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in evidence in any other manner, the other party in answering it is bound by the usual rules of evidence. Botham v. Swingler, 1 Esp. N. P. C. 165., by Ld. Kenyon. Thus where, in an action by the assignees of a bankrupt, the bankrupt was himself called and objected to, but stated that he had obtained his certificate, which he did not produce, Best C. J. ruled, that both his release and certificate must be produced; that it was not like the case of an objection raised by secondary evidence on the voire dire, which might be removed by the same description of evidence. Goodhay v. Hendry, M. & M. 319. In a similar case, Tindal C. J. said, “the difficulty is, that the objection does not arise upon the roire dire; it appears from the opening of the case for the plaintiffs
, and from the pleadings themselves, that the witness is a bankrupt; not merely from questions put to him when he comes into the box.” Anon, M. & M. 321. n. However, in Carlisle v. Eady, cited antè, p. 1041., Mr. Justice Park permitted the bankrupt to give parol evidence of his certificate and release, without producing them, though in that case the action was brought by the assignees, and therefore the incompetency of the bankrupt ap. peared by the record. And in Wandless, assignee of Marten, v. Cawthorne, Guildhall, Dec. 3. 1829, M. & M. 321., on the same point being made, Mr. Justice J. Parke said, he should decidedly overrule the objection: the certificate, however, was produced.
It is no exception against a person giving evidence for or against a prisoner, that he is one of the judges or jurors who is to try him. 2 Hawk. P. C. c. 46. § 83. And in the case of Hacker
, two of the persons in the commission for the trial came off from the bench, and were sworn, and gave evidence, and did go up to the bench again during his trial. Ibid.
But where a juror is called upon to give his evidence, he ought to give it upon oath openly in court, and not be examined privately by his companions. Bac. Abr. Evid. A. 2. 3 Blac. Com. 575. Kel. 12.
If the jury give a verdict on their own knowledge, they ought to tell the court so, that they may be sworn as witnesses ; and the fair way is to tell the court before they are sworn as jurors that they have evidence to give. Anon. 1 Salk. 405.
The question, as to whether a witness can be examined who has remained in court, notwithstanding a previous order made by the judge that the witnesses on both sides shall withdraw, will be considered hereafter. (Post, p. 1058, 1059.)
Judge or juror coinpetent.
Witness remaining in court afier an order to the contrary.
1. (2.) Df privileged Communications, and other Matters which s
aliitness may not disclose. Privileged com- A witness, when free from all the preceding objections to his munications.
competency, is to be sworn to speak the truth, the whole truth, and nothing but the truth. But this form of cath, 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 attorney,
solicitor, or counsel, and matters connected with the government of the country. (a)
The law attaches so sacred an inviolability to communications Between client between a client and his legal advisers, that it will neither oblige and attorney, or nor suffer persons so employed to reveal any facts confidentially
counsel. 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. Ld. Say and Sele's case, 10 Mod. 41. Wilson v. Rastall, 4 T. R. 759., in the judgment of Buller J. Sloman v. Herne, 2 Esp. N. P. C. 695. Rex v. Withers, 2 Camp. 578. Parkhurst v. Lowten, 2 Swanst. 194. 221. Richards v. Jackson, 18 Ves. 474. The privilege of not being examined on such subjects is the privilege of the client, and not of the attorney or counsel : 10 Mod. 40. Bull. N. P. 284, ; and it never ceases. “ It is not sufficient,” said Mr. J. Buller, 4 T. R. 759. “ to say that the cause is at 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. Rex v. Withers, 2 Camp. 578. (6)
The privilege is strictly confined to communications made to Rule contined counsel, solicitors, and attornies: 4 T. R. 758. Rex v. Duchess of to legal adKingston, 11 St. Tr. 246. No other, however confidential, or what- visers. ever be the relation or employment of the party intrusted, are privileged. Therefore all other professional persons, whether physicians, surgeons, or clergymen, are bound to disclose the matters confided to them: Ibid. 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 : Rex v. Sparkes, cited in Du Bonne v. Levette, Peake, N. P.C. 78., in which latter case Ld. 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 recent decision of the twelve judges, on a case reserved. (See Gilham's case, Ry. & M. C. C. R. 186., post, p. 1085.) So a steward, servant, or private friend, is bound to disclose à communication, however confidential : Vaillant v. Dodemead, 2 Atk. 524. Ld. Falmouth v. Moss, 11 Price, 455. So the banker of a party is bound to answer as to what his balance was on a given day: Loyd v. Freshfield, 2 C. & P. 325., coram Ld. Tenterden. And in a case where a clerk to the commissioners of the property-tax was required to prove the defendant to be a col. lector, and he objected, because he had taken an oath of office not to disclose what he should learn as clerk concerning the property
(a) It seems, however, to have once been thought necessary to vary the form of the oath on an occasion of this sort. In the case of Spark v. Middlelon, 12 Vin. Abr. Ev. B. a. 4. p. 38., 1 Keb. 505., Mr. Aylott, having been counsel for the defendant, desired to be excused to be sworn on the general oath as witness for the plaintiff to give the whole truth in evidence, which the court, after some dispute, granted, and that he should only reveal such things as he either knew before he was counsel, or that came to his knowledge since by other persons; and the particulars to which he was to be sworn were particularly proposed, viz. what he knew concerning the will in question, whether he knew any thing of his own knowledge.
