Jordan v. Osgood.

In Rowley v. Bigelow, 12 Pick. 307, the plaintiffs alleged that one Martin, an insolvent person, had fraudulently obtained possession of the goods in controversy by pretending to purchase them for cash. Evidence was admitted "that Martin had made similar pu chases" of others "about the same time, and under circumstances tending to show that he was insolvent and that he knew it, and had no reasonable expectation of paying for the merchandise according to his contract." What those circumstances were does not appear in the report of the case. The court held the evidence competent upon the ground that it had a direct tendency to show that Martin was insolvent, knew he was insolvent, and did not expect or intend to pay for the goods purchased, and thus had a direct bearing upon the issues involved in the case. It cannot be regarded as an authority for the proposition that it is competent in proof of an alleged frand to give evidence of a distinct act of fraud, not part of one scheme, and not connected in design.

We think the result of the authorities is, as stated in substance in Williams v. Robbins, ubi supra, that the transaction proposed to be proved for the purpose of showing the fraud which is the subject of controversy, must be shown by some evidence, direct or circumstantial, to be so connected with it as to make it apparent that the defendant had a common purpose in both; but if the transaction is distinct and with no connection of design, it is not admissible. Testing the case at bar by this rule, we are of opinion that the evidence of other false representations made by the defendant about the time when he purchased the goods of the plaintiffs was inadmissible. There is no evidence showing any connection between the alleged fraud practiced on the plaintiffs and the other transactions. These transactions appear to have been purchases in

the usual course of the defendant's business.

The mere fact that an insolvent trader makes misstatements as to his pecuniary condition does not justify the inference that he has formed a general scheme to cheat, and there was no evidence of any suspicious disposition of his property, by concealment or preferring favored creditors, or otherwise, which tended to show such scheme.

There was nothing in the nature of the acts nor in independen. testimony showing a connection between the transactions. The evidence of these distinct transactions, therefore, was not com petent.

We cannot agree with the argument of the plaintiffs that this

Worthington v. Scribner.

exception becomes immaterial because the jury found for the plaintiffs upon the issue of false representations. The evidence was calculated to prejudice the jury against the defendant upon this issue, and its admission affords a sufficient reason for a new trial.

The other exceptions may be briefly considered. One of the issues involved was the insolvency of the defendant before and at the time of his purchases. It was competent to show what money he had in the bank at those times. For this purpose the books of the bank, supported by the oath of the book-keeper, were admissible. Briggs v. Rafferty, 14 Gray, 525; Adams v. Coulliard, 102 Mass. 167. The defendant agreed that the transcript from the books might be used in the same manner as the books themselves could be. The jury were rightly allowed to read it.

We express no opinion upon the question whether the record of the district court was admissible under the circumstances of the case, as the circumstances may be different upon another trial.

We are of opinion that the defendant has no ground of exception to the admission of the testimony of the expert who had examined his books and schedules. The witness was not allowed to state deductions and inferences of his own judgment, but merely results of computations, and his testimony was admissible in the discretion of the presiding judge. Boston & Worcester Railroad Co. v. Dana, 1 Gray, 83.

Exceptions sustained.

In an action for falsely and maliciously representing to the treasury depart ment of the United States that the plaintiff was intending to defraud the revenue, the plaintiff filed interrogatories requiring the defendant to answer whether he did not inform the department that he knew or believed that plaintiff was intending to commit a fraud upon the revenue. Held, that any communications of the kind to the department were privileged in the sense that their disclosure will not be compelled or permitted without the assent of the government, and that defendant would not be compelled to answer the interrogatories.

Worthington v. Scribner.

TORT against Charles Scribner and others.

The declaration

alleged that the plaintiff was engaged in importing books into the United States; that the defendants without probable cause and maliciously and falsely represented to the treasury department of the United States that the plaintiff was intending to bring books into the United States in fraud of the revenue laws; that the department thereupon and induced thereby caused plaintiff's books to be seized and libeled when entered for import; and that the proceedings were afterward dismissed and the books released.

The defendants' answer denied all the plaintiff's allegations, and further alleged "that if any communication was made by any person to said solicitor or other officer of the United States, as alleged, or relative to any anticipated attempts to introduce goods into the United States without payment of the proper duties thereon, and not in conformity with the laws of the United States, the same would be a privileged communication, and would not be ground or cause for this action."

