Bradley v. Fisher

Mr. Justice Wylie

delivered the opinion of the Court:

This case was tried at the Circuit Court before one of the *46 justices of this court, where several offers of evidence made by the plaintiff were overruled, and bills of exception taken to the rulings. On these exceptions a new trial was moved for in that court on the ground that there was error on the part of the court in excluding the evidence offered, and this motion was certified to this court, to be heard here in the ■first instance.

It was an action on the case brought hy the plaintiff to recover damages of the defendant, in consequence of an ■order made by the latter, whilst claiming to hold a term of the Criminal Court of this District as one of the justices of this court assigned to that duty, and which the plaintiff :avers was made without authority and without jurisdiction •on the part of the judge to make it, and maliciously, corruptly, &c. But the denial of jurisdiction is contained only In the second count. The order was made on the 10th of August, 1867, and is in the following words:

“The court orders the following to be entered of record, •■to wit: On the second day of July, last, during the progress of the trial of John H. Surratt, for the murder of Abraham Lincoln, immediately after the court had taken a recess to the following morning, as the presiding justice was descending from the bench, Joseph H. Bradley, Esq., accosted him in a rude and insulting manner, charging the judge with having offered him (Bradley), a series of insults from the bench from the commencement of the trial. The judge •disclaimed any intention of passing any insult whatever, ■and assured Mr. Bradley' that he entertained for him no other feeling but that of respect. Mr. Bradley, so far from accepting' this explanation or disclaimer, threatened the judge with personal chastisement.

No court can administer justice or live if its judges are to be threatened with personal chastisement on all occa.sions, whenever the irascibility of counsel may be excited by imaginary insult. The offense of Mr. Bradley is one which even his years will not palliate. It cannot be overlooked or go unpunished.

*47 It is therefore ordered that his name be stricken from, the roll of attorneys practising in this court.”

(Signed) Geo. P. Fisher, Justice of the Supreme Court of the District of Columbia.

The declaration consists of two counts; The first charging that the said order was read in open court, and recorded on the minutes of the court, and was made without any reasonable or probable cause, and that the conduct of the defendant in making the said order was willful, malicious, oppressive, and tyrannical, and that thereby the plaintiff liad been deprived of his right to practice as an attorney of the court.

This count contains no averment that the order was not an order of the court or that the judge was without jurisdiction to make it.

The second count alleges that the order in question was made without authority or jurisdiction on the part of the judge ; that the order was in fact not an order of the court at all, and wyas made “without the leave or license and against the will and objection of the plaintiff * * * wrongfully, corruptly, maliciously, and unjustly, and without any reasonable or probable cause therefor, * * and contrary to the statutes in such case made and provided, and was summary and wholly without notice of any kind given to the plaintiff,” and denies the truth of the statement of facts contained in the judge’s order, specifically and seriatim, but in the manner on which we shall have occasion to make some observations presently.

To this declaration the defendant pleaded, first, the general issue; and, second, a special plea setting out the fact that at the time the order was made the defendant was holding by virtue of lawful authority a term of the Criminal Court of this District, a court of record of general jurisdiction, &e., and that said order was a lawful order, made by said court in the exercise of its rightful authority, jurisdiction, &c.

*48 To this second plea of the defendant, the plaintiff replied de injwria, &c., and issue was joined on both pleas.

It is too plain for discussion, that the first count of plaintiff’s declaration is so fatally defective that the court below was right to exclude any evidence offered by the plaintiff to sustain it.

It admits the authority and jurisdiction of the judge sitting in and holding court at the time to make the order, and it admits the effect of the order to strike the plaintiff’s name from the roll of attorneys of the court. But it avers that the order was made without just or probable cause, tyrannically, oppressively, maliciously, corruptly, &c.

If the authority and jurisdiction of a court be once admitted in any case, it were a preposterous proposition to offer evidence to a jury as to its motives. Chaos would come again, if the judgment of a court could be impeached, and its validity tried before a jury in a collateral action on an issue as to the motives of the judge in entering the judgment.

We therefore dismiss the first count of the plaintiff’s declaration, and the offers of evidence to sustain it, as not requiring any further examination.

But the second count, as we have seen, does deny the jurisdiction of the judge to make the order, and also charges that it was made from malicious and corrupt motives, and without good grounds or probable cause thereof.

Before leaving the declaration, it is welLthat we should ascertain what' the plaintiff himself has admitted, on its face, as to the facts in the case. First, he admits that the order was made and entered of record on the 10th day of August, 1867, by the judge under color of office, but in the presence of the plaintiff, for he says it was so entered and made “without the leave or license and against the will and objection of the plaintiff.”

