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him a safe conduct; and that the said William Noakes accordingly did remain at the said Mr. Scott's house, or office, for upwards of two hours, to avoid being arrested by some or one of his creditors, until after the witness had attended at and returned from the said meeting of the said William Noakes's creditors. It was objected on the part of the defendants, that the evidence of Mr. Scott was not admissible under the circumstances, to prove what passed at his office as above mentioned, but the Lord Chief Justice received the evidence, subject to the opinion of the Court as to its adınissibility. The question for the opinion of the Court is, whether the evidence of the witness John Scott was, under the circumstances, admissible. If the Court shall be of opinion that it was admissible, the verdict is to stand; if not, a nonsuit is to be entered.
F. Pollock, for the plaintiffs.—The evidence was properly received. The objection raised against its admissibility is, that the conversation which passed between the bankrupt and the witness, was a confidential and professional communication between a client and his attorney; but when the principle upon which such communications are protected is examined, it will be found not to extend to this case. In the first place, the transaction which was the subject of the conversation, was wholly alien from the character of an attorney; secondly, the inquiry made by the bankrupt, related to a matter of fact and not of law; and thirdly, it was made with a view to commit an act of bankruptcy. In all these respects this evidence is unprotected by the privilege claimed for it. The foundation of the privilege is the necessity of a free communication between a client and his attorney upon matters of law, but it does not extend to collateral circumstances, nor to mere matters of fact; it does not protect a communication which is not made by way of instruction for conducting the client's cause, Cobden v. Kendrick(a), and it is confined to cases where the attorney is acting in his
(a) 4 T. R. 31.
character of attorney, Wilson v. Rastall (a). Now Mr. Scott's interference in this instance, was not essential to the bankrupt in the conduct of his affairs, nor was it offered by him in his character of attorney, and therefore this case is fully within the principles laid down in the two cases cited. But still less can the act of the bankrupt arising out of the conversation be protected; the privilege has never been held to extend beyond verbal communications. Rer v. Watkinson (b), where it was held that an attorney who was present at the putting in an answer to a bill in Chancery, by the defendant, who was indicted for perjury therein, could not be obliged to swear to that fact, has been overruled both in principle and authority by Doe v. Andrews (c), Spenceley q. t. v. Schulenburgh (d), and many other cases. In this case great injustice will be done if the evidence is excluded. The question in the cause is, whether the bankrupt has committed a legal act of bankruptcy; the intention with which he remained at Mr. Scott's office, is a part of the act done; the animus, and the declaration expressive of it, are parts of the res gesta; and if they are shut out, the question whether he did or did not commit an act of bankruptcy, cannot be answered. Besides, in the purview of the bankrupt laws, an act of bankruptcy is a crime; a state of poverty by which the man is disabled from satisfying his creditors, may not be criminal, but the wilful avoidance of his creditors is criminal; and it cannot be allowed, that a man who casually becomes the spectator of the commission of a crime, is privileged to conceal it, merely because he is an attorney. [Bayley, J. When the conversation took place, it was not ascertained whether a crime had been committed or not.] The commission of the crime followed as a consequence of the conversation, and was in substance a part of it; therefore the whole was an act done, which Mr. Scott was bound, for the ends of justice, to reveal. Lloyd v. Heathcote (e).
(d) 7 East, 357.
(a) 4 T. R. 753.
(c) Cowp. 845. VOL. IV.
In a recent case at the Old Bailey (a), where the prisoner was indicted for forging a will, his attorney was allowed to prove that he had, by the prisoner's desire, carried the will from him to the Registry Office in Doctors' Commons. [Bayley, J. There may be a distinction as to the admission of evidence of this nature, in criminal and in civil cases; an act of bankruptcy can hardly be called a crime in the sense of the word, which would render it obligatory upon any person who knew of it, to disclose the fact for the purposes of public justice.]
