expression of a well known rule of universal justice everywhere recognized, which the people of this State were anxious to secure as far as possible from all doubts, or possibility of legislative interference. It is one of the great principles of the common law, for which the people of England had struggled for ages, and which they ultimately succeeded in establishing against the strenuous efforts of a tyrannical government. We can have no higher authority than this for denouncing as illegal everything which interferes with the entire impartiality of every legal tribunal.

I. No man ought to be judge in his own cause, is a maxim aimed at the most dangerous source of partiality in a judge. Peck v. Freeholders, &c., 1 N. J. 656; Hawley v. Baldwin, 19 Conn. 585; Russell v. Perry, 14 N. H. 132; Allen v. Bruce, 12 N. H. 418; Dig. I, 1, de jurisdictione; 1 Broke Ab. 177. Conusans 27; Broom's Maxims 84; Co. Litt. 141, a; Litt. sec. 212; Derby's case, 12 Rep. 114; Dig. L. 5, T. 1. 17. It is not necessary that a judge should be a party to the cause to create this disqualification. If he is interested in a suit brought in another's name, he is equally disqualified. Foot v. Morgan, 1 Hill 654; Wright v. Crump, 2 Ld. Ray 766.

Generally an interest in the question, as distinct from a pecuniary interest in the result of the cause, is no valid ground of recusation, Northampton v. Smith, 11 Met. 390; Poth. Pro. Civ. ch. 2, sec. 5; People v. Edmonds, 15 Barb. 529. To this, however, there is an exception; where the judge has a law suit pending or impending with another person, which rests upon a like state of facts, or upon the same points of law, as that pending before him; this is a valid disqualification. Davis v. Allen, 11 Pick. 466; 'Ersk. Inst. Tit. 2, 26; Poth. ub. sup.; Voet ad Pand. L. 5, T. 1, 44.

II. Relationship or affinity to either party in interest, though only a stockholder in a corporation, Place v. Butternuts, &c., 28 Barb. 503, or not party to the suit, Foot v. Morgan, 1 Hill 654, is a cause of recusation by either, Steamboat Co. v. Livingston, 3 Cow. 724; Kelley v. Hackett, 10 Ind. 299; Poth. Pro. Civ. ch. 2, sec. 5; Dig. 47, 10, 5; Code du Pro. Civ. 378; Ersk. Inst. T. 2, 33; Durand's Spec. Juris. 19, in civil matters to the fourth degree at least, that is, to cousins german inclusive, Sanborn v. Follows, 22 N. H. 473; Bean v. Quimby, 5 N. H. 98; Gear v. Smith, 9 N. H. 63; Voet ad Pand. L. 5, T. 1, 45. In many jurisdictions the exclusion extends much further, Oakley v. Aspenwall, 3 Comst. 547;

Voet ad Pand. ubi sup; People v. Cline, 23 Barb. 200; Post v. Black, 5 Denio 166.

III. The friendly or hostile relations existing between a judge and one of the parties, may be good ground of recusation, Voet ub. sup.

Among this class of disabilities is that chiefly in question in this case, the fact that the judge, as is alleged, has acted as counsel for the party in the same cause; which has always been held everywhere to justify the suspicion and belief that, however upright he may be, he cannot avoid favoring the cause of his late client. It is consequently everywhere a just cause for the judge to withdraw, or for the party to recuse him. Ten Eyck v. Simpson, 11 Paige 179; McLaren v. Cheney, 5 Paige 532; Pothier and Voet ub. sup; Louisiana Code of Practice 159; Code Civ. Pro. 178; State v. House, 28 Miss. (7 Jones) 233; Dig. 47, 10, 5. Our own reports abound with entries that J., having been of counsel, did not sit, and the dockets furnish evidence abundant that the law which called for such entries was recognized and acted upon long before we had reports, and see Regina v. Justices, 14 E. L. & E. 93; Smith v. Smith, 2 Breenl. 408; Whicher v. Whicher, 11 N. H. 348; that one who has acted as counsel in taking depositions cannot act as a magistrate in taking others.

And our statute, which forbids any justice of the Supreme Judicial Court to sit upon the trial of any cause in which he has been concerned as party, or attorney, and forbids him to act as attorney, or to be of counsel, or to give advice in any matter which in the ordinary course of proceedings may come before the court of which he is justice, for adjudication, Stat. 1855, ch. 1659, sec. 23, must be regarded as a legislative recognition of the common law, applicable to all judges and judicial officers.

