JOURNEYS ACCOUNT

and entered on the debtor and creditor side,
for more convenient posting in the ledger.
In Legislation. An account of the pro-
ceedings of a legislative body.

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The constitution of the United States, art. 1, s. 5, directs that "each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy." See 2 Story, Const. 301.

The constitutions of the several states contain similar provisions.

The journal of either house is evidence of the action of that house upon all matters before it; 7 Cow. 613; Cowp. 17. It is a public record of which the courts may take judicial notice; 5 W. Va. 85; s. c. 17 Am. Rep. 28; 16 id. 647; 94 U. S. 260. Contra, 45 Ill. 119; 2 Cent. L. J. 407. If it should appear therefrom that any act did not receive the requisite vote, or that the act was not constitutionally adopted, the courts may adjudge the act void; Cooley, Const. Lim. 164. But every reasonable presumption is made in favor of the action of a legislative body; it will not be presumed from the mere silence of the journals that either house disregarded a constitutional requirement in the passage of an act, unless in cases where the constitution has required the journals to show the action that has been taken; 25 Ill. 181; 11 Ind. 424.

JUDGE

ment of the magistrate for the special case, judged causes.

Thus, the prætor was formerly called judex.
But, generally, prætors and magistrates who
judge of their own right are distinguished from
judices, who are private persons. appointed by
the prætor, on application of the plaintiff, to try
the cause, as soon as issue is joined, and fur-
nished by him with instructions as to the legal
principles involved. They were variously called
judices delegati, or pedanei, or speciales. They
resemble in many respects jurors: thus, both
are private persons, brought in at a certain
stage of the proceedings, viz., issue joined, to
try the cause, under instructions from the judge
But civilians are not
as to the law of the case.
clear whether the judices had to decide the fact
alone, or the law and fact. The judex resembles
in many respects the arbitrator, or arbiter, the
chief differences being, first, that the latter is
appointed in cases of trust and confidence, the
former in cases where the relations of the par-
ties are governed by strict law (in pactionibus
strictis); second, the latter has the whole con-
trol of case, and decides according to equity and
good conscience, the former by strict formulæ ;
third, that the latter may be a magistrate, the
former must be a private person; fourth, that the
award of the arbiter derives its force from the
agreement of submission, while the decree of
the judex has its sanction in the command of the
prætor to try the cause; Calvinus, Lex.; 1

Spence, Eq. Jur. 210, note; Mackeldey, Civ.
Law, Kaufmann ed. § 193, note.

Cal

JOURNEYS ACCOUNT. In English Practice. A new writ which the plaintiff was permitted to sue out within a reasonable time after the abatement, without his fault, of the first writ. There was generally one judex, sometimes This time was computed with reference to the number of days which the three,-in which case the decision of two, in plaintiff must spend in journeying to reach the absence of the third, had no effect. the court: hence the name of journeys ac- vinus, Lex. Down to the time of handing count, that is, journeys accomptes or counted. Over the cause to the judex, that is, till issue This writ was quasi a continuance of the joined, the proceedings were before the præfirst writ, and so related back to it as to oust tor, and were said to be in jure; after that, the defendant or tenant of his voucher, plea before the judex, and were said to be in judiof non-tenure, joint tenancy fully adminis-cio. In all this we see the germ of the Antered, or any other plea arising upon matter glo-Saxon system of judicature. 1 Spence, happening after date of the first writ. Co. Eq. Jur. 67. Litt. fol. 9 b.

This mode of proceeding has fallen into disuse, the practice now being to permit that writ to be quashed, and to sue out another. See Termes de la Ley; Bacon, Abr. Abatement (Q); 14 Viner, Abr. 558; 4 Comyn, Dig. 714; 7 M. & G. 762; 8 Cra: 84.

JUBILACION. In Spanish Law. The right of a public officer to retire from office, retaining his title and his salary, either in whole or in part, after he has attained the age of fifty years and been in public service at least twenty years, whenever his infirmities prevent him from discharging the duties of his office.

JUDAISMUS (Lat.). The religion and rites of the Jews. Du Cange. A quarter set apart for residence of Jews. Du Cange. A usurious rate of interest. 1 Mon. Angl. 839; 2 id. 10, 665. Sex marcus sterlingorum ad acquietandam terram prædictum de Judaismo, inquo fuit impignorata. Du Cange. An income anciently accruing to the king from the Jews. Blount.

