*502]

*CHAPTER THE FIFTH.

OF WITNESSES.-WHAT FACTS WITNESSES MAY DISCLOSE, AND WHAT ARE PRIVILEGED COMMUNICATIONS.-HOW WITNESSES ARE TO BE EXAMINED. HOW THE CREDIT OF WITNESSES MAY BE IMPEACHED.-HOW MANY WITNESSES ARE SUFFICIENT.-HOW THE ATTENDANCE OF WITNESSES IS TO BE COMPELLED AND REMUNERATED.-OF ACCOMPLICES. AND WHAT WITNESSES ARE COMPETENT

TO GIVE EVIDENCE.

Sec. I-Of Privileged Communications, and other Matters which a Witness may not Disclose.

A WITNESS is to be sworn to speak the truth, the whole truth, and nothing but the truth. But this form of oath, absolute as it seems, must be taken with an implied reservation, that the witness is not to disclose any facts within his knowledge, which, by the law of the land, founded on considerations of justice, and of public policy, he is forbidden to make known. Of such a nature are professional communications between a client and his attorney, solicitor, or counsel, and matters connected with the government of the country.(a)

The law attaches so sacred an inviolability to communications between a client and his legal advisers, that it will neither oblige nor suffer persons so employed to reveal any facts confidentially disclosed to them at any period of time, neither after their employment has ceased by dismissal or otherwise, nor after the cause in which they were engaged is entirely concluded.(b) The privilege of not being examined on such subjects is the privilege of the client, and not of the attorney or counsel;(c) and it never ceases. "It is not sufficient," said Mr. J. Buller, (d) "to say that the (a) It seems, however, to have once been thought necessary to vary the form of the oath on an occasion of this sort. In the case of Spark v. Middleton, 12 Vin. Abr. Ev. B. a, 4, p 38. 1 Keb. 505, Mr. Aylott having been counsel for the defendant, desired to be excused to be sworn on the general oath as witness for the plaintiff to give the whole truth in evidence, which the court, after some dispute, granted, and that he should only reveal such things as he either knew before he was counsel, or that came to his knowledge since by other persons; and the particulars to which he was to be sworn were particularly proposed, viz., what he knew concerning the will in question? whether he knew anything of his own knowledge?

(b) Lord Say and Seale's case, 10 Mod. 41; Wilson v. Rastall, 4 Term Rep. 753, in the judgment of Buller, J.; Sloman v. Herne, 2 Esp. N. P. C. 695; Rex v. Withers, 2 Campb. 578; Parkhurst v. Lowton, 2 Swanst. 194, 221; Richards v. Jackson, 18 Ves. 474.

(c) 10 Mod. 41; Bull. N. P. 284. But if the client waive his privilege, the witness may be examined: Merle v. More, R. & M. N. P. C. 390. But he is not considered as waiving it by calling his attorney as a witness: 1 Phill. Ev. 163, citing Waldron v. Ward, Styl. 449; Vaillant v. Dodemead, 2 Atk. 524.

(d) 4 T. R. 759. "The first duty of an attorney is to keep the secrets of his clients:" per Gaselee, J., Taylor v. Blacklow, 3 B. N. C. 235 (32 E. C. L. R.). He ought, therefore, to consider his lips sealed with a sacred silence as to all confidential communications: per Tindal, C. J., Ibid. And see Petrie's case and Madam du Barrè's case, cited 4 T. R. 756. An attorney, therefore, who without his client's consent discloses a confidential communication, is "guilty of a gross breach of a great moral duty," per Vaughan, J., Taylor v. Blacklow, and is liable to an action for any injury that may arise from such disclosure: Ibid. Or he may be punished by the court to which he belongs, admitted arguendo: Ibid. Two learned barons, however, in Hibberd v. Knight, 2 Exch. R. 11, expressed an opinion that if an attorney chose voluntarily to disclose a confidential communication, the court would receive the evidence. These observations were merely obiter dicta, and seem to have arisen from an erroneous impression of the facts in Marston v. Downes, 6 C. & P. 381 (38 E. C. L. R.); 1 A. & E. 31 (28 E. C. L. R.) The former of these reports correctly states what occurred on the trial, and certainly the attorney did not volunteer any statement of the contents of any deed; and upon the observations in Hibberd v. Knight being cited in Newton v. Chaplin, 10 C. B. 356 (70 E. C. L. R.), Maule, J., said, "I presume that the learned barons did not mean that the attorney may in all cases

