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Matter of Bellis & Milligan.

of a judicial proceeding. And in Jackson agt. Dominick, (14 Johnson R., 443), the court says: “That a foreclosure under the statute is substantially equivalent to a foreclosure in equity, same in effect. (5 How. Pr. R., 261.)

In this case there was no action pending. The witness drew a deed conveying certain real estate from James Milligan to himself. He then conveyed the said real estate to Mrs. Milligan, the wife of said James Milligan. There was no action then pending in regard to said real estate, and the question before the court in the real estate now is, whether the legal title of the real estate so conveyed vests in Mrs. Milligan as against the assignee in bankruptcy. Now, the witness is simply called upon to state the fact of the receiving and the conveying of the real estate, the consideration, if any, he gave or received therefor and what was said and done on the occasion. His testimony, if given, cannot do injustice to any one. The same facts have been proven by James Milligan in these proceedings. The deeds can be given in evidence, and although Mrs. Milligan cannot be compelled to testify to these facts in bankruptcy, still he can be made to do so by a bill in equity on the part of the assignee against herself, her husband and the witness to set aside said conveyance as fraudulent &c., &c., as against ihe assignee in bankruptcy, (30 Barb., 506.) The court of appeals, in 30 N. Y., p. 330, SELDEN, Judge, holds, that the rule which protects professional communications of clients to their attorneys or counsel from disclosure, should only extend to such communications as have relation to some suit or other judicial proceeding either existing or contemplated.

The testimony in this case is claimed only for the bankrupt which brings it within the cases of Griffith agt. Davis, (5 Barn, and Ald. 502); Shore agt. Bedford, (5 Man. and Gran. 271); Weeks agt. Argent, (16 Mees. and Wels. 817.) In 30 N.Y., INGRAHAM, J, says: “If he was only the counsel of Barney, then the decisions settle that the disclosures being made in the presence of a third party, they are not

Matter of Bellis & Milligan.

privileged." I think that for the purposes of this case Mrs. Milligan, the wife of the petitioner, who received the conveyance from the witness as property to her sole and separate use, must be considered as a third


I have given the authorities as they were previous to the Legislative enactments in the state, in relation to the examination of parties as witnesses, which enactments are as follows: Any party in any civil suit or proceeding, either in law or equity, had before any court or officers, may require any adverse party, whether complainant, plaintiff, petitioner or defendant,or any one of said adverse party, any and every person who is benificially interested in said suit or proceedings, though not nominally as parties, to give testimony under oath in such suit or proceeding; and such adverse party may be examined orally,or under a commission in the same manner as persons not parties to such suit or proceeding, and who are competent witnesses therein; and such party may be subpened and his attendance as a witness compelled, or he may be examined by a commission, or conditionally, or his testimony perpetuated in the same manner as any competent witness.

“ The court or officer before whom such suit or proceeding may be had shall have power to dismiss the bill, petition or proceeding of any party, or any part thereof, with costs, or non-suit any party, or strike out or disregard any defense, or any part thereof, of any party who shall refuse to testify.

“ Any party in any suit or proceeding as aforesaid shall be required, to entitle him to examine the adverse party as a witness in any suit or proceeding, to give testimony therein, in the same manner as the attendance of witnesses in ordinary cases."

The act of congress, July 16th, 1862, provides :

“ That the laws of the state in which the court shall be held shall be the rules

as to the competency of witnesses in the court of the United States."

In this case the rights and privileges of the attorney,

Matter of Bellis & Milligan.

and his duty to his clients are entirely separate, and distinguished from his rights and duties as purchaser and vendor. The transaction in relation to the purchase and sale of the real estate was not a part and parcel of, or in and about any law suit in which he was counsel, for either the petitioner or his wife. It therefore stands as a transaction of purchase and sale of real estate, the witness purchasing the real estate of Mr. Milligan, and selling the same to Mrs. Milligan, his wife, two days thereafter.

It is claimed by the assignee in bankruptcy that this was a mere fraud and cover, and intended to evade the act of the legislature of 1849, page 528 chapt., 375, viz :

“ Any married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use and convey and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband or be liable for his debts."

The assignee also claims that the conveyance from the witness to Mrs. Milligan is void ; that it was a mere formal transfer of the real estate from the husband to the wife, using the name of the witness as a mere go between, so that the conveyance might technically conform to the letter of the statute, and at the same time defeat the spirit and intent of the law; that the wife acquired no legal or vested rights therein by said conveyance other than her contingent right of dower to which she was previously entitled. The courts ever have and now do hold, that the character of their attorneys should be above reproach and beyond suspicion; that they should never be a party to the perpetration of any fraud or any act of doubtful integrity, or in the remotest manner violating any of our country's laws. The reasons for this are obvious. They, in most instances, draft, if they do not make, the laws, and most certainly,

Matter of Bellis & Milligan.

"the law makers should not be law breakers." In all wellregulated communities the lawyers are looked up to and respected. It is just and right they should be. They are the best educated men, better versed in the whole policy of our country, are more intelligent and have broader and more enlarged views of all the relations of life, than any other class of men; therefore it is that the community requires of them, in all their relations in life, to be entirely free from any wrong, or any act of doubtful propriety. All must see the impropriety of lawyers being connected with any conveyance of real estate, the purpose or effect of which would be to evade the provisions of any law.

I find that previous to the act of 1847, and the acts amendatory thereto, an attorney occupied the same relative position as his client in relation to giving testimony, and was privileged as to all matters which his client could not be compelled to disclose.

But now whenever and wherever the client can be compelled as a witness to testify to any fact, then the attorney must also testify. The statutes of this state having abrogated the former common law rule to that effect.

That the witness in this case is not privileged, as the mere act of receiving and conveying the title to real estate, about which there has not been any action pending, does not bring him within the former common law rule as to privileged communications to attorneys and counsel, and since the enactment of 1847, no such privilege exists which can be claimed for the witness in this case.

That the questions are pertinent to the issue, and proper, and the witness must answer.

BLATCHFORD, J.-On the facts stated by the register the five questions set forth were proper, and must be answered by the witness, and are not within the privilege of confidential communications between attorney and client.

Matter of Bellis & Milligan.



The nsual order and subpoena were issued for the wife of bankrupt to attend before

the register and be sworn and 'testify as a witnere. She failed to appear, and counsel put in affidavit explanatory of her non-attendance, but questioned the

anthority of the court to compel her to testify in this cause. Held: The proper proceeding is to issue an order to show cause why an attachment

should not issue against her.

Southern District of New York, October, 1869.
Before John Fitch, Register.

The attorney for the assignee in this cause applied before me for the usual order and subpæna for Mrs. Elizabeth R. Milligan, wife of James Milligan, one of the petitioners. The affidavit sets forth the facts and is sufficient both in form and substance, is duly verified, and upon it the assignee is by law entitled to the order and subpæna asked for. (In re Julius L. Adams, 2 Bank. Reg, pp. 33 and 92 ; s. c. 36 Ilow. Pr. R., p. 51.) Sec. 26 of the bankrupt law provides: "For good cause shown, the wife of any bankrupt may be required to attend before the court to the end that she may be examined as a witness, and if such wife do not attend at the time and place specified in the order, the bankrupt shall not be entitled to a discharge, unless he shall prove to the satisfaction of the court that he was unable to procure the attendance of his wife."

During the trial of this cause and before the issuing of this order and subpæna, I permitted the attorney for the bankrupts to file an affidavit, under $ 26 of the bankrupt law, setting forth the reason why she had not obeyed drevious orders of the court. I cousidered that to be the correct practice in order to raise the question under $ 26 of the

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