The opinion
GOLDTHWAITE, J.
My own opinion is, that the act of 1826, in one of its aspects, was intended to cover precisely such a case as this. It provides for the failure of the Judge, as well as for his refusal to certify an exception; but it does not follow that a failure must be established in the same manner as a refusal. I can conceive of no case of failure, except the single instance of the death of the presiding Judge, in which the act of 1826 can afford relief, if it is denied in this case. But in this opinion I stand alone; the other members of the Court consider the case merely one of great hardship under the circumstances, as every thing was conducted with perfect fairness and good faith. In their judgment there is nothing in the case, as presented, which shows any failure or refusal on the part of the Judge, and therefore that it is not within the intent or meaning of the act. Motion refused.