4

[* 408]

* When it is once made to appear that a court has jurisdiction both of the subject-matter and of the parties, the [* 409] judgment which it pronounces must be held conclusive and binding upon the parties thereto and their privies, notwithstanding the court may have proceeded irregularly, or erred in its application of the law to the case before it. It is a general rule that irregularities in the course of judicial proceedings do not render them void. An irregularity may be defined as the failure to observe that particular course of proceeding which, conformably with the practice of the court, ought to have been observed in the case; and if a party claims to be aggrieved by this, he must apply

ceeding. Formerly the rule was to intend every thing against a stinted jurisdic tion that is not the rule now; and nothing is to be intended but what is fair and reasonable, and it is reasonable to intend that magistrates will do what is right." Richardson, J., in the same case, states the real point very clearly: "Whether the vessel in question were a boat or no was a fact on which the magistrate was to decide; and the fallacy lies in assuming that the fact which the magistrate has to decide is that which constitutes his jurisdiction. If a fact decided as this has been might be questioned in a civil suit, the magistrate would never be safe in his jurisdiction. Suppose the case for a conviction under the game laws of having partridges in possession: could the magistrate, in an action of trespass, be called on to show that the bird in question was really a partridge? and yet it might as well be urged, in that case, that the magistrate had no jurisdiction unless the bird were a partridge, as it may be urged in the present case that he has none unless the machine be a boat. So in the case of a conviction for keeping dogs for the destruction of game without being duly qualified to do so: after the conviction had found that the offender kept a dog of that description, could he, in a civil action, be allowed to dispute the truth of the conviction? In a question like the present we are not to look at the inconvenience, but at the law; but surely if the magistrate acts bona fide, and comes to his conclusion as to matters of fact according to the best of his judgment, it would be highly unjust if he were to have to defend himself in a civil action; and the more so, as he might have been compelled by a mandamus to proceed on the investigation. Upon the general principle, therefore, that where the magistrate has jurisdiction his conviction is conclusive evidence of the facts stated in it, I think this rule must be discharged." See also Mather v. Hodd, 8 Johns. 44; Mackaboy v. Commonwealth, 2 Virg. Cas. 268; Ex parte Kellogg, 6 Vt. 509; State v. Scott, 1 Bailey, 294; Facey v. Fuller, 13 Mich. 527; Wall v. Trumbull, 16 Mich. 228; Sheldon v. Wright, 5 N. Y. 512; Freeman on Judgments, § 523, and cases cited. Ex parte Kellogg, 6 Vt. 509; Edgerton v. Hart, 8 Vt. 208; Carter v. Walker, 2 Ohio, N. s. 339; Freeman on Judgments, § 135.

2 44

The doing or not doing that in the conduct of a suit at law, which, conformably to the practice of the court, ought or ought not to be done." Bouv. Law Dic. See Dick v. McLaurin, 63 N. C. 185.

to the court in which the suit is pending to set aside the proceedings, or to give him such other redress as he thinks himself entitled to; or he must take steps to have the judgment reversed by removing the case for review to an appellate court, if any such there be. Wherever the question of the validity of the proceedings arises in any collateral suit, he will be held bound by them to the same extent as if in all respects the court had proceeded according to law. An irregularity cannot be taken advantage of collaterally; that is to say, in any other suit than that in which the irregularity occurs, or on appeal or process in error therefrom. And even in the same proceeding an irregularity may be waived, and will commonly be held to be waived if the party entitled to complain of it shall take any subsequent step in the case inconsistent with an intent on his part to take advantage of it.1

We have thus briefly indicated the cases in which judicial action may be treated as void because not in accordance with the

* law of the land. The design of the present work does [* 410] not permit an enlarged discussion of the topics which suggest themselves in this connection, and which, however interesting and important, do not specially pertain to the subject of constitutional law.

