tion for damages is in the nature of a penalty and hence to be disregarded, or whether it is a stipulation for liquidated damages and hence to be enforced, the professed canon of construction is to consider, with reference to the circumstances surrounding the case and the object manifestly sought to be accomplished, what the purpose of the parties really was. With this end in view, the technical language employed by them will not be held conclusive; but the court may hold that they intended liquidated damages where they used the word penalty, and may hold that they intended a penalty where they used the words liquidated damages.7

King, 7 Met. (Mass.) 583; White v. Dingley, 4 Mass. 433; O'Donnell v. Rosenberg, 14 Abb. Pr. 59; Lynde v. Thompson, 2 Allen (Mass.), 456, 459; Curtis v. Brewer, 17 Pick. (Mass.) 513; Peine v. Weber, 47 Ill. 41; Brown v. Maulsby, 17 Ind. 10, 12; Bright v. Rowland, 3 How. (Miss.) 398; Lightner v. Menzel, 35 Cal. 452; Leary v. Laflin, 101 Mass. 334; Hussey v. Roquemore, 27 Ala. 281, 289; Allen v. Brazier, 2 Bailey (S. C.), 293; Ivinson v. Althrop, 1 Wy. T. 71; Harris v. Miller, 6 Sawy. (U. S.) 319, 323; Williams v. Vance, 9 S. C. 344; Knowlton v. McKay, 29 U. Can. C. P. 601; Gainsford v. Griffith, 1 Wm. Saund. 51; Craig v. Dillon, 6 U. C. (Ont.) App. 116; McPhee v. Wilson, 25 U. C. Q. B. 169; Archbold v. Wilson, 32 U. C. Q. B. 590; Hamilton v. Moore, 33 U. C. Q. B. 100, Id. 520; Hoag. land v. Segur, 38 N. J. L. 230, 239; 1 Suth. Dam. 505, and cases in note 5; 2 Greenl. Ev. secs. 258, 259; 3 Pars. Contr. 164, note 6; Cochran v. People's Ry. Co., 113 Mo. 360; Morse v. Rathburn, 42 Mo. 594; Basye v. Ambrose, 28 Mo. 39; Long v. Towl, 42 Mo. 550; Burk v. Dunn, 55 Ill. App. 25; Boyce v. Watson, 52 Ill. 361; Sanders v. Carter, 91 Ga. 450, 17 S. E. Rep. 245; Wallis Iron Works v. Monmouth Park Asso., 55 N. J. L. 132; Clement v. Cash, 21 N. Y. 257; Chase v. Allen, 13 Gray (Mass.), 42, 45; Hall v. Crowley, Allen (Mass.), 304; Mundy v. Culver, 18 Barb. (N. Y.) 336; Nobles v. Bates, 7 Cow. (N. Y.) 306, 309; Esmond v. Van Benschotten, 12 Barb. (N. Y.) 365, 374; Fletcher v. Dyche, 2 T. R. 32; Gammon v. Howe, 14 Me. 250, 254; Mott v. Mott, 11 Barb. (N. Y.) 127; Lowe v. Peers, 4 Burr. 2225; Smith v. Smith, 4 Wend. (N. Y.) 468; McPher son v. Robertson, 82 Ala. 459, 462; Pierce v. Jung, 10 Wis. 30; Powell v. Burroughs, 54 Pa. St. 329; Watts v. Sheppard, 2 Ala. 425, 445; Kemble v. Farren, 6 Bing. 141; Kelso v. Reed, 145 Pa 606; Ward v. Hudson River, etc. K. Co., 125 N. Y. 230, 235; Tode v. Gross, 127 N. Y. 480; Fasler v. Beard, 39 Minn. 32; Clements v. Schuylkill, etc. R. Co., 132 Pa. 445.

