"Mr. Jesse Littleton: Direction of what he thought; but we object to that, and we move to strike that out.

"Court: Overrule the objection." On cross-examination:

"Questions by Mr. Jesse Littleton: "General Whitaker, you say you had two bills of exceptions, one for Mr. Cameron, and one for Mr. Schoolfield? A. Yes, sir; I think Mr. Schoolfield's had been there for several days. Q. How long had this bill of exceptions Mr. Cameron left with you stayed there? A. I am not clear in my mind. I believe about two days. Q. Two days? A. Yes, sir; I think so. Q. And from the day he left it there with you it remained in the same room until you glanced over it and O. K.'d it, and then telephoned him to come and get it? A. Yes; after I passed on it, and O. K.'d it, I called him up over the telephone, and told him where it was in my office, and told him, if I was not there when he came, he would find it at a certain place, and, if my recollection serves me correctly, he came in my absence and got it. Q. You have tried a great many cases that have been appealed? A. Sir? Q. You have tried a great many cases that have been appealed recently? A. Oh, yes. Q. And so bills of exceptions are being constantly presented to you for your O. K. and approval? A. Oh, yes. Q. You say human memory is frail at best-you do not pretend to recollect, Mr. Whitaker, what conversation occurred between you and the attorney in any particular case in every particular? A. I do not in every case; but I do in this particular case. Q. You remember what occurred between you and Mr. Cameron? A. No; I only- Q. You do not pretend to say that your memory has been impressed with this or that remark? A. How is that? Q. You do not pre tend to say that your memory has been impressed with what occurred in this particular case more than in any other? A. No; no; I don't. Q. Now, Mr. Whitaker, in this bill of exceptions that was filed, in which his honor inserted this, have you any recollection of it being proven in the trial that it was 'without four miles of a schoolhouse, where school was kept? A. I have no recollection on the proposition of where school was kept; I have no recollection of that.

"Mr. Whitaker: That is all for the state. "Mr. Whitaker: I think the court ought to state whether or not Mr. Cameron disclosed whether or not it was a stenographic report.

"Court: The court has stated the first conversation between Mr. Cameron and himself. And it was on the proposition to strike this out that the court wanted the evidence. And

"Mr. Jesse Littleton: Now, if your honor please, with all due deference to your honor, that does not throw any light on the issues of the case, and is simply a colloquy between your honor and the defendant, and I think it is an injustice to him.

"Court: It was in reference, Mr. Littleton, to this bill of exceptions.

"Mr. Jesse Littleton: Now, your honor has testified as to what occurred between your honor and the defendant at different times.

"Court: That is, as to what occurred in the office. I was going to tell you what occurred at the bench.

"Gen. Whitaker: If it was in relation to the bill of exceptions, if it was what your honor told the defendant

"Court: After I got it.

"Mr. Jesse Littleton: We object.

"Court (continuing): I said to Mr. Cameron that, he would likely get a chance to explain this matter, and he made some remark, and I told him that I found that a question had been substituted in the first witness' examination, and another question left out, and the question left out was, 'Was that within four miles of a schoolhouse?' and he said something about his stenographer copying it, and he told me her name, and then made some remarks about the court not allowing him to file some affidavits. That is as far as the conversation went. I believe he said-I don't know, but I believe he said, a young lady by the name of Miss O'Rear; I don't know whether there is any such young woman or not, but I believe that is what he said."

The defendant then introduced some 14 witnesses, who testified, in substance, that defendant was a person of good repute and of good character. No evidence was introduced in behalf of the state to controvert this.

There was no other evidence introduced upon the trial of the cause.

The trial judge thereupon rendered a judgment holding the defendant guilty on all of the charges made against him, and adjudged him disbarred. From this judgment an appeal was prayed to the Court of Civil Appeals. In that court a decision was rendered to the effect that under the facts appearing in the record Judge McReynolds was disqualified to try the case, and on this ground his judgment was reversed, and the cause remanded for a new trial.

From the foregoing decision a certiorari was prosecuted to this court, and the case is now here for examination and decision.

[1] The first question to be determined is whether Judge McReynolds was disqualified.

