However, it appears to be rather doubtful whether this proposition is not expressed in too large and general terms. Whether a witness is incompetent on account of interest must depend rather on the nature of the interest than upon the time of acquiring it. The question on the voire dire is, whether he is interested at the time of his examination. If he is directly interested at that time, he is not a competent witness in general without a release, and it seems to be no answer to the objection, to show that he has become interested only since the commencement of the action, or since the time of his being acquainted with the fact which he is called to prove. If, for example, the question is on a customary right of common, a witness will be incompetent, who admits upon the voire dire that he is in the occupation of a messuage, and that he claims a similar right of common as annexed to his tenement: and it cannot be material whether he has been in possession for a number of years, or had the tenement only just before the trial of the cause. In either case he appears to be equally incompetent; yet in the latter it may be said, that he acquired his interest, after the party had become interested in his testimony. *So, in the late case of Forester v. Pigou (1), where the defendant in an action on a policy of insurance called another underwriter to prove the policy void on account of a misrepresentation of the nature of the risk, and upon the voire dire the witness stated, "that he had paid the loss to the plaintiff upon an understanding that he was to be repaid in the event of this action failing, and that he had since received a letter from the plaintiff promising to re(1) 1 Maul. & Sel. 9.; 3 Campb. 380, S. C. Jackson d. But where a person wanting his testimony, of the benefit of it." * 101 turn the money in that event," an objection being taken to his competency, the point was argued on the other side. upon the authority of Barlow v. Vowel, but the witness was considered to be incompetent and rejected; for although the witness would not be disqualified by any agreement fraudulently entered into between him and the plaintiff for the purpose of taking off his testimony, yet on the other hand the pendency of a suit could not prevent third persons from transacting business bona fide with one of the parties; and if an interest in the event of the suit is thereby acquired, the general consequence of law must follow, that the person so interested cannot be examined as a witness for that party, from whose success he will necessarily derive an advantage. A motion was afterwards made for a new trial on account of the rejection of this witness, as well as of another also, who was similarly situated; and a new trial was granted for the purpose of ascertaining more particularly the precise time, when the undertaking was made to the witnesses; but the court added, that if a person, who is under no obligation to become a witness for either of the parties to a suit, choose to pay his debt beforehand, upon a condition that is to be determined by the event of the suit, he becomes as much interested in the event, as if he were a party to a consolidation rule. With respect to the case of Barlow v. Vowel, which was much cited in this case of Forester v. Pigou, the Court considered the point as having been there determined on the ground of fraud,-Lord Raymond in the case of the *King v. Fox (1) admitted the prosecutor to be a witness, although he had laid a wager, that he should convict the defendant and the reason seems to be, not because the witness had made the wager at a time when public justice became interested in his testimony, but because it would be against public policy to allow a witness by any such gratuitous act to exclude himself from giving evidence; and there seems to be another reason for admitting the (1) Str. 652. witness, since the wager would now probably be considered absolutely void, as tending to produce an improper bias on the mind of the witness, and therefore, as directly prejudicial to the administration of justice. 