Several grounds are relied on as entitling the plaintiff to the relief sought. Those which are deemed to require notice are: 1st, That • the judge presiding when the judgment was rendered, was incompetent to sit in the cause. 2d, That the person who appeared and confessed the judgment, as attorney for the defendant, acted without authority. 3d, That the record before the Supreme Court when the judgment was there affirmed, was imperfect.
In reference to the last two grounds, it will suffice to observe, that they are not supported by the exhibits referred to by the plaintiff. The letter to the attorney, Thomas, does not show a want of authority, but rather the contrary. Having, as appears, a general authority to represent the defendant in the suit, if the attorney disobeyed the instructions of his client, or abused his trust, he was responsible to his principal for the abuse of trust, but his acts were binding on the latter, as affecting the rights of third persons. (Merritt v. Clow, 2 Texas Rep. 582.)
The alleged defect in the record, on which this court acted in affirming the judgment, appears to have consisted in the absence of a petition addressed to the district judge, some months after the term of the court at which the judgment was rendered, *110asking an injunction and new trial, and the indorsement upon it by the judge, of his refusal to grant the prayer of the petition, because he had been originally of counsel in the case.
This paper manifestly constituted no part of the record of the case brought to this court by the writ of error,- and could not have been noticed by the court, if it had been incorporated in the transcript. Besides, a suggestion of diminution of the record, could not be heard after the term, as a ground for vacating the judgment. The judgment of the District Court, which it is now sought to enjoin and review, was rendered at the Fall Term, 1842; and it was affirmed by this court, at the December Term, 1846. This suit was instituted in January, 1851. In so far as it sought to bring under review the merits of the original judgment, on any other ground than its alleged nullity, it was barred by the statute. (Hart. Dig. Art. 2385, p. 783.) The application of the appellant in the judgment affirmed by this court at the December Term, 1846, for a re-hearing, and the judgment refusing the application, at the December Term, 1848, (Chambers v. Hodges, 3 Texas Rep. 517,) did not suspend or affect the judgment formerly rendered, or prevent the running of the statute. It determined, that the application for a re-hearing came too late, after the term had passed, and left the former judgment as it stood at the term at which it was rendered.
The only question which remains to be considered is, whether the judgment of the District Court was void by reason of the alleged incompetency of the judge presiding at the time of its rendition. If so, it must be conceded, that the judgment of affirmance rendered by this "court, could not impart to it validity, but would itself be void by reason of the nullity of the judgment appealed from. (Horan v. Wahrenberger, 9 Texas Rep. 313.) If a void judgment, it may be vacated and its execution enjoined at any time.
The material allegation of the petition, to show the nullity of the judgment, is, that it was obtained before a judge who was “ incompetent in the cause, because he was the attorney of the said *111Hodges in the said suit, and, as your petitioner is informed and believes, was to get a part of the judgment for a fee.”
For the purposes of the demurrer, this allegation, in so far as it states matters of fact, must be taken as true; and the first inquiry which arises is, was the judge thereby rendered incompetent to sit in the case ? Two causes of incompetency are alleged; first, the having been of counsel for the plaintiff in the cause; secondly, being interested in the judgment.
When the record of the judgment was brought before this court by appeal, and upon the application for a rehearing, (Chambers v. Hodges, 3 Texas Rep. 517,) the former of these grounds only was thereby presented. The pleadings were signed by other persons as attorneys for the parties respectively; but there were entries showing that the cause had been “ continued, the judge having been of counsel;” and the entry of the final judgment contained the following recital: “ All exceptions to the competency of the judge, waived by defendant’s agent, S. G. Thomas, and judgment confessed,” &c. On that occasion, the chief justice said, “ The judgment was not a nullity, and could not be treated as such, nor could a reversal be expected, when no objections to its validity, or even to any alleged errors, were presented to the court, by brief, or otherwise. All these objections must be regarded as having been adjudged and disposed of, and as no longer open to judicial examination or revision by this, or any other tribunal.” (Id. 533.)
This opinion, it seems, must have proceeded on the ground, that the having been of counsel did not incapacitate the judge to sit, to entertain a confession of judgment in the case. We have been referred to no provision of law in force at the time, nor are we aware of any, which forbade a judge of the District Court to sit in any case in that court in which he had been of counsel. The constitution of the state contains such a prohibition, (Art. 4, sec. 14;) but there was none such, that we are aware of, in the constitution or laws of the republic, in force at the time of the rendition of this judgment. Interest seems to have been the" only recognized disqualification of a judge of the District Court *112to sit in that court, (Act of 24th May, 1838, see. 8.) To this the having been of counsel, was made an additional disqualification, to take part in the decision of a cause in the Supreme Court, (Act of December 15th, 1836, sec. 20;) but the provision was not made in terms to apply to the District Court. Our opinion upon the effect of the alleged interest of the judge will dispense with the necessity of a final opinion at present, upon this question.
• The statute in force at the time of the rendition of the judgment, as we have seen, recognized interest as a disqualification. It required the judges to alternate for the trial of causes in their courts, in which they were interested. Interest has always1 been deemed a disqualification of the person having the interest, to sit in judgment in the case. It has even been said, that an act of parliament which should make a man a judge in his own case would be void, for that it is not to be supposed that the legisla-: ture could have intended such a consequence. A person cannot be both judge and party. The statement of the case involves a contradiction in terms. A man cannot be a judge in his own case. Supposing it to be true, as alleged, that the presiding judge was to receive a part of the judgment as a fee, he was an interested party, and was consequently incompetent to sit in the case.
Gould the parties remove his disqualification by their waiver of exceptions, and thus render him competent to sit in the case, and render judgment by confession ? It would seem not. Consent cannot give jurisdiction, or capacitate a person legally incompetent to sit in judgment in a case. (Wynns et al. v. Underwood, 1 Texas Rep. 48; Oakley v. Aspinwall, 3 Comstock, 547.) Accordingly, it has been held, that a judgment, rendered by confession, where there was a want of jurisdiction, or the presiding magistrate was incapacitated to sit in the ease, is void. (Ibid., and cases cited; Bates v. Thompson, 2 Chip. 124 ; Hill v. Wait, 5 Verm. 124; Low v. Rice, 8 Johns. 409.) We conclude, that the presiding judge being interested, was absolutely incapacitated to take cognizance of, or sit in the case. The *113consent of parties could not remove his incapacity, or restore his competency against the prohibitions of the law; which was designed not merely for the protection of the party to the suit, but for the general interests of justice. And, consequently, the judgment rendered by him was a nullity, and left the case remaining undisposed of, as completely as if the judge had not been present at the court.
We are of opinion, therefore, that the court erred in sustaining the demurrer to the petition; and that the judgment be reversed and the cause remanded.
Reversed and remanded.