7 Moore v. Platte County, 8 Mo. 467; Morse v. Rathburn, 42 Mo. 594; Cochran v. People's Ry. Co., 113 Mo. 359, 362; Gower v. Saltmarsh, 11 Mo. 273; Tilley v. American Building, etc. Asso., 52 Fed. Rep. 618; Davies v. Penton, 6 Barn. & Cres. 216, 224; Sainter v. Ferguson, 7 C. B. 716; Dakin v. Williams, 17 Wend. 448; Streeter v. Rush, 52 Cal. 67, 71; Dwinell v. Brown, 54 Me. 468; Tinkham v. Sartori, 44 Mo. App. 659, 663; Main v. King, 10 Barb. (N. Y.) 59, 62; Wallis v. Smith,

$ 7. Covenant to do Various Things of Varying Degrees of Importance, etc. One of the artificial rules of interpretation which the judges have applied to contracts of this kind is that, where the covenant is to do a number of things of varying degrees of importance, or in respect of some of which the damages may be comparatively small while in respect of others large, or while in respect of some of the things the damages for a breach may be capable of estimation by a known rule, although in others not, then the parties are to be deemed to have intended a penalty, and not liquidated damages,-that is to say, they are to be deemed to have intended nothing, or to have intended that the party shall prove up his damages exactly as though the stipulation as to the amount of damages had never been put into the contract. This rule, if it can be called a consistent rule, has been variously stated in various cases. The writer has, in the above language, made what seems to him the most comprehensive statement of it that can be extracted from the cases. In laying down this rule, the judges have frequently dwelt upon the injustice of awarding the entire sum agreed upon, when it is large, for a breach of some of the minor stipulations,-holding that the parties are not be deemed to have intended such a result.8 An analysis of these cases will show that the doctrine laid down in them applies only in case the contract exhibits on its face some one or other of the following conditions: 1. That the things agreed to be done were of varying degrees of importance; or 2. That, in respect of some o them, the damages for a breach are ascertainable by a known rule,- -as where some of them

21 Ch. Div. 243, 249; Kemble v. Farren, 6 Bing. 141; Jones v. Price, 13 Mees. & W. 695; Law v. Local Board (1891), 1 Q. B. 127, 131, 132; Ward v. Hudson River, etc. Co., 125 N. Y. 230; Tode v. Gross, 127 N. Y. 480, 487; Keeble v. Keeble, 85 Ala. 552.

8 Some of the cases which contain expressions of it are: Gower v. Saltmarsh, 11 Mo. 273; Moore v. Platte County, 8 Mo. 469; Basye v. Thomas, 28 Mo. 39; Hamer v. Bridenbach, 31 Mo. 49; Morse v. Rathburn, 42 Mo. 594, 601; Long v. Towl, 42 Mo. 550; Kemble v. Farren, 6 Bing. 141, 147; Staples v. Parker, 41 Barb. (N. Y.) 650, 652; Niver v. Rossman, 18 Barb. (N. Y.) 50; Nash v. Hermosilla, 9 Cal. 589; McPherson v. Robertson, 82 Ala. 459; Hooper v. Savannah, etc. R. Co., 69 Ala. 529, 535; Magee v. Lavell, L. R. 9 C. P. 107; Dailey v. Litchfield, 10 Mich. 29; Jaquith v. Hudson, 5 Mich. 123; Trustees v. Walrath, 27 Mich. 232; Dimech v. Corlett, 2 Moore P. C. 199; Bagley v. Ped die, Sandf. (N. Y.) 192.

call for the payment of money; or 3. That the things agreed to be done were of different kinds or sorts, and did not make in the aggregate one general thing; or 4. That the things agreed to be done called for affirmative acts, and were not negative covenants. In common with every other doctrine growing out to this complicated subject, the doctrine of this section has been denied and by eminent judicial authority. As late as the year 1891 that eminent equity judge, Sir George Jessel, M. R., said, "there is neither authority nor principle for any such doctrine. "9

§ 8. Exceptions where the Various Things make an "Event of Multitude."—The rule of the last preceding section has been restrained, by some of the best considered judgments, to cases where the things agreed to be done are of different kinds or sorts, and do make, in the aggregate, one general thing,—in which latter case the stipulation is construed as a stipulation for liquidated damages, and the courts enforce the contract as the parties made it. In such cases, whenever the party crosses the prohibited boundary and does a single act which may be characterized as a part of the general "event of multitude," then the contract is violated and he is liable to pay the stipulated amount to the other party; as where a surgeon, selling out his practice, agrees not to resume practice within a stipulated territory, and afterwards crosses the bounds into that territory and operates upon a single patient;10 or where the stipulation is not to run or use for hire any stagecoach, or omnibus, or other carriage, or otherwise ply for hire on any part of a certain road; or where a surgeon, dissolving partnership with another, stipulates not to reengage in practice in no less than nine different particulars.12

