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Full text of "The Encyclopædia of evidence"



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THE "'^^'^ 



ENCYCLOPAEDIA 



OF 



EVIDENCE 



EDITED BY 

EDGAR W. CAMP 



VOL. X 



LOS ANGELES, CAL. 

L. D. POWELL COMPANY 

1907 



T 



COPYRIGHT 1907 
BY L. D. POWELL COMPANY 



TIMES-MIRROR PRINTING AND BINDING HOUSE 
LOS ANGELES, CAL. 




TABLE OF TITLES. 



Principai, and Agent i 

p*rincipal and surety 44 

Privh,Eged Communications 77 

PuBuc Lands 361 

PuBi,ic Policy 450 

Quo Warranto 454 

Raii^roads 461 

Rape 577 

Ratification 611 

Reasonable Doubt 625 

Rebuttal 635 

Receivers 658 

Receiving Stolen Goods 664 

Recognizances 677 

Records 690 



PRINCIPAL AND AGENT. 



1. EVIDENCE IN ACTIONS BETWEEN PRINCIPAL AND 
THIRD PERSONS, 6 

I. In Genoa! J 6 

A. Burden of Proof, 6 

a. Of Fact of Agency, 6 

b. Of Extent of Authority, 6 

(i.) 1)1 General, 6 

(2.) Authority To Sell and Convey Land, 6 

(A.) In General, 6 

(B.) Where Authority Is Limited, 7 

(C.) IVJiere Authority Is General, 7 
(3.) AntJiority To Execute Lease, 7 
(4.) Authority To Make or Indorse Bills or 

Notes, 7 
(5.) Authority To Buy Goods, 7 
(6.) Authority To Employ, 8 
(7.) Authority To Make Guaranties and War- 
ranties, 8 
(8.) Authority To Receive Payment, 8 

(A.) //; General, 8 

(B.) Where Agent Is In Possession of Se- 
curities, 9 

c. Continuance of Special Agency, 9 

d. Of Ostensible Agency, 9 

e. Of Execution of Contract, 9 

B. Presumptions, 9 

a. Act Inuring to Benefit of Principal, 9 

b. Prior Acts With Knozvledge of Principal, 9 

c. Special Authorization at Another Time, 10 

d. Presumption That Authority Is General, 10 

(i.) Generally, 10 

(2.) Possession for Tzventy Years, 10 
(3.) Ancioit Documents, 10 
(4.) No Presumption Prom Acknozdedgment, 10 
(5.) No Presumption From Recital of Author- 
ity, II 

e. Authority To Receive Payment, 11 

Vol. X 



PRIXCIPAL AND AGENT. 

(i.) Limited Authority, ii 

(2.) Where Agent Ha^ Acted as Principal. 11 

f. Letters Purporting to Ansiver Plaintiff's Letters to 

Principal. 11 

g. No Presumption of Authority To Do an Illegal 

Act, II 
h. No Presumption of Authority To Buy From Au- 
thority To Sell, II 
i. No Presumption as to Presence of Principal, 11 

C. Order of Proof, 11 

D. Mode of Proof, 12 

a. Generally, 12 

b. Parol Evidence, 12 

(i.) In General, 12 

(2.) Where Written Pozver of Attorney Not Es- 
sential, 13 

(3.) To Enlarge Written Pozver of Attorney, 13 

(4.) To Explain or Interpret Written Pozver of 
Attorney, 14 

(5.) Where Written Pozver of Attorney Is Es- 
sential, 14 

c. Testimony of Agent, 14 

(i.) As To Fact of Agency, 14 
(2.) As To Extent of Authority, 15 

d. Declarations of Agent, 15 

(i.) As To Agency, 15 

(2.) As To Extent of Authority, 18 

(3.) Not Admissible Altliough Accompanied by 

Acts, 18 
(4.) Admissible in Support of Other Evidence, 

19 
(5.) Admissible To Explain Acts, 19 

(6.) Admissible To Shozv a Holding Out, 19 
(7.) Admissible When Ratification Relied Upon, 

20 
(8.) Admissible When Principal Sues on Con- 
tract, 20 

e. Admissions of Agent, 20 

(i.) In General, 20 
(2,) Conduct, 20 

f. Declarations and Admissions of Principal, 20 

(i.) In General, 20 



Vol. X 



PRIXCIPAL AXD AGEXT. 3 

(2.) Self -Serving Declarations. 21 
(3.) Repudiating Act, 21 
g. Declarations and Admissions of Another Agent, 21 
h. Circumstantial Evidence, 21 
(i.) In General, 21 
(2.) Great Latitude AUou'cd. 21 
(3.) Acts Xot Implying Kno-uledge and Consent 

of Principal, 22 
(4.) Acts Implying Knowledge of Principal 2^ 
(5.) Course of Dealing Bctzceen Parties, 24 
(6.) Similar Transactions Acted Upon by Prin- 
cipal, 24 
(7.) Acts Must Be of Same Character, 25 
(8.) Authority For a Single Act, 25 
(9.) Dealings Betzveen Principal and Agent, 26 
(10.) Similar Transactions With Principal, 26 
(11.) Character of the Business, 26 
(12.) Business Customs, 26 
(it,.)- Authority of Si)}iilar Employes. 2y 
(14.) General Reputation. 27 
(15.) Opinion of Witness, zy 
(16.) Understanding of Party Dealing W\t]i 
Agent, 29 
i. Pozvers of Attorney, 29 
E. Sufficiency, 29 

a. In General, 29 

b. Principal's Conduct, 30 

c. Testimony of Agent, 31 

d. Of Particular Facts, 31 

(i.) General Pozvers, 31 

(2.) Evidence That One Is Acting for Another 

Not Sufficient, 31 
(3.) Similar Transactions, 31 
(4.) Recognition of Autliority, 32 
(5.) Admissions of Principal, 32 
(6.) Letter in Response to One Addressed /# 

Principal, t,2 
(7.) Limited Authority, 32 

e. For Particular Purposes, 32 

(i.) Authority To Sell Property. 32 
(2.) Authority To Make or Indorse Bills or 
Notes, 32 

Vol. X 



[ PRINCIPAL AND AGENT. 

