46 Vt. 113 | Vt. | 1873
The opinion of the court was delivered by
I. J. B. Robinson was produced by the defendant as a witness, and excluded by the court, on the ground that Robinson had become possessed of the facts he was to give in evidence, confidentially, as the attorney of the plaintiff. The defendant testified that he had never employed Robinson as his attorney in this suit. And Robinson testified that “ he never understood he was counsel, or to be counsel, in this matter. He talked over his matter with Grout, and discussed with me Grout’s liability. I was doing his collecting generally. He had consulted me about other matters.” The burden is upon the party who seeks to have his statements suppressed as evidence, because they are privileged communications. The facts that would make them so, must be proved. The general rule is, that a witness, called upon the stand, is bound to tell the whole truth. The communication, to be privileged, must have been made to the witness confidentially, as his counsel; the relation of counsel and client must have existed at the time, and the communication made for the purpose of obtaining counsel, advice, or direction, in regard to his legal rights. It is not required that the witness should have been retained generally in the matter upon which the party was seeking advice ; but he must have been counsel upon the subject upon which the conference was had, and the communication made to him as such. The evidence, so far as it is stated in the exceptions, tends to show that the witness did not regard that the. communication was made to him as counsel; nor is there any evidence that the plaintiff understood at the time that he was consulting,
II. Harrington, against the defendant’s objection, was admitted to testify that Bullard said to the witness that “ Grout had bought the paper; ” and also stated many other things tending to show that defendant was interested in the property one or two days after the property was transferred from Hovey to Dr. Bullard. This evidence was admitted on the ground that Bullard (as the plaintiff claimed) was, at the time, the agent of the defendant. The declarations of an agent are admissible, if made in the execution of his agency, but not if made afterwards. Austin v. Chittenden, 33 Vt. 553. The exceptions state that plaintiff “ relied upon various circumstances and acts of defendant and Bullard, to show that defendant had an interest in the purchase when it was made by Dr. Bullard of Mr. Hovey, and that he would he likely to make Dr. Bullard his agent to employ said Harrington.”
The exceptions seem to negate that there was any proof that defendant had made Bullard his agent to employ Harrington; but rather that the defendant had a secret interest in the property at the time of this purchase; and if that was so, it was “ likely ” and natural that he would authorize Bullard to employ Harrington for him. The admission of Dr. Bullard’s declarations as evidence in chief against the defendant, we think, was error.
Judgment reversed, and cause remanded.
