Whiting v. BarneyWhiting v. Barney
- Reporters:
- Before:
- Ingraham, Hogeboom, Davies
Where both parties are present, at the time when a communication is made by one of them to his attorney or counsel, thеre is nothing confidential in the communication.
Statement of case.
This action was brought to set aside a bond and mortgage as usurious and void. The complaint alleged that on the 25th day of June, 1857, the plaintiff loaned of David Barney, deceased, the defendant‘s testator, $366. That at the same time said deceased agreed to loan to the plaintiff the full sum of $600, for which the plaintiff, together with his wife, agreed to execute a mortgage upon certain real estate, to secure the plaintiff‘s bond, which was to be given conditioned to pay a like amount. That as a condition of such loan, it was agreed that said David Barney, deceased, should receive the sum of twelve per cent as interest. That for said $366, the plaintiff gave his note, with sureties. That afterwards, and on the fifth day of November, 1857, said David Barney advanced the further sum of $150, and no more, and thereupon the plaintiff gave the mortgage aforesaid, which is now sought to be set aside. The defendant‘s answer admitted that David Barney, deceased, lent to the plaintiff $366, June 25th, 1857, and took from him the joint notе of the defendant, Samuel Barney, and Miles Abbott. That in October thereafter, said David Barney loaned to the plaintiff the further sum of one hundred and fifty dollars, for which sums the plaintiff proposed, at some time thereafter, to give a mortgage, and take up said securities. That he afterwards applied for a further loan, and that he gave to said David Barney,
Judgment of dismissal being entered, the plaintiff appealed to the general term, which affirmed the judgment.
Opinion of Selden , J.
Its origin seems to have been this: In ancient times parties litigant were in the habit of coming into court and prosecuting or defending their suits in person. Subsequently, however, as law suits multiplied, and the modes of judicial proceeding became more complex and formal,
The most instructive case on this subject with which I have met is that of Annesley v. The Earl of Anglesea, before the Barons of the Irish Exchequer (17 How. St. Trials, 1139). The case was most extensively and ably argued, and very elaborately considered by the court; and the conclusion arrived at, as to the true origin of the rule in question, may be best stated in the language of Mr. Baron
To the same effect is the language of Mr. Justice
If this was the true foundation of the rule, it would follow that the protection is confined to communications made with a view to the conduct of a suit, or some judicial proceeding, and it goes most forcibly to confirm and strengthen the direct authority to which I have referred, that in the earlier cases, and while the origin of the rule was most likely to be kept in view, the doctrine would seem to have had this application. The earliest cases to be found on the subject are said to be those of Berd v. Lovelace (Cary‘s Rep. 88); Austin v. Vesey (id. 89); and Kilway v. Kilway (id. 126), in each of which the witness was excused from testifying, on the ground that he was the solicitor in the cause. In another case in the same report, viz: Denio v. Codington (p. 143), the excuse allowed was that the witness had been of counsel touching the matter in variance.
In Waldron v. Ward (Stiles, 449), the ground of privilege was the same. Sergeant Maynard there proposed to examine a witness as to some matter “whereof he had been made privy as of counsel in the cause.” But the chief justice would not permit the examination, saying that the witness was not bound to “disclose the secrets of his client‘s cause.”
A precisely similar decision was made nine years afterwards, by the same court, in the case of Curtis v. Pickering (1 Vent. 197). One Baker, who had been solicitor for Pickering, was called to testify concerning an erasure in a will, supposed to have been made by Pickering. Objection was made that having been retained as solicitor, he could not be examined. But the court held that it appearing that Pickering had made the discovery to him “before such time as he had retained him,” he might be sworn.
It is to be оbserved in regard to these two cases, that in neither is it said that the communication was not confidential, or not made to the witness in consequence of his professional character, but the decision is placed upon the sole ground that it was made before the witness was retained in the cause.
