itor, and afterwards received the whole amount court. For this imposition, independently of secured and appropriated it to his own use. It the crime committed, he was properly disbarred. is with reference to these facts that Chief Justice In Ex parte Burr, 2 Cranch, C. C., 380, the Cockburn uses the language quoted by my charges against the attorney were for malpracbrethren. He said that although Blake applied tice in his profession, in advising a person in to the lender in the first instance, as an attorney, jail, who was either a recognized witness or a he thought the transaction had ultimately re- defendant for whom some person was special solved itself into a mere loan between them as bail, to run away, instituting suits against parindividuals. But the transaction had evidently ties, and appearing for parties without authority; grown out of their former relation as attorney bringing vexatious and frivolous suits, many of and client. Mr. Justice Crampton, in concur- them for persons utterly insolvent; purchasing ring with the Chief Justice, said: "In the pres- a lot at a trustees' sale of an insolvent's estate ent case, I cannot say that Blake's fraud was under unfair circumstances; making fictitious not committed in a matter connected with his claims and bringing suits with a view to extort professional character. If he did not act in it money; and taking a bill of sale from one about as an attorney, he at all events took advantage to be distrained for rent to prevent such distress. of his professional position to deceive Beevirs" These charges having been sustained, the attor(the lender). ney was rightly suspended from practice for one year.

In Re Hill, L. R., 3 Q. B., 543, an attorney, acting as a clerk to a firm of attorneys, in completing the sale of certain property, received the balance of the purchase money and appropriated it to his own use. On affidavits stating the facts, a motion was made to strike him off the rolls. He admitted the misappropriation and was accordingly suspended for twelve months. Said Chief Justice Cockburn: "In this case, if the delinquent had been proceeded against criminally upon the facts admitted by him, it is plain that he would have been convicted of embezzlement, and upon that conviction being brought before us, we should have been bound to act. If there had been a conflict of evidence upon the affidavits that might be a very sufficient reason why the court should not interfere until the conviction had taken place; but here we have the person, against whom the application is made, admitting the facts." It is difficult to see the pertinency of this decision to the position taken by my brethren. These two cases are, in the language used, the strongest to be found in the reports on that side; but their facts give it no strength whatever.

In Penobscot Bar v. Kimball, 64 Me., 140, the attorney had been convicted of forging a deposition used by him in a suit against his wife for a divorce and, though pardoned for the crime, the fraud upon the court remained; and for that and for other disreputable practices and professional misconduct, rendering him "unfit and unsafe to be entrusted with the powers, duties and responsibilities of the legal profession," he was disbarred.

In Delano's Case, 58 N. H., 5, where an attorney was disbarred by the Supreme Court of New Hampshire for wrongfully appropriating to his own use money of a town received by him as a collector of taxes, the commission of the offense was admitted. This is evident from the statement of the court in its opinion that "he and his wife and family did what they could to make good the loss to the town, but with only partial success."

In In Re Percy, 36 N. Y., 651, there were several charges against the attorney, such as that his general reputation was bad; that he had been several times indicted for perjury, one or more of which indictments were pending; that he was a common mover and maintainer of suits on slight and frivolous pretexts; and that his personal and professional reputation had been otherwise impeached in a trial at the circuit. But the court appears to have based its action upon the character of the attorney as a vexatious mover of suits on frivolous grounds. "He was crowding the calendar," said the court, "with vast numbers of libel suits in his own favor, and in the habit of indicating additional libel suits upon the answer to those previously brought by him. In one instance, at least, he had sued his client in a justice's court, and when beaten upon trial, instead of appealing from the judgment he commenced numerous other suits against him in different forms for the same cause, when he must have known that the demand was barred by the first judgment rendered. The only inquiry is, whether, in such a case, the court has the power to protect the public by preventing such persons from practicing as attorneys and counselors in the courts of the State, and by that means harass its citizens." And the court held that it had the power under a special statute of the State authorizing the removal or suspension of attorneys and counselors, when guilty of any deceit, malpractice or misdemeanor; and that its power was not limited to cases where such deceit, malpractice or misdemeanor were practiced or committed in the exercise of the profession only, but under the statute extended to cases where there was general bad character and misconduct.