J. Williams, for the defendants.—The real question is, whether this communication, being one not made in the progress of a cause, is, or is not, within the privilege, Most of the arguments brought forward on the other side, may be admitted without prejudicing that question. In all the cases cited for the plaintiffs, the communication was either respecting a matter of fact, or was not made to the attorney, in his character of attorney, and therefore they are all distinguishable from the present. Now, it seems to be immaterial to the operation of the privilege, whether the communication is made while a suit is actually pending or not. Gainsford v. Grammar (6) decided that though. propositions made by an attorney on the part of his client, (whether before or after the commencement of a suit,), respecting a demand which another person had against him, may be used as evidence against the client; yet, that those propositions cannot be proved by the attorney, from a regard to the privilege of the client (c); and Robson v. Kemp (d) seems to establish the same principle. Here the case finds that Mr. Scott is an attorney, and that he acted as solicitor to the bankrupt; it is therefore hardly going too far to say, that he was consulted upon the occasion in question, as an attorney, and therefore that the communication was confidential, and is protected by the privilege.
(a) Rer v. Waller.
(c) Phil. Ev. 79. 3d ed.
Pollock, in reply, relied upon the argument that the communication being in the nature, and indeed part of an act done, and being made to the witness without any relation to his character of attorney, was not within the privilege, and therefore must be admitted as legal evidence. He cited, in addition to the other cases, Duffin v. Smith (a), and Studdy v. Sanders (6).
The case was argued on a former day in this term, when the Court took time to consider of their judgment, which was now delivered by
ABBOTT, C.J.-The question in this case was, whether the testimony of a witness of the name of John Scott, was, under the circumstances, admissible in evidence against the defendants; or, whether, upon the principle of the privilege between attorney and client, it ought to have been excluded. It was an action of trover, brought by the plaintiffs, as assignees of one William Noakes, and Mr. Scott, his attorney, was called by the plaintiffs to prove the act of bankruptcy. He gave in evidence that, on his suggestion, a meeting of the bankrupt's creditors was called ; that that meeting was appointed to be held on the 7th of November, at twelve at noon ; that Noakes called on him that morning, and asked him if he could safely attend that meeting without being arrested; that he, Scott, advised him to remain at his office, until it was ascertained whether the creditors would give him a safe conduct; and that he, accordingly, did remain there two hours, to avoid being arrested, until Scott returned. The question is, whether the whole or any part of this evidence ought to have been excluded. That Scott was compellable, and was properly admitted to prove, that the meeting was called on his suggestion, and that Noakes came to and remained at his office, is beyond all doubt; but the point disputed was, whether Noakes's question to Scott, and Scott's answer, were not within the privilege. Whether the (a) Peake's N. P. C. 108. (6) Ante, vol. ïi. 347.
privilege extends to all confidential communications between attorney and client or not, there is no doubt it is confined to those communications which are made to an attorney in his character of attorney. A question asked with the view to obtain legal advice, may come within the description of confidential communication, because it is part of an attorney's duty, as attorney, to give legal advice; but a question asked with the view to obtain information as to a matter of fact, being addressed to an attorney, where it might have been addressed to any other person, and being addressed to him where his character and office of attorney are not called into action, has never been held to be within the protection, and certainly is not within the principle upon which the privilege is founded. Then, was it a question for legal advice which was put to Scott, and was it put to him in his character of attorney; or, was it not a question for information as to a matter of fact, in which the professional character of Scott was not concerned? It can hardly be supposed that a man would ask, as a matter of fact, whether he would be free from arrest while attending a voluntary meeting of his creditors ; but he might naturally ask, as a matter of fact, whether any arrangement had been made with his creditors as to his receiving a safe conduct at the meeting. Mr. Scott's answer implies that the question was put with the latter view; he gives no legal advice; his answer implies that no arrangement had been made, but that he would see at the meeting if any could be made. He recommends Mr. Noakes, not as a legal adviser, but as any friend would have recommended him, to stay where he is till that matter of fact can be ascertaineđ. Upon the ground, therefore, that no part of this evidence comes within the description of a confidential communication between attorney and client, we are of opinion that the whole of the evidence was properly receivable, and that the postea ought to be delivered to the plaintiffs.
Postea to the plaintiffs.