OPINION OF THE COURT BY
WILDER, J.
(Frear, C. J., dissenting.)
This is a writ of error to the circuit court of the fourth circuit. On a motion to. quash the writ defendants in error claimed that Mr. Justice Hartwell was disqualified by reason of having acted as counsel for some of the parties in, and taken an active part in some previous stages of, the case. Plaintiffs in error contended that there was no disqualification either on the main case or on the motion to quash.
Of late years it has been the common practice for a justice of this court to refuse to sit in a case where the slightest suggestion was made as to his having formerly been of counsel in the cause. This practice has been checked and disapproved of by [394]*394the ruling of this court in the recent case of Love v. Love, 17 Haw. 194, which, so far as appears, was the first time the matter was ever contested and adjudicated, where it was held that a justice of this court is not disqualified to sit in a case by reason of having been counsel of record as a member of a partnership which had been retained in the case, he having taken no active part in the case n'or advised upon the questions at issue. No opinion was expressed as to disqualification in case he had taken an active part in the matter and advised in regard to the questions at issue. The latter question being squarely up for decision in this case, it must be decided according to the law irrespective of what the court thinks should or ought to be the practice.
Attention is directed in the first place to the statute by which a circuit judge may be called in as a member of this court. This statute reads as follows: “Parties to causes pending before the supreme court shall be entitled to a hearing before all of the justices thereof and may not be compelled to go to trial before less than the full number thereof. Provided, however, that if 'any of the justices of the supreme court shall be disqualified from sitting in any cause pending before the supreme court or shall be unable to attend from sickness, accident or any other reason his or their place or places for the trial or determination of such cause shall be filled by one or more of the circuit judges,” etc. R. L., Sec. 1634, as amended by Act 92, S. L., 1905. It is not claimed that there is any reason except that of alleged disqualification why Mr. Justice Hartwell should not sit in this case. In view of the statute it would seem that a justice has no right to withdraw from, and it is his duty to sit in, a case unless he is disqualified or unable to sit for some other specified reason.
Section 84 of the Organic Act provides: “That no person shall sit as a judge or juror in any case in which his relative by affinity or by consanguinity within the third degree is interested either as a plaintiff or defendant or in the issue of which the said judge or juror may have, either directly or through [395]*395such relative, any pecuniary interest.” Thus, disqualification by relationship and by reason of pecuniary interest is provided for. If the provisions of this section are exclusive, then there is no disqualification, and, if they are not exclusive, a disqualification can only exist if it is according to the common law. In view of the conclusion reached it is not necessary to say whether the statute is exclusive.
The principle that a man may not be a judge in his own cause is of universal acceptance and cannot be questioned. An alleged disqualification by reason of having been of counsel is of recent origin and created by express constitutional or statutory provisions. As it may exist independently of relationship or pecuniary interest in the result, it was doubtless based upon considerations of supposed bias, partiality or prejudice arising from the relationship of attorney and client, which may reasonably be presumed might influence the actions of the judge. Newcome v. Light, 58 Tex. 141. One who is biased, prejudiced or partial should not be a judge, but, in the absence of statute, such a person is not disqualified. As the common law did not disqualify for bias, prejudice or partiality, which gave rise to the mile, it follows that at common law there was no such disqualification as that of having been of counsel.
Most of the reported cases are not of much assistance, because in nearly every jurisdiction they are controlled by statute. But that in the absence of statute there was no such disqualification at common law is the holding by the great majority of the cases. As the question is an important one, all the citations in point on the subject we have been able to find are referred to.
“At the common law as it nrevailed in England, and was adopted by the people of the United States, there could be no challenge or recusation of judges on the ground that the judge had been of counsel. See Coke, Litt. 294; 2 Bro. Civ. & Adm. Law, 369; 3 Bl. Com. 361; Lyon v. State Bank, 1 Stew. 442.” The Richmond, 9 Fed. 863.
