The People v. Wheeler. a fact not appearing therein, and which the commissioners were not required by the court to return. The main inquiry on certiorari relates to the power or jurisdiction of the inferior tribunal, and the question can only be determined by matters ap pearing in the record. When an examination into collateral facts, not properly appearing in the record, is desired, to show want of power or jurisdiction, the appropriate remedy is not by certiorari. The record in this case properly included the application, the certificate of the freeholders, and the order of the commissioners; or, at most, a history and recital of all the official acts of the commissioners in the course of the proceedings for discontinuing the road. The original return of the commissioners contained all that they were required by the exigencies of the writ to return. The record, therefore, did not and could not show that the applicant was a brother of one of the commissioners; and it was only by what is called in the Case an additional return, compelled by the Supreme Court, that this collateral fact appeared on which a reversal of the proceedings was grounded. The judgment, therefore, was predicated upon a fact not appearing in the record, nor called for by the exigency of the writ, and in respect to which the writ itself, though commanding divers extraneous and irrelevant matters to be certified and returned, made no allusion. The proper record of the statutory proceedings for discontinuing the road, from their inception to the making of the final order by the commissioners, shows no relationship existing between the applicant and either of the commissioners. 2. If it were conceded that the applicant was a brother of one of the commissioners who made the order to discontinue the road, the action of such commissioner, in conjunction with his associates, was not such an irregularity, or usurpation of power, as to vitiate the proceedings. This involves the single inquiry, whether a commissioner of highways is incompetent to act, where the applicant for the discontinuance of a public road is his brother. The only judicial power exercised by the commissioner was in deciding, in conjunction with his associates, to discontinue the road, after the certificate of the free The People v. Wheeler. holders, that it was useless and unnecessary, had been delivered to them. The summoning and swearing of the freeholders were ministerial acts. It may be admitted, that the statutory provi sion disqualifying a judge of any court from sitting as such in any cause in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties, is but declaratory of a universal principle, applicable to all who are clothed by law with judicial functions. No judge or officer exercising judicial authority should take part in the decision of any matter or controversy, in which he is personally interested, nor in any cause in which he would be excluded as a juror from consanguinity to either of the parties personally interested in the litigation or matter to be judicially determined. But the difficulty lies in applying the principle to the case in hand, or rather in bringing the case within the reason of the rule. An applicant for the discontinuance of a public highway can in no just or proper sense be termed a party to a cause or judicial controversy. The statute empowers any person liable to be assessed for highway labor to initiate the proceeding by an application in writing addressed to the commissioners of the town in which he resides, but he can do nothing more, and beyond that act he has no control, nor is he recognized as a party in the subsequent proceedings. Indeed, the initiatory act amounts to nothing, unless the freeholders certify that the road is useless and unnecessary. It is not the proceeding of the applicant in the determination of which he has an exclusive personal interest, nor is it his cause in a judicial sense. Indeed, the statute does not contemplate that the applicant should have any direct personal interest in the determination. The public, and not the applicant, are substantially the parties to the proceeding; and it is the public, and not the applicant exclusively, that is interested in, and to be affected by the exercise of the power entrusted to the commissioners. It is on the ground of bias, imputed from interest in, or relationship to the parties interested in a judicial controversy, that the judge is disqualified from acting; but the reason of the rule can have no application to a proceeding of this nature, wherein the really interested parties The People v. Wheeler. are the public, and the exercise of the judicial functions of the officer or board of officers is dependent on and can only follow a strict pursuit of the provisions of the statute. It would certainly surprise the public and the profession to learn that a commissioner of highways is legally incapacitated from acting in any proceeding for laying out or discontinuing a public road, when the applicant is a brother or cousin of such commissioner, or even more remotely related to him. The case of Oakley v. Aspinwall (3 Comst., 547), is no authority for such a position. The judgment of the Supreme Court should be reversed, with costs of the appeal to this court. DENIO, J. The Supreme Court reversed the order of the commissioners because the brother of one of their number