To what facts an attorney may be examined.

general, if questioned as to the reasons for filing an ex officio information, may refuse to answer. Rex v. Horne, 11 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. 1 Phil. Ev. 136; or where he has made himself a party to the transaction: Duffin v. Smith, Peake N. P. C. 108. Robson v. Kemp, 5 Esp. 52. ; or where he is questioned to a collateral fact which he might have known without being intrusted as the attorney in the cause. Bull. N. P. 284. 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. Harkshaw, 2 Stark. N. P. C. 239.) Again, an attorney conducting a cause may be called and asked who employed him, in order to let in evidence of the declarations of the real party: Levy v. Pope, Mood. & Malk. 410., coram Parke J.: or whether he is in possession of a particular document, in order to let in secondary evi dence 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. Eiche v. Nokes, Mood. & Malk. 303.: for the privilege only extends to con fidential communications from the client, and not to those from collateral quarters, although made to him in consequence of his character as an attorney. (b) So an attorney who prepares

deeds

(a) But he is not bound to speak to the particulars of a bill of exchange in trusted to him by his client; for the existence of such a bill is not a mere fact, 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 Elen borough, 5 Esp. 120.

(b) 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. Assignées of Meyer v. Sefton, 2 Stark. N. P. C. 274. So an admission of a debt made by

which are granted on an usurious consideration, may be called as a witness to prove the usury: for that does not come to his knowledge in the character of an attorney, he being as it were a party to the original transaction. Duffin v. Smith, Peake, N. P. C. 108. by Ld. Kenyon. And where an action on a promissory note had been compromised by the defendant's paying part of the money, and giving a warrant of attorney to confess judgment for the residue, and in the interval between the time when the warrant of attorney was given, and the time the money became due according to the defeasance thereof, the plaintiff told his attorney in the suit that he was glad it was settled, for that he had not given consideration for the note, and he knew it was a lottery transaction: it was held, that the attorney was admissible to prove this conversation in an action to recover back the money. Cobden v. Kendrick, 4 T. R. 432. The communication, said Ld. Kenyon, was not made by the client in confidence as instructions for conducting his cause; on the contrary, the purpose in view had been already obtained, and what was said was in exultation to his attorney for having before deceived him as well as his adversary, and for having obtained his suit. Again, a witness may be called upon by the plaintiff to state a conversation in which the defendant proposed a compromise to the plaintiff, although the witness attended on that occasion as attorney for the defendant. Griffith v. Davies, 5 B. & Adol. 502. So where two parties have one attorney, a communication by one to him in his common capacity is not privileged, but may be used by the other. Baugh v. Cradocke, 1 Mood. & Rob. 182. coram Patterson J., S. P. Cleve v. Powel, Ibid. 228. (See also Ripon v. Davies, 2 Nev. & M. 310.)

tions between attorney and client not privileged if not professional.

The privilege is also confined to communications to the attorney Communicain his character of attorney; and, therefore, a communication made to him or question asked him by his client, not for the purpose of getting his legal advice, but to obtain information as to a matter of fact, is not privileged. As when a client asked his attorney whether he could safely attend a meeting of his creditors, called on the attorney's suggestions, and the attorney advised him to remain at his office for the present, and he accordingly remained there two hours to avoid being arrested; it was held that the attorney might prove all these facts, in order to shew an act of bankruptcy, in an action by his client's assignees. Bramwell v. Lucas, 2 B. & C. 745. So in the case of Annesley v. Ld. Anglesea, 9 St. Tr. 391., before the barons of the exchequer in Ireland, 1743, it was held, that a conversation which passed between Ld. A. and his attorney twenty years ago, respecting the prosecution of the plaintiff for murder, was not privileged, since it was not matter of professional confidence.

ation of an at

torney.

If an attorney or counsel be called by his own client to give evi- Cross-examindence, he is not privileged from cross-examination on the same matter as to which he was examined in chief, although it were a confidential communication made professionally; but the cross-examination must not extend beyond that matter. Vaillant v. Dodemead, 2 Atk. 524.

There are, besides these professional communications, a number

an attorney to the adverse party, by direction of his client, is not privileged. Turner v. Railton, 2 Esp. 474.

Informers.

Agent of go

vernment or

police.

