Mr. Day, the magistrate before whom the writ in the original suit was returnable and returned, had such an interest in its event as disqualified him to take jurisdiction of it. He was an inhabitant of the town of Templeton, and they were duly summoned as trustees of the defendant; and, in that relation, they had a direct interest in the event of the suit, for what-, ever might be the disposition of it, they would be entitled to recover their costs. They would have this right, if the action should be maintained and they be either charged or discharged, or if the action should be defeated and judgment rendered for the defendant. Rev. Sts. c. 109, §§ 49, 50, 51. It was suggested in the argument for the plaintiff, that this result might be avoided by discharging the trustees, or abating the writ, on the ground that the magistrate could not lawfully take jurisdiction of the suit so far as it related to them. But that would make no difference ; for costs are awarded to a defendant when it is decided that the court have no jurisdiction of the action brought against him. Cary v. Daniels, 5 Met. 236. Turner v. Blodgett, Ib. 240, note. Jordan v. Dennis, 7 Met. 590.
The degree of interest in the magistrate is immaterial. The most minute is sufficient to disqualify him from taking jurisdiction, unless the objection be removed by some positive provision of law to that effect. Pearce v. Atwood, 13 Mass. 324. Commonwealth v. Reed, 1 Gray, 472. It is not avoided in earlier cases by the provision contained in Gen. Sts. c. 122, § 13.
As Mr. Day could not take jurisdiction of the original suit, the recognizance which was required and taken of the defendant was taken without authority and is void. The demurrer mu=t therefore be overruled.