$ 9. Exception in Case of Negative Covenants. Although a few cases ignore any distinction between affirmative covenants to do certain things and negative covenants to refrain from doing certain things, with refer

9 Law v. Local Board (1891), 1 Q. B. 127, C. A. See also Catton v. Bennett, 51 L. T. 70.

10 Reynolds v. Bridge, 6 El. & Bl. 528. Other cases recognizing or applying this doctrine are Hammer v. Breidenbach, 31 Mo. 49, 52; Cushing v. Drew, 97 Mass. 445, 446.

"Leighton v. Wales, 3 Mees. & W. 545.

12 Mercer v. Irving, Él. Bl. & El. 563, 27 L. J. (Q. B.) 291; 5 Jur. (N. S.) 143.

ence to the question whether the rule that where the stipulation relates to several different things, the contract is to be considered as a contract for a penalty, yet almost the entire weight of judicial authority is to the effect that this rule of interpretation, so called, does not apply in the case of covenants to refrain from doing certain things. The underlying reason for this distinction between affirmative and negative covenants is that in most cases it is more difficult to keep an affirmative than a negative covenant. The hopeful feelings of a party may induce him to agree to do something which proves to be beyond his powers. Shall he suffer an unconscionable forfeiture for his failure? On the other hand, it is easy for him, at least in most cases, to sit still and refrain from doing a particular thing. Most of the cases under this head have been agreements, on selling out a business or an interest in a business, not thereafter to engage in injurious competition with the purchaser, or in case of breach to pay a stipulated sum as damages. The courts have enforced these agreements without reference to whether they were agreements to refrain from doing a single thing, or to refrain from doing a number of different things of a similar character;18 though here, as upon every other feature of this doctrine, sporadic decisions may be found to the contrary.14

13 Green v. Price, 13 Mees. & W. 695, affirmed on error, 16 Mees. & W. 346; Galsworthy v. Strutt, 1 Exch. 658; Studabaker v. White, 31 Ind. 211, 214; (citing Atkins v. Kinnier, 4 Exch. 776); Cotheal v. Talmage, 5 Seld. 551, affirming, 1 E. D. Smith, 573; Graselli v. Lowden, 11 Ohio St. 349; Hamilton v. Overton, 6 Blackf. (Ind.) 206; Duffy v. Shockey, 11 Ind. 70. The following cases illustrate this doctrine: Muse v. Swain. 2 Lea (Tenn.), 251; Spicer v. Hoop, 51 Ind. 635; Dakin v. Williams, 17 Wend. (N. Y.) 448, affirmed, 22 Wend. (N. Y.) 201; Dunlop v. Gregory, 10 N. Y. 241; Mott v. Mott, 11 Barb. (N. Y.) 127; Atkyns v. Kinnier, 4 Exch. 776; Rawlinson v. Clarke, 14 Mees. & W. 187; Reynolds v. Bridge, 6 El. & Bl. 528; Green v. Price, 13 Exch. 695; Nobles v. Bates, 7 Cow. (N. Y.) 306; Crisdee v. Bolton, 3 Car. & P. 240; Kelso v. Ried, 145 Pa. 606; Keeble v. Keeble, 85 Ala. 552, 559; Cushing v. Drew, 97 Mass. 445; Tode v. Gross, 127 N. Y. 480; California, etc. R. Co. v. Wright, 6 Cal. 517; Lange v. Werk, 2 Ohio St. 519, 535; Pierce v. Fuller, Mass. 222; Miller v. Elliot, 1 Ind. 484; Smith v. Smith, 4 Wend. (N. Y.) 469, 471; Main v. King, 10 Barb. (N. Y.) 59, 60; Jones v. Heavens, 4 Ch. Div. 636; Boyce v. Watson, 52 Ill. App. 361.