Official communications.

of cases of a particular description, in which, for reasons of public policy, information is not permitted to be disclosed. Courts of jus tice will not permit witnesses to be asked the names of those from whom they receive information as to frauds on the revenue: By Dallas C.J., in Home v. Bentinck, 2 Brod & Bing. 162. Hardy's case, 24 How. St. Tr. 753. (a) In all the trials for high treason of late years, the same course has been adopted; and if parties were willing to disclose the sources of their information, they would not be suffered to do it by the judges: 2 Brod. & Bing. 162. "If the name of an informer," said Mr. Justice Buller, in Hardy's case, "were to be disclosed, no man would make a discovery, and public justice would be defeated." And this privilege not only protects the actual informer himself, but those questions which tend to the discovery of the channels by which the disclosure was made to the officers of justice, are not permitted to be asked. Thus a person who has been employed to collect secret information for the executive government, or for the service of the police, is not allowed to reveal the name of his employer, or the nature of the connexion between them: 24 How. St. Tr.753.: or the names of any persons to whom he has communicated his information for the purpose of its being transmitted; 24 How. St. Tr. 811.: whether those persons were magistrates, or concerned in the administration of govern ment, or were merely the channel through which information was conveyed to government: by Abbott J., in Rex v. Watson, 2 Stark. N. P. C. 136. Stone's case, as cited by Lord Ellenborough, Ibid.

Upon the same ground the attorney-general of Upper Canada was not allowed to be asked as to the nature of a communication made by him to the governor of the province: Wyatt v. Gore, Holt. Ň.P.C. 299., ruled by Gibbs C. J. So the orders given by the governor of a foreign colony to a military officer under his command, ought not to be produced: Cooke v. Maxwell, 2 Stark. N.P.C.185. So Abbott C. J. refused to admit in evidence the report of a military court of inquiry, in an action of libel by an officer, respecting whose conduct the court had been appointed to inquire; and his decision was confirmed on error in the Exchequer Chamber: Home v. Lord F. C. Bentinck, 2 Brod. & Bing. 130. And Lord Ellenborough would not permit the contents of a letter, written by an agent of government to Lord Liverpool, then secretary of state, or his lordQuestions con- ship's answer, to be produced as evidence: Anderson v. Hamilton, 2 Brod, & Bing 156. n. (b). In Watson's case, an officer of the Tower of London was not allowed to prove that a plan of the Tower, produced by the defendant, was accurate; 2 Stark. N. P. C. 148.

trary to state policy.

Transactions of privy council.

In the case of the seven bishops, the clerk of the privy council was compelled to state what passed in the council chamber, and even what was said by the king himself, although the counsel for the crown objected to it: 4 St. Tr. 346. And the same evidence was allowed in Lord Straffords' case: 1 St. Tr. 723. But in Layer's case, 6 St. Tr. 288., it seems to have been considered that the minutes taken before the privy council were not to be divulged. And the two other cases above cited were decided under the strong feelings which the circumstances of the times had produced, and

(a) But where a person officiously interferes to inform any of the constituted authorities of alleged abuses, the communication is not privileged; and if untrue, may be considered malicious and actionable. Robinson v. May, 2 Smith, 3.

the latter in particular has been considered as a very unwarrantable departure from law and justice: 1 Phil. Ev. 274.

A clerk attending upon a grand jury shall not be compelled to Grand jury. reveal that which was given them in evidence: 12 Vin. Abr. Evidence, B. a. 5., and the jurors themselves are bound by oath not to disclose what passes before them: but it has been held that a grand juryman may be called to prove who was the prosecutor of an indictment; for it is a question of fact, the disclosure of which does not infringe on his oath: Sykes v. Dunbar, Selw. N. P. 1059., per Kenyon C. J.

A witness, who was a member of the house of commons, was not House of allowed by Lord Ellenborough to be asked as to the expressions or commons. arguments which another member had made use of in the house; for, said his lordship, it would be a breach of duty in the witness and a breach of his oath, to reveal the councils of the nation; but as to the fact of the plaintiff's having taken part in the debate, he was bound to answer: Plunkett v. Cobbett, 5 Esp. 137. 29 How. St. Tr. 71,72.

I. (3.) How Witnesses ought to be examined, and what Duestions they may be asked and compelled to answer.

He who affirms the matter in issue, whether plaintiff or defendant, ought to begin to give evidence: Litt. 36. The counsel of that party that doth begin to maintain the issue, ought to conclude. Tri. per pairs. 220.

