as to a juror it would be ground of challenge for cause, not for 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. 4 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

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 7. Wiswell. 61 Wis 498; Hibbard v. Odell, 16 Wis. 633. Compare Eggleston . 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 7. Stark, 34 La. An. 628. 6. Slaven . Wheeler, 58 Tex. 23. See also Cowen's New York Justices, p. 528; Carrington v. Andrews, 12 Abb. Pr. (N. Y.) 348; Chambers v. 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, 81 Ga. 360, 367.

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

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

217.

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 preju diced. 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, 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, 81 Ga. 360;
Georgia Code, § 205.

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

2. Bryan v. Austin, 10 La. An. 612; Taylor v. 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 v. 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

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 v. Light, 58 Tex. 141; S. C., 44 Am. Rep. 604. See generally McMillan v. Nichols, 62 Ga. 36; Carrington v. 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.

and other appeal papers, and the certiorari will be quashed.1 Where the former client has dropped out of the case, the judge's incompetency ceases.? A judge is inhibited from sitting in a criminal case wherein he has been of counsel for the State or the accused.3 Power of disqualified judges to make formal orders has already been mentioned.4

11. Practice, Evidence, etc.-The burden of showing incapacity. falls on the party asserting it. A rehearing shall not be prevented because most of the court are new members who did not sit at first hearing.6

A judge who has been counsel in the case may recuse himself of his own motion. The judge who is satisfied that he is legally disqualified, ought not to wait until the parties object to him, but should refuse to hear the case by an entry in the docket that he does not sit in the case. This is the constant usage. But it has been said that "a judge ought not to withdraw upon a mere suggestion, unless the cause of recusation is true in fact and sufficient in law; because the office of judge is one necessary for the administration of justice and from which a judge should not be permitted to withdraw without sufficient grounds."10 A judge's decision that he is incompetent through interest is not reversible unless there is manifest error.11

As it often happens that the judge knows nothing of the dis

1. People v. Suffolk Common Pleas, 18 Wend. (N. Y.) 550. See also Nugent v. Stark, 34 La. An. 628.

2. Bryan v. Austin, 10 La. An. 612.

3. Wilks v. State, 27 Tex. App.. 385; Tex. Const., art. 5, 11; Tex. Code Crim. Proc., art. 569; Thompson v. State, 9 Tex. App. 649; Cock v. State, 8 Tex. App. 659; Railroad v. Ryan, 44 Tex. 426. Compare Thomas v. State, 5 How. (Miss.) 30.

4. A judge who was counsel in a criminal case may receive indictment therein, and, it seems, make orders preliminary to trial. Cock v. State, 8 Tex. App. 659.

5. Simon v. Haifleigh, 21 La. An. 607. See PREJUDICE, supra.

6. Lines v. Darden, 6 Fla. 37. 7. See note 2, p. 53.

8. Hibbard v. Odell, 16 Wis. 633; Moses v. Julian, 45 N. H. 52, citing Edwards v. Russell, 21 Wend. (N. Y.) 63; Paddock v. Wells, 2 Barb. (N. Y.) 331: North River Steamboat Co. v. Livingston, 3 Cow. (N. Y.) 713. 724; Ten Eick v. Simpson, 11 Paige (N. Y.) 177; Great Charte v. Kensington, 2 Stra. (Eng.) 1173; Bouv. Dict., tit. Judge; Pothier Pro. Civ., ch. 2,

95

Nonsuit. A justice finding he has proceeded in an action wherein one of the parties is his relative, by consanguinity or affinity, must suspend further proceedings; he cannot render judgment of nonsuit. If he does, the judgment will be reversed. Edwards v. Russell, 21 Wend. (N. Y.) 63.

9. Regina v. Justices, 14 Eng. L. & Eq 93.

10. Moses v. Julian, 45 N. H. 52;_Pothier Pro. Civ., ch. 2, § 5; Fry v. Bennett, 28 N. Y. 324.

And when a judge was related, but not within the prohibited degrees, it was held that he could not recuse himself and appoint another in his stead. State v. Judge (La.), 6 So. Rep. 22 (1889).

Judge not disqualified cannot recuse himself. Reed v. State, 11 Tex. App. 587.

Proof of Competency. The judge of probate is a competent witness to prove his want of interest on appeal from him on the ground of his being interested, provided his interest is not such as disqualifies him as a witness generally. Sigourney v. Sibley, 21 Pick. (Mass.)

ΙΟΙ.

11. Childress v. Grim, 57 Tex. 56. See also Slaven v. Wheeler, 58 Tex. 23.

qualification, it is the 'right and duty of the party desiring to object, to petition the court requesting that the judge shall not sit.1

JUDGMENTS (See also DECREE; DEFAULT; ESTOPPEL; EXECUTION; FINAL JUDGMENTS; HABEAS CORPUS; JUDGMENT NOTES; JURISDICTION; LIS PENDENS; MERGER; PARTIES TO ACTIONS; RECORD; RES JUDICATA; SCIRE FACIAS.)

I. DEFINITION.—A judgment is the decision or sentence of the law pronounced by a court or other competent tribunal in a proceeding therein.1 The reasons given by the court to sustain its