
    *Boswell v. Flockheart.
    
    May. 1837,
    Richmond.
    (Absent Parker, J.)
    Change of Venue — Local Prejudice — Application.—An application by a defendant for a change of venue, on the ground of general prejudices existing against him in the town where the cause is to be tried, should be supported by the affidavits of disinterested individuals.
    Same— Prejudice of Judge — Discretion of Judge.— When a j udge of a circuit court is so situated as to render it improper, in his judgment, for him to preside at the trial of a cause, the statute maltes it lawful for him to remove the cause to another circuit. In such case, however, the propriety of removing or refusing to remove depends upon the self consciousness of the judge, and an appellate court cannot revise his decision.
    Assumpsit in the circuit court of Peters-burg, by John Flockheart against William C. Boswell. At the fall term of 1834, the cause was first on the court docket, and was continued till the next term. In June 1835, the defendant pleaded the general issue.
    When the cause was called, the defendant moved the court to change the venue, and in support of the motion offered his own affidavit, which set forth, that from the prejudice existing against him in the town of Petersburg, he verily believed he would not have justice done him at the trial by a Petersburg jury; that he the affiant had been informed by the plaintiff that one of his counsel had advanced him money, which the affiant believed to be yet unpaid; that the said counsel was nearly related to the judge of the court, and was, in the opinion of the affiant, interested in the decision of the cause; and that theretofore great hostility had existed on the part of the judge towards the affiant, which he believed still to exist: that for these reasons he was unwilling that the cause should be tried in that court, or that the judge should sit upon the trial; and believing it to be his unquestioned right to change the venue, he was unprepared *with his witnesses to go into the trial. Accompanying this affidavit was a certificate of six persons, not under oath, to the following effect: that they had been long and intimately acquainted with the defendant, who had resided in Petersburg for many years, and were confidently of opinion that he was a man of good character and standing in the community, that he was every way entitled to confidence for integrity and regard for the truth, and that he wouid not make oath to any matter whatever, unless he really believed it to be true; and that they would believe him, on oath or otherwise, as soon as any man whatever.
    On this affidavit being presented, the court said that the case would not be removed on account of the objection to the judge; for that if the judge was conscious of any hostility to the defendant, he would have removed the cause without any application. And the counsel denied in court that any debt due to him from the plaintiff was in any way charged upon the debt due from the defendant. The court moreover stated, that if the defendant would prove, by any disinterested testimony, that a general or even extensive prejudice was prevalent against him among the people of Petersburg, the cause would probably be removed. -
    At another day the plaintiff introduced four respectable witnesses, who deposed, that while they did not regard the defendant as a popular man, they did not believe in the existence of any general or extensive prejudice against him. And on the day the motion was finally acted on (which was more than a week after it was first made) it was proved that the defendant had declared, that if the plaintiff sued him, he the defendant would keep him out of his money for seven years. The court refused to change the venue; and the defendant excepted to its opinion.
    The defendant then moved the court to continue the cause until the next term, on the ground stated in his "affidavit; which motion was likewise overruled. The cause was tried during the term, a verdict found for the plaintiff, and judgment rendered thereupon. To which judgment a supersedeas was awarded.
    John Robertson, for plaintiff in error.
    Spooner, for defendant in error.
    
      
      Deeds - Acknowledgment by Interested Party. — To the point that an interested person may take the acknowledgment of a deed when the act is merely ministerial, the principal case was cited in Nat. Bank v. Conway. 17 Fed. Cas. 1201; foot-note to Johnston v. Slater, 11 Gratt. 321.
    
   TUCKER, P.

In this case an application was made to the court by the defendant for a change of the venue, on the ground of general prejudices existing against him in the town of Petersburg, where the cause was to be tried. The application, however, was not supported by the affidavits of disinterested individuals, and was therefore properly rejected. The court having intimated the probability of its assenting to a change of the venue if such affidavits were produced, and the defendant having nevertheless failed to produce them, though time was allowed him, there is not a shadow of reason for complaint in this regard. The rule of the general court (Hall’s Index 622), and the well established and very proper practice of the country, leave no room to doubt that the motion to change the place of trial should not have been allowed, unless supported by testimony.

But the defendant next objects to the judge; and upon his own affidavit that the judge’s brother was interested,, and the judge himself prejudiced against him, he founds an application to remove the cause to another circuit.

On this subject I will remark, that the change of venue refers altogether to the jury. There is not, that X am aware, any such thing known, as a demand, at common law, that a judge shall remove a cause from his own forum because he is prejudiced against one of the parties.

*To our own statutes only can we look for any provision on this subject. We have various provisions designed to secure a fair and impartial trial; but there is none ■which will justify the peremptory demand in this case. If the judge is a party in a cause depending, the general court is required to remove it for trial at its own bar, unless good cause be shewn to the contrary. 1 Rev. Code, ch. 67-, § 9, p. 222. And that court is ’also empowered, in general terms, for good cause shewn, to cause a suit depending in one circuit court to be tried in another. 1 Rev. Code, ch. 67, g 8, ch. 69, § 51, pp. 222, 238. In neither of these cases is the judge of the circuit court called upon to act. But when a judge is interested in a cause, “or related to either of the parties, or in any manner situated so as to render it improper in his judgment to preside at the trial, it shall be lawful for such judge to cause the same to be removed to the next circuit, and to the most convenient court in that circuit, for trial.” 1 Rev. Code, ch. 69, § 54, p. 239. Here the power is given, but its exercise is left to the discretion, of the judge. It is not for this court to sit in judgment upon the manner in which he does exercise the discretion, for it is to depend upon his judgment; and moreover, from the very nature of the act, the propriety of that judgment depends upon his selfconsciousness, into which we cannot dive. In this case the judge declared his freedom from any bias, and his readiness, if he was conscious of hostility to the defendant, to remove the cause. What evidence have we of his hostility? The affidavit of the defendant, though sufficient to lay the groundwork for enquiry, is not evidence in the case. None other has been produced; and it is therefore fair, in reference to the judge, to believe that none could be produced. And even if it were produced, this is not the tribunal in which it could properly be heard, since there can properly be no appeal from a decision as to the propriety of deciding the cause, *which the statute declares is to depend upon the'judgment and discretion of the judge himself. I am well satisfied that I ought never to have granted the supersedeas, which was awarded by myself in vacation, and without consultation with my brethren. I think the judgment should be affirmed.

The other judges concurred. Judgment affirmed.'  