As shown in Smith v. State, 1 Yerg. 228, the origin of the practice above outlined is to be found in an old English statute passed in the reign of Henry IV. This statute first provides for placing attorneys upon the roll after examination as to their character and attainments, and as to their taking the oath, and then provides: "And if any such attorney be hereafter notoriously found 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. They that be good and virtuous, and of good fame, shall be received and sworn at the discretion of the justice; and if they are notoriously in default or misdemeanor may be removed upon evidence either of record or not of record." It is remarked in the case referred to that this statute has received the sanction of four centuries, and that there is nothing in any provision in any act of assembly of this state which is not in strict affirmance of this old act. The case then proceeds to outline the practice where the charges are initiated by some one other than the judge. It is said that a charge may be exhibited to a judge, in or out of court, alleging the default or misdemeanor complained of, and, if the judge deem the charge sufficient to warrant disbarment, he shall cause the attorney to be furnished with a copy, and cite him to appear in open court, when the proceedings are conducted in all respects as under the British statute. This information, it seems, need not be made to the judge in the form of affidavits filed in open court, but he may take knowledge from any source that may seem to him reliable. On this subject the court said, in the case referred to: "Pleas and demurrers never entered the mind of the Legislature, when prescribing the mode of proceedings by the act of 1815. They only meant that the plain man, ignorant of law, should have a plain remedy against a man of a profession possessing many advantages in skill over him; that his statement should be taken as prima facie true, the same as the affidavits upon which the rule was grounded by the previous practice, requiring legal skill, not always and in all situations to be easily obtained against another lawyer. The practice is a correct one, from which innocence has nothing to fear." From this it appears that the judge of a court may consider information given him by any reputable person in respect of the conduct of the members of his bar, and if he deem this information reliable he may make a rule upon the attorney to show cause why he should not be disbarred.

[4] There can be no sound objection that, before making the rule, the trial judge conducted such investigations on his part as would enable him to ascertain whether there was any probable foundation for the charges.

correctly, but it is in its nature highly beneficial to the bar, and has a strong tendency to protect its members against frivolous charges of disappointed litigants. It would, without doubt, be seriously embarrassing, and very unjust to the bar, if it should be held the duty of the judges of this state to make a rule upon an attorney to show cause, upon the mere fact that information of improper conduct had been conveyed to them, without more. It would be equally unfortunate for the proper discipline of the bar, and the purging of unworthy members from its body, if the judge were bound to await formal application in open court by some other member of the bar. We all know how loath are members of the bar to assail another member in this manner, even though he may be guilty, or charged with being guilty, of very bad, disreputable conduct. Under the law the members of the bar are appointed to office by the body of judges, and the power that appoints can likewise remove. As to the method of the exercise of that power, this is to be determined by the court, in the absence of legislative direction.

Now, recurring to the duty of the judge before he causes to be entered a rule against a member of the bar to show cause, we have seen how necessary for the protection of the bar it is that he shall make some investigation in order to ascertain whether the charge is one merely frivolous. In this view we do not think the strictures upon Judge McReynolds contained in the brief of defendant's counsel are well based, wherein they discuss his action in conferring with the District Attorney General and the clerk as to whether the testimony in question had been given in court on the trial of the White Case; that is to say, it was proper for the judge to test his own recollection of the matter by the recollection of others who were present at the trial and heard it. It is not just to characterize such investigation as the preparation of a case by opposing counsel, nor on such facts to charge that the judge was both prosecutor and judge.

[5] We come now to a matter which is of graver import.

It was set forth in the answer of defendant, taken as his deposition, that Judge McReynolds said openly and publicly, in effect, that it did not matter whether defendant confessed the charges or not; that he, the judge. would prove his guilt. It is argued from this that his honor had already decided the case before hearing the defense. There is no contradiction in the record that the judge did make this statement.

It is likewise objected that Judge McReynolds, also in the language of the rule which he caused to be entered, decided the case before it was heard. The rule contains the following preamble and conclusion:

"It appearing to the court that Robert T.

