18 W. Va. 642 | W. Va. | 1881
announced the opinion of the Court:
Two bills of exceptions were taken during the trial. The first bill shows, that one of the counsel of the plaintiff wasin-trodueed as a' witness in his behalf, and on cross-examination was asked/how much fee he was to receive from the plaintiff, to which he replied, “ that he did not regard it as any of their business, that his contract with the plaintiff was in writing, that he -would not give it up or detail its contents.” Whereupon the defendant moved the court for a subpoena duces tecum, to be served on said witness returnable forthwith. In response to this writ the witness appeared and moved the court to quash the writ upon the ground that it was improperly awarded, because it was defective on its face, and because it called for the production of a private paper, in which the defendant had no interest. This motion being overruled the witness produced the contract, which was read to the jury for the purpose of showing the witness’s interest in the suit, and to go to bis credibility as witness. To the reading of this paper to the jury the plaintiff objected, but the court overruled his objection and permitted it to be read. The contract showed, that the witness as counsel in the case was to receive $50.00 retainer, to be paid in twelve months, and in addition thereto one half of the recovery in the case, but was not to be liable for any costs.
Whether the subpoena duces tecum was properly awarded, or was defective on its face, or was to cause the production of a private paper are questions, that need not be considered in this court, where the only question is, whether the contract was proper evidence between the plaintiff and defendant upon the issues joined between them. If it was, it is no matter how that evidence was procured. It may be remarked however, that where any written document material to either party is in possession of a third party, the court may award a subpoena duces tecum to compel such third person to attend at the
The counsel for the plaintiff in error argues, that this contract as to the fee comes under the rule of professional communications and confidence, which cannot be disclosed to the prejudice of the client’s case. I do not so understand it; nor can it in any way affect the client’s right to recover. What compensation he may choose to pay his attorney, does not enter into the question at all. It would be incompetent testimony, so far as it affected or was intended to affect the client, and as original evidence would clearly have been inadmissible. But I know no rule of law, when an attorney goes upon the stand as a witness, which exempts him'from the rules applicable to all other witnessess, for testing the interest, which he has in the suit. Formerly one who had a pecuniary interest in the result of a suit was incompetent to testify at all; now by statute he may do so, and that interest goes to his credibility as a witness. To say in the case of an attorney, that the rule shall not apply, would be to make a distinction, that would be productive of no good and would be be founded upon no reason whatever. When he steps down from his place as attorney to take the stand, as a witness, he must stand the test, which is applied to all other witnesses ; and his credibility is to be weighed in the same scales of interest, in which that of all others is weighed.
Fortunately the books show very few cases, in which lawyers have become witnesses for their clients. While there are some cases of an extreme character, in which such practice is necessary, ordinarily it is much to be regretted, that such a practice should exist or be encouraged. So reprehensible is the practice generally, that it has been much doubted, whether a lawyer is a competent witness for his client. Wharton’s
As to whether the interest of the witness was shown in a proper manner, it is laid down by the authorities, that there are two modes of showing this interest; but whether each is exclusive of the other, is not clearly settled. It may be shown by the examination of the witness or by evidence aliunde. If the evidence offered aliunde to show the interest is held to be inadmisible, the witness may be examined on his voir dire; and if the witness on his voir dire does not answer in such a way as to show his interest, but leaves it doubtful, whether he is interested or not, evidence aliunde may be resorted to. (1 Greenl. Ev. § 423.) It is a matter of discretion in the court at nisi prim, whether to require the production of a paper by subpoena duees tecum, (Amey v. Long, 9 East 473; Amey v. Long, 1 Camp. 14.) In this case the exercise of this discretion could have been avoided by the answer to the question, What interest he had in the suit ? which the defendant had an unquestionable right to ask. He might doubtless have been compelled to answer that question, but as he stated, that that interest was embodied in a written contract, it seems to. me to be clear, that the production of that paper was proper. But whether it was or not the plaintiff can not complain of the mode of producing it. I do not think the court- erred in requiring the production of this paper and permitting it to be read to the jury, so far as the plaintiff is concerned.
I am of opinion to affirm the judgment of the circuit court with costs and $30.00 damages.
JUDGMENT AfEXEMED.