1843. (Civil Side). BEFORE MR. JUSTICE ERSKINE. HIGGS v. TAYLOR, Gent., &c. &c. CASE against the defendant, as an attorney, for negli- In an action against an attorney for negligence respecting a reference of an action for breach of pro mise of marriage, brought by Miss S. against gence respecting a reference of an action for a breach of promise of marriage which had been brought against the present plaintiff by Miss Mary Slaney, in which action the present defendant was the attorney of the present plaintiff. The defendant pleaded seven pleas, which in substance were-not guilty; a denial of his retainer by the plaintiff; the present a denial of the agreement for the reference; a denial of which he was the duty alleged in the declaration; and a plea, alleging present plaintiff, attorney for the that the reference was not proceeded with from the wilful it appeared that default and neglect of the plaintiff himself. the plaintiff, in there were two -parts of the agreement to ed by Miss S.'s attorney, (un stamped), which was in the pos session of the present defend It was opened by Talfourd, Serjt., for the plaintiff, refer, one signthat in the year 1839 an action for breach of promise of marriage had been brought by Miss Slaney against the present plaintiff; and that, on the 10th of July, 1840, attornies of Miss Slaney, and the present defendant, as attorney for the present plaintiff, had entered into agreement to refer the cause to two arbitrators, one named by each party; and that judgment should be signed against the present plaintiff in that action for £500, the an ant, the other signed by the present defend ant as attorney for the present plaintiff, and in the hands of Miss S.'s attor ney. The latter had been stamp ed within twenty-one days after its execution, and the expense of the stamping, and part of the expense of the making of it, had been paid by the present plaintiff, the rest being taxed off. The part in the hands of the present defendant being called for and produced under a notice to produce, being unstamped, could not be read in evidence:-But held, that the present plaintiff was entitled to have the stamped part of the agreement produced by Miss S.'s attorney, although Miss S. had desired her attorney not to produce it. Held, also, that Miss S.'s attorney was not bound to produce letters written to him by the present defendant, as attorney for the present plaintiff, he stating that he was desired by his client, Miss S., not to produce them; but that, if letters written by Miss S.'s attorney to the present defendant, as attorney for the present plaintiff, were not produced when called for under a notice to produce, Miss S.'s attorney was bound to give secondary evidence of their contents, although desired by Miss S. not to do so. 1843. HIGGS v. TAYLOR. damages in the declaration; that, there being no power of enlarging the time for the award beyond the 10th of October, 1810, nothing was done on the reference. After that an execution was taken out against the present plaintiff for £500, and the costs, which he was obliged to pay; the defendant, as his attorney, neither having proceeded with the reference, nor taken any step to procure the judgment to be set aside. On the part of the plaintiff, Mr.Thomas Rushton was called. He said, "I hold the agreement for the reference, but I am desired by Miss Slaney not to produce it, unless his Lordship decides that I must do so. I have the agreement now in my possession, and I had it when I was subpoenaed to produce it. There were two parts of it. The one which I have was written by the present defendant, and signed by him for himself and his partner, as attornies for the present plaintiff. That part of the agreement was stamped in July, 1840, and within twenty days after it was signed; the reference extended to the following October. The other part of the agreement I signed as attorney for Miss Slaney, and sent it to the present defendant as attorney for the present plaintiff. I had my costs taxed, and the sum at which they were taxed was paid by the present plaintiff. This agreement, and the stamping of it, were included. The present plaintiff paid the whole expense of the stamp, and part of the expense of drawing this agreement, the remainder of the expense being taxed off, and that was paid to me by Miss Slaney." Talfourd, Serjt., for the plaintiff, under a notice to produce, called for that part of the agreement which was in the hands of the defendant. R. V. Richards, for the defendant, produced it; but it could not be read, because it was unstamped. Talfourd, Serjt.-I submit that Mr. Rushton must pro duce the part of the agreement which he holds. It belongs to the present plaintiff. He paid for it, and paid for the stamping (a). ERSKINE, J.