In proceeding further to charge the falsehood of the statement of facts contained in the order in question, the plain *49 tiff says: “And he avers that there was no complaint made by him to the said justice, and he did not accost him on the day and year aforesaid while the court was in session, nor immediately on the court’s taking recess, and as the presiding judge was descending from the bench, as falsely stated in the said order; nor did he (the plaintiff) at the time and place aforesaid (being the same time and place mentioned in said order) address the said justice at all after the said court had taken the said recess until the said judge had passed some time in a private room, and had left the sanie and gone out of the court house, and the great body of auditors, jurors, witnesses, clerks and officers of the court, and the jury impanneled and the prisoner on trial had left the courthouse; and so he says the said judge willfully, maliciously, corruptly and unlawfully fabricated the said order to give color and pretence to his jurisdiction in the premises.”

Here is not a syllable to deny one of the facts stated in .the order in question as to its substance and effect, but only a denial of its accidents and circumstances; the exact moment of time, and that it was immediately after taking the recess that the difficulty occurred.

There is no denial that the fact of the offense as stated by the judge did occur, but a denial only that it occurred after the judge had gone out of the court house and then returned.

We are compelled to interpret such a denial as this as amounting to a pregnant admission of the substantial truth of the facts stated in the judge’s order. But yet out of this seeming denial but real confession of the -facts, the plaintiff’s declaration proceeds to aver as follows as to the motives of the judgej “And so,” he says, “the said judge willfully, maliciously, corruptly and unlawfully fabricated the said order to give color and pretence to his jurisdiction in the premises.” That is, he denies the immaterial circumstances attending the transaction, and then concludes with *50 the most extraordinary charge that the statement of facts which he himself has thus conceded to be true in substance wras “ willfully, maliciously, corruptly and unlawfully fabricated” by the judge.

Undoubtedly under the rules of pleading it was necessary in this case not merely to prove but to allege in the declaration that the act of the judge in making the order was done both without jurisdiction and from malicious motives or corruptly. Otherwise the plaintiff would have stated his case out of court. In our judgment that is the effect of this attempted traverse, which on examination we find to be only an acknowledgement of the charge contained in the judge’s order. It is wholly immaterial whether the occurrence between the plaintiff and the judge took place within one minute or one hour after the court had adjourned, or whether it took place just after the court had adjourned, and as the judge was descending from the bench, or after the judge had gone into another room, remained a few minutes, then returned to his seat, and was descending from the bench the second time.

. A court may. sometimes exceed its jurisdiction, but'unless the excess of jurisdiction is both “ palpable ” and “ malicious or corrupt ” on the part of the j udge, he is not liable to an action for damages in consequence of his judgment.

Questions of jurisdiction, are always questions of law, and sometimes as difficult to decide as any other questions of law. In Randall vs. Brigham, 7 Wall., 523 , a case decided at the last term of the Supreme Court of the United States, it was held that no judge of a court of general jurisdiction was liable to a private action for damages unless his act, in excess of jurisdiction, was an act of “ palpable ” usurpation, and was at the time “ malicious oq corrupt.” Excess of jurisdiction alone does not render him liable. Even a palpable excess of jurisdiction will not render him liable ; but there must co-exist, for that purpose, both the palpable excess of jurisdiction and the evil motive on the part of the *51 judge, and even then the court says “ perhaps ” ho may be liable.

The following is the language of the court on this point: “ But responsible they are not to private parties in civil actions for their judicial acts, however injurious may be those acts, and however much they may deserve condemna-. tion, unless, perhaps, where the acts are palpably in. excess of the jurisdiction of the judge, and are done maliciously or ■corruptly.”

In Taafe vs. Downs, 3 Moore’s Privy Council R., 41, note, an authority referred to in the opinion of the court in Randall vs. Brigham, Mr. Justice Mayne said that no action of the kind was ever sustained, and, save one in London and ■one in Ireland, none was ever attempted.

It was necessary, therefore, in this case, to show to the court in the first place that Judge Fisher, in making the ■order in question, had palpably transcended his jurisdiction, but that was not a question to be decided by the jury, but á question of law to be decided by the court.

Had he succeeded in showing this palpable excess of jurisdiction on the part of the judge, he might have had the right to adduce witnesses to the jury, to prove the falsehood of the judge’s statement, its malice, or the judge’s corrupt motives, “perhaps.” But as to the question of jurisdiction : The plaintiff says the court proceeded to make the order without having served him with previous notice, without a written charge filed, and a day and opportunity given him to meet the charge at a fair hearing in court.

