Year: 1867

parties suggests tnat it Is not case
proper for his action, because the alb
sent Judge, if present, could properly
aid in the trial thereof, because it is a
case to which his disability does not re-
late. The Judge reads the remaining
part of the section, and sees at once
that he cau only act as Judge Of the
Court of Appeals, in the cases to
which the disability of the absent
Judge relates, and there being no such
cause for trial, retires from the bench.
Is it not clear if the first part of the
sec zion created q doubt upon t he sub
ject, the latter part removes that doubt!
/ do not deem it necessary or profitable
to enter into lengthy criticism of the
first part of the section. 1t may be
said, think, with propriety, that the
words sis under any other disability"
were inserted ont of abundant caution,
so as to make it apply to all matters
and things that might come before the
Court other than in cases pending be-
fore it. For instance, its clerk, who is
the brother of one of the Judges, should
be removed, or an application might be
made to grant an appeal, and question
might be raised whether they were en-
braced by the words pending the case.


There are many reasons why the con-
struction / contend for should prevail.


In the Court of the last resort. the
parties are entitled to have their cases
settled by Judges who are not subjected
to the strifes and contests arising in
the trial of cases before the Circuit
Courts, where the minds of the Judges
may become biased or influenced i'm
perceptibly. In the Circuit Courts the
great question is, what may properly
form part ofthe case!


In the Court of Appeals, the case is
already made; it is merely for the court
to declare the law arising upon it, and
it is clear that the trainers of the Con-
stitution intended to give to all parties
the benefit of such unbiased Judgment
on all cases where it was practicable to
do so; bnt in case of a legal disability
of judge to act, the disability is only
removed by his death or removal. To
wait for that might lead to great pro-
crastination. To remedy it, however,
rs we'll as it will admit of, the 10th Sec
ton was inserted in the Constitution.
But where the disability of the judge is
merely physical, it is removed as soon
rs the physical disability passes away,
which may be in many cases, in few
days. There is clearly a wide distinc-
tion between the two cases of legal
and physical disability.


In the application of Governor Price
to he admitted to the bar, there was no
legal disability applicable to the absent
Judge, and he had right to have the
question disposed of by the two other
Judges of the Court of Appeals, and
there was no authority to authorize the
calling to their aid Judge of the Cir
cult Court, who might have previously
decided the same question on his circuit
or his mind become biased in some way
on the question, and as the term of Office
of one of the Judges Of the Court of
Appeals expired between the adjourn
ment and the decision, it should have
been re-argued before all the judges. if
present, if not, before those who were
present, and should not have been
disposed of by one of the
Judges of the Court of Appeals and a
Circuit Judge; the decision was clearly
o nullity; and Judge Hindman might
well on that account have disregarded
it, and adhered to the ruling of the Su-
preme Court of the United States.


This is grave question and should
be maturely considered, and should be
so disposed of as to give confidence to
the .. profession. Ny information is
that the legal profession is decidedly,
if not unanimously against the practice
which has prevailed. TYRo.