OF WITNESSES.

CHAPTER THE FIFTH.

WHAT FACTS WITNESSES MAY DISCLOSE, AND WHAT ARE PRIVILEGED COMMUNICATIONS, p. 578. HOW WITNESSES ARE ΤΟ BE EXAMINED, p. 597.- HOW THE CREDIT OF WITNESSES MAY BE IMPEACHED, p. 612.. - HOW MANY WITNESSES ARE SUFFICIENT, p. 636.

HOW THE ATTENDANCE OF WITNESSES IS TO BE COMPELLED - AND WHAT

AND REMUNERATED, p. 636. — OF ACCOMPLICES, p. 642.
WITNESSES ARE COMPETENT TO GIVE EVIDENCE, p. 653.

SEC. I.

Of Privileged Communications, and other Matters which a Witness may not Disclose.

A WITNESS is to be sworn to speak the truth, the whole truth, and nothing but the truth. But this form of oath, absolute as it seems, must be taken with an implied reservation, that the witness is not to disclose any facts within his knowledge, which, by the law of the land, founded on considerations of justice, and of public policy, he is forbidden to make known. Of such a nature are professional communications between a client and his solicitor, or counsel, and matters connected with the government of the country. (a)

The law attaches so sacred an inviolability to communications between a client and his legal advisers, that it will neither oblige nor suffer persons so employed to reveal any facts confidentially disclosed to them at any period of time, neither after their employment has ceased by dismissal or otherwise, nor after the cause in which they were engaged is entirely concluded. (b) The privilege of not being examined on such subjects is the privilege of the client, and not of the solicitor or counsel; (c) and it never ceases. It is not sufficient,' said Buller, J., (d) to say that the cause is at

(a) See Spark v. Middleton, 12 Vin. Abr. Ev. B. a, 4, p. 38, 1 Keb. 505.

41.

(b) Lord Say and Seale's case, 10 Mod.

Wilson v. Rastall, 4 Term Rep. 753, in the judgment of Buller, J. Sloman v. Herne, 2 Esp. N. P. C. 695. R. v. Withers, 2 Campb. 578. Parkhurst v. Lowten, 2 Swanst. 194, 221. Richards v. Jackson, 18 Ves. 474.

(c) 10 Mod. 41. Bull. N. P. 284. But if the client waive his privilege, the witness may be examined. Merle v. More, R. & M. N. P. C. 390. But he is not considered as waiving it by calling his solicitor as a wit1 Phill. Ev. 163, citing Waldron v.

ness.

(d) 4 T. R. 759. The first duty of a solicitor is to keep the secrets of his clients,' per Gaselee, J. Taylor v. Blacklow, 3 B. N. C. 235. He ought, therefore, 'to consider his lips sealed with a sacred silence' as to all confidential communications, per Tindal, C. J., ibid. And see Petrie's case and Madam du Barre's case, cited 5 T. R. 756. A solicitor, therefore, who without his client's consent discloses a confidential communication, is 'guilty of a gross breach of a great moral duty,' per Vaughan, J., Taylor v. Blacklow, and is liable to an action

an end; the mouth of such a person is shut for ever.' And it makes no difference that the client is not in any shape party to the cause before the Court. (e)

The privilege is strictly confined to communications made to counsel, solicitors, and attorneys. (f) No others, however confidential, or whatever be the relation or employment of the party entrusted, are privileged. Therefore all other professional persons, whether physicians, surgeons, or clergymen, are bound to disclose the matters confided to them. (g) Thus where the prisoner, being a Papist, had made a confession before a Protestant clergyman of the crime for which he was indicted, that confession was permitted by Buller, J., to be given in evidence on the trial, and the prisoner was convicted and executed. (h) So a confession. to a Popish priest has been held not to be privileged. (i) So a

for any injury that may arise from such
disclosure. Ibid. Or he may be punished
by the court to which he belongs, admitted
arquendo. Ibid. Two learned barons, how-
ever, in Hibberd v. Knight, 2 Ex. R. 11,
expressed an opinion that if an attorney
chose voluntarily to disclose a confidential
communication, the Court would receive the
evidence. These observations were merely
obiter dicta, and seem to have arisen from
an erroneous impression of the facts in
Marston v. Downes, 6 C. & P. 381. 1 A. & E.
31. The former of these reports correctly
states what occurred on the trial, and cer-
tainly the attorney did not volunteer any
statement of the contents of any deed; and
upon the observations in Hibbard v. Knight
being cited in Newton v. Chaplin, 10 C. B.
356, Maule, J., said, 'I presume that the
learned barons did not mean that the at-
torney may in all cases betray his own
client.' The matter, however, seems to be
set at rest by Cleave r. Jones, 7 Exch. 421,
as it was there held that an attorney could
not give in evidence on his own behalf a
confidential communication in
an action
against his client. In Volant v. Soyer, 13
C. B. 231, Jervis, C. J., raised a doubt
whether the 14 & 15 Vict. c. 99, had not
taken away the ground of objecting to the
production of a document on the ground of
its having been received professionally; but
Maule, J., said that The right, which a
client has always enjoyed, of being pro-
tected from a breach of professional con-
fidence, remains the same. I think the
protection still continues unimpaired, so far
as regards the prohibition to the attorney to
give evidence of the contents of, or to pro-
duce documents belonging to, his client."

