Bean v. Quimby

5 N.H. 94 | Superior Court of New Hampshire | 1829

By the court.

We shall, in the first place, consider the question whether Nichols was bound, or could be permitted, to disclose communications which had been made to him by the defendant in error, fox* the purpose of enabling him to manage the cause ? w

It is contended on behalf of the plaintiff in error, that the privilege of clients to have their communications to counsel kept secret extends only to communications made to professional men and not to those made to any other description of persons whom they may choose to employ to manage a cause. But we are inclined to think that the law is not so in this state. The statute of February 17, 1791, enacts “that the plaintiff or defendant in any cause, prosecution or suit, being a citizen of this state, may appear, plead, pursue or defend, in his proper person, or by such other citizen of this state, being of good and reputable character and behavior, as he may engage and'employ, whether the person so employed be admitted as an attorney at law or not.” This statute gives in express terms to every citizen of this state the right to have his cause managed by any person of good moral character, whom he may see fit to employ ; and we think this right includes, as a necessary incident without which it cannot be safely enjoyed, the right to instruct those who may be thus employed and to have the trust and confidence thus reposed preserved inviolate in all cases.

But while we are disposed to give to every citizen the full enjoyment of all his rights in this respect, we are not1 willing to give any countenance to those, who, without the necessary qualifications, undertake to advise as counsel and to commence suits in their neighborhood. It has been supposed that the members' of the bar were opposed to the interference of such persons in such matters, because it might tend to injure the business of the profession. But nothing can be further from AeTSttig than 'such a hupposition. ■

When those, who are not qualified to act, as counsel engage in the practice of the law, their blunders are much more likely to increase, than their interference to diminish, the business and emoluments of the profession. No, it is from much better, much higher, much more honorable motives, that the bar withhold all countenance from ignorant obtruders. It, is to preserve to the administration of justice some degree of order and regularity, and some degree of purity, that they do this ; and this case is a strong illustration of the soundness and utility of the principle, upon which they act. lathe commencement of this suit, there was a wide departure from the course that should have been pursued' — a departure, which could be justified on no principle, which any member of the bar in this state could be found to maintain — a departure, of which no attorney would have dared to be guilty.

The slightest interest renders a magistrate incompetent to try a cause ; and the circumstance, that he is of kin to one of the parties renders it at least highly unbecoming in the counsel of such party to ask him to take cognizance of the case. 3 Burr. 1856 ; 12 Johns. 356, M'Dowell v. Van Deusen; 13 ditto, 191, Pierce v. Sheldon; 17 ditto, 133, Eggleston v. Smiley; 19 ditto, Bellows v. Pearson.

Another question in this case, is, whether the deposition taken before the uncle of the original plaintiff ought to have been permitted to go to the jury ? On this question we have no doubt. The invariable rule by which this court is governed, in the admission of depositions, is not to receive any which have not been taken fairly and with the utmost good faith, before a suitable magistrate, and at a proper time. There is no colour of pretence that the uncle of one of the parties in the cause was a suitable person to take a deposition for that party. And we are of opinion, that the court below erred in admitting that deposition and suffering it to go to the jury, and for that cause the judgment of the common pleas must be reversed.