(3.) Authority To Receive Payment, 33 

2. Bvidence of RatiUcation', t,2> 
' A. Burden of Proof, 33 

a. In General, 33 

B. Presumptions, 33 

a, Fro;H Silence, 33 

b. Prom Nature of Acts, 33 

C. Essential Evidence, 33 

a. Knowledge of Facts, 33 

b. /^yurjf, 33 

D. Mode of Proof, 33 

a. Conduct of Principal, 33 

b. Declarations of Principal, 34 

c. Amount of Evidence Required, 34 

(l.) /n General, 34 

(2.) Where Acts Have Been Notorious, 35 

(3.) 527^nc^, 35 

3. Undisclosed Principal, 35 

A. Burden of Proof, 35 

a. In General, 35 

b. Where Principal Entrusts Agent With Indicia of 

Title, 35 

B. Mode of Proof, 35 

a. Paro/ Ezndence, 35 

b. Conduct of Principal, 36 

c. Direct Testimony, 36 

d. Amount of Proof Required, 37 

II. ACTIONS BETWEEN PRINCIPAL AND AGENT, ^7 

1. Actions For Accounting, 37 

A. Burden of Proof, 37 

!a. 0/ Receipt of Money, ;^y 

b. Accounting for Amount Received, 37 

c. T/za/ Disbursements Were Authorised, T,y 

d. T/kz^ Agent Has Received Nothing for Goods Con-- 

signed, 37 
B. Admissibility, 37 

a. Conduct of Agent, 37 

b. Account Books, 38 

2. Actions Based on Agent's Neglect or Misconduct, 38 

A. Burden of Proof, 38 
a. Of the Wrong, 38 
Vol. X 



PRIXCIPAL AXD AGENT. 5 

b. Of Facts In Excuse, 38 

c. That Principal Has Not Been Damaged, 38 
B. Mode of Proof, 39 

a. Evidence of Circumstances, 39 

b. Admissions, 39 

c. Custom, 39 

3. Actions for Compensation. 40 

A. Burden of Proof, 40 

B. Mode of Proof, 40 

a. Evidence of Employment, 40 

b. Evidence of Value, 40 

(i.) Where Express Contract, 40 

(2.) Compensation of Similar Agents, 40 

(3.) Expert Testimony, 41 

(4.) Unskilf Illness of Agent, 41 

c. Self-Serving Declarations, 41 

d. Evidence That Agent Was Acting for Other 

Party, 41 

in. OTHER ACTIONS, 41 

1. Betzvcen Agent and Third Persons, 41 

A. Burden of Proof, 41 

a. Contract Made Apparently as Principal, 41 

b. Contract Made Apparently as Agent, 41 

c. Where Credit Given to Agent of Knoicii Princi- 

pal, 41 

B. Presumptions, 41 

a. Where Acts Are Within Authority, 41 

b. That Known Principal Was Given Credit, 42 

c. Contract Signed " B, Agent, " 42 

d. No Presumption That Agent Has Paid Money to 

Principal, 42 

C. Mode of Proof, 42 

a. Parol Evidence, 42 

(i.) Not Admissible To Exonerate Agent Who 

Has Not Disclosed His Principal, 42 
(2.) Admissible To Shozv Authority, 43 

b. Evidence of Intent, 43 

D. Sufficiency, 43 

2. Betwe-cn Third Parties, 43 

3. Criminal Actions, 43 

Vol. X 



PRINCIPAL AND AGENT. 



I. EVIDENCE IN ACTIONS BETWEEN PRINCIPAL 
AND THIRD PERSONS. 

1. In General. — A. Burden of Proof. — a. Of Fact of Agency. 
The burden of proving the existence of the relation of principal and 
agent is upon the party claiming it to exist/ 

b. Of Extent of Authority. — (l.) In General. — In general, a 
party suing a principal on a contract made by one assuming to act 
as an agent has the burden of proving the latter's authority.' 

(2.) Authority To Sell and Convey Land. —(A.) In General. — The 
authority of an attorney to sell and make a conveyance of land must 
be strictly proved by the party claiming under it.^- 



1. United States. — Russ :-. Telf- 
ener, 57 Fed. 973. 

Alabama. — Spratt v. Wilson, 94 
Ala. 608. 10 So. 209; Sellers v. Com- 
mercial Fire Ins. Co., 105 Ala. 282, 
16 So. 798; George v. Ross, 128 Ala. 
666, 29 So. 651. 

Illinois. — Proudfoot v. Wightman. 
78 111. 553; Martins v. Green, 3 111. 
App. 626; Jahn v. Kelly, 58 111. App. 
570 (semble) ; Schmidt c'. Shaver, 
196 111. 108, 63 N. E. 655, 89 Am. 
St. Rep. 250. 

lou'a. — Moffet v. Moffet. 90 Iowa 
442, 57 N. W. 954- 

Kentucky. — Dougherty z'. Hollo- 
way, 5 T. B. Mon. 314; O'Day v. 
Bennett, 26 Ky. L. Rep. 702, 82 S. 
W. 442. 

Louisiana. — McCarty v. Straus, 21 
La. Ann. 592. 

Maine. — Stratton 2: Todd, 82 Me. 
149, 19 Atl. III. 

Massachusetts. — Beals v. Merriam, 
II Mete. 470. 

Michigan. — Thompson z'. Clay. 60 
Mich. 627, 27 N. W. 699; Clark v. 
Dillman, 108 Mich. 625, 66 N. W. 570. 

New Hampshire. — Morse v. Bel- 
lows, 7 N. H. 549, 28 Am. Dec. 372. 

Pennsylvania. — American Under- 
writers' Ass'n V. George, 97 Pa. St. 
238; Baltimore & O. Employes' Re- 
lief Ass'n V. Post, 122 Pa. St. 579. I5 
Atl. 885, 9 Am. St. Rep. 147, 2 L. 
R. A. 44; Duncan v. Hartman, 143 
Pa. St. 595, 22 Atl. 1099, 24 Am. St. 
Rep. 570. 

Rhode Island. — Ward z'. Trustees 
of New England, 27 R. I. 262, 61 
Atl. 651. 

2. Alabama. — George z'. Ross, 
128 Ala. 666, 29 So. 651. 

Illinois. — Matthews z: People's 
Fire Ins. Co., 64 111. App. 280. 
Iowa. — Pray v. Farmers' Incorp. 

Vol. X 



Co-op. Creamery, 89 Iowa 741, 5G N. 
W. 443. 

Louisiana. — Wells z'. McMaster. 
5 Rob. 154; Carpenter z'. Beatty. 12 
Rob. 540. 

Maine. — Holmes f. Morse, 50 
Me. 102. 

Minnesota. — Brayley v. Kelly, 25 
Minn. 160. 

Missouri. — Johnson v. Hurley, 115 
Mo. 513, 22 S. W. 492; Knoche v. 
Whiteman, 86 Mo. App. 568. 

Nezv Jersey. — Marvott v. Swaine, 
28 N. J. Eq. 589. 

Nezv York. — Thurman v. Wells, 
Fargo & Co., 18 Barb. 500; Kipp v. 
East River Elec. Light Co., 19 N. Y. 
Supp. 387. 

Oregon. — Sears v. Daly, 43 Or- 
346, 73 Pac. 5; 

Pennsylvania. — Hough v. Doyle, 
4 Rawle 291. 

South Carolina. — Dixon v. Has- 
lett, 3 Brev. 475 ; Bank of Hamburg 
v. Johnson, 3 Rich. L. 42 (authority 
must be clearly proved). 

South Dakota. — Larpenteur z'. 
Williams, 12 S. D. 373. 81 N. W.625; 
Case Threshing Mach. Co. v. Eich- 
inger, 15 S. D. 530, 91 N. W. 82. 

Texas. — T. H. Baker & Co. v. 
Kellett-Chatham Mach. Co. (Tex. 
Civ. App.) 84 S. W. 661. 

Wisconsin. — Parr v. Northern 
Electrical Mfg. Co., 117 Wis. 278. 93 
N. W. 1099; Ames v. D. J. Murray 
Mfg. Co., 114 Wis. 85, 89 N. W. 836. 

See also Crary v. Turner, 6 
Johns. (N. Y.) 51; White S. M. 
Co. V. Hill. 136 N. C. 128, 48 S. E. 
575; Nicholson v. Pease, 61 Vt. 534. 
17 Atl. 720. These latter cases ap- 
ply the same rule against defendant 
where he sets up an act of the plaint- 
iff's agent. 

3. Logan v. Steele's Heirs, 4 T. 



PRIXCIFAL AND AGENT. 7 

Of Parol Authority To Sell Real Estate. — A purchaser who relies 
upon parol authority of an agent to sell real estate must establish 
the authority by clear, certain and specific evidence.* 

(B.) Where Authority Is Limited. — Where the authority is 
limited it must be shown that the conditions under which a convey- 
ance was to be made have been fulfilled.^ 

(C.) Where Authority Is General. — Where the land is not de- 
scribed in the power of attorney, the evidence must show otherwise 
that the land conve}'ed was covered by the authority.*^ 

(3.) Authority To Execute Lease. — A lease executed by an agent is 
not admissible until the authority is shown by clear evidence.'' 

