as it seeks to have the respective deeds of assignment executed by Christopher and James Nugent as partners and as individuals declared fraudulent and :void, and to have the claim of the complainant entirely disallowed. Also to declare the said deeds of assignment to be valid and operative, andto establish and allow, under said assignments. the claim of the complainant as a creditor of said Christopher and James Nugent to the amount of $1,014,750.17, and the claims of the other creditors to the several amounts set up llnd duly verified by them respectively. And the decree should further provide that the fund remaining in the hands of the receiver and assignee, George B. Jenkinson, after payment of costs and expenses, be distributed among said creditors pro rata according to the amount of their several claims as above stated. The complainant will be decreed to pay the costs of both parties up to the time of filing the cross-bill. 'l'he counsel will prepare a decree in accordance with this opinion.
lOlrlJuit Oourt. D. Oolorado. June 6. 1888)
ATTORNEY AND CLIENT-MISCONDUCT Oll' ATTORNEy-DISBARMENT.
Upon. a motion to disbar attorneys for malpractice, it was shown that they were notified that the depollition of a witness for whom they had sought would be taken by the adverse party. Being desirous of khowing what he would testify, they sent an agent to see him, with instructions to try to incline him as .favorably towards their client as possible. Their agent induced the wit ness to keep out of the way, making hhn drunk for the purpose, and got him to come to the city where one of the attorneys was. and have a consultation with the latter at his office. There was no evidence that the attorneys directed the witness to be made drunk, or to be kept out of the way, nor that he should be bribed .or intimidated. Held not sufficient misconduct for disbarment. .
Motion to Disbar. Mn,LER, Justice, (orally.) The case of the prosecution against Charles S. Thomas, a member of the bar, and James M. Downing, having been considered by Judge BREWER· and Judge HAJ,LETT; and they finding some difficulty in cotning to a conclusion on· the subject, the papers, with the testimony and printed arguments of counsel; were sent to me at Washington last winter, and I agreed to look into it; and the decision of the case has been practically left to me. It is not a very agreeable matter, and the record wasn very long one. I did not have an opportunity to examine it until the end of the term at Washington·. I pro. pose to dispose of'it this morning. The charge m'ade against these parties is a very!!erious one. Stripped of its verbiage, it is that Mr. Thomas and Mr. Downing, being employed as attorneys in a contest in one of the courts, undertook"""':to use a short C&nd expressive phrase-to "tamper" with the witness of the other side.
The 8U bstanceof the chatge is that they,' having 'received. notice that the depOE;;ition of this witness, whose name is Oswalt, I believe, would be taken at Salt Lake City, sent an agent of theirs to find him out,and to get him away from Salt Lake City, so that the deposition would not be taken at all; and that they further brought him to this city, and that Mr. Thomas had private interviews with him, and that he was then spirited away, and registered at the hotel by a false name, so that even here he could not be found; and in various ways partaking of that acter, that these attorneys undertook to thwart the ends of justice by contriving to get this witness out of the way, and also by offering him inducements to swear favorably to their client. If this charge were established by the evidence, I would have no hesitation in turning out the highest man that ever lived, if I had power to, do it. The lawyer in this country is one of the administrators of justice. The judge who presides in the court is another, wit.h more authority of position, and, perhaps, in some respects a more burdensome one. But the court, and the clerk, and the marshal, the sheriff, the jury, the lawyer, all constitute ministers of justice; and a lawyer who consciously undertakes to thwart justice is uQ,fit for the position, as, much as the judge who accepts a bribe, or knowingly decidE)s a case against the law and the right; and it should be understood thatthey are subjected to the same responsibilities. They have a duty, undoubtedly, to their clients; but that is not the first duty, as is generally supposed. Their first duty is the administration of jusis subordinate tathat. With regard tice, and their duty to to what has been proved in this case, I am happy to say that I do not think the case is made out in that full sense of an intention to do the great wrong which is charged against these parties that it should be proved, to justify an ordf'lr to dismiss them from the bar. With regard to Mr. Downing, I shall (;ay nomore,inth(;lse remarks, because he must stand or fall with Mr. Thomas. Mr. Thomas very manfully takes the whole of this matter upon himself. The instructions under which Mr. Eames, who did all this wrong, acted, were submitted by Mr. Downing to Mr. Thomas, as senior counsel in the case, who examined them, who approved of them, and who directed them to be delivered to Mr. Eames. H appears that this man Oswalt-was familiar with the facts of the early inception of a mining claim which is in contest between Mr. Tobey and a