though of a debt fully paid.' Interest as debtor,2 or as distributee,3 disqualifies. And it has been held that a creditor by virtue of being executor of another estate, is disqualified.4

A joint owner with estate of a decedent, of a tract of land, is not disqualified from appointing administrator of the estate, approving accounts, or making other orders, not referring to the tract.5

8. Disqualification for Prejudice. In the absence of statutory provisions prejudice not based on property interest in the judge is not assignable as a legal cause

officer appointed by government or selected by the people to try the judicial causes in his court, and accordingly, it was said in old times, favor will not be presumed in him. The remedy for errors committed through partiality or prejudice, was appeal, certiorari, or writ of error.1 But the judge might retire of his own will. In an elaborate and valuable opinion on the general subject of disqualification, the New Hampshire court said that bias was a ground of objection, but the authorities cited were in the civil law.3

Legislation, however, authorizing change of venue, in case of judge's prejudice, appears to be quite common.+

A judge may sit as one of the members of a higher court in review of his decision in a lower tribunal. In construing a statute disqualifying judges for prejudice, the extensive meaning of the word "prejudice," makes it necessary to place limitations on its statutory significance, in order to avoid absurd consequences.6 The prejudice must be against a party to the cause; and an affidavit not setting up this fact specifically, but merely averring a "prejudice," is insufficient."

The authority of the legislature under the constitutional division of government into three departments, to provide that ex parte affidavits of prejudice shall prove conclusively that fact, has been denied in Florida.8 But in several States, such legislation

Presiding in former trial of the cause is not a disqualification. Fry v. Bennett, 28 N. Y. 324. Although on such trial he made erroneous ruling. People 7. Williams, 24 Cal. 31.

The judgment of a justice will not be reversed because he had previously expressed an opinion in the cause. McDowell v. Van Deusen, 12 Johns. (N. Y.) 356.

That a judge has given opinion while at the bar does not disqualify in the absence of statutes. Bank of North America v. Fitzsimons, 2 Binn. (Pa.) 454See comment on New Jersey act. Pearson v. Hopkins, Pen. (N. J.) 195.

1. See authorities cited in preceding

note.

2. See the argument of the court in the opinion in Williams . Robinson, 6 Cush. (Mass.) 333-335.

3. Per BELL, C. J., in Moses v'. Julian, 45 N. H. 52 (84 Am. Dec. II4). He instances as good ground of objection the judge or some near relative having received important benefits or donations; the existence of the relation of master and servant between the judge and a party; the existence of protection and subjection, as that of guardian and ward; the fact that "the bailiff who is the judge is of the robes of the

plaintiff." And says: "But a creditor, lessee or debtor may be judge in the case of his debtor, except in cases where the amount of the party's property involved in the suit is so great that his ability to meet his engagements with the judge may depend upon the success of his suit." Citing Pothier v. Oet, and citing 12 H. 4, 13; Brooke Abr. (London 1586), cause a remover, pl. 13.

4. See CHANGE OF VENUE, vol. 3, P. 93.

5. Edwards 7. His Wife, 9 La. An. 321 Pierce . Delamater, 1 N. Y. 17; see also Turnbull v. O'Hara, 4 Yeates (Pa.) 446: Peck 7. Essex Freeholders, Spenc. (N. J.) 457; on appeal, 1 Zab. (N. J.) 658; Nowell v. Davies, 5 Barn. & Ad. 368; James v. Griffin, in which last two cases the judges concurred in a reversal of their own opinions.

6. Conn v. Chadwick, 17 Fla., at p. 428; Gore . Brazier, 3 Mass. 523, 539; Com. v. Kimball, 24 Pick. (Mass.) 366, 370; Potter's Dwarris on Stat. 202, note 19, 215.

7. Conn. Chadwick, 17 Fla. 428. And see Bent 7. Lewis, 15 Mo. App. 40. 8. Conn. Chadwick, 17 Fla. 428; Trustees of Internal etc. Fund v. Bailey, 10 Fla. 238.

appears to have passed without challenge.

The disinclination of judges to sit, where personal objection is raised against them, may perhaps explain the lack of notice of this point.

