well as his adversary. Cobden v. Kenrick, 4 T. R. 431. "This communication," observes Lord Brougham, in commenting on the case, “was not made professionally, but by way of idle and useless conversation; had the matter been confided with a view to some future proceedings, or, without any regard to a suit, had it been communicated for a purpose of business, it would certainly have been protected." Greenough v. Gaskell, 1 Mylne and K. 109.

Form of oath by witnesses claiming to be privileged.] In general a witness who is privileged from disclosing facts which have come to him in his professional capacity, is sworn in the usual manner, to speak the truth, the whole truth, and nothing but the truth; but where a person who had been counsel for one of the parties, declined to take the usual oath, the court permitted him to take an oath to declare such things as he knew before he was counsel, or as had come to his knowledge since, by any other person; and the particulars to which he was to be sworn were specially stated. Spark v. Sir H. Middleton, 1 Keb. 505; 12 Vin. Ab. 38. It has been observed that a precaution like this seems to arise out of an excessive tenderness of conscience; for that the general obligation of an oath, to declare the whole truth, must, with reference to the subject matter and occasion of the oath, be necessarily understood to mean the truth so far as it ought legally to be made known. 2 Stark. Ev. 232, citing Paley's Moral Philosophy (1).

*What matters are privileged.] - Although some doubt has been [*177] entertained, as to the extent to which matters communicated to a barrister or an attorney in his professional character are privileged, where they do not relate to a suit or controversy either pending or contemplated, and although the rule was attempted to be restricted, by Lord Tenterden to the latter cases only; see Clark v. Clark, 1 Moody and Rob. 4; Williams v. Mundie, Ry. and Moo. 34 (a); yet it seems to be at length settled, that all such communications are privileged, whether made with reference to a pending or contemplated suit or not. See all the cases commented upon by the L. C. in Greenough v. Gaskell, 1 Myl. and K. 100. See also Walker v. Wildman, 6 Madd. 47; Mynn v. Joliffe, 1 Moo.. and Ry. 326; Moore v. Tyrrell, 4 B. and Ad. 870 (b).

With regard to the nature of the communications touching the matters which are privileged, the following description of them by Mr. Alison, in his Practice of the Criminal Law of Scotland, p. 469, appears to be comprehensive and correct, and to correspond entirely with the rule of the English law. "Facts which have come to the witness's knowledge professionally, in relation to the matter charged, fall within the protection, though not obtained from the prisoner himself, as for example, directions made by his relations or friends previous to the trial; memorials laid before counsel; notes furnished to agents or the like, if done with that view. Under that head must be included facts, gathered by the agent himself, in precognoscing the witnesses, or by his clerk in copying or reading that precognition, or attending the examination of the witnesses under it. Farther the privilege extends, under a limitation to be imme

(1) A witness competent in chief must be sworn-generally. Jackson v. Parkhurst, 4 Wend. 369. (a) Eng. Com. L. Rep. xxi. 375. (b) Id. xxiv. 175.

diately noticed, to all professional communications in relation to the matter libelled, though long anterior to the date of the crime, if in regard to matters which are now charged as forming part of, or adduced in evidence regarding it (1)."

A communication made to a solicitor, if confidential, is privileged in whatever form made, and equally when conveyed by means of sight instead of words. Thus an attorney cannot give evidence as to the destruction of an instrument which he has been admitted in confidence to see destroyed. Rolson v. Kemp, 5 Esp. 54. See post, p. 178.

What matters are privileged-production of deeds, &c.] A communication in writing is privileged, as well as a communication by parol; and deeds and other writings deposited with an attorney in his professional capacity, will not be allowed to be produced by him. To prove the contents of a deed, the defendant's counsel offered a copy, which had been procured from the attorney of a party under whom the plaintiff claimed, but Bayley, J., refused to admit it. He said, "the attorney could not have given evidence of the contents of the deed, which had been entrusted to him; so neither could he furnish a copy. He ought not to have communicated to others what was deposited with him with confidence, [*178] whether it was a written or verbal communication. It is the *privilege of his client, and continues from first to last." Fisher v. Hemming, 1809. Phill. Ev. 182, 8th ed. (2).

