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2 of this court on a motion to set aside the order previously made; that the fact of the appearance and consent of Arick, and not the precise wording of the stipulation, was the fact to which the attention of respondent was directed when he prepared, subscribed, and swore to the affidavit.
A judgment against the respondent will deprive him of personal and property rights. Unless we are clearly satisfied of respondent's guilt we ought not to remove or suspend him from the practice of his profession. As we are not so satisfied, we decline to strike his name from the roll. We feel bound to remark that it is always somewhat dangerous to swear to the "legal effect" of a matter in the form of a positive averment. It is certainly less hazardous to give the language of a written instrument, or (if the instrument is lost or beyond the affiant's control) to state that the exact language is not remembered, and to give the substance of the language; that is, to use language which conveys the precise idea expressed by the words contained in the instrument. The facile and ready method of meeting an issue by affidavit of an attorney in the action or proceeding is not to be encouraged. The present proceeding will have subserved a useful purpose if it shall have a tendency, in any degree, to bring about a discontinuance of the frequent and unnecessary manufacture of affidavits; a practice to which resort is had, too often carelessly, and sometimes, we fear, recklessly.
The application for the disbarment of respondent is denied.
We concur: MYRICK, J.; Ross, J.; MCKEE, J.; MORRISON, C. J.; THORNTON, J.
SUSPENSION AND DISBARMENT OF ATTORNEY. The power of the court to admit an attorney implies the power to strike off his name from the roll, (People v. Goodrich, 79 Ill. 148;) and the court may either suspend or expel. Ex parte Burr, 2 Cranch, C. C. 379. Such power, in a summary manner, should be exercised with great caution. Rice v. Com. 18 B. Mon. 472. Under the Illinois statute the circuit court can only suspend; the power to disbar is vested in the supreme court. Winkelman v. People, 50 Ill. 449. An attorney is an officer of the court, and may be removed for misconduct, after opportunity to be heard. Penobscot Bar v. Kimball, 64 Me. 140. Any court of record having jurisdiction may suspend an attorney for causes specified in the statute. Mattler v. Schaffner, 53 Ind. 245. Where the statute prescribes the causes, courts cannot disbar for causes not therein specified, (Ex parte Smith, 28 Ind. 47; see Redman v. State, Id. 205;) but in Michigan the court may suspend or remove attorneys for other causes than those specified in the statute. In re Mills, 1 Mich. 392. The application to ⚫ strike the name of an attorney from the rolls should be denied where the evidence is conflicting as to whether he received the information which he disclosed, and which was alleged as misconduct. People v. Barker, 56 Ill. 299. An order to suspend or remove for contempt should not be made unless the offense is of a gross or serious nature, (Watson v. Citizens' Sav. Bank, 5 S. C. 159;) and the matter must be established before the rule is issued, (State v. Kirke, 12 Fla. 278;) and the rule must be served on the party, (Id.) The precise cause must appear in the order for suspension. State v. Watkins, 3 Mo. 337. An order of a territorial supreme court cannot be vacated by mandamus from the United States supreme court. Ex parte Secombe, 19 How. 9. The authority of the supreme court will not be exercised unless the conduct of the court below was irregular or flagrantly improper. Ex parte Burr, 9 Wheat. 529. The district court has no authority to disbar an attorney'admitted in the supreme court; and mandamus will issue to restore him. People v. Turner, 1 Cal. 190. See People v. Justices, 1 Johns. Cas. 181. In Indiana an appeal is given by statute, but such appeal will not authorize the attorney to do anything which he is forbidden to do by such judgment.
Walls v. Palmer, 64 Ind. 493. The appellate court should not refuse to review the decision, although it will not reverse unless a plain case is shown. In re Wool, 36 Mich.