But a party in any case has a right to demand that the judg ment of the court be given upon his suit, and he cannot be bound by a delegated exercise of judicial power, whether the delegation be by the courts or by legislative act devolving judicial duties on ministerial officers.2 Proceedings in any such case would be void; but they must be carefully distinguished from those cases in which the court has itself acted, though irregularly. Even the denial of

Robinson v. West, 1 Sandf. 19; Malone v. Clark, 2 Hill, 657; Wood v. Randall, 5 Hill, 285; Baker v. Kerr, 13 Iowa, 384; Loomis v. Wadhams, 8 Gray, 557; Warren v. Glynn, 37 N. H. 340. A strong instance of waiver is where, on appeal from a court having no jurisdiction of the subject-matter to a court having general jurisdiction, the parties going to trial without objection are held bound by the judgment. Randolph Co. v. Ralls, 18 Ill. 29; Wells v. Scott, 4 Mich. 347; Tower v. Lamb, 6 Mich. 362. In Hoffman v. Locke, 19 Penn. St. 57, objection was taken on constitutional grounds to a statute which allowed judgment to be entered up for the plaintiff in certain cases, if the defendant failed to make and file an affidavit of merits; but the court sustained it.

2 Hall v. Marks, 34 Ill. 363; Chandler v. Nash, 5 Mich. 409. For the distinction between judicial and ministerial acts, see Flournoy v. Jeffersonville, 17

Ind. 173.

jury trial, in cases where that privilege is reserved by the Constitution, does not render the proceedings void, but only makes them liable to be reversed for the error.1

There is also a maxim of law regarding judicial action which may have an important bearing upon the constitutional validity of judgments in some cases. No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule, that Lord Coke has laid it down that "even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself; for jura naturæ sunt immutabilia, and they are leges legum."

1 The several State constitutions preserve the right of trial by jury, with permission in some for the parties to waive the right in civil cases. Those cases which before the constitution were not triable by jury need not be made so now. Dane Co. v. Dunning, 20 Wis. 210; Crandall v. James, 6 R. I. 104; Lake Erie, &c., R. R. Co. v. Heath, 9 Ind. 558; Backus v. Lebanon, 11 N. H. 19; Opinions of Judges, 41 N. H. 551; Tabor v. Cook, 15 Mich. 322; Stilwell v. Kellogg, 14 Wis. 461; Mead v. Walker, 17 Wis. 189; Byers v. Commonwealth, 42 Penn. St. 89; State v. Peterson, 41 Vt. 504; Buffalo, &c., R.R. Co. t. Burket, 26 Texas, 588; Sands v. Kimbark, 27 N. Y. 147; Howell v. Fry, 19 Ohio, N. s. 556; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Guile v. Brown, 38 Conn. 243. And where a new tribunal is created without commonlaw powers, jury trial need not be given. Rhines v. Clark, 51 Penn. St. 96; Haines v. Levin, ib. 412. But the legislature cannot deprive a party of a common-law right, e. g., a right of navigation, and compel him to abide the estimate of commissioners upon his damages. Haines v. Levin, 51 Penn. St. 412. Where the constitution gives the right, it cannot be made by statute to depend upon any condition. Greene v. Briggs, 1 Curt. C. C. 311; Lincoln v. Smith, 27 Vt. 328; Norristown, &c., Co. v. Burket, 26 Ind. 53. Though it has been held that, if a trial is given in one court without a jury, with a right to appeal and to have a trial by jury in the appellate court, that is sufficient. Beers v. Beers, 4 Conn. 535; Stewart v. Mayor, &c., 7 Md. 500; Morford v. Barnes, 8 Yerg. 444; Jones v. Robbins, 8 Gray, 329. But we concur in the views of Judge Blatchford, declared by him in the recent unreported case of Matter of Dana, that an unconditional guaranty of jury trial cannot be satisfied, at least in criminal cases, with the mere privilege to have a trial by jury on condition of first submitting to a trial without it, and then, in case of conviction, taking an appeal. The guaranty clearly intends a trial by jury in the first instance.

In Randall v. Kehlor, 60 Me. 37, objection was taken that the requirement of the payment of a jury fee was in violation of the right of jury trial, but the court held otherwise.

