I am inclined to the opinion, that the order of the sessions was void on its face. The court was composed of the county judge and two justices; all of whom were necessary to constitute a court of sessions. (Const. art. 6, § 14; Jud. Act, § 40. Am. Jud. Act, § 35.) And the record shows, that one of them was both party and judge, which the law does not allow. (2 R. S. 275, § 2. Foxham v. Tithing, 2 Salk. 607. Great Charte v. Remington, 2 Str. 1173. 1 Salk. 396, 7, 8. Reg. v. Chelt. Com’rs, 1 Q. B. Rep. 466. 3 Bl. 298. And see Oakley v. Aspinwall, 3 Comst. 547, and cases there cited; 14 Vin. 575 ; Co. Litt. 157 a ; Earl of Derby’s case, 12 Co. R. 114; Hob. 87 ; 3 Bac. Abr. 756; Paddock v. *412Wells, 2 Barb. C. R. 331.) A judge, it is said, may sit, where jurisdiction is conferred by the constitution, and upon no other tribunal; for otherwise there will be a failure of justice. (Oakley v. Aspinwall, supra. Paddock v. Wells, supra. In re Leefe, 2 Barb. Ch. Rep. 39. 2 Str. 1173. 7 Q. B. Rep. 1015.) But even that would not aid the plaintiffs in this case; for if the justice had refused to attend or sit as a member of the court, another justice would have been substituted by the county judge. (Jud. Act, § 40. Am. Jud. Act, § 35.) Cases were cited by the counsel for the plaintiffs, in which the judge was a stockholder, or related to a stockholder. (Stuart v. Mech. & Farm. Bank, 19 John. 501. Bank of Lansingburgh v. McKie, 7 How. Pr. R. 369.) The first was put upon the ground that the chancellor had exclusive jurisdiction of cases in chancery, and, though a stockholder, was not a “ partyand the other, also, upon the ground that a stockholder was not a party. This may be within the spirit of the position that a suit by and against a moneyed corporation is not prosecuted oi4 defended for the immediate benefit of a stockholder, though he should own ninety-nine hundreths of the stock. But when the memory of the distinguished jurist, who delivered the opinion of the court in the celebrated case of McCulloch v. State of Maryland; was assailed on the subject, his friends alleged that he •disposed of all his interest as a stockholder in the United States Bank before the decision ; and that he did so, because of the pendency of that suit. The decrees and orders of a lord chancellor of England, were reversed in the house of lords, because he was a shareholder in a corporation which was a party; (Dimes v. The Grand Junction Canal Co., 16 Eng. L. & E. R. 63. And see Dimes' case, 14 Q. B. 554, and cases there cited.) It is true, the lords who delivered opinions, seein to have thought his decrees and orders were not void, but voidable; But our statute, and the case of Oakley v. Aspinwall, are decisive ; and there is nothing in the case in the house of lords; giving the least sanction to the assumption of jurisdiction in such cases. And certainly, there is every good reason, both *413legal and moral, why a judge should not sit, where he or his relatives are interested.
But it is insisted that the defendant is estopped, because the order was entered by consent of his attorney. There are some cases, or rather dicta, perhaps, to that effect. (Hardrcs, 44. Bronson, C. J. 3 Comst. 562. 3 Bl. 298. 1 G. B. 475.) And such seems to be the rule as to challenges to jurors. But in this case, as to the entry of the orders, the proceedings were in invitum ; and besides, the act of a party as judge in his own cause, as we have seen, is simply -void, under all circumstances. And perhaps this is the safer and better rule, where the judge is incompetent from interest or relationship. (Oakley v. Aspinwall, supra. Edwards v. Russell, 21 Wend. 63. Foot v. Morgan, 1 Hill, 654. Striker v. Mott, 6 Wend. 465.) •The statute is peremptory, that he shall not sit. It seems to me there should be no exception, unless, perhaps, where, by the provisions of the constitution, the legislature has no power to prevent a failure of justice by transferring the cause to another júrisdictíon.
That his duties in this case, as superintendent of the poor, were wholly official, and in which the justice had no personal interest, does not obviate the difficulty. He was not only a party nominally, but he represented interests opposéd to the defendant. The superintendents of the poor were a corporation, enforcing a duty by legal proceedings against the defendant. Such a corporator, possibly, can be a witness in certain cases. (Pack v. Mayor, &c. of New- York, 3 Comst. 489.) But he should not act as judge» In the case of Foxham v. Tithing, the order in which the justice joined at the sessions, was in the matter which concerned his office as surveyor of highways, and it was quashed-.
But if this order was valid, the plaintiffs showed no default on the part of the defendant. He kept his mother about a year and treated her well; his doors were always open to her, and he was ready and willing to support her. She left him without cause, and he had no power to prevent her. He could not restrain her from visiting her daughter and the neighbors. She, *414and they; and the plaintiffs; knew that he would support her if she would return; and she' could have been conveyed to his house a few rods distant, probably With less trouble and expense than to the poor-house. I do not say that he was under no obligations to extendió her, at least, the ordinary .courtesies of life, to enable her to see her friends; nor that filial regard should not have prompted him, under all the circumstances, to have gone and invited his own mother to leave the poor-house. But we are considering the legal rights of the parties; As she was not insane, he could not confine or restrain her; and if, as he complained, officious persons persisted in enticing her away without any fault on his part, he was not obliged to go after her. This view of the case renders it unnecessary to examine some other points, supposed by the counsel to arise.
[Fulton General Term, January 2, 1854.Band, Cady and C. L. Allen, Justices.]
There should be a new trial, with costs to abide the event.
Ordered accordingly.