None of these cases, as is manifest from the statement I have made, covers that of an indictable offense, wholly distinct from the attorney's professional conduct. None of them countenances the extraordinary authority of the courts over attorneys and counselors asserted by my In Perry v. State, 3 Greene (Ia.), 550, the false brethren. And, indeed, if the law be that a Cirswearing charged as one of the grounds of com- cuit Court of the United States, upon whisperplaint against the attorney was committed in a ings in the ear of one of its judges on the streets, cause managed by him, in which he voluntari- or upon information derived from rumor, or in ly appeared as a witness, thus practicing a fraud some other irregular way, that an attorney has upon the court by employing, to sustain his committed a public offense, having no relation cause, means inconsistent with truth and honor. to the discharge of his professional duties, can In Ex parte Walls, 64 Ind., 461, the attorney summon him to answer for the offense in adhad forged an affidavit to obtain a change of vance of trial or conviction and summarily pun. venue, and had thus grossly imposed upon the ish him, it is time the law was changed by statute.

Such a power cannot be safely intrusted to any civil war, an indorser of a promissory note abantribunal. It might be exercised under the ex- reside permanently within the confederate lines bedoned his residence in loyal territory, and went to citement of passion and prejudice, as the rec-fore the note matured, a notice of protest left at his ords of courts abundantly show. Its mainte- former residence in the loyal territory was not sufnance would tend to repress all independence ficient to charge him, if his change of residence was known, or by the exercise of reasonable diligence on the part of the bar. Men of high honor might have been known, to the holder of the note would hesitate to join a profession in which when it matured, presents no federal question givtheir conduct might be subjected to investiga- ing this court jurisdiction. tion, censure and punishment, from imputations and charges thus secretly made.

Seeing that this must be the inevitable result of such an unlimited power of the court over its attorneys, my brethren are careful to express the opinion that it should seldom be exercised, when the offense charged against the attorney is indictable, until after trial and conviction, unless its commission is admitted.

But the possession of the power being conceded, and its exercise being discretionary, there is in the hands of an unscrupulous, vindictive or passionate judge, means of oppression and cruelty which should not be allowed in any free government. To disbar an attorney, is to inflict upon him a punishment of the severest character. He is admitted to the bar only after years of study. The profession may be to him the source of great emolument. If possessed of fair learning and ability, he may reasonably expect to receive from his practice an income of several thousand dollars a year; equal to that derived from a capital of one or more hundred thousand dollars. To disbar him naving such a practice is equivalent to depriving him of this capital. It would often entail poverty upon himself and destitution upon his family. Surely, the tremendous power of inflicting such a punishment should never be permitted to be exercised, unless absolutely necessary to protect the court and the public from one shown by the clearest legal proof to be unfit to be a member of an honorable profession.

To disbar an attorney for an indictable offense not connected with his professional conduct, before trial and conviction, is also to inflict an additional wrong upon him. It is to give the moral weight of the court's judgment against him upon the trial on an indictment for that offense.

I am of opinion, therefore, that the prayer of the petitioner should be granted, and a peremptory mandamus directed to the circuit court to vacate the order of expulsion and restore him to the bar. The writ is the appropriate remedy in a case where the court below, in disbarring an attorney, has exceeded its jurisdiction. Ex parte Bradley, 7 Wall., 364 [74 U. S., XIX., 214]; Ex parte Robinson, 19 Id., 506 [86 U. S., XXII., 205].

True copy. Test:

2. The issue in such case is as to the fact of a change of residence by the indorser, not as to his power to make a change, and the Ordinance of Secession and the Proclamations of the President are in no way involved. [No. 223.]

Argued Mar. 30, Apr. 2, 1883. Decided Apr. 16,

1883.

