#### Walker et al. vs. Sneed, as Judge &c.

Dndef the act of 1843 providing for a temporary exchange of circuits by circuit judges, where a judge was legally disqualified to preside on the trial of a cause, in any court in his circuit, he was bound to give notice to the proper judge to exchange with him in a reasonable time after ascertaining such disqualification, which lime would terminate with the close of the first court held in his circuit in which such case was pending.

The notice given, after allowing the time necessary for its transmission, and for the judge notified to make known his determination, if no answer was received, the judge so disqualified Was fully authorised and required to regard the exchange of circuits as having been declined, and immediately thereafter should have certified the case to the Governor, for the appointment of a special judge.

Petition for Mandamus.

Petition to this court for mandamus, filed at the January term 1846, by David Walker, Abraham Allen, and John Hammock. The petition stated, in substance, ‘‘that on the 26th June 1843, one Henry Koontz filed a bill in the chancery side of the Benton circuit court against petitions, and obtained an injuction against them re-* straining them from taking possession of, or occupying certain lands therein described,”&c. A copy of the bill, &c. was exhibited. “That at the time said suit was instituted the Hon, Sebron G. Sneed was a practising attorney in said circuit court, and was retained and employed by the complainant as such, and his name is subscribed to the bill as one of the solicitors of complainant. That after he was so employed in the case, and after said suit was commenced, he was elected judge of the fourth judicial circuit, which embraces Benton county, and was commissioned, and entered upon the discharge of his duties as such in the latter part of the year 1844. That said cause came on to be heard in May 1845, and being then pending and undetermined, and said Sneed, so being judge as aforesaid, refused to take jurisdiction of, or to try said cause, and ordered the same to be continued on account of his interest therein, which was done accordingly. And at the Nov. term 1845, said bill was *234still pending and undetermined, and said Sneed, presiding as judge in said court, refused to take any jurisdiction or make any decision therein, and directed the same to be continued.

That although said judge well knew, that as such and in discharge of his official duties, he should have temporarily exchanged circuits, or caused said case to be duly certified to the Governor of the State, as a case in which he was incompetent to sit and decide, and although he hath been requested so to do, he has, neglected to exchange circuits or certify or cause to be certified the same ; but in contempt of the law and in violation of his official duties hath refused so to do in any cause where he is interested, of which this is one, although he was on the 2d day of April 1846, specially requested so to do, to-wit, at &c., and hath deprived petitioners of the benefit of an adjudication or healing of their rights in litigation,” &c. &c.

Petitioners prayed a mandamus to qompel the judge to certify the case, it was verified by the affidavit of Walker.

The court ordered an alternative writ to be issued, to which the judge responded in substance as follows:

“It is true as alleged in said writ that at and before the filing of said bill in chancery, respondent was a practising attorney in the circuit court of Benton county; but it is not true that he ever was retained by the said Koontz in said case. Respondent, however, admits that it is true, as he believes, that his name was placed to said, bill as solicitor by other attorneys who had been retained by said Koontz. Respondent further states that it is true that he was after-wards elected judge of the 4th judicial circuit, and that in the latter part of the year 1844, he entered upon the discharge of his duties as such ; that said cause came on to be heard sometime in May 1845, and'he did not take jurisdiction of or try the same, and it has not yet been tried. Respondent states that it is positively false that he was specially or otherwise requested to exchange circuits with the judge of the 3d judicial circuit or any other circuit judge, or that he ever refused to exchange circuits as prescribed by law, as stated in said writ and said petition. Respondent admits that it is true that he has been requested to certify said case to the Gov-*235emor, and refused to do so for the reason, in addition to the one herein mentioned, that he believes that a proposition from him to the judge of the 3d judicial circuit to hold courts for each other, and to try cases in which they were respectively interested as required by the statute in such case made and provided, was a condition precedent to certifying said case to the Governor. Respondent states that such being his opinion, he has made two propositions to the judge of the 3d judicial circuit to interchange ridings with him, as required by the statute, that said judge might hold the courts, and try the cases, in the 4th judicial circuit in which respondent was interested as attorney or otherwise. That notwithstanding two several propositions have been made, respondent has been unable to receive any answer, owing to the supposed fact of his absence. And respondent submits whether he can legally certify the case in question, or certify any other case whatever in which he is interested until he shall first propose to interchange sidings with the judge of the 3d circuit as required by law, and the refusal shall have been made by him to accept the proposition ? Respondent further stales that so far from having refused, as stated in said writ, to interchange circuits, he has been anxious to make the interchange, that the cases in which he was interested might be tried and disposed of without putting the State to the extraordinary expense of paying special judges to try the same.”

Petitioners’ counsel demurred to the response, and assigned the causes therefor stated in the opinion of the court.

Fowler, for petitioners, and E. H. English, for respondent, argued the case orally.

Cross, J.

Various exceptions are taken upon demurrer to the return made in obedience to the command of the alternative writ. First, it is objected that “ The said Sebron G. does not state with sufficient certainty that he was not before his said election as judge retained by said Koontz as one of his attorneys and solicitors; or that he was not a partner of one or more of said attorneys, who were retained and signed the said bill of said Koontz.” 2d, That *236“said return neither admits or denies that he the said Sebron G., judge as aforesaid, when the said cause came on to be heard in May 1845, refused to take jurisdiction thereof or try the same and ordered it to be continued on account of his interest therein.” 3d, That “said return does not attempt to respond to the allegation in said alternative writ of mandamus, thatat the November term 1845, said suit was still pending, and that he the said Sebron G. presiding as judge therein refused to take jurisdiction of said cause for that he was interested therein, and continued it.” 4th, That “said return admits that he, the said Sebron G. as such judge, has refused to certify said cause to the Governor as aforesaid, when by the constitution and laws of the State, it was his sworn duty so to certify the sameand lastly, that “ said return furnishes no excuse under the statute requiring exchanges of circuits in this, that it does not show that the said Sebron G. complied with such statute; and if he did the neglect of the other judge to respond, and his alleged absence made it incumbent on the said Sebron G. as such judge even under that statute to certify said cause to the Governor.”

Of these objections the three first relate to the disqualification of the judge on the ground of interest, and his refusal to preside on the trial of the cause; both of which are, we think, sufficiently shown. The fourth and last have reference to the means of a trial and determination o.f the cause. On this subject, under the provisions of an act approved 3d Feby. 1843, it is enacted that the “Judges of the third and fourth” “judicial circuits” “of this State shall exchange circuits and hold courts for each other when such exchange shall be necessary,” &c. and “ that whenever the judge in any judicial circuit in the State shall be by law disqualified from presiding on the trial of any cause or causes pending in any of the circuit courts in his circuit, it shall be the duty of such judge to notify the judge with whom by this act he is authorized to exchange of the same by a notice in writing requesting said judge temporarily to exchange circuits with him, or to hold courts for him,” &c, “and thereupon it shall be the duty of the judge thus notified, to make known in writing to the judge thus requesting such exchange, *237whether he will comply with said request, and what courts he will hold for him, if any ; and should such judge decline or refuse to hold said court or courts for any cause whatever, or should he be absent from the State, it shall be the duty of the judge of the circuit to certify the cause or causes from presiding in which he may be disqualified by law, to the Governor of the State, and the Governor shall immediately commission,”&c.- See Session Acts 1842-3, p. 127. This being a remedial enactment must have the benefit of a liberal construction in reference to the objects contemplated by the legislature, which evidently were to secure and expedite the administration of justice. Thus regarded, a judge legally disqualified to preside on the trial of a cause in any court of his circuit, is surely bound to give the notice required in a reasonable time after ascertaining such disqualification, which time we think would terminate with the close of the first court held in his circuit in which such cause was pending. The return does not show when this notice was given and is therefore defective. Supposing it however to have been duly given, after allowing the time necessary for its transmission, and for the judge notified to make known his detei--mination, if no answer were received the judge so disqualified was fully authorized and required to regard the exchange of circuits as having been declined, and immediately thereafter should have certified the cause to the Governor of the State for his action. The return made to the writ in question, bearing on this branch of the subject, states that “two propositions” were made “ to the judge of the 3d judicial circuit to interchange ridings as required by the statute, that said judge might hold the courts and try the cases in the 4th judicial circuit in which the respondent was interested as attorney or otherwise, that notwithstanding two several propositions have been made respondent has been unable to receive any answer owing to the supposed fact of his (the judge of the 3d circuit) absence.” It appears in a preceding part of the return that the cause complained of “ came on to be heard some time in the month of May 1843.” From that time, if the notice was then given as we think it ought to have been, until July of the present year (the date of the return) no answer was received, nor wms the *238cause certified to the Governor. The return is clearly defective in showing no sufficient cause for this extraordinary delay in affording the parties the means of a trial and determination of their cause by certifying the same to the Governor of the State for his action under the provisions of the act on that subject before referred to. The demurrer must therefore be sustained and a peremptory mandamus awarded.