1 A communication to an attorney will not be protected, unless it appears, that at the time it was made, he was acting in the character of legal adviser, upon the very matter to which the communication referred: Brunden v. Gowing, 7 Rich. 459.

cause *is at an end; the mouth of such a person is shut for ever." And it makes no difference that the client is not in any shape party to the cause before the court.(e)

[*503

The privilege is strictly confined to communications made to counsel, solicitors, and attorneys.(ƒ) No others, however confidential, or whatever be the relation or employment of the party entrusted, are privileged. Therefore all other professional persons, whether physicians, surgeons, or clergymen, are bound to disclose the matters confided to them.(g) Thus where the prisoner, being a Papist, had made a confession before a Protestant clergyman of the crime for which he was indicted, that confession was permitted by Buller, J., to be given in evidence on the trial, and the prisoner was convicted and executed.(h) So a confession to a Popish

priest has been held not to be privileged. (i) So a *banker,() steward, [*504 servant, or private friend, is bound to disclose a communication, however confidential.(k) And where a clerk to the commissioners of the property-tax was required to prove the defendant to be a collector, and he objected, because he had taken an oath of office not to disclose what he should learn as clerk concerning the property tax, except with the consent of the commissioners, or by force of an Act of Parliament, it was held that he was bound to give his testimony, and that the evidence which a betray his own client." The matter, however, seems to be set at rest by Cleave v. Jones, 7 Exch. 421, as it was there held that an attorney could not give in evidence on his own behalf a confidential communication in an action against his client. In Volant v. Soyer, 13 C. B. 231 (76 E. C. L. R.), Jervis, C. J., started a doubt whether the 14 & 15 Vict. c. 99, had not taken away the ground of objecting to the production of a document on the ground of its having been received professionally; but Maule, J., said that The right, which a client has always enjoyed, of being protected from a breach of professional confidence, remains the same. I think the protection still continues unimpaired, so far as regards the prohibition to the attorney to give evidence of the contents of, or to produce documents belonging to, his client."

(e) Rex v. Withers, 2 Campb. 578.

(ƒ) 4 T. R. 758; Rex v. Duchess of Kingston, 11 St. Tr. 246.

(g) Ibid.

(h) Rex v. Sparkes, cited in Du Barrè v. Livette, Peake R. 78, in which latter case Lord Kenyon said he should have paused before he admitted such evidence. But the point, that confessions to clergymen are not privileged, has been fully established by the recent decision in Rex v. Gilham, ante, p. 400. In Broad v. Pitt, 3 C. & P. 518 (14 E. C. L. R.), Best, C. J., after recognizing this decision, said, "I, for one, will never compel a clergyman to disclose communications made to him by a prisoner, but if he chooses to disclose them I shall receive them in evidence." In Reg. v. Griffin, 6 Cox C. C. 219, the chaplain of a workhouse was called to prove certain conversations he had had with the prisoner as to injuries she had inflicted on her child, for whose murder she was being tried, when he visited her as her spiritual adviser; Alderson, B.: "I think these conversations ought not to be given in evidence. The principle upon which an attorney is prevented from divulging what passes with his client is because, without an unfettered means of communication, the client would not have any proper legal means of assistance. The same principle applies to a person deprived of whose advice the prisoner would not have proper spiritual assistance. I do not lay this down as an absolute rule, but I think such evidence ought not to be given." No case was cited.

(i) Butler v. Moore, M'Nall. Ev. 253, as cited 1 Phill. Ev. 165. In Reg v. Hay, 2 F. & F. 4, Hill, J., committed a Roman Catholic priest for refusing to state from whom he received a stolen watch, which he stated he had received in connection with the confessional. But the priest was not asked to disclose anything that had been stated to him in the confessional, and therefore no question arose as to that. Where a witness has taken an oath to a prisoner that he would not reveal what the prisoner should tell him, Patteson, J., said, "These oaths are very wrong and wicked, but still they are not binding, and every person, except counsel and attorneys, is compellable to reveal what they may have heard; and counsel and attorneys are only excepted because it is absolutely necessary, for the sake of their clients, that communications to them should be protected;" and admitted the confession: Rex v. Shaw, 6 C. & P. 372 (25 E. C. L. R.).

(3) Lloyd v. Freshfield, 2 C. & P. 329 (12 E. C. L. R.).

(k) Vaillant v. Dodemead, 2 Atk. 524; Lord Falmouth v. Moss, 11 Price 455.