2 Co. Lit. § 212. See Day v. Savadge, Hobart, 85. We should not venture to predict, however, that even in a case of this kind, if one could be imagined to exist, the courts would declare the act of Parliament void; though they would

*This maxim applies in all cases where judicial functions [*411] are to be exercised, and excludes all who are interested, however remotely, from taking part in their exercise. It is not left to the discretion of a judge, or to his sense of decency, to decide whether he shall act or not; all his powers are subject to this absolute limitation; and when his own rights are in question, he has no authority to determine the cause. Nor is it essential that the judge be a party named in the record; if the suit is brought or defended in his interest, or if he is a corporator in a corporation which is a party, or which will be benefited or damnified by the judgment, he is equally excluded as if he were the party named.2 Accordingly, where the Lord Chancellor, who was a shareholder in a company in whose favor the Vice-Chancellor had rendered a decree, affirmed this decree, the House of Lords reversed the decree on this ground, Lord Campbell observing: “It is of the last importance that the maxim that no man is to be a judge in his own cause' should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest." "We have again and again set aside proceedings in inferior tribunals, because an individual who had an interest in a cause took a part in the decision. And it will have a most salutory effect on these tribunals, when it is known that this high court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and should be set aside. This will be a lesson to all inferior tribunals to take care, not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of laboring under such an influence." 8

It is matter of some interest to know whether the legislatures of the American States can set aside this maxim of the common

never find such an intent in the statute, if any other could possibly be made consistent with the words.

Washington Insurance Co. v. Price, Hopk. Ch. 2; Sigourney v. Sibley, 21 Pick. 191; Freeman on Judgments, § 144.

2

Washington Insurance Co. v. Price, Hopk. Ch. 2; Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases, 759; Pearce v. Atwood, 13 Mass. 340; Peck v. Freeholders of Essex, Spencer, 457; Commonwealth v. McLane, 4 Gray, 427; Dively v. Cedar Rapids, 21 Iowa, 565.

3 Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases,

759.

law, and by express enactment permit one to act judicially [* 412] when * interested in the controversy. The maxim itself, it is said, in some cases, does not apply where, from necessity, the judge must proceed in the case, there being no other tribunal authorized to act; but we prefer the opinion of Chancellor Sandford of New York, that in such a case it belongs to the power which created such a court to provide another in which this judge may be a party; and whether another tribunal is established or not, he at least is not intrusted with authority to determine his own rights, or his own wrongs.2

It has been held that where the interest was that of corporator in a municipal corporation, the legislature might provide that it should constitute no disqualification where the corporation was a party. But the ground of this ruling appears to be, that the interest is so remote, trifling, and insignificant, that it may fairly be supposed to be incapable of affecting the judgment or of influencing the conduct of an individual. And where penalties are imposed, to be recovered only in a municipal court, the judges or jurors in which would be interested as corporators in the recovery, the law providing for such recovery must be regarded as precluding the objection of interest. And it is very common, in a certain class of cases, for the law to provide that certain township and county officers shall audit their own accounts for services rendered the public; but in such case there is no adversary party, unless the State, which passes the law, or the municipalities which are its component parts and subject to its control, can be regarded as such.

But except in cases resting upon such reasons, we do not see how the legislature can have any power to abolish a maxim which is among the fundamentals of judicial authority. The people, indeed, when framing their constitution, may establish so great an

1 Ranger v. Great Western R., 5 House of Lords Cases, 88; Stewart v. Mechanics and Farmers Bank, 19 Johns. 501.

2 Washington Insurance Co. v. Price, Hopk. Ch. 2. This subject was considered in Hall v. Thayer, 105 Mass. 221, and an appointment by a judge of probate of his wife's brother as administrator of an estate of which her father was a principal creditor was held void. And see People v. Gies, 25 Mich. 83. 3 Commonwealth v. Reed, 1 Gray, 475.

• Commonwealth v. Ryan, 5 Mass. 90; Hill v. Wells, 6 Pick. 104; Commonwealth v. Emery, 11 Cush. 406.