Barlow and Barlow. Ex'rs v. . Norfleet, Adm'r. , 72 N.C. 535 ( 1875 )

1. Was Joseph W. Loyd a competent witness to prove a conversation that took place between the testator of the plaintiff, and the intestate of the defendant? It is settled by the case Hallyburton v. Dobson,65 N.C. Rep. 88, that he is not. The testator of the plaintiff was a trustee of the slave in question for the witness, for his life, and the plaintiff would be a trustee in like manner of the sum recovered. The proposed witness was substantially a plaintiff in the action.

2. Was the judgment of the Probate Judge, passing on the account of the executors of Henry S. Loyd and allowing commissions on them, admissible in the evidence to show that the executors were entitled to that amount of commissions, and that the personal estate, except the slave had been exhausted in the payment of debts, c.?

The Probate Judge was personally interested in the commissions. He is excluded from jurisdiction in such case by C. C. P., Battle's Rev. chap 90, sec. 3. It is true that in the subsection immediately following, it is said that unless he is objected to by reason of his interest, at the first hearing of the matter before him, the disqualification is waived. But this implies that the judgment is given in some action regularly before him, to which there are parties having an opposite interest in the matter, and capable of taking objection. It does not appear that there has ever been any action or special proceeding between the legatees and the former executors of Henry S. Loyd, or those who now represent such executors, for the settlement of his estate, in which it would be necessary to fix the amount of commissions to be allowed to the executors. In the case of such an action pending, if the legatees, (being competent to act,) do not object to the jurisdiction of the Probate Judge, to fix the commissions in which he is interested, the allowance may fairly be considered as made by consent and therefore binding on the parties. It did not require a statute to disqualify a Judge from sitting on his own cause. A revered maxim of the common law forbids it.

The question as to the effect of a judgment made by a Judge who had an interest was considered in the case of Dennis v. The Grand Junction CanalCo., 16 E. L. E. Rep. 62, and it was held that such a judgment was not void, but voidable, and that it must be avoided either by the Court that rendered it, or upon appeal or other suitable proceeding in a Superior Court. But that must be understood to apply to proceedings inter partes. Anex parte judgment, as the allowance of commissions in this case was, must be liable to be attached collaterally.

3. As it does not appear that the Judge of the Superior Court, on the trial, (trial of the present action) was requested to, or undertook himself to adjudge on the amount of the commissions to be allowed to the executors, no question arises as to his right to do so. We express no opinion on that point.

4. The administration of the estate of Loyd was closed before the commencement of this action. Whatever the executors or their representatives should receive for commissions, was then owing and though not then reduced to a certainty by a judgment, was capable of being so ascertained, and if it was so ascertained by the time of the trial, we conceive there could be no objection to the counter-claim, on the ground that it did not exist at the commencement of the action.

5. The Judge left it to the jury to give the plaintiff interest or not, as they should think proper. We think he should have instructed them, that if they found that defendant owed the principal money demanded, the plaintiff was entitled to interest, from the time it became due. The Rev. Code, chap. 31, sec. 90, which we have not found in Battle's Revisal, says that all sums of money due by contract except, c., shall bear interest. Of course there are necessary exceptions to this rule other than those stated in the act itself, as if the contract be that the principal shall not bear interest. But so far as appears there is nothing in the case, to take the debt to the plaintiff, out of the general rule. The hardship of the case from the subsequent loss of the slave is manifestly insufficient for that purpose. There is error in the matter mentioned.

PER CURIAM. Judgment below reversed. Venire de novo.