1 A confession made to a Roman Catholic priest, is a privileged communication: Smith's case, 2 Rogers's Record 77, Phillip's case. See Sampson's Roman Catholic Question in America: Pamph. ; contra, per Gibson, C. J., in Simons's Ex'r v. Gratz, 1 Penn. Rep. 417. But not a confession made to a Protestant divine: Smith's case, supra. See Comm. v. Drake, 15 Mass. 161.

witness was called upon to give in a court of justice was to be considered as an implied exception in the Act.(7) An arbitrator cannot be permitted to disclose, in an action for a malicious holding to bail, what transpired before him upon the examination of the parties themselves, or on an inspection of the plaintiff's books,. upon the principle that the parties themselves could not have been examined in the former cause, nor the plaintiff compelled to produce his books; (m) but he may be called upon to prove what matters were claimed before him on a reference:(n) he cannot, however, be admitted or called on to give evidence of any concessions made by one party during the reference for making his peace and getting rid of the suit, although, as to regular admissions by the parties, there is no objection to his testimony.(0) A person who acts as an interpreter, (p) or agent, (q) between the attorney and his client, or the attorney's clerk,(r) cannot be called on to reveal a confidential communication; for they stand precisely in the same situation as the attorney himself, and are considered as his organs. So a barrister's clerk cannot be called to prove his master's retainer. (s)

It has been held that a person who is consulted confidentially on the supposition of his being an attorney, when in fact he is not one, is compellable to answer.(t) And propositions which the attorney of one party has been professionally entrusted to make to another party may be proved by another witness who was present when they were delivered.(u) And an attorney may be called upon by a plaintiff to state a conversation in which the defendant proposed a compromise to the plaintiff, although the witness attended *on that occasion as attorney for the defend

*505] ant. (v) So where the plaintiff and defendant went together to the plain

tiff's attorney's office, and had a conversation in the presence of the attorney's clerk, it was held that this conversation was not a privileged communication, but might be proved by the clerk, and that a letter written by the clerk in consequence of instruetions given by the defendant in the course of that interview was admissible, as that was an act done. (w) So where an act is done in pursuance of a bargain between two parties and in the presence of the attorneys of each of them, the communication made by one party to his attorney relating to that act in the presence of the other party and his attorney is not privileged. The defendant, in the presence of his attorney, and one Clark and his attorney, Vallance, signed a note, and it was held that Vallance might prove that the note was given by the defendant to Clark in consideration of his withdrawing all opposition to the defendant's passing his last examination as a bankrupt.(x) So a mere bargain with the other side in the presence of the opposite attorney is not a confidential communication.(y) And communications made to a person, by profession an attorney, but not employed as an attor

(1) Lee v. Birrell, 3 Campb. 337.

(m) Habershon v. Troby, 3 Esp. 38, by Lord Kenyon.

(n) Martin v. Thornton, 4 Esp. 181, by Lord Alvanley.

(o) Slack v. Buchannan, Peake N. P. C. 6; Westlake v. Collard, Bull. N. P. 236; Martin v. Thornton, 4 Esp. 181. It is said in Bull. N. P. 284, that a trustee shall not be a witness to betray the trust; and a case is cited, Holt v. Tyrrell, where the defendant pleaded to debt on bond the statute of buying and selling offices, and upon the trial a witness was called to give an account upon what occasion the bond was given, and Lord C. J. Holt refused to admit him, because he was privately entrusted by both parties to make the bargain, and to keep it secret. But this is contrary to the latter authority, and may be considered to have been overruled by the Duchess of Kingston's case, and Wilson v. Rastall, ubi supra.

(p) Du Barrè v. Livette, Peake N. P. C. 78; s. c., 4 T. R. 756.

(9) Parkins v. Hawkshaw, 2 Stark. 239 (3 E. C. L. R.).

(r) Taylor v. Forster, 2 C. & P. 195 (12 E. C. L. R.). See Webb v. Smith, 1 C. & P. 337 (12 E. C. L. R.).

(s) Foote v. Hayne, R. & M. N. P. C. 165. (t) Fountain v. Young, 6 Esp. 113. (u) Gainsford v. Grammar, 2 Campb. 10.

(v) Griffith v. Davies, 5 B. & Ad. 502 (27 E. C. L. R.). And per Parke, J.: "This is not a confidential disclosure, but an open communication from one adversary to another, witnessed by the attorney of one party. In Gainsfard v. Grammar, the Lord Chief Justice might properly reject the attorney's evidence of what his client said to him, but not his statement of what he himself afterwards said to the opposite party."