JUDEX (Lat.). In Roman Law. One who, either in his own right or by appoint

In Civil Law. A judge who conducts the trial from beginning to end; magistratus. The practice of calling in judices was disused before Justinian's time: therefore, in the Code, Institutes, and Novels, judex means judge in its modern sense. Heineccius, Elem. Jur. Civ. § 1327.

In Old English Law. A juror. Spelman, Gloss. A judge, in modern sense, especially-as opposed to justiciarius, i. e. a common-law judge-to denote an ecclesiastical judge. Bracton, fol. 401, 402.

JUDEX ORDINARIUS (Lat.). In Civil Law. A judge who had jurisdiction by his own right, not by another's appointment.

Calvinus, Lex.; Vicat, Voc. Jur. Blackstone says that judices ordinarii decided only questions of fact, while questions of law were referred to the centumviri; but this would seem to be rather the definition of judices selecti; and not all questions of law were referred to the centumviri, but particular actions: e. g. querela inofficiosi testamenti. See 2 Bla. Com. 315; Vicat, Voc. Jur. Utr. Centumviri.

JUDGE. A public officer lawfully ap

pointed to decide litigated questions according to law.

An officer so named in his commission, who presides in some court.

In its most extensive sense the term includes all officers appointed to decide litigated questions while acting in that capacity, including justices of the peace, and even jurors, it is said, who are judges of the facts; 4 Dall. 229; 3 Yeates, 300. In ordinary legal use, however, the term is limited to the sense of the second of the definitions here given; 15 Ill. 388; unless it may be that the case of a justice or commissioner acting judicially is to be considered an extension of this meaning. See 3 Cush. 584.

Judges are appointed or elected in a variety of ways in the United States. For the federal courts they are appointed by the president, by and with the consent of the senate; in some of the states they are appointed by the governor, the governor and senate, or by the legislature. See 11 Ind. 357; 29 Penn. 129; 2 Greene, Iowa, 458; 6 Ired. 5. The judges of the federal courts, and of the courts of some of the states, hold their offices during good behavior; see 3 Cush. 584; of others, as in New York, during good behavior, or until they shall attain a certain age; and of others, for a limited term of years. See 30 Miss. 206.

Impartiality is the first duty of a judge: if he has any (the slightest) interest in the cause, he is disqualified from sitting as judge; aliquis non debet esse judex in propria causa; 8 Co. 118; 6 Pick. 109; 21 id. 101; 14 S. & R. 157; 4 Ohio St. 675; 17 Ga. 253; 17 Barb. 414; 22 N. H. 473; 19 Conn. 585. It is said to be discretionary with him whether he will sit in a cause in which he has been of counsel; 2 A. K. Marsh. 517; Coxe, N. J. 164. See 2 Binn. 454; 5 Ind. 230. But the practice is to refuse to sit in such case. And in 5 Coldw. 217, it was held that where the judge who rendered the judgment in the case had been counsel in it, the judgment was a nullity. A magistrate authorized to sign writs cannot sign them in his own case; 47 Conn. 316.

even though the proper number may have concurred in the result, which includes the interested judge; 6 Q. B. 753. The objection may be raised for the first time in the appellate court; 6 Cush. 332; 3 H. L. C. 387.

A judge is not competent as a witness in a cause trying before him, for this among other reasons, that he can hardly be deemed capable of impartially deciding on the admissibility of his own testimony, or of weighing it against that of another; 2 Mart. La. N. s. 312; 2 Cal. 358. See Comyn, Dig. Courts (B 4), (C 2), (E 1), (P 16), Justices (I 1, 2, 3); Bacon, Abr. Courts (B); 1 Kent, 291; CHARGE.

While acting within the bounds of his jurisdiction, the judge is not responsible for any error of judgment or mistake he may commit as judge; 12 Co. 23; 2 Dall. 160; 2 N. & M'C. 168; 1 Day, Conn. 315; 5 Johns. 282; 9 id. 395; 3 A. K. Marsh. 76; 1 South. 74; 1 N. H. 374. It has been said that a judge of a court of superior jurisdiction is not liable for acts done in excess of his jurisdiction; 2 Bla. Rep. 1141 (dictum); 13 Wall. 335. Field, J., in 7 Wall. 523, said, obiter, that a judge of a court of superior jurisdiction is not liable when he acts in excess of his jurisdiction, except for malice. In 73 N. Y. 12, this point was so decided, but the court drew a distinction between the case where the judge had acquired no jurisdiction at all, and the case where the act was merely in excess of jurisdiction after jurisdiction had been acquired. There the judge of the circuit court had imposed a resentence upon a prisoner, and he was accordingly imprisoned; the supreme court held the second sentence illegal, and discharged the prisoner. These cases have been doubted in an article in 15 Am. L. Rev. 442. There is no distinction between a judge acting in court and acting judicially out of court, that is, in chambers; 3 Moore, P. C. 52; Wilm. 208.

