Page:Federal Reporter, 1st Series, Volume 9.djvu/879

 364 FEDERAL REPORTER. �disclosed on the record, upon motion of one of the parties, and that a judge interested might make the order of removal. �It is clear that, except upon motion to remove, the machinery pro vided by the statuts could not be set in operation, even in a cause included in its scope. �But does this cause fall within this statute, even had thia applica- tion been a motion to remove? The ground suggested is that the judge bas been of oounsel. The language of the statute is, has "been of counsel for either party. " In this case the judge had been one of the parties in a suit in law for damages by collision. In that suit an appeal bond had been given, and the pending proceeding is to fix the liability of the sureties on the appeal bond. It would seem that the controversy or cause here, though growing or issuing ont of the cause in which there was a judgment, is distinct. It presents a different question, and is against a party not an actor in the other suit. In the Banh of North America, 2 Bin. 454, it was held that it was no objection to a judge that while at the bar he had been consulted and had given an opinion in favor of one of the parties. In Blackhurn v. Craufiird, 22 Md. 447, it is held : The fact that a judge had been counsel in a case theretofore tried between two of the parties to the bill, which involved some of the issues raised in the bill, did not bring him within the letter or spirit of the constitutional inhibition against sitting in a case wherein he may have been of counsel. To the same effect, see, also, Taylor v. Williams, 26 Tex. 583. In Gook v. Berth, 102 Mass. 372, a magistrate was held not to be disqualified by a statute similar in terms, and to have properly sat in an action of ejectment, though he had drawn the plaintifE's lease, under and upon which the action was brought, and had written the notice to quit. In Thellusson v. Rendlesham, 7 H. of L. Cas. 429, where a court constituted of so many members could with slight ineonvenience dispense with the participation in a hearing of one of the peers. Lord St. Leonard stated that he had on two occasions been of counsel in the cause, though not upon a point then pending, but that he "did not conceive that these facts absolved him from the duty of taking part in the hearing." The lord chancelier (Lord Chelmsford) and Lord Brougham con- curred in that view, and no member of the house dissented. �The decisions, so far as I have been able to iind, are unanimous that "of counsel" means "of counsel for a party in that cause and in that controversy," and if either the cause or controversy is not identical the disqualification does not exist. In the case before me, the controversy in which the judge was of counsel was as to the lia- ��� �