In Randall vs. Brigham, 7 Wall., 540 , the court says : “ It is not necessary that proceedings against attorneys for malpractice or any unprofessional conduct should be founded upon formal allegations against them. * * * Such proceedings are often instituted from what the court learns of the conduct of the attorney — from its own observation. * * * Sometimes they are moved by third parties upon affidavit, and sometimes they are taken by the court upon its owm motion.”

*52 The judge’s own observation is sufficient to originate hi© jurisdiction in such ease. It is more than that; it is sufficient to authorize whatever judgment lie may pronounce. His own knowledge, so obtained, cannot be controverted by witnesses called to contradict what the judge knows, and as to which he is himself to decide. If he have doubts as to what he saw or heard, he will, of course,' receive all the lights he can obtain., But as he may himself decide from his own observation, he may decline to receive the evidence of witnesses to contradict his own knowledge. Suppose the plaintiff in this case had been afforded the opportunity, and he had proved by an array of witnesses that the statement of facts contained in the order, in question was “false from beginning to end,” would that evidence put an end to the jurisdiction of the court to make the order? Is there any power competent to compel a judge to putfaittyn witnesses* who, he knows from the testimony of his own senses, are mistaken or perjured? But after all, when we come to examine the offers of evidence in this case, made for the purpose of contradicting the record, we find they really amount to nothing more than to prove that the mere circumstances and accidents of the transaction were not exactly as they .were represented to be in the judge’s statement, according to the plaintiff’s construction of it. Indeed, since the plaintiff’s own denial, as set out in his declaration, is confined to these immateriál accidents of the case, he would have had no right to'prove more than he had himself alleged in his declaration; or, in other words, to prove his own admission to be untrue.

Then as to the necessity of giving formal notice before making the order. In the People vs. Nevins, 1 Hill’s N. Y. B., 154, the court says: “ Attorneys, counsel and other officers of the court are in fiction and judgment of law always deemed not only to be within the jurisdiction of the court, but during term time present in court, and they are so expressly treated in pleading. They are always in term time *53 as much within the jurisdiction of the court as a prisoner ■within the custody of the sheriff or marshal. No process, therefore, against either is perhaps strictly necessary to bring them into court.

It is true, it is said both in Magna Charta and in the Constitution that no person shall be deprived of his life, liberty or property without due process of law. The wTord process generally means a writ or warrant, but it is not limited to that signification. Lord Coke in his commentary on this word (2 Inst., 51, 52), says: “This word comprehends all lawful warrant, authority or proceeding by which a man may be arrested.” So that a man may be deprived of his liberty even without a writ or a warrant, if itlbe by lawful authority or proceeding, as he shows by a number of examples after-wards. The question, therefore, recurs, and we are to look to the decisions and practice of the courts to be informed of the meaning of this word as applicable to a case like the present. The power of the courts to punish all persons in a summary manner for contempt of their authority is as old as the law. .

As to attorneys, who aro officers of the court, and presumed to be always present in court in term time, and so immediately under its jurisdiction and control, not merely for contempts but for misconduct in their office of attorney, the jurisdiction of the courts cannot now be doubted. In such cases the summary proceeding is “ due process of lawT.”

In Secomb’s Case, 19 How., 9 , the relator complained that he had been stricken from the roll of attorneys in his absence and without notice.

Chief Justice Taney in pronouncing the opinion of the •court, whilst very distinctly intimating dissatisfaction with the course pursued by the court in that instance, says: “ The court, it seems, were of opinion that no notice was necessary, and proceeded without it, and, whether this decision was erroneous or not, yet it was made in the exercise of judicial authority, where the subject matter was within their juris *54 diction, and it cannot, therefore, be revised and annulled in this form of procedure; ” and this ruling is referred to and approved in Ex parte Bradley, 7 Wallace R., 378 . It is true that in Seacomb’s Case the offense was committed in open court. ' But at the time, nor for several days after-wards, did the qourt take any cognizance in regard to it. So that when the order was made it was done solely upon the recollection of the facts in the mind of the judge in regard to a transaction of which there was no entry on the minutes of the court.