"A judge of a court not of record is not liable for any injury sustained which is the result of an honest error of judgment in a a matter wherein the court has jurisdiction, and when the act done is not of a purely ministerial nature." The rule is thus stated in 15 Am. L. Rev. 444. See further an article in Ir. L. T. and Sol. J., Nov. 13, 1880; 6 Am. Dec. 303; 29 Am. Rep. 80 n.; 23 Am. Rep. 690.

When the lord chancellor, who was shareholder in a company in whose favor the vice chancellor had made a decree, affirmed this decree, the house of lords reversed this decree on that ground; 3 H. L. C. 759; where there is no other tribunal that can act, the judge may hear the case; 5 H. L. C. 88; | 19 Johns. 501; contra, Hopk. Ch. 2; 105 Mass. 221. See Cooley, Const. Lim. 515; 25 Mich. 83.

It has been held that where the interest of the judge is merely that of a corporator in a municipal corporation, the legislature may provide that this shall constitute no disqualification when the corporation is a party-apparently on the ground that the interest is insignificant; 1 Gray, 475. But it is doubtful whether even the legislature can go beyond this class of cases and abolish the maxim; Cooley, Const. Lim. 516.

If one of the judges is disqualified on this ground, a judgment rendered will be void,

A judge who acts corruptly may be impeached; 5 Johns. 282; 8 Cow. 178; 4 Dall. 225.

JUDGE ADVOCATE. An officer of a court-martial who is to discharge certain duties at the trial of offenders. His duties are to prosecute in the name of the United States; but he shall so far consider himself as counsel for the prisoner, after the prisoner shall have made his plea, as to object to leading questions to any of the witnesses, or any question to the prisoner the answer to which might tend to criminate himself. He is, further, to swear the members of the court before they proceed upon any trial. Rules and Articles

which has been given after the parties have
been heard either in support of their claims
11 La. 366. It is used
or in their defence.
in Louisiana to distinguish such judgments
from those rendered by default.

Judgment by default is a judgment rendered in consequence of the non-appearance of the defendant.

Judgment in error is a judgment rendered by a court of error on a record sent up from an inferior court.

Final judgment is one which puts an end to a suit.

Interlocutory judgment is one given in the JUDGE-MADE LAW. A phrase used progress of a cause upon some plea, proceedto indicate judicial decisions which construeing, or default which is only intermediate and does not finally determine or complete the away the meaning of statute, or find meansuit. 3 Bla. Com. 396. ings in them the legislature never intended. It is sometimes used as meaning, simply, the law established by judicial precedent. Cooley, Const. Lim. 70, n. See Austin, Prov. of

JUDGMENT

the plaintiff where, after appearance and before judgment, the plaintiff enters upon the record that he "withdraws his suit."

Judgments upon facts found are the following. Judgment of nul tiel record occurs when some pleading denies the existence of a record, and issue is joined thereon; the record being produced is compared by the court with the statement in the pleading which alleges it; and if they correspond, the party asserting its existence obtains judgment; if they do not corre spond, the other party obtains judgment of nul tiel record. Judgment upon verdict is the most usual of the judgments upon facts found, and is for the party obtaining the verdict. Judgment non obstante veredicto is a judgment rendered in favor of the plaintiff notwithstanding the verdict for the defendant: this judgment is given upon motion (which can only be made by the plaintiff) when, upon an examination of the whole proceedings, it appears to the court that the defendant has shown himself to be in the wrong, and that the issue, though decided in his favor by the jury, is on a point which does not at all This is better his case; Smith, Actions, 161. called a judgment upon confession, because it occurs after a pleading by defendant in confession and avoidance and issue joined thereon, and verdict found for defendant, and then it appears that the pleading was bad in law and might have been demurred to on that ground. The plea being substantially bad in law, of course the verdict which merely shows it to be true in point of fact cannot avail to entitle the defendant to judgment; while, on the other hand, the plea being in confession and avoidance involves a confession of the plaintiff's declaration, and shows that he was entitled to maintain his action. Sometimes it may be expedient for the plaintiff to move for judgment non obstante veredicto even though the verdict be in his favor; for, in a case like that described above, if he takes judgment as upon the verdict it seems that such judgment would be erroneous, and that the only safe course is to take it as upon confession; 1 Wils. 63; Cro. Eliz. 778; 2 Rolle, Abr. 99; 1 Bingh. N. c. 767. See, also, Cro. Eliz. 214; 6 Mod. 10; Str. 394; 1 Ld. Raym. 641; 8 Taunt. 413; Rastell, Ent. 622; 1 Wend. 307; 5 id. 513; Cow. 225. A judgment of repleader is given when issue is joined on an immaterial point, or one on which the court cannot give a judgment which will determine the right. On the award of a repleader, the parties must recommence their pleadings at the point where the immaterial issue originated. See REPLEADER. This judgment is interlocutory, quod partes replacitent. See Bacon, Abr. Pleas, 4 (M); 3 Hayw. 159.