(e) R. v. Withers, 2 Campb. 578.
(ƒ) 4 T. R. 758. R. v. Duchess of King-
ston, 11 St. Tr. 246. 1

Livette, Peake R. 78, in which latter case Lord Kenyon said he should have paused before he admitted such evidence. But the point, that confessions to clergymen are not privileged, has been fully established by the decision in R. v. Gilham, ante, p. 493. In Broad v. Pitt, 3 C. & P. 518, Best, C. J., after recognising this decision, said, 'I, for one, will never compel a clergyman to disclose communications made to him by a prisoner, but if he chooses to disclose them I shall receive them in evidence.' In R. v. Griffin, 6 Cox, C. C. 219, the chaplain of a workhouse was called to prove certain conversations he had had with the prisoner as to injuries she had inflicted on her child, for whose murder she was being tried, when he visited her as her spiritual adviser; Alderson, B., 'I think these conversations ought not to be given in evidence. The principle upon which an attorney is prevented froni divulging what passes with his client is because, without an unfettered means of communication, the client would not have any proper legal means of assistance. The same principle applies to a person, deprived of whose advice the prisoner would not have proper spiritual assistI do not lay this down as an absolute rule, but I think such evidence ought not to be given.' No case was cited.

ance.

(i) Butler . Moore, M'Nall. Ev. 253, as cited 1 Phill. Ev. 165. In R. v. Hay, 2 F. & F. 4. Hill, J., committed a Roman Catholic priest for refusing to state from whom he received a stolen watch, which he stated he had received in connection with the confessional. But the priest was not asked to disclose anything that had been stated to him in the confessional, and therefore no question arose as to that. Where a witness had taken an oath to a prisoner that he would not reveal what the prisoner should tell him, Patteson J., said, 'These oaths are very wrong and wicked, but still

AMERICAN NOTE.

1 In America a confession to a Roman Catholic priest is privileged but not one made to a Protestant clergyman. Smith's

case, 2 Roger's Record, 77. Simons v. Gratz, 1 Penn. Rep. 417. C. v. Drake, 15 Mass.

161.

banker, (j) steward, servant, or private friend, is bound to disclose a communication, however confidential. (k) And where a clerk to the commissioners of the property-tax was required to prove the defendant to be a collector, and he objected, because he had taken an oath of office not to disclose what he should learn as clerk concerning the property-tax, except with the consent of the commissioners, or by force of an Act of Parliament, it was held that he was bound to give his testimony, and that the evidence which a witness was called upon to give in a court of justice was to be considered as an implied exception in the Act. (1) An arbitrator may be called to prove what matters were claimed before him on a reference: (m) he cannot, however, be admitted or called on to give evidence of any concessions made by one party during the reference for making his peace and getting rid of the suit, although, as to regular admissions by the parties, there is no objection to his testimony. (n) A person who acts as an interpreter, (o) or agent, (p) between the solicitor and his client, or the solicitor's clerk, (7) cannot be called on to reveal a confidential communication; for they stand precisely in the same situation as the solicitor himself, and are considered as his

organs.

It has been held that a person who is consulted confidentially on the supposition of his being a solicitor, when in fact he is not one, is compellable to answer. (r) And propositions which the solicitor of one party has been professionally entrusted to make to another party may be proved by another witness who was present when they were delivered. (8) And a solicitor may be called upon by a plaintiff to state a conversation in which the defendant proposed a compromise to the plaintiff, although the witness attended on that occasion as solicitor for the defendant. (t) So where the plaintiff and defendant went together to the plaintiff's attorney's office, and had a conversation in the presence of the attorney's clerk, it was held that this conversation was not a privileged communication, but might be proved by the clerk, and that a letter written by the clerk in consequence of instructions given by the defendant in the course of that interview was admissible, as that was an act done. (u) So where an

they are not binding, and every person,
except counsel and attorneys, is compellable
to reveal what they may have heard; and
counsel and attorneys are only excepted
because it is absolutely necessary, for the
sake of their clients, that communications
to them should be protected;' and admitted
the confession. R. v. Shaw, 6 C. & P. 372.
(j) Lloyd v. Freshfield, 2 C. & P. 329.
() Vaillant v. Dodemead, 2 Atk. 524.
Lord Falmouth v. Moss, 11 Price, 455.

