least $300,000; and a copy of the complaint in this action was attached to and made a part of said affidavit. It was contended by counsel for the defendant, Tuttle, that said L. C. Pettibone, who made the principal affidavit, had inspired the institution of the various actions and proceedings. In other words, the showing that these actions had been brought was made as bearing upon motive and credibility. The question of the sufficiency of the complaint was in no manner alluded to either in the affidavits or the argument.
The only basis for challenging the right of a member of the supreme court to sit on the hearing of a cause is § 100 of the Constitution, which provides: “In case a judge of the supreme court shall be in any way interested in a cause brought before said court, the remaining judges of said court shall call one of the district judges to sit with them on the hearing of said cause.” N. D. Const. § 100. It will be noted that the Constitution makes “interest” the ground of disqualification. Nothing is said about “bias” or “prejudice.” “Interest” is by no means synonymous with “bias” or “prejudice.” The distinction between the two terms has been recognized from the early period of the English common law. Thus, under the common law one having an interest in the litigation was disqualified as a witness. But in applying this rule it was held that “an interest disqualifying a witness must be legal, as contradistinguished from mere prejudice or bias arising from relationship, friendship, or any of the numerous motives by which a witness may be supposed to be influenced.” Bouvier’s Law Dict. Rawle’s 3rd Rev. p. 1649.
Cyc. says: “The interest which disqualifies a judge is a pecuniary interest, or one which involves some individual right or privilege. It must be a direct interest in the subject-matter of the litigation.” 23 Cyc. 576.
“In the absence of statutory provision, bias or prejudice on the part of the judge does not disqualify him. In many states, however, there now exists statutes which expressly make the bias or prejudice of a judge a ground of disqualification. But disqualifying a judge on the ground of prejudice is so liable to abuse that some states have refused to adopt it.” 23 Cyc. 582.
In our constitutional convention there were several lawyers of experience and ability. They were doubtless wholly familiar with the distinction between what is meant when it is said that a party has an “interest,” or is “interested,” in a cause, and when it said that he is “‘biased" or “prejudiced” therein in favor of one party or against the other. They were, also, doubtless familiar with what is said in Cyc.—that there was
