Clark v. Richards

This is a motion for a new trial on a case made before the enactment of the Code of Procedure. The proceeding was by scire facias to revive a judgment recovered by the intestate in his lifetime, to .the end that the plaintiffs, his representatives, might have execution thereof. -And the plaintiffs aver, the recovery of the judgment by the intestate for $188 59, damages and costs; the death of the intestate on the 10th December, 1844; the grant of letters of administration to the plaintiffs-on the 25th August, 1847-; that execution of-the judgment remains to be done, etc.

The defendant appeared and pleaded payment of the judgment as follows: .One hundred and seventy dollars (parcel thereof) to the intestate in his lifetime, to wit, December 30th, 1837; and thirty TW dollars (residue thereof, including interest) to the plaiQtiffs-, administrators, etc., since the death of the intestate, to wit, on the 15th July, 1847.

Upon- which .plea issue was. joined.

It appeared in evidence, that the judgment in question was recovered on the 29th December, 1837.

The defendant on the trial offered to prove by the attorney for'the intestate by whom the judgment- was recovered, that after the recovery of'the judgment the plaintiff therein (his client) admitted to him that $170 had been received by the plaintiff . thereon, and he was permitted to examine such attorney, who being sworn, testified, that, after, the judgment *91was entered up, and not long after, hut before execution was issued thereon,-the plaintiff in-the judgment (the intestate) his client, called-at his office and stated, that he “had received $170- on the judgment.” That “ the statement was-an isolated one, Unaccompanied-by explanation or direction.” And the witness further states that he does not now know the object, of . the remark ; but from the circumstance that it was. made before execution had issued, and his own usual practice, to issue execution soon after judgment, the witness infers as mere opinion fhat -the communication -was made soon after the recovery of the judgment, and “ in order to prevent the witness from issuing execution for the amount.”

This evidence was objected to by the counsel for the plaintiff, on the ground that it was a disclosure by the attorney of a confidential communication made to him by his client, while the relation of attorney and.client was subsisting, and in regard to-the subject matter of. such professional employment, and exceptions were duly entered -to the rulings by which the evidence was admitted.

This evidence constituted the only proof of any payment to the intestate in his lifetime.

In support of the amount of payment of the residue ($30 88) to the plaintiffs (adminstrators, &c.,) since the death of the intestate, the -defendant, proved by the same- attorney, that on .the 15th July, 1847 (nearly three years after the decease of-the plaintiff in the judgment, and about six weeks before letters of administration were granted to the plaintiffs) the defendant paid to him (the witness) $30 88 which was the balance due on .the judgment over the $170, including the costs, which costs had never before been paid to the witness; the amount being computed as-follows: Balance of the principal of the damages included in the judgment $4 81; costs, $13 78; interest $1119.

The defendant was further suffered, against the objection of the plaintiffs’ counsel, to prove by the witness that the balance of the damages, $4 or $5, -was a reasonable counsel fee for the witness in. the original case, and to this ruling the plaintiffs’ counsel excepted.

*92It appeared, further, that the judgment in question was recovered upon a promissory note made by the defendant and endorsed by one Seth Couch to the intestate; whereupon the defendant produced, proved and offered in evidence a note dated Dec. 14th, 1836, made by Seth Couch, for $400, payable to the defendant one year after date.

For what precise purpose this note was offered in evidence, . or how it tended to prove that the defendant or any one on his behalf had paid the judgment I am not able to perceive. The, note was received and read in evidence, and to the ruling an exception was taken by the plaintiffs’ counsel.

The jury were distinctly charged that if they believed that the sum of $170 had been paid on account of the judgment, the defendant was entitled to a credit for that amount: but that the proof of the payment of the $30 88 to the attorney for the. plaintiffs in the judgment, after the death of the intestate and before letters of administration were granted, did not maintain, the issue made by the pleadings, and therefore if the jury believed that the $170 were paid, the plaintiffs were entitled to; a verdict for the balance of the judgment.

Notwithstanding this explicit instruction, and in total disregard thereof, the jury rendered a verdict for the defendant.

