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AMERICAN AND ENGLISH
ENCYCLOPEDIA OF LAW.
JOURNEYS ACCOUNTS.-A new writ which the plaintiff was permitted to sue out within a reasonable time after the abatement, without his fault, of the first writ.1
J. P.-Abbreviation for Justice of the Peace.2
1. Spencer's Case, 6 Co. 10; Kinsey ters are understood to be an abbrevia7. Heyward, 1 Ld. Raym. 432; Davies v. tion of the term justice of the peace, Lowndes, 7 M. & G. 762; Richards v. one in common use and clearly indiMaryland Ins. Co., 8 Cr. (U. S.) 84; cating that that office is intended. It Bouv. L. Dict.
sufficiently appears that the bond was It is a continuance of the former entered into before and approved by writ, and must be in the same court, two justices.” Shattuck v. People, 5 Ili. between the same parties, or where one
477 of the plaintiffs has died, or one of the 3. Jubilee cannot be registered as a defendants. Spencer's Case, 6 Co. 10. trade mark under the English statutes “The word dieta signifies a day's on the subject. “It is not, obviously, journey, and the best account of the meaningless or not descriptive with word is given by Selden, that the reference to note paper, because it may chancery being a movable court and be note paper which is produced in the following the king's court, the party jubilee year. I have said the jubilee who purchased the second writ ought year. Mr. Ashton argued at to have applied to the king's court as little length that the word jubilee' was hastily as the distance of the place not a good English word; but it is plain would allow, accounting twenty miles that it is a common English word, and for every day's journey.” Kinsey v. used without reference to the term year. Heyward, 1 Ld. Raym. 432.
The term “jubilee' is used by several 2. "Two justices then were author- writers of authority, not of the present ized to take bail in the present case. day, but of times past, such as Dryden The persons approving of the recog- and Sir Walter Scott, and I could give nizance respectively affixed to their sig. many others.” Towgood v. Pirie, 56 natures the letters, J. P. These charac- L. T., N. S. 305; 5. c., 35 W. R. 729. 12 C. of L.-I
JUDGE-(See also BILL OF EXCEPTIONS; CHANGE OF VENUE; CONTEMPT; CORONER; COURTS; DE FACTO OFFICERS; EviDENCE; INSTRUCTIONS; JURISDICTION; JURY AND JURY TRIAL; JUDICIAL NOTICE; JUSTICE OF THE PEACE; NEW TRIAL; OFFICERS (Public); TRIAL).
I. Definition, 2.
VII, Liability for Acts and Opinions, II. General Powers and Duties, 3.
32. 1. Personal Nature of Duties, 1. General Rule — Remedy by
Impeachment, 32. 2. Žudicial
and Ministerial 2. Liability as Affected by J11Acts, 5.
risdiction, 33. (a) Nonjudicial Duties, 5.
(a) Superior Courts, 33.
(b) Inferior Courts, 33.
(c) Mistake of Fact, 37.
3. Judicial Acts Within the 4. Review of Decisions, 10. 5. Miscellaneous, 10.
4. Liability for Ministerial 6. Property Under Court's Con
Acts, 38. trol, 11.
5. Classes of Judges Within III. Powers and Duties in Matters
the Rule, 38. of Practice, II.
6. Liability for Fraud and Cor. 1. Attendance at Trial, 11.
ruption, 39. 2. Appeals and Bills of Excep. VIII. Disqualification of Judges, 40. tion, il.
1. General Principle, 40. 3. New Trials, 13:
2. Disqualification at Common 4. Opinions and Orders, 13.
[42. 5. Adjournment of Court, 14.
3. Disqualification by Statute, 6. Powers During Vacation, 14. 4. Character of Disqualifying 7. Powers at Chambers, 15.
Interest, 45. 8. Miscellaneous, 17.
(a) Generally, 45. IV. Rights in Relation to Office, 17.
(6) Interest as Citizen, 46. 1. Commission of Fudge, 17.
(c) Interest as Corporation 2. Tenure of Office, 18.
Stockholders, 46. (a) Abolition or Change of
(d) What Interest DisqualiCourts, 19.
fies, 47. 3. Vacancies in Office, 20.
(e) What Interest Does Not 4. De Facto Fudges, 23. [24.
Disqualify, 48. V. Special and Substitute Judges, 5. Void and Voidable Acts, 48. 1. Definition, 24.
6. Removal of Disqualification, 2. Powers and Duties, 24.
(a) Generally, 50. (50. (a) Constitutional Lan, 24.