GROUNDS FOR DISBARRING. An attorney may be suspended or disbarred for any matter showing his unfitness to practice in the courts, whether it be a criminal offense or creates a civil liability or not. State v. Winton, 5 Pac. Rep. 337. See ex parte Wall, 2 Sup. Ct. Rep. 569; S. C. 13 Fed. Rep. 814. Ex parte Cole, 1 McCrary, 405. The circuit court has inherent power to disbar an attorney for an assault upon the judge thereof, on notice to such attorney, and opportunity to be heard in his defense. Beene v. State, 22 Ark. 149; Ex parte Heyfron, 7 Miss. 127; Saxton v. Stowell, 11 Paige, 526; People v. Green, 3 Pac. Rep. 65, 374. Unprofessional or disrespectful conduct, though amounting to contempt, will not always justify disbarring him, (Withers v. State, 36 Ala. 252;) but an attorney who appears in court armed with deadly weapons, (Sharon v. Hill, 24 Fed. Rep. 726,) or takes as a notary and antedates a jurat and acknowledgment of a justice of the peace, and then tries the case before the justice, (Nordin v. Arctander, 1 N. W. Rep. 43,) or obtains a change of venue by means of an affidavit forged by him, may be disbarred. Ex parte Walls, 64 Ind. 461. So, for fraudulently obtaining a license to practice, (In re Lowenthal, 3 Pac. Rep. 657;) or for violation of his official oath by not conducting himself in his office with fidelity to his client; or for unprofessional conduct, even when such conduct does not actually injure the client. Farlin v. Sook, 1 Pac. Rep. 124; Strout v. Proctor, 71 Me. 288. Collusion by a husband's attorney with the wife, to manufacture deceptive evidence to enable the husband to procure a divorce, is professional misconduct. In re Gale, 75 N. Y. 526. Advertising to procure divorces without compliance with the requisites of the law is a ground for striking his name off the roll, (People v. Goodrich, 79 Ill. 148;) so, where the attorney substituted the name of his client for his own in an affidavit to procure alimony, his name was stricken from the roll. People v. Leary, 84 Ill. 190. Taking legal papers from the files of the court must be stated with sufficient particularity to enable accused to make his defense. People v. Allison, 68 Ill. 151. Erasing the word "not," in a letter from a judge advising another judge to allow bail for one indicted for murder, is a ground, (Baker v. Com. 10 Bush, 592;) so for withholding from his client and his client's administrator money collected by him, (People v. Cole, 84 Ill. 327; Kepler v. Klingensmith, 50 Ind. 434; S. C. 41 Ind. 341; In re Treadwell, 7 Pac. Rep. 724; Jeffries v. Laurie, 23 Fed. Rep. 786;) or for refusal to pay over money to client, (People v. Palmer, 61 Ill. 255;) or for fraud and deceit practiced towards his client or a third party. Slemmer v. Wright, 6 N. W. Rep. 181; In re Temple 23 N. W. Rep. 463. The institution of proceedings by one attorney from improper motives, and without just grounds, to disbar another, is misconduct. In re Kelly, 62 N. Y. 198. On being convicted of a felony an attorney loses his right to practice in court without an order of the supreme court removing him. In re Niles, 5 Daly, 465. He may be disbarred for the bribery of a witness, (Walker v. State, 4 W. Va. 749;) or for a false oath taken, or any unprofessional statement made without a prior conviction for perjury, (Perry v. State, 3 G. Greene, 550;) or for any fraudulent conduct, although not so gross as to be criminal,'(U. S. v. Porter, 2 Cranch, C. C. 60 ;) or for obtaining money by false pretenses in matters intrusted to him. People v. Ford, 54 Ill. 520. The offense need not be such as to subject him to indictment, but its character must be such as shows him unfit to be intrusted with the powers of the profession. Baker v. Com. 10 Bush, 592. Discreditable acts, if not connected with his duties, will not give the court jurisdiction, (Dickens' Case, 67 Pa. St. 169;) as attempting to make an opposite attorney drunk. Id. Indulgence in vices not affecting his personal or professional integrity is not sufficient ground. Baker v. Com., 10 Bush, 592. So ignorance of the law is not a good cause. Bryant's Case, 24 N. H. 149. An attorney cannot be disbarred for refusing in presence of the court to make answer in writing to a rule, upon the ground of punishing the refusal as a contempt. Ex parte Robinson, 19 Wall. 505. Contempt of process and refusal to appear before an examiner is not sufficient ground, (Com. v. Newton, 1 Grant, Cas. 453;) but a threat of personal chastisement, made to a judge out of court, is ground for striking his name off the rolls. Bradley v. Fisher, 13 Wall. 335; People v. Green, 3 Pac. Rep. 65, 374. Contempt and gross misbehavior in office generally are distinct offenses. Ex parte Bradley, 7 Wall. 364.