-That part of the agreement ought to be produced. It appears to have been stamped for the benefit of all parties. Mr. Rushton must produce it. Mr. Rushton produced the part of the agreement which had been stamped. R. V. Richards.—I hope that your Lordship will take a note of the objection. ERSKINE, J.-I do not think that you have any thing to do with it; you are not counsel for Miss Slaney. The part of the agreement produced by Mr. Rushton was read. Talfourd, Serjt., desired Mr. Rushton to produce the letters written by the present defendant, as the attorney of the present plaintiff, to him, (Mr. Rushton), as the attorney of Miss Slaney (b). (a) See the case of Turner v. Hardey, Carr. & M. 449. (b) In the case of Wheatley v. Williams, (1 M. & W. 533), it was held, that an attorney is not compellable to state, when examined as a witness, whether a document shewn to him by his client in the course of a confidential consultation with his attorney was then in the same state as to being stamped as it was when produced on the trial; and in that case Baron Alderson said, "I think the privilege extends to all knowledge that the attorney obtains which he would not have obtained but for his being consulted professionally by his client." In B. N. P., 284, it is said, that "an attorney may be examined to a fact of his own knowledge, and of which he might have had knowledge without being an attorney; as, suppose him witness to a deed produced in the cause, he shall be examined to the true time of execution. So, if the question be about an erasure in a deed or will, he might be examined to the question, whether he had ever seen such a deed or will in other plight, for that is a fact of 1843. HIGGS v. TAYLOR. 1843. HIGGS บ. TAYLOR. Mr. Rushton said that Miss Slaney had desired him not to produce them. ERSKINE, J.-I cannot compel him to produce these letters. Talfourd, Serjt., (under a notice to produce), called for the letters written by Mr. Rushton, as attorney for Miss Slaney, to the present defendant, as attorney for the present plaintiff. R. V. Richards declined to produce them. Talfourd, Serjt., desired Mr. Rushton either to produce his copies of them, or to state their contents. Mr. Rushton. My Lord, Miss Slaney has desired me not to do so. ERSKINE, J.-The letters you write to other people are not the property of Miss Slaney, nor can your memory of the contents of letters sent by you for Miss Slaney to an opposite party be considered as her property either. As the original letters are not produced by the present defendant, you must state their contents from your memory, his own knowledge, but he ought which he could not otherwise have possessed, he can be compelled to disclose it. Suppose an attorney, when searching for a deed belonging to his client, found another deed which might operate to the client's prejudice, can it be said that he is bound to disclose it? If, therefore, a document be exhibited to the attorney in pursuance of a confidential consultation with his client, all that appears on the face of such document is a part of the confidential communication." and may refresh your memory from any copies or memorandums of their contents made by you at the time. A juror was withdrawn by consent. Talfourd, Serjt., Whateley, Carrington, and Meteyard, for the plaintiff. R. V. Richards, and F. V. Lee, for the defendant. [Attornies-Lowe, and Taylor.] 1843. HIGGS v. TAYLOR. SHROPSHIRE ASSIZES. (Crown Side). BEFORE MR. JUSTICE WIGHTMAN. REGINA V. HANNAH HARLEY. INDICTMENT on the stat. 7 Will. 4 & 1 Vict. c. 36, ss 27 and 28 (a). The first count of the indictment charged, letter containing promissory notes into the post. He took it to the inn with money to prepay the postage; he did not put it into the letter-box, but laid the letter, and the money upon it, upon a table in the passage of the inn, in which passage the letter-box was, and he pointed out the letter to the prisoner, who was a female servant at the inn, who said she would "give it to them." The prisoner, who was not authorized by the innkeeper, her master, to receive letters for him, stole the letter and its contents:-Held, that this was not a "post-letter" within the stat. 7 Will. 4 & 1 Vict. c. 36, ss. 27, 28, and that the stealing of the letter and its contents by the prisoner was not an offence within either of those sections. (a) By the stat. 7 Will. 4 & 1 Vict. c. 36, s. 27, it is enacted, "that every person who shall steal from and out of a post-letter any chattel, or money, or valuable security, shall in England and Ireland be guilty of felony, and in Scotland of a high crime and offence, and shall be transported beyond the seas for life." And by sect. 28 of the same statute it is enacted, "that every VOL. I. person who shall steal a post-letter |