(4.) Authority To Make or Indorse Bills or Notes. — The authority of 
an agent to make or indorse bills, notes and other instruments sued 
upon must be proved f but it may be inferred from circumstances.^ 

(5.) Authority To Buy Goods. — The burden is on the party who sells 
goods to an agent to prove that the goods sold are of such character 
as the nature of the business authorized the agent to purchase.^'' 



B. Mon. (Ky.) 430; Herndon v. 
Bascom. 8 Dana (Ky.) 113; Daven- 
port V. Parsons. 10 Mich. 42, 81 Am. 
Dec. 772 ; Yarborough v. IBeard, i 
Tayl. (N. C.) 25; Territory v. Klee. 
I Wash. 183. 23 Pac. 417. See also 
Union Mut. Life Ins. Co. ■:■. Masten. 

3 Fed. 881. 

The power must be shown by some 
evidence other than the muniment of 
title. Blume v. Rice, 12 Tex. Civ. 
App. I, :^2 S. W. 1056. 

Authority To Make Contract To Sell 
must be proved. Clark v. Gordon, 
35 W. Va. 735. 14 S. E. 255. 

4. Proudfoot V. Wightman, 78 111. 
553 ; Challoner z'. Bouck, 56 Wis. 652, 
14 N. W. 810. 

" It is not doubted that parol au- 
thority would be sufficient for this 
purpose, but then it must be clear 
and explicit, and not clouded with 
any uncertainty. A party may not 
be deprived of his property without 
his consent, and where an agent un- 
dertakes to bind his principal in a 
contract for the conveyance of real 
estate, his authority so to do must 
be certain and specific." Tavlor z'. 
Merrill, 55 111. 52. 

5. McConnell Z'. Bowdrv's llcirs. 

4 T. B. Mon. (Ky.) 392. 

6. Dunnegan Z'. Butler, _'5 
Tex. 501. 

7. Humphreys z'. Browne, 19 La. 
Ann. 158. 

Where an oral lease is claimed, 
and all the circumstances tend to 



show authority in the agent, the si- 
lence of the principal, who has the 
conclusive evidence peculiarly with- 
in his possession, goes strongly to 
support the fact of authority. Grigs- 
by v. Western Union Tel. Co., 5 S. 
D. 561, 59 N. W. 734. 

8. Consolidated Nat. Bank v. Pa- 
cific Coast S. S. Co., 95 Cal. i. 30 
Pac. 96, 29 Am. St. Rep. 85; Rio 
Grande Extension Co. v. Coby, 7 
Colo. 299, 3 Pac. 481 ; Folger v. 
Peterkin, 39 La. Ann. 815. 2 So. 579; 
Flax & Hemp Mfg. Co. z: Ballen- 
tine, 16 N. J. L. 454; Connell z'. Mc- 
Loughlin, 28 Or. 230, 42 Pac. 218. 
But it is not necessary to show writ- 
ten authority. Garrott z\ Ratliflf. 83 
Ky. 384; Trundy v. Farrar, 32 
Me. 225. 

A failure by an agent to produce a 
power of attorney does not raise any 
inference that it authorized him to 
sign a note. Connell v. McLough- 
lin, 28 Or. 230, 42 Pac. 218. 

9. Trundy v. Farrar, ;i2 Me. 225.- 

10. Wallis Tobacco Co. z'. Jack- 
son, 99 Ala. 460, 13 So. 120; Odell 
Typewriter Co. z\ Scars. Roebuck 
«& Co., 86 111. App. 621. See. how- 
ever. Thurber z'. Ander.son, 88 111. 
167. An agent for one who kept a 
grocery and saloon bought imported 
ale and cigars. It was objected that 
the goods were not suited to the busi- 
ness, but the court disposed of this 
by saying: 'The evidence fails to 
show that the goods ordered were 

Vol. X 



8 



PRINCIPAL AND AGENT. 



(6.) Authority To Employ. — A party suing for services rendered 
under a contract with an agent must show the latter's authority ;^^ 
but where the agent is one of the chief officers of a corporation, and 
the services are such as the corporation would require, the authority 
may be presumed. ^^ Likewise, where the president of a corporation 
hires an employe, it will be presumed that he had authority to agree 
upon a compensation." 

(7.) Authority To Make Guaranties and Warranties. — A party seek- 
ing to hold a principal on a guaranty or warranty made by an agent 
has the burden of showing the latter's authority.^* When an agent 
is sued upon a warranty, he has the burden of showing his author- 
ity.i^ 

(8.) Authority To Receive Payment — (A.) In General. — The au- 
thority of an agent to receive payment for his principal must be 
proved by the party making payment;^® but the proof need not be 



not such as are within the line of 
business in which appellee was en- 
gaged." 

In general, to the effect that plaint- 
iff has the burden of showing the au- 
thority of the agent to buy, see Cas- 
sidv V. Aldhous, 3 Misc. 627, 23 N. 
Y.'Supp. 318. 

11. Schlapbach v. Richmond & 
D. R. Co., 35 S. C. 517, IS S. E. 241 
(authority of railroad station agent 
to employ detective to find persons 
who had been robbing cars must be 
proved) ; Stinson v. Sachs, 8 Wash. 
391, 36 Pac. 287; Ames v. Murray 
Mfg. Co., 114 Wis. 85, 89 N. W. 836. 

12. Cincinnati. I., St. L. & C. R. 
Co. V. Davis, 126 Ind. 99, 25 N. E. 
878, 9 L. R. A. 503. "An officer of 
such a high rank as general super- 
intendent is presumed to possess au- 
thority to employ surgeons and 
nurses to render service to persons 
injured by the trains of the com- 
pany." 

13. Steel V. Solid Silver Gold & 
Silv. Min. Co., 13 Nev. 486. 

14. Willard v. Mellor, 19 Colo. 
534, 36 Pac. 148; Gray v. Gillilan. 15 
111. 453, 60 Am. Dec. 761 ; Lake Erie 
& W. R. Co. V. Faught, 31 111. 
App. no. 

Where an agent is authorized to 
sell machines which are sold with a 
printed warranty, the legal presump- 
tion is that he is authorized to make 
sales upon the terms and conditions 
therein contained, and not otherwise. 
Richmond v. Greeley, 38 Iowa 666. 

15. Wheeler v. Reed, 36 111. 81. 

Vol. X 



16. Illinois. — Garrels z'. Morton, 

26 111. App. 433. 

lozm. — Tappan r. Morseman, 18 
Iowa 499; Harrison r. Legore, 109 
Iowa 618. 80 N. W. 670. 

Massachusetts. — Whitaker "'. Bal- 
lard, 178 Mass. 584, 60 N. E. 379. 

Missouri. — Hefferman v. Boteler, 
87 Mo. App. 316. 

Oregon. — Rhodes 7'. Belchee, 36 
Or. 141, 59 Pac. 117. 

South Carolina. — Dixon v. Has- 
lett, 2 Tread. Const. 615 (authority 
to receive bills of exchange in paj^- 
ment must be proved) ; Columbia 
Phosphate Co. v. Farmers' Alliance 
Store, 47 S. C. 358, 25 S. E. 116 (au- 
thority to receive collaterals must be 
proved). 

J^irginia. — Wooding's Ex'x v. 
Bradley's Ex'r., 76 Va. 614. 