That the opinion of Lord Hardwicke was in accordance with these cases, is shown by the case of Vaillant v. Dodermead (2 Atkyns, 524), where the witness demurred to certain interrogatories, on the ground that he knew nothing of the matters enquired about, except what had come to his knowledge as clerk in court. The demurrer was overruled, аnd the first reason given by Lord Hardwicke was, that it appeared “that the matters enquired after by the
But, to come down to a later period: In the case of Wadsworth v. Hamshaw, before Chief Justice Abbott, (2 Brod. & Bing. 5, in note,) one Hughes, an attorney, being called as a witness by the plaintiff, stated that the defendants “had called upon him to advise them professionally, respecting the dissolution оf their partnership.” The counsel for the defendants objected; but the chief justice, without hearing the counsel on the other side, held “that the communication was not privileged, and that the protection was only extended to those communications with an attorney which related to a cause existing at the time of the communication, or then about to be commenced.” He also cited a case tried at the Midland circuit, in which the evidence of the attorney in the cause, called to provе some communication of his client, being rejected, the court upon application granted a new trial; expressly holding “that no professional communication was protected, except such as related to a cause.” This case is important, as giving not only the opinion of Chief Justice
This question came again before the same judge, in the case of Williams v. Mundie. (1 Ry. & Moo. 31.) The action was assumpsit, for goods sold; and the defendants’ attorney being called by the plaintiff, to prove that the defendants were partners when the goods were sold, stated that, “prior to the commencement of the action and to the period when the goods were supposed to have been sold, he had been consulted by some of the defendants in relation to a partnership then about to be entered into by them.” The evidence was objected to, but the chief justice said: “I think this evidence admissible. The rule I have invariably laid down in cases of this kind is, that what is
Precisely the same doctrine was laid down by
That Lord
In a case before the Lord Chief Baron, at the York summer assizes, viz., Hargreave v. Hutchinson, Lord
Looking, then, at the authorities thus far noticed, at the doctrine thus enunciated, traced, as it is, to a reasonable and certain origin in the early periods of the common law, we should say that there could be very little doubt as to the true limits of the rule. But unfortunately there is another class of cases still more numerous, which indicate a different doctrine, viz: that the privilege has no special relation to suits in court or judicial proceedings of any kind, but extends to every case where a member of the
It is a marked fact, and one of great weight upon this question, that very few of the cases which give the more extended scope to this rule, refer to its origin, or to any principle of policy upon which it is supposed to rest. They seem to assume that it is because the communication is confidential that it is protected, and hence great difficulty is experienced in finding any limit to the privilege.
It is sаid that in one case the court, led, as it would seem, by the idea that the betrayal of confidence had something to do with the rule, would not permit a trustee for the plaintiffs and defendants, who had been employed by them in the purchase of offices, to be examined, and on the ground that he should not be allowed to betray a trust. (See 2 Stark. on Evidence, 322.)
In the case of Wilson v. Rastall, (4 Term R. 753), a leading case on this subject, it was seriously insisted that a confidential communication to a friend, relying upon his secrecy, was protected. Lord
This remarkable uncertainty as to the rule, has followed this question into the courts of this country. In Holmes v. Comegys, (1 Dall. 439), it was contended that communications to a confidential agent or factor, and in Caps v. Robinson, (2 Wash. C. C. R., 389), those to a confidential clerk, were protected.
These cases could never have arisen but for the fact that the courts, whenever they have extended the privilege to communications other than those which related to some
The authoritative weight of this class of cases, therefore, depends in a great degree upon the correctness of this assumption. It can hardly require argument to prove that the social obligation, faithfully to guard against revealing that which is communicated in confidence, cannot by possibility, have any logical connection with the rule in question. That obligation relates solely to a voluntary disclosure, and can have nothing whatever to do with the policy of the law, in its efforts to ascertain truth, and administer justice. It is dishonorable in one to whom a secret has been confidentially confided, voluntarily to reveal it; therefore, the law when engaged in ferreting out this very secret, should not compel its disclosure. Is this sound reasoning? No one will so pretend, and yet palpable as is the distinction, its disregard through the inadvertencе of the courts, has had a great deal to do with the wide departure in the class of cases under consideration, from the rule as originally laid down. I do not mean to say that the courts have deliberately placed their decisions upon this obviously untenable ground, but that their language often shows that the idea of violation of trust was prominent in their minds, and influenced their conclusion.