The plaintiff filed interrogatories, to be answered by the defendants severally, one of which was as follows: "Did you not, in the summer or fall of 1869, and if so, when, inform the United States treasury department, the secretary, the solicitor of the treasury, or some officer or employee in said department, and if yea, when, that you knew, or believed, or thought that the plaintiff was buying large quantities of books in England, with the intention of bringing them into the United States in violation of law, or any thing to that effect? If yea, state fully all that you did in the matter, including copies of all written communications, and substance of all oral statements." There were several similar interrogatories.

The defendants refusing to answer these interrogatories, the plaintiff moved that they be ordered to do so, and the question whether the motion should be granted was reserved for the determination of the full court.

R. M. Morse, Jr., and R. Stone, Jr., for plaintiff.

G. S. Hale, for defendants.

GRAY, J. It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws. To encourage him in performing VOL. XII.-93

Worthington v. Scribner.

this duty without fear of consequences, the law holds such informa tion to be among the secrets of State, and leaves the question how far and under what circumstances the names of the informers and the channel of communication shall be suffered to be known, to the absolute discretion of the government, to be exercised according to its views of what the interests of the public require. Courts of justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government. The evidence is excluded, not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications.

The earliest case upon the subject is Rex v. Akers, 6 Esp. 125, note, in which, on an indictment for obstructing a custom-house officer in the execution of his duty, Lord KENYON said: “The defendant's counsel have no right, nor shall they be permitted, to inquire the name of the person who gave the information of the smuggled goods." All the English authorities agree that the rule has ever since been held in revenue cases to prevent a witness from answering questions that would disclose the informer, if a third person; and in Attorney-General v. Briant, 15 M. & W. 169, it was held that a witness could not be asked on cross-examination whether he was himself the informer. The rule has been nearly as long established in prosecutions for high treason. Rex v. Hardy, 24 Howell's State Trials, 199, 753, 816-820, 823; Rex v. Watson, 32 id. 1, 102-105; S. C., 2 Stark. 116, 136. And it has been often applied in civil actions.

In Robinson v. May, 2 Smith, 3, which was an action for a libel in a letter by the defendant to the lords of the admiralty, charging the plaintiff with unlawfully pretending to be a magistrate and granting protections to vessels to the prejudice of the royal service, the lords of the admiralty had given up the letter and directed the action to be brought, so that no question whether it could otherwise have been put in evidence arose; the only question argued was whether the letter could be held to be a libel; and Lord ELLENBOROUGH, in delivering judgment against the defendant on that question, expressed a significant doubt "whether the oard of admiralty did right in suffering the paper to go out of their hands, since it might tend to discourage the giving of information con

Worthington v. Scribner.

cerning abuses"-thus distinctly implying that, but for the course taken by the board of admiralty, the plaintiff could not have proved

his case.

In Home v. Bentinck, 2 Brod. & Bing. 130, it was held by Chief Justice ABBOTT, and affirmed in the exchequer chamber, in an action for libel by an officer of the army against the president of a military court of inquiry, that neither their report to the commander in chief, nor an office copy of it, should be admitted in evidence. In the very recent case of Dawkins v. Rokeby, L. R., 8 Q. B. 255, the same court held the statements, oral or written, of an officer, examined before such a military tribunal, to come within the same principle. And in Beatson v. Skene, 5 H. & N. 838, an action of slander against one military officer for speaking defamatory words of the military conduct of another, it was held that the secretary for war, who objected to produce in evidence the minutes of a court of inquiry, and letters written to the war department by the plaintiff himself, on the ground that their production would be prejudicial to the public service, was not bound to produce either.

In Earl v. Vass, 1 Shaw. 229, which was an action for a libel alleged to be contained in a letter to the board of customs before which the nomination of the plaintiff as a custom-house officer was pending, the house of lords, upon the opinion of Lord ELDON, after conference with Chief Justice ABBOTT, held that the board could not be compelled to produce the letter, "because it is against public policy that you should be compelled to produce instruments and papers which, if persons are compelled to produce, it must shut out the possibility of the public receiving any information as to a person's fitness to be appointed to an office;" and "it would be a very dangerous thing indeed, if this were permitted."

In Marbury v. Madison, 1 Cranch, 137, 144, the supreme court of the United States compelled the acting secretary of state to testify whether certain commissions from the executive had ever been in his office, only because "that could not be a confidential fact;" and declared, that if there was any thing confidential, or the secretary thought any thing was communicated to him in confidence, he was not obliged to disclose it.

The ruling of Chief Justice MARSHALL upon the trial of Aaron Burr, cited for the plaintiff, was merely that a subpoena duces tecum might be issued to the president of the United States for letter addressed to him by a military officer who was to be a