Before a witness is examined, he must be sworn in open court. The evidence both for and against a prisoner ought to be upon oath; and if a peer be produced as a witness, he ought to be sworn: 3 Keb. 61. Lord Preston was committed by the court of quarter sessions for refusing to be sworn to give evidence to the grand jury on an indictment of high treason; and on his being brought by habeas corpus into the K. B., Holt C.J. said it was a great contempt, and that had he been there he would have fined him, and committed him till he paid the fine; but being otherwise he was bailed. 1 Salk. 278.

The proper method of administering the oath, and the objections which may be made previous to the administration of it, have already been considered (antè, p. 1020). And the proper time and mode of objecting to the competency of a witness, whether on the voire dire, or at a later stage of the trial, have been discussed in the first section of this title, antè p. 1040.

In cases of life, no evidence is to be given against a prisoner but in his presence: 2 Hawk c. 46. s. 1.

tions.

After a witness has been regularly sworn, the party who has Examination in called him proceeds to examine him in chief; respecting which chief. examination the most important rule is, that leading questions must Leading quesnot be put to the witness; that is, questions which, being material to any of the points of the issue, plainly suggest to him the answer he is expected to make. But this objection is not allowed to be applied if the question is merely introductory, and one which, if answered by yes or no, would not be conclusive on any of the points of the issue; for it is necessary to a certain extent to lead the mind

of the witness to the subject of the inquiry: Nicholls v. Dowding and Kemp, 1 Stark. N.P.C. 81.

Thus in an action of assumpsit against two, in order to prove that the defendants were partners, the first witness was asked, whether one of them had interfered in the business of the other. And upon this question being objected to as leading, Ld. Ellenborough ruled, that it might properly be asked. 1 Stark. N. P. C. 81. An affirmative answer to this question would not have been conclusive, for the defendant might have interfered, without making himself a partner. So where the witness, called to prove the partnership of the plaintiffs, could not recollect the names of the component members of the firm, so as to repeat them without suggestion, but said he might possibly recognize them if suggested to him, Ld. Ellenborough (alluding to a case tried before Ld. Mansfield, in which the witness had been allowed to read a written list of names) ruled, that there was no objection to asking the witness whether certain specified persons were members of the firm. Acerro v. Petroni, 1 Stark. N. P. C. 100. Upon the trial of De Berenger and others, before Ld. Ellenborough at Guildhall, for a conspiracy, it became necessary for a witness (a post-boy, who had been employed to drive one of the actors in the fraud) to identify De Berenger with that person; and Ld. Ellenborough held that, for this purpose, the counsel for the prosecution might point out De Berenger to the witness, and ask him whether he was the person. 1 Stark. Ev. p. 125. So in Rex v. Watson and others, 2 Stark. N. P. C. 128., tried at bar, upon its becoming ne cessary to identify three of the prisoners, it was objected, that the attention of the witness was too directly pointed to them; but the court held, that the counsel for the prosecution might ask in the most direct terms, whether any of the prisoners was the person meant and described by the witness. So where the plaintiff's son, being called as a witness for his father, was cross-examined as to the contents of a letter received by him from the plaintiff, which he swore had been lost, and mentioned some particular expressions as part of its contents; and witnesses were called on the part of the defendant to speak to the contents of the same letter; Ld. Ellenborough ruled that the defendant's counsel might ask one of them, who had first exhausted his memory by stating all he recollected of the letter, whether it contained the particular expressions sworn to by the plaintiff's son; for otherwise, said his lordship, it would be impossible ever to come to a direct contradiction. Courteen v. Touse, 1 Camp. 43.

When, upon cross-examination, a witness has denied having used particular expressions, or having made a particular statement to A. B., who is afterwards called on the part of the adverse party, for the purpose of contradicting the first witness, by proving that he actually did speak the words, or make the statement to him, it is very usual in practice for the counsel of the adverse party, in examining A. B. in chief as his own witness, to ask him, in the first instance, whether the former witness, in conversing with him, said so and so, or made such and such a statement. And accordingly, where a witness of the plaintiff's, in cross-examination, had been asked as to some expressions he had used, for the purpose of laying a foundation for contradicting him, and he had denied having used them, Abbott C. J. held, that the defendant's counsel, having