In Thellusson v. Rendlesham, 7 H. L. Cas. 429, a court constituted of so many members that it could with slight inconvenience dispense with the participation in a hearing of one ©f [396]*396the peers, Lord St. Leonards stated that he had on two occasions been of counsel in a cause though not upon a point then pending, but that he “did not conceive that these facts absolved him from the duty of taking part in the hearing.” Lord Brougham trusted that it would not be assumed that the having been of counsel in a cause operated as a disqualification to prevent the same person, when raised to the bench, from taking part in the decision of that cause. The Lord Chancellor, who was of counsel for one of the appellants in the court below, held that he was not disqualified. He heard the argument, saying that he did not intend to take a part in the decision as a matter of personal feeling unless there was an equal division of opinion. No one dissented from these views.
Tatham v. Wright, referred to in the above case, came before the lord chancellor, who had been of counsel in the cause, on an application for a new trial. He obtained the assistance of two learned judges, Chief Justice Tindal and Mr. Baron Alderson, and having done that he himself took part in pronouncing the decision.
In the Bank of North America v. Fitzsimmons, 2 Bin. 454, it was held that it was no objection to a judge that while at the bar he had been consulted and had given an opinion in favor of one of the parties. Cited in The Richmond, 9 Fed. 863.
In Den v. Totem, 1 N. J. L. 190, it was held to be no objection to a judge, before whom a jury is to be struck, that he has been of counsel with one of the parties.
In Morgan v. Hammett, 23 Wis. 30, it was held that the fact that the county judge had been of counsel for some parties interested in the matter of an administrator’s sale of real estate to pay debts did not disqualify him from acting upon an application for a license to sell.
In Townsend v. Hughes, 2 Mod. 151, Scroogs, J., said he was of counsel with the plaintiff, before he was called to the bench, but now he had forgotten all former relations and thereupon delivered his opinion. Cited in note to 25 L. R. A. 117.
It was said in Re Nevitt, 117 Fed. 451: “What constitutes disqualification? Speaking generally, the answer may be: [397]
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OPINION OF THE COURT BY
WILDER, J.
(Frear, C. J., dissenting.)
This is a writ of error to the circuit court of the fourth circuit. On a motion to. quash the writ defendants in error claimed that Mr. Justice Hartwell was disqualified by reason of having acted as counsel for some of the parties in, and taken an active part in some previous stages of, the case. Plaintiffs in error contended that there was no disqualification either on the main case or on the motion to quash.
Of late years it has been the common practice for a justice of this court to refuse to sit in a case where the slightest suggestion was made as to his having formerly been of counsel in the cause. This practice has been checked and disapproved of by [394]*394the ruling of this court in the recent case of Love v. Love, 17 Haw. 194, which, so far as appears, was the first time the matter was ever contested and adjudicated, where it was held that a justice of this court is not disqualified to sit in a case by reason of having been counsel of record as a member of a partnership which had been retained in the case, he having taken no active part in the case n'or advised upon the questions at issue. No opinion was expressed as to disqualification in case he had taken an active part in the matter and advised in regard to the questions at issue. The latter question being squarely up for decision in this case, it must be decided according to the law irrespective of what the court thinks should or ought to be the practice.
Attention is directed in the first place to the statute by which a circuit judge may be called in as a member of this court. This statute reads as follows: “Parties to causes pending before the supreme court shall be entitled to a hearing before all of the justices thereof and may not be compelled to go to trial before less than the full number thereof. Provided, however, that if 'any of the justices of the supreme court shall be disqualified from sitting in any cause pending before the supreme court or shall be unable to attend from sickness, accident or any other reason his or their place or places for the trial or determination of such cause shall be filled by one or more of the circuit judges,” etc. R. L., Sec. 1634, as amended by Act 92, S. L., 1905. It is not claimed that there is any reason except that of alleged disqualification why Mr. Justice Hartwell should not sit in this case. In view of the statute it would seem that a justice has no right to withdraw from, and it is his duty to sit in, a case unless he is disqualified or unable to sit for some other specified reason.
