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the judgment which *it pronounces must be held con- [* 409] clusive 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 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

the conviction had found that the v. Fowlis, 7 B. & C. 394; Ashcroft offender kept a dog of that descrip- v. Bourne, 3 B. & Ad. 684; Mather tion, could he, in a civil action, be v. Hodd, 8 Johns. 44; Mackaboy v. allowed to dispute the truth of the Commonwealth, 2 Virg. Cas. 268; conviction? In a question like the Ex parte Kellogg, 6 Vt. 509; State v. present we are not to look at the in- Scott, 1 Bailey, 294; Facey v. Fuller, convenience, but at the law; but 13 Mich. 527 ; Wall v. Trumbull, 16 surely if the magistrate acts bona fide, Mich. 228 ; Sheldon v. Wright, 5 and comes to his conclusion as to N. Y. 512; Wanzer v. Howland, matters of fact according to the best 10 Wis. 16; Freeman on Judgments, of his judgment, it would be highly $ 523, and cases cited. unjust if he were to have to defend 1 Ex parte Kellogg, 6 Vt. 509; himself in a civil action; and the Edgerton v. Hart, 8 Vt. 208; Carter more so, as he might have been com- 0. Walker, 2 Ohio, n. s. 339; Freepelled by a mandamus to proceed on man on Judgments, $ 135. the investigation. Upon the general The doing or not doing that in principle, therefore, that where the the conduct of a suit at law, which, magistrate has jurisdiction his con- conformably to the practice of the viction is conclusive evidence of the court, ought or ought not to be done." facts stated in it, I think this rule Bouv. Law Dic. See Dick v. Mcmust be discharged.” See also Bas- Laurin, 63 N. C. 185. ten v. Carew, 3. B. & C. 648; Fawcett

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shall take any subsequent step in the case inconsistent with an intent on his part to take advantage of it. We have thus briefly indicated the cases in which judicial

action may be treated as void because not in accordance [* 410) with the * law of the land. The design of the present

work does 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 judgment 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. All the State constitutions preserve the right of trial by jury, for civil as well as for criminal cases, with such exceptions as are specified, and which for the most part consist in such cases as are of small consequence, and are triable in inferior courts. The constitutional provisions do not extend the right; they only secure it in the cases in which it was a matter of right before. But in doing


2 Hall

1 Robinson v. West, 1 Sandf. 19;

v. Marks, 34 Ill. 363; Malone v. Clark, 2 Hill, 657 ; Wood Chandler v. Nash, 5 Mich. 409. As v. Randall, 5 Hill, 285; Baker v. Kerr, to the right to send civil causes to a 13 Iowa, 384; Loomis v. Wadhams, referee for hearing, see King v. Hop8 Gray, 557; Warren v. Glynn, 37 kins, 57 N. H. 334; St. Paul, &c. N. H. 340. A strong instance of R. R. Co. v. Gardner, 19 Minn. 132; waiver is where, on appeal from a 8. c. 18 Am. Rep. 334. For the discourt having no jurisdiction of the tinction between judicial and ministesubject matter to a court having gen- rial acts, see Flournoy v. Jeffersoneral jurisdiction, the parties going to ville, 17 Ind. 173. trial without objection are held bound 8 Backus v. Lebanon, 11 N. H. by the judgment. Randolph Co. v. 19; Opinions of Judges, 41 N. H 551; Ralls, 18 Ill. 29; Wells v. Scott, 4 Dane Co. v. Dunning, 20 Wis. 210; Mich. 347; Tower v. Lamb, 6 Mich. Stilwell v. Kellogg, 14 Wis. 461; Mead 362. In Hoffman v. Locke, 19 Penn. v. Walker, 17 Wis. 189; CommonSt. 57, objection was taken on con- wealth v. Seabrook, 2 Strob. 560; stitutional grounds to a statute which Tabor v. Cook, 15 Mich. 322; Lake allowed judgment to be entered up Erie, &c. R. R. Co. v. Heath, 9 Ind. for the plaintiff in certain cases, if the 558; Byers v. Commonwealth, 42 defendant failed to make and file an Penn. St. 89; State v. Peterson, 41 affidavit of merits; but the court sus- Vt. 504; Buffalo, &c. R. R. Co. v. tained it.

Burket, 26 Tex. 588; Sands v. Kim

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this, they preserve the historical jury of twelve men,with all its incidents, unless a contrary purpose clearly appears. The party is therefore entitled to examine into the qualifications and impartiality of jurors ; 2 and to have the proceedings public; 3 and no conditions can be imposed upon the exercise of the right that shall impair its value and usefulness. It has been held, however, in many cases, that it is competent to deny to parties the privilege of a trial in a court of first instance, provided the right is allowed on appeal. It is undoubtedly competent to create new tribunals without common-law powers, and to authorize them to proceed without a jury; but a change in the forms of action will not authorize submitting common-law rights to a tribunal in which no jury is allowed. In any case, we suppose a failure to award a jury on proper demand would be an irregularity merely, rendering the proceedings liable to reversal, but not making them void.

bark, 27 N. Y. 147; Howell v. Fry, 19 nan's Liquors, 25 Conn. 278; Curtis Ohio, N. S. 556; Guile v. Brown, 38 0. Gill, 34 Conn. 49; Reckner v. Conn. 237; Howev. Plainfield, 37 N.J. Warner, 22 Ohio, n. s. 275; Jones 143; Commissioners v. Morrison, 22 v. Robbins, 8 Gray, 329; Hapgood v. Minn. 178.

