[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 316
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 317
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 The Special Term specifically confirmed the report of the referee "in all respects," and thus necessarily adopted the facts found by him. As the respondent has not appealed from the order of confirmation, she is bound by the facts thus established and cannot attack them on this appeal. The appellant does not attack that portion of the report which states, in substance, that he is not indebted to the respondent for any moneys received in a professional capacity, but he contends that the referee erred in finding that he was indebted to her for a balance received by him as her business agent. As there was a conflict in the evidence relating to this subject, and the Appellate Division has affirmed, the finding is conclusive in this court.
Both parties have acquiesced in and are bound by the finding that the appellant has no money of the respondent which came to him as an attorney, and that the only money in his hands belonging to her came to him as her business agent. This narrows the controversy to the question whether the amended order of reference, although made upon the written *Page 320 stipulation of the appellant, is binding upon him, and if so, to what extent. That order authorized the referee to decide the entire controversy, and authorized the court, upon confirming his report, to direct the appellant to pay the respondent any amount found due from him to her.
The court had no jurisdiction upon a summary application based upon a petition and notice of motion, to compel the appellant to pay over moneys collected by him merely as a business agent. The cases where the court has jurisdiction to thus enforce payment by an attorney are confined strictly to moneys collected in an official or professional capacity. If an attorney acts as a commercial agent for another and receives money in that capacity, the remedy for non-payment is by action only. An agent who collects money is not subject to summary process to compel the payment thereof merely because he happens to be an attorney. He cannot be punished for contempt if he retains moneys collected by him in pursuance of an ordinary contract of trade, not involving the relation of attorney and client. It is only when he receives money while acting as an officer of the court that there is jurisdiction to compel payment by order instead of by judgment and execution. For the protection of the court and the maintenance of high character on the part of its officers, acts done by an attorney, as such, are carefully scrutinized and he is held to a rigid accountability for moneys received by him by virtue of the professional relation. Courts, however, do not extend such acute scrutiny to mere business relations between lawyers and laymen, such as have no connection with the office of attorney, but might exist as well if neither party to the transaction were a lawyer. For wrongs done by an attorney in his professional character he may be summarily proceeded against, but for acts done by him merely as a man of business, the person aggrieved by his misconduct is left to the remedy by action, although the court, in order to protect the public, maintain the integrity of the legal profession, and protect it from the influence of a vicious member, may discipline or disbar the offender. *Page 321
Whether this proceeding rests on the provisions of the Code or upon the general control exercised by the Supreme Court over attorneys at law, there was no power to require the appellant to pay a debt to the petitioner, even if contracted in a fiduciary capacity, unless it sprang directly from the relation of attorney and client. (Code Civ. Pro. §§ 14, 2266 et seq.) The court could not acquire jurisdiction to proceed summarily against the appellant, even with his express consent, for the non-payment of a debt contracted by him merely as agent. While he was bound by his consent to liquidate the claim through the medium of a motion instead of an action, he was not bound by his consent that the court might order him to pay it, when liquidated, with the necessary result that if he did not obey the order he would become guilty of contempt and subject to imprisonment without bail until he complied with it. Upon the recovery of a judgment against him for moneys received in a fiduciary capacity, merely as agent, an execution against his person could be issued, provided an execution against his property had been returned unsatisfied. Under these circumstances, however, upon giving an undertaking he would be entitled to the liberties of the jail and could thus avoid actual imprisonment. (Code Civ. Pro. § 149.) After a comparatively short time, upon making an assignment and otherwise conforming to the statute, he could be discharged even from constructive imprisonment. (Id. §§ 2200-2218.) Imprisonment for contempt in failing to obey an order of the court, however, is never constructive but always absolute, and the person subject to it must be actually confined in jail. Can a man by agreement incur this liability? Can he stipulate himself in jail? While he can stipulate facts can he stipulate power to imprison himself? Can he by consent give the court jurisdiction to deprive himself of liberty, when without such consent it would have no such power? The answer to these questions is obvious. Imprisonment is a form of slavery, and the law will not permit a man to enslave himself even by the most solemn engagement. The right to personal liberty is so sacred that he cannot part with it by consent, although he may *Page 322 forfeit it by crime. He cannot barter away his liberty, nor be deprived of it without due process of law. He cannot give his own body in pledge nor consent that a court may imprison him unless he pays a certain debt. He cannot put himself in contempt by promising that a failure to do a certain thing may be punishable as for contempt when it would not otherwise be thus punishable. He cannot consent to be imprisoned any more than he can consent to be assaulted, or to forfeit one of his members, or a "pound of flesh." Such engagements cannot be enforced by any court, because security of the person is protected by the Bill of Rights against any violence unless inflicted by command of the law itself.
The appellant could lawfully consent to the liquidation of the claim of the petitioner against him and of his own against her, even in a proceeding founded on a petition and notice of motion. Hence we consider that he is bound by the concurrent action of the courts below in settling the amount of his indebtedness to the respondent, including as a part thereof the fees paid to the referee. All this he lawfully consented to and hence the liquidation is final so that she can proceed by action without further litigation as to amount. (Burnside v. Whitney,21 N.Y. 148; Cutter v. Cutter, 16 J. S. 470; S.C., 98 N.Y. 628;Diedrick v. Richley, 2 Hill, 271; New York Lumber W.W. Co. v. Schnieder, 119 N.Y. 475, 478.) To this extent, therefore, the action of the Supreme Court should be sustained. The appellant could not, however, lawfully consent to go to jail for non-payment, and that part of the order which might lead to that result cannot be sustained.
The orders of the courts below should be modified by striking out the provision requiring payment of the amounts found due and, as thus modified, affirmed, without costs in this court to either party.