order to get before the court and jury the lows: N. J. Phillips, the clerk and master essential point of evidence that in the suit of the chancery court, testified thus: referred to, out of which the bond sued on "I will ask you if you have the original arose, the injunction had been dissolved and bond-injunction bond-executed by Samuel held wrongfully issued. Plaintiffs below did L. King and others in the cause of Samuel not offer the whole record, but only the fol- L. King and others against W. H. Cox? A. lowing, viz.: A paper purporting to be a copy I reckon not. The file is not in my office. of the bill issued out of the master's office, I suppose they are in Bristol. I haven't the when it was filed; carbon copies of the de- papers now at all; some of the lawyers murrers of the defendants and of their an- must have them. Q. I show you what purswers (these were presented by the attorney ports to be a certified copy. (Witness exfor plaintiffs in the present suit, as office cop-amined the paper handed him.) A. Yes; I ies preserved by him as attorney for defend- made that. Q. Did you make search for the ants in the former suit); a certified copy of bond? A. Let me see if I did. I don't rethe decree of the court; a certified copy of member just now what I did say about it. the injunction bond; a certified copy of in- (Reads the certified copy, and replied that junction writ; and a certified copy of the rule it so states; that he made search for the docket. These various papers were objected bond.) Q. I will ask you if this is a correct to, first, on the ground that a certified copy copy of the injunction writ that was served of the whole record was necessary; and, sec- upon the parties? (Hands witness paper.) ondly, that the copies of the papers referred Q. Have you made search for the original to that is, the pleadings and the injunction papers in this case? A. Yes, sir. Q. Have writ and bond-could not be supplied in you been able to find them? A. No, sir. Q. the manner attempted without evidence that Do you know where they are? A. No, sir; the office of the master had been diligently I made that certified copy last October. searched and they could not be found. The Some of the lawyers may have them, but I trial judge overruled these objections, and can't tell where they are. I let C. A. Brown his action thereon is assigned as error. have them, and he took them to Bristol, and gave them to A. G. Keebler. (Mr. Keebler here states that he brought them back to Blountville, and gave them either to the clerk and master, or some attorney in the case.) Q. Is that a copy of the injunction? A. Yes; that is a copy of the injunction and the sheriff's return on it." [7-9] On dissolution of an injunction, defendant may have either a reference to the master for the assessment of damages, or bring an independent suit on the bond. Shannon's Code, § 6259; Terrell v. Ingersoll, 10 Lea, 77, 80, 84. This follows as a matter of course upon dismissal of the bill. Ragan & Buffett v. Aiken, 9 Lea, 623. But the fact of such dissolution must be shown by the best evidence; that is, the record of the injunction suit. "A judicial record of this state is proved by a production of the original, or by copy thereof, certified by the clerk or the person having the legal custody thereof under his seal of office, if he have one." Shannon's Code, § 5579. A copy of the whole record must be produced. Duncan v. Gibbs, 1 Yerg. 256; Garrick v. Armstrong, 2 Cold. 267; Willis v. Louderback, 5 Lea, 561; Phipps v. Caldwell, 1 Heisk. 350; Railway Co. v. Seymour, 113 Tenn. 523, 83 S. W. 674; Smith v. Hutchison, 104 Tenn. 394, 58 S. W. 226. A modification of this rule is found in Russell v. Houston, 115 Tenn. 536, 91 S. W. 192, to the effect that it may be dispensed with, in case of the records of courts of general jurisdiction, where it appears that a part of the record is lost and cannot be produced, and the party seeking to use the record as evidence produces all of it that is accessible. [10] It is insisted for the plaintiffs that this was done; that they produced and offered in evidence all of the record of the injunction suit that could be found. The defendants insist that there is not sufficient evidence in the record to show that any part of the former record was lost. The witness was examined on December 19, 1911. The certificate to the bond on which he bases his answer as to the search was made on the 22d day of May, 1911. He does not testify that he made any search in his office after that time. This certificate of the 22d of May, 1911, states "that the original bond is lost or unintentionally mislaid, and cannot be found on diligent search." The certificate to the copy of the injunction writ on which he bases his statement as to that matter was made on the 31st of October, 1911. C. J. St. John testified: "I find in my file a copy of the bill that was delivered to my client when the service was made." This copy was thereupon offered and objected to as stated. Accompanying this were filed uncertified copies of papers purporting to be the demurrers and answers of the defendants in that suit. The witness testified that these papers were prepared by him at his office, and that the carbon copies were copies of the originals which were filed in the court; that the copy of the original bill was a copy made out by the clerk at the time that the summons was issued, and delivered to his client with the summons. We do not