14 Such as Brown v. Phillips, L. R. 10 Ir. 21; Magee v. Lovell, L. R. 9 C. B. 107, 115 (overruled in Wallis v. Smith, 21 Ch. Div. 243).

reference to this unsatisfactory subject is this: That parties who are competent to contract and who deal with each other at arms' length ought to be allowed to make their own contracts; that, when those contracts are fairly made, the courts ought to enforce them; that this conclusion results from that "liberty of contract" which the legislature cannot impair; and that it also results from the consideration that honesty is the bighest public policy. But always subject to this exception: that where parties agree to an unconscionable measure of damages, the courts will not lend their aid to enforce their agreement, but will give the suffering party, as nearly as they can, the damages which he has actually sustained, which damages he must prove.

My convic

tion is that this branch of our case-made law will never assume any considerable degree of sense or consistency until the courts discard totally the fictitious rules and theories of interpretation, some of which I have catalogued above, and limit themselves to the simple inquiry whether the damages which the parties have agreed upon are so unconscionable that they ought not to be enforced; and that, in every other case, the courts should enforce the contract of the parties as they have made it. Subject to this exception, the courts ought not to try to make better contracts for parties than they have seen fit to make for themselves.15

St. Louis, Mo.

SEYMOUR D. THOMPSON.

15 The doctrine that courts ought not to do this is expressed in many cases, some of which, after laying down the doctrine, actually disregarded it. See, for illustration, the following cases: Morse v. Rathburn, 42 Mo. 594, 603; Cochran v. People's R. Co., 113 Mo. 359, 363; Hamaker v. Schroers, 49 Mo. 406, 407; Wallis v. Smith, 21 Ch. Div. 241, 254; Lowe v. Peers, 4 Burr. 2225, (Lord Mansfield); Crisdee v. Bolton, 3 Car. & P. 240, 242; Reynolds v. Bridge, 6 El. & Bl. 528, 543, 544; Astley v. Weldon, 2 Bos. & P. 346; Dakin v. Williams, 17 Wend. (N. Y.) 448, 454, affirmed 22 Wend. (N. Y.) 201; Lange v. Werk, 2 Ohio St. 519, 533; Brewster v. Edgerly, 13 N. H. 275, 277; Streeter v. Rush, 25 Cal. 67, 72; Williams v. Green, 14 Ark. 315, 319, 327; White v. Dingley, 4 Mass. 433 (Parsons, C. J.); Hamilton v. Overton, 6 Blackt. (Ind.) 206; Pearson v. Williams, 24 Wend. (N. Y.) 244, 248; Dennis v. Cumming, 3 Johns. Cas. (N. Y.) 298; Clement v. Cash, 21 N. Y. 253, 257; Holmes v. Holmes, 12 Barb. (N. Y.) 137, 147; Bagley v. Peddie, 5 Sandf. (N. Y.) 192, 194.

JUDGE DISQUALIFICATION.

CITY OF OAKLAND v. OAKLAND WATERFRONT CO.

Supreme Court of California, September 13, 1897.

The fact that a judge is a resident and tax payer of a city suing for a valuable piece of land does not make him interested, within the meaning of Code Civ. Proc. § 170, providing that no judge shall sit or act in any action or proceeding "to which he is a party or in which he is interested."

