Richardson v. Welcome

Metcalf, J. The facts, alleged in the defendant’s motion to dismiss this action, were proved to the satisfaction of the judge before whom the trial was had in the court of common pleas, upon appeal; and he declined to grant the motion, on the ground that it was not seasonably made, and that the defendant, by his delay, had waived the objection to the magistrate’s competency. But we are of opinion that the motion ought to have been heard, as soon as it was made, and the action dismissed, as soon as the allegations in the motion were proved. By the Rev. Sts. c. 85, § 34, no justice of the peace shall ‘ try any civil action, commenced by himself, or by his order or direction; and every civil action, so commenced, shall be dismissed, with costs for the defendant.” And by the common law, “ one cannot be judge and attorney for any of the parties.” 8 Co. 118 a. In Wright v. Crump, 2 Ld. Raym. 766, and 7 Mod. 1, Holt, C. J., states the case of the mayor of Hereford, who claimed title to a house in Hereford, where a court was held before himself only. In order to recover the house, he made a lease of it to A., that A. might bring ejectment before him. A. did so, and the mayor, says lord Holt, “ in effect, was judge in his own cause, and he gave judgment for his own lessee; and upon complaint in this matter, in the king’s bench, the court granted an attachment and committed the mayor for these proceedings.” The defendant’s knowledge of the facts alleged in his motion, four days before the trial in the common pleas, and his omission to make the motion until the case was called on for trial and the writ read to the jury, seem to us wholly insufficient to constitute a waiver of his objection to the gross misconduct of the magistrate. Matters of form, which do not affect the merits of the controversy, nor the regular and fair 333 administration of justice, are held to be waived, if not excepted to at an early stage of the cause. And a party who consents to submit his cause to the decision of a referee whom he knows to be interested or partial, cannot object to the referee’s decision, on the ground of his interest or partiality. But the present defendant did not choose his own judge. Nor is the matter of his motion matter of form only. It affects the administration of justice; and the motion is in the nature of an exception to the magistrate’s jurisdiction. Such exception may be taken in any stage of a cause. Action dismissed, with costs.