Mrs. Kane invoked the power of the Court, as one of its suitors, to compel by process of attachment, E. G-. Haywood, Escp, one of the attorneys of the Court to pay to her a large sum of money, to-wit: $4,496, ascertained by clerk’s report, which he had received as her attorney of record, and on demand failed to pay.
A rule was therefore made, that said Haywood show cause, &c. To this he put in a long and detailed answer, admitting that he had received the money and failed to pay it to Mrs Kane, but denying that he had applied it to his own use, and averring that the money had been lost; in what way he was unable to say, for he had been “ mad drunk ” during a period of eighteen months, and supposes that he burnt up the money by throwing it into the fire, or he may have (put it away in *28some secret place to keep himself from destroying it, and never has been able to find it.
This answer was deemed insufficient, and the respondent was put under a rule to pay the money into Court, or show cause why he should not be arrested. To this he answered that after making every effort to comply with the rule, it was out of his power to do so, he was totally insolvent, had nothing to support himself and his wife and children, could get no aid from his friends and relations and had no credit. That in failing to perform the order he intended no contempt of the Court and deeply regretted his inability to do justice to his client.
This answer was held by the Court to be sufficient. The respondent was not arrested and imprisoned, because the Court was satisfied, that it was not in his power to pay the money into Court. If a party is ordered to execute a deed and refuses to do it, he will be kept in jail until he executes the deed; for that is a thing which he can do. So, if an attorney, by false representations, procures his client for an inadequate consideration, to assign the cause of action, he will be put in jail and kept there until he executes a release and a re-assignment, but when a man is ordered to pay money into Court, and swears, that after every effort, it is out of his power to pay the money or any part of it, (in the absence of any suggestion to the contrary) that is an end of the proceeding, for the Court will not require an impossibility, or imprison a man perpetually for a debt, he having purged himself of the contempt.
After this rule was discharged, another rule was applied for by some of the members of the bar — that “ E. G-. Haywood be attached and further dealt with according to law,” for matter set out in the prior proceedings : the rule was granted, and the matter has been fully discussed.
On the opening of the argument “ In the matter of E. Gr. Haywood, ex j?a/rte” the attorneys when requested by the Court, to state what further proceeding, was asked for, de*29manded, “ tbat said E. G. Haywood be disbarred and deprived of his license to practice as an attorney of the Courts in this State.” We have been aided by full and able arguments on ■ both sides of the question. But for the Act ratified 4th April, 1871, we should feel it our duty to disbar E. G. Haywood, and strike his name from the roll of attorneys at law.
So, the matter turns upon the construction and true meaning of the Act of 1871; sec. 4, is in these words : “no person who shall have been duly licensed to practice law as an attorney, shall be disbarred of deprived of his license and right so to practice law, either permanently or temporarily ; unless he shall have been convicted or in open Court confessed himself guilty of some criminal offence, showing him to be unfit to be trusted in the discharge of the duties of his profession.”
The words “convicted or in open Court confessed himself guilty of some criminal offence,” have acquired a technical meaning, to convey the idea that the party has been convicted by a jury, or has in open Court, when charged upon an indictment, declined to take issue, by the plea “not guilty,” and confessed himself guilty, and at the mercy of the Court. This is obvious by the sense in which these words are used in the section under consideration. The tenor of the whole act shows, that such was its purpose. The preamble sets out, that doubts have been expressed as to the construction of the Act of 1869, by reason of which the Judicial authority have asserted, that other acts of contempt, not specified in said act, still exist at the common law, and the Courts “have assumed to exercise jurisdiction over the same, and to impose other punishments therefor” (to-wit, disbarring or striking from the roll).
The statute, then goes on with a manifest intention to restrict the power of the Judiciary, just as far as the Constitution permits the General Assembly to do, and confines the neglects and omissions of duty, malfeasance, &c., &., to the specified particulars in the Act of 1869, and for fear of evasion *30by the Courts, it is enacted, “if there be any parts of the common law now in force in this State, which recognize other acts, neglects, malfeasances, &c., &c., the same are hereby repealed and annulled.
Then comes section 4, by which it is enacted not that the attorney may be disbarred, if he be convicted of a contempt or if he confesses himself guilty in open Court, supposing a trial by the Court for a contempt, but “unless he shall hme been convicted, or (shall have) confessed himself guilty in open Court of a criminal offence, using words in the past tense, and assuming a conviction to have been had by the verdict of a jury, or by confession in open Court when charged upon a bill of indictment. The purpose of the statute is so plain, that “he who runs may read.”
Mr. Phillips argued that the word “convicted” is sometimes used in the sense of a conviction by the Court, and cited “Yates case,” 6 Johnson, 338, and “ Yates vs. Lansing, 9 Johnson, 396, in which the word “conviction” is used in that sense. But note, there the matter is spoken of as a conviction by the Court of a contempt, here it refers to a conviction of some criminal offence, which can only be by the verdict of a jury or by confession, and note further, that if the section under consideration, means a conviction by the Court for a contempt, as was the course before, the statute effects bo change in the law, and makes a great parade for no purpose.