(1) Lee v. Birrell, 3 Campb. 337.

(m) Martin v. Thornton, 4 Esp. 181, by Lord Alvanley. Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418; 41 L. J. Ex. 137.

(n) Slack v. Buchannan, Peake N. P. C. 6. Westlake v. Collard, Bull. N. P. 236. Martin v. Thornton, 4 Esp. 181. Bull. N. P.

284.

(0) Du Barrè v. Livette, Peake N. P. C. 78, S. C. 4 T. R. 756.

(p) Parkins v. Hawkshaw, 2 Stark. 239. (g) Taylor v. Forster, 2 C. & P. 195. See Webb v. Smith, 1 C. & P. 337.

(r) Fountain v. Young, 6 Esp. 113; sed quare, whether this would be so where the client has acted bond fide and without negligence.

(s) Gainsford v. Grammar, 2 Campb. 10.

(t) Griffith v. Davies, 5 B. & Ad. 502. And per Parke, J., This is not a confidential disclosure, but an open communication from one adversary to another, witnessed by the attorney of one party. In Gainsford v. Grammar, the Lord Chief Justice might properly reject the attorney's evidence of what his client said to him, but not his statement of what he himself afterwards said to the opposite party.'

(u) Shore . Bedford, 5 M. & G. 271.

act is done in pursuance of a bargain between two parties and in the presence of the solicitors of each of them, the communication made. by one party to his solicitor, relating to that act in the presence of the other party and his solicitor is not privileged. The defendant, in the presence of his solicitor, and one Clark and his solicitor, Vallance, signed a note, and it was held that Vallance might prove that the note was given by the defendant to Clark in consideration of his withdrawing all opposition to the defendant's passing his last examination as a bankrupt. (w) And communications made to a person, by profession a solicitor, but not employed as such in the particular business which is the subject of inquiry, are not privileged, though they may have been made confidentially. (x)

Where two parties employ the same solicitor, a communication by one to him in his common capacity is not privileged, but may be used by the other. (y) And where a party employs a solicitor who is also employed by the other side, the privilege is confined to such communications as are clearly made to him in the character of his own solicitor. (z)

It now remains to be considered what sort of communications made to a solicitor or counsel by his client are entitled to protection. A very eminent writer on the Law of Evidence (a) has laid it down, that the privilege of the client is not confined to cases only where he has employed the solicitor in a suit or cause, but extends to all such communications as are made by him to the solicitor in his professional character and with reference to professional business. And this opinion has been confirmed by a case (b) where it was held that an attorney, to whom an application had been made to draw an assignment of goods, which he declined to do, could not be allowed to disclose that circumstance, a question having arisen whether an assignment subsequently drawn by another attorney, was fraudulent. And in that case Richardson, J., said, that if an attorney were to be consulted on the title to an estate, he would not be at liberty to dis

(w) Weeks r. Argent, 16 M. & W. 817. (x) Wilson v. Rastall, 4 T. R. 753, 760, and see post, p. 591. In a trial at Nisi Prius at Westminster, an attorney who had drawn an agreement between a sheriff and his under-sheriff, being produced to prove a corrupt agreement between them, was not compelled to discover the matter, and per Holt, C. J., it seems to be the same law of a scrivener; and he cited a case where upon

a

covenant to convey as counsel shall advise, et consilium non dedit advisamentum being pleaded, conveyances made by the advice of a scrivener being tendered and refused, was allowed to be good evidence upon this issue; for he is a counsel to a man with whom he will advise, if he be instructed and educated in the way of practice, otherwise of a gentleman, parson, &c., Anonymous, Skinn. 404. And in Turquand r. Knight, 2 M. & W. 98, it appeared that Knight had applied to an attorney to procure him a loan of money, and it was contended that where an attorney was employed to raise money, that was not such an employment as brought him within the rule; and

that here he was acting as a scrivener only. Lord Abinger, C. B., said, As to the point of this document being brought to him in the character of a scrivener, Lord Nottingham laid it down that he would not compel a scrivener to disclose the communications made to him.' Harvey v. Clayton, 2 Swanst. 221 n.

(y) Baugh v. Cradocke, 1 M. & Rob. 182, Patteson, J. Cleve v. Powell, 1 M. & Rob. 228, Lord Denman, C. J., saying, 'either party has a right to the disclosure."

(2) Perry v. Smith, 9 M. & W. 681, per Parke, B.; in which case it was held that the same attorney having been employed upon the sale of an estate by the vendor and purchaser, a communication from the purchaser to the attorney, asking him for time to pay the purchase money, was not privileged. See Griffith v. Davies, per Parke, J., supra, note (t).

(a) Phill. Ev. 7th edit. 143.

(b) Cromack . Heathcote, 2 B. & B. 4. But see R. v. Cox & Railton, 14 Q. B. D. 153, post, p. 592.