PROCEEDINGS TO DISBAR. Proceedings to disbar for commission of a criminal act may precede criminal prosecution therefor. In re Treadwell, 7 Pac. Rep. 724; Ex parte Wall, 2 Sup. Ct. Rep. 569; Ex parte Walls, 64 Ind. 461; Watson v. Citizens' Sav. Bank, 5 S. C. 159. The North Carolina statute requires a prior conviction upon an indictment and verdict, and it takes away the common-law power to strike from the rolls. Kane v. Haywood, 66 N. C. 1. See Ex parte Schenck, 65 N. C. 358. Such proceedings are designed to afford a remedy to the creditor to collect the money from the attorney. In re Browne, 2 Colo. 553. An attorney's license cannot be suspended except on accusation and notice, and a day in court. State v. Start, 7 Iowa, 499. An order to show cause is the improved mode of procedure. In re Percy, 36 N. Y. 651. In a summary proceeding for malpractice the fact must be known to the court by having occurred in
its presence. Walker v. Com., 8 Bush, 86. In ase of malpractice out of the presence of the court, the proceeding is by complaint or ormation made on oath. Walker v. Com., 8 Bush, 86. For any other misconduct than contempt he can only be held on specific charges, and he is entitled to a full defense and an appeal. Dickinson v. Dustin, 21 Mich. 561; In re Mills, 1 Mich. 392. The court must order an information against him and inflict the punishment, on the plea of guilty, found on such information. Fisher's Case, 6 Leigh, 619. An order to show cause why he should not be struck from the rolls may be based on a decree against him on a charge of fraud or gross abuse of confidence, or it may be incorporated in the decree itself. In re Wool, 36 Mich. 299; In re Percy, 36 N. Y. 651. In analogy to the limitation of prosecutions for misdemeanors there must be a limit to the time for filing informations against attorneys. People v. Allison, 68 Ill. 151. In proceedings to disbar on the ground of fraudulently procuring admission, defendant is entitled to a change of venue if the judge is prejudiced. In re Peyton, 12 Kan. 398. A proceeding upon charges preferred by a private prosecutor is a special proceeding, wherein a change of venue for prejudice of the judge may be granted. State v. Clarke, 46 Iowa, 155. Proceeding to strike an attorney from the roll for alleged fraud is a quasi criminal case, and no appeal lies from the judgment, (State v. Tunstall, 51 Tex. 81;) but an appeal lies from a summary order, issued without compliance with the statute. Ex parte Trippe, 66 Ind. 531. See Thomas v. State, 58 Ala. 365. The charge should be clearly supported by the evidence. In re —, 1 Hun, 321. The grounds of complaint must be brought to the notice of the supreme court at general term, in the first instance, which will direct an investigation and a motion if deemed proper. In re Brewster, 12 Hun, 109. For malpractice the case should be free from doubt. People v. Harvey, 41 Ill. 277. Notice of grounds of complaint and an opportunity to be heard must be given to the accused. Ex parte Robinson, 19 Wall. 505. Where motion is made to suspend and issue joined, defendant is entitled to a trial by jury. Reilly v. Cavanaugh, 32 Ind. 214. In such proceedings, where the charges are denied, the common-law rules of evidence apply. In re Eldridge, 82 N. Y. 161. For fraudulently misleading his client, there must be proof of the fraud tending to mislead. Barker's Case, 49 N. H. 195.
(67 Cal, 505)
FRESNO ENTERPRISE Co. v. ALLEN and others. (No. 9,862.)
BOND OF CORPORATE OFFICER-LIABILITY OF SURETIES ON.
Where a corporate officer gives a bond for the due performance of his duties during his term of office for one year, the sureties on such bond are not liable for a defalcation occurring after such term of office has expired, as the bond expires with the term; and it makes no difference that the same officer was re-elected after such expiration of his term.
Department 1. Appeal from superior court, county of Fresno. James Grant and Wallace & Hastings, for appellant.
Garber, Thornton & Bishop, for respondent.
MCKINSTRY, J. The action is on a bond executed by the defendants, and which is in words and figures as follows:
"Know all men by these presents, that we, William H. Allen, as principal, and James E. Bowe and John Haley, as sureties, are held and firmly bound to the Fresno Enterprise Company in the penal sum of ten thousand dollars, to the payment of which we bind ourselves and each of us.
"Given under our hands and seals the first day of September, 1881. "The condition of this obligation is such, that, whereas, William H. Allen is secretary of the Fresno Enterprise Company, and, as such, has or may have the custody of the moneys of said corporation, now, if said William H. Allen shall duly preserve and keep all such funds as may come under his control or into his possession, and pay over to said company all such funds as he may not pay out in the due and lawful course of business, then this obligation to be void; otherwise to remain in full force.
"WM. H. ALLEN.
"J. E. BOWE.
The complaint is:
"(1) On the fourth day of June, A. D. 1881, William H. Allen was appointed by the board of directors of said Fresno Enterprise Company secretary of said corporation, to hold his office for one year and until his successor should be elected and qualified; that by the by-laws of said company the board of directors were empowered to appoint and remove at pleasure all officers, agents, and employes of the corporation, fix their tenure of office, prescribe their duties, fix their compensation, and require security for faithful service. "(2) That at the annual election of officers in June, 1882, no successor to said Allen was elected, but he was continued as secretary until the further order of the board. A successor was elected and qualified in June, 1883.
