A magistrate authorized to sign writs can not sign them In his own case; Doolittle v. Clark, 47 Conn. 316.
Where there is no other tribunal that can act, the judge may hear the case;. Freem. Judg. § 146 ; 5 H. L. C. 88 ; Stuart v. Me chanics' Bank, 19 Johns. (N. Y.) 501 ; contra, Washington Ins. Co. of City of New York v. PACO, Hopk. Ch.' (N. Y.) 2 ; Hall v. Thayer, 105 Mass. 221, 7 Am. Rep. 513. See Cooley, Const. Lim., 2d ed. 207, 506, 509; People v. Gies, 25 Mich. 83.
It is said that a judge who has a personal interest in a cause may hear it if counsel waive the objection. Parke, B., heard a case under such circumstances; Reedie v. L. & N. W. R. Co., 4 Ex. 244. It is said to be set tled in England that he must sit if the case cannot be heard otherwise. Pollock, First Book of Jurispr. 265, citing Thellusson v.1 Rendlesham, 7 H. L. C. 429. Lord Coke heard the case of Sutton's Hospital, 10 Rep. *la, though he was at the time one of its governors, and decided it in its favor.
It was held that the absence of a judge from the court-room for a considerable time during the arguments to the jury without the consent of the parties was reversible er ror ; Waller v. People, 209 Ill. 284, 70 N. E. 682.
A judge is not competent as a witness in a cause trying before him, for this among other reasons, that he can hardly be deemed capable of impartially deciding on the- ad missibility of his own testimony, or of weigh ing it against that of another ; 1 Greenl. Ev. § 364; Ross v. Buhler, 2 Mart. La. (N. S.) 312 ; v. Gallen, 2 Cal. 358. See Com. Dig. Courts (B 4), (C 2), (E 1), (P 16), Juitices (I 1,"2, 3) ; Bacon Abr. Courts (B) ; 1 Kent 291 ; CHARGE.
In the House of Lords Lord Chancellor Westbury abstained from taking part in the decision because he had been concerned in the case ; 'Sbra v. Phillipps, 10 H. L. 624.
While acting within the bounds of his ju risdiction, the judge is not responsible for any error of judgment or mistake of law ; 12 Co. 23; Ross v. Rittenhouse, 2 Dall. (Pa.) 160, 1 L. Ed. 331; Reid v. Hood, 2 N. & M'C. (S. C.) 168, 10 Am. Dec. 582; Yates v. Lans ing, 5 Johns. (N. Y.) 282; Ely v. Thompson, 3 A. K. Marsh. (Ky.)' 76; Evans v. Foster, 1 N. H. 374 ; Stone v. Graves, 8 Mo. 148, 40 Am. Dec. 131; Morrison v. McDonald, 21 Me. 550; Hamilton ..v. Williams, 26 Ala. 527; unless, possibly, a mistake was induced by gross carelessness or ignorance partaking of a criminal quality; 12 Mod. 493. An action will not lie against a judge of a court of record for any act done by him in his judi cial capacity ; 6 B. & C. 611. An action of a judge, to be criminally or even civilly' cog nizable, must be wilful and 1 W.
Bla. 19; Dawning v. Herrick, 47 Me. 462; Hamilton v. Williams, 26 Ala. 527; Yates v. Lansing, 9 Johns. (N. Y.) 395; Lenox r. Grant, 8 Mo. '254.
It is a rule sometimes asserted to be ab solute and sometimes only prima facie that a judicial officer has no protection against the consequences of an act not within his jurisdiction ; Piper v. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438; Clarke v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470; Sullivan v. Jones, 2 Gray (Mass.) 570; Brad ley v. Fisher, 13 Wall. (U. S.) 335, 20 L. Ed. 646. But a distinction has sometimes been suggested between acts in excess of jurisdic tion and those outside of it. Far' the latter it has been said that a judge of a court of superior jurisdiction is not liable ; Lord De Grey, C. J., in 2 W. Bla, 1141. Of this case it is said by a writer cited infra, who dis sents from the doctrine: "It is true this rule is a mere dictum, and also that the decision has been since overruled ; but this dictum has sometimes been referred to with approv al in subsequent cases ;" 15 Am. L. Rev. 440. And Field, J., in Randall v. Brigham, 7 Wall. (U. S.) 523, 19 L. Ed. 285, said that such a judge is not liable when he acts in excess of his jurisdiction, except for malice. This expression, like that of Lord De Grey, was obiter, inasmuch as the case sustained the jurisdiction which had been questioned. In Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80, this point was so decided, but the court drew a distinction between the case where the judge had acquired no jurisdiction at all, and the case where the act was merely in excess of jurisdiction after jurisdiction had been acquired. There the judge of the circuit court had imposed a re-sentence up on a prisoner, and was accordingly im prisoned; the supreme court held the second sentence illegal, and discharged the prisoner. These cases and the doctrine asserted in them have been doubted and .criticised by Arthur Biddle in 15 Am. L. Rev. 442 and note, where the authorities cited and relied on are critically examined. More recently the distinction has been discussed by Bishop, who states the doctrine of distinction be tween excess and absence of jurisdiction with approval, and even goes further, con sidering that where the jurisdiction is a close one and it is decided by the judge' or magistrate carefully and earnestly in favor of his jurisdiction, "in reason and not quite without support from authority," he should not "suffer, though another or even a higher court held the contrary"; 1 Bish. N. Cr. L. § 460 ; Bish. Non-Contr. § 783.