Stage v. Stevens

1 Denio 267 | Court for the Trial of Impeachments and Correction of Errors | 1845

By the Court, Beardsley, J.

It was urged that since the passage of the act to abolish imprisonment for debt, passed in 1831, an attorney cannot be held to bail in an action for the recovery of money collected by him ; and on this principle, it is understood, the order to hold to bail was vacated. In this I think the commissioner erred. The first section of the act {Laws 1831, f. 396) provides, that “ no person shall be arrested or imprisoned,” in any suit or proceeding for the recovery of money due upon contract, and in its general terms would therefore embrace this case. But the next section declares that said exemption “ shall not extend to ” actions for any misconduct or neglect “ in any professional employment.” The present case is of that character: the money was collected hy the defendant in the course of professional duty, and his omission to pay the same over to his ■ client was professional misconduct and neglect. He was bound to pay over the money as a professional duty imposed upon him, and which the court might enforce by attachment. The case in question was a proper'one for holding the defendant to bail, and the order for his discharge must be vacated.

What was said in Bohanan v. Peterson, (9 Wend. 503.) was not called for by that case, and we think cannot be regarded as the true meaning of the statute.

The order for the discharge of the defendant must be vacated, with costs to be paid by him,

Ordered accordingly.