The mistake of the plaintiff is that he regards the act of a court in dismissing a member from the bar for misconduct as a criminal or quasi criminal proceeding, and the order as a. personal punishment. But it is not so regarded by the law, else would the trial be a trial by jury, after indictment, and in a court of criminal jurisdiction only. It has been decided that suspension from the bar was not a punishment, but a mode of the court to get rid of an improper officer. Upon this ground the Court of King’s Bench struck from its roll two attorneys, of whom one had been found guilty of a felony five years previously, but had been burnt in the hand and received the benefit of clergy,, which operated as a statutory pardon, since which time his conduct had been good, and the other had been convicted of an attempt to extort money, but judgment had been arrested, and so he was never sentenced. See Ex parte Brounsell, Cowp. R, 829, and Rex vs. Southerton, 6 East., 143. In the first of these cases Lord Mansfield said : “ This application is not in the nature of a second trial or a new punishment. But the question is whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion.”

In the latter case, although the attorney had escaped sentence, and so was to be regarded in the eye of the law as an innocent man, yet Lord Ellenborough, after he had *55 arrested the judgment in the ease; said “that-enough appeared to the court to satisfy them that the defendant was a very improper person to remain as an attorney on the rolls of the court. Thereupon he desired the master to inquire and report whether the defendant were still upon the roll of attorneys of this court.” The name of the attorney was subsequently ordered to be stricken from the roll of attorneys. The author of Evans’ Practice, page 33, says' that he recollects a case in which an attorney was struck off the roll of the attorneys of Baltimore County Court for gross ignorance and stupidity. These qualities, though offensive wherever found, are not criminal.

But as to the present case, the declaration alleges that the order in question was made “ unlawfully and without the leave or license and against the will and objection of the plaintiff.”

We think this is an admission, on the record, that the plaintiff was present in court, and there made his objections to the order at the time, and before it was made and entered on the minutes, and that amounts to a constructive waiver of notice on his part.

Perhaps it had been better and more consistent with that order and dignity which befit a judicial tribunal if a rule had been laid in this case; but as to that we are'not to decide. The indignity offered to a judge by an attorney may amount to such an enormity as to justify his instant dismissal. If the judge possess this power in any case that makes him the exclusive judge as to the proper occasion for its exercise in every case.

We are aware that in Randall vs. Brigham, 7 Wall., 540 , the court say : “ It is not necessary that proceedings against attorneys for malpractice or any unprofessional conduct should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause or from what the court learns of the conduct of the attorney from its own observa *56 •tion. Sometimes they are moved by third parties upon affidavit; and sometimes they are taken by the court upon its own motion. All :that is requisite to their validity is that when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defense. The manner in which the proceeding shall he conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.”

In laying down the foregoing propositions or rules for proceeding the attention of the court seems to have been attracted to two classes of cases only ; 'namely, first, where the offense was given in open court in the presence of the judges; and, second, where the offense or misconduct was committed out of court, and not in the presence of the judge

In the first the rule is laid down that no notice was .necessary ; that is, where the offense was committed in open court, in the presence of the judges; but in the second— that is, where the offense was committed out of court, and not in the presence of the judges — “ notice should be given to the attorney of the charges -made, and opportunity afforded him for explanation and defense;” that is, that notice, &c., must be given where charges have been made. But when the court acts upon its own observation of the conduct of the attorney charges need not be made, and therefore jurisdiction in such case does not depend on previous notice. The case of the misconduct of an attorney towards a judge out of court, in reference to the course of the latter on the trial of a cause in court, seems not to have been considered by the Supreme Court in laying down the foregoing rules, and in such case we are not informed by this decision whether the notice would be required. However.that may be, the fact appears on the face of the plaintiff’s own declaration that at the time the order in question was made he was in court and objected to the order, and that we regard as a sufficient appearance in the matter, even if notice had been requisite in such a case..

*57 Besides this, the decision in Randall vs. Brigham was not made till more than a year subsequent to the date of the order made by Judge Fisher; and we might well regard the point of law in question to have been at that time at least one of reasonable doubtfulness. In our judgment, therefore, so far as this point is concerned, said order was not such a “palpable” usurpation of jurisdiction as would Tender the judge liable to a civil action for making it.

Another ground on which the plaintiff assails the act of the judge in making the order in question is found in the Act of Congress of March 2, 1831, 4 Statutes at Large, 487, entitled “An Act declaratory of the law concerning con-tempts of court.”

The first section declares, “That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court shall not be ■construed to extend to any cases except the misbehavior of any person or persons in the presence of the said courts or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said court in their official transactions, and the disobedience or resistance by any of the officers of the said courts, party, juror, witnesses, or any other person or persons to any lawful "writ, process, order, rule, decree, or command of the said courts.”