This objection is purely personal. It has no application to the case of near relatives of the judge having been counsel, Voet ub. sup., nor to the judge having been counsel in any other case but, it will be held valid where the cause is substantially the same, though it may not be precisely identical.

It seems to us very clear, that, a fortiori, the acting as advocate and giving of counsel in a case, whence a cause in court may spring up, after the judge has received his appointment, must be good cause of disqualification as a judge, independent of any statu

tory enactment. It is the fact that the judge has acted as attorney, counsel, law adviser, or advocate, in relation to the business in hand, that furnishes the just cause of exception, without reference to the time when such aid or counsel was given.

We have, then, to turn our attention to the constitutional and legal provisions bearing on this subject, to see how far, and with what effect, they bear upon the case, of which the principal question presented to us upon these pleadings is, how far the validity of a will, and the judicial powers of a judge of probate, are affected by the fact alleged that the judge of probate, in whose court the will must be proved, wrote the will, and counselled and advised the testator as to its form and execution.

The constitutional provisions bearing upon this subject are as follows: Part II, Art. 79-"No judge of any court, or justice of the peace, shall act as attorney, or be of counsel to any party, or originate any civil suit in matters which shall come or be brought before him as judge, or justice of the peace." Art. 81-"No judge, or register of probate, shall be of counsel, act as advocate, or receive any fees as advocate, or counsel, in any probate business which is pending, or may be brought into any court of probate in the county of which he is judge or register."

The prohibition of the constitution applies to this case. Its effect is to disqualify the judge to sit in the hearing, or decision upon the proof of such a will. It does not necessarily imply any improper motives, since the practice has been common and without question. None such can be even suspected in the present

case.

The demurrers are sustained. As issues in probate cases are drawn under the direction of the court, we deem it proper to suggest that the issue upon the last plea is so drawn as to refer to the jury a question which must be decided by the court alone. If the indefiniteness and uncertainty alleged appear upon the face of the will, the course should be to crave oyer of the will, set it out upon the record and aver that it ought not to be proved, because it is void and inoperative by reason of indefiniteness and uncertainty, and a demurrer would properly refer the question to the court.

If the defect grows out of matter of fact not apparent on the face of the will, it should be set out on oyer and the matter of fact alleged so as to afford an opportunity to controvert the fact, or deny the conclusion.

3. Mandatory and Discretionary Duties.

FRENCH V. EDWARDS.

Supreme Court of the United States. December, 1871.
13 Wall. 506.

This was an action for the possession of a tract of land situated in the county of Sacramento, in the state of California.

The defendants asserted title to the premises under a deed executed by the sheriff of Sacramento county upon a sale upon a judgment rendered for unpaid taxes assessed on the property for the year 1864, and the whole case turned upon the validity of this tax deed.

The court instructed the jury to find for the defendant; to which instruction the plaintiff excepted. Verdict was rendered on the 3d of April, 1867: and the bill of exceptions was signed and dated on the following 13th, and judgment on the verdict was entered on the following 26th, the court not having adjourned until after this date.

On error brought by the plaintiff the main question was whether the departure of the officer from the requirements of the statutes rendered the sale invalid.

Mr. Justice FIELD, having stated the case, delivered the opinion of the court, as follows:

There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they

are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.

These positions will be found illustrated in numerous cases scattered through the reports of the courts of England and of this country. They are cited in Sedgwick's Treatise on Statutory and Constitutional Law (pp. 368-378), and in Cooley's Treatise on Constitutional Limitations (Ch. IV, pp. 74-78.)

Tested by them the sale of the sheriff in the case before us cannot be upheld. The provision of the statute, that he shall only sell the smallest quantity of the property which any purchaser will take and pay the judgment and costs, is intended for the protection of the taxpayer. It is almost the only security afforded him against the sacrifice of his property in his absence, even though the assessment be irregular and the tax illegal.

Judgment reversed, and the cause remanded for a new trial.
Mr. Justice MILLER, dissenting.

SUPERVISORS V. UNITED STATES.

Supreme Court of the United States. December, 1866.
4 Wall. 435.

Mr. Justice SWAYNE delivered the opinion of the court.

III. The important question in the case is whether the respondents are compellable to levy and collect, by taxation, the amount specified in the order of the court below.

The writ, if issued, must conform to the order.

The court below proceeded upon the act of February 16th, 1863. We have not found it necessary to consider any of the other acts referred to in the briefs.

That act declares that "the board of supervisors under township organization, in such counties as may be owing debts which their current revenue under existing laws is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent, upon the taxable property of any such