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Matter of Bellis & Milligan.



A witness who was a lawyer, being under examination was questioned, touching a

certam conveyance made to bim by the bankrupt and wife and a subsequent conveyance by him to the wife, and refused to testify thereon as matter within the

privilege of confidential communications between attorney and client. Held, ou the facts stated, the questions were proper and must be answered, and are

not within such privilege.

Southern District of New York, September, 1869.
Before John FITCH, Register.

The attorneys for Edward C. Williams, assignee of said bankrupts, claim the right to examine a witness in the above entitled cause, concerning a deed executed by Jaines Milligan, one of said bankrupts, and Elizabeth, his wife, to one John T. Gray, between the first days of January and July, 1868; the consideration that passed between the said parties to this deed, and the property conveyed; also concerning a deed executed by — to Elizabeth R. Milligan, wife of James Milligan, between the first days of January and July, 1868, the consideration and the property conveyed.

On the 8th day of April, 1868, James Milligan, and Elizabeth, his wife, executed a deed conveying certain property, situate in the city of Brooklyn, state of New York, to

of New York city. On the 10th day of April, 1868, the said conveyed the same property to Elizabeth R. Milligan, wife of said James Milligan.

Q. 1. State whether James Milligan, one of the bankrupts, conveyed to you by deed, on, or about, the 8th day of April, 1868, certain real estate situated in the city of Brooklyn

Q. 2. State the consideration, if any, given by you to him therefor?

Matter of Bellis & Milligan.

Q. 3. State whether you simultaneously, on, or about, the same date, by deed, conveyed to Elizabeth R. Milligan, wife of said James Milligan, the same premises so conveyed by you to James Milligan on, or about the 8th day of April, 1868.

Q. 4. State the consideration, if any, given to you by Elizabeth R. Milligan therefor.

Q. 5. State whether at that time any suit or action at law was pending, in relation to the said real estate between the said James Milligan and wife, and any person in which you were attorney or counsel of Mr. and Mrs. Milligan, or whether there has, since that 8th day of April, 1868, been such an action pending in relation to said real estate, in which you were attorney or counsel.

is an attorney in all the courts; being called as a witness in the matter of Bellis and Milligan, bankrupts, refuses to testify concerning the above-said transfers, on the ground, that they were made in the course of his professional business, ard are therefore, within the privilege of confidential communications between him and his clients.

The examination of as a witness, in this matter, does not involve any statement, confidential or otherwise, made by James Milligan to him, or any advice given by him to his client, the said James Milligan, but merely the part he performed in a business transaction wherein he was grantee in the first place, and grantor in the second, of certain real estate as hereinbefore mentioned.

In this case, the witness claims that the rule which protects professional communications of clinents to their attorney, or counsel, extends to all business communications as well as those appertaining to suits in law or equity or other judicial proceedings. Upon examining the authorities, I find, that in the early history of litigation parties prosecuted or defended their suits in person. In the progress of time, as litigation increased, and judicial proceedings became settled and established, men skilled and learned in the law and practice of the courts, were employed to conduct the

Matter of Bellis & Milligan.

prosecution and defense of causes. Parties were not then compelled to testify, and hesitated to communicate the facts in relation to their causes to others; to obviate that difficulty, the courts adopted the rule in relation to professional communications of clients to their attorneys, exempting the same from disclosure, &c. Among the early cases upon this subject is that of Annesly agt. The Earl of Anglesea, before the Barons of the Irish Exchequer, (17 How. St. Trial, 1,139.) The case was most extensively and ably argued, and very elaborately considered by the court, and the conclusion arrived at, as to the true origin of the rule in question, may be best stated in the language of Mr. BARON MOCNTENAY, who says, at page 1,240: “Mr. Recorder has very properly mentioned the foundation upon which it hath been held, and it is certainly undoubted law, that the attorneys ought to keep inviolably the secrets of their clients, viz. : That an increase of legal business and the inability of parties to transact that business themselves, made it necessary for them to employ other persons who might transact that business for them. That this necessity, introduced with it, the necessity of what the law hath very justly established, an inviolable secrecy to be observed by attorneys, in order to render it safe for clients to communicate to their attorneys all proper instructions for the carrying on of these causes which they found themselves under the necessity of entrusting to their care."