Washington. — Corbet v. Waller, 

27 Wash. 242, 67 Pac. 567. 

See also Schmidt v. Garfield Nat. 
Bank, 64 Hun 298, 19 N. Y. Supp. 
252, affirmed 138 N. Y. 631, 33 N. 
E. 1084. 

Authority to receive pajanent in 
depreciated currency must be proved. 
Purvis V. Jackson, 69 N. C. 474. 

Wliere revocation of a prior au- 
thority is shown, the burden is upon 
the party paying to show that he paid 
in good faith. Whitaker v. Ballard, 
178 Mass. 584, 60 N. E. 379. 

Authority To Release Mortgage. 
Upon the same principle, a party pay- 
ing a mortgage debt to an agent has 
the burden of proving the agent's au- 
thority to release. Knoche v. White- 
man, 86 Mo. App. 568. 



PRINCIPAL AND AGENT. 9 

direct, it may be inferred from the circumstances of the case.^' 
(B.) Where Agent Is in Possession of Securities. — While authority 
to receive payment may be inferred from the fact of the agent's 
having made the loan and retained the securities, or from mere 
possession of the securities, the burden of proof is on the debtor 
to show that the securities were in the custody of the agent at 
the time of the payment.^® 

c. Continuance of Special Agency. — A special agency terminates 
when the act authorized is done ; and a party claiming a continu- 
ance of the relation has the burden of proof.^^ 

d. Of Ostensible Agency. — A party relying upon an ostensible 
agency has the burden of proving the holding out and his knowledge 
thereo'f.20 

e. Of Execution of Contract. — A party suing a principal upon 
a contract alleged to have been made by an agent has the same 
burden of proving execution that he would have if he claimed un- 
der a contract made by the principal personally.-^ 

B. Presumptions. — a. Act Inuring to Benefit of Principal. 
Where an act purports to be that of an agent, and it inures to the 
benefit of the alleged principal, it will be presumed that the rela- 
tion existed. -- 

b. Prior Acts With Knozvledge of Principal. — Where a party 
has acted as agent for a considerable time, with the knowledge of 
the alleged principal, it will be presumed that the relation exists.^^ 



17. Norton v. Bull 43 Mo. 113. 

18. Garrels v. Morton, 26 111. App. 
433; Williams v. Walker, 2 Sandf. 
Ch. (N. Y.) 325. 

Possession of a bond and mortgage 
by an agent is sufficient evidence of 
authority to collect. O'Loughlin v. 
Billy, 95 App. Div. 99, 88 N. Y. 
Supp. 567. 

19. Fullerton v. McLaughlin, 70 
Hun 568, 24 N. Y. Supp. 280. 

20. Rodgers v. Peckham, 120 Cal. 
238. 52 Pac. 483. 

" There are two essential features 
of an authority of this character; viz., 
the party must believe that the agent 
had authority, and such belief must 
be generated by some act or neglect 
of the person to be held." Harris Z'. 
San Diego Flume Co., 87 Cal. 526, 25 
Pac. 758. 

21. Russ V. Telfener, 57 Fed. 973. 

He has the burden of showing per- 
formance of conditions (Denver & 
R. G. R. Co. V. Neis, 10 Colo. 56, 14 
Pac. 105), and of showing that the 
agent was acting for the principal 
(St. Landry State Bank i\ Meyers, 
52 La. Ann. 1769, 28 So. 136). 



As to the general burden of proof 
in actions on contracts, see article 
" Contracts," Vol. III. 

98. Potter z'. Lansing, i Johns. 
(N, Y.) 215. 3 Am. Dec. 310; Wyllie 
z\ Wynne. 26 Tex. 42. 

It will be presumed that a person 
who takes possession of property and 
claims to act as agent is the agent of 
the owners. Succession of Labat. 
no La. 986, 35 So. 257. 

Possession of an unindorsed bill 
of lading bji a person other than the 
consignor or consignee raises no pre- 
sumption that such person is the 
agent of the consignor. Stewart ?'. 
Grcgorv, Carter & Co., 9 N. D. 618, 
84 N. W. 553. 

Where the principal received the 
purchase price, it will be presumed 
that the agent had authority. Bias v. 
Cockrum, 37 Miss. 509, 75 Am. 
Dec. 76. 

23. Smith V. White, 5 Dana (Ky.) 
376; Rawson z'. Curtiss, 19 111. 456. 

Persons Acting for Corporations 
Presumed To Have Authority Cor- 
porations can act only by agents; and 
therefore authority will be presumed 

Vol. X 



10 



PRINCIPAL AND AGENT. 



c. Special AutJwriaation at Another Time. — One authorization,, 
liowever, does not justify the presumption that another or dififerent 
one has been given at a later time.-* 

([.Presumption That Authority Is General. — (1.) Generally. 
Parties deahng with a known agent have a right to presume that 
the agency is general, and not special f^ and the presumption is that 
one known to be an agent is acting within the scope of his au- 
thority.-*^ 

(2.) Possession for Twenty Years. — Possession for more than 
twenty years under a deed executed by an agent raises a presump- 
tion of authority to execute the deed.-^ 

(3.) Ancient Documents. — It will be presumed that an ancient docu- 
ment, purporting to be executed under a power of attorney, vvas- 
executed under due authority.-** 

(4.) No Presumption From Acknowledgment. — A certificate of ac- 
knowledgment of a deed executed by an attorney raises no pre- 
sumption that he was acting with authority.-'' 



in persons who are permitted to act 
for them. Rockford, R. I. & St. L. 
R. Co. V. Wilcox, 66 111. 417; Singer 
Mfg. Co. V. Holdfodt, 86 111. 455, 29 
Am. Rep. 43. 

24. Green v. Hinklej', 52 Iowa 633. 
3 N. W. 688; Ballard v. Nye. 138 
Cal. 588, 72 Pac. 156 (agency for bor- 
rowing raises no presumption of 
agency for paying). See also Cobb 
T'. Hall. 49 Iowa 366. 

The fact that one acted as agent 
for plaintiff in the negotiations for 
a loan raises no presumption of 
agency to collect. Werth v. Ollis, 70 
Mo. App. 318. 

Agency for One Purpose Is Not 

Presumed To Continue In case of 

a special agency, limited to one par- 
ticular transaction, the law raises no 
inference that it continues or extends 
to other matters. Reed v. Baggott, 

5 111. App. 257. 

Special Agency Presumed To Con- 
tinue for the Purpose But when 

an agency for a special purpose is 
proved to have existed at one time, 
it is presumed to continue. Hensel v. 
Maas, 94 Mich. 563, 54 N. VV. 381; 
Columbus Co. z: Hurford, i Neb. 146. 

25. Maher z: Moore (Del.), 42 
Atl. 721 ; Methuen v. Hayes, 32, Me. 
169; Trainer v. Morison, 78 Me. 160. 
3 Atl. 185. 57 Am. Rep. 790; Wood 
z'. Finson, 89 Me. 459, 36 Ad. 911; 
Austrian & Co. v. Springer, 94 Mich. 
343, 54 N. W. so, 34 Am. St. Rep. 
.^,50; Missouri Pac. R. Co. v. Simons, 

6 Tex. Civ. App. 621, 25 S. W. 996. 

Vol. X 



This presumption relates to a known 
agency. It does not relate to an 
agency not proved or admitted. 
Contra, Dickinson Co. v. Mississippi 
Val. Ins. Co., 41 Iowa 286, holding 
that there are no presumptions on 
the subject. 

