Lloyd v. Smith

1 Charlton 143

• Court: Chatham Superior Court, Ga.
• Decided: January 15, 1808
• Status: Published

Opinion

By the Court.

My first impressions were with the plaintiff’s cotmsel, and under the influence of those impressions, I intimated at the last Superior Court, of Bulloch county, that I would feel no difficulty in requesting the attendance of the justices of the inferior court in cases like the present. I then conceived, that where the judge had acted as an attorney, and received a fee from one of the parties, it would or might create an interest in his mind and feelings incompatible with an unprejudiced,,,impartial discharge of his duty, and that if such might be the result, it was an “ interest” intended to be guarded against by the act of the General Assembly.

The decision in Bulloch was not then, nor has it been since acted upon ; and as I discovered that it had not given general satisfaction,,I consented to grant the present rule, in order that I might avail myself of the advantages which always accompany the arguments of my learned brethren of the bar.

I am now of opinion (and that opinion, with the exception of counsel for the plaintiff, is concurred in by this bar,) that the term “ interested” ought not to be taken in its common acceptation, or as used by philologists, but that it must receive a legal and technical import, — an import having a relation (as it was emphatically observed by my brother Harris') to ‘■‘■pounds, shillings, and pence;" that is to say, an advantage to be derived, or more properly, a right to be established, and last, by the verdict of a jury. Such an advantage, or such a right, as a “ party” to the action expects to gain, or to be deprived of. The agency of attornies, and the fees they may have received, repel the idea of such an advantage or such a right.

Having decided on this point, an opinion on the constitutionality of the law, becomes unnecessary ; and I am glad that it is so ; for, although I should not hesitate giving an opinion on that point, when the principles of justice and the case may require it, yet 1 shall always avoid a conflict with the legislative department by voluntary declarations.