A motion has been made that I should decline to sit in this cause because I have been of сounsel. The doctrine ol recusation of judges is of continental origin. According to the lаvs of Great Britain it has been unknown since before Blackstono’s time. According to the law whiсh prevails upon the continent, and as declared in the Code of France, a judge is rеcusable if he has given counsel, pleaded, or written of the controversy, has previously acted as judge or arbitrator, or defrayed the expenses of the suit, deposed as a witness, etc. But at the common law as it prevailed in England, and was adopted by the pеople of the United States, there could be nc challenge or recusation of judgеs on the ground that the judge had been of counsel. See Coke, Litt. 294; 2 Bro. Civ. & Adm. Law. 369; 3 Bl. Com. 361; Lyon v. State Bank,
This leaves nothing to be considered except the United States statutes. Of these there are two. The first, which is found in the Rеvised Statutes, § 601, applies only to causes pending in the district courts. The last, found in the Revised Statutes, § 616, authorizes and requires the court, on the application of either party, to trаnsfer a cause to another circuit court. There could be no pretext that the first statute applied. It would dispose of the second statute to say that this is not an application to transfer to another court. In Spencer v. Lapsley,
It is clear that, except upon motion to remove, the machinery provided by the statute cоuld not be set in operation, even in a cause included in its scope.
But does this cause fall within this statute, even had this application been a motion to remove? The ground suggestеd is that the judge has been of counsel. 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 оr cause here, though growing or issuing out of the cause in which there was a judgment, is distinct. It presents а different question, and is against a party not an actor in the other suit. In the Bank of North America,
The decisions, so far as I have been able to find, 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 nоt 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