(6) But if the client waive his privilege, the witness may be examined. Merle V. More, Ry & Mood. N. P. C. $90.
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 imArbitrator.
plied exception in the act: Lee v. Birrell, 3 Campb. 337. (a) Anarbitrator cannot be permitted to disclose, in an action for a malicious holding to bail, what transpired before him upon the examination of the parties themselves, or on an inspection of the plaintiff's books, upon the principle that the parties themselves could not have been examined in the former cause, nor the plaintiff compelled to produce his books : Habershon v. Troby, 3 Esp. 38., by Ld. Kenyon ; but he may be called to prove what matters were claimed before him on a reference: Martin v. Thornton, 4 Esp. 181., by Ld. Alvanley. 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 ob jection to his testimony: Slack v. Buchannan, Peake, N. P. c.6.
Westlake v. Collard, Bull. N. P. 236. Martin v. Thornton, 4 Esp. Interpreter. 181. A person who acts as interpreter (Du Bonne v. Lerette
Peake, N. P.C. 78.), or agent (Parkins v. Hawkshaw, 2 Stark. Clerk.
239.), between the attorney and his client, or the attorney's clerk ( Taylor v. Forster, 2 Carr 4. P. 195., Webb v. Smith, 1 Carr. & P. 337.), cannot be called on to reveal a confidential communication. For they stand precisely in the same situation as the attorney bimself, and are considered as his organs. So a barrister's clerk cannot be called to prove his master's retainer: Foote v. Hayne,
1 Ry. & Mood. N. P. C. 165. Person con- It has been held, that a person who is consulted confidentially on sulted as an at- the supposition of his being an attorney, when in fact he is not one, torney not being is compellable to answer. °Fountain v. Young, 6 Esp. 113. And
communications made to a person by profession an attorney, but Attorney not consulted as
not employed as an attorney in the particular business which is the such.
subject of inquiry, are not privileged, though they may have been made confidentially. Wilson v. Rastall, 4 T. R. 753. 760.; and
see post, p. 1047. What sort of
It now remains to be considered, what sort of communications coinmunica. made to an attorney, solicitor, or counsel by his client are entitled tions between to protection. A very eminent writer on the law of evidence, attorney and
(Phillips on Evidence, p. 134.) has laid it down, that the privilege client are privi- of the client is not confined to cases only where he has employed leged.
the attorney in a suit or cause, but extends to all such communications as are made by him to the attorney in his professional character and with reference to professional business. And this opinion has been so confirmed by subsequent authorities, that it may be considered as settled law, notwithstanding Ld. Tenterden on ta rious occasions qualified the rule by restricting it to communications
(a) It is said in Bull. N. P. 284., tha a trustee shall not be a witness to be tray the trust; and a case is cited, Holt v. Tyrrel, where the defendant pleaded to debt on bond, the statute of buying and selling offices, and upon the trial a witness was called to give an account upon whal occasion the bond was gires, and Lord C. J. Holl refused to admit bim, because he was privately intrusted by both parties to make the bargain, and to keep it secret. But this is contrary to the later authorities, and may be considered to have been over-ruled by the Duchess of Kingston's case, and Wilson v. Rastall, ubi supra.
made with reference to a pending or contemplated suit. (See Wadsworth v. Hamshaw, 2 Brod. & Bing. 5. n. (a). Williams v. Mundie, Ry. & M. N. P. C. 34. Clark v. Clark, i Mod. & Rob. 3.) This qualification was also recognized by Best C. J. in Broad v. Pitt. Mood. & Malk. 234. But in a later case, Doe v. Harris, 5 C. & P. 592., Mr.Justice J. Parke said, that the Lord Chancellor (Brougham) had recently consulted with the two Lord Chief Justices and the Lord Chief Baron, and they considered that the privilege was not limited in the way that was stated by Ld. Tenterden ; and the learned judge proceeded to state his own opinion that the privilege applied to all cases where the client applies to the attorney in his professional capacity. (See also the judgment of Ld. Brougham in Greenough v. Gaskell
, 1 Myl. & K. 100., where all the previous cases are collected and commented on.)
