted that the judge announcing his disqualification thereby abdicates his office as to that case, so that his disqualification extends through every order or ruling. Held, accordingly, that such judge could not execute mandate directed to his court from superior judicial authority. Dawson v. Dawson, 29 Mo. App. 521; Lacy v. Barrett, 75 Mo. 469. See also State v. Hayes, 88 Mo. 344.

2. Officer of Court.-Thus it was held that a vice chancellor might appoint his son a committee of a lunatic, and might hear and decide upon an application of such committee in behalf of the lunatic or his estate; the committee being only an officer of the court and having no personal interest in the questions to be decided. In the Matter of Hopper, 5 Paige Ch. (N. Y.) 489.

In Underhill v. Dennis, 9 Paige (N. Y.) 202, it was held that a surrogate may appoint a relative as guardian. But the chancellor, WALWORTH, said that it was a case in which the sur

rogate might well have declined acting.

In Hall v. Thayer, 105 Mass. 219, 224, the court held that a judge is disqualified to appoint his brother in law administrator, for the reason that many questions demanding judicial action arise; amount of security, and who are sufficient as sureties; what notice is required; what proceedings in case of

fraud; matters of account, etc. And in Georgia, it was said that there was good excuse for a judge refusing to appoint a guardian where he himself was interested as executor, and there was another judge to whom recourse might be made. Knight v. Hardeman, 17 Ga. 253..

Where the disability refers to the holding and not to the election, it is sufficient if the disability be removed before the term begins. Cooley Const. Lim. *620, citing cases.

3. Com. v. Pyle, 18 Pa. St. 519; State v. Cheevers, 32 La. An. 941, 943; Searcy v. Grow, 15 Cal. 118, 120.

Residence. See People v. Goodwin, 22 Mich. 496.

Practicing Law.-See State v. Marks, 30 La. An. 97.

4. Gains v. Barr, 60 Tex. 676. For an order dismissing a suit, made by a judge disqualified from sitting in the cause is a nullity. Garrett v. Gaines, 6 Tex. 435.

5. Pettigrew v. Washington Co., 43 Ark. 42; citing Freeman on Judgments, § 136; Kitchens v. Hutchins, 44 Ga. 620, which are merely on points deemed analogous.

Injunction in an equity cause, granted by a judge disqualified by affinity to one of several defendants, will be dissolved on application of any of the defendants as to the defendant so making the application, though the interests and claims of the defendants are separate and distinct, but embraced in one action.

etc. This, however, is not in accordance with the law as generally prevailing in this country.2 Unless such a statute requires formal waiver of objection by writing entered of record, that is not requisite. Where the consent rule exists, objection, if made, must be made before issue joined,4 or at least at the trial.5 But in Iowa, the court said that the judge ought to refuse to sit by consent until the consent is given.6 The inability of a minor to consent is a personal privilege in his favor and cannot be set up against him by another party."

7. Disqualification in Decedents' Estates. A creditor, as such, without more, is not a party to probate of will;8 and a judge related to him is not disqualified from granting letters to a third person.9

The act of passing accounts is judicial, even where there is no objection to them.10 The fact, then, that the surrogate had acted as counsel for the executor in the matters brought within the account, disqualifies him.11 So where the judge is put down in the account as creditor,12