A. (e) Where declarations admissible. (See ante, AGENT, pl. 64; EVIDENCE, 247, 9, 250, 1, 263, 275, 80, 1, 300, 1, 2; post. pl. 82; E. (b)).

16. Plaintiff in replevin may examine the wife of the person under whom the defendant makes cognizance. Johnson v. Mason, 1 Esp. 89. Kenyon, C. J. 1794. Post, pl. 176.

B. (b) Arbitrator.

9. In an action for contribution against a co-surety, a declaration by the obligee as to the account to which he carried money paid him by the princi- 17. Where a cause is referred, and pal obligor is not evidence, unless the the arbitrator is empowered to examine declaration were made at the time of the parties and inspect their books, he payment, the obligee must be called. cannot disclose the result either of the Dunn v. Slee, Holt, 399. Park, J. examination or of the inspection, at a 1816. subsequent trial between the same par10. In trespass against A. for enter-ties. Habershon v. Trotter, 3 Esp. 38. ing premises under pretence of a war-Kenyon, C. J. 1799. rant to search, evidence may be given of what was said by B., a joint trespasser to induce A. to join in the trespass. Goding v. Gill. Ellenborough, C. J. Sittings after M. T. 1817.

B. (c) Barrister.

18. A barrister cannot be required to prove that a motion has been made by him, or upon what statement such motion was grounded. Curry v. Walter,

Sed vide March 83, pl. 136.

11. The debtor sends money to the house of the creditor. A servant takes it in, and returns it with an answer, 1 Esp. 457. Eyre, C. J. 1795. purporting to be from the master. This is evidence to go to a jury. Anonymous, 1 Esp. 349. Kenyon, C. J. 1795. See Pilkington v. Hastings, 5 Co. 76; S. C. better reported, Cro. El. 813.

B. PERSONS PRIVILEGED FROM

EXAMINATION.

B. (a) Husband and wife. (Post, 54, 138, 146, 194; Co. Litt. 66.)

12. Husband de facto may prove the marriage illegal, and bastardize the issue. Standon v. Standon and another, Peake, 32. Kenyon, C. J. 1791.

And see Standen v. Edwards, 1 Ves. Jun. 133, 4; Dig. 22, 3, 29, 1.

B. (d) Attorney.

(And see Bunb. 288, pl. 369.)

19. A communication made by client to attorney through the medium of an interpreter, cannot be disclosed by the latter. Du Barré v. Livette, Peake, 77. Kenyon, C. J. 1791.

20. Though the cause, in respect of which the communication was made, be at an end. Ibid.

Acc. Wilson v. Rastall, 4 T. R. 753, 9.

21. But the privilege does not extend to facts communicated to the interpreter in the absence of the attorney. Ibid.

13. Admission by wife of a debt arising out of a transaction conducted Acc. Wilson v. Rastall, ubi supra. by her as agent to her husband, is evi- And see Bul!. N. P. 284, 5. dence against him. Emerson v. Blon- 22. An attorney may be called to den, 1 Esp. 142. Kenyon, C. J. 1794. prove usury in a loan negotiated by him. 14. S. P. ruled in Palethorp v. Fur-Duffin v. Smith, Peake, 108. Kenyon, nish, 2 Esp. 511, n. Buller, J. 1783.

Sed vide Hall v. Hill, 2 Stra. 1094. 15. In an action by husband and wife for money due to the latter dum sola, an acknowledgment by her since the marriage, that the demand is unfounded, is inadmissible. Kelly and wife v. Small, 2 Esp. 716. Kenyon, C.

1799.

J.

C. J. 1792.

Acc. Bull. N. P. 284, 5.

Sed vide Anon. 1 Lord Raym. 733; S. C. Bull. N. P. 284.

23. Held, that an attorney cannot be called upon to acknowledge the receipt of a notice to produce papers. Read v. Passer, 1 Esp. 216. Kenyon, C. J.

1794.

431.