MCFARLAND, J.: The respondent is a municipal corporation. In the complaint it is averred that the respondent is the owner in fee of certain lands, described as lying in front of said city of Oakland, "below the line of ordinary high tide of the Bay of San Francisco;" that appellant "claims some interest and estate in and to said lands" adverse to respondent; and that "this action is brought to determine such adverse claim." The appellant in its answer denies the title of respondent, and sets up title in itself. The motion was based upon the facts, shown by affidavit and admitted to be true, that there are four judges of the superior court of Alameda county; that one of them was "an inhabitant and a resident and elector of the city of Oakland," and was "the owner of property, real and personal, assessed," and subject to assessment and taxation, by the city for all municipal purposes; that each of the others was an owner "of property" in the city assessed, etc., for municipal purposes; and that all except one were residents and electors of the city. The ground of the motion was that all of said judges were disqualified because they were owners of property subject to taxation by the city of Oakland, and therefore "interested" in the result of the action, within the meaning of section 170 of the Code of Civil Procedure, which provides, among other things, that no justice or judge shall sit or act in any action or proceeding "to which he is a party or in which he is interested." The court below held that said judges were "not all of them interested in the said action," and "not all of them disqualified," and for that reason denied the motion. The theory of the appellant is that, if the respondent should recover the land sued for, it might be so used as to produce some municipal revenue, and thus affect to some extent the rate of taxation, as a consequence of which the taxes which the said judges would have to pay on their property might to some imaginable extent be lessened, and that thus they are interested and disqualified. If any one of the judges was not thus disqualified, of course the court did not err in refusing to change the venue to another county, for the qualified judge could try the action; and as it appears that three of them merely owned "property," of which the character and value does not appear, it follows, upon the theory aforesaid, that if one of them owned some personal property of the value of only $10, or $1, he would be disqualified, al

though his interest in reduced taxation would be so infinitesimal as to be almost impossible of mathematical expression. If this consideration is not determinative of the present case in favor of the affirmance of the order, it at least shows upon what a slender thread the contention of the appellant hangs.

Appellant has certainly cited authorities from England and from sister States which give countenance to its contention, while respondent has cited some of an opposite character; but as no case determinative of the question involved in favor of appellant has been cited from the decisions of this court, we are at liberty to consider the question upon principle, and in view of the fact that, if the contention of appellant be sound, innumerable judgments heretofore rendered in this State by judges in the same position as that asserted here of the judges of Alameda county would have to be held void, and extreme embarrassment and confusion would follow. In our opinion the word "interested," as used in the section of the Code relied on, embraces only an interest that is direct, proximate, substantial, and certain, and does not embrace such a remote, indirect, contingent, uncertain, and shadowy interest as that asserted as a disqualification in the case at bar. The whole theory of the administration of justice in our courts contemplates that judges are persons especially educated to habits of impartiality and fairness, and it is a necessary quality of judicial proceedings that a judge shall, in his official conduct, be presumed to be above all improper considerations and motives. Nevertheless, in contemplation of the truth that in extreme cases human frailty might not be overcome by trained habits and acquired faculties, it is declared by the law that "no man shall be a judge in his own cause." But surely that means a cause which is really his own cause; not that he must be a formal party to the record, but that it must be such a cause that a judgment rendered therein would necessarily and directly and substantially affect his personal rights. We cannot conceive that the legislature meant to declare that a mere contingent possibility that some future supposable financial condition of a municipality might in a slight degree affect a judge as a tax payer would strip him of all his personal judicial qualities. The case of Mining Co. v. Keyser, 58 Cal. 315, shows the kind of interest that does disqualify. There the municipality of the city of Marysville had brought an action to restrain certain parties from washing mining debris into the Yuba river and its tributaries, upon the ground that it would compel the city to construct additional levees and other safeguards at great expense, and also that it was injuring, and would, if continued, practically distroy, certain lands and buildings owned by the city. The respondent, Keyser, was judge of the superior court of Yuba county, owned lands on said river opposite said city, and the defendants in the action sought by a writ of