This act applies only1 to the courts of the United States, to contempt against said courts, and to the power to punish such contempt against said courts by attachment and summary punishment.

We are strongly inclined to the opinion that the Criminal Court of this District is not a court of the United States, as contemplated by this act; we are of opinion, also, that the offense of Mr. Bradley, as it is not charged to be a contempt of court in the order in question, was not a contempt of court, but only misconduct in his office of attorney; and the record shows that he was neither attached nor summarily punished for its commission.

*58 ' The third article of the Constitution declares that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish.”

The first Congress under the Constitution began its firsj, session on the 4th of March, 1789, and adjourned on the 29th of September following.

On the 24th of September it passed the act entitled “An Act to establish the judicial courts of the United States.”’ The object of this law was to establish a judicial system for the United States, as contemplated and provided for by the Constitution in its third article. The courts established by this act were the Supreme Court, the Circuit Courts, and the District Courts of the United States, arid that organization continues to the present day. These courts, therefore, were the “judicial courts of the United States,” and there are none other belonging to that system. The seventeenth section of this act conferred upon these courts the “power to punish by fine and imprisonment, at the discretion of said courts, all contempts of authority in any bause or hearing before the same.”.

The Act of 1831 is entitled, “ An Act declaratory of the law concerning contempts of court,” and declares “ that' the power of the several courts of the United States to issue attachment,” &c. What courts did Congress design to include in this designation, “The several courts of the United States?” Were they not such courts and such only as were created under authority of the third article of the Constitution, .in which the judicial' power of the United States was to be vested?

But it has been argued that the Criminal Court of this District is one of the several courts of the United States, because it was created by Congress and invested with powers which elsewhere have been conferred upon courts of the United States. The jurisdiction of the Criminal Court of this District is derived intermediately from the fifth section *59 of the Act of the 27th of February, 1802, 2 Statutes at Large, page 106, in these words: “That said court shall have cognizance of all crimes and offenses committed within said District.” This is a jurisdiction vastly more comprehensive than that conferred by Congress upon any court of the United States. It is a jurisdiction which Congress has not the power, under the Constitution, to confer on any court, except a court in this District or in any one of the Territories.. How then can the Criminal Court of this District be classed “as one of the several courts of the United States,” referred to in the Act of 1831 ? The Criminal Court of this District does not, in our opinion, spring from the judicial power granted to Congress by the Constitution, but from the power granted to Congress in the Constitution to “Exercise exclusive legislation in all cases whatsoever over this District.”' Nor does it follow because said court is vested with powers and jurisdiction which'are elsewhere vested in courts of the United States, that this makes it one of the several courts of the United States.

The courts of the Territories of the United States are the creatures of Congress, and are in like manner vested with a general jurisdiction as extensive as those of this District,, but they are not on that account courts of the United States, as was decided in the case of the American Insurance Company vs. Canter, 1 Peters, 511 .

There are several acts to be found amongst the Statutes of the United States conferring even on the State courts jurisdiction over cases concurrently with that of the courts of the United States, one of which was the Act of March 8, 1808,, 2 Statutes at Large, 354, entitled “An Act to extend jurisdiction in certain cases to State judges and State courts,” but it has never been supposed by any one that this had the effect to bring such State courts within the class comprising-the several courts of the United States.

By the sixth section of the Act of April 29,1802, 2 Statutes at Large, 1.59, the judges of any circuit court are- *60 .authorized to certify their division of opinion on any point on' trial before them to the Supreme Court of the United States for- decision. But in Rose vs. Triplett, 3 Wheat. R., 600, the Supreme Court of the United States decided that this was a power which did not belong to the Circuit Court of the District of Columbia, because .it was not a circuit •court of the United States.

And we think these views are by no means in, conflict with the decision of the Supreme Court in Cohen vs. The State of Virginia, 6 Wheat., 126 , where it was decided that, in legislating for the District of Columbia, Congress was acting in its national capacity, and not in that of a municipal lawmaker for the District.

But if the Act of 1831 be applicable to the courts of this District, we are of opinion that it does not apply to the casein question. That act was passed to restrain the courts of the United States from issuing attachments, and inflicting summary punishments for contempts of court.

The offense of Mr. Bradley was not a contempt of court, nor was he attached or summarily punished for its commission. His offense was towards a judge of the court, out of court, consisting chiefly of threats of personal chastisement for his conduct during a trial then pending, in which the present plaintiff was concerned as counsel on one side.

