Allen v. Bruce

Upham, J. In the case of Gear vs. Smith & a., 9 N. H. Rep. 65, it was holden by the court, that the admission of an individual by commissioners of jail delivery to take the poor debtor’s oath, was a judicial act; and that, where application was made to magistrates by an individual to take the poor debtor’s oath, and one of the magistrates selected by him was an uncle of the debtor — which fact was unknown to the creditor, or his attorney, so that the exception might be taken at the hearing — permission to take such oath on a hearing before the magistrates was invalid. There is no evidence in this case that the fact of the relationship of one of the magistrates to a party to the bond, was known to the creditor or his attorney at the time the oath was administered ; and the exception, therefore, cannot be regarded as having been waived. The question arises, then, whether a surety on a jail-bond is so far a party to the proceedings instituted for the debtor’s release, that his near kindred are precluded from officiating as a magistrate in such case. It is contended, that if the surety himself could not act as a magistrate in the proceedings to release the debtor, his near kindred could not: but this is not the criterion to determine a question of this description. The rule disqualifying a magistrate is not like that which operates to the rejection of a witness. Any direct interest, however small, will exclude a witness ; but an exception arising to a magistrate [423] on account of his relationship to a party, is wholly a question of degree, both as it regards nearness of kindred and extent of interest. Within certain degrees of kindred, the law implies such a tendency to favor on the part of the magistrate, as to disqualify him, on the constitutional ground that “ it is the right of every citizen to be tried by judges as impartial as the lot of humanity admits;” but where the relationship is slight, such objection does not exist, as the inclination to favor in such case is not supposed to exist. And the same rule applies to extent of interest. If the interest of a party is slight, the objection to the action of a magistrate on account of relationship to the party, may be immaterial; so, also, where the interest is remote or contingent; and for this reason in some cases the magistrate might act, on account of farther remoteness of bias on his part, where the party himself could not act. If we should concede, therefore, that the coobligor on the bond could not act in the capacity of a magistrate to take the oath of the debtor, it will not follow that the brother of the coobligor on the bond also could not act. The rule as applicable to both is by no means the same. On the question, as to the degree of relationship or interest which should exclude a magistrate, it is difficult to establish any general rule. In the case of Eggleston vs. Smiley, 17 Johns. 133, it was holden that “ the relationship, in order to exclude the magistrate, must be so near as to amount of itself to evidence of partiality, or fraud, should he attempt to exercise jurisdiction but the difficulty still remains as to what constitutes such evidence. In that case it was holden that a magistrate who was half uncle to the plaintiffs wife was not disqualified from acting. In Pierce vs. Sheldon, 13 Johns. 191, it was holden to be questionable whether n was a legal disqualification to a magistrate that the plain uíT in the case was the son-in-law of the magistrate, though the court remark, “ that the gross in [424] decency of an exercise of judicial power in such case should induce them to scrutinize the proceedings with a jealous eye.” It is quite as difficult to fix on any precise limit as to the extent or nature of interest in a party which will exclude a magistrate on account of relationship. We think, however, where the party is only conditionally liable, as in the present case, on default of his principal, which default may or may not accrue, mere relationship to a surety who is no party to the proceedings, is not such an objection as to disqualify the magistrate. In this, and numerous similar cases, as in the trial of an original suit, where bail has been taken ; or a third person has become indorser of a writ; or where suit is against a deputy for neglect of duty, and the bondsmen of the sheriff may thus be rendered liable; and in many other instances of collateral liability for official responsibility where an original suit is pending, in which such person is not a party, we hold the objection to the action of the magistrate, on the score of kindred to the party who may thus be ultimately liable, furnishes no such evidence of partiality as to exclude his jurisdiction. We are unable to find any authorities which go to this extent, and we see no reason to regard a person standing in such relation as subject to bias to such a degree as to render it hazardous or dangerous to permit him to act as a magistrate. There are some cases of this description, in which an individual, from motives of delicacy, might relinquish his jurisdiction; but we do not regard the exception as a sufficient disqualification to a legal exercise of judicial power. The objection, therefore, which has been taken on this ground, is overruled. Various other objections have been taken, but most of them have been heretofore holden invalid by us, and we regard them as insufficient, for the reasons urged by the counsel for the defendant. The exceptions taken, therefore, to the discharge of the debtor, cannot prevail, and there must be a Nonsuit entered.