What matters are not privileged-matters of fact.] Where the subject inquired into is a collateral matter of fact, which the party setting up the privilege obtained a knowledge of in his individual capacity, and not in his character of professional adviser, he will be compelled to disclose it. Thus, an attorney, who has witnessed a deed produced in a cause, may be examined as to the true time of execution; or if a question arise as to an erazure in a deed or bond, he may be asked whether he ever saw the instrument in any other state, that being a fact within his own knowledge, but he ought not to be permitted to discover any confession which his client may have made to him on that head. B. N. P. 284. It has been said that the above case applies only where the attorney has his knowledge independently of any communication with his client. Wheatley v. Williams, Tyrwh. and G. 1051; 1 M. & W. 533. It was there held that an attorney is not compellable to state whether a document shown to him by his client during a professional interview was in the same state as when produced at the trial, namely, whether it was stamped or not. The clerk of an attorney may be called to identify a party, though he has only become acquainted with him in his professional capacity, for it is a fact cognizable both by the witness and by others, without any confidence being reposed in him; Studdy v. Saunders, 2 Dow. and Ry. 347 (a); though the contrary was, upon one occasion, ruled by Mr. Justice Holroyd. Parkins v. Hawkshaw, 2 Stark. N. P. C.

(1) What the law means by privileged communications are instructions for conducting the cause, not any extraneous or impertinent communications. Riggs v. Denniston, 3 Johns. Cas. 198.

(2) Anon., 8 Mass. 270. Brandt v. Klein, 17 Johns. 335, S. P. Jackson v. M'Vey, 18 Id. 330. The State v. Squires, 1 Tyler, 147. Lessee of Rhoades v. Selin, 4 Wash. C. C. Rep. 715.

(a) Eng. Com. L. Rep. xvi. 93.

240 (a); So an attorney's clerk may be called to prove the receipt of a particular paper from the other party, for it is a mere fact. Eicke v. Nokes, Moo. and M. 304 (b). So an attorney conducting a cause, may be called and asked who employed him, in order to let in the declarations of that person as the real party. Levy v. Pope, Moo. and M. 410 (c). So he may prove that his client is in possession of a particular document, in order to let in secondary evidence of its contents. Bevan v. Waters, M. and M. 235 (d). So to prove his client's handwriting, though his knowledge was obtained from witnessing the execution of the bail-bond in the action (1). Hurd v. Moring, 1 C. and P. 372 (e); Robson v. Kemp, 5 Esp. 52. So where an attorney is present when his client is sworn to an answer in chancery, on an indictment for perjury, he will, it is said, be a good witness to prove the fact of the taking of the oath, for it is not a matter of secrecy committed to him by his client. Bull. N. P. 284. But in Watkinson's case, 2 Str. 1122, where the solicitor on a similar indictment was called to speak to the identity of the defendant's person, the Chief Justice would not compel him to be sworn. "Quære tamen ?" says the reporter, "for it was a fact within his own knowledge." And Lord Brougham, in commenting upon this case, in Greenough v. Gaskell, 1 Myl. and K. 108, observes, that the putting in the answer, so far from being a secret, was in its very nature a matter of publicity, and that the case cannot be considered as law at the present day.