For this act of gross impropriety and violation of his •duty as an officer, bound by his oath to be faithful as well to the court as to his client, his name was ordered to be ■stricken from the roll of attorneys.

■ The opinion of the Supreme Court of Pennsylvania in ■ Austin’s Case, 5 Rawle, 204 , delivered by Chief Justice -Gibson is directly in point. He says: “But it is nevertheless evident that professional fidelity may be violated by acts which fall without the line of professional functions, -and which may have been performed without the pale of the •court. Such would be the consequence of beating or insulting a judge in the street for a judgment in court, * * * *61 and an enormity of that sort practiced on but a single judge would be an offense, as well against the court, which is bound to protect all its members, as if it had been repeated in the person of each of them, because the consequence to suitors and the public would be the same; and whatever may be thought in such a case of the power to punish'for contempt, there can-be no doubt of the existence of a power to strike the offending attorney from the roll.”

If we were to concede, therefore, that the Act of 1831 wTas in force as to the courts of this District, we find in it nothing to prohibit the jurisdiction assumed by the Criminal Court in making the order in question.

But one other point upon this record remains for consideration. It is this: That the trial of Surratt having been entered upon, but not finished during the March term of the court, the law authorized the court to prolong the trial into the Juue term, but prohibited the court from transacting any* other judicial business except merely to bring that trial to a close, and that the order to strike the name of Mr. Bradley from the roll of attorneys was therefore void.

The Act of Congress of February 16, 1853, is in these words:

“ Be it enacted, etc., That where, at any term of the Circuit or Criminal Court of the District of Columbia, a jury shall be impanneled to try any cause, or any issue, or issues joined in any cause, and it shall happen that no verdict shall be found, nor the jury otherwise discharged before the day appointed by law for the commencement of the next succeeding term, the court shall, and may nevertheless, proceed with the trial by the same jury in every respect as if guch term had not commenced; and all subsequent proceedings to final judgment, if such judgment shall be rendered, shall be entered and have legal effect and operation as of the term at which the jury shall have been *62 impanneled, any law or usage to the contrary notwithstanding.”

The jury in the Surratt Case was impanneled in the March Term and not discharged till the 10th of August, 1867. In the meantime the June Term intervened, and its •■sessions were postponed from time to time during the progress of the trial of Sdrratt.

The order in question was made and entered on the minutes of the court on the 10th of August, immediately following the entry of the order for the discharge of the jury in that case, and immediately thereafter follows the order of the court adjourning till term in course.

The plaintiff in this case argues that according to the Act of 1853 the court lost its powers for any act whatsoever •on the instant the order was made for the discharge of the jury in the Surratt Case.

If that were so, then it had no power even to order an ■adjournment; but the act provides that the trial might proceed in such case in every respect as if the intervening term had not commenced.

Now, no cause can be said to be beyond the jurisdiction ■of the court to amend or alter its minutes till after the court has adjourned. Until the last moment of the term, the pro■ceedings are only the minutes of the court and not records. ■Coke (Co. Litt., B. 3, Ch. 358a) says: “Of courts of record you may read in my reports, but yet during the term, wherein any judicial act is done, the record remaineth in the breast of the judges of the court and in their remembrance, and therefore the roll is alterable during that term •as the judges shall direct; but when the term is past, then the record is in the roll, and admitteth no alteration, averment or proof to the contrary.”

In contemplation of law, therefore, the trial of Surratt was not ended till the adjournment of the court, and the adjournment of the court was necessary to bring it to an end.

*63 The order in question, therefore, was made during the sitting of the court on that trial, and as the offense given as a reason for the order related to the course of the judge during that trial, the order is to be regarded as one of its incidents.

In Brown’s Practice, 132, citing Stephens vs. Hill, 10 M. & W., 28-30, and Simm vs. Gibbs, 6 Dowl., 310, it is said: “ The affidavit in support of the motion for striking an attorney off the roll for misconduct during the proceeding in a cause should be entitled in the cause, and is- properly entitled even when judgment has been obtained therein, for the cause is not, on that account, out of court.”

We find, therefore, that for none of these reasons was the order complained of beyond the authority of the court to make it.

But if our judgment should be wrong in any of these respects, we think no court could say that “the making of the order amounted to a palpable excess of jurisdiction,” for doing which a judge might, perhaps be amenable to a civil action for damages; provided, at the same time, his motives were malicious or corrupt.

For these reasons the judgment of the Circuit Court must be affirmed.