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undisputed facts, that the alleged agreements could not be sanctioned by the court, as they tended to champerty and maintenance.

Those cases therefore do not reach the question before us, where, if the agreement is proven, it must be sanctioned by the court; and where the vital question is, Does such an agreement exist?

The ground upon which the court placed its decision in Ackerman v. Ackerman (ubi sup.), was that the power which the court exercises in the matter of an attorney's lien is an equitable one, in which the aid of a jury is not necessary and can not be demanded as a matter of right. In that case, however, it did not appear that any special agreement respecting the attor ney's compensation was alleged, or that the objection was taken to the matter being tried by the court. But upon the general power of the court to entertain the motion, the decision is explicit, as well as that there is no right of trial by jury.

In two English cases the court refused to try on a motion of this nature, a disputed question of fact. In Hodson v. Terrall (2 Dowl. O. S. 264), the motion was for the attorney to show cause why he should not pay over his client's money, and the client averred that he had a special agreement with the attorney fixing his compensation. This the attorney denied, and the court (BAYLEY B.) say: "I think we can not interfere. You must go before a jury who will be competent to decide whether there was such an agreement." In the other case (Beal v. Langstaff, 2 Wils. 371), the motion was to require an attorney to perform a parol promise to indemnify bail, and the court say: "This is only a breach of a parol promise, and we can not interfere in a summary way.'

One or two cases in this State indicate opinions which are claimed to be favorable to the objection of the attorney in this case.

Opinion of the Court, by MONELL, Ch. J.

The power of the court (which, however, is firmly upheld) it is claimed is qualified in Bowling Green Sav. Bank o. Todd (52 N. Y. 489), and must be deemed to be limited by the decision, to matters as to which there is no dispute as to the facts. The court say (p. 493) "the practice in this State has been uniform to allow an attachment when the attorney retaius money in his hands that justly belongs to his client." But there the court determined, as a matter of law, upon undisputed facts, as in Merritt v. Lambert (ubi sup.), that the lien which the attorney claimed did not exist. And now the converse is claimed, that if the facts had been in dispute, the court would not have entertained the motion.

In Haight v. Holcomb (16 How. Pr., 173) the defendant moved to set aside an execution on the ground that the judgment was settled. The execution was issued by the attorney for his costs. In the course of the opinion the court say: "Should there be a dispute between the attorney and his client, as to what the agree ment was, and to what amount it extended. I know of no short remedy to which an attorney is entitled, by which to avoid settling that dispute in the usual way, and by the usual tribunals."

And

And in Fox v. Fox (24 How. Pr. 409) the motion was to compel the plaintiff to pay his attorney and counsel, and a special promise was alleged (but which was denied), under which the services were rendered. it was objected that the court could not, npon a motion, determine the question. The court say: "If there be no short way of accomplishing this, there remains the usual way by direct action for that purpose. Indeed this seems to me the true mode of proceeding, when there is a dispute as to what the contract is, or in regard to the amount which the attorney is entitled to demand under it, and also where the amount of compensation is by express agreement

Opinion of the Court, by MONELL, Ch. J.

made to depend on the value of the services, and is unliquidated."

None of these cases, however, assert an absolute right of trial by jury. Sitting as a court in the exercise of its equity powers, it had the right to refuse to enter tain the motion, and to put the applicant to his action. when the disputed question could be determined by a jury. In the same manner, a court of equity may try any question of fact arising in an equity action; or it may upon motion and framed issues send it to a jury. And I do not understand any of the cases as deciding otherwise than that it rests in the sound discretion of the court, whether it will entertain a motion of this nature, where a question is at issue, which it is claimed by one or both of the parties, should be tried by a jury. And that is the extent of the meaning of the judges in the cases I have cited. In their judgment they were proper cases for a jury. And the judge who decided this case at special term, could have said the same, and sent the plaintiff to her action, and a jury. And such disposition of the matter would not have been disturbed.

But it does not follow, from any of the cases, and no such opinion is intimated. that there was any such right of a jury trial, as would deprive the court of its jurisdiction to entertain the motion.

The power which a court has over its officers is to prevent them from, or punish them for committing acts of dishonesty or impropriety, calculated to bring contempt upon the administration of justice (In re Pasclal, 10 Wall, 483). In that case the court say, the ground of the jurisdiction thus exercised is the alleged misconduct of the officer. The question is not merely whether the attorney has received the money, but whether he has acted improperly and dishonestly, in not paying it over. "If no dishonesty appears, the party will be left to his action." The motion, as in this ease, was to compel the attorney to pay over the

Opinion of the Court, by MONELL, Ch. J.

money, and the attorney set up his lien for compensation. In denying the motion, Justice BRADLEY placed the decision upon the ground that the attorney had the right to retain the money, if he had a fair and honest set-off; and that in retaining the money for the purpose of procuring a settlement of his claim, he had done nothing to call for the summary interposition of the court.

In that case, however, the power to entertain these motions is again fully recognized. But the court, in the exercise of its equity powers, admitting the justice of the attorney's claim, refused to try the question of his lien, on the motion, and put the party to his action. Not, however, as a matter of right, but as being a proper mode of determining the dispute in that case.

The whole question resolves itself into this: First, can the court exercise summary authority over its attorneys, to compel them to pay over the money of their clients? And, Second, can it, upon the motion, try any disputed question of fact, arising between an attorney and his client?

The first is determined by the large and uniform practice of the courts. And the second, by the consideration of the single question, whether it is a case in which the trial by jury was heretofore used?

The answers to these questions are adverse to the objection in this case.

The motion was addressed to the judicial discretion of the court below. We can not say, if we were now entertaining the motion and not reviewing the order, that we should not have felt constrained to have sent the plaintiff to her action, that the facts might go be fore a jury. But a mere difference of views on that subject is not ground for reversal of the order made.

There has been no abuse of discretionary power. Although the statute, under which this proceeding is had, is designed to punish attorneys for any mis

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behavior in office, or willful neglect or violation of duty, or disobedience of the process or lawful order of the court,--and the punishment may be a fine or imprisonment or both, as the nature of the case may require;— and although the severity with which the courts may deal with its officers, to punish them for the offenses enumerated in the statute, which is not restricted to a fine and imprisonment only, but may also be by removal from office (Matter of Bleakly, 5 Paige, 311), requires that all the constitutional rights of an attorney should be carefully guarded and protected;—and although such protection in due to him, not only nor so much, that his personal liberty may be imperiled, as that the charge involves his personal integrity and honor, and is calculated to deprive him of his clients, of the respect of his associates, and of the confidence of the court; yet the mode adopted upon this motion was not calculated to jeopard any of such legal rights, but was probably a more satisfactory manner of settling his differences with his client, than it would have been to have sent the case before a jury, whilst it also afforded him every reasonable protection against the penalties which the statute was intended to inflict.

If in answer to the claim of the client a defense was interposed which if sustained would justify the attorney in withholding his client's money, the court, until his claim upon it has been properly investigated and determined, would not invoke the power of the statute. And if, upon such investigation, the claim was found to be just, the court will protect the attorney and exempt him from the penalties of the statute.

The question is new, necessarily new, from the novel provision of the code which allows of an agreement to fix the measure of an attorney's compensation, and which may be at an agreed sum, or contingent upon success.

In the cases where the courts have proceeded sum