The accusation avers inter alia, that the respondent, in the presence of divers witnesses, in the city of Cheyenne, in this territory, utterred of and concerning this court and its decision of a certain cause, the following language: "It is a son-of-a-bitch of a court; one bribed and the other I don't know what." It is further alleged that said words were so spoken with intent to scandalize, traduce and bring into contempt and disgrace, the court.

There is also a further allegation charging the utterance of similar words at Laramie city, but, as to these words, we do not find the accusation sustained.

The respondent answered under oath. In his answer he admits the use of the language at Cheyenne, except that he claims he used. the expression "son of a gun" instead of "son of a bitch." Mr. Corlett and Mr. Riner both swear, positively, that the latter expression was the one used, and they are contradicted by the respondent alone.

The court finds, therefore, that the words used in the accusation were the words used.

Were the words used in relation to this court and a cause by it decided, with intent to charge the court with bribery in the decision of that cause?

If the above question be decided in the affirmative, do all the facts show, on the part of respondent, such a violation of his duties as an officer of this court, as would demand a suspension or severance of the official relation.

The evidence shows that on the day the words were uttered this court had decided a cause in which Edward Ivinson was appellant, and Charles Hutton and Judge Carey and brother were appellees.

The decision was by a majority of the court, the members of that majority being judges Blair and Parks. The then chief justice Sener dissented. The respondent was solicitor for the appellant in that cause, and the decision was adverse to his client.

Immediately after the decision the respondent and several others walked from the court room towards the Sun office. While in the Sun office some one remarked to respondent, "Brown, you got beaten," or words to that effect, to which respondent replied, "Yes, that's a son-of-a-bitch of a court, one bribed and the other I don't know what." The respondent was himself sworn as a witness on his own behalf at the trial, and in his evidence made the following

answers:

"Question. To recur to the conversation in the Sun office, you say the name of no court was mentioned?

Answer.-No, sir; it was not.

"Q.-What court did you refer to as the 'son-of-a-gun' of a

court?

"A.-I don't know that I referred to any; it was one of those remarks we lawyers sometimes make. It really has little or no meaning.

Q.-Some one asked you if you were beaten?

"A.-Yes, sir.

"Q.-In your reply 'yes,' where did you mean you were beaten? "A.-Well, if I meant anything, or if my conversation referred to any matter, it probably referred to the case decided here in

court.

"Q-You would say that your conversation referred to something?

'A.-Well, it referred to just this, if your honor please: it was a remark made in anger, and what it meant or what one would mean by it, would be pretty hard to say.

"Q.-In your answer you certainly referred to the Ivinson case? "A.-I certainly had the Ivinson case in my mind.

Mr. Corlett in his evidence, after stating what occurred in the Sun office, and that he and the respondent were afterwards on the same day in his (Corlett's) office, states the following as having occurred at the latter place:

"I broached the subject to him about his remark. He said to me finally that he didn't mean to say that I had done anything or had anything to do in respect to this case that was improper, or that judge Cary had either.'

"Q.-What cause had that reference to?

A.-What we call the Ivinson and Hutton case.

Q.

* * * Now you might state whether in that conversation the respondent did not state that he meant not to be understood that the court was bribed?

"A.-I don't remember of his saying that.

"Q.-You might state whether the respondent did not wish to be understood as charging any judge with bribery?

"A.-No, sir; the statement was that he did not mean to say that he had any evidence that judge Blair" (one of the judges of this court) had been bribed, but that his position in the supreme court was different from what it was in the district court; that may have been it, or that he did not have any evidence."

As to what drew out respondent's remark, above stated, Mr. Corlett testified:

"I don't know, but for some reason or other, I presumed he had reference to judge Blair, and I asked him what reason he had for thinking judge Blair had been bribed or if he had any evidence of it."

Of the above testimony, and the conversation mentioned in it, the respondent in his testimony, says:

"I think if it occurred at all, and probably it did as he states it, it occurred in the afternoon of that day,-or substantially as he states it. If I was to repeat the conversation I would not vary it very much."

We think the evidence shows conclusively that the language spoken by the respondent at the Sun office was spoken of this court and concerning its decision in the Ivinson-Hutton case, and being so used the only meaning which can reasonably be given the words

is one which charges the court with bribery in the decision of that

cause.

By his words spoken publicly, the respondent, with vile epithets, charged the court with the commission of the highest crime which a court can possibly commit, and yet it is not claimed that there was even the slightest ground for that charge.

The claim is that the words were spoken in anger. The plain duty of respondent was then to right the wrong as far as possible, and when confronted here with the groundless charge made by him to retract it with as much alacrity as was uttered. He owed it to himself as well as to the court to be entirely frank, candid and truthful in the matter.

But there is no retraction in the respondent's answer, nor is there anything showing the slightest regret upon his part on account of his offense. Indeed the answer closes with this self-sufficient lan

guage:

That if at any time he has criticised the action of courts unkindly it was the result of disappointment in the failure of justice and the inability of courts to administer the law with that uniformity and precision that he believed requisite in so high and noble a profession, and not from any disposition or intention to hinder or prevent the due administration of justice.'