It is strongly corroborative of the view here maintained, that whenever any judge has directed his attention speci
But notwithstanding this distinct recognition by the chancellor of the true basis of the rule, which if admitted, necessarily admits the privilege to communications having some connection with judicial proceedings, he nevertheless in that very case, allows the protection to cover communications not made in reference to any such proceeding, either past, present or future; the statement of the witness being merely that they “were received by him in his capacity of confidential solicitor for Dannall, for whom he had been professionally concerned for a number of years.” How such a conclusion could be deduced from a rule founded upon such a reason, I am unable to see; and the learned chancellor would himself, I think, find it difficult satisfactorily to explain. The question was precisely the same as that in the case of Annesley v. The Earl of Anglesea, supra, the opinion of both courts as to the true basis of the rule was the same, and yet the conclusions arrived at were directly opposite. I think very few, upon a critical examination of the two cases, would hesitate to concur with the Irish barons. It may not be improper to say, that Lord
I will here refer to two other cases, as they seem to me specially worthy of notice, viz: Mills v. Griswold (1 Root, 383), and Calkins v. Lee (2 Root, 363). The question in both these cases was whether a witness is obliged to disclose, upon his oath, what the defendant had told him in confidence, and upon a promise to keep it secret.
In the first case, the court said: “The distinction is, where the communications are necessary, in the course of business, as of a client to his attorney, he may not disclose them. But where the communications are voluntary, as in the present case, his oath obliges him to tell the whole truth.” In the other case it said: “If it is a voluntary communication, and the adverse party is interested in the testimony, the witness must testify.”
In these two cases the court, without expending any learning upon the origin or history of the rule, and without being confused by any considerations as to the violation of confidence, and of the solemn promise of the witness not to disclose, with that plain and unerring good sense which has so often distinguished the courts of that state, went at once to the very pith of the rule of exemption. They seem to have seen that it was only because the necessity of employing attorneys to transact the business of courts, in a measure compelled the reposing of confidence in them, that communications to them were protected.
There are many other considerations, as well as cases, which if adverted to would throw light upon this subject. But it seems to me that enough has been adduced to make it clear, that the privilege in question is not founded upon any idea of the sacredness of confidential communications, whether made to an attorney or to any other person; nor upon any peculiar policy of the law which distinguishes the general business of an attorney frоm that of any other class in the community; but it was the result of that rule of the common law, which excused parties from testifying in their
Whether, therefore, the recent legislation in this state, compelling parties to testify as witnesses in their own suits, should be deemed to have removed the whole foundation of the rule, and terminated all necessity for its continuаnce or not, which may admit of some doubt, it follows from the views here expressed, if correct, that the protection should only be held to extend to such communications as have relation to some suit or other judicial proceeding, either existing or contemplated.
The judgment of the supreme court, at general and specal term, should be reversed, and there should be a new trial, with costs to abide the result.
Opinion of Ingraham , J.
I do not think the witness can be considered in any other light than as the counsel of Barney. He wanted the advice, and the object of consulting the counsel was to ascertain if the arrangement could be made legally, so that he (Barney) could get twelve per cent. оn the loan. A part of the transaction was the taking of the note and payment of the money, and leaving the note in the possession of the counsel until it was endorsed and delivered, and the deposit of extra interest was made with the counsel. This was a fact within the knowledge of all the parties, and which, under all the cases, would not be privileged.
This evidence offered was an examination of a witness as taken on a former trial. The stipulation to admit such evidence, expressly excluded the testimony of this witness. There was no ground on which it could have been received, even if the court had ruled that it was not privileged; unless with the consent of the adverse party.
The objection to this evidence when offered, was solely on the ground that it was privileged, and we can only conclude that the other objections were waived, and the parties had agreed to submit the question solely on the points stated on the trial. As the objection was not made in the court below, the defendant cannot now avail himself of those grounds to sustain the exclusion of the evidence.
The judgment should be affirmed.
Judgment reversed.