Mr. Wheeler, and that it had been difficult to find out where he was. It may perhaps be said it sufficiently appears that both sides were anxious to get hold of him. Certainly it appears that Mr. Thomas, for his olient, the defendant Wheeler, had been seeki,ng for the whereabouts of this man for a good while, and his first intimation .about where he probably was, was the receipt of the notification given by counsel on the other side that ,Mr. Oswalt's deposition would. be taken on commission at Salt Lake City. Thereupon he and Mr, Downing instituted proceedings by which Mr. Eames, who is nota lawyer, as I understand it, but kind of an amnt that does not shine very creditably.in this connection, wasl'equested to,goto Salt Lake City ti,nd find Oswalt, and have a con· "ersation'with bim, and, aa is get him away from there anq
bringbim here, wbere be could be interviewed by Mr. Thomas. It is very clear that Mr. Eames did go to Salt Lake, and found his man, had conversations with him, made him drunk, got him away so that the deposition could not be taken at the time appointed at Salt Lake, brought him to this place, took him to the office of Mr. Thomas, and Mr. Thomas had the conversation with him. Now, if it were clearly proved that Mr. Thomas gave directions and instructions to do all of this, I think his case would be a bad one. But Mr. Eames' instructions, so far as Mr. Thomas is concerned, are in writing, and what is not in writing depends mainly on the testimony of Mr. Thomas himself; and I must say, on behalf of Mr. Thomas, he swears with a great deal of apparent candor, with none of the usual effort to evade, and not to recollect, and get round things; and it is favorable to him, I think, that he states the case just as he understood it, and tells the truth. Mr. Thon'las' may be unfortunate; and his explanation view of some of these of why he did some of these things does not, in my opinion, conie up to the highest standard of honor in the legal profession. He has views abou1i those things which I would not approve. He has notions about the rights and duties of an attorney to look after his client's interests, and to seek interviews with his opponent's witnesses, and to bring them to his office, and things of that kind, which I do not think are justifiable. But we cannot expect every attorney of the court to be imbued with the very highest standard of legal ethics, and it would be a very dangerous rule that would throw every man over the bar whose views upon that subject wete of a lower grade than those of gentlemen of a higher notion of the moral obligations of an attorney. It is somewhat like the general distinction between crimes punishable by statute and moral delinquencies, to which men must be left for their correction to the public sentiment of the community, or to religious principles, or to their genAlaI sense of right and wrong. The mrin charge against Mr. Thomas, and the one which presses the hardest, is in these written instructions, which were prepared by Mr. Downing, were submitted to Mr. Thomas, considered by him very fully, and handed to Mr. Eames as the guide of his conduct. I do not think it necessary to read those particular sentences which bear the hardest upon Mr. Thomas, but they do imply a desire that this witness shall be seen by Mr. Eames before this deposition is given; they do imply a desire that Mr. Thomas shall in some way have an opportunity of talking with Mr. Oswalt; they do imply a desire that Mr. Eames shall, in his interview with Mr. Oswalt, if he obtains one, endeavor to make a favorable impression on Oswalt in regard to Mr. Thomas' client, (1 think that is the worst expression in the instruction,) that he shall have a talk with bim, and that he shall try to incline him favorably to Mr. Thomas' client. Certainly that cannot be approved of. Certainly it is a thing that ought not to be done. Certainly the practice of the law would become a very .bad thing if the lawyer opposed to a man shall go to his witness and seek to impress him favorably to their side, or against him fol' Whom he is known or expeoted to bea witness. 1 disapprove of such a thing as that
IN RE THOMAS.
very much. I feel bound to say here that I do. But that is not the question that I am to decide. I am to decide whether Mr. Thomas was guilty of such moral delinquency and intention of wrong as disqualifies him for practicing law in tbis court. I cannot say it. I think Mr. Thomas acted very unwisely, very imprudently; did not act well in the matter. I should hate to see other attorneys here 1011ow that example. But Mr. Thomas says, and swears, (and there comes in the value of the frankness with which he does swear; he does not deny all that; he takes it upon himself)-he says:
"I approved of these instrnctions, but I never thought for a moment of any improper inducements being held out to Mr. Oswalt to make him swear otherwise than what he would have sworn. It was no part oimy advice that he should be tampered with by being made drunk, carried off to a: hotel, or of the way. I had no purpose of that kind; and the language does . not necessarily imply it. I simply knew he was a very important witness for, both sides, and that he had been hiding out of the way for months and months, and we wanted him as badly as the other side. I wanted an opportunity to know from his own mouth what he would swear to."