(6) Consent of Parties, 50. (6) Limitations of Powers, 7. Disqualification in Decedents' 26.
Estates, 51. (c) When Special Judge Can 8. Disqualification for Preju
Act, 26 (d) When Special Judge Can- 9. Disqualification for Relationnot Act, 27
ship, 54; (e) Proof of Special Fudges' 10. Disqualification as Former Authority, 28.
Counsel, 55. VI. Judges as Witnesses, 31.
11. Practice, Evidence, etc., 57. I DEFINITION.-A judge is a public officer appointed to decide litigated questions according to law; an officer so named in his commission and who presides in some court." 1. Bouv. L. Dict.
determine causes, and who holds courts Other Definitions.— A judge is a per- statedly for that purpose. Burr. L. son whose office is to administer justice Dict. in courts held for that purpose; a pub- A person who is invested with aulic officer authorized by law to hear and thority to hear and determine causes
II. GENERAL POWERS AND DUTIES-1. Personal Nature of Duties.A judge declining to preside may be compelled by mandamus, where there is no reason against his acting.'
Only judicial officers can exercise judicial powers or functions. Judicial offices must be exercised in person, and a judge cannot delegate his authority to another. The provisions of State con
civil or criminal, and to administer jus- Justice of the peace is a "judge of tice between parties in courts held for any court” within the meaning of a that purpose, according to his commis- disqualifying statutory provision. Carsion or according to law. Webster's rington v. Andrews, 12 Abb. Pr. (N. Dict., cited by counsel in Com. v. Y.) 348; Edwards v. Russell, 21 Wend. Conyngham, 65 Pa. St. 76.
(N. Y.) 63; Foot v. Morgan, i Hill Judges Are Incident to Courts.-Un- (N. Y.) 654; Baldwin v. McArthur, 17 der a power to establish courts, the Barb. (N. Y.) 414, 423. legislature cannot maintain the office of Justice and Judge.—The word “jusjudge except as incident to some court. tice” is frequently used instead of Upon abolition of a court under valid “judge.” Pa. Const., art. Ø 5; 6 státute, the judge's powers and func- Vin. Abr. 484; Wheat. Dig. 127; 3 tions, and his right to future salary, Com. Dig. 300; Ib. 386; 2 Bl. Com.
Perkins v. Corbin, 45 Ala. 103, Append. 111; Ib. 40; Ib. 41; 4 Inst. 118.
73; i Pa. St. Laws, Appen. 58. Members of Court Martials Sit as Senior Judge.-That the senior judge Judges." It is a general and sound is he who has served the longest under principle that whenever the law vests his present commission rather than anany person with a power to do an act other judge who may have been longest and constitutes him a judge of the evi- in continuous service, see State v. Huesdence on which the act may be done, ton, 44 Ohio St. 1. and, at the same time, contemplates Chief Justice.—The law of Nevada that the act is to be carried into effect provides that the senior justice in comthrough the instrumentality of agents, mission shall be chief justice, and in the person thus clothed with power is case the commission of any two bear vested with discretion, and is, quoad the same date they are to determine by hoc, a judge." Vanderheyden v. Young, lot who shall be chief justice. In Kenni Johns. (N. Y.) 158.
tucky, the constitution provides that the Surrogate in New York Not a Judge.- judge having the shortest time to serve Not every official who exercises func- shall be styled the chief justice. And tions some of which are of a judicial see the constitutions of Oregon, Michnature is to be holden a “judge.” The igan, Georgia, West Virginia, Missurrogate in New York is not a "judge" sissippi, Missouri, California and within the limitation of seventy-year Nebraska. age in the New York constitution. In 1886, in nineteen States, there was Constitutions, which are general instru- no provision for the selection of a chief ments framed for the reading by all justice, no such officer seeming to be classes of the commonwealth, are to known to the law. have their language construed in a 1. State v. Judge (La.), 6 So. Rep. 22. popular sense. People v. Carr, 100 N. Mandamus.—The rule in awarding Y. 236.
mandamus at common law is that "it Highway Commissioners.-Statutory is not by the office of the person to prohibition of “any judge” disqualified whom the writ is directed, but the nafrom acting was held not to apply to ture of the thing to be done, that the highway commissioners in the State of propriety of issuing a mandamus is to New York whose duties under statute be determined. If mere ministerial
ministerial. Foot Stiles, duties are devolved on an officer, judi57 N. Y. 399.