Sed vide Spenceley v. Schulenburgh, has ceased to employ, respecting a bu7 East, 357; S. C. 3 Smith, 325. siness formerly transacted for him by 24. And although he has a deed in such attorney, is not privileged. Ibid. his pocket, he is not bound to produce And see Cobden v. Kendrick, 4 T. R. it, unless a proper notice has been served. Doe d. Wartney v. Grey, 1 32. An attorney cannot disclose the Stark. 283. Ellenborough, C. J. 1816. particulars of a written instrument, the 25. The defendant's attorney may be knowledge of which he has acquired by called to prove an admission of the debt the delivery of such instrument to him made by him to the plaintiff by the di- by his client. Brard v. Ackerman, 5 rection of his client. Turner v. Rail- Esp. 120. Ellenborough, C. J. 1804. ton, 2 Esp. 474. Kenyon, C. J. 1796. 33. In an action between A. and B. 26. In an action against the sheriff the solicitor of C. may be called upon for an escape, the attorney for the ori- to produce C.'s title-deeds in his posginal defendant is not bound to answer session. Copeland v. Watts and anoany question relative to communications ther, executors of Gubbins, 1 Stark. 95. made to him by his client in the former Gibbs, C. J. 1816. cause. Sloman, executrix, v. Herne, 34. But the court will not permit knt. et alt. sheriffs of London, 2 Esp. 695. Kenyon, C. J. 1799.

27. A letter written by an attorney to his client, and indorsed by the latter, is evidence against him. Meyer's assignees v. Sefton and others, 2 Stark. 274. Holroyd, J. 1817.

them to be read to C.'s prejudice. Ibid.

35. A person to whom the defendant, under a mistaken supposition of his being an attorney, has acknowledged the cause of action, is bound to give evidence of such admission. Fountain administrator, v. Young, 6 Esp. 113. 28. Semble, that an attorney cannot Mansfield, C. J. 1807. be called upon by the plaintiff to di- 36. B. being indebted to A. directs vulge any matters which he acquired an attorney to carry certain proposals to the knowledge of when employed by A. with respect to his demand. Such both plaintiff and defendant. Robson attorney cannot disclose what passed and another, assignees of Blakey, v. between his client and himself on the Kemp and another, 4 Esp. 233. Ellen-occasion, though no suit was comborough, C. J. 1802. menced for several months afterwards. Gainsford v. Grammar, 2 Campb. 9. Ellenborough, C. J. 1809.

29. Where an attorney is a subscribing witness to a deed executed by his client, he is bound to state all that passed at the time relating to the execution of the instrument but not what took place in the course of the preparation of the deed. Robson and another, assignees of Blakey, v. Kemp and another, 5 Esp. 52. Ellenborough, C. J. 1803.

S. P. Sandford v. Remington, 2 Ves.

189.

And see Bowles v. Stewart, 1 Sch. & Lef. 209, 226; Bicknell v. Keppel, 1 N. R. 21; Leith v. Post, post, G. pl.

See Wilson v. Rastall, 4 T. R. 753. 37. But where the attorney refuses to be examined, declarations made by him are evidence against his client. Ibid.

And see Vaillant v. Dodomead, 2 Atk. 524; ante EVIDENCE, pl. 299, 301.

38. An attorney is not at liberty to disclose what is communicated to him confidentially by a client, although the latter be not in any shape before the court. Rex v. Withers and others, 2 Campb. 579. Ellenborough, C. J. 1811.

30. A person who becomes acquainted with a transaction merely through the Sed vide Madock v. Madock, 1 Ves. circumstance of his having been em-262; Bishop of Winton v. Fournier, ployed as attorney, cannot be called 2 Ves. 446. upon to disclose it, though not communicated to him by his client. Ibid.

But see Spenceley v. Schulenburg, 7 East, 357; S. C. 3 Smith, 325.

