In an
equity cause pending in this court, in which a large amount
of written testimony in the form of depositions was to be
taken in shorthand, a decree and order was made appointing
the regular examiner of the court to take the proof of
witnesses residing here, and many depositions had been taken
by him; and others were being taken, when, on May 2, 1884
the examiner made a report to the court of certain alleged
misconduct on the part of respondent, who was attending the
examination of witnesses before the examiner in a law office
in this city, the respondent being a defendant in said equity
cause
the guardian ad litem of certain other of the defendants and
of counsel for the defense. The court thereupon, of its won
motion, upon the presentation and filing of said report
directed the issuance of a rule upon the respondent requiring
him to appear before the court on a day named therein and
show cause in writing why he should not be punished as for a
contempt of the court because of his alleged misconduct. By
the same order the district attorney was directed to appear
and prosecute on behalf of the United States. This rule was
duly served by the marshal, as appears by his return under
oath. On May 9, 1884, the return-day of the rule, the
respondent not appearing or showing any cause in writing or
otherwise, an attachment was ordered and issued for his
arrest; and on the same day permission was given the district
attorney to file affidavits of the examiner, of the facts set
out in his report. These affidavits are as follows, omitting
the mere formal commencement:
That
the respondent, on--
'The
first day of May, A.D. 1884, at Memphis, in the county of
Shelby and state of Tennessee, and in the Western district of
Tennessee, was guardian ad litem of certain defendants, and
was also personally a defendant in said equity cause then and
now pending in said court at said Memphis, and was then and
now solicitor and counsel for the defendants therein, and
that affiant was then and there and now an examiner in
chancery for said court in said cause; that then and there
at the law office of P. & P., in said Memphis, the deposition
of Mrs. D. was being taken for the defendants in said cause,
she being a defendant and the mother of the said respondent,
before affiant, as such examiner, in the presence of
respondent and F., of counsel for defendants, and of E., of
counsel for complainants; that after the direct examination
of said Mrs. D. in her said deposition, and during her
cross-examination therein, the said respondent (guardian ad
litem, defendant, and counsel as aforesaid) did then and
there interfere with an interrupt the said cross-examination
by questioning, prompting, and conversing with the witness as
to her testimony in the said deposition, and this
notwithstanding the objection and request and protest of
affiant, and the requests of said witness and said E. and F.,
on account of which conduct and misbehavior of the said
respondent, and because he persisted therein and openly
declared that he would not desist therefrom, the taking of
the said deposition was interrupted and stopped, and counsel
for defendants, the said F., because of said misconduct, left
the office, declining to proceed with the deposition, after
which said E. also retired, after requesting affiant to
report the matter to the court; that after the said F. and E.
had left said office, as stated, the respondent, in the
presence of the said Mrs. D. and affiant, (then and there
examiner, as aforesaid,) used indecent language of said E.,
calling him 'a son of a bitch' and 'a damned son
of a bitch,' when affiant left the office to avoid
listening to such foul language in the presence of Mrs. D.
Soon after, at the request of said F., affiant returned to
the office, when said respondent, in their presence,
repeatedly swore he would 'kill that God-damned son of a
bitch,' (meaning said E.,) shaking his fist, in which he
held an open knife, towards said E., who was then walking up
the street at a distance from respondent, and probably not
within hearing. Thereupon affiant refused to proceed with the
taking of depositions in said cause under such circumstances,
when said respondent cursed affiant and told him to 'go
to hell,' still holding in his hand the open knife. The
interruption in the taking of said Mrs. D.'s deposition,
and the reason why it was so left unfinished, was due wholly
to the misbehavior
and misconduct of said respondent, he then and there being,
as aforesaid, counsel, defendant, and guardian ad litem in
said cause.'
Under
the process of attachment, the respondent was arrested by the
marshal, and gave bail for his appearance, as in an ordinary
criminal prosecution in the court; the amount of the penalty
of his bond being fixed by the court at $500. On May 20,
1884, the respondent filed, under oath, his response or
answer to the report and affidavits of the examiner, which is
as follows:
'For
answer the said respondent says that it is true that he is
guardian ad litem for certain defendants in said cause, and
one of the defendants in said cause, and also one of the
solicitors in said cause, and was such before and at the
time of filing said affidavit. And he further says the
affiant was then examiner in chancery for said court in
said cause; that the deposition of Mrs. D. was being taken
for defendant in said cause, the said examiner acting as
such in taking the same; that she was one of the defendants
in said cause, and the mother of respondent; that F. was
also of counsel for said defendants in said cause, and E.
was of counsel for complainants in said cause. It true that
the examination of said witness in chief was completed. But
it is not true that after the direct examination of said
Mrs. D., in her said deposition and during her
cross-examination therein, that respondent did then and
there interfere with and interrupt the said
cross-examination by questioning, prompting, and conversing
with the witness as to her testimony in the said
deposition, and this notwithstanding the objection and
request and protest of affiant, and the requests of said
witness and said E. and F., and on account of which conduct
and misbehavior, and because respondent persisted therein
and openly declared that he would not desist therefrom, the
taking of said deposition was interrupted and stopped; and
counsel for defendants, said F., because of said
misconduct, left the office, declining to proceed with the
deposition. It is true that said F. did retire pending said
cross-examination. It is true that afterwards said E. did
retire, and that before retiring he requested said examiner
to make report of the proceedings to the court. But it is
not true that respondent was guilty of any act or conduct
contrary to the form of the statute of the United States in
such cases made and provided. Respondent, as counsel in
said cause, upon said cross-examination, was of opinion
that the cross-examining counsel was transcending the
limits of legitimate cross-examination, and was seeking to
entrap and confuse the witness, and to confound what she
knew of her own knowledge with what she knew from hearsay;
and he made, as he thought he had a right to do, objection
to such examination as the objectionable questions were
propounded, and sought, as he believed in a proper mode, to
have them corrected; and he and his associate counsel
differed as to whether the proper practice was to have such
matters corrected as the examination proceeded, or to wait
until the cross-examination had been concluded, and then by
re-examination to undertake to have the necessary
explanations and corrections made.
'Respondent
was firm and decided, but not offensive, in his view, to
the examiner, to said E. or to said F., and because of this
position of respondent, which said F. believed wrong and
would be hurtful to the case, or, at least, productive of
no good, said F. declared if respondent did not yield and
come over to his view that he would retire and leave
respondent alone as counsel for defendants to continue the
further examination of the witness; and said F. did
accordingly leave, for the causes stated by respondent, and
not for the causes stated in the affidavit of the examiner.
After he retired said E. also retired, for the causes
stated by respondent, and not for those stated by the
examiner, and requested the examiner to report the matter
to the court. Respondent
denies that in this matter he showed any contempt or want
of respect for the authority of the examiner, or any want
of respect or contempt for the court, under whose authority
the examiner was acting. He denies all purpose whatever of
contempt, or of defying the authority of the court or its
examiner, or the due and proper execution of its orders. He
thought that his action as counsel in the matter was proper
and in good faith, urged it, and in so doing differed with
his associate for the defense, for whom he then entertained
and now entertains the warmest regard. It was not his
purpose to wound or annoy him or the solicitor for
complainants or the examiner, or to act in spirit of
disobedience or contempt for the court or its examiner, or
its orders; and he disclaims, disavows, and positively
denies that he entertained such purpose, or was guilty of
any word or act which makes him a contemnor of the court or
its examiner or its proceedings. He regrets that his
disagreement with his associate counsel led to the
suspension of the disposition, and to a total misconception
of his motives and purposes. For further answer respondent
says that after said F. and said E. had left the office of
P. & P., as stated, and after it was announced that
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