Section 84 of the Organic Act provides: “That no person shall sit as a judge or juror in any case in which his relative by affinity or by consanguinity within the third degree is interested either as a plaintiff or defendant or in the issue of which the said judge or juror may have, either directly or through [395]*395such relative, any pecuniary interest.” Thus, disqualification by relationship and by reason of pecuniary interest is provided for. If the provisions of this section are exclusive, then there is no disqualification, and, if they are not exclusive, a disqualification can only exist if it is according to the common law. In view of the conclusion reached it is not necessary to say whether the statute is exclusive.
The principle that a man may not be a judge in his own cause is of universal acceptance and cannot be questioned. An alleged disqualification by reason of having been of counsel is of recent origin and created by express constitutional or statutory provisions. As it may exist independently of relationship or pecuniary interest in the result, it was doubtless based upon considerations of supposed bias, partiality or prejudice arising from the relationship of attorney and client, which may reasonably be presumed might influence the actions of the judge. Newcome v. Light, 58 Tex. 141. One who is biased, prejudiced or partial should not be a judge, but, in the absence of statute, such a person is not disqualified. As the common law did not disqualify for bias, prejudice or partiality, which gave rise to the mile, it follows that at common law there was no such disqualification as that of having been of counsel.
Most of the reported cases are not of much assistance, because in nearly every jurisdiction they are controlled by statute. But that in the absence of statute there was no such disqualification at common law is the holding by the great majority of the cases. As the question is an important one, all the citations in point on the subject we have been able to find are referred to.
“At the common law as it nrevailed in England, and was adopted by the people of the United States, there could be no challenge or recusation of judges on the ground that the judge had been of counsel. See Coke, Litt. 294; 2 Bro. Civ. & Adm. Law, 369; 3 Bl. Com. 361; Lyon v. State Bank, 1 Stew. 442.” The Richmond, 9 Fed. 863.
In Thellusson v. Rendlesham, 7 H. L. Cas. 429, a court constituted of so many members that it could with slight inconvenience dispense with the participation in a hearing of one ©f [396]*396the peers, Lord St. Leonards stated that he had on two occasions been of counsel in a cause though not upon a point then pending, but that he “did not conceive that these facts absolved him from the duty of taking part in the hearing.” Lord Brougham trusted that it would not be assumed that the having been of counsel in a cause operated as a disqualification to prevent the same person, when raised to the bench, from taking part in the decision of that cause. The Lord Chancellor, who was of counsel for one of the appellants in the court below, held that he was not disqualified. He heard the argument, saying that he did not intend to take a part in the decision as a matter of personal feeling unless there was an equal division of opinion. No one dissented from these views.
Tatham v. Wright, referred to in the above case, came before the lord chancellor, who had been of counsel in the cause, on an application for a new trial. He obtained the assistance of two learned judges, Chief Justice Tindal and Mr. Baron Alderson, and having done that he himself took part in pronouncing the decision.
In the Bank of North America v. Fitzsimmons, 2 Bin. 454, it was held that it was no objection to a judge that while at the bar he had been consulted and had given an opinion in favor of one of the parties. Cited in The Richmond, 9 Fed. 863.
In Den v. Totem, 1 N. J. L. 190, it was held to be no objection to a judge, before whom a jury is to be struck, that he has been of counsel with one of the parties.
In Morgan v. Hammett, 23 Wis. 30, it was held that the fact that the county judge had been of counsel for some parties interested in the matter of an administrator’s sale of real estate to pay debts did not disqualify him from acting upon an application for a license to sell.
In Townsend v. Hughes, 2 Mod. 151, Scroogs, J., said he was of counsel with the plaintiff, before he was called to the bench, but now he had forgotten all former relations and thereupon delivered his opinion. Cited in note to 25 L. R. A. 117.
