• The appeal in this case, under section 23 of the general railroad law, (1 Comp. L. 1967), brings before us all matters which were before the Judge of Probate, properly bearing upon the question of the confirmation of the jury’s report or verdict, and places the case before us in the same asjoect as it stood before him. And if any sufficient cause was shown before him against the confirmation, we must set aside the report or proceedings so far as they shall be found defective.
The first question presented is whether the jury was properly constituted to authorize them to act at all upon any question before them; if not, it is of no consequence what their action may have been.
The Statute (Section 20, Ch. 67, Comp. Laws, as amended, Laws of 1859,p.562, Laws of 1864,p. 15, 14,) requires a jury to consist of twelve freeholders, and provides for drawing the jury from the petit jury box of the county.
Two of the jurors so drawn, in this case and who participated in all the action of the jury, were stockholders of the company, seeking by these proceedings to condemn and appropriate the respondents lands. They were not challenged, nor any questions asked of them touching their qualifications, before or at the time they were sworn. But the respondents were ignorant of their being such stockholders, until after they were sworn and had met on the line of the railroad for action. The respondents thereupon entered a protest with the jury against further proceedings; which, however, the jury disregarded and went on with their proceedings. The Judge did not accompany or preside over them in their action, and we are unable to find any authority in the act for him to do so. The respondents could not bring this objection before him until the report or proceedings of the jury came up before him for confirmation.
The two stockholders upon the jury were substantially *25parties interested in condemning tbe lands and reducing tbe damages; they were in effect deciding m their own cause.
The maxim that no man shall be judge in his own cause, is one deeply rooted in the common law, and can never be overlooked anywhere, where impartial justice is one of the objects of judicial administration. And in this special proceeding for taking the property of individuals against their will, in which the jury act in effect as judges, in the absence and beyond the control of the Court, we think this maxim is applicable to them as well as judges. Lord Coke asserts that “even an act of Parliament made against natural equity, as to make a man a judge in his own cause, is void, in itself.”
The cases in England and in this country are numerous, where the judgment and proceedings of courts and various tribunals have been set aside on the ground of such interest. And in a modern case in England, where the Lord Chancellor, who was a shareholder in a company, in whose favor the Yice Chancellor had rendered a decree, affirmed the decree, it was reversed by the House of Lords, on that ground, though there was not the slightest reason for believing that his action was influenced by that interest, or that it was present to his mind. ' (Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Gases, 769).
It is not a matter of discretion with the judge or other person acting in a judicial capacity, nor is it left to his own sense of propriety or decency; but the principle forbids him to act in such capacity at all, when he is thus interested or when he may possibly be subjected to the temptation. His powers are absolutely subject to this limitation. ( Washington Ins. Co. v. Price, 2 Hopkins Ch. 2.) And in a court composed of several Justices of the Peace, if one of them be interested in a proceeding before them, in which he acts at all, the judgment or determination will be void, though there was a majority in favor of the deci*26sion, without counting the interested Justice. See Queen v. Justices of Hertfordshire, 6 Q. B. 753; also Queen v. Justices of Suffolk, 18 Q. B. 416; Queen v. Justices of London, ib. 421; and see my brother’s Cooley’s work on Constitutional Limitations 410 to 413, where the authorities are collected and the result fairly stated.
It has also been held that this objection- is not waived by the neglect of a party to take advantage of it, on the first opportunity. But it may be raised in the appellate Court for the first time. Richardson v. Welcome, 6 Cush. 882 ; Dimes v. Proprietors &c., 3 House of Lords Cases, 787; and see Sigourney v. Sibley, 21 Pick. 106.
These stockholders must in this case have been aware of their own interests. And the Company and its counsel must be presumed to have known it. The petitioners, therefore, were bound at their peril to raise the objection themselves, and cannot be allowed to take any benefit from the action of a jury thus constituted, as against parties who were ignorant of the facts at the time the jury was sworn.
Though the words of the statute might seem to require that only the first twelve names drawn from the box, should compose the jury; yet as the same section requires them to be freeholders, while the jurors whose names are returned by the assessors and put into the box are only required to be electors, ( Comp. Laws 4850 to 4355), it is manifest that it might be impossible ever to obtain a legal jury, unless any of those drawn from the box might be challenged for cause. "We held in Convers v. Grand R. & Ind. R. R. Co. 18 Mich. 459, that challenge for cause might be made. And we think it follows that those set aside on such challenge, must be considered as no part of the twelve names drawn, who are to compose the jury, and that the drawing may continue till a qualified jury is obtained. ,
We are not called upon to express any opinion as to the power of the Legislature to authorize such stockholders to sit as jurors; as we are satisfied they have not attempted it.
*27The jury was illegally constituted. The case stands as if no jury had ever been empanneled. All their proceedings and the .confirmation thereof must be set aside, and the Judge of Probate must proceed to empannel a jury for the purposes required by the act.
The respondents must have judgment for costs.
The other Justices concurred.