9. Disqualification for Relationship. At the older common law, personal interest formed the only ground for challenging a judge.2 It was not held objectionable for a judge to sit in a cause to which a relative was a party.3 Judges were apt voluntarily to retire by reason of consanguinity to parties, and the judgments of inferior magistrates were closely scrutinized where the relationship was near. 5 But it has been observed that the public sense has become finer in this respect than formerly; and now it is perhaps the universal rule that close consanguinity or affinity disqualifies.6

The particular number of degrees of relationship included in the statutory prohibition varies somewhat in different States, and recourse will be had to the local statutes. The disqualification of a judge has often been said to be that of a juror. The latter is incompetent if within the ninth civil law degree.7

term.

The disability within the prohibited degree depends wholly upon the statute, and consequently cannot be extended beyond its Thus statutes disqualifying because of affinity are to be restricted, in interpretation, to subsisting affinity at the time of the challenge. The affinity must extend to the judge.himself; if only to his relations, it is too remote.9 It must be so near that

It is not competent for the legislative power to declare what shall be conclusive evidence of a fact; as that the assertion of a volunteer soldier that he is eighteen shall be conclusive. Wantlan v. White, 19 Ind. 470. Or that a tax deed shall be conclusive. Corbin v. Hill, 21 Iowa 70. The supreme court of Alabama, in Ex parte Hickey, 52 Ala. 228, held that it was not the exercise of judicial power for the legislature to declare what causes shall entitle a party to change to another court, provided it left the ascertainment of such cause to judicial determination.

1. McGoon v. Little, 7 Ill. 42; Berner v. Frazier, 8 Iowa 77; Runals 7. Brown, 11 Wis. 185.

In Minnesota and in Nevada, in a venue case, it was held that the affidavit ought to state circumstances. Ex parte Curtis, 3 Minn. 274; Table Mtn. Co. v. Waller's Defeat Mining Co., 4 Nev. 218. And in State v. Hale, 65 Iowa 575, defendant's mere belief of judge's prejudice was held not to overcome the denial implied in refusal of change.

Under the California statute the court is to be satisfied that defendant's affidavit is true. People v. Mahoney,

as to a juror it would be ground of challenge for cause, not for favor.1 It has been intimated in Georgia that equal relationship to both parties does not disqualify.2 The husband and wife are one, in law. Relationship by affinity exists between the husband and one who is connected by a still subsisting marriage with blood relatives of the wife, and in the same degree in which the wife is related by consanguinity.3

10. Disqualification as Former Counsel.-At common law, it was not a legal objection that a judge had been of counsel in the case. Many statutes have been passed disqualifying judges who have been, or are, so connected with a case. A judge who was counsel may recuse himself of his own motion.5

The prohibition, in constitution or statute, includes matters which were not pending in court at the time the services were rendered. Consultation of attorney, to procure his advice in a matter afterwards developing into a lawsuit, disqualifies him.6 Gratuitous services disqualify. If the services were by a partner and gratuitous, and the attorney afterwards judge had no knowledge of the matter, nevertheless he is incompetent.8

The purchaser at a chancery sale becomes a quasi party.9 Counsel who conducted proceedings until after confirmation of the sale, and who subsequently became judge, was held incompetent to render judgment against the purchaser or his security for the purchase money.10

Incompetency as former counsel was held in one case not to

note; Winchester v. Hinsdale, 12 Conn. 88; Matter of Dodge etc. Mfg. Co., 77 N. Y. 101; Higbe. Leonard, Den. (N. Y.) 186; Deupree v. Deupree, 45 Ga. 414.

1. Waterhouse で。 Martin, Peck (Tenn.) 374; Cooper's Justinian, 422,

note

2. Beall . Sinquefield, 73 Ga. 48. 3. New York etc. R. Co. v. Schuyler, 28 How. Pr. (N. Y.) 187; Bayard v. McLane, 3 Harr. (Del.) 139: Elderkin v. Wiswell, 61 Wis 498; Hibbard v. Odell, 16 Wis. 633. Compare Eggleston v. Smiley, 17 Johns. (N. Y.) 133. Community Property.-In a suit by a husband for community property, the wife has such an interest that, in a case where she was sister in law to the judge, the latter was incompetent in such suit by the husband. Jordan v. Moore, 65 Tex. 363.

4. Authorities in note 1, p. 42. 5. Nugent . Stark. 34 La. An. 628. 6. Slaven v. Wheeler, 58 Tex. 23. See also Cowen's New York Justices, p. 528; Carrington . Andrews, 12 Abb. Pr (N. Y.) 348; Chambers . Hodges, 23 Tex. 104.

And where the judge had been consulted while at the bar in reference to compromising, and had advised as to that, but had refused to meddle with the case because other counsel had been employed, he was held disqualified, although the judge testified that he did not consider that he had been consulted in the case. Curtis v. Wilcox (Mich.), 41 N. W. Rep. 863.