31. But a communication which a party makes to an attorney whom he

39. And, therefore, where the prosecutor has given evidence upon an indictment for forcibly entering his house, the attorney cannot be called to prove that the prosecutor, upon consulting him, gave a different account of the transaction,

And see Brown v. Neave, Wightw.

or that a third person, who then accompanied the prosecutor, in his hearing, 406. represented the house as his own. Ibid.

40. The agent of the defendant's atC. (b) Upon questions of bankruptcy. torney cannot be examined as to communications with the defendant on the 49. A bankrupt, who, under a sesubject of the action. Parkins v. Hawk-cond commission, has not paid 15s. shaw, 2 Stark. 239. Holroyd, J. 1817. in the pound, cannot be examined for 41. Where the witnesses on both the assignees, after obtaining his certisides are ordered out of court, and the ficate and releasing his allowance and attorney for the prosecution remains in surplus. Kennett and another, assignees, court, he cannot be examined for the v. Greenwollers, one, &c. Peake, 3. crown. Rex v. Webb. Best, J. Sarum Kenyon, C. J. 1790. Summer Assizes, 1819.

42. And the prisoner's counsel, on the suggestion of the court, retracted his consent to waive the objection. Ibid.

B. (e) Members of Parliament. (See PARLIAMENT.)

B. (f) Public officers. 43. A colonial attorney-general is not bound to disclose communications of a public or private nature made to him by the governor of a province. Wyatt v. Gore, Holt, 299. Gibbs, C.

J. 1816.

B. (g) Parties.

S. C. 2 Esp. D. N. P. 99; S. C. not S. P. 1 Suppl. Vin. Abr. 575, 6.

50. A creditor releasing to the assignees, is a good witness to prove the act of bankruptcy. Koopes v. Chapman and another, Peake, 19. Kenyon, C. J. 1790.

S. P. Ambrose v. Clendon, Cas. temp. Hardwicke, 267; and see Granger v. Furlong, 2 Bla. 1273.

51. A bankrupt released by his surety, may be called by the surety, without a release from his assignees. Cartwright v. Williams, 2 Stark. 342. Ellenborough, C. J. 1818.

a

52. Where two persons claim under demises from A. who has since become 44. One of two lessors in ejectment bankrupt, A. after releasing his allowby several demises, cannot, though he ance and surplus, is a competent witness has no interest in the premises, be re- to prove, that the premises in dispute quired to impeach the title of the other were not included in the first lease. lessors. Fenn, on the several demises of Longchamps d. Evitts v. Fawcett, Peake, Pewtress and Thompson, v. Granger, 371. Kenyon, C. J. 1791.

Campb. 177.

1812.

Ellenborough, C. J.

45. But the objection may be waived. Ibid.

And see Norden v. Williamson, 1 Taunt. 378.

C. INTEREST.

C. (a) Bail.

53. But it was said that A. would have been incompetent if he had been still interested in the reversion.

Ibid.

See the distinctions taken in Bell v. Harwood, 3 T. R. 308.

And see Griffin v. Archer, 2 Anst. 478; Selby v. Crew, ibid. 504.

54. Bankrupt's wife was admitted to prove, that a payment was made in contemplation of bankruptcy. Jourdain, 46. It is no objection to the compe-assignee of Nowlan, v. Lefevre and tency of a witness that he was bail to others, 1 Esp. 66. Kenyon, C. J. 1793. the sheriff. Piesley v. Von Esch, 2 Esp. N. It is stated that the witness was 604.

Kenyon, C. J. 1797.

considered to stand indifferent with 47. And the production of the bail respect to her husband's allowance. bond will not raise the presumption Unless, however, the estate paid 20s. in that the witness is bail to the action. Ibid. the pound, the defendants, the favoured 48. But where an attachment against creditors, would not reduce the fund by the sheriff has been set aside, upon con- their proof, in the proportion in which dition that it shall remain as a security, a recovery against them would increase the bail below cannot be examined. Ibid. it.

