#### Livingston Satterlee *et al.,*plaintiffs and respondents, *vs.*Ulric De Comeau *et al.,*defendants and appellants.

1. A client cannot be punished as for a contempt, for an act done by his attorney without his direction, knowledge, privity or procurement.

2. To punish one for the act of another, is contrary to natural justice, and the established principles of law. A contempt committed by the attorney cannot, therefore, be treated as a contempt by the client.

(Before Robertson, Ch. J., and Jones, J.)

Heard September 3, 1868 ;

decided December 31, 1868.

Appeal from an .order adjudging the defendants to be in contempt.

A judgment having been obtained by the plaintiffs against the defendants, the defendants, on the 29th of May, 1868, procured from the chief justice, *ex parte,*a chamber order staying all proceedings on the part of the plaintiffs to enforce the judgment, and all proceedings with reference thereto. This order was served on the plaintiffs’ attorney on the 4th of June, 1868, by serving a certified copy. It appears there was nothing in the copy order so served indicating by what judge it was made; and the plaintiffs’ attorney supposed that Judge Garvin, who was then sitting at chambers, was the judge who made the *667order, and did not know or suppose, until seven days afterwards, that it had not been made by Judge Garvin.

On the 6th of June the plaintiffs obtained from Judge Garvin an order modifying the order of May 29th. This modifying order was written on the copy of the order of May 29th, which was served on the plaintiffs’ attorney, and so modified that order as to permit the making and service of an order in supp] ementary proceedings for the examination of the cashier of the Fourth ¡National Bank, with an injunction forbidding the bank from paying or transferring any property of the defendants. The modifying order, however, was not served until June 8th, at about 10 o’clock A. m.

The plaintiffs, however, on the same 6th June, upon ant affidavit, obtained from Judge Garvin an order requiring said cashier to appear and be examined concerning any property held by, or indebtedness due from, said bank to the defendants, and forbidding said bank to transfer or • make any other disposition of any property belonging to the defendants, not exempt' by law from execution, or in any manner to interfere therewith, until further order in the premises.

This order was served on the bank the same day, (June 6th,) at which time the hank had in its possession $2573 belonging to the defendants.

On the 8th of June, upon affidavits showing, among-other things, the service on the plaintiffs’ attorney of a certified copy of the order of May 29, and that notwithstanding the stay contained in that order, the plaintiffs had obtained an order from Judge Garvin for an examination of an officer of said bank, the defendants’ counsel procured from Judge Garvin an order requiring the plaintiffs and their attorney and counsel to show cause why they should not be punished for a contempt in violating said order of May 29th, and vacating the order made by *668him on June 6th, requiring the cashier of said bank to appear and be examined, and enjoining said bank from transferring any property, or paying over any money alleged to belong to the defendants.

The last order was served on the bank the next day, (June 9th,) and at the same time, or shortly after, the clerk of the defendants presented the defendants’ checks for the whole amount of their deposit, to wit, $2573, which was paid.

The alleged contempt consists in obtaining from Judge Garvin the order of June 8th, by an alleged concealment from him of the fact that he himself has modified the order of May 29th. To make out such concealment the plaintiffs rely on the affidavit of one of their attorneys, and also on the fact that the affidavits on which the vacating order of June 8th was obtained, state that the order of 6th June was obtained in defiance of the order of 29th May, and contain no allusion to the modifying order.

In the affidavit of the plaintiffs’ attorney thus relied on, he swears that he is informed and believed (from statements made by the defendants’ attorney, and by Judge Garvin in the course of proceedings in court, and from a copy of an affidavit served on him by the defendants’ attorneys, and purporting to have been sworn to by one of them on the 11th of June) that said defendants’ attorney, after being served with the modifying order, obtained from Judge Garvin the vacating order of June 8th, by stating that the stay of proceedings contained in the order of May 29th had been violated, without stating that that order had been modified by him, Judge *Garvin;*all of which he, said defendants’ attorney, well knew, and also knew that if the fact of such modification had been brought to the judge’s notice, he would not have granted the order of June 8th; that said defendants’ attorney intentionally concealed said fact of the modification, for the purpose, &c.; *669and that the order of June 8th was not served until June 12th.

This affidavit neither gives the statements by which the affiant says he was informed of the facts to which he swears on information and belief, nor is there any affidavit sworn to by one of the defendants’ attorneys on the 11th of June, contained in the papers. The affidavit, however, states in reference to the affidavit of Johnson and of one of the defendants’ attorneys, (both of which were sworn to June 8th,) “ such affidavits state ‘ that said order’ (meaning the stay of proceedings) ‘was duly served on the 4th day of June, 1868; but in defiance thereof, on the 6th day of J une, 1868, the plaintiffs obtained an order from his honor, Judge Garvin, for the examination of an officer of the Fourth National Bank,’ &c.; and I am informed and believe that Judge Garvin was induced to make his order of June 8th by said statement that the plaintiff was proceeding in defiance of the stay of pi’oceedings, made in said affidavits and by the defendants’ attorney verbally, when the said attorney well knew and intentionally concealed the fact that the plaintiffs were proceeding under, and strictly in conformity to Judge Garvin’s own order of June 6th.” The affiant, however, does not give any of the sources of his information, other than the affidavit of one of the defendants’ attorneys, sworn to June 8th, or the substance of any conversation in which such information was imparted.