Mr. Moore on the argument, gave it, as his ©pinion, that an attorney was guilty of a criminal offence as a misdemeanor, for “misbehaviour in any official transaction,” and took the position that the respondent could be dealt with as one “who had confessed himself guilty of a criminal offence.”
Thé same reasoning is applicable to this position, as we have used in reference to one who shall have been convicted of a criminal offence, with this additional consideration, the confession in this instance was not voluntary as when one charged upon a bill of indictment confesses his guilt in open Court; *31but the respondent was forced to it; had he refused to answer on oath, he must have been imprisoned until he did so. Under these circumstances, to use his confessions as establishing guilt, would be in effect to compel him to criminate himself on oath.
Eor this kind of inquisitorial proceeding, there is no precedent in the Courts of any country, which enjoys the rights guaranteed by “magna charta
We declare our opinion to be, that the Act of 1871 takes from this Court its common law power, and that the Court now has no power to disbar an attorney, unless he shall have been convicted, (by a jury) or (shall have) in open Court confessed himself guilty of some criminal charge, showing him unfit to be trusted in the discharge of the duties of his profession.
The constitutionality of this statute, with certain savings in respect to the inherent rights of the Court, is settled by ex parte Schenck, 65 N. C., 253. This is not a direct contempt, within the savings made by that decision, but a constructive contempt, made so, by the common law' to enable the Court to purge the bar of unworthy members. That common law right is taken away and the power of the Court is restricted to particular circumstances, after a conviction or confession upon indictment. We have no disposition to exceed the limits prescribed by that statute : the proceedings will be suspended, to the end that, this Court may take further action should it become necessary ; however painful the duty may be, to order the name of one of its attorneys to be stricken from the roll, the Court will perform it, should the case be brought within the meaning of the statute, in such cases made and provided:
Its exercise was not asked for, but it was said on the argument, the Court had the power to punish the respondent, by fine and imprisonment, under section 2 of the Act of 1869, for misbehaviour as)an attorney in an official transaction, under paragraph 8, section 1.
If it was clear, that the Court had the power ' to punish by fine and imprisonment'for the mere sake of punishment, a con-*32gbrudme consequential contempt like that under consideration ; it might be questioned, whether this Court, which was not created for the punishment of criminal offences, should, on mere motion, inflict the punishment, after the proceeding to disbar has been' suspended, to await further preliminary steps, should any be had, in the Superior Court. There is no doubt that a party may be doubly dealt with, and sometimes trebly ; for instance, if an attorney commits murder in the presence of the Court, he may instantly be fined and imprisoned for this direct contempt, he may be indicted, convicted and executed, and before execution his name may be struck from the roll, after the manner of the age of chivalry, when the spurs of a Knight attainted, were struck off before execution, to the end that the order might not be put under disrepute, by his suffering a disgraceful death while he was a Knight, But ours is a different case. The respondent as an attorney of the Court, received the money, is not able to account for it, and fails to pay it over to his client, but as .there is no proof or admission that he wilfully and corruptly applied it to his own use, it is a clear case for disbaring at the common law, but if he is punished by imprisonment, at the end of thirty days he comes out of jail, and walks into Court entitled to all of the rights and privileges of one of its officers.
The question as to the power of the Court is not free from difficulty. If a man refuses to execute a deed when he is ordered to do so, imprisonment is a fit and proper remedy, so, if a man insults a Judge while on the bench, such punishment is fit and proper ; but where there is a moral delinquency showing an attorney to be an unworthy member of the bar, then imprisonment is not an appropriate remedy for the evil.
In ex parte Moore 63 N. C., 397 and ex parte Biggs 64 N. C., 202, we had occasion to examine this subject fully, and our conclusion was, that as fine and imprisonment did not furnish a fit and proper remedy for the case of an attorney who by reason of moral delinquency or for other cause, had shown *33himself to be an un worthy member of the profession, such cases were not provided for by the Act of 1869, nor that the common law power of the Court, could still be exerted.
The Act of 1871 takes from the Court this common law power to purge the bar of unfit members; except in specified cases, and it fails to provide any other power to be used in its place, it is a disabling and not an enabling statute; the whole purpose seeming to be, to tie the hands of the Court, so, when our power is taken away the Court' is not at liberty to fall back upon another which it bad before adjudged tó be ineffectual to accomplish the end proposed ; indeed the Court could not do so on mere motion, with a proper regard to its self-respect, and without evincing what might be justly considered, a pertinacious purpose, to press the matter of contempt, and if not allowed to do it in one way, to do it in another, however unfit the latter may be, to effect its purpose of preserving the purity of the legal profession.
Pee Curiam.Let the proceeding in the matter of E. Gr. Haywood be suspended.