SUMMARY - Formerly of counsel, § 1.— Förmer interest in subject-matter, § 2.— Where case is to be tried when circuit judge is disqualified, § 3.-Effect of act of 1869 on previous legislation, § 4.- Decision of former juage in same court, § 5.

§ 1. At common law it was no ground of challenge that the judge had been of counsel, and the United States statutes apply only when the former cause and controversy were identical with the present. The Richmond, 6-8.

§ 2. A judge is not disqualified from sitting in the case of a bankrupt's estate by the fact that at the time of failure he was a creditor of the bankrupt, but has sold his claim. In re Sime, § 9-11.

§ 3. When the judges of a circuit court are disqualified from sitting by reason of interest in the case, the act of 1839 requires that the case be certified to the circuit court nearest in point of distance, provided that be competent. Richardson v. Boston, § 12.

84: The act of congress of 1869, providing for the appointment of circuit judges, and prescribing their powers and duties, did not repeal the special legislation existing on the subject and providing for exigencies. In re Nicolas, § 13.

§ 5. A justice of the supreme court while sitting alone in the circuit court will not entertain a motion previously decided by another judge of the same court. Appleton v. Smith, § 14.

[NOTES.-See §§ 15-42.]


(Circuit Court for Louisiana: 9 Federal Reporter, 863-965. 1881.)

§ 6. At common law there could be no challenge on the ground that the judge had been of counsel.

Opinion by BILLINGS, D. J.

A motion has been made that I should decline to sit in this cause because I have been of counsel. The doctrine of recusation of judges is of continental origin. According to the law of Great Britain it has been unknown since before Blackstone's time. According to the law which prevails upon the continent, and as declared in the Code of France, a judge is recusable if he has given counsel, pleaded, or written of the controversy, has previously acted as judge or arbitrator, or defrayed the expenses of the suit, deposed as a witness, etc. But at the common law as it prevailed in England, and was adopted by the people of the United States, there could be no challenge or recusation of judges on the ground that the judge had been of counsel. See Coke, Litt., 294; 2 Bro. Civ. & Adm. Law, 369; 3 Bl. Com., 361; Lyon v. State Bank, 1 Stewart,

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This leaves nothing to be considered except the United States statutes. Of these there are two. The first, which is found in the Revised Statutes, sec. 601, applies only to causes pending in the district courts. The last, found in the Revised Statutes, sec. 615, authorizes and requires the court, on the application of either party, to transfer a cause to another circuit court. There could be no pretext that the first statute applied. It wouid dispose of the second statute to say that this is not an application to transfer to another court. In Spencer v. Lapsley, 20 How., 266, it is settled that the inability was to be disclosed on the record, upon motion of one of the parties, and that a judge interested might make the order of removal. It is clear that, except upon motion to remove, the machinery provided by the statute could not be set in operation, even in a cause included in its scope.

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the controversy must have been identical with the present.

But does this cause fall within this statute, even had this application been a motion to remove? The ground suggested is that the judge has been of counsel. The language of the statute is, has "been of counsel for either party.' In this case the judge had been one of the parties in a suit in law for damages by collision. In that suit an appeal bond had been given, and the pending prcceeding is to fix the liability of the sureties on the appeal bond. It would seem that the controversy or cause here, though growing or issuing out of the cause in which there was a judgment, is distinct. It presents a different question, and is against a party not an actor in the other suit. In The Bank of North America v. Fitzsimmons, 2 Bin., 454, it was held that it was no objection to a judge, that while at the bar he had been consulted and had given an opinion in favor of one of the parties. In Blackburn v. Craufurd, 22 Md., 447, it is held: The fact that a judge had been counsel in a case theretofore tried between two of the parties to the bill, which involved some of the issues raised in the bill, did not bring him within the letter or spirit of the constitutional inhibition against sitting in a case wherein he may have been of counsel. To the same effect see, also, Taylor v. Williams, 26 Tex., 583. In Cook v. Berth, 102 Mass., 372, a magistrate was held not to be disqualified by a statute similar in terms, and to have properly sat in an action of ejectment, though he had drawn the plaintiff's lease, under and upon which the action was brought, and had written the notice to quit. In Thellusson v. Rendlesham, 7 H. of L. Cas., 429, where a court constituted of so many members could, with slight inconvenience, dispense with the participation in a hearing of one of the peers, Lord St. Leonard stated that he had on two occasions been of counsel in the cause, though not upon a point then pending, but that he "did not conceive that these facts absolved him from the duty of taking part in the hearing." The lord chancellor (Lord Chelmsford) and Lord Brougham concurred in that view, and no member of the house dissented.