The verdict should not be suffered to stand. Apart from considerations showing the impropriety of such perverseness in the jury and their assumption to determine the case without regard to the rules of law, or to determine the rules of law for themselves in contempt of the instructions of the court, the verdict is against law; the defendant was not entitled to be allowed the payment of the $30 88; the payment to the witness did not support the plea ; it was no payment to the plaintiffs nor for their use. The reasons given by the court for its direction in the charge are, I think, correct (a).

*93■ If this was the only reason for granting a new .trial, that expense might be avoided by giving the defendant an election to suffer the verdict to be amended and a judgment taken against him for the sum thus erroneously allowed to him as a ■payment, and upon his filing such a consent denying the motion ; but I apprehend the motion for a new trial must be ■granted upon other grounds.

The evidence relating to the counsel fee, justly due to the •witness, appears to have been offered as a justification of his receipt of the balance due on the judgment and in support of the payment of the $30 88. By the same rule that excluded the payment itself, and which was given to the jury for their government, the evidence was inadmissible; but as this evidence related solely to the last mentioned sum, it was in substance, excluded when the jury were instructed to disregard all the evidence of that payment, so that no discussion of its admissibility is now necessary.

But, as above suggested, I am unable to perceive the relevancy of the evidence contained in the promissory note of S. Couch. It appeared by that note that S. Conch, on the 17th day of December, 1837, owed the defendant $400, on his note, payable to the defendant, dated Dec. 14th, 1836, at one year. In what manner that fact tended to support a plea that the defendant or any person on his behalf paid the intestate $170 on a judgment recovered against the defendant on the 29th Dec., 1837, on a note made by the defendant and endorsed by Couch, is not, to my mind, very apparent.

Hothing but the merest conjecture can, I think, be suggested to connect the part proved with the allegation of payment, and I cannot resist the apprehension that some other evidence was given on the trial which might serve to show some such connec*94tion, br that the testimony was received .in connection with some statement of counsel or -offer to prove afterwards- some further circumstance which, if proved, might-have made the .evidence pertinent-; hut not. being given, no further notice was. taken of-this evidence, and it therefore appears in the case under an objection and exception which-appear to -me to be well taken. Into what sort of speculations this evidence may have - led the ■ jury we cannot say, though probably they, were mainly governed-by the testimony of the former-attorney in their finding in-regard -to-the alleged payment-of $170"to the intestate in his lifetime. No evidence was given .that- Couch made the payment of the $170, nor did this note show that.it was his duty, as between him and the defendant, to do so. If it was likely to awaken a suspicion when connected with the circumstance, proved by:the plaintiff, -that the defendant had declared'that he was ignorant of any such judgment, it was insufficient to amount to evidence that Couch made the payment, but no slich suspicion was. warranted.

", A more serious; and--to-my mind,-more-important question ■ arises, upon the objection-to the testimony of-the attorney of the intestate to .an admission -by his client that he had received $170 upon the judgment.

-. Th.e general-rule that the attorney, of a-party cannot-be compelled to disclose communications made to him in that capacity, and that this is a rule of public policy for the-interests of justice and for-the protection-of-the-client; and therefore that the attorney cannot be permitted to make the disclosure without the consent of the client; is not. denied or questioned by- the defendant’s counsel.

But it is sought to take this case out of the scope bf-that general rule upon two grounds :

First. That “the communication was made after the suit was at an end,” and when the relation of attorney and client had ceased.

Second. That -the communication “ was made, not in reference to. professional employment, but to prevent professional action.”