That is the substance of what Mr. Thomas says, and l' am inclined to think he tell!,! the truth. I do not think he meantbtibery, or'intimidation, or any guilty means of achieving the object which he had in view. The trouble is that that kind of a thing is susceptible of misconstruction; not only misconstruction, it is susceptible of abuse. and it is one of the means which lead to abuse. . . Now, undElr the English system of law by which counsel and attorneys practice in the courts of that country, and from which we derive most of our law upon the subject, the attorney and the counselor or barrister have separate and distinct duties. All this which Mr. Thomas undertook to do through Mr. Eames belongs in that country to the attorney at law, or the solicitor in chancery,-the man who never appears in court at all, who gets up the testimony, who learns what witnesses will swear, or at least what the witnesses on his side will swear to, who endea,vors to inform the barrister or counselor what will be proved on the other side,-and he, having ascertained all this, puts that into a paper called a "brief." That is the origin of the word" brief"in the practice of the law.' This attorney, if it is a case at law, hunts all this up, ascertains, has his talk with his witnesses, learns from their own mouths what things they will testify to, and puts it down on paper, hands it to the barrister; and these are called "in_ structions" in the English practice. In those early days the lawyer made his speech before the evidence .." as offered. He says. "I am instructed that such and such things will be proven," and he refers to his paper, and he relies upon:that instruction of the attorney; but he never has an interview with the witness, and itis considered unprofessional for him to have any talk in advance with a witness, even on his own side. ' But ill this· countl;y that system has not prevailed. There is no separation of. the duties o.f an attorney and a counselor. There is none in practice,although .often those admitted to the bar are sworn in as attorneys and eounse19rs both, but they perform the functions of both; and so the lawyer, plaQedas
Mr. Thomas was, is very often compelled for himself to have interviews with his own witnesses, and to ascertain what they will testify to in the matter; and in same way he must seek, either from his client or somebody else, to know what will be the case against him. Now, in this double capacity, Mr. Thomas was seeking for light, and pursuing, as he supposed, the best intere8ts of his client, as he swears; and I think did believe consistently with the proper course for a lawyer exercising .both the function of an attorney and counselor. I think he was mistaken in the propriety of some of the efforts he made to discharge that duty. I should be sorry to have them prevail as the common mod.:s of practice iIi this country. But, having read all the testimony in this case, and read the deposition and sworn answer of Mr. Thomas, I cannot feel that he was morally guilty of such intentional misconduct as justifies his expulsion from the bar. The motion to that effect is accordingly overruled, and also with regard to Mr. Downing.
UNITED STATES eJ:
et al· .".
w: D. Michigan.
BANll:8 AND BANll:JNG-SHAREHOLDERS -
The past due and unpaid liability of a shareholder, which. under Rev. St. 1'\ 5144, disqualifies him from voting at an election of directors of a national bank, is limited to his liability for unpaid SUbscriptions to stock.
RIGHT TO VOTE -
Information in the Nature of a Quo Wa'l"l'anto. This was an information in the nature of a quo wa'l"l'anto to oust the respondents from the directorship of the Farmers' National Bank of stantine. The facts, most of which were admitted, were substantially as follows: At an election of directors, held January 10,1888, the relators received and the respondents votes. The respondents, with two others who were elected unanimously I proceeded at <>nce to organize, by the election of Charles H. Ba'rry as president. The validity of the election of the directors Barry, Markham, and Thorne was attacked upon the gro,und that Charles H. Barry, president of the bank, and owner of 93 shares, was liable to the bank '-'Pan commercial paper which was due and unpaid at the time of the election, and therefore that his vote was cast in violation of Rev. St. § 5144, which declares that "no shareholder, whose liability is past dueand unpaid, shall be allowed to vote." The facts were that he had become liable as surety upon two notes of $857.40 a,nd $94. which had matured a few days before the election, and remajned unpaid untH about January.14th. At the Hme 'of the he had forgotten the existence of these notes, whieh he had signed as joint maker, though he was really only a surety, and for the purpose of obtajning,the custom of the princjpals for hjs bank. e! F., lfhl and DallaB Boudeman, for relators.