3. When the witness must be answerable to one or the other of the parties, and the event of the suit determines only to which, he may be examined by either of them without a release. Thus in an action of assumpsit for money paid to the use of the defendants, who were ship-owners, Lord Kenyon admitted the captain to prove, that he had received the money from the plaintiff for the defendant's use; for he stood indifferent between the parties, and he was equally answerable, whichever way the verdict might go (2). (2) Evans v. Williams, 7 T. R. 481. n. (c), and see ante, p. 53., on this subject. CHAP. VI. On the Admissibility of Counsel or Solicitor. THE objections to the competency of a witness, which have been considered in the four preceding chapters, are of a nature to exclude him from giving any kind of evidence. One other objection still remains to be considered; not an objection to his competency, but to particular evidence, which he may be called upon to disclose. This is founded. on the professional confidence, which a *client reposes in his counsel, attorney, or solicitor, and which courts of justice ever hold to be inviolable (1). Confidential communications between attorney and client are not to be revealed at any period of time; not in an action between third persons; nor after the proceedings, to which they referred, (1) Lord Say and Seale's case, 10 Mod. 40. Bull, N. P. 284. Cuts v. Pickering, 1, Ventr. 197. * 103 is at an end; nor after the dismissal of the attorney (2). The privilege of not being examined to such points, as were communicated to the attorney while engaged in his professional capacity, is the privilege of the client, not of the attorney; and it never ceases (a). "It is not sufficient. to say, the cause is at an end; the mouth of such a person is shut for ever (3)." But this privilege of the client is confined to such communications as are made with reference to professional business during the relation of attorney and client (b). A person by profession an attorney, but not employed as attorney in the particular business, which is the subject of inquiry, is not within the rule, although he may have been consulted confidentially (4). If the party waives his privilege, the witness may of course be examined (c), A person who acts as interpreter between an attorney and his client, stands precisely in the same situation as the attorney himself; he is considered as the organ of the attorney, and' is under the same conditions of secrecy (5). But it has been ruled at nisi prius, that a person who was consulted confidentially on the supposition of his being an attorney, when in fact he was not one, is compellable to answer (6). And propositions, which the attorney of one party has been professionally intrusted to make to the adverse party, though they are not to be disclosed by the (2) Wilson v. Rastall, 4 T. R. 759, 760. R. v. Withers, 2 Campb. N. P. C. 578. (3) Per Buller, J., 4 T. R. 759. Wilson v. Rastall, 4 T. R. 753. 760. (5) Du Barre v. Livette, Peake N. P. C. 78, cited by Lord Kenyon in 4 T. R. 756. (6) Fountain v. Young, 6 Esp. N. P. C. 113. (a) Vide 2 Mun. 122, 123. Sloman v. Herne et al. 1 Esp, 695. (b) Vide Riggs v. Denniston, 3 Johns. Cas. 198. Hoffman and Seton v. Smith, 1 Caines' Rep. 157. 1 M'Nally 241. (c) An attorney cannot be compelled to produce a paper committed to him by his client, in another cause. Anonymous, 8 Mass. Rep. 370. Lynde v. Judd, 3 Day 499. *attorney himself, may yet be proved by another witness, who heard him deliver them (1). This privilege extends to the three enumerated cases of counsel, solicitor, and attorney; but it is confined to those cases alone. There are indeed cases, said Mr. Justice Buller, in the case of Wilson and Rastall, to which it is much to be lamented that the law of privilege is not extended; those in which medical persons are obliged to disclose the information which they have acquired by attending in their professional characters (2). This point was much considered in the Duchess of Kingston's case, where Sir C. Hawkins, who had attended the duchess as a medical man, was compelled to disclose what had been committed to him in confidence. In a late case at Nisi Prius, where a clerk to the commissioners of the property tax was called to prove the defendant a collector, and refused to give evidence, on the ground of his having taken an oath of office, not to disclose what he should learn as clerk respecting the property tax, except with the consent of the commissioners or by force of an act of parliament, the Court held that this oath would not exempt the witness, and that it must be construed, as containing an implied exception of the evidence, which he might be called to give in courts of justice in obedience to the writ of subpoena (3). In an early case (4), indeed, where the defendant pleaded to an action of debt on bond the statute against buying and selling of offices, and called a witness to show on what occasion the bond was given, Lord Holt is said to have refused his evidence, because it appeared, that he was privately intrusted to make the bargain and to keep it secret. But the principle and authority of this case seem to have been overruled by that of Wilson v. Rastall, and the later decisions on this subject. (1) Gainsford v. Grammar, 2 Campb. N. P. C. 10. (2) 4 T. R. 759. See also R. v. Sparkes, cited in Peake's N. P. C. 77. Du Barre v. Livette. 337. (3) Lee q. t. v. Birrell, 3 Campb (4) Bull. N. P. 284. |