The affidavit of one of the defendants’ attorneys, sworn tó June 8th, (thus referred to,) is contained in the papers, and in such the defendants’ attorney swears “that said order (meaning the stay of proceedings) was duly served on the 4th of J une, 1868, but in defiance thereof, on the 6th of J une, the plaintiff obtained an order from his honor, Judge Garvin, for the examination of an officer of the 4th FTational Bank,” &c.

*670The defendants’ attorney positively swears that he exhibited the order of modification to Judge Garvin when, he applied for the vacating order of June 8th, and explained the whole matter to him.

It appears that the- papers on which the order of June 8th was obtained were prepared prior to that day, and that the orders of modification were not served until about 10 o’clock a. m. of June 8th, just as the defendants’ attorney was going to court to procure the order which he obtained on that day; while the order of injunction on the- bank, which was vacated by the order of June 8th, was served on the bank two days before (June 6th.) Both the defendants, in an affidavit made July 3d, 1868, swear that they had no knowledge of the character of the legal proceedings taken by their counsel with reference to the proceedings against the said bank, and had no connection therewith, directly or indirectly; that they are entirely ignorant as to the process or proceedings by which they were enabled to draw out the money from the bank, further than that an order permitting it to be drawn had been obtained by their attorneys, and that the money so drawn out has been paid over to their customers and creditors.

One of the plaintiffs’ attorneys makes an affidavit to the effect that on the 18th June, 1868, he called on the defendants, showed them a certified transcript of the judgment, told them he was the plaintiffs’ attorney and authorized to make the demand, and demanded that they should apply to the payment of the judgment the said sum o‘f §2573, drawn as above stated from the bank; that they refused to make such application, but did not deny that they had possession of the money, and did not pretend either that the money was not theirs, or that any other person had any interest therein.

The motion to punish for contempt was granted, and an *671order was made adjudging the defendants guilty of contempt in that, by deceit and abuse of the process and proceedings of the court, they wrongfully and in contempt of the court procured the order of 8th June, vacating the injunction theretofore granted against the said bank, and served the same on said bank; and also adjudging the defendants guilty of contempt, in that by deceit and abuse of the process and proceedings of the court, under color of an order which, on the 8th June, 1868, had been wrongfully obtained by their attorney, they required said bank to pay to them said sum of $2573; also adjudging the costs and expenses of the proceedings to punish for contempt to amount to $500, and fining the defendants $3073, (being $2573 for the amount drawn from the bank and $500 for said costs,) to be paid to the clerk of the court and by him to the plaintiffs.

From this order the present appeal is taken.

G. *W. Cotterill,*for the appellants.

*T. M. North,*for the respondents.

*By the Court,*Jones, J.

I do not. perceive on what principle the client can be punished as for a contempt for an act done by his attorney, without his direction, knowledge, privity or procurement.

The proceedings to punish for a contempt are in their nature quasi criminal. The party adjudged guilty is to be *punished*either by fine or imprisonment, or both. By his act of contempt he subjects himself to a liability to punishment in either of those modes. If then the client is guilty of contempt for an act done by his attorney without his knowledge, &c., then he becomes liable to be punished by a fine or imprisonment, or both, for an act done by another without .his participation. Thus he may. be im*672prisoned simply as a punishment for the improper ox* illegal act 'done by another. It is no answer to say that the court has a discretion to impose on him simply a fine sufficient in amount to make good the damage done by the acts of his attorney; for the mode of punishment is discretionary, and if the- contempt of the attorney is a contempt by the client, then the client is liable to the same punishment as the attorney, and if under the circumstances the attorney would be punishable with imprisonment, it follows that the client would be also. This necessarily results from regarding the acts of the attorney as the acts of the client, for the purpose of contempt proceedings. And further, the infliction of a fine of only sufficient amount to compensate the aggrieved party is by way of punishment for the misconduct complained of, and as such imprisonment follows until payment be made. To punish one for the act of another is contrary to natural justice and the established pi’inciples of law. A contempt by the attorney cannot therefore be treated as a contempt by the client. *(Harris*v. *Clark,*10 *How. Pr. 427.)*

*I*therefore think the order below should be reversed, and an order made denying the motion, with $10 costs, without prejudice to the right to renew it on further affidavits', if deemed advisable, on payment of said $10, Ho costs to either party on appeal.