« PreviousContinue »
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
(1) Lord Say and Seale's case, 10 (4) Wils«n v. Rastall, 4 T. R. 753
Mod. 40. Bull. N. P. 184. Cutsv. 760.
Pickering, 1 Ventr. 197. (5) Du Barr? v. Livette, Peake, N.
(1) Wilson v. Raatall, 4T. R. 759, P.C. 78. cited by Ld. Kenyon in 4T.
760. R. v. Withera, 1 Carapb. N. P. R. 7i6.
C. 578. (6) Fountain v. Young, 6 Esp. N. P»
(3) Per Buller J., 4 T. R. 759. C. 113.
H 4 . attorney 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 arc 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 ou 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.
(O Gainsford v. Grammar, 2 Camp. (3) Lee q. t. v. Birrell, 3 Campb. N. P. C. 10. 337.
(2) 4T. R. 759. Sec also R.v. (4) Bull. N. P. 284. Sparkes, cited in Pcake'» N. P. C. 77,
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 an 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) Cutsv. Pickering, I Ventr. 197. 846. Rob son v. Kemp, 4 Esp. N. P.
Lord Say and Sealc's case, 10 Mod. 40.; C.235 ; 5 E1,|,. N. P. C: 5S. C.
Bull. N. P. 284. S. C. 4 T. R. 7J9. (5) Bull. N. P. 284. 1 Ventr. 197.
(1) Duffin v. Smith, Pcake N. P. C. (6) Bull. N. P. 184. Per Ld. Mans
108. Rcbson v. Kemp, 5 Esp. N.P. C. field C. J. in Cowp. 846. R. v. Wat
52. Cowp. 845. kinson, 2 St. mi, centra; but the re
(3) Bull. N. P. 284. Per Ld. Mans- porter makes a tpi*rt.
field C. 3. in Duchess of Kingston's (7) Spenceley v. Schullenberg, 7 case, 11 State Tr. 253. East, 35 7.
(4) Doe d, Jupp v. Andrews, Cowp. (8) Dulfin v. Smith, Peake N. P. C.
deration deration for the note, the Court of King's Bench held that the attorney was compellable to disclose that circumstance, in an action brought to recover back the money (1). The communication, said Lord Kenyon, was not here made in contemplation of a suit. On the contrary, the purpose in view had been already obtained; and what was said by the client was from exultation, in having before deceived his attorney as well as his adversary.
(I) CobJcn v. Kendrick, 4T. R. 431.
T F no objection is made to the competency of a witness, and he is allowed to give evidence, the next question is, what evidence ought to be given; and in what manner is the witness to be'examined. It will, therefore, now be necessary to inquire into certain general rules, which have been established, for the purpose of directing the testimony of witnesses, and for the more effectual attainment of the ends of justice. The consideration of these rules will form the subject of the present chapter; and in the next chapter some inquiry will be made into the mode of examining witnesses.
The order, in which it is proposed to consider the subject, is the following;
First, As to the number of witnesses to the proof of a
Secondly, Of the nature of presumptive evidence;
Thirdly, That evidence is to be confined to the points in issue;
Fourthly, Fourthly, That the affirmative of the issue is to be
Fifthly, That the substance only of the issue need be
Sixthly, That the best evidence is to be given, which the nature of the case admits;
Lastly, That hearsay evidence is not admissible.
As to the Number of Witnesses, for the Proof of a Fact.
The general rule at common law is, that a single witness, if credible, is sufficient for the proof of any fact; in which respect the law of England differs from the civil law, where one of the maxims is, "unius responsio non "omnino audiatur." Lord Coke, indeed, has said in his Commentary(1), that "when a trial is by witnesses, as in the case of the challenge of a juror or summons of a tenant, the affirmation ought to be proved by two or more witnesses, but, where the trial is by verdict, there the judgment is not given upon witnesses, but upon the ve*dict, and upon such evidence as is given to the jury they find their verdict." But this distinction has been denied by Lord Holt (2), and the doctrine is said not to be warranted by the authorities cited in its support. By our law, however, the testimony of a single witness will not be sufficient in a few particular cases.
First, On an indictment for perjury, the evidence of l« case of one witness is not sufficient to convict the defendant; per5uiy. because then there would only be one oath against another. "To convict a man of perjury," said C. J. Parker,
(1) Co. Lit. 6. b. (a) Shottet v. Friend, Carth. 144.