"(3) That after said Allen's election, and about the first of September, 1881, said Allen, as principal, and said Bowe and Haley, as his sureties, executed and delivered to said company their joint and several bond or writing obligatory for the payment to said corporation of the sum of $10,000; and said bond had a condition thereunder written which recited: That, whereas, said Allen is secretary of the Fresno Enterprise Company, and, as such, has or may have the custody of the moneys of said corporation, now, if said Allen shall duly preserve and keep all such funds as may come under his control or into his possession, and pay over to said company all such funds as he may not pay out in the due and lawful course of business, this obligation to be void; otherwise, to remain in full force.' And, for breach of the condition of said writing obligatory, the plaintiff says that, on the twenty-fifth day of December, 1882, and on divers days and times between that day and the first of May, 1883, the said Allen received and had in his possession of the moneys of said company the sum of $4,500.60 which he has neglected and refused to account for and pay over to the treasurer of said company, the proper officer to receive the same, and, upon demand made, neglects and refuses to account for or pay over the same to the proper officers of said company; that said Allen, as secretary, was the custodian of said bond, and has refused to deliver the same to his successor in office, and has lost or destroyed the same. plaintiff tenders to the defendant such indemnity for the loss of said bond as this court may require, and annexes hereto a substantial copy thereof, marked Exhibit A.
"(4) By reason of the premises, the said defendants, and each of them, have become liable, and are bound to pay, to said plaintiff the said sum of $4,500.60, with interest from the first of May, 1883, for which sum, with interest and costs, the plaintiff asks judgment."
The court below sustained a demurrer to the complaint, on the ground that the same shows the defendants are not liable on the bond for any part of the moneys mentioned in the complaint, because it appears from said complaint that said moneys were not received or in the possession of said William H. Allen "prior to the twenty-fifth day of December, 1882." Official bonds are to be construed with reference to the statutes bearing on them; and the liability of the obligors on such bonds has been considered very fully in several cases in this court, notably in Hubert v. Mendheim, 64 Cal. 213. But, as was said in that case with reference to bonds given to individuals and private corporations: "Such matters are the subject of private contract, by which the parties may bind themselves in any manner or to any extent not violative of public policy or positive statute." These private contracts are to be interpreted, like other private contracts,
with reference to their language and the circumstances under which they were entered into.
On the fourth day of June, 1881, the defendant William H. Allen was appointed by the board of directors of the corporation plaintiff, secretary, "to hold his office for one year and until his successor should be elected and qualified," but subject to and in view of a bylaw of the company which provided that the board of directors should have power "to remove at pleasure all officers, agents," etc. The obligors knew, when they executed the bond, that William H. Allen would continue as secretary until June 4, 1882, unless he was sooner removed by the board of directors. They knew, also, that he might continue to serve after the fourth of June, 1882, and until his successor should be "elected and qualified." It is difficult to give any meaning to the word "qualified," in the connection in which it is used. It does not appear that by the charter or by-laws the secretary was obliged to take an oath, (passing the circumstance that such an oath, if required simply by a by-law, would be extrajudicial,) or that the charter or by-laws required the secretary to give bond. Yet a particular secretary could be required at any time to give bond as a condition to his retention of the office; and if the defendants voluntarily executed the instrument sued on, it was executed and delivered for a sufficient consideration. By its terms they were bound for the safekeeping and proper disposition of the company's money which came into William H. Allen's hands. During what period? Up to the fourth of June, 1882, (unless he should be removed,) and until his successor should be elected or appointed. It is true, the principal obligor did not have a vested right in the office for a definite period; but it is clear the contract was made with reference to the term to expire on the then next fourth of June, or when the successor should be named. The term was for a definite time, not rendered entirely indefinite by the circumstance that the directors expressly retained the right to remove in the mean time; a right to dismiss for sufficient cause would have been implied had it not been expressly reserved.
There is no averment in the complaint that by the by-laws or charter the secretary's term of office is one year, or one year and until, etc., but only that the defendant was so appointed. His successor might be appointed to hold at the pleasure of the appointing power simply. If another person had been so appointed at the expiration of the year, there would remain no doubt that, on such appointment being made and the office turned over to the appointee, the liability of the obligors would have ceased as to time. William II. Allen could be and was appointed his own successor. In June, 1882, he "was continued as secretary until the further order of the board." The complaint avers that no successor was appointed, but the averment goes for naught if the order of the board was such appointment. The bond was executed with reference to the possible continuance of the defendant as secretary to June 4, 1882, and for a reasonable