Year: 1872

|


Notions.


Before delivering the following opinion


Chancellor Temple said he desired to ex


press his qualification at the very temper


ate, gentlemanIy and able manner will


which the counsel of both parties conduct


ed the argument of the cause. He ther
delivered the following opinion:


The first question I shall consider in thi:


case is the motion to strike defendant from
| the roll of attorneys and solicitors of thi:
court, because of conduct inconsistent with
professional character, and incompatible
with the faithful discharge of professional
duties. The specification on which this


motion is based is, That complainant, on
the 10Th day of February, 1868, filed his
bill in this court, against the said defen-
dant, alleging, among other things, that
complainant and defendant had previously
been partners in the practice of law, and
that the said defendant had Heretofore re-
ceived a fee of 5000 90 from James Donald
son, of Blount county, and the defendant
was called on to answer whether said al
legation was true or not. That OH the 11th
day of April, 1868, the defendant filed his
answer in said cause, and made answer,
under oath, to said charge, as follows:


at is not true that respondent received
5000 90 from James Donaldson, of Blount,
and this the solicitor Of complainant must
have well known when he drew his bill.
An assignment of a Judgment YVES taken
from Donaldson by respondent with aview
of securing the fees of Temple & Andrews
and this respondent, but if any part of
said fee has been collected, it must have
been done by complainant, certainly not by
respondent"


It is shown by the receipt correspondent
that OH the 25th of October, 1867, he had
received from James Davis full satisfac-
ton of said fee, and Davis proved on the
trial of this motion that the amount paid
was $50 90. The defendant, in his answer
to the charges preferred against him, ad-
mits that said fee had been paid at the time
his said answer was sworn to and filed.
But he alleges utter fOrgetfulness of the
fact, and enters into a detailed statement
Of the facts connected Herewith.


By Sec. 1910 of the Code it is provided,
in affirmance of old English statutes,
"that the several courts of this State may
strike from there rolls any person not
authorized to practice in said courts, and
also any practising attorney or counsel,
upon evidence satisfactory to the court
that he has been guilty of such misde-
meanor, or acts of immortality or impro-
"
ter or incompatible with the faithful dis
charge of his profession"


This is the act under which this motion
is made. The charge is that he was viii
fully and corruptly guilty of perjury, in
swearing to said answer. This grave
charge involves not only the privileges of
defendant, as a solicitor of this court, but
likewise his reputation as q good citizen.
If he is guilty of cOrruptly swearing false
ly to said fact, it is the duty of this court
to strike him from the roll of solicitors.


In determining as to his guilt or inno-
cence, am to be governed by the same
general rules of evidence that would gov
ern jury, if the defendant were on trial
on this charge before it. The fact is to be
proved or admitted. But this is not all.
The 0ninlatS or intent to commit the crime
must appear also. This the law often in
fers from the circumstances. But circum-
stances may also show that an act which
is apparently a crime, is in fact not
crime, because not accompanied by the
guilty intent.


Was there corrupt perjury in this case
If we assume that there was, the very au-
dacity and boldness of the act staggers us
and fills us with doubt. The defendant,
in his said answer, speaks of fact known
to Donaldson, to Davis and to Andrews,
and most probably to Trowbridge and
Caldwell, and to Headrick and others.
He refers to other facts and circumstances
that will aid in his detection, if he is
speaking falsely in heart as we'll as in fact.
He is speaking of fact easily proved or
disproved, and, as an account was prayed
for in the bill, of fact which he, as a
sensible man and respectable lawyer.
must have known would become the SUBJ
ject of proof on taking the account. If it
were deliberate act of perjury, he must
have weighed the circumstances surround
ing him, and the probability Of detection.
If he did this, he must have known the
falsehood would be detected, for he ac-
companies the denial, with bold imputa-
ton OH the solicitor, whom he supposed
had drawn complainant's bill, of having
stated what he knew to be false in MAX
ing the charge He also intimates that
the complainant had collected this very
fee, if it had been collected and thereby
challenges him to the proof. If the de-
fendant possesses common sense, land the
proof shows high order of intellect) such
conduct, such brazen recklessness, in the
denial of q fact known to q number of
persons, and which would inevitably be
the subject of proof in the suit he was then
defending, is inconsistent with anything
but the utmost depraYity of heart.


To my mind it creates the gTavest doubt
as to the guilt of the accused. 1 admit
that the facts were so recent, that it seems
he should have remembered them. 1t is
true he should have investigated them
before answering so boldly. These things,
besides others, cannot be easily explained.
But it is easier to explain them than it is
to reconcile the guilt of the defendant
with the possession, on his part, of COM
mon sense and common prudence, and
such character for integrity as is given
to him by the many witnesses in the
case.


AS this proceeding is in the nature of a
criminal prosecution for perjury, the Court
should be extremely cautious in fastening
so grave stigma on the character of any
solicitor or citizen, in the absence of a
trial 6y jury the great palladium of hu-
man liberty. 1
True, this Court is not bound to wait for
the verdict of jury, before yindicating,
in proper cases, the honor of our exalted
profession, and furnishing disobedience to
lts mandates. But in all cases it should
exercise this hiOb OOular o,,I,- ~, e,,oI, av-