26. Austrian & Co. v. Springer, 94 
Mich. 343. 54 N. W. 50, 34 Am. St. 
Rep. 350. See also Bessemer Land 
& Imp. Co. V. Campbell, 121 Ala. 50,- 

23 So. 793, 77 Am. St. Rep. 17. 
Apparent Scope of Authority A 

deed executed by an attorney ap- 
parently within the scope of his au- 
thority raises a presumption of au- 
thority, and makes the recitals there- 
in contained evidence against the 
principal ; but the principal may re- 
but the presumption. Morrill z'. 
Cone. 22 How. (U. S.) 75. 

27. Jarboe v. McAtee's Heirs, 7 
B. Mon. (Ky.) 279 (possession for 
fifty years); Tarvin v. Walker's- 
Creek Coal & Coke Co., 25 Ky. L.- 
Rep. 2246, 80 S. W. 504; Buhols v. 
Boudousquie, 6 Mart. N. S. 153 (pos- 
session for twenty-three years) ; Bed- 
ford Z'. Urquhart, 8 La. 241 ; Inhabi- 
tants of Stockbridge z: Inhabitants . 
of West Stockbridge, 14 Mass. 257 ; 
Folts v. Ferguson (Tex. Civ. App.),. 

24 S. W. 657; Goodwin v. M'Cluer, 
3 Gratt. (Va.) 278. 

28. Williams v. Conger, 125 U. S. 
397, 8 Sup. Ct. 933 ; Cochran v. Lin- 
ville Imp. Co., 127 N. C. 386, 37 S. , 
E. 496. 

29. " The officer merely certitled, ., 



PRINCIPAL AND AGENT. 



11 



(5.) No Presumption From Recital of Authority. — Nor will a recital 
of authority in the deed raise any presumption or be any evidence 
whatever of authority.^" 

e. Authority to Receive Payment. — (1.) Limited Authority. — An 
authority to receive interest does not raise any presumption of au- 
thority to receive a portion of the principal sum f^ nor does the 
fact that an agent has negotiated a loan give rise to any presump- 
tion of authority to collect.^' 

(2.) Where Agent Has Acted as Principal. — Where, however, the 
agent has acted throughout as a principal, the undisclosed principal 
will not be permitted to deny the authority to collect.'*'' 

f. Letters Purporting to Anszver Plai)itiff's Letters to Principal. 
Where letters to plaintifT signed with defendant's name by one 
purporting to be his agent show on their face that they were an- 
swers to letters which plaintiff had written to defendant, a pre- 
sumption arises of authority in the agent. "^ 

g. No Presumption of AutJiority To Do an Illegal Act. — It will 
not be presumed that an agent was authorized to do an illegal act.'*^ 

h. No Presumption of Authority to Buy From Authority to Sell. 
An authority to buy goods can not be inferred from an authorit}- 
to sell.^'' 

i. No Presumption as to Presence of Principal. — There is no 
presumption that a principal was present when his name was signed 
by one claiming to act as agent.^^ 

C. Order of Proof. — Where an instrument under seal appears 
to have been executed by attorney, and authority is disputed, the 
power of attorney must be produced f^ but the order of proof is im- 
material."" 



that the (one) claiming to act for the 
grantor acknowledged the execution. 
He is not made judge of the sup- 
posed agent's authority, and if no 
proof of such authority is now to be 
given, one's land is at the disposal of 
any person conveying it as agent, 
witJiout authority." Telford z'. 
Barney, i Greene (Iowa) 575. 

30. Waggencr v. Waggener. 3 T. 
B. Mon. (Ky.) 542. 

31. Dewey v. Bradford (Neb.), 
89 N. W. 249. 

32. Ilefferman v. Boteler, 87 Mo. 
App. 316. 

33. Cheshire Provident Inst. z". 
Feusner, 63 Neb 682. 88 N. W. 849. 

34. The presumption is especially 
strong when the defendant himself 
introduces letters so signed. Kinder 
:'. Pope, 106 Mo. App. 536. 80 S. 

VV. 315.^ 

35. Stover v. Flower, 120 Iowa 
51.4. 94 N. W. 1 100 (not presumed 
that he had authority to lease 



property for an illegal purpose). 

36. Thurber v. Anderson, 88 
111. 167. 

37. " This question arises where 
;ui exception to the rule requiring au- 
thority to sell real estate to be in 
writing is claimed. A principal may 
oralh' instruct his agent to sign his 
name in his presence. But such 
presence is not to be inferred from 
any coincidence between the date of 
the deed and the acknowledgment of 
the principal that it was executed by 
his authority. Videau v. Griffin, 21 
Cal. 389. 

38. Videau i\ Griffin, 21 Cal. 389; 
Tolman v. Emerson, 4 Pick. (Mass.) 
160. In Emerson v. Providence Hat 
Mfg. Co., 12 Mass. 237, 7 Am. Dec. 
66, the court said that an instrument 
under seal purporting to be executed 
under a power of attorney cannot be 
admitted in evidence until the power 
of attorney is produced. 

39. Emerson v. Providence Hal 

Vol. X 



12 



PRINCIPAL AND AGENT. 



D. Mode of Proof. — a. Generally. — In general, whatever evi- 
dence has a tendency to prove agency is admissible, even though 
it be not full and satisfactory/" 

b. Parol Evidence. — (1.) In General. — In general, parol evidence 
is admissible to establish the fact of agency, as well as the extent 
of authority.*^ 



Mfg. Co., 12 Mass. 237, 7 Am. Dec. 
66. In Erie & P. Despatch Co. v. 
Cecil, 112 111. 180, the court said: " In 
all cases where the power of an agent 
to make a contract is questioned, thj 
most convenient and natural course 
to pursue, is to establish the fact that 
an agreement was made, by showing 
its terms and the names of the par- 
ties who ofificiated in settling them. 
The next step is to show that those 
who assumed to act had the requisite 
authority to do so." 

40. Dickinson v. Salmon, 36 Misc. 
169, 72, N. Y. Supp. 196, aMrming 35 
Misc. 838, 72 N. Y. Supp. 1099. 

Thus, in Sellers v. Commercial 
Fire Ins. Co., 105 Ala. 282, 16 So. 
798, the court said : " If there was le- 
gal evidence having a tendency to 
support the affirmative of this in- 
quiry, the evidence excluded ought to 
have been received, leaving the jury 
to pass upon its sufficiency and credi- 
bility, however much may have been 
the conflict in the evidence touching 
the transaction to which it related.'' 

How Fact May Be Shown " It 

may be shown directly, by express 
words of appointment, either spoken 
or written. Or, it may be implied or 
inferred, or indirectly shown, by evi- 
dence of the relative situation of the 
parties, the nature of the business 
which is the subject of controversy, 
and the character of the intercourse 
between them, provided the facts and 
circumstance disclosed by the evi- 
dence, fairly justify such an infer- 
ence. The acts and doings of the 
party sought to be charged as prin- 
cipal, in relation to the subject mat- 
ter, may be, and often are, quite as 
expressive and significative as words 
spoken." Geylin v. De Villeroi, 2 
Houst. (Del.) 311. 

Where, however, the evidence 
shows that the third party inquired of 
the principal as to the extent of au- 
thority before the transaction, he is 
bound by the result of the inquiry, 
and other evidence is not admissible 

Vol. X 



to contradict it. Norton v. Rich- 
mond, 93 111. 367. 

41. Alabama. — Gibson v. Snow 
Hdw. Co., 94 Ala. 346, 10 So. 304; 
Tennessee River Transp. Co. v. Kav- 
anaugh, loi Ala. i, 13 So. 283. 

