Doe ex dem. Stephens v. Roe

Harris, J. 1. The defendants below introduced as witnesses in their behalf, the attorneys at law of the plaintiff, and propounded to them the question whether they were not employed by JohnU. Stephens to bring the pending ejectment suit for his individual benefit. An answer to this question was resisted by the attorneys at law on the ground that communications between clients and attorneys in reference to suits to be begun or in progress, are within the protection of a rule of the common-law, and which no Court will allow attorneys to disclose at any time or to testify as to. The Court overruled the objection made, and compelled an answer to the question. We think in this he erred. Doubtless cases may be found in State court reports which will sustain the decision below; perhaps, under the greatly changed system of English law, cases arising under it may be found sanctioning it; but we cannot but regard all such cases as violating one of the soundest and most valuable rules ever established to promote the fullest confidence between attorney and client. If the question propounded had stopped with the simple enquiry, whether they had been employed by John U. Stephens to bring this ejectment suit, it could not be affirmed that a direct answer to it would involve a breach of professional confidence; but when it seeks to elicit as a fact that they were employed to maintain the individual claim of John U. Stephens to the land, and not his right as administrator of Thomas Stephens, in whom a demise is laid in the declara [292] tion, we are strongly impressed that such enquiry does involve the disclosure of a confidential communication — for the question seeks covertly a disclosure of a disclaimer of title for the estate he represents. As well might the attorneys have been asked whether John U. Stephens had not said to them that the estate of Thomas Stephens had no claim or title to the land sued for, as the question put and allowed. No one, it is apprehended, will insist that the form of question just stated could legally have been put; substantially and in effect they are same, and the answers would furnish disclosures of communications which are under rule held inviolable. 2. In addition to the demise of John U. Stephens individually, a further demise was laid by amendment to John U. Stephens, as administrator of Thomas Stephens. The testimony having closed, the plaintiff's counsel requested the Court to charge the jury “ That as such administrator, he was entitled to recover the land sued for to the extent of the title shown to be in the estate of Thomas Stephens.'' This was not given without qualification. Had the plaintiff a right to such instruction to be given to the jury without qualification? We think he had. In ruling the charge of the Judge as erroneous, we would not be understood as denying his right to qualify propositions requested to be presented by him to the jury, when they are not strictly legal or pertinent, or when they require some addition or diminution to make them entirely correct, or are unauthorized by the facts in the case, but as the matters involved in the qualification made by the Judge were entirely separable from the request made and substantially disconnected with it, those matters of qualification should have been presented, if authorized at all, not in connection with the instruction requested, but independently. The propositions embodied in that qualification are, moreover, questionable as universal rules, viz: that an administrator had no light to authorize the use of his name as lessor of the plaintiff and the title of the estate, except for the benefit of the estate. If the fictitious action of ejectment, as [293] used at common-law, had been adhered to in Georgia, there never could have been such rule as the one referred to; there never could have been any delay of trial by death of a lessor, nor any difficulty in laying demises without the assent of those in whose names they were laid. At common-law there never were but two parties, John Doe and Eichard Eoe, and they had in the English action of ejectment a legal immortality for every purpose of the suit. We do not propose to adjudicate now how far or in what cases an administrator may permit the title of an estate to be used for another’s benefit, and when he may not. We desire to say only that these questions have not been definitely adjudicated in Georgia. They will arise very probably hereafter, when the whole subject ought to be thoroughly reviewed. Confining our decision to the two points in which we think there was error, we refrain from all remark upon other questions which we find in the record. Judgment reversed.