| Ga. | Nov 17, 1885
William A. Rawson, one of the plaintiff’s lessors, died pending the action, leaving surviving him his widow and one child by a former marriage, and also leaving a will, in which the widow and others were appointed his executors. The will was proved, and the executors named qualified, and became parties to the suit in lieu of their testator. Before the case came on for trial, Mrs. Rawson died, she having previously received all of her husband’s estate to which she was entitled; after her death, the suit proceeded in the name of the surviving executors. Judge Fort, who presided at the trial, was related by blood to Mrs. Rawson within the fourth degree of consanguinity, and was, consequently, related to her late husband in the same degree by affinity. He was elected judge after the death of both these persons, but at the time of the trial, he bore no such relation to any of the parties to the suit, or to any one having any interest whatever in the subject-matter of the same or in Mr. Rawson’s estate. When the case was called for trial, objection was made to his presiding, on account of his past relationship to these parties. Anxious to avoid anything like an appearance of partiality or prejudice in the conduct of the suit, and to preserve both himself and the tribunal over which he presided from the appearance of suspicion, he asked to be excused from the performance of this duty, and suggested that the parties select some one as judge pro Jiao vice to preside in his stead. This suggestion was declined, for the reason that such an agreement could not be lawfully made, unless he was disqualified. He was thus forced to pass upon and determine his own qualification to act as judge. When the alternative was presented between the inclination of a magistrate,
1. We are satisfied that the result reached was correct; that there was no good reason in law or in fact why he was not competent to afford the parties litigant a fair and impartial trial, and why he was not in a position to shield both himself and the court from the imputation of improper conduct. The caution with which he proceeded, and the thorough and patient investigation given to the subject, under the most trying and embarrassing circumstances, should have been sufficient to disarm the suspicions of even the most censorious. While it is true that, under our law (Code, §205), a judge or justice cannot sit in any cause or proceeding, where he is related to either of the parties within the fourth degree of consanguinity or affinity, or in which he or his relations have any pecuniary interest, or in which he has been of counsel, without the consent of parties, and while we are impressed with the importance of affording to parties a trial free from partiality or bias on the part of the presiding magistrate and others engaged therein, and we shall strenuously insist that the administration of justice shall not only be pure, but above suspicion, yet we are not prepared to go to the length of holding that, if the facts from which these unfavorable inferences may be deduced have ceased to exist at the. time of the trial, and cannot therefore possibly come into operation, they are sufficient to disqualify the judge, and to relieve him from the duty of affording the parties an early opportunity of having their case tried.
The precise question made has never before, so far as
According to the strictest rule of the common law in cases closely analogous, it would seem that affinity, where the party was dead, towards whom the presiding magistrate or sheriff summoning a jury bore that relation, would not amount to a disqualification, especially where no widow or child survived him, who might have an interest in the subject-matter of the controversy. Lord Coke, in his commentary upon Littleton, 156 (a), says a challenge to the array of jurors lies where the u sherife or other officers be of kindred or affinitie to the plaintife or defendant, if the affinitie continue.” In Munson vs. West, 1 Leonard, 88, it seems to have been held necessary to the continué anee of the husband’s affinity, that he should have had issue living by the wife, though she be dead, and it mattered not that such issue should be heritable to the land,
The case most directly in point is the Town of Winchester vs. Hinsdale et al., 12 Conn., 87, in which it was held, where a party to the suit had married the aunt of the judge before whom such suit was tried, but before the commencement of the same, she had died, leaving issue, who, as well as the husband, were living at the time of the trial, that the judge was not thereby disqualified to officiate in the cause. This is the judgment of an able and distinguished bench, founded, it is true, upon the statute of the state, but which, as far as it goes, does not differ from our own, as will be seen when reference is had to the opinion in full Mr. Justice Church, who delivered the opinion (p. 92), says: 11 We are equally well satisfied that no such relationship existed between Judge Burrall and Martin Rockwell, Esq., as disqualified the former to give judgment in this case. In England no relationship existing between a judge and a party is a disqualification. A judge is presumed to be impartial and uncorrupt. By our law the relationship of uncle and nephew, by nature or marriage, disqualifies a judge. Stat., 148, tit., 21, s.38. By the marriage of his aunt with Rockwell, Judge Burrall became nephew by marriage to that gentleman; but the dissolution of the marriage by the death of the aunt dissolved the relationship of uncle and nephew, which had been constituted by the marriage. The circumstance that children of the marriage survive does not, in our opinion, operate to continue the affinity; for although Judge Burrall and Mr. Rockwell are in different degrees of consanguinity related to the surviving chil
Though the facts in our case do not require us to go to the length of this decision, inasmuch as both the kinswoman of the judge and her husband were dead when he took charge of the case, and she left no child or other descendant by him, and had been settled with for all she was entitled to in the estate, yet we are much impressed with the sound sense and satisfactory reasoning of this decision. To multiply disabilities by a more than doubtful construction, when none are created by the words of the státute, we apprehend, would be as unwise as it is impolitic and harmful. The admirable^ sagacity of our British ancestors in extending to their judges the fullest confidence, and discouraging everything like distrust of their integrity and wisdom, has been amply vindicated by results. In their long career as a government, there has "been but one miscreant like Jeffreys, and but a single instance of moral infirmity like that f Bacon. This generous confidence has promoted, if not created, a pride of character and a pride of places, that has secured an incorruptible and efficient administration of justice and has afforded ample protection to every right of the subject and the crown. It has made England, in this respect, a light to the world, and the admiration, if not the envy, of other nations.