Respondent testifies that he retracted the charge of bribery in a private conversation with Mr. Corlett which respondent says took place before noon of the day of the utterance, and within a few minutes after the utterance. Mr. Corlett's recollection is not in accord with that of respondent upon this point, and in this the former is strongly corroborated by the conversation which took place several hours afterward in his office-a conversation in which respondent reiterated in effect the charge of bribery, though, admitting he had no evidence of it.

It is at least singular that this conversation should have taken place as it did if the retraction had been made as claimed.

It will be seen that the testimony of respondent, to state it mildly, was quite evasive. We have, also, had the task of trying to reconcile that testimony with his sworn answer. For example, that answer contains the following:

"But respondent denies that he used said language, or spoke said words of or concerning said cause of Ivinson against Hutton or any other case that had been decided by said supreme court." This denial we failed to reconcile with portions of respondent's testimony.

Our statute provides that this court "may revoke or suspend the license of any attorney or counsellor at law to practice therein. * * *Fifth. For the willful violation of any of the duties of attorney or counsellor."

The statute does not define the duties of an attorney or counsellor. We have also, a general statute adopting the "common law of England as modified by judicial decisions," and expressly providing that, that common law "shall be considered as of full force

until repealed by legislative authority." Compiled Laws, page 193, sec. 1.

The duties of an attorney in this territory, are, therefore, the same as under the common law, his first duty being to the court of which he is an officer.

"The obligation which attorneys impliedly assume, if they do not by express declaration, take upon themselves, when they are admitted to the bar, is not merely to be obedient to the constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers.

"This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges, personally, for their judicial acts:" Bradley v. Fisher, 13 Wall., 333-355.

The fountain of the power of the courts to remove attorneys, as exercised at common law, is the statute of 4 H. IV, ch. 18, which is as follows.

66

And if any such attorney be hereafter found notoriously in any default, of record or otherwise, he shall forswear the court and never after be received to make any suit in any court of the king. That they be good and virtuous, and of good fame, shall be received and sworn at the discretion of the justices, and, if they are notoriously in default, at discretion, may be removed upon evidence, either of record or not of record.'

It seems to us that the power to remove under our statute, and the causes sufficient for removal, are as broad and comprehensive as at common law. Further: So far as questions now arising in this case are concerned, there is nothing in our statute, either expressly or by implication, repealing the common law.

The court finds that the accusation, so far as it relates to the conversation in Cheyenne, is, in all things, sustained, and that the subsequent conduct of the respondent, in relation to the matters involved, including his answer and testimony here in this action, has, in no way, lessened or atoned for his offense.

The court further finds that the defanlt of the respondent, the willful violation of his duty to the court as an attorney and counsellor, has been such, when viewed from the stand point, either of the common law or of our statute, as to demand a suspension of his official_relation to this court: Bradley v. Fisher, 13 Wall., 333, supra; Beene v. State, 22 Ark., 149; People ex rel Elliott v. Greene, 2 West Coast Rep., 311, 521; Ex parte Wall, 107 U. S., 265.

It is, therefore, considered by the court that the license of the respondent, as an attorney and counsellor at law to practice in this court, be, and the same is, hereby, suspended until the further order of this court.

It is further considered by the court that the respondent pay the costs of this proceeding, taxed at eighty-three dollars. All the judges concurring.

SUPREME COURT OF CALIFORNIA.

No. 7,790.

PELLIER V. GILLESPIE ET AL.

Department Two. Filed November 22, 1884.

AFFIDAVIT OF SERVICE OF SUMMONS-RESIDENCE OF DEFENDANT.-Where the affidavit of service of summons states that the defendant was served in a certain county, it will be presumed that he was a resident of such county.

FORECLOSURE OF MORTGAGE-PERSONAL JUDGMENT AGAINST GRANTEE OF MORTGAGORPLEADINGS.-In a complaint to foreclose a mortgage an allegation that the grantee of the mortgagor covenanted and agreed to pay the mortgage debt and discharge the mortgage lien, is sufficient to sustain a personal judgment against him, although such allegation is made upon information and belief.

APPEAL from a judgment of the superior court for Santa Clara county. This was an action to foreclose a mortgage against an original mortgagor and his grantee. Judgment was rendered upon the default of the defendants. The record showed that a copy of the summons only was served upon the appellant. The affidavit of service of summons did not state that the defendant, served with a copy of the complaint and summons, and the appellant, were residents of the same county. The complaint alleged, on information and belief, that the mortgagor, Gillespie, sold and conveyed the mortgaged premises to the appellant, subject to the mortgage lien of the plaintiff, and that at the time of such sale the appellant covenanted and agreed to pay said mortgage debt and discharge said mortgage lien. The decree adjudged the appellant personally liable for the payment of the debt secured by the mortgage. The further facts appear in the opinion.

Houghton & Reynolds, for the appellant.

Jas. R. Lowe, for the respondent.

THE COURT. The objection that the affidavit of service of summons, is fatally defective, because it does not state that the appel. lant on whom the summons alone was served, and the defendant on whom a copy of the complaint was served with the summons, were residents of the same county, is overruled, on the authority of Calderwood v. Brooks, 28 Cal., 153.

The allegation that appellant covenanted and agreed to pay the mortgage debt and discharge the mortgage lien, is sufficient to sustain the judgment.

There is a sufficient description of the premises.

Judgment affirmed.