Durkee v. Leland

The opinion of the Court was delivered by Williams, J. 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 [615] attorney proiessionally, whether about an estate, or otherwise, is a privileged communication.” In the present case, it may be re-* marked, that all the information, which Mr. Kimball had upon the subject of the paper, was communicated by the plaintiff to him as counsel in the case, and in professional confidence. Under these circumstances, he would not be compelled or permitted to give any evidence in relation to those communications, nor could he be compelled to produce any papers which had been intrusted to him by his client. The possession of the attorney was, for this purpose, the possession of the client. An attorney or counselor is not obliged to produce to a grand jury a paper entrusted to him by his client. — State vs. Squires, 1 Tyler, 147 ; Anon. 8 Mass. 370. The most which could be required of Mr. Kimball, was to state whether such a paper was in existence, and where he last saw it, according to the cases of Kingston vs. Gale, 8 Viner, 548 ; Brandt vs. Klein, 17 Johnson, 335 ; Jackson vs. McVey, 8 Johnson, 330 ; though it appears to me, that going thus far is at variance with the general principle applicable to that subject, if the deed or writing was communicated or intrusted to the attorney in professional confidence. In relation to papers which are in the hands of the opposite party, the common rule is, that if he refuse to produce them on reasonable notice, secondary evidence may be given of their contents. But notice given at the trial is not sufficient. — l Starkie, 539, (cases cited in note.) It is provided by statute, that parlies may be compelled to produce papers under penally of a nonsuit or default in case of neglect; but this can only be enforced after reasonable notice; and the statute applies only to the par-ties and not to their altornies, counselors, or solicitors. 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 obtain616 It was left optional with him at what time to take possession of the buckets and kettle, or whether to take possession or not. Until he did take the actual possession, there was nothing to prevent the defendant from using them as before, or taking any measures to secure them from dilapidation and waste. By paying the note, they would have immediately become the property of the defendant. The plaintiff could only be accountable for those of which he had the possession ; and not for those, unless he had so conducted as to manifest an intention to make them his own, or had made them his own by such gross negligence as ought to make him accountable. The judgement of the county court is, therefore, reversed, and a new trial granted.