California. — Bergtholdt z>. Porter 
Bros. Co., 114 Cal. 681, 46 Pac. 738. 

Colorado. — Gambrill v. Brown 
Hotel Co., II Colo. App. 529, 54 Pac. 
1025. 

Indiana. — Indiana, B. & W. R. Co. 
V. Adamson, 114 Ind. 282, 15 N. E. 
5; Fruchey v. Eagleson, 15 Ind. App. 
88, 43 N. E. 146; Barnett v. Gluting, 
3 Ind. App. 415, 29 N. E. 927; 
Richardson v. St. Joseph Iron Co., 5 
Blackf. 146, 23 Am. Dec. 460. 

Iowa. — Lyons v. Thompson, 16 
Iowa 62. 

Minnesota. — Stewart z'. Cowles, 67 
Minn. 184, 69 N. W. 694; Fowlds v. 
Evans, 52 Minn. 551, 54 N. W. 743. 

Missouri. — Crosno v. Bowser Mil- 
ling Co., 106 Mo. App. 236, 80 S. W. 
275; Mosby V. McKee, 91 Mo. App. 
500; Haubelt Bros. v. Rea & Page 
Mill Co., 77 Mo. App. 672; Sharp v. 
Knox, 48 Mo. App. 169 ; Roberson v. 
Clevenger (Mo. App.), 86 S. W. 512. 

Nebraska. — Columbus Co. v. Hur- 
ford, I Neb. 146. 

New Hampshire. — Kent v. Tyson, 
20 N. H. 121. 

New York. — Richards v. Millard, 
56 N. Y. 574, reversing i Thomp. & 
C. 574; Nutting V. Kings County El. 
R. Co., 21 App. Div. 72, 47 N. Y. 
Supp. 327 ; Smith v. Martin Anti- 
Fire Car Heater Co., 64 Hun 639, 19 
N. Y. Supp. 285. 

North Caro/ma. — Gilbraith r. 
Lineberger, 69 N. C. 145. 

Pennsylvania. — Patterson v. Van 
Loon, 186 Pa. St. 367, 40 Atl. 495. 

Rhode Island. — Ward v. Trustees 
of New England S. C. 27 R. I. 262, 
61 Atl. 651. 

Icxas. — Hamm v. Drew, 83 Tex. 
77, 18 S. W. 434- 

Vermont. — Daggett v. Champlain 
Mfg. Co., 71 Vt. 370, 45 Atl. 755- 



PRINCIPAL AND AGENT. 



13 



(2.) Where Written Power of Attorney Not Essential. — Where a 
written power of attorney is not required, but exists, parol evidence 
is still admissible on behalf of the plaintiff to establish the author- 
ity.*^ And it is not necessary to give notice to produce the original.*'* 

(3.) To Enlarge Written Power of Attorney. — Where the agent's 
authority is conferred by a writing, parol evidence is not admissible 
to enlarge the written authority.** 



Virginia. — Lunsford v. Smith, I2 
Gratt. 554; Hoge v. Turner, 96 Va. 
624, 32 S. E. 291. See also cases 
cited post under " Circumstantial 
Evidence." 

Such evidence is admissible al- 
though deeds have passed in consum- 
mation of the transaction. " The le- 
gal effect of the instruments them- 
selves, as between the parties thereto, 
was not varied by this proof. The 
proof related only to the accounta- 
bility of the agent to his principal in 
respect to the price paid for a pur- 
chase made by the agent, formally, 
in his own name, but, in fact, for the 
benefit of the principal, and by the 
agent transferred to the principal." 
Richards v. Millard, 56 N. Y. 574, re- 
versing I Thomp. & C. 574. 

42. Phelps V. Livingston, 2 Root 
(Conn.) 495; Kaskaskia Bridge Co. 
v. Shannon, 6 111. 15; Williams v. 
Cochran, 7 Rich. L. (S. C.) 45. 

A parol acknowledgment by the 
principal of an authority under seal 
is sufficient. Blood v. Goodrich, 12 
Wend. (N. Y.) 525, 27 Am. Dec. 152. 
But see contra, Paine v. Tucker, 21 
Me. 138, 38 Am. Dec. 255. 

The reason for this rule is two- 
fold. In the first place, such special 
evidence must be in the possession of 
the other parties. In the second 
place, the plaintiff is not bound by the 
written authority unless he knows of 
it. He is entitled to act upon the 
ostensible authority of the agent. It 
is sometimes stated, however, that 
" if the authority be created by power 
of attorney, or other writing, the in- 
strvunent itself must in general be 
produced." London Sav. Fund Soc. 
T'. Hagerstown Sav. Bank, 36 Pa. St. 
498, 78 Am. Dec. 390. Sec also 
Reese v. Medlock, 27 Tex. 120, 84 
.•\m. Dec. 611; Willcox r. Hines, 100 
Tenn. 524. 45 S. W. 781, 66 Am. St. 
Rep. 761. Compare Hovey v. Deane, 
13 Me. 31, where a power of attorney 
was held inadmissible because not 



properly executed, and parol evidence 
was not allowed. 

In Lee r. Agricultural Ins. Co., 79 
Iowa 379, 44 N. W. 683, an agent 
testified that his authority was in 
writing. It was held that the writing 
was the best evidence of the extent 
of his authority. 

43. It was so held in Curtis v. 
Ingham, 2 Vt. 287, where the defend- 
ant was permitted to prove agency of 
plaintiff's wife to receive payment by 
parol without notice to produce writ- 
ten authority. 

44. Alabama. — Cawthon v. Lusk, 
97 Ala. 674, II So. 731. 

California. — Frink v. Roe, 70 Cal. 
296. II Pac. 820. 

Georgia. — Claflin v. Continental 
Jersey Wks., 85 Ga. 27, n S. E. 721 ; 
Neal V. Patten, 40 Ga. 363. 

Minnesota. — Allis v. Goldsmith, 22 
Minn. 123. 

Missouri. — Mechanics' Bank v. 
Schaumburg. 38 Mo. 228. 

North Dakota. — F\ano Mfg. Co. v. 
Root, 3 N. D. 165, 54 N. W. 924. 

Ohio. — Pollock V. Cohen, 32 Ohio 
St. 514- 

JVisconsin. — Gee v. Bolton, 17 
Wis. 605, 610. 

" The very purpose of a power of 
attorney is to prescribe and publish 
the limits within which the agent 
shall act. so as not to leave him to 
the uncertainty of memory, and those 
who deal with him to the risk of 
misrepresentation or misconception as 
to the extent of his authority. To 
confer express authority is to with- 
hold implied authority." Clatlin v. 
Continental Jersey Wks., 85 Ga. 27, 
II S. E. 721. 

But an unsigned memorandiun is 
not such a writing as will prevent 
the admission of parol evidence. 
Snow z\ Warner, 10 Mete. (Mass.) 
132. 43 Am. Dec. 417. 

Testimony of parties who have 
seen a written power of attorney, as 
to its contents, is not admissible as 

Vol. X 



14 



PRINCIPAL AND AGENT. 



(4.) To Explain or Interpret Written Power of Attorney. — But parol 
evidence is admissible to explain or interpret a written power of 
attorney.*^ 

(5.) Where Written Power of Attorney is Essential. — Where statute 
requires authority to be in writing, a written power of attorney 
must be produced, if accessible.*" And notice to produce should 
be given before parol evidence of its contents is admitted.*' 

c. Testimony of Agent. — (1.) As to Fact of Agency. — Where an 
agency can be established by parol, the agent is a competent wit- 
ness to prove it.*^ 



primary evidence. Neal v. Patten, 40 
Ga. 363; Rawson v. Curtiss. 19 
111. 456. 

In general, see article " Parol 
Evidence." 

45. Cawthon v. Lusk, 97 Ala. 674, 
II So. 731 (where power of attorney 
is general, parol evidence as to ex- 
tent of business and usage is admis- 
.sible) ; Frink v. Roe, 70 Cal. 296; 
Wood V. Clark, 121 111. 359, 12 N. 
E. 271. 

A receipt made at the same time as 
a power of attorney is admissible to 
explain it. Rogers v. Bracken's 
Adm'r., 15 Tex. 564. 

46. Elliott V. Stocks. 67 Ala. 336; 
Bergtholdt v. Porter Bros. Co., 114 
Cal. 681, 46 Pac. 738; Hackenburg v. 
Gartskamp, 30 La. Ann. 898; Fitz- 
gerald V. Morrissey, 14 Neb. 198, 15 
N. W. 233. But the evidence may be 
informal, and be in the form of a 
letter. Whelage v. Lotz, 44 La. Ann. 
600. 10 So. 933. 

47. Curtis v. Ingham, 2 Vt. 287. 

48. Alabama. — Parker v. Bond, 
121 Ala. 529, 25 So. 898. 

California. — McRae v. Argonaut 
Land & Dev. Co., 54 Pac. 743- 

Georgia. — Armour v. Ross, no 
Ga. 403. 35 S. E. 787; Abel v. Jar- 
ratt, 100 Ga. 732. 28 S- E. 453; Col- 
lins V. Lester, 16 Ga. 410. 

Illinois. — Phillips v. Poulter, ill 
111. App. 330; St. Louis S. W. R. Co. 
V. Elgin Condensed Milk Co., 74 H'- 
App. 619; Thayer v. Meeker, 86 111. 
470; Calwell V. Meek, 17 111. 220. 

Iowa. — Van Sickle v. Keith. 88 
Iowa 9, 55 N. W. 42; Hall v. Aetna 
Mfg. Co., 30 Iowa 215 (seinble) ; 
Moffitt V. Cressler, 8 Iowa 122; 
O'Leary v. German American Ins. 
Co., 100 Iowa 390, 69 N. W. 686; 
O'Neill v. Wilcox, 115 Iowa 15, 87 
N. W. 742. 

Vol. X 



Kansas. — Howe Mach. Co. v. 
Clark, 15 Kan. 492; Cowles v. Burns, 
28 Kan. 32; Ream v. McElhone, 50 
Kan. 409, 31 Pac. 1075; Aultman 
Thresh. & Eng. Co. v. Knoll, 79 Pac 
1074; Jahren v. Palmer, 79 Pac. 1081. 

Maine. — Methuen Co. v. Hayes, 33 
Me. 169. 

AI i c h i g a n. — Cleveland Co-op. 
Stove Co.\j. Mallery, in Mich. 43, 
69 N. W. 75- . . 

Missouri. — Christian v. Smith, 85 
Mo. App. 117; State ex rel Fleming 
V. Henderson, 86 Mo. App. 482; 
Haubelt Bros. v. Rea & Page Mill 
Co., 77 Mo. App. 672. 

Montana. — Nyhart v. Penning- 
ton, 20 Mont. 158, 50 Pac. 413. 

Nebraska. — Nostrum v. Halliday, 
39 Neb. 828, 58 N. W. 429 (admis- 
sible if otherwise competent). 

Nezi' Hampshire. — Union Hosiery 
Co. v. Hodgson, 72 N. H. 427, 57 Atl. 
384 ; Downer v. Button, 26 N. H. 338. 

New York. — Joseph v. StruUer, 25 
Misc. 173, 54 N. Y. Supp. 162; Stone 
V. Cronin, 72 App. Div. 565, 76 N. Y. 
Supp. 605 ; Brown v. Cone, 80 App. 
Div. 413, 81 N. Y. Supp. 89; Com- 
mercial Bank v. Norton, i Hill 501. 

North Carolina. — New Home S. 
M. Co. V. Seago, 128 N. C. 158, 38 S. 
E. 805. 

Pennsylvania. — Jordan v. Stewart, 
22 Pa. St. 244; M'Gunnagle v. 
Thornton, 10 Serg. & R. 251 ; Lawall 
V. Groman, 180 Pa. St. 532, 37 Atl. 
98, 57 Am. St. Rep. 662; M'Dowell v. 
Simpson, 3 Watts 129, 27 Am. Dec. 
338. 

South Carolina. — Connor v. John- 
son, 59 S. C. 115, 37 S. E. 240. 

Te.vas. — American Tel. & Tele. 
Co. r. Kersh, 27 Tex. Civ. App. 127, 
66 S. W. 74- 

Utah. — McCornick v. Queen of 
Sheba Gold M. & M. Co., 23 Utah 
71, 63 Pac. 820. 



PRINCIPAL AND AGENT. 



15 



(2.) As to Extent of Authority. — The testimony of an agent is ad- 
missible to establish the extent of his authority.*" It is also held ad- 
missible to show that he had no authority ;'''^ although the contrary 
has been held where the facts were sufficient to work an estoppel. ^^ 

d. Declarations of Agent. — (1.) As to Agency. — Agency can not 
be proved, as against others than the alleged agent, by his declara- 
tions. ^- 



J'irgiiiia. — Fisher v. White. 94 Va. 
236, 26 S. E. 573- 

West Virginia. — Garber r. Blatch- 
ley, 51 W. Va. 147. 41 S. E. 222; 
Piercy v. Hedrick. 2 \V. Va. 458, 98 
Am. Dec. 774. 

IViscoiisin. — Roberts v. North- 
western Nat. Ins. Co.. 90 Wis. 210, 
62 N. W. 1048; O'Conner z: Hart- 
ford Fire Ins. Co., 31 Wis. 160. But 
see Guy v. Lee, 81 Ala. 163, 2 So. 273. 

To Disprove Agency — It follows, 
of course, that evidence of an al- 
leged agent is admissible to disprove 
the existence of the relation. Mc- 
Farland v. Lowry, 40 Iowa 467 ; 
Dowell z'. Williams, ^:i Kan. 319, 6 
Pac. 600. 

An agent who has no interest in a 
suit against a deceased person may 
testify on behalf of his principal in 
regard to his agency ; the rule for- 
bidding interested parties from testi- 
fying as to transactions with dece- 
dents does not app]\'. O'Neill z: 
Wilcox. IIS Iowa 15, '87 N. W. 742. 

Such testimony may involve only a 
statement of the fact of agency, 
without going into the details of how 
it was brought about. Parker v. 
Bond, 121 Ala. 529, 25 So. 898. 

49. United States. — Aetna Ins. 
Co. V. Ladd, 13s Fed. 636. 

Arl;ansas. — Liddell z-. Sahline, 55 
Ark. 627. 17 S. W. 705. 

Connecticut. — Appeal of National 
Shoe & Leather Bank, 55 Conn. 469, 
12 Atl. 646. 

Kansas. — French v. Wade. 35 Kan. 
391. II Pac. 138. 

Massachusetts. — Rice v. Gove, 22 
Pick. 158, 33 Am. Dec. 724; Gould z: 
Norfolk Lead Co., 9 Cush. 338. 57 
Am. Dec. 50. 

Nczk' York. — Flomerfelt v. Dillon, 
88 N. Y. Supp. 132. 

Nortli Dakota. — Reeves & Co. v. 
Bruening, 100 N. W. 241. 