and

prohibition to prevent him from trying the case. The court, in elaborate opinions, states the facts in detail, and shows that the very judgment which would protect the lands of the city from the flow of slickens would also directly and immediately protect the land of the judge from the same evil, and that, therefore, he was interested and disqualified. Ross, J., who delivered the main opinion, said: "If the relief prayed for is awarded, the same judgment that stops the flow of tailings or debris on the land of the city of Marysville stops its flow onto the lands of the respondent. The very judgment that will protect Marysville will protect him. His interest, therefore, is not merely in the question of law involved in the controversy, nor is it uncertain or remote, but it is a direct and immediate interest in the result of the action." In the concurring opinion of Sharpstein, J., it is said: "The grievance of which the plaintiff complains is one of which the respondent might complain upon the same grounds. If the plaintiff can maintain the action now pending in the superior court of which the respondent is judge, he might maintain an action based upon the same grievance. He might have united with the plaintiff in bringing this action." From the stress thus put upon the peculiar relation of the judge to the subjectmatter of the action in that case, it is apparent that the court would have considered such interest as is alleged in the case at bar not as "direct and immediate," but as "uncertain or remote.' Again, it has been the uniform custom in this State for judges to sit in cases when municipalities in which they were residents and tax payers were parties; and as a judgment rendered by a disqualified judge is void, and the proceeding coram non judice, to maintain the contention of appellant would be to upset innumerable judgments which have stood for many years, and under which many rights have accrued. A rule involving such consequences will not be declared unless it be required by the inexorable mandate of the law. Moreover, necessity demands the affirmance of the order. If in the case at bar the judges mentioned are disqualified, no judge in the State would be qualified. It is averred here that the lands in controversy are of great value, and that there are improvements on them, of the value of "many hundreds of thousands of dollars." All this immense property is, in the hands of the appellant, taxable for State purposes; but, if the respondent should prevail in the action, it would become municipal property, and not taxable by the State. And the judge of the superior court in any county of the State, who has property of the value of a watch, a bookcase, or a bed, is, under appellant's theory, interested in any case the result of which might increase State taxation, and therefore disqualified; for, under the theory, the extent of his interest is immaterial. And so in the case at bar the appellant is seeking to take the case away from a judge whose alleged interests are with one party to a judge whose interests

are with the other party. The order appealed from is affirmed.

We concur: HENSHAW, J.; HARRISON, J.; GAROUTTE, J.; VAN FLEET, J.; TEMPLE, J. BEATTY, C. J. I concur in the judgment. NOTE.-Disqualification of a Judge Because of Interest. The whole history of English and American jurisprudence, as well as that of the law of the most enlightened countries back to the remotest ages, testifies to the unbending principle that it is contrary to the policy of the law to permit a man to sit in judg. ment in his own case or in a case in which he is sub. stantially interested in any way. Courts are presided over by human agencies, and it needs no argument to show that such agencies are always fallible. The best men of the land may be blinded to a greater or less extent by the natural instinct, it might be called, of self-interest, and are at least liable to be influenced, more or less, by this persuasive force, though unconsciously it may be. Or, if this be not true, fearing he may be criticised if he decide the case in a way that will affect his interest favorably, he may go to the other extreme and actually do himself an injustice which, after all, is not right. If one may be a judge in his own case, he should do himself justice as well as abstain from doing injustice to the opposite party. But the trained sense of propriety naturally revolts at the idea of a judge sitting in a cause to which he is a party or in which he is materially interested. It makes no difference, so far as this is concerned, how exalted his ideas of justice or how pure his impar tiality. It has the appearance of evil, a thing which both the Scripture and law abhor. This vital principle of law is well illustrated by the case of Dimes v. Grand Junction Canal, 3 H. L. Cas. 739, in which the validity of a decree rendered by the lord chancellor of England, who was disqualified because of interest, was brought in question. In announcing his conclusions, Lord Campbell made use of these pertinent remarks: "I take exactly the same view of this case as do my noble and learned friends, and I have very little to add to their observations. With respect to the point on which the learned judges were consulted, I must say that I entirely concur in the advice which they have given to your lordships. No one would suppose that Lord Cottonham could be in the remotest degree influenced by the interest he had in this concern, but, my lords, it is of the last importance that the maxim, that no man is to be judge in his own cause is to be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honor to be chief justice of the court of Queen's Bench, we have again and again set aside proceedings of inferior tribunals, because an individual who had an interest in a cause took part in the decision. And it will have a most salutary influence on these tribunals, when it is known that this high court of last resort, in a case in which the lord chancellor of England had an interest, considered that his decree was, on that account, a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care, not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of laboring under such an influence." The law thus expressed is gen erally recognized. Livingston v. Cochran, 33 Ark. 294; Gregory v. Cleveland, Columbus & Cincinnati R. R. Co., 4 Ohio St. 675; Dimes v. Grand Junction Canal Co., 16 E. L. & Eq. 63; Gorrill v. Whittier, 3 N. H. 265; Baldwin v. Calkins, 10 Wend. 167; Sigourney v. Sib.