IN ERROR to the Virginia.
N ERROR to the Supreme Court of Appeals

This action was brought in the Corporation Court of Alexandria, Virginia, by the plaintiff in error, to recover from the maker of certain protested notes, the amount due thereon.

The first trial resulted in a verdict and judg ment for the plaintiff. On a writ of error to the court below, this judgment was reversed and a venire de novo ordered. 29 Gratt., 588.

On the second trial, the verdict and judgment were for the defendant. A second writ of error having been denied by the court below, the plaintiff sued out this writ of error.

The facts of the case are stated by the court. Mr. H. O.Claughton, for plaintiff in error: This court has decided that this is a federal question.

Matthews v. McStea, 20 Wall., 646 (87 U. S., XXII., 448); Bond v. Moore, 93 U. S., 593 (XXIII., 988).

This court has frequently decided, not only that the defense is without the shadow of a foundation, but also that it presents federal questions.

Ludlow v. Ramsey, 11 Wall., 581 (78 U. S., XX., 216); Mitchell v. U. S., 21 Wall., 350 (88 U. S., XXII., 584); Williams v. Bruffy, 96 U. S., 176 (XXIV., 716).

Messrs. P. Phillips, W. A. Maury and W. H. Phillips, for defendant in error:

We submit that the record does not show that any right, title, privilege or immunity, asserted by the plaintiff, under the Constitution, treaty, statute, commission or authority exercised under the United States, has been denied by the judgment complained of.

Bank v. McVeigh, 98 U. S., 333 (XXV., 111). When the record shows, besides a federal question, other matters decided by the state court sufficient to sustain the judgment over which this court has no jurisdiction, the judgment will be affirmed, however erroneously the federal question may have been decided.

Murdock v. Memphis, 20 Wall., 635 (87 U. S.,

James H. McKenney, Clerk, Sup. Court, U. S. XXII., 444).

Cited-110 U. S., 534.

RICHARD S. ALLEN, Piff. in Err.,

v.

WILLIAM N. McVEIGH.

(See S. C., 17 Otto, 433-437.)

Federal question, what is—liability of indorser. 1. A decision by a state court that, by the general principles of commercial law, if, during the late

Mr. Chief Justice Waite delivered the opinion of the court:

This is a suit against William N. McVeigh, as indorser of two promissory notes, and the matter in dispute is as to the sufficiency of the notices of dishonor. The notes fell due, one on

NOTE.-Notice of demand, non-payment, protest. when and how given; New York Statute as to holidays; holidays as to grace. See note to Bussard v. Levering, 19 U. S. (6 Wheat.), 102.

It is immaterial whether indorser receives notice if due diligence is used in sending it. See note to Har ris v. Robinson, 45 U. S. (4 How.), 336.

But the plaintiff asked of the court certain instructions, which were not given, and error is assigned for this. The fourth of these requests presents all the questions relied on, and was as follows:

