38 N.J.L. 200 | N.J. | 1875
The opinion of the court was delivered by
This certiorari brings up for review an order of bastardy, made January 20th, 1874, adjudging the prosecutor to be the father of a bastard child, and ordering him to pay certain designated suras for the child’s support; and also, ordering the mother of the child to pay for the same purpose a certain weekly sum, in ease she should not nurse and take care of the child.
By the case, it appears that one of the justices making the order was related, in the third degree, to the mother of the child, being her cousin, and that upon the trial of the matter being called before the justices, the prosecutor interposed a challenge to the jurisdiction of that justice in the cause, which challenge was overruled, and upon this alleged error the prosecutor relies for a reversal of this order; his position being that the justice was so related to a party in the controversy as to be disqualified from sitting in judgment thereon.
The first question raised is, whether the mother of the bas
These sections alone point out the kind of redress which the law provides. Sections 2, 3 and 4, which are taken from 6 Geo. II, are mainly to secure the person of the reputed father pending the question of his liability, while the act of March 18th, 1858, is chiefly designed to give the reputed father an opportunity of having that question passed upon
The next question raised is, whether the relationship disqualifies the justice. Upon this point it is insisted for the defendant that the two justices do not constitute a court of record, and therefore they are not within the prohibition of our “ act the-better to promote the impartial administration of justice,” passed February 24th, 1820. Nix. Dig. 441. But without determining the character of the tribunal, it seems to me that the disqualification exists independent of the statute, and extends to every judge called by the law to sit in judgment upon the rights of his fellow men. The maxim which lies at the root of this disqualification, “ nemo debet esse judex in propria causa,” embodies so essential a principle of natural justice that it is said even the omnipotence of parliament cannot drive it from the English courts. The courts of justice may be destroyed, but they cannot be separated from this law of nature and live. The cases in which the principle has been exemplified and applied, are far too numerous for citation. Many of them have held that a
In the case before us, the cousin of the mother undertook to adjudicate between the mother and the father, how much each should contribute towards indemnifying the township for the support of their child; and it would shock our common sense of justice if such an adjudication could stand.
If the two justices did not constitute a court of record, then the case is not within the letter of the statute, and a challenge, eo nomine, was not authorized. The justice ought, upon his own motion, to have declined to sit; or, if he persisted, a writ of prohibition would, at common law, issue to prevent him ; or, upon his going on to judgment, his kinship might be assigned as error in fact, and the judgment reversed. The Company, &c., of Cluster v. Bowker, 1 Str. 639.
But, at all events, when such adjudications are legally brought up by ccrtioro,ri, and the fact of interest is made legally to appear, as in this cause, by a statement agreed upon, the court will do complete justice. Dimes v. Grand June. Canal, 3 H. L. C. 759, 785.
Let the proceedings below bequashed.