(w) Shore v. Bedford, 5 M. & G. 271 (44 E. C. L. R.).

(x) Weeks v. Argent, 16 M. & W. 817. (y) Per Parke, B., Ibid.

ney in the particular business which is the subject of inquiry, are not privileged, though they may have been made confidentially.(z)

Where two parties employ the same attorney, a communication by one to him in his common capacity is not privileged, but may be used by the other.(a) And where a party employs an attorney who is also employed by the other side, the privilege is confined to such communications as are clearly made to him in the character of his own attorney.(b)

*It now remains to be considered what sort of communications made to [*506 an attorney, solicitor, or counsel by his client are entitled to protection. A very eminent writer on the Law of Evidence(c) has laid it down, that the privilege of the client is not confined to cases only where he has employed the attorney in a suit or cause, but extends to all such communications as are made by him to the attorney in his professional character and with reference to professional business. And this opinion has been confirmed by a case(d) where it was held that an attorney, to whom an application had been made to draw an assignment of goods, which he declined to do, could not be allowed to disclose that circumstance, a question having arisen, whether an assignment subsequently drawn by another attorney was fraudulent. And in that case Richardson, J., said, that if an attorney were to be consulted on the title to an estate, he would not be at liberty to disclose any information thus communicated to him to the prejudice of his client. And Sir J. Leach, V. C. in Walker v. Wildman, (e) considered the protection to extend to every communication made by the client to his counsel or attorney or solicitor for professional purposes.(f) And although Lord Tenterden, C. J., on several occasions, both before and since the case of Cromack v. Heathcote, expressed at Nisi Prius a contrary opinion,(g) yet it is now clearly settled that the privilege of professional confidence is not limited to cases in which a suit is in contemplation, (h) but that the client's privilege extends much beyond communications in respect of a suit.(i) Thus where it was proposed to ask an attorney whether a person had not applied to him to draw a conveyance, Parke, J., refused to allow the question to be asked saying, "I am of opinion that the privilege applies to all cases where the client

(2) Wilson v. Rastall, 4 T. R. 753, 760, and see post, p. 516. In a trial at Nisi Prius at Westminster, an attorney who had drawn an agreement between a sheriff and his undersheriff, being produced to prove a corrupt agreement between them, was not compelled to discover the matter, and per Holt, C. J., it seems to be the same law of a scrivener; and he cited a case where upon a covenant to convey as counsel shall advise, et consilium non dedit advisamentum being pleaded, conveyances made by the advice of a scrivener being tendered and refused, was allowed to be good evidence upon this issue; for he is a counsel to a man with whom he will advise, if he be instructed and educated in the way of practice, otherwise of a gentleman, parson, &c.: Anonymous, Skinn. 404. And in Turquand v. Knight, 2 M. & W. 98, it appeared that Knight had applied to an attorney to procure him a loan of money, and it was contended that where an attorney was employed to raise money, that was not such an employment as brought him within the rule; and that here he was acting as a scrivener only. Lord Abinger, C. B., said, "As to the point of this document being brought to him in the character of a scrivener, Lord Nottingham laid it down that he would not compel a scrivener to disclose the communications made to him" Harvey v. Clayton, 2 Swanst. 221 n.

(a) Baugh v. Cradocke, 1 M. & Rob. 182, Patteson, J.; Cleve v. Powel, 1 M. & Rob. 228, Lord Denman, C. J., saying, "either party has a right to the disclosure."

(b) Perry v. Smith, 9 M. & W. 681, per Parke, B.; in which case it was held that the same attorney having been employed upon the sale of an estate by the vendor and purchaser, a communication from the purchaser to the attorney, asking him for time to pay the purchase money, was not privileged. See Griffith v. Davies, per Parke, J., supra, note (v). (c) Phill. Ev. 7th ed. 143.

(d) Cromack v. Heathcote, 2 B. & B. 4 (6 E. C. L. R.).

(e) 6 Madd. 47.

(ƒ) And from the cases of Brard v. Ackerman, 5 Esp. 120, and Robson v. Kemp, 5 Esp. 52, it appears that Lord Ellenborough, C. J., was of the same opinion.

(9) Wadsworth v. Hamshaw, 2 B. & B. 5 (6 E. C. L. R.), note (a); Manning's Dig. 374; Williams v. Mundie, R. & M. N. P. C. 34.

