client reposes in his counsel, attorney, or solicitor, and which courts of justice ever hold to be inviolable (1). Confidential communications between attorney and client are not to be revealed at any period of time - not in an action between third persons-nor after the proceeding, to which they referred, is at an end-nor after the dismissal of the attorney (2). The privilege of not being examined to such points, as were communicated to the attorney while engaged in his professional capacity, is the privilege of the client, not of the attorney; and it never ceases. "It is not sufficient to say, the cause is at an end; the mouth of such a person is shut for ever." (3) But this privilege of the client is confined to such communications, as are made with reference to professional business during the relation of attorney and client. A person by profession an attorney, but not employed as attorney in the particular business, which is the subject of inquiry, is not within the rule, although he may have been consulted confidentially(4). If the party waives his privilege, the witness may of course be examined.

A person, who acts as interpreter between an attorney and his client, stands precisely in the same situation as the attorney himself; he is considered as the organ of the attorney, and is under the same conditions of secresy (5.) But it has been ruled at nisi prius, that a person, who was consulted confidentially on the supposition of his being an attorney, when in fact he was not one, is compellable to answer (6). And propositions, which the attorney of one party has been professionally entrusted to make to the adverse party, though they are not to be disclosed by the

King v. Fox (1) admitted the prosecutor to be a witness, although he had laid a wager, that he should convict the defendant and the reason seems to be, not because the witness had made the wager at a time when public justice became interested in his testimony, but because it would be against public policy to allow a witness by any such gratuitous act to exclude himself from giving evidence; and there seems to be another reason for admitting the witness, since the wager would now probably be considered absolutely void, as tending to produce an improper bias on the mind of the witness, and therefore as directly prejudicial to the administration of justice.

3. When the witness must be answerable to one or the other of the parties, and the event of the suit determines only to which, he may be examined by either of them without a release. Thus in an action of assumpsit for money paid to the use of the defendants, who were shipowners, Lord Kenyon admitted the captain to prove, that he had received the money from the plaintiff for the defendant's use; for he stood indifferent between the parties, and he was equally answerable, whichever way the verdict might go. (2)

(1) 1 Str. 652.

n. (c), and see ante p. 53., on this sub.

(2) Evans v. Williams, 7 T. R. 481. ject.

CHAP. VI.

On the Admissibility of Counsel or Solicitor.

THE objections to the competency of a witness, which have been considered in the four preceding chapters, are of a nature to exclude him from giving any kind of evidence. One other objection still remains to be considered; not an objection to his competency, but to particular evidence, which he may be called upon to disclose. This is founded on the professional confidence, which a

client reposes in his counsel, attorney, or solicitor, and which courts of justice ever hold to be inviolable (1). Confidential communications between attorney and client are not to be revealed at any period of time—not in an action between third persons-nor after the proceeding, to which they referred, is at an end-nor after the dismissal of the attorney (2). The privilege of not being examined to such points, as were communicated to the attorney while engaged in his professional capacity, is the privilege of the client, not of the attorney; and it never ceases. "It is not sufficient to say, the cause is at an end; the mouth of such a person is shut for ever." (3) But this privilege of the client is confined to such communications, as are made with reference to professional business during the relation of attorney and client. A person by profession an attorney, but not employed as attorney in the particular business, which is the subject of inquiry, is not within the rule, although he may have been consulted confidentially (4). If the party waives his privilege, the witness may of course be examined.

A person, who acts as interpreter between an attorney and his client, stands precisely in the same situation as the attorney himself; he is considered as the organ of the attorney, and is under the same conditions of secresy (5.) -But it has been ruled at nisi prius, that a person, who was consulted confidentially on the supposition of his being an attorney, when in fact he was not one, is compellable to answer (6). And propositions, which the attorney of one party has been professionally entrusted to make to the adverse party, though they are not to be disclosed by the

attorney himself, may yet be proved by another witness, who heard him deliver them. (1)

This privilege extends to the three enumerated cases of counsel, solicitor, and attorney; but it is confined to those cases alone. There are indeed cases, said Mr. Justice Buller in the case of Wilson and Rastall, to which it is much to be lamented that the law of privilege is not extended; those, in which medical persons are obliged to disclose the information, which they have acquired by attending in their professional characters (2). This point was much considered in the Duchess of Kingston's case, where Sir C. Hawkins, who had attended the duchess as a medical man, was compelled to disclose what had been committed to him in confidence. In a late case at Nisi Prius, where a clerk to the commissioners of the property tax was called to prove the defendant a collector, and refused to give evidence, on the ground of his having taken an oath of office, not to disclose what he should learn as clerk respecting the property tax, except with the consent of the commissioners or by force of an act of parliament, the Court held that this oath would not exempt the witness, and that it must be construed, as containing an implied exception of the evidence, which he might be called to give in courts of justice in obedience to the writ of subpoena (3). In an early case (4), indeed, where the defendant pleaded to an action of debt on bond the statute against buying and selling of offices, and called a witness to shew on what occasion the bond was given, Lord Holt is said to have refused his evidence, because it appeared, that he was privately intrusted to make the bargain and to keep it secret. But the principle and authority of this case seem to have been over-ruled by that of Wilson v. Rastall and the later decisions on this subject.

The attorney of a party in the cause may be examined like any other witness, where he knew the fact before the retainer, that is, before he was addressed in his professional character (1); or, where he has made himself a party to the transaction (2); or, where he is questioned to a collateral fact within his own knowledge, or to a fact which he might have known without being intrusted as attorney in the cause (3). Thus, if he is a subscribing witness to a deed, he may be examined concerning the execution (4). So, if there be a question about an erasure in a deed or will, he may be asked, whether he had ever seen the instrument in any other state, for it is a fact within his own knowledge; but he ought not to be permitted to disclose any confessions, which his client may have made to him on the subject (5). So, if an attorney were present, when his client was sworn to an answer in chancery, he might be a witness on an indictment for perjury, to prove the fact of taking the oath, which is a fact not peculiarly within his knowledge as an attorney, and not committed to him in secresy (6). 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 the cause calling upon him to produce papers. (7)

On the same principle, in an action of debt upon a bond, the plaintiff's attorney was admitted by Lord Kenyon to prove, that the bond had been given on an usurious consideration (8). And, where a person, (who had brought en action on a promissory note, which was afterwards compromised by the defendant,) had informed the attorney after the compromise, that there never had been any consi

(1) Cuts v. Pickering, 1 Ventr. 197. Lord Say and Seale's case, 10 Mod. 40.; Bull. N. P. 284. S. C. 4 T. R. 759.

(2) Duffin v. Smith, Peake N. P. C. 108. Robson v. Kemp. 5 Esp. N. P. C. 52. Cowp. 845.

(3) Bull. N. P. 284. Per Ld. Mansfield C. J. in Duchess of Kingston's case, 11 State Tr. 253.

(4) Doe d, Jupp v. Andrews, Cowp.