*Where a communication is made to an attorney, not for the pur- [*179] pose of obtaining his legal opinion and advice, but in order to procure information upon a point, which might be as well obtained from an unprofessional person, the rule as to privilege does not apply. Thus where a trader asked his attorney whether he could safely attend a meeting of his creditors, and the attorney advised him to remain at his office, it was held that this communication was not privileged, for that it was made by the attorney upon a matter of fact, in the character merely of agent or friend. Bramwell v. Lucas, 2 B. and C. 745 (f). The exception in question is well illustrated in the following case: In ejectment by Mr. Annesley against the Earl of Anglesea, one Giffard, who had been twenty years professionally employed by the Earl of Anglesea, was called to prove a conversation which he had had with that nobleman, respecting a prosecution against Mr. Annesley for murder, from which it would appear that the Earl privately took an active part in the prosecution, in order that Mr. A. might be hanged, and himself freed from his claims to the estate. The court admitted the evidence; and Bowes, C. B., after stating the general rule, said, "Does it follow from thence that every thing said by a client to his attorney falls under the same reason? I own I think not because there is not the same necessity upon the client to. trust him in one case as in the other, and of this the court may judge, from the particulars of the conversation. Nor do I see any impropriety in supposing the same person to be interested in one case as an attorney and agent, and in another as a common acquaintance. In the first case

(1) Hiester v. Davis, 3 Yeates, 4. Johnson v. Daverne, 19 Johns. 134. So to prove the execution of a deed, and that it is in his possession, under a notice to produce it; but he is not compellable to produce it nor to disclose its contents. Brandt v. Klein, 17 Johns. 335. Jackson v. M'Vey, 18 Id. 330. See Baker v. Arnold, 1 Caines, 258. M'Tavish v. Dunning, Anthons' N. P. C. 82. Phelps v. Riley, 3 Conn. 266. Caniff v. Meyers, 15 Johns. 246. (a) Eng. Com. L. Rep. iii. 332. (b) Id. xxii. 314. (c) Id. xxii. 343. (d) Id. xxii. 301. (e) Id. xi. 425. (f) Id. ix. 233.

the court will not permit him, though willing, to disclose what came to his knowledge, as an attorney, because it would be a breach of that trust, which the law supposes to be necessary between him and his employer; but where the client talks to him at large, as a friend, and not in the way of his profession, the court is not under the same obligation to guard such secrets, though in the breast of an attorney." Annesley v. Earl of Anglesea, Trial at the bar of the Court of Exchequer in Ireland, 17 How. St. Tr. 1217, 1839; M'Nally, Ev. 241.

So where, in the Duchess of Kingston's case, 20 How. St. Tr. 613, the attorney of Lord Bristol was called, and asked what passed between himself and a witness, whom he had called on, to procure him to attend and prove the marriage; upon his demurring to the question, Lord Mansfield said this was no secret of his client, but a collateral fact, viz. what the witness had told him on the application, and he was directed to answer the question. See also Plunkett v. Cobbett, 5 Esp. 136, post, p. 183, and Sykes v. Dunbar, 2 Selw. N. P. 1004, post, p. 181.

What matters are not privileged-attorney party to transaction.] Another exception to the rule of privileged communications is, where the attorney is so far himself a party to the transaction, that the communications may be supposed to be made to him in that character, and not [*180] in the character of professional adviser. Thus *where, on a question whether there had been usury in giving a bond, the defendant called the plaintiff's attorney to prove that the consideration of the bond was usurious; on this being objected to, Lord Kenyon said, that the privilege did not extend to this case, for that where the attorney is as it were a party to the original transaction, that does not come to his knowledge in the character of attorney, and that he is liable to be examined the same as any other person. Duffin v. Smith, Peake, N. P. C. 108. So it seems that every one, whether counsel, attorney, or other person, is bound to divulge matters communicated with a view to the perpetration of a crime. It has, therefore, been held in Scotland, that an agent who would otherwise be privileged, may be compelled to swear to his client's having declared his purpose to commit the crime to him; or that he undertook a criminal employment by his desire, as in the case of forgery, by falsifying a deed, the copy of which was sent to him by his employer. Alison, Prac. Cr. L. S. 473. The facts of the following case appear almost to bring it within the above rule, but the decision was the other way. In a prosecution for the forgery of a promissory note, the attorney who had the note in his possession refused to produce it. He stated that he had been consulted by the prisoner on the note in question, and that by his directions he had commenced an action against the person in whose name it was forged. The attorney was not employed for the prosecution, and a demand of the note had been made upon him by the prisoner's attorney. Mr. Justice Holroyd refused to make an order upon the attorney to produce the note, or to give a copy of it to the clerk of arraigns, and a true bill having been found, he likewise held that the attorney was not bound to produce it at the trial. Smith's case, Derby Sum. Ass. 1822. Phill. Ev. 182, 8th ed.