An attorney will not be allowed to produce a deed which has Attorney not been deposited with him confidentially in his professional charac- allowed to proter : and if the deed has been obtained out of his hands, for the duce docupurpose of being produced in evidence by another witness, it
ments, &c. decan
posited with not be received. Thus a copy of a deed which had been obtained him by his from one who had formerly been intrusted with the original in his pro- client. fessional character as an attorney, is not good secondary evidence against his client: Fisher v. Heming, MS. 1 Phil. Ev. 32., cor. Bayley J., who said, “ The attorney could not give parol evidence of the contents of the deed, so neither can he furnish a copy. He ought not to have communicated to others what was deposited with him in confidence, whether it was a writing or verbal communication. It is the privilege of his client, and continues from first to last.” (See also Copeland v. Watts, 1 Stark. N. P. C. 93.) So on a prosecution for the forgery of a promissory note, an attorney, who had acquired possession of the note in his professional character from the prisoner, was not compelled or allowed to produce it, although subpænaed so to do, and although he was not employed professionally for the prisoner at the trial, but was originally consulted about the note, for the purpose of suing the party upon it whose name was charged to be forged. Rex v. Smith, cor. Holroyd J. MS. 1 Phil. Ev. 132. So in the case of Rex v. Dixon, 3 Burr. 1687, cited by Ld. Ellenborough in Amey v. Long, 9 East, 185., it was held by Lord Mansfield, and the rest of the court, that an attorney, who had been served with a subpæna duces tecum out of the crown-office to produce certain vouchers which his client, a Mr. Peach, had exhibited and relied upon, before a master in chancery, and which subpæna had been served on the attorney in order to found a prosecution for forgery against his client, was not bound to produce these required vouchers. (a) A barrister Counsel. cannot be called to prove what was stated by him on a motion before the court. Curry v. Walter, 1 Esp. 456. (6) And the attorney- Attorney-ge
neral. (a) See also Laing v. Barclay, 3 Stark. 38., where it was held, by Abbott C. J., that a solicitor under a commission of bankrupt was not bound to produce the proceedings under the commission in a collateral action, wbere the production migbt tend to the detriment of his clients. See also Harris v. Hill, 3 Stark. N. P. C. 140., S. C. 1 Dowl. & Ry. N. P. C. 17. Rex v. Upper Boddington, 8 Dowl. Ry. 726.
(6) Cor. Eyre C. J., who said it was at the option of counsel whether he would give bis testimony or not. A court of equity will compel the production of a case submitted to counsel, but not his opinion on it. Preston v. Carr, 1 Younge of Jervis, 175.
To what facts an attorney may be exa. mined.
general, if questioned as to the reasons for filing an ex officio information, may refuse to answer. Rex v. Horne, Il St. Tr. 283.
An attorney may be examined like any other witness to a fact which he knew before his retainer, that is before he was addressed in his professional character: Cutts v. Pickering, 1 Vent. 197. Lord Say and Sele's case, 10 Mod. 40. i Phil. Ev. 136; or where he has made himself a party to the transaction: Dutsin v. Smith, Peake N. P. C. 108. Robson v. Kemp, 5 Esp. 52.; or where be is questioned to a collateral fact which he might have known without being intrusted as the attorney in the cause. Bull. N. P.984. 1. Phil. Ev. 136. Thus he may prove his client's handwriting though the knowledge was obtained from witnessing his execution of the bail bond in the action. Hurd v. Moring 1 Carr & P. 372., ruled by Abbott C. J. And he may be called to prove his client's identity. Studdy v. Saunders, 2 Dow. & Ry. 347. (But see Parkins v. Huckshaw, 2 Stark. N. P. C. 239.) Again, an attorney conducting : cause may be called and asked who employed him, in order to let in evidence of the declarations of the real party : Lery v. Pope, Mood. & Malk. 410., coram Parke J.: or whether be is in possession of a particular document, in order to let in secondary evidence of its contents : Bevan v. Waters, Ibid 235., coram Best, C. J. who cited a decision by Ld. Mansfield on the point. And if he is a subscribing witness to a deed, he may be examined concerning the execution. Doe v. Andrews, Cowp. 846. Robson v. Kemp, 4 Esp. 235. S. C. 5 Esp. 52.: For if an attorney puts his name to an instrument as a witness, he makes himself thereby a public man, and is no longer clothed with the character of an attorney: his signature binds him to disclose what passed at the execution of the instrument, but not what took place in the concoction and preparation of the deed: By Ld. Ellenborough, 5 Esp. 54. Or if the question be about a rasure in a deed or will, he may be examined whether he had ever seen such deed or will in other plight, for that is a fact of his own knowledge ; but he ought not to be permitted to discover any confessions which his client may have made to him on such head. Bull. N. P. 284.(a) so if the attorney were present when his client was sworn to an answer in chancery, upon an indictment for perjury, he would be a witness to prove the fact of taking the oath, for it is a fact in his own knowledge, and no matter of secrecy committed to him by his client. Bull. N. P. 284, 285. So the attorney of one of the parties may be examined as to the contents of a written notice which had been received by him in the course of a cause, requiring him to produce papers : Spencely v. Schulenberg, 7 East, 357. Eicke v. Nokes, Mood. & Malk. 303. : for the privilege only extends to confidential communications from the client, and not to those from collateral quarters, although made to him in consequence of his character as an attorney. (6) So an attorney who prepares deeds
(a) But he is not bound to speak to the particulars of a bill of exchange iatrusted to him by his client; for the existence of such a bill is not a mere facto but consists of circumstances which he came to be acquainted with from the delivery of the bill to him by his client. Brard V. Ackerman, by Lord Eixa borough, 5 Esp. 120.
(6) So (semble) a letter written by an attorney to his client, and produced with the client's signature endorsed upon it, is evidence against the client. Asicrets of Meyer v. Sefon, 2 Stark. N. P. C. 274. So an admission of a debt made by