55. In an action by indorsee of a bankrupt. Burton v. Lloyd, 3 Esp. note against the maker, the indorser, 207. Kenyon, C. J. 1800. an uncertificated bankrupt, is a good 63. If a certificate is impeached on witness for the latter, notwithstanding the ground that it was signed by persons the probability of his obtaining his cer- who had proved fictitious debts, these tificate. Sikes and others v. Marshall, 2 Esp. 705. Kenyon, C. J. 1798.

persons may be examined as to the actual state of their accounts, and in56. A bankrupt is a good witness to direct evidence arising from their books disprove an act of bankruptcy. Oxlade is inadmissible. Edmonstone v. Webb, v. Perchard et alt., sheriffs of London, 3 Esp. 264. Kenyon, C. J. 1801. 1 Esp. 287. Kenyon, C. J. 1795. 64. Semble, that the declaration of a

57. But a bankrupt cannot be exa- trader respecting an equivocal act of mined respecting an equivocal act of bankruptcy, not made at the time or bankruptcy, whether called for the pur-forming part of the res gesta, though pose of supporting or negativing it. made before the issuing of the commisHoffman, assignee of Phelps, v. Pitt, 5 sion, is not evidence. Robson and Esp. 22. Ellenborough, C. J. 1803. another, assignees of Blakey, v. Kemp 58. In an action by indorsee against and another, 4 Esp. 233. Ellenboacceptor, the drawer, who has given a rough, C. J. 1802.

counter security to the acceptor, and is 65. A bankrupt, though he has obbecome bankrupt, is not a competent tained his certificate and released his witness for the defendant without a re-surplus, cannot be asked any question lease. Pinkerton v. Adams and Milner, connected with the act of bankruptcy, 2 Esp. 611. Kenyon, C. J. 1797. upon which he was declared a bankrupt,

Sed vide 49 Geo. 3. cap. 121, sect. 8. or with any prior act of bankruptcy, 59. A creditor to whom a bankrupt either upon his examination in chief or before he obtains his certificate, pro-when cross-examined. Wyatt, assignee mises payment in full, is not a compe-of Algar, v. Wilkinson and another, tent witness to support a second com-15 Esp. 187. Chambre, J. 1805 mission. Roberts, assignee of_Robertson, v. Morgan, 2 Esp. 736. Eyre, C.. J. 1799.

60. One joint defendant who pleads bankruptcy, is not a competent witness for other defendants who plead non assumpsit. Raven et alt. v. Dunning and Chilton, 3 Esp. 25. Kenyon, C. J. 1799.

And see Emmett v. Bradley, 1 B. Moore, 332.

S. C. differently reported, Peake, Evid. App. lxxxvii.

S. P. Elsom v. Bradley, Selw. 239. And see Field v Curtis, 2 Stra. 829. Chapman v. Gardner, 2 H. Bl. 279. Ambrose v. Clendon, Cas. temp. Hardw. 287.

66. Where persons are convicted of a conspiracy to prevent a bankrupt from obtaining his certificate, the conviction is not evidence in an action brought against them by the bankrupt for the same conspiracy; as it may have proceeded partly on the testimony of the latter. Hathaway v. Barrow and others, 1 Campb. 151, 180, d. Mansfield, C.

61. And the court would not permit a verdict to be recorded in favour of the J. 1807. bankrupt, for the purpose of enabling him to give evidence. Currie v. Child, Pritchard and Brown, 3 Campb. 283. Ellenborough, C. J. 1812.

N. But where the plaintiff enters a nolle prosequi as to the bankrupt, such evidence is admissible. MIver v. Humble, 16 East, 171; Mann. Exch. Pra. 368.

67. Where, in an action by the payee against the drawer of a bill, the acceptor is called on the part of the defendant, and is objected to on the ground that he is a certificated bankrupt, and therefore liable to the defendant though not to the plaintiff, a release from the defendant will restore his competency. Scott and others v. Lifford, 1 Campb. 249. El62. In an action for a fraudulent mis-lenborough, C. J. 1809. representation of the circumstances of a 68. Payee of an accommodation note person who is since become a bankrupt, became bankrupt, and obtained his certhe plaintiff may call a creditor of the tificate. Held, that he could not be

called to prove that he had received value from the indorsee. Maundrell v. Kennett, 1 Campb. 408, n. Bayley, J. 1809.