[6] In what has been said we are not to be understood as holding that a judge can be recused on the ground that he has already decided the case, merely by motion supported by affidavits so stating. It must appear, as in the present case, beyond any doubt that such decision has been made. If the judge deny such to be the fact, that ends the controversy; and it cannot be pursued further, or re-examined on that point in this court. This is the rule established in cases of mandamus upon judges to incorporate into bills of exceptions matters of evidence alleged by the petition to have been wrongly excluded. If the judge returns there was no such evidence, that ends the matter. State ex rel. v. L. P. Cooper, 107 Tenn. 202, 64 S. W. 50; State ex rel. v. Maiden, 110 Tenn. 487, 75 S. W. 710. By referring to these cases it is not meant that a judge must, in the kind of case before us, make denial on special oath when so charged. Any statement by him on the subject must be regarded as made under his official oath.

In what we have said we do not desire to be understood as indulging in harsh criticism of Judge McReynolds. The record of this case shows that he was sorely tried by the very bad conduct which defendant confesses to in his answer, and for which he furnished a very late apology. It was very natural that Judge McReynolds, after having been subjected to such disrespectful treatment at the hands of Mr. Cameron during the trial of the case of State v. White, should have felt some resentment therefor, and thus have been hurried into a hasty determination of the matters involved in the present case. Of course, it was his duty, sitting as a judge on the bench, to suppress every feeling of personal resentment, and to forbear the decision of the case, even in his own mind, until he should hear the evidence and the arguments of counsel, and it was entirely possible to do so. It would have been far safer, however, and more in accordance with the proprieties of the situation, after having formulated the charges (in the form of charges, and not of decision), to have interchanged with some other judge to try the case, in view of the personal feeling which he entertained by reason of the gross discourtesy to which he had been subjected by counsel in the matters leading up to the present controversy. He did not, however, do this, nor was he bound to do so; but he was bound not to decide the case in advance, either orally or by a decision put upon the record, as shown by his language copied into this opinion. Having so decided the matter, he immediately became incompetent to try it. It was then his duty to interchange with some other judge for

[7] It is insisted in behalf of the state that, notwithstanding the incompetency of Judge McReynolds, this court should proceed to try the case de novo, and render such judgment as he ought to have rendered, according to the rule laid down in chapter 32 of the Public Acts of 1911. But the mere statement of the rule shows the unsoundness of the suggestion, since the trial judge should not have entered any judgment at all, being incompetent as he was. Chapter 32 has no bearing upon such situation. That chapter presupposes a competent judge, and the duty of this court to re-examine his proceedings for error. It is provided in that act that no verdict or judgment shall be set aside, or a new trial granted, on the ground of error in the charge of the judge to the jury, or on account of the improper admission or rejection of evidence, or for error in acting on any pleading, or for any error in procedure—all of which things presuppose a competent judge in charge of the case, passing on questions of pleading, evidence, and procedure, and giving instructions to the jury. It is provided in the statute referred to that the appellate courts of this state shall not reverse on any of the grounds stated, unless it shall affirmatively appear that the error complained of has affected the results of the trial. Whose error? Manifestly the error of a competent judge in charge of the case in the court below. To apply this statute to a case where the judge is incompetent, and his incompetency not only not waived, but openly objected to, would be not only to deprive the litigant of his right to his trial in a court of first instance, but would require this court to exercise original jurisdiction, since there is no doubt that under such circumstances the judgment of the court below is simply void. Reams v. Kearns, 5 Cold. 217; Smith v. Pearce, 6 Baxt. 72; Mathis v. State, 3 Heisk. 127. These cases are subsequently qualified on another point in Holmes v. Eason, 8 Lea, 754, and Posey v. Eaton, 9 Lea, 500, and Crozier v. Goodwin, 1 Lea, 125. It was held that they were erroneously determined in so far as they decided that the judgment was void when rendered by an incompetent judge; no objection to his competency appearing to have been made at the time by either of the parties. It was held that in such case the incompetency was waived. In Holmes v. Eason the court said: “At common law, it was well settled that, although no judge ought to act where, from interest or from any other cause, he is supposed to be partial to one of the suitors, yet his action in such case was regarded as an error or irregularity not affecting his jurisdiction, and to be corrected by a vacation or reversal of his judgment, except in the case of those inferior tribunals