think that a sufficient ground was laid for the introduction of these irregular copies, or for using only a part of the It not appear that the clerk and master had made any recent search in his office, or that any inquiry had been made among the attorneys of the parties in that former litigation, or who the attorneys were. Judge St. John, the witness whose testimony has just been referred to, and who testified that he was counsel in that case, made no statement upon the subject as to whether he had examined or looked in his office for the file. It appears that Mr. Keebler was an attorney in the cause, and his statement appears to the effect that he had the papers and returned them, either to the clerk and master, or gave them to some other counsel in the case, and so the question is left wholly at large. It does not appear that the master had made search in his office during the months intervening between May and October, or between October and December. ought to appear that all available sources of knowledge had been exhausted by diligent and recent search. Among these available sources indicated by the present evidence were the clerk and master's office at Blountville and the offices of the various attorneys who had been engaged in that cause. For all that we can see, the whole record may have been in the clerk and master's office at the time he testified, or may have been in the office of one of the attorneys. Under these circumstances, we are of the opinion that the trial judge committed error in admitting these detached papers. Rhea v. McCorkle, 11 Heisk. 415; Whiteside v. Watkins (Tenn. Ch.) 58 S. W. 1107; Vaulx v. Merriwether, 2 Sneed, 686; Pharis v. Lambert, 1 Sneed, 228; Girdner v. Walker, 1 Heisk. 191; 17 Cyc. 543 and 548; 1 Greenleaf on Ev. § 558. It results that the judgment of the Court of Civil Appeals must be reversed, also the judgment of the circuit court, and the cause remanded for further proceedings. The Court of Civil Appeals reversed the judgment as to Yoakly on a special ground stated in the opinion of that court. It is unnecessary and improper that we should consider that ground in the present attitude of the case, and the reversal of the Court of Civil Appeals as to that matter is based upon the necessary reversal of the judgment of the circuit court. The costs of the appeal will be paid by the plaintiffs. 2. JUDGES (§ 49*)-DISQUALIFICATION-BIAS AND PREJUDICE. A judge is not absolutely disqualified to hear and determine a case merely because he is personally prejudiced against a party; it being left to his personal discretion whether he will act. [Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 187, 188; Dec. Dig. § 49.*] 3. ATTORNEY AND CLIENT (§ 51*)-DISBARMENT-PRELIMINARY PROCEEDINGS. Under Shannon's Code, § 5781, authorizing courts to strike from their rolls any practicing attorney or counsel upon satisfactory evidence that he has been guilty of misconduct, section 5782, requiring the charges against an attorney or counsel to be reduced to writing and a copy furnished the party accused, section 5783, prohibiting persons stricken from the rolls to practice in any court, and section 5784, giving such an attorney the right to appeal, the trial judge has the right, and it is his duty, to formulate charges against attorneys, where the matters are wholly or largely within his knowledge, without waiting for any motion by any member of the bar. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 67; Dec. Dig. § 51.*1 4. JUDGES (§ 47*)-DISQUALIFICATION-BIAS AND PREJUDICE. A trial judge, who, before making charges against an attorney, based on matters within his knowledge, tested his recollection of the matter by consulting others having knowledge thereof, was not thereby disqualified to hear and determine the disbarment proceeding on the ground that he had become the prosecutor; it being necessary for the protection of the bar that judges shall make some preliminary investigation before making such charges. [Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 214-219, 222, 223; Dec. Dig. § 47.*] 5. CONSTITUTIONAL LAW (8$ 306, 321*)JUDGES ($49*) - DISQUALIFICATION-BIAS AND PREJUDICE. Where charges of misconduct against an attorney, presented by a trial judge, recited that it appeared from facts within the court's knowledge that the attorney had been guilty of acts of immorality and impropriety inconsistent with the character and incompatible with the faithful performance of the duties of his profession, that he had been guilty of a studied and matured purpose to commit a fore ordered to show cause why he should not fraud upon the court, and that he was therebe disbarred, and it was uncontradicted that the trial judge had stated openly and publicly that it did not matter whether the attorney confessed the charges or not, as he could prove his guilt, the judge was disqualified upon due objection being made, since a trial judge who decides the case before hearing the evidence is disqualified, under Const. art. 6, § 11, and Shannon's Code, § 5706, both of which provide that no judge shall be competent, except by consent, where he has presided in any inferior court or has been of counsel, especially in view of Const. art. 1, § 17, providing that every man, for injuries done him in his lands, goods, person, or reputation, shall have a remA judge is not disqualified to act in a case edy by due course of law, and right and jusmerely because he will be a witness on the tice administered without sale, denial, or detrial, in view of Shannon's Code, § 5594, ex-lay; to compel a man, over his protest, to try pressly providing that the judge is a competent his case before a judge who has already de In re CAMERON. (Supreme Court of Tennessee. Nov. 23, 1912.) 