Judgments upon facts admitted by the parties are as follows. Judgment upon a demurrer against the party demurring concludes him, because by demurring a party admits the facts alleged in the pleadings of his adversary, and relies on their insufficiency in law. It sometimes happens that though the adverse parties are agreed as to the facts, and only differ as to the law arising out of them, still these facts do not so clearly appear on the pleadings as to enable them to obtain the opinion of the court by way of demurrer; for on demurrer the court can look at nothing whatever except the pleadings. In such circumstances the statute 3 & 4 Will. IV. c. 42, § 25, which has been imitated in most of the states, allows them after issue joined, and on obtaining the consent of a single judge, to state the facts in a special case for the opinion of the court, and agree that a judgment shall be entered for the plaintiff or defendant by confession

or nolle prosequi immediately after the decision
of the case; and judgment is entered accordingly.
Sometimes at the trial the parties find that they
agree on the facts, and the only question is one
of law. In such case a verdict pro forma is
taken, which is a species of admission by the
parties, and is general, where the jury find for the
plaintiff generally but subject to the opinion of
the court on a special case, or special, where they
state the facts as they find them, concluding
that the opinion of the court shall decide in
whose favor the verdict shall be, and that they
assess the damages accordingly. The judg-
ments in these cases are called, respectively,
judgment on a case stated, judgment on a general
verdict subject to a special case, and judgment on a
special verdict.

Besides these, a judgment may be based upon
the admissions or confessions of one only of the
parties. Such judgments when for defendant
upon the admissions of the plaintiff are: Judg-
ment of nolle prosequi, where, after appearance
Judgment of
and before judgment, the plaintiff' says he "will
not further prosecute his suit."
retraxit is one where, after appearance and be-
fore judgment, the plaintiff enters upon the
record that he "withdraws his suit," where-
upon judgment is rendered against him. The
difference between these is that a retrazit is a
bar to any future action for the same cause;
while a nolle prosequi is not, unless made after
judgment; 7 Bingh. 716; 1 Wms. Saund. 207,
A plaintiff sometimes, when he finds he has
n.
misconceived his action, obtains leave from the
court to discontinue, on which there is a judg-
ment against him and he has to pay costs; but
he may commence a new action for the same
A stet processus is entered where it is
cause.
agreed by leave of the court that all further pro-
generally,
ceedings shall be stayed: though in form a
judgment for the defendant, it
like discontinuance, in point of fact for the bene-
fit of the plaintiff, and entered on his applica-
tion, as, for instance, when the defendant has
become insolvent, it does not carry costs; Smith,
Actions, 162, 163.

Judgments for the plaintiff upon facts admitted. by the defendant are judgment by cognovit actionem, cognovit or confession, where, instead of entering a plea, the defendant chooses to acknowledge the rightfulness of the plaintiff's action; or by confession relicta verificatione, where, after pleading and before trial, he both confesses the plaintiff's cause of action to be just and true and withdraws, or abandons, his plea or other allegations. Upon this, judgment is entered against him without proceeding to trial.

Analogous to this is the judgment confessed by warrant of attorney: this is an authority given by the debtor to an attorney named by the creditor, empowering him to confess judgment either by cognovit actionem, nil dicit, or non sum informatus. This differs from a cognovit in that an action must be commenced before a cognovit can be given; 3 Dowl. 278, per Parke, B.; but not before the execution of a warrant of attorney. Judgments by nil dicit and non sum informatus, though they are in fact founded upon a tacit acknowledgment on the part of the defendant that he has no defence to the plaintiff's action, yet as they are commonly reckoned among the judgments by default, they will be explained under that head.

A judgment is rendered on the default of a party, on two grounds it is considered that the failure of the party to proceed is an admission that he, if plaintiff, has no just cause of action, or, if defendant, has no good defence; and it is

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