The decisions, so far as I have been able to find, are unanimous that "of counsel" means "of counsel for a party in that cause and in that controversy," and if either the cause or controversy is not identical the disqualification does not exist. In the case before me, the controversy in which the judge was of counsel was as to the liability for a collision. The controversy now pending and being litigated is with reference to the liability of sureties under a mandate remitted from the supreme court. It could not be error for the judge to sit in this matter, nor would the statute exempt him. The rule is, therefore, as a matter of right, dismissed. But the consent of the opposed party having been given, an order, based upon consent of parties, will be entered, that the matters. now at issue in this cause be restored to their place on the calendar, to be heard by that member of the court who may preside when the same may be moved on for trial.


(Circuit Court for California: 2 Sawyer, 320-325. 1872.)

Opinion by SAWYER, J.

STATEMENT OF FACTS.- Objection is made to the jurisdiction of the circuit judge on the ground of disqualification. At the time of the failure of the banking house of John Sime & Co., I was a depositor, having a balance to my credit on the books of the bank of $625.03. My claim has since been purchased and

paid for by another creditor, and duly assigned to him. I took no part in the proceeding other than formal, such as making the proof of my claim in the prescribed mode, and assenting without examination to one or two steps in the proceedings, at the request of other creditors. The party objecting is the attorney of the assignee in bankruptcy of one King, who sets up a large claim against the bankrupts' estate for the conversion of certain stock, and which is contested by the trustees, and is in course of litigation in a suit pending in the state courts. The same party was the first to invoke my action while still a creditor, and when my interest was known to him, by presenting his petition to me for a revision of the action of the district court, and asking the necessary orders for the trustees to answer the same, and for staying the payment of any dividend until the rights of his client could be determined on said petition in this court. No action was taken by me until after the assignment of my claim, and then the first order made was on the application mentioned of the same party. Having invoked my action to bring the case before this court, and after thus getting it here, having raised and argued, without objection, a point of practice of a character tending to delay the proceeding, which was overruled by me, he now, for the first time, objects to my further action on the ground of legal disqualification, well knowing that if the point can be sustained, all further proceedings will be suspended till the return of Mr. Justice Field.

89. A judge who was a creditor of the bankrupt, but has parted with his claim, is not disqualified by his former interest.

After a careful consideration of the subject, I am satisfied that I am no longer disqualified under the law from sitting. No statutory disqualification is brought to my notice, and the point must be determined by the principles of the common law. I have now no interest whatever in the proceeding, pecuniary or otherwise. While a creditor of the estate, I took no part other than the mere formal one mentioned. I never examined or formed any opinion concerning any question involved in the proceeding, and I am not now conscious of any bias in any manner connected with it. I was once a creditor, it is true, but I have sold and assigned my claim and received the consideration. Doubtless the motive of the purchaser in buying was to relieve me from disqualification, and prevent the proceeding from being utterly obstructed for an indefinite period of time by appeals to the supervising jurisdiction of the circuit court, and for want of a judge competent to act.

This is, certainly, not an improper motive on the part of the purchaser; and, as to myself, I could have no interest beyond getting my money. It is well known that Mr. Justice Field has just held a term in each district of his circuit, and is not required by law, and does not intend, to come to the circuit again for a period of two years. I am not aware that there is any legal objection to removing the disqualification of a judge, or any impropriety in doing it in a lawful manner. No authority is cited against it, and I have been unable to find any. On the contrary, the case of Bank of North America v. Fitzsimmons, 2 Bin., 454, clearly implies the propriety of such a course. When witnesses were incompetent, on the ground of interest, it was a matter of every day experience to remove the disqualification in open court, by releasing the witness from any liability, or by the witness himself releasing or receiving satisfaction for any claim that might render him incompetent. I do not perceive that there is any greater objection to removing in a legal manner the disqualification of a judge. I am, therefore, satisfied that I am now in no sense legally disqualified to act in this case.

It only remains to consider the question of delicacy, which is a matter of especial interest to myself alone. Although wholly unconscious of any bias that could in any possible degree warp my judgment upon any question that may arise, yet, as I was once a creditor, and as I have sold my claim to another creditor, whose motive in buying could only have been to remove any disqualification on my part, in case the jurisdiction of the circuit court should be invoked, and for the purpose of preventing a delay in the proceedings, I should gladly decline to act, if I could persuade myself that I could do so without a gross violation of official duty. If there was another judge competent to act, who could sit in the case without any unreasonable delay, I should not hesitate to leave the case to him. But there is practically none. As before stated, Mr. Justice Field is not expected to be here for two years, and there is no other who can act. And when he does come he can only remain for a few days, and dispose of such questions as shall then have arisen. Others would be continually liable to arise, rendering other delays necessary, till he should come again two years afterward, and these delays are liable to be repeated till the proceedings would become practically interminable. This would be equivalent to a total denial of justice. The estate in question amounts to several hundred thousand dollars, and numerous parties are interested in its speedy settlement. The parties interested are, at least, entitled to have an early adjudication of their rights. They may or may not be entitled to a dividend upon their claims before the termination of the objector's suit. However that may be, they are certainly entitled to have the appropriate tribunals determine whether they are so entitled or not, or what their rights are; and for a judge to refuse to hear their case simply on a point of delicacy, because he happens to find himself in an embarrassing position, though not legally disqualified, and when there is practically no other judge who can sit, would, in my judgment, be a gross injustice.

