Cook v. Berth

Gray, J. The bill of exceptions does not require or authorize this court to pass upon the propriety or impropriety of the conduct of the magistrate before whom this action was commenced, but. presents the single question whether he had jurisdiction of the case. His jurisdiction is sought to be impeached upon the ground that he had such an interest in the case as to be disqualified from acting therein as a judge. But the evidence reported falls short of proving any such ground of impeachment. It only shows that some days before the commencement of this action he had drawn a lease from Emerson, the owner of the land, and a month before had written for the same owner a notice to this defendant to quit the premises. That notice could not have been, and there is no evidence that the lease was, written or delivered with any reference to a suit by this plaintiff. On the contrary, the only evidence upon this subject, as stated in the bill of exceptions, tended to show that the magistrate “ had not been advised with by Emerson or the plaintiff in reference to 374 this suit, or been employed by either of them, except to do the writing aforementioned.” In Richardson v. Welcome, 6 Cush. 331, and McGregor v. Crane, 98 Mass. 530, it appeared that the magistrate was acting as attorney of the plaintiff in the same matter and at the very time of his sitting in a judicial capacity; and in the first of those cases he had also instigated the prosecution of the suit, and had agreed with the plaintiff to tax nothing for his services in the case unless he should decide in the plaintiff’s favor. The fact that the magistrate was an attesting witness to the lease did not disqualify him from trying a case in which the lease might be offered in evidence, although it might be questionable whether he could testify upon a trial before himself alone. 2 Taylor on Ev. (4th ed.) § 1244. But the bill of exceptions does not show that he was called as a witness at the trial before him ; the appeal vacated his judgment; and no objection has been or could be made to his competency to testify upon the trial in the superior court. Exceptions overruled.