(h) Phill. Ev. 168.

(2) The opinion of Lord Chancellor Brougham, Tindal, C. J., Lord Lyndhurst, C. B., and Parke, B., in Greenough v. Gaskell, Mylne & K. 98, as stated 4 B. & Ad. 876 (24 E. C. L. R.), per Parke, B.

applies to the attorney in his professional capacity, and an application to draw a deed is, I think, of that description."(j)

The rule was thus laid down by Lord Brougham, C. J., in Greenough v. Gaskell,(k) "If touching matters which come within the ordinary scope of professional employment they receive a communication in their professional capacity, either from a client or on his account, and for his benefit in the transaction of his business, *507] or which amounts to the same thing, if they commit to paper, in *the course of their employment on his behalf, matters which they knew only through their professional relation to their client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any court of law or equity, either as party or as witness."

In another case,(7) Alderson, B., said, "The rule seems to be correlative with that which governs the summary jurisdiction of the courts over attorneys. In Ex parte Aitken,(m) that rule is laid down thus: Where an attorney is employed in a matter wholly unconnected with his professional character, the court will not interfere in a summary way to compel him to execute faithfully the trust reposed in him; but where the employment is so connected with his professional character, as to afford a presumption that his character formed the ground of his employment by the client, there the court will exercise this jurisdiction.' So where the communication made relates to a circumstance so connected with the employment as an attorney, that the character formed the ground of the communication, it is privileged from disclosure." Thus communications made in relation to the sale and purchase of estates are protected; an attorney, therefore, who has been employed in the purchase and sale of estates, cannot be asked as to a communication made to him by the party who employed him.(n) So an attorney who, being resorted to by a borrower to raise money for him, peruses on the part of the proposed lender the abstracts of the borrower, is not allowed to give evidence concerning them.(0) But where a treaty has been entered into by B. with E. for the exchange of lands, and an abstract was handed by the attorney of E. to the attorney of B., and he compared it with the title deeds, and the attorney of B. on being called upon to produce the abstract stated that his client claimed to be entitled to the property under the contract of exchange, and that he held the abstract as part of the evidence of the contract, and had not applied to his client for leave to produce the abstract, but was ready to do so if the judge thought he ought, and the judge answered that there appeared no sufficient reason why he should not, it was held that the abstract was properly produced.(p)

(j) Doe d. Shellard v. Harris, 5 C. & P. 592 (24 E. C. L. R.). The learned Baron also held in the same case that the attorney could not be asked whether the party had asked his advice for a lawful or for an unlawful purpose, saying, "there is a great deal of difficulty in the witness's disclosing whether the conference between him and his client was for a lawful or unlawful purpose, without one being told what it was. It might be that the party asked if a particular thing could legally be done." The learned Baron also said that Williams v. Mundie was overruled by Greenough v. Gaskell. In Bowman v. Norton, 5 C. & P. 177 (24 E. C. L. R.), Tindal, C. J., held that a conversation between a client, who afterwards became bankrupt, and his attorney's clerk, on the subject of his affairs, was a privileged communication, and could not be given in evidence in an action by his assignees for the purpose of showing his motives.

(k) Supra.

(1) Turquand v. Knight, 2 M. & W. 98.

(m) 4 B. & Ald. 47 (6 E. C. L. R.). See also Ex parte Yeatman, 4 Dowl. P. R. 304. (n) Mynn v. Joliffe, 1 M. & Rob. 326, Littledale, J.

(o) Doe d. Peter v. Watkins, 3 Bingh. N. C. 421 (32 E. C. L. R.), and per Tindal, C. J.: "It would be of dangerous consequence if, where the same professional man is resorted to by lender and borrower, he is permitted to disclose the communications made to him on either side." And see Taylor v. Blacklow, 3 Bing. N. C. 235.

(p) Doe d. Lord Egremont v. Langdon, 12 Q. B. 711 (64 E. C. L. R.). This case must not be taken to decide that the court held that the production of the abstract might have been compelled, as Lord Denman, C. J., observed, "It cannot be said that the witness was in fact compelled to produce the document; he did not insist on the objection;" and the ground of the decision was thus stated: "The abstract was produced by the solicitor for a gentleman who had proposed to exchange some property with Lord E., but which exchange had not been carried into effect, and who had, therefore, no title which could be affected by the production of it. Nor had the solicitor any instructions from any one not