77. But an assignment executed without the privity of the trustees, or of the cestui que trust, is not evidence, unless acted upon and possession delivered. Ibid.

69. Held, that a creditor who has not proved, is a competent witness to sup- 78. In an action for penalties on 5 port the commission. Williams v. Geo. 2. cap. 30. s. 21. the examination Stevens, 2 Campb. 301. Ellenborough, of the defendant before the commisC. J. 1809.

sioners, is admissible to shew that he

S. P. Contra. Ralph Adams and has secreted effects of the bankrupt, others v. Malkin and another, 3 Campb. 530. Gibbs, C. J. 1814.

And see Shuttleworth v. Bravo, 1 Stra. 507. Granger v. Furlong, 2 Bla. 1273. Ex parte, Osborne, 1 Rose, 387. 70. Where notice has been given under 49 Geo. 3. cap. 121. s. 10. that the defendant means to dispute the act of bankruptcy, the assignees cannot call the petitioning creditor to prove it, his bond to the chancellor giving him a direct interest in supporting the commission. Green and others v. Jones, 2 Campb. 412. Ellenborough, C. J. 1810.

though he might have demurred to the inquiry. Smith and others, assignees of Parquet v. Beadnell, 1 Campb. 30. Ellenborough, C. J. 1807.

79. So any acknowledgment extracted from a party by the commissioners, however irrelevant to the bankruptcy, may be used against him. Stockfleth v. De Tastet and others, 4 Campb. 10. Ellenborough, C. J. 1814.

80. But semble, that the chancellor would order such examination to be taken off the file. Ibid.

81. B.'s goods are taken in execution after an act of bankruptcy, at the suit of A., with whose assent they are assigned by the sheriff to C.; A.'s examination under the commission cannot be read in an action by the assignees against C.,

And see ante, BANKRUPT, pl. 74. 71. But he may be called on the other side to prove the commission invalid. Anonymous, cited ibid. and decision said to have been approved by for the purpose of shewing A.'s knowThurlow, C. ledge of B.'s insolvency at the time of 72. He is even a competent witness the execution. Deady and another, to cut down his own debt, on which the assignees of Ganson v. Harrison, 1 commission is founded. Lloyd and Stark. 60. Ellenborough, C. J. 1815. others, assignees of Palmer a bankrupt, v. 82. But an examination taken before Stretton, I Stark. 40. Ellenborough, the assignment would have been admisC. J. 1815. sible. Ibid.

73. To shew the solvency of a party 83. Where, in an action for a false at a particular time, a witness may state return of nulla bona, the defence rests the general result of an examination of on the validity of a commission of his books. Anon. per Lord Kenyon, bankrupt overreaching the levy, and cited by Holroyd, J. in Meyer's assignees the defendant is indemnified by the v. Sefton and others, 2 Stark. 276.' assignees, the plaintiff may give in evi74. So to shew the value of property dence an admission made by one of assigned by a trader. Meyer's assignees, the assignees, that the plaintiff did not v. Sefton and others, 2 Stark. 276. owe him 1001. Dowden v. Fowle, Esq. Holroyd, C. J. 1817. sheriff of Wilts, 4 Campb. 38. Dampier, J. 1814.

75. The result of accounts rendered by the bankrupt to his assignees, may be given in evidence for such a purpose. Ibid.

Acc. Dyke v. Aldridge, 7 T. R. 665. 84. A person resident in Newfoundland, who has received dividends as a 76. Upon an issue whether A. had creditor upon the estate of an insolvent the disposition of property, after the there, taking the benefit of the act Geo. execution of a deed of settlement, any 3. cap. may be called on the part of act of dominion exercised by A. is evi- the insolvent sued by another creditor, dence, although the parties were not to prove the hand-writing of the chief privy to it. Ibid. justice to the allowance of his certificate