§ 10. Apparent disqualifications may sometimes give way to prevent a failure of justice.

Chancellors Kent and Walworth both sat in cases when they were disqualified by the express terms of the statute. Matter of Leefe, 2 Barb. Ch., 39; People v. Edmonds, 15 Barb., 529. In the latter case, Judge Strong decided the case, although interested in the question, but not in the case. An interest in the questions to be litigated does not appear to have been regarded as disqualifying the judge, provided he is not interested in the case. In Stuart v. Mechanics' Bank, Chancellor Kent was a stockholder in the bank. In Mooers v. White, 6 Johns. Ch., 360, he was also disqualified. Chancellor Kent sat in these cases after consulting Chief Justice Spencer, and with his approval. This action was put on the ground that there was no other judge who could sit, and there would otherwise be a failure of justice. Pearce v. Atwood, 13 Mass., 340; Commonwealth v. Ryan, 5 Mass., 90; and Hill v. Wells, 6 Pick., 109; and other cases, recognize the propriety of the course in such cases.

The judges of the state district courts in San Francisco have, during the past twenty odd years, tried numerous cases in which the city was a party, involv ing in the aggregate millions of dollars, and in which the judges, as tax payers and property holders, were necessarily interested. So, also, have the supreme. court judges, although citizens of San Francisco, finally adjudicated such cases on appeal, and many others in which the state was a party, and in which they must necessarily have been interested as citizens, liable through taxation to respond. But in this case it is not necessary to go so far, as I am no longer in

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any manner interested either in the case or any of the questions involved, or otherwise legally disqualified. I must decline to act, if at all, on a mere matter of delicacy, because, under the circumstances, I find it unpleasant to do so. The bankrupt act manifestly gives the circuit court supervisory jurisdiction over all matters during the course of the proceedings, embracing every interlocutory order, in order that the rights of parties may be summarily adjudicated. A refusal to act by the only judge whose action can be invoked for a period of two years, when another judge will be present for a short time only, would utterly thwart the wise policy of the law.

§ 11. A judge is not to be influenced by personal preference in determining his own qualification.

After mature consideration, I am fully satisfied that I am not legally disqualified to act in the case; and further, that being qualified, I am not at liberty, upon a matter of mere personal feeling or preference, to decline the responsibility thrown upon me by my official position; nor, in my judgment, would I have been justified, under the circumstances, in declining to permit the disqualification to be removed, by refusing to sell my claim for the purpose of avoiding that responsibility. Notwithstanding the fact that my own mind had reached the conclusions announced, I was still unwilling to trust wholly to my own judgment in a matter of some delicacy. I have therefore consulted two of the United States district judges of this circuit and all of the present justices of the supreme court of the state upon the point, and I am permitted to say that, without exception, they fully concur in the view that I am not disqualified, and being qualified, that I cannot decline to act under the circumstances without a gross and inexcusable violation of my official obligation. If I had entertained a doubt upon the point, I should still feel constrained to yield to the unbiased and disinterested judgment of jurists so eminently qualified to advise in a matter of the kind, especially as their judgment is in favor of my assuming jurisdiction in a matter wherein (if I could do so consistently with my own convictions of duty) I would gladly avoid action. The objection to the jurisdiction on the ground of disqualification of the judge is overruled.


(Circuit Court for Massachusetts: 1 Curtis, 250-253. 1852.)

STATEMENT OF FACTS.- Both judges of this court being disqualified by interest from sitting in this case, defendant moves that it be certified to the circuit court for New York, and plaintiff, a citizen of Rhode Island, suggests that it be certified to Rhode Island. The act of congress in question is that of 1839.

§ 12. When the judges of a circuit court are disqualified from sitting by reason of interest, the case should be certified, under the act of 1839, to the nearest circuit court which is competent.

Opinion by CURTIS, J.

The act of congress requires the judges, though interested, to make an order designating the particular circuit court to which the action shall be removed. The duty is one of considerable delicacy, and the statute should, if possible, be so construed as to grant to judges thus circumstanced no more discretion than is necessary to prevent a failure of justice. In the same spirit, and for similar reasons, I conceive that such judges, in exercising whatever power has been necessarily confided to them, should endeavor to lay hold of some rule fit to be

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