was the applicant for the discontinuance of the highway. The statute disqualifying judges under certain circumstances does not reach the case. It applies only to judges of courts, and the commissioners do not fall within that denomination. I do not think there is a close analogy between the cases. An act of public administration, though requiring the exercise of judgment, is quite a different thing from the dispensing of justice between man and man; and although a public officer ought not to act in a matter in which he has a private interest, the objection is not so strong where he is only connected by consanguinity with a person who has such an interest. The management of the internal affairs of towns and villages is intrusted to such of the inhabitants as may be selected by the suffrages of the other inhabitants; and many of the subjects of administration are such as affect the private interests of a large number of the people of the town. A rule which should preclude the officer from acting in all cases where a relative within the prohibited degree had an individual interest, would, I presume, be found quite inconvenient. Take the case of assessors, for instance: Under the rule contended for, no assessor could take part in the valuation of the property of any of his relatives within the ninth degree of consanguinity; and so of the auditing of town and county charges, and many other subjects, The People v. Wheeler. The common law disqualifies one from acting as a juror in such cases, and the statute has extended the disqualification to judges of courts. To enlarge the rule still further, so as to embrace administrative officers, requires, in my opinion, an act of the legislature. But it does not appear that Thomas Wheeler had any pecuniary interest in the question whether the road should be discontinued or not. All that is stated is, that he was an inhabitant of the town, and liable to be assessed for highway taxes. This was no doubt true of the commissioners themselves, and of all of that class of officers in the several towns. True, he applied for the order of discontinuance, as any taxpaying inhabitant might have done. All such inhabitants are recog nized by the statute as having such a public interest as entitles them to promote such a proceeding. It may be said that by making the application he became a party to the proceeding, and that his position is analogous to that of a plaintiff in a suit; but I do not see that in any event the decision would charge or exempt him from the payment of any costs or expenses. There could be no judgment for or against him. Those who should oppose the order would be parties in the same sense; but I think that none of them sustain such a relation to the officers who are to pass upon the motion, as litigants sustain to the judges and juries who are to try the. case. The situation of Thomas Wheeler more nearly resembles that of a complainant on the trial of an indictment. It might be good cause of challenge for favor to a juror that he was a relative of the prosecutor, but it would not ipso facto disqualify him. Upon the whole matter, I am of the opinion that the order was not erroneous for the reason for which it was reversed by the Supreme Court. All the judges concurring, Judgment reversed, and proceedings of the commissioners affirmed. A bond conditioned for the faithful discharge by one of the obligors of "the trust reposed in him as assistant book-keeper" of a bank, is an engagement that he will not avail himself of his position to misapply or embezzle the funds of his employer. The appropriation by the book-keeper of the bank's money and making fraudulent entries to avoid detection is a breach of the bond as against a surety therein. It is immaterial that the embezzlement was committed while the bookkeeper was employed in keeping a journal which, when he entered upon his duties, and usually, was kept by the teller, and that the fraudulent entries were made in such journal. APPEAL from the Supreme Court. Action upon a bond reciting that one Gold had been appointed assistant book-keeper of the Rochester City Bank, and conditioned that he should แ 'faithfully discharge the trust reposed in him as such assistant book-keeper." Breach, that Gold on the 5th of January, 1853, "while in said plaintiff's employment as such assistant bookkeeper, wrongfully took and appropriated to his own use of the moneys of the plaintiff in the plaintiff's banking office, the sum of $1,000; and then and there made false and fraudulent entries in the books of the plaintiff for the purpose of concealing from observation and detection such appropriation." Upon the trial it was proved that from the organization of the bank until several months after Gold entered into its service a certain credit journal was uniformly kept by the teller in which entries were made by him of the deposits in the bank. Gold had nothing to do with the keeping of this book, which was called the Teller's Credit Journal, until December 1851, when, in consequence of the teller's duties being made more onerous by the absence of the cashier, Gold was required by the officers of the bank to assist the teller in keeping it. He did so until January 8th, 1853, when he left the bank. On the 5th Janufrom the funds of ary, 1853, the sum of $1,000 was abstracted the bank. There was evidence tending to show that Gold en |