1. JUDGES (§ 47*)—DISQUALIFICATION-STATUTORY PROVISIONS. cided, it not constituting due course of law, | torney for and represented one J. E. White but being a denial of justice. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 928, 936, 939, 942946, 948, 949, 950, 952-955; Dec. Dig. 88 306, 321; Judges, Cent. Dig. §§ 187, 188; Dec. Dig. § 49.*] in this court at the September term on the charge of unlawfully selling whisky within four miles of a schoolhouse; that said White was convicted of said offense and was fined $250 and sentenced to four months' imprison 6. JUDGES (§ 49*)-DISQUALIFICATION-BIAS ment in the workhouse; that a motion for a AND PREJUDICE. A trial judge is not disqualified, on the ground that he has decided the case in advance, unless it appears beyond any doubt that such is the fact; his denial, although made under no oath except his oath of office, being conclusive on this point. [Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 187, 188; Dec. Dig. § 49.*] 7. CONSTITUTIONAL LAW (§ 316*)-DUE PROCESS OF LAW. Under Pub. Acts 1911, c. 32, providing that no verdict or judgment shall be set aside or new trial granted for error in the charge, in the admission or rejection of evidence, in acting on any pleading, or for any error in any procedure in the case, unless in the opinion of the appellate court, after an examination of the entire record, it shall affirmatively appear that the error complained of affected the results of the trial, the Supreme Court cannot try a case de novo, and render the judgment which should have been rendered below, where the trial judge was incompetent, and due objection was made on that ground; the judgment in such case being void, and a trial by the Supreme Court an exercise of original jurisdiction, contrary to Const. art. 1, § 17, providing for a remedy in all cases by due course of law. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 938; Dec. Dig. 8 316.*] Certiorari to Court of Civil Appeals. Proceedings for the disbarment of Robert T. Cameron, an attorney. Judgment disbarring respondent was reversed by the Court of Civil Appeals, and the cause remanded, and the proceeding is brought to the Supreme Court by certiorari. Judgment remanding the case affirmed. Littleton, Littleton & Littleton, of Chattanooga, for plaintiff in error. M. N. Whitaker, Dist. Atty. Gen., and T. Pope Shepherd, Asst. Dist. Atty. Gen., both of Chattanooga, for the State. Frank Spurlock, Frank M. Thomp son, and S. Bartow Strang, all of Chattanooga, oppposed. NEIL, J. In the criminal court of Hamilton county, on January 13, 1912, plaintiff in error was served with the following citation: new trial was made by said Cameron for said White, which was overruled by the court and appeal was granted to the Supreme Court, and defendant given 30 days to file his bill of exceptions. All of the proceed. ings of said trial were taken in shorthand by M. O. Cates, an experienced and reputable stenographer, and a transcript of his stenographic notes was made by the said Cates and presented to the said Cameron. A bill of exceptions was presented by the said Cameron to Attorney General Whitaker for his approval, with the representation that it was the stenographer's report of said trial. The Attorney General, having confidence in Attorney Cameron, and believing his statement to be true, made a casual examination and approved said bill of exceptions as presented by the said Cameron. The court, understanding that said bill of exceptions was the stenographer's report of said proceedings, made only a slight examination thereof, but discovered that there was no proof in the record showing that the sale of whisky in question was made within four miles of a schoolhouse. "The court, remembering that such fact was proven and should be in the record, inserted and interlined in the paper presented by Mr. Cameron the words 'within four miles of a schoolhouse where a school was kept,' signed said bill of exceptions, and had it filed. "During this term of court, on the 9th day of January, 1912, said Robert T. Cameron appeared before the court and asked that said interlineation as aforesaid be stricken out, and stated that such facts were not proven on the trial of said case; that he especially remembered it, and would make af fidavit to that effect. The court promised to strike out said interlineation if it should appear that the statements of said Cameron in this respect were true. The said R. T. Cameron knew when he made said statement to the court that it was absolutely false, and he made it for the purpose of deceiving and practicing a fraud upon the court, and for the purpose of fraudulently procuring a new trial for his client before the Supreme Court. "It appearing to the court that Robert T. Cameron is a practicing attorney at this bar, and it further appearing to the court from such facts in the possession of and within the knowledge of the court that said Robert T. Cameron has been guilty of such "(2) Said Robert T. Cameron is charged acts of immorality and impropriety as are with willfully, knowingly, corruptly, and inconsistent with the character and incom- | fraudulently