2. Both parties in this case claimed under Anderson Covington, who, it is admitted, derived title to the land in dispute from the person to whom it had been granted by the state. The plaintiffs claimed under a quit-claim deed from Covington to Martin Burke, and the defendant held under a warranty deed from Covington to George W. Hamih Two deeds in this chain of title were lost, viz., one from Scruggs to Covington, and that from Covington to Hamil, and counsel agreed in writing that copy deeds from the record might be used in lieu of the originals, “ without exhibiting the primary evidence or accounting for it,”
Estoppels are not generally favored and are never resorted to, except where it would be more unjust and more productive of evil to hear the truth than to forbear the investigation. Code, §3753. It is true that the estoppel relied on here was a solemn admission injudioio, made during the progress of the trial, and upon which both parties acted, and to the extent of the admission thus made, parties are bound by it, but we do not understand from its terms that the plaintiffs waived any right to render the prosecution of his suit effective by denying the genuineness or validity of the title under which their opponent held possession of the premises. Had this been in contemplation, it seems to us it would have been expressed in plain and1 unequivocal terms, and had an agreement been offered in such terms to the plaintiffs, it is quite probable that it would, without hesitancy, have been rejected; had they consented to such terms, it would have amounted to an abandonment of their suit. Its sole purpose was to dispense with the necessity of laying the foundation for the introduction of .secondary evidence. There is nothing equivocal or ambiguous in the terms of the agreement; they were designed only to relieve the parties from the necessity of accounting for the lost originals and of exhibiting “ the primary evidence,” which, without this waiver, they would have been compelled to introduce. This exception is, therefore, not well taken. It is scarcely necessary to remark, that it was the duty of the court to interpret this agreement, and that he did not err in withholding it as an instrument of evidence from the jury. They had nothing to do with it; it was not intended for them.
3. There was no error in the ruling excepted to in the sixth ground of the motion for a new trial. It is at best
4. We think the court committed no error of which the defendant can, with any show of propriety, complain in in the charge excepted to in the 7th ground of the motion for a new trial. The jury might certainly infer the spnriousness of the deed attacked from the certificate emanating from the executive department, to the point that the justice of the peace who attested the deed was not in commission at the date of this attestation; and a charge to the effect that they might consider-how far this inference was rebutted by testimony going to show, that he acted in that capacity, and was, if not a de jure, at least a dafaeto justice at that time, and if a defacto justice only, ‘ still his acts might be valid, and if such had been shown to them, they were circumstances that they might regard in considering the question at issue,’ was more favorable to the defendant than he had any right to ask. The law is not, as defendant’s counsel insisted, “ that full proof of the attesting witness being a de facto officer, as defined by the charge, was a complete rebuttal of the presumption of forgery arising from proof furnished by the records from the executive department, that he held no commission.” The proof of such circumstances as were testified to in connection with his acting in the capacity of justice prior to the date of the commission, might, perhaps, be properly considered by the jury in determining whether the deed was a forgery. Had the court gone further, and charged, as defendant’s counsel thought he should have charged, in our opinion he would have committed grave error. He
5. The 18th ground of the motion excepts to the entire charge as summing up more favorably for the plaintiff than the defendant, and specifies instances in which it is alleged this was the case. We- are compelled to say that a careful examination of this able, fair and comprehensive charge leaves no such impression upon our mind.
The foregoing are the only special grounds of the motion for a new trial. The general grounds may be disposed of by
Judgment affirmed.