ley, 21 Pick. (Mass.) 101; Coffin v. Cattle, 9 Pick. (Mass.) 287; State v. Castlebury, 23 Ala. 85; Reams v. Kearns, 5 Cold. (Tenn.) 217; Converse v. McArthur, 17 Barb. 410; Ellsworth v. Moore, Clarke (Iowa), 486; Oakley v. Aspinwall, 3 N. Y. 547; Estate of White, 37 Cal. 190; Henderson v. Ayers, 23 Tex. 96; People v. Carrillo, 24 Cal. 73; Heilbron v. Campbell, Judge (Cal.), 23 Pac. Rep. 122; Nalla v. City of Austin (Tex.), 22 S. W. Rep. 668. Nor does the consent of the parties, in the absence of a statute authorizing it, make such acts valid. Converse v. McArthur, 17 Barb. 410; Oakley v. Aspinwall, 3 N. Y. 547; In the Matter of Bingham, 127 N. Y. 296, 311, 27 N. E. Rep. 1055. The rule of the common law is, the proceedings had where the judge is disqualified because of interest are voidable, only, and not void until so de. clared. Consequently, such a proceeding could not be attacked collaterally. Gorrill v. Whittier, 3 N. H. 265; Dimes v. Grand Junction Canal Co., 16 E. L. & Eq. 63; Frevert v. Swift, 19 Nev. 363, 11 Pac. Rep. 273. But where by statute, or constitutional enactment a judge is expressly forbidden to sit in a cause where he has an interest in the result or subject-matter of the litigation, his acts are generally held to be void absolutely, and not merely voidable, and are, therefore, vulnerable to collateral attack. People v. Carrillo, 24 Cal. 73; Foot v. Morgan, 1 Hill (N. Y.), 654; Schoonmaker v. Clearwater, 41 Barb. 200; Frevert v. Swift, 19 Nev. 363, 11 Pac. Rep. 273; State v. Judge Twenty-Second Judicial District Court, 39 La. Ann. 994, 3 South. Rep. 91; Templeton v. Giddings (Tex.), 12 S. W. Rep. 851; State ex rel. Colcord v. Young, 31 Fla. 594, 12 South. Rep. 673. That the disqualified judge decides the case correctly makes no difference; this question cannot be raised. The rule lies on the foundation of public policy, and this policy will not allow a disqualified judge to even decide a case correctly. It must be done by another. Estate of White, 37 Cal. 190, 193; Oakley v. Aspinwall, 3 N. Y. 547, 550; In the Matter of Bingham, 127 N. Y. 296, 311, 27 N. E. Rep. 1055; Hanley v. Adams, 15 Ark. 232. Generally, when a judge is disqualified from presiding in a cause because he is interested in the result as a party or otherwise, the objection to him because of this interest should be made before the trial commences, if known in time. A litigant will not be permitted to experiment with his case before a judge whom he knows to be disqualified and, upon the rendering of an adverse decision, set up this disability and thereby get two trials in his case. Shropshire v. State, 12 Ark. 190; Baldwin v. Calkins, 10 Wend. 167; Ellsworth v. Moore, 5 Clarke (Iowa), 486; Pettigrew v. Washington Co., 43 Ark. 33. Such acts on the part of the experimental litigant do not have the effect of quali fying the judge, of course, but by his conduct he estops himself from complaining because of the dis qualification. A judge is not disqualified to sit in a cause by reason of the fact that his decision, if followed in another case involving the same question, in which is disqualified on account of interest, would be conclusive in such other case. Martyn v. Curtiss (Vt.), 35 Atl. Rep. 333; King v. Sapp, 66 Tex. 519, 2 8. W. Rep. 573; Grigsby v. May, 84 Tex. 240, 19 S. W. Rep. 343. That a judge was a member of a city coun cil when it passed upon the legal status of an alleged nuisance, will not disqualify him from sitting in a cause between the same parties and involving the same questions when acting in the capacity of a district judge. Waters-Pierce Oil Co. v. Cook, 6 Tex. Civ. App. 573, 26 S. W. Rep. 96. The theory of the principal case that a judge is nof disqualified to sit in a cause affecting a county or town in which he may