4 Vt. 612 | Vt. | 1832
The opinion of the Court was delivered by
The first question in the case is, whether Mr. Kimball, who is an attorney of the court, and was the attorney of the plaintiffin this case, on the trial in the county court, was properly compelled to testify in relation to the papers in his possession, and to produce the same. Attornies are not compelled, nor are they permitted, to give evidence of facts which come to their knowledge from the confidential communications of their clients in the course of their professional duty. There seems to be some discrepancy in the authorities, whether the rule, as to the exclusion of the evidence of solicitors and attornies, extends to all communications made by a client, while consulting them professionally, or whether it is confined only to those made for the purpose of instituting or defending an action. Lord Tenterden, in the case of Wadsworth vs. Hamshaw and Aspinal, (found in a note to the case of Cromach vs. Heathcote, 2 B. & B. 4,) and afterwards in the case of Williams et al. vs. Mudie et al., 1 Car. & P. 158, was disposed to confine it to the latter case ; and he was followed in this by C. J. Best, in the case of Broad vs. Pitt, 3 Car. & P. 518. These, however, were decisions of nisi prius. It appears to me that the rule laid down by the court of common pleas, .in the case of Cromack vs. Heathcote, 2 B. & B. 4, is the better law, and is confirmed by the current of authorities. I think Scarlett, in the case of Williams vs. Mudie et al., is fully sustained in his assertion, “ that the law is clear, that any communication toan
Neither the rule of the common law, nor the statute, authorized the defendant to call on the court to compel Mr. Kimball to produce the paper in question. We are of opinion, therefore, that the county court ought not to have compelled Mr. Kimball to produce the bill of sale, and that his duty to his client required him not to produce it, except in obedience to an order of the court.
We are of opinion, also, that the bill of sale, as it is termed, did n8t impose upon the plaintiff precisely the duty which the county court thought was required of him, as appears by their charge to-the jury. The bill of sale was evidently intended as a security for his demand against the defendant; and further to enable hit» to realize a more speedy payment than he could otherwise obtain-
The judgement of the county court is, therefore, reversed, and a new trial granted.