the 2d, and the other on the 23d of August, 1861, | argument, however, to this difference, and it at the Exchange Bank of Virginia in Alexan- may as well be said now, as it was before, that dria. The notary, in his certificate of protest, "All the court below decided was, that by the stated that he had delivered a notice of protest general principles of commercial law, if, durto William N. McVeigh, by leaving it at his ing the late civil war, an indorser of a promisdwelling in the hands of his white servant, and sory note abandoned his residence in loyal terthe issue on the trial was as to whether the ritory, and went to reside permanently within house at which the notice was left was, in fact, the confederate lines before the note matured, the dwelling of McVeigh at the time. Upon a notice of protest left at his former residence this point McVeigh testified, in substance, that in the loyal territory was not sufficient to charge at some time previous to the 24th of May, 1861, him, if his change of residence was known, or he sent his family to his farm in Culpeper by the exercise of reasonable diligence might County, Va.; that he remained at his home in have been known, to the holder of the note Alexandria, until after the military forces of the when it matured." Under the question raised United States took possession of the city, which by the charge as given, therefore, we have no was the 24th of May; that on the 30th of May, jurisdiction. under a pass from the United States authorities, he left his home and went within the confederate lines to join his family, with the intention of not returning so long as the city remained in the possession of the United States, which he supposed would be but a short time; that he left "If the jury believe, from the evidence, that in his house a white woman about seventy years the notes sued on were discounted by the Exof age, who had been for many years his serv-change Bank of Virginia at Alexandria, before ant, and three colored servants, who were slaves; their maturity, or that they were renewals of that he did not discharge his white servant but notes theretofore discounted; that at the time advised her to go to the country; that, on leav- of discount the makers, indorser and indorsee ing he had great doubts whether he would ever were resident of said city; that, before the masee his property in Alexandria again; that he turity of the said notes, the federal forces had remained with his family, in Culpeper, until the taken permanent possession of said city; that, fall of 1861, when he removed to Richmond and after such possession the indorser, William N. engaged in business there, and that he remained McVeigh, left his residence in said city, with in Richmond until 1874, when he returned with the intention of returning thereto, and went his family to Alexandria. within the confederate lines to join his family, at the time visiting in the County of Culpeper; that the said indorser, at the time the said notes respectively became due, was within the confederate lines in adherence of the Southern Confederacy in obedience to the Virginia Ordinance of Secession, the court instructs the jury that the said Ordinance of Secession was of no binding force or obligation; that neither the Proclamations of the President of the United States, issued in April, 1861 [12 Stat. at L., 1258], and August 16, 1861 [12 Stat. at L., 1262], nor the existence of the war, nor the Ordinance of Secession of the State of Virginia, obliged the said indorser to be absent from his residence in Alexandria, nor relieved the holder of said notes from giving him notice of the dishonor and protest thereof; that such absence was voluntary, and did not affect the rights and duties of the parties to said notes. And if the jury believe from the evidence that, at the time the said notes respectively fell due, the said indorser had not abandoned his intention to return to Alexandria, and had not acquired a domicil elsewhere, and that the notes sued on were duly dishonored and protested, and on the day thereof, notice of such dishonor and protest was left at the residence of the indorser in Alexandria with his white servant in charge of the same, such notice was sufficient to bind the indorser, and the jury must find for the plaintiff, if they further believe from the evidence that he is the bona fide holder of said notes."

At the close of the testimony, the court, at the request of McVeigh, charged the jury that, "If on or about the 30th of May, 1861, and prior to the maturity of the notes sued on, William N. McVeigh, having previously sent his family, went himself within the confederate military lines with the intention of not returning to Alexandria during its occupation by the United States forces, and accordingly remained with his family continuously within the confederate military lines throughout the whole period of the war, and did not return to Alexandria with his family until the year 1874; that such absence at the maturity of said notes, respectively, was known or, by the exercise of reasonable diligence, must have been known to the Exchange Bank of Virginia, at Alexandria; that, at the time of said maturity, the armed forces of the United States and of the Confederate States confronted each other on lines immediately intervening between the City of Alexandria and the said William N. McVeigh, so as to cut off and prevent actual intercourse between the two, and such intervention continued down to the end of the war, the notice of dishonor shown by the notarial certificates of protest is not sufficient to fix the liability of William N. McVeigh as indorser, and the jury must find for him."

This instruction is substantially the same as that considered in the Bank v. McVeigh, 98 U. S., 332 [XXV., 110], and which we held did not present a federal question. The only difference, even in language, between the instructions in the two cases consists in what is said in this about the establishment and maintenance of the opposing lines of military forces and the prevention of actual intercourse, which was not in the other. No importance was given in the

The only point presented by this request, not disposed of by the charge as actually given, is that which relates to the Ordinance of Secession and the Proclamations of the President. The plaintiff claimed no "title, right, privilege or immunity," either under the Ordinance or the Proclamations. Neither did the defendant.

LEMUEL J. DAVIS ET AL., Piffs. in Err., in record, as follows: