
    KUMAZO MATSUMURA v. THE COUNTY OF HAWAII.
    Reserved Question prom Circuit Court, Fourth Circuit.
    Submitted October 5, 1908.
    Decided October 8, 1908.
    Hartwell, O.J., Wilder and Ballou, LI.
    
      Judges — disqualification.
    A judge is not disqualified under Sec. 84 Organic Act from sitting at the trial of a cause upon the facts in issue by reason of having sustained a demurrer to the plaintiff’s declaration, which ruling was reversed by the appellate court.
   OPINION OF THE COURT BY

HARTWELL, C.J.

Upon the case coming up for trial in the circuit court upon the issue made by the defendant’s plea of general denial the plaintiff objected to the judge on the ground that in. sustaining the defendant’s demurrer which this court overruled on exceptions (19 Haw. 18,) and by entering judgment for the defendant he was disqualified under Sec. 84 of the Organic Act which prohibits a judge from sitting “on an appeal or new trial in any case in which he may have given a previous judgment.” The question whether this was a disqualification was reserved by the judge for the consideration of this court.

The plaintiff contends that the case was decided by the judge in sustaining the demurrer on the ground of the defendant’s nonliability and that tbe decision was equivalent to giving a judgment in tbe case, the plaintiff not amending bis declaration, and also that a trial of tbe case on tbe facts would be a new trial within tbe provision of tbe act. It is immaterial whether this is tbe kind of judgment intended by tbe statute to disqualify from sitting upon a new trial which means that tbe case shall-have bad a previous trial on an issue of fact. Tbe statute must be taken to refer to tbe new trial known to tbe common law. See Bouvier’s Law Dictionary and common law writers, passim.

. Carl S. Smith, for plaintiff.

Charles Williams, County Attorney of llXawaii, for defendant.

Tbe question reserved is answered in tbe negative.  