It was said in Re Nevitt, 117 Fed. 451: “What constitutes disqualification? Speaking generally, the answer may be: [397]*397Interest in the subject matter of the litigation, relationship to one or more of the parties to it and statutory prohibitions.”
In Owings v. Gibson, 2 A. K. Marsh 515, it was held that an alleged surprise in this, that the presiding judge had been counsel for plaintiff, and defendant did not expect that he could sit and therefore did not preñare himself, is not a sufficient cause for a new trial. Prejudicial motives may prevent a judge formerly counsel from sitting in a cause, but sitting or not is discretionary with the judge.
In Blackburn v. Craufurd, 22 Md. 447, it was held that the fact that a judge had been counsel in a case theretofore tried between two of the parties to the bill, which involved some of the issues raised in the bill, did not bring him within the letter or spirit of the constitutional inhibition against sitting in a case wherein he may have been of counsel. Cited in The Richmond, 9 Fed. 864.
“It is worthy of observation that at common law judges were not subject to the same disqualifications as jurors, and there are .at the present time many grounds of challenge to a juror which are not applicable to judges. At common law the only ground upon which a judge could be excluded from acting was interest in the cause. This disability was founded upon the maxim that no man can be judge of his oavu cause. Consanguinity to either of the parties, though good cause of challenge to a juror, did not disqualify a judge, for favor Avould not be presumed in a judge.” In re Dodge, 77 N. Y. 112.
In Texas, where the constitution disqualifies a judge when he Avas of counsel in the case, it is recognized that at common law that was no disqualification. Taylor v. Williams, 26 Tex. 586.
At the older common law personal interest formed the only ground for challenging a judge. Russell v. Belcher, 76 Me. 502.
In Heflin v. State, 88 Ga. 151 (30 Am. St. Rep. 147), it was held that a judge is not ner se disqualified to preside on the trial of an indictment for perjury because he is convinced of the guilt of the accused and has privately and unofficially advised the prisoner’s counsel to induce his client to plead guilty. In Georgia the having been of counsel is a statutory disqualification.
[398]*398Moses v. Julian, 45 N. H. 52, and Tampa Street Railway Co. v. Tampa Suburban Railway Co., 11 So. (Fla.) 562, on which latter case State v. Hocker, 25 L. R. A. (Ha.) 114, was based, are cases which may be claimed to hold that even in the absence of statute a judge is disqualified who has been of counsel in the case. But in New Hampshire the bill of rights provided that “it is the right of everv citizen to be tried by judges as impartial as the lot of humanity will admit,” and there was also a statutory jwovision that a justice of the suureme court could not sit upon the trial of any cause in which he had been concerned as party or attorney, which statutory provision the court held was applicable to all judges and judicial officers. In that case the judge of probate who allowed the will wrote the will while he was judge in the face of a constitutional provision prohibiting him from acting as attorney or being of counsel, the effect of the constitutional provision being held to “disqualify the judge to sit in the hearing or decision upon the proof of such a will.” And in the Florida case there was no statute at the time, although there had been previously, and the practice had .grown up of considering this a disqualification even after the repeal of the statute. But, as a matter of fact, it was held that the judge in question was not disqualified, the record showing only that he had advised conwlainant on matters irrelevant and immaterial to the case made out by the bill.
As we find there is no legal disqualification, a justice of this court, from a sense of delicacy or personal feeling, has no right to withdraw from sitting in a case, because, if there is no disqualification or other reason mentioned in the statute, a circuit judge cannot be called in and the case cannot be heard, as the parties are entitled to a hearing before a bench of three members.
It is the opinion of this court that Mr. Justice Hartwell, on the facts stated, is not disqualified from sitting in this case either on the merits or the motion to quash.
Kinney, McCla-nahan & Gooper and Ballou- & Marx for plaintiffs in error.
Holmes & Stanley for defendants in error.