*95• It -would be a misapprehension of the rule to suppose that the termination of the suit to which the communication relates, by judgment, renders the communication less privileged if the communication was made to the "attorney in his. professional capacity. "

Such a communication is’ 'confidential and privileged "when made to one’s professional adviser as the basis of seeking advice or-aid,-or for his government in the protection of the client’s rights, although no suit is pending,- and even if no. judicial proceedings are then in contemplation. Protection to clients in the conduct of their business and in securing their rights and avoiding liabilties, renders perfect freedom in their intercourse with their counsel, while acting as such, essential, and this although the subject of consultation may only by possibility become the subject of judicial investigation. (Cromack v. Heathcote, 2 Brod. and Bing. p. 4 (note contra); Story’s Eq. Pl. § 604; Moore v. Terrell, 4 Barn. and Ad. 870; Bolton v. Corp. of Liverpool, 1 Mylne and K. 88, and other cases cited in notes to- Greenlf. Ev. §§ 236, 244, 6. Robson v. Kemp, 5 Esp. 52, goes much further; and see also to the like effect 1 Hill, 36; 3 Barb. Ch. 533, 595). It is therefore not- necessary that a suit should be pending.

Was the - communication made to the witness in his professional: character ?

It seems to me that it was very plainly so. The relation of attorney and client in the matter to which the communication related had not ceased. -The general power of the attorney over the suit ceases with the judgment in most cases,-though even this is subject to qualification, as where judgment is entered by default and the like instances in which the judgment is itself under the attorney’s control, so that he may voluntarily open it, and after judgment he is still attorney to receive notices from -the adverse party of any application to the court affecting the judgment or proceedings had under it, and he is still the attorney to issue execution; to direct the sheriff as to the time and manner of enforcing it; and to receive payment *96and acknowledge satisfaction. (Gorham v. Gale, 7 Cow. 739; Kellogg v. Gilbert, 10 Johns. R. 221.) In all this he acts professionally in the strictest sense, and his client is bound by his acts. (Gorham v. Gale, supra.) For these purposes then, the relation of attorney and client continues, and any and all communications made to him by his client either for the purposes of consultation regarding his rights under the judgment or the manner or extent to which it shall be enforced, or to govern the attorney in his further conduct therein, appear to me as truly ' confidential as if made before the action is tried.

It is conceded by the defendant’s counsel that the alleged communication was made “to prevent professional action,” viz. to prevent the collection of the same amount by execution, and it is difficult to imagine any other reason for making such a statement. I have yet to learn that there is any distinction between those communications made to prevent an attorney commencing a suit or taking any other step appertaining to the conduct of an action, and a communication made for the purpose of inducing the attorney to bring the suit or take such step, if the communication was made as a guide for professional conduct respecting the client’s rights or interests in the subject-matter to which it relates.

Suppose an execution had in fact been issued and a motion made by the defendant to stay execution, on an allegation of payment, and an issue had- been awarded to try the question, could it be doubted that the inquiry of the attorney, “ what communication did your client make to you on the subject of payments received before the execution was issued?” would have been inadmissible.

I apprehend that the case falls within the rule which protects the entire professional intercourse between attorney and client, and seals it with the injunction of perpetual secrecy.

In my opinion a new trial should be ordered, costs to abide the event of the suit.

I concur in the propriety of ordering a *97new trial, because the jury found against the charge to them that the plaintiff was entitled to recover the balance paid after the death of the plaintiff in the judgment.

But I am not prepared to decide that the communication made to his attorney, after judgment, by the judgment creditor that the debtor since the judgment had paid him part of the recovery is privileged. It does not appear to be a communication made for any purpose of consultation or advice, and the attorney who had no objection to making the communication, stated that it was a mere isolated remark unaccompanied by explanation or direction.

It was evidently a communication not made for the purpose of advice, but for the protection and benefit of the defendant. (See cases cited in Cow. and Hill’s notes, p. 282, 1571.) I concede if it was made for the purpose of consultation or advice, whether the suit was pending or not, it could be privileged. When made without any such intent, but merely to communicate to the attorney a fact for the defendant’s benefit, it may be brought within the rule which excludes from the benefit of the privilege distinct admissions not made for the purpose of consultation or advice, or for the management of legal proceedings.

The rule, it must be conceded, is not well settled, but where, as in this case, if the payment was really made its exclusion could work gross injustice, and the death of the party prevents him calling as a witness, I should incline to its admission.

Daly, J.—I concur with the first judge.

New trial ordered; costs to abide event.