cial or executive, he may be compelled Canal Commissioners.-Canal com- to their performance." Thompson v. missioners who hear evidence and ar- Holt, 52 Ala. 491; Tennessee etc. R. gument, assess damages, etc., constitute Co. v. Moore, 36 Ala. 371; Nichols v. a court. Regina v. Aberdale Canal Comptroller, 4 Stew. & P. (Ala.) 154. Co., 14 Ad. & El. N. R. 854; Dimes v. 2. Kent's Com (12th ed.) 457; VanGrand Junction Canal, 3 H. of L. 759. dercook v. Williams, 106 Ind. 345;
stitutions specifying the courts to be created and the judges to officiate therein, must be strictly followed, and even the legislature cannot create a commission in aid of a court established by the constitution. Nor can the constitution be evaded by changWilkins v. State, 113 Ind. 514; State v. 457; Broom, Leg. Max. 841; Campbell Noble, 118 Ind. 350; Chandler v. Commrs. of Monroe Co., 118 Ind. Nash, 5 Mich. 410. See also 39 Alb. 119 (March 26th, 1889); Hards v. BurL. J. 242, 257, and authorities cited in ton, 79 Ill. 504. Those who are chosen succeeding notes.
by the people to sit as judges must The reception of a verdict is a judi. themselves discharge all the judicial cial act. Judicial power cannot be dele- duties of their offices. The trust is gated. Řeception of a verdict by an imposed upon them and they cannot attorney whom the court, with the con- share their judicial duties with any persent of the parties, had designated to The people have a right to the receive it, is a nullity; the consent of judgment of those whom they have the defendant cannot vest such judicial made judges, and this right the judges authority in the person selected to re- cannot surrender, if they would, withceive it. Attorneys, to hold court, out a flagrant breach of a sworn duty. must be appointed in the mode and for The trust is a personal one, inalienably the causes prescribed by law. Britton invested in the persons selected by the v. Fox, 39 Ind. 369; McClure v. State, people, and it cannot be delegated by 77 Ind. 287.
the judges themselves, nor by anyone Where a judge telegraphed to the else for them. It is only the appointed clerk to discharge a jury and it was so judge,' says Chief Justice RYAN, done, it was held error, , and the prisoner 'who can speak the authoritative words was entitled to discharge. State v. Jef- of the law.' Van Slyke v. Trempeaferson, 66 N. Car. 309.
leau Co. Farmer's F. Inc. Co., 39 Wis. 1. Vandercook v. Williams, 106 Ind. 390. But centuries before, and at a 345.
time when the king was the fountain of In delivering the opinion of the court judicial power theoretically, and sat in Elliott, C. J., said: "The assumption the courts of law and equity, Sir Ed. that the supreme court can perform its WARD Coke even more emphatically judicial duties through the medium of stated the rule. Said that gladsome masters in chancery or master commis- light' of jurisprudence, “the judicature sioners, or persons charged with duties only belongeth to the judges.' 4 Inst. like those performed by masters in 73. MATTHEW BACON said: "The chancery and master commissioners is king himself, though he be entrusted without foundation. If it cannot thus with the whole executive power of the perform judicial duties, it can perform law, cannot sit in judgment in any none, for its duty and its power are ex- court, but his justice and the laws must clusively judicial. The supreme court be administered according to the power must decide for itself all questions of committed to and distributed among his law and of fact. The facts must be several courts of justice. 2 Bac. Abr. gathered from the record by the court 619. Again we quote from this high itself, and cannot be obtained from any authority, who, speaking of the judges, other source or by any other persons says: “They cannot act by deputy, nor than the judges. It is a court of errors, in any way transfer their power to anan appellate tribunal charged with the other.' Id. 620. The theory of our duty of deciding cases upon the record, governmental system, as embodied in and this duty cannot be performed by our constitution, requires that the perdeputies. Independently of any con- sons to whom the people have entrusted stitutional provisions, this would be so, the judicial power shall themselves exbecause judicial powers cannot be dele. ercise it, and not entrust its exercise to gated. This principle has been estab- others.
A duty imposed upon lished for ages. CHANCELLOR KENT a department of government must be thus states this familiar rule: "The performed by the chosen officers of that general rule is that judicial offices must department, and it can neither be delebe exercised in person, and that a judge gated nor surrendered. Cooley Const. cannot delegate his authority to an- Lim. (5th ed.) 116-13
Where a speother. I do not know of any exception cific duty is imposed upon a tribunal, by to this rule with us.' 3 Com. (12th ed.) that tribunal it must be performed with