In the case of Dickens agt. Pramelee (2 Vermont R., 185,) PADDOCK, Justice, says: “It also became necessary for courts to adopt a rule by way of pledge to suitors that their secret and confidential communications to their attorneys should not be drawn from them with or without the consent of such attorney."

Among the earliest cases to be found on this subject are Berd agt. Lovelace, (Cary's R., p. 88); Austin agt. Vescy, (id., 89); Kilway agt. Kilway, (id., 126); Dennis agt. Codrington, (id., 143.) Solicitors and counsel were excused


Matter of Bellis & Milligan.

from testifying, on the ground, that they were solicitors or counsel in the cause. In Waldron agt. Ward, (Stiles R., 449,) a witness was offered in evidence to be examined as to some matter

66 whereof he had been made privy as of counsel in the cause.” The courts would not permit the examination. In Sparks agt. Middleton, (Redley, 505), counsel for the defendant was excused from testifying, on the ground, "that he should only reveal such things as he either knew before he was of counsel, or that came to his knowledge since, by other persons.” In Curtis agt. Pickering, (i Ventr., 197), a witness was called to testify concerning an erasure in a will, supposed to have been made by Pickering, The witness, after the erasure, was retained as his solicitor in the cause. In Valliant agt. Dodermead, (2 Atkins, 524), witness was called to prove certain interrogatories. Objections, that his knowledge of the matters was obtained as a clerk in court. Evidence received. Lord HARDWICK says: " that the matters inquired after by the plaintiff's interrogatories, were antecedent transactions to the commencement of the suit." In the then last cited cases the communications to the respective parties were during the pendency of an action in which they were either attorney, solicitor, or counsel. The same rule is held by the courts in this state, and seems to decide the question in this case. In 17 Johnson, 335, the court says: “The privilege, in its most comprehensive sense, is not broad enough to cover collateral facts, the answer to which does not betray any confidential communication between attorney and client.”

An attorney or counsel may be called on to testify to a collateral fact within his knowledge or to a fact which he might know without being entrusted with it by his client (Johnson agt. Duverne, 19 Johnson, 134; 4th Term, 431.)

Communications made to an attorney at law with a view to obtain his assistance in the commission of a felony are not privileged; 3 Barb., 598. In the case of the Rochester City Bank agt. Suydam, (5 How., p. 254.) To be brought

Matter of Bellis & Milligan.

within its protection if they do not appertain to any suit or legal proceeding commenced or comtemplated, should be made under cover of an employment strictly professional, and should be such as the business to be done requires to be made. They should also be of a confidential nature, and so considered at the time, and should be shown to have been made with direct reference to the professional business upon which they may be supposed to bear. (17 How. State Trials, 1,139; 1 Greenleaf Ev., 244; 1 Philips Ev., 145; 1 Starkey.)

In section 26 of the Bankrupt Act, 1867, it is provided that the court may at all times require the bankrupt, upon reasonable notice, to attend and submit to an examination on oath, upon all matters relating to the disposal or condition of his property; the bankrupt is, therefore, liable to be called (and in this case has been called,) and examined upon these very transactions. He cannot extend an immunity to his attorney which he does not possess himself. The privilege is for the benefit of the client, not the attorney. The authorities upon this point which I have cited, show that originally no communications were protected as confidential professional communications, except that which related to the management of some suit or judicial proceeding actually pending or about to be commenced in some court. Few cases have gone beyond that. Even the case of Wilson agt. Troup, (7 Johnson, C. R., 25; and 2 Cowen R.,195; S. C.) Haight, an attorney, was retained to conduct the foreclosure of a mortgage, by advertisement under the act concerning the foreclosure of mortgages by advertisement. It was claimed that Troup employed Haight because Haight was a lawyer, and the court of errors evidently considered the relation of the party in the statutory foreclosure case, namely: Troup and Haight as that of attorney and client, and therefore the evidence of Haight was not admissible as against Troup, his client. This decision is unquestionably correct and founded upon the principle, that a statutory foreclosure of a mortgage by advertisement is in the nature

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