changing and altering the first patible with the faithful discharge of the duties of his profession, that he has been guilty of a studied and matured purpose to commit a fraud upon the court, to wit: "(1) That said Robert T. Cameron was at seven pages of the transcript of the stenagraphic report furnished him by the said M. O. Cates, which transcript as furnished by said Cates was a correct report of the testimony produced and the proceedings on For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the trial. The said Cameron inserted five | residing here and now in the city, or any pages of his own composition, which did not circuit judge, chancellor or criminal judge in correctly state the testimony, and correctly the state of Tennessee, having concurrent show the proceedings on said trial, and the jurisdiction with your honor, Hon. S. D. Mcsaid Cameron knew that his said statements Reynolds, in matters of this character. as shown in said transcript were not correct, but were false and fraudulent. After altering and changing the transcript as aforesaid, the said Robert Cameron presented said paper to the court, with the representation that it was the stenographer's report of the proceedings of said trial. All of this was done by the said Cameron for the purpose of deceiving and defrauding the court, and procuring the court to certify a false and fraudulent bill of exceptions in said case. "(3) That the said R. T. Cameron further undertook to deceive the court by attempting to have the stenographer, M. O. Cates, who reported the case, to make a statement to the court which was false and misleading in respect to the stenographic report of said case, so as to procure the court to strike out of the bill of exceptions what the court had interlined, to wit, 'within four miles of a schoolhouse where school is kept.' "It is therefore ordered and adjudged by the court that said Robert T. Cameron be ordered to appear before the court on Saturday, January 20, 1912, at 10 o'clock a. m., and show cause why he should not be disbarred from the further practice of law in the courts of this state, and his name stricken from the roll of attorneys. "It is further ordered by the court that the Attorney General, M. N. Whitaker, and the Assistant Attorney General, T. P. Shepherd, are directed by the court to conduct these proceedings in behalf of the state of Tennessee. "The clerk is hereby directed to issue citation to said Robert T. Cameron in accordance to this order and furnish him a copy of this order." On February 13th plaintiff in error appeared by counsel, and moved the court to permit the cause to be heard by some other judge of concurrent jurisdiction, on the ground that Hon. Samuel D. McReynolds was interested in the event of the suit; and in this behalf he invoked article 6, § 11, of the Constitution of the state, which provides as follows: "No judge of the Supreme or any inferior courts shall preside in the trial of any cause in the event of which he may be interested." In support of this motion he filed the following affidavit: "In this case Robert T. Cameron makes oath that by and through his counsel he has moved the court to grant him a hearing before some judge who has no interest in the event of this suit. And to that end he has asked, and he now asks, that this honorable court interchange with Hon. T. M. McConnell, chancellor, residing here and now in the "Protesting all the while his respect for and his confidence in the uprightness and integrity of this honorable court, affiant does not believe that he can get a fair and impartial hearing of the issues before this honorable court for the following reasons, which he humbly begs to respectfully submit: "First. Your honor, affiant is informed and believes, entered the order against affiant, citing him to appear and show cause why he should not be disbarred; and this order was entered on your honor's own motion, and is in substance a recitation that affiant is guilty of the things with which he is charged. Therefore your honor stands in relation of prosecutor in this case, and to that extent is a party to the suit or proceedings. "Second. Your honor, affiant is informed and believes, is a witness in the case about a most material matter of fact, and your honor is the only witness against affiant as to the matter of fact; and your honor has on divers occasions and in divers places stated to divers people your honor's version of the conversation between your honor and affiant as to that matter of fact which caused your honor to enter this order, and which is the gist of this action against affiant; and your honor is naturally interested in the event of the suit and in having your honor's version of the controversy sustained and accepted. "Third. Your honor has, as your affiant is informed, on several occasions expressed feelings of prejudice against affiant, and on one occasion used substantially this language: "It does not make any difference whether Cameron confesses or not. I can prove his guilt.' "Affiant, protesting his high regard for your honor's position, and yet feeling no more keen resentment than what is human and possible at what your honor may have said in a moment of sudden exasperation, because of some real or reckoned sin of affiant, respectfully and humbly insists that, with this opinion formed and expressed about affiant, your honor, in the nature of things, is bound to have some interest in the event of the