Power to Prescribe Notice.-In Wisconsin, a judge who was of counsel is qualified to prescribe notice to parties of proceedings for disposition of estate. Schaeffner's Appeal, 41 Wis. 260.

Licence to sell real estate of decedent may, in that State, be granted by such a judge. Morgan v. Hammett, 23 Wis. 30.

7. East Rome Town Co v. Cothran, 81 Ga. 368: Slaven 7. Wheeler, 58 Tex. 23; Darling v. Pierce, 15 Hun (N. Y.) 543.

8. East Rome Town Co. v. Cothran, S1 Ga. 360, 367.

9. Deaderick v. Watkins, 8 Humph. (Tenn.) 520.

10. Reams . Kearns, 5 Cold. (Tenn.) 217. See also Darling . Pierce, 15

have been created by a prohibition of anyone who is a "party or interested."1

It has elsewhere been indicated that in many States legislation has authorized change of venue, etc., where the judge is prejudiced. Subject to such provision, wherever the same may exist, we may say that disqualification of those who have been of counsel in a case applies only to counsel in the very matter before the court. While the meaning of the "cause,' or similar term, has been construed with much strictness,3 it has not been confined absolutely to the very controversy and parties on the docket. Thus in divorce it was held that if the judge had been counsel for either party in former divorce proceedings between the two, he could not sit. A general retainer from one of the parties is ground for change of venue. It is at least within the spirit of prohibition of counsel "in the action or proceeding."5 A magistrate puts himself in position of counsel if he draw up the affidavit

Hun (N. Y.) 543; East Rome etc.
Town Co. v. Cothran, S1 Ga. 360;
Georgia Code, § 205.

1. Lloyd v. Smith, T. U. P. Charlt. (Ga.) 143.

2. Bryan v. Austin, 10 La. An. 612; Taylor. Williams, 26 Tex. 583; McFaddin v. Preston, 54 Tex. 403. See CHANGE OF VENUE.

3. Suits Involving Same Title.-Having been of counsel in other suits involving the same title to real estate does not disqualify. Taylor v. Williams, 26 Tex. 583.

Divorce. In Texas, it was held that a divorce suit instituted by the husband and a similar suit by the wife were the same "case" within the meaning of this rule, so that a judgment in one by a judge who had been attorney in the other was not conclusive. Newcome . Light, 58 Tex. 141.

On the other hand, in California, counsel in certain proceedings raising the issue as to the fact of alleged intercourse was held to be competent as judge when the wife, who was not a party to the first action, applied for divorce, although the client of the judge when counsel was the husband defendant in the case before such judge. Cleghorn v. Cleghorn, 66 Cal. 309. See generally Stewart v. Mix, 30 La. An. (part 2) 1039; People v. Weiant, 30 Hun (N. Y.) 475.

Partition. And even the Texas ruling is to be confined to matters fairly in controversy. So that an attorney in an ancient partition was held not to be disqualified as judge where a part of the land, the interests of which were not

determined by the old partition, came itself before his court for partition; even though he had filed, as counsel, a protest at one time in the land office to protect his client's rights in that undivided land. Glasscock v. Hughes, 55 Tex. 461, 467, 468.

Having, as counsel, given opinion on title to the lands in controversy, it not being shown that the opinion was given in the case before the court, is not a disqualification. Houston etc. R. Co. v. Ryan, 44 Tex. 426.

So as to having acted as counsel in other cases as to the same lands. Taylor v. Williams, 26 Tex. 583. Or growing out of the same transaction and involving the same questions. King v. Sapp, 66 Tex. 519.

Assumpsit. In a Georgia case it was held that the fact that the judge in a suit on a promissory note had himself, when at the bar, brought suit as counsel on that note did not disqualify him, he having discontinued the action and the present one being brought by other counsel and in another court. (But in that case, as the court point out, there was a waiver of the disqualification, which is allowable, in Georgia.) McMillan v. Nichols, 62 Ga. 36.

4. Newcome 7. Light, 58 Tex. 141; s. C., 44 Am. Rep. 604. See generally McMillan 7. Nichols, 62 Ga. 36; Carrington 7. Andrews, 12 Abb. Pr. (N. Y.) 348.

5. Kern Valley Water Co. v. McCord, 70 Cal. 646.

Interest in the question but not in tne cause does not disqualify. McFaddin 7. Preston, 54 Tex. 403.