But where, on an indictment for forging a will, an attorney employed by a party to put out money on mortgage, was applied to by the prisoner to procure him money on mortgage, and the prisoner produced a

forged will in proof of his title to certain freehold lands, upon the security of which the attorney's other client advanced the money, the mortgage deeds being prepared by the attorney; and the prisoner's counsel objected to the attorney being examined, and cited Smith's case, supra ; Patteson, J., said he thought that case was not law, and that the attorney might be examined to show what was the transaction between the parties, and what led to that transaction, but said he would reserve the point for the consideration of the judges, if he should afterwards think it necessary to do so. The attorney was accordingly examined, and produced the will, which the learned judge thought he was bound to do. The prisoner was found guilty, but no sentence was passed, he having pleaded guilty to another indictment charging the transaction as a false pretence. Avery's case, 8 C. and P. 596 (a).

What other persons are privileged-grand jurors.] It does not appear to be completely settled whether a grand juryman is at liberty to disclose the evidence laid before the grand jury in a criminal proceeding. *Phill. Ev. 893, 8th ed. Lord Kenyon allowed a grand juryman to [*181] be called to prove who was the prosecutor of an indictment, being of opinion that it was a fact, the disclosure of which did not infringe upon his oath. Sykes v. Dunbar, 2 Selw. N. P. 1004.

In a recent case the Court of King's Bench refused to receive an affidavit from a grand juryman as to the number of grand jurors who concurred in finding the bill. Marsh's case, 6 A. and E. 236 (b).

So where a grand jury returned an indictment containing ten counts, indorsed, "a true bill on both counts," and the prisoner pleaded to the whole ten counts; Patteson, J., (the grand jurors having been discharged) would not allow one of them to be called as a witness to explain their finding. Cooke's case, 8 C. and P. 582 (c).

Matters before grand jury.] In Watson's case, a witness was questioned by the prisoner's counsel as to his having produced and read a certain writing before the grand jury. On this being objected to, Lord Ellenborough, C. J., said, "he had considerable doubts upon the subject: he remembered a case in which a witness was questioned as to what passed before the grand jury, and though it was a matter of considerable importance, he was permitted to answer." The question was not repeated. 32 How. St. Tr. 107.

According to an old case, a clerk attending before a grand jury shall not be compelled to reveal what was given in evidence. Trials per pais, 220; 12 Vin. Ab. 38; Evidence (B. a. 5) (1).

What other persons are privileged-judges and jurors.] Where a bill of indictment was preferred for perjury committed at the Quarter

(1) See Low's case, 4 Greenl. 439. A grand juror cannot be admitted to prove that a witness who has been examined swore differently before the grand jury. Imlay v. Rogers, 2 Halst. 347. But in an action for a malicious prosecution, one of the grand jury, who returned the bill ignoramus, is a competent witness to prove who the prosecutor was. Huidekoper v. Cotton, 3 Watts, 56.

The attorney for the commonwealth cannot be called upon to testify to what passes in the grand jury room. Commonwealth v. Tilden, 2 Starkie's Ev. New ed. 232, n. (1). M'Letton b. Richardson, 13 Maine, 82.

(a) Eng. Com. L. Rep. xxxiv. 542. (b) Id. xxxiii. 66. (c) Id. xxxiv. 535,