suit. "Affiant avers that your honor is prosecutor and witness, and has, by virtue of your honor's position, selected counsel to represent your honor in the prosecution of affiant; that your honor has expressed the opinion that affiant is guilty of the charges, has caused an order to be entered solemnly declaring and reciting that affiant is guilty, and affiant respectfully and most earnestly insists that your honor is interested in the suit. disrespect to your honor, or your honor's | to him, Johnson, that he purchased no whishigh office, but that he may be tried accord- ky from defendant White. ing to the forms of law, and in the manner prescribed by law, and under the Constitution of his country, affiant makes this affidavit in support of the motion filed, that he may be tried by a court having no strong feeling against him, no fixed opinion as to what the facts of this case are, and no interest in the result." "Respondent, on behalf of his client, White, further insisted on a continuance of the case because of the absence of a witness, named Stocks, who would testify that he was in the defendant White's place of business with Johnson when Red Gordon was alleged to have purchased the whisky from White, and that Stocks would testify that Gordon did The court overruled this motion, to which not make the purchase, that he, Stocks, action the plaintiff in error excepted. Thereupon the cause came on for trial on the merits, and the plaintiff in error introduced his sworn answer, which was treated as his deposition. It was as follows: "That he is 35 years of age, and has been a practicing member of the Chattanooga bar for a period of 9 years. That he has had, and now has, a remunerative practice, and that his business has been and is in the federal, chancery, circuit, and criminal courts; the greater volume of it being in the circuit courts. "That he has some criminal practice, and that soon after the May, 1911, term of the criminal court of Hamilton county, he was engaged to defend one J. E. White, indicted at that term for selling intoxicating liquors within four miles of a schoolhouse where school was kept, and for selling liquor without a license." would have seen it if he had made it, and that no whisky was delivered to Gordon by White. "Gordon, a negro, was the only witness for the prosecution. "With these statements treated by agreement as sworn to, the application was overruled by the court, and the defendant put to trial. "This application for a continuance was made at the morning session of the court, when there was no stenographer present. Court then adjourned, and at the afternoon session respondent renewed his application for a continuance, but did not state his grounds as fully as on the original application. "Under this state of affairs, the feelings of respondent were considerably wrought upon by the action of the honorable court in what the respondent then considered an arbitrary The presentment was then set out, but it is action in putting his client, whom respondent not necessary to reproduce it here. "That at the September term, 1911, the case of the state against J. E. White was regularly called on the docket for trial, and that respondent, Cameron, appeared in court as of counsel for White, and applied to the court for a continuance of the case on the grounds and for the reasons that two material witnesses for the defendant White were absent. A subpoena had been issued for one of these witnesses, Sam Johnson, but had not been returned, and on learning of this the day before the trial the defendant White had attempted to locate Johnson in the city and had failed. And said respondent stated believed innocent, to trial without his witnesses, and affiant was doubtless more or less ugly, offensive, and unpleasant in the trial of the case, all of which he now deeply regrets. And finally, when the judge, Hon. S. D. McReynolds, called the Attorney General to the judge's stand and carried on a whispered conversation with him for a minute, and the Attorney General turned directly to the witness then in the chair and began to ask questions, respondent supposed and believed the judge had been directing the Attorney General what questions to propound to the witness, and the respondent almost involuntarily and with great feeling exclaimed, substantially: "I except to the court's action in assisting the Attorney General in this prosecution.' "Whereupon the court fined respondent for contempt of court, and the trial of the case proceeded with increased and increasing bitterness between the respondent and the court. "Respondent here and now admits that his conduct and bearing toward the court was improper, and he deeply regrets it. to the court that the witness was not absent by the consent or procurement of defendant White, and that he expected to have him present at the next term if a continuance should be granted, and that he expected to prove, and would prove by said Johnson, that Johnson was in the place of business of defendant White when the only witness for the prosecution, one Red Gordon, was alleged to have purchased the liquor, the sale of which the indictment was founded upon, and that Johnson would prove that Gordon did not buy the liquor from the defendant White. That if any whisky had been sold or delivered to Gordon by defendant White, he would have seen it, and that he, Johnson, would prove that said state witness, Gordon, had since the date of the alleged |