Doherty, 8 Gray, 374; Flint River, 1 See ante, p. *319. And see the &c. Co. v. Foster, 5 Geo. 208; Murgeneral examination of the subject ford v. Barnes, 8 Geo. 444; State v. historically in Hagany r. Cohnen, 29 · Beneke, 9 lowa. 203; Lincoln v. Ohio, N. S. 82; and Copp o. Henniker, Smith, 27 Vt. 328, 360; Steuart 55 N, H. 179.

v. Baltimore, 7 Md. 500; Common2 Palmore v. State, 29 Ark. 248; wealth v. Whitney, 108 Mass. 6. But Paul v. Detroit, 32 Mich. 108.

that this could not be admissible in 3 Watertown Bank, &c. v. Mix, criminal cases was held in Matter of 51 N. Y. 558.

Dana, 7 Benedict, 1, by Judge Blatch4 Greene v.

Briggs, 1 Curt. C. C. ford, who very sensibly remarks, “ In 311; Lincoln v. Smith, 27 Vt. 328; my judgment the accused is entitled, Norristown, &c. Co. 1. Burket, 26 not to be first convicted by a court, Ind. 53; State v. Gurney, 37 Me. and then to be acquitted by a jury, 156; Copp v. Henniker, 55 N. H. 179. but to be convicted or acquitted in the It is not inadmissible, however, to first instance by a jury.' require of a party demanding a jury 6 See Rhines v. Clark, 51 Penn. that he shall pay the jury fee. Ran- St. 96. Compare Haines 1. Levin, dall v. Kehlor, 60 Me. 37.

51 Penn. St. 412; Haines' Appeal, 5 Emerick v. Harris, 1 Binn. 416; 73 Penn. St. 169. Whether jury trial Biddle v. Commonwealth, 13 S. & R. is of right in quo warranto cases, see 405; McDonald v. Schell, 6 S. & R. State v. Allen, 5 Kan. 213; State v. 240; Keddie v. Moore, 2 Murph. 41; Johnson, 26 Ark. 281; State v. Vail, Wilson v. Simonton, 1 Hawks, 482; 53 Mo. 97; People v. Cicott, 16 Mich. Monford v. Barney, 8 Yerg. 444; Beers 283. v. Beers, 4 Conn. 535; State v. Bren


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 [* 411] * This maxim applies in all cases where judicial func

tions 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. 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

1 Co. Lit. § 212. See Day v. 3 Washington Insurance Co. r. Savadge, Hobart, 85. We should Price, Hopk. Ch. 2; Dimes v. Pronot venture to predict, however, that prietors of Grand Junction Canal, 3 even in a case of this kind, if one House of Lords Cases, 759; Pearce r. could be imagined to exist, the courts Atwood, 13 Mass. 310; Peck v. Freewould declare the act of Parliament holders of Essex, 20 N. J. 457; Comvoid ; though they would never find monwealth v. McLane, 4 Gray, 427; such an intent in the statute, if any Dively v. Cedar Rapids, 21 Iowa, 565; other could possibly be made consis. Clark v. Lamb, 2 Allen, 396; Stocktent with the words.

well v. White Lake, 22 Mich. 311; 2 Washington Insurance Co. Petition of New Boston, 49 N. H. Price, Hopk. Ch. 2; Sigourney v. 328. Sibley, 21 Pick. 191; Freeman on Judgments, $144.


a part in the decision. And it will have a most salutary 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.” 1

It is matter of some interest to know whether the legislatures of the American States can set aside this maxim of the common law, and by express enactment permit one to act judicially when * interested in the controversy. The maxim itself, (* 412] 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;2 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.3

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

1 Dimes v. Proprietors of Grand by a judge of probate of his wife's Junction Canal, 3 House of Lords brother as administrator of an estate Cases, 759.

of which her father was a principal 2 Ranger v. Great Western R., creditor was held void. 5 House of Lords Cases, 88; Stewart People v. Gies, 25 Mich. 83. 0. Mechanics' and Farmers' Bank, 19 4 Commonwealth v. Reed, 1 Gray, Johns. 501.

475. 8 Washington Insurance Co. v. 5 Commonwealth v. Ryan, 5 Mass. Price, Hopk. Ch. 2. This subject 90; Hill v. Wells, 6 Pick. 104; Comwas considered in Hall 0. Thayer, monwealth v. Emery, 11 Cush. 406. 105 Mass. 221, and an appointment

And see

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