Definition of INCOMPETENCY


INCOMPETENCY

French law. The state of a judge who cannot take
cognizance of a dispute brought before him; it implies a want of
jurisdiction.

2. Incompetency is material, ratione materia, or personal,
ratione personae. The first takes place when a judge takes
cognizance of a matter over which another judge has the sole
jurisdiction, and this cannot be cured by the appearance or
agreement of the parties.

3. The second is, when the matter in dispute is within the
jurisdiction of the judge, but the parties in the case are not;
in which case they make the judge competent, unless they make
their objection before they. take defence. See Peck, 374; 17
John. 13; 12 Conn. 88; 3 Cowen, Rep. 724; 1 Penn. 195; 4 Yeates,
446. When a party has a privilege which exempts him from the
jurisdiction, he may waive the privilege. 4 McCord, 79; Wright,
484; 4 Mass. 593; Pet. C. C. R. 489; 5 Cranch, 288; 1 Pet. R. 449;
4 W. C. C. R. 84; 8 Wheat. 699; Merl. Rp. mot Incompetnce.

4. It is a maxim in the common law, aliquis non debet esse judex
in propri causa. Co. Litt. 141, a; see 14 Vin. Abr. 573; 4
Com. Dig. 6. The greatest delicacy, is constantly observed on the
part of judges, so that they never act when there could be the
possibility of doubt whether they could be free from bias, and even
a distant degree of relationship has induced a judge to decline
interfering. 1 Knapp s Rep. 376. The slightest degree of pecuniary
interest is considered as an insuperable objection. But at common
law, interest forms the only ground for challenging a judge. It is
not a ground of challenge that he has given his opinion before. 4
Bin. 349; 2 Bin. 454. See 4 Mod. 226; Comb. 218; Hard. 44; Hob. 87;
2 Binn. R. 454; 13 Mass. R. 340; 5 Mass. R. 92; 6 Pick. 109; Peck,
R. 374; Coxe, Rep. 190; 3 Ham. R. 289; 17 John. Rep. 133; 12 Conn.
R. 88; 1 Penning R. 185; 4 Yeates, R. 466; 3 Cowen, R. 725; Salk.
396; Bac. Ab. Courts, B; and the articles Competency; Credibility;
Interest; Judge; Witness.

Source: Bouviers Law Dictionary 1856 Edition

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