See also Chiles v. Southern R., 69 
S. C. 327, 48 S. E. 252 (where corpo- 
ration is agent, its officer may so 
testify). 



The agent may testify as to similar 
transactions. Gallinger v. Lake 
Shore Traffic Co., 67 Wis. 529, 30 N. 
W. 790. 

50. John's Adm'r v. McConnell. 
19 Mo. 38; Dowell V. Williams, 33 
Kan. 319, 6 Pac. 600; Gilliland v. 
Dunn & Co., 136 Ala. 327, 34 So. 25; 
Robinson v. .A.etna Fire Ins. Co., 135 
Ala. 650. 34 So. 18. It is admissible 
where intent is material, as in an ac- 
tion for deceit. Wachsmuth v. Mar- 
tini, 45 111. App. 244, afUnned in 154 
111. 515, 39 N. E. 129. 

51. Knap v. Sacket, i Root 
(Conn.) 501. See also Owings v. 
Nicholson, 4 Harr. & J. (Md.) 66. 

52. United States. — Empire State 
Nail Co. V. Faulkner, 55 Fed. 819; 
Union Guar. & Trust Co. v. Robin- 
son, 79 Fed. 420. 24 C. C. A. 650; 
James v. Stookey, i Wash. C. C. 330, 
13 Fed. Cas. No. 7,184. 

Alabama. — Tanner & De Laney 
Engine Co. v. Hall, 86 Ala. 305, 5 So. 
584; Foxworth V. Brown, 120 Ala. 
59, 24 So. I ; Huntsville Belt Line & 
M. S. R. Co. V. Corpening, 97 Ala. 
681, 12 So. 295. 

Arkansas. — Holland v. Rogers, 33 
Ark. 251 (not admissible against 
principal) ; Howcott v. Kilbourn, 44 
Ark. 213; Turner v. Huff, 46 Ark. 
222, 55 Am. Rep. 580 (declarations 
made in absence of party to be af- 
fected not admissible). 

California. — Ferris v. Baker, 127 
Cal. 520. 59 Pac. 937; Bergtholdt v. 
Porter Bros. Co., 114 Cal. 681, 46 
Pac. 738; Santa Cruz Butchers' 
Union z-'. I X L Lime Co., 46 Pac. 
382; Van Dusen f. Star Quartz Min. 
Co., 36 Cal. 571. 95 Am. Dec. 209; 
Petterson v. Stockton & T. R. Co., 
134 Cal. 244, 66 Pac. 304. 

Colorado. — Fisher -'. Denver Nat. 
Bank. 22 Colo. 2>7i- 45 Pac. 440; Bur- 
son V. Bogart, 18 Colo. App. 449, 72 
Pac. 605; IMurphy i'. Gumaer, 12 
Colo. App. 472. 55 Pac. 951 ; Omaha 
& G. S. &- R. Co. V. Tabor. 13 Colo. 

Vol. X 



16 



PRINCIPAL AND AGENT. 



41, 21 Pac. 925, 16 Am. St. Rep. 185, 
5 L. R. A. 236. 

Connecticut. — Fitch v. Chapman, 
10 Conn. 8. 

Georgia. — Colquitt v. Thomas, 8 
Ga. 258; Florida, M. & G. R. Co. v. 
Varnedoe, 81 Ga. 175, 7 S. E. 129; 
Holland v. Van Beil, 89 Ga. 223, 15 
S. E. 302; Hirsch v. Oliver, 91 Ga. 
554. 18 S. E. 354; Armour v. Ross, 
no' Ga. 403, 35 S. E. 787; Americus 
Oil Co. V. Gurr, 114 Ga. 624, 40 S. E. 
780; Almand v. Equitable Mtg. Co., 
113 Ga. 983, 39 S. E. 421; Jones v. 
Harrell, no Ga. 2>72>^ 35 S. E. 690; 
Massillon Eng. & Thresh. Co. v. 
Akerman, no Ga. 570, 35 S. E. 635; 
Grand Rapids School Furn. Co. v. 
Morel, no Ga. 321, 35 S. E. 312; 
Harris Loan Co. v. Elliott & Hatch 
Book-Typewriter Co. (Ga.), 34 S. 
E. 1003; Alger V. Turner, 105 Ga. 178, 
31 S. E. 423; Wynne v. Stevens, loi 
Ga. 808, 28 S. E. 1000; Abel v. Jar- 
ratt, 100 Ga. 7^2, 28 S. E. 453; 
Turner v. Turner, 123 Ga. 5, 50 S. E. 
969, 107 Am. St. Rep. 79; Hood v. 
Hendrickson, 122 Ga. 795, 50 S. E. 
994; Nelson v. Tumlin, 74 Ga. 171. 

Illinois. — Proctor v. Tows, n5 111. 
138, 3 N. E. 569; Osgood V. Pacey, 23 
111. App. n6; Mullanphy Sav. Bank 
V. Schott, 135 111. 655, 26 N. E. 640, 
25 Am. St. Rep. 401 ; Boyd v. Jen- 
nings 46 111. App. 290; Mellor v. 
Canthers, 52 111. App. 86; Peter 
Schoenhofer Brew. Co. v. Wengler, 
57 111. App. 184; Ransom v. Duckett, 
48 III App. 659; Currie v. Syndicate 
Des Cultivators Des Oignons a Fleur, 
104 111. App. 165; McCIure v. Os- 
borne & Co., 86 111. App. 465 ; Cleve- 
land, C. C. & St. L. R. Co. V. Jen- 
kins, 75 111. App. 17. 

Indiana. — Johnston Harvester Cd. 
V. Bartley, 81 Ind. 406; Lucas v. Ra- 
der, 29 Ind. App. 287, 64 N. E. 488; 
Blair-Baker Horse Co. v. First Nat. 
Bank, 164 Ind. 77, 72 N. E. 1027; 
Broadstreet v. Hall, 32 Ind. App. 122; 
69 N. E. 415- 

Iowa. — Graul v. Strutzel, 53 Iowa 
712, 6 N. W. n9, 36 Am. Rep. 250; 
Philp V. Covenant Mut. Ben. Ass'n, 
62 Iowa 633. 17 N. W. 903; Clanton 
V. Des Moines, O. & S. R. Co., 67 
Iowa 350, 25 N. W. 277; Wood Mow- 
ing Mach. Co. V. Crow, 70 Iowa 340, 
30 N. W. 609; Butler v. Chicago, B. 
& Q. R. Co., 87 Iowa 206, 54 N. W. 
208; Whitam v. Dubuque & S. C. R. 

Vol. X 



Co., 96 Iowa 737, 65 N. W. 403; Sax 
V. Davis, 71 Iowa 406, 2>^ N. W. 403 
(what alleged agent said when he 
purchased goods is inadmissible) ; 
Mentzer v. Sargeant, 115 Iowa 527,88 
N. W. 1068. 

Kansas. — Streeter v. Poor, 4 Kan. 
412; Missouri Pac. R. Co. v. Stults, 
31 Kan. 752, 3 Pac. 522; French v. 
Wade, 35 Kan. 391, n Pac. 138; St. 
Louis & S. F. R. Co. v. Kinman. 49 
Kan. 627, 31 Pac. 126; Ream v. Mc- 
Elhone, 50 Kan. 409, 31 Pac. 1075; 
Leu V. Mayer, 52 Kan. 419, 34 Pac. 
969; Missouri Pac. R. Co. v. Johnson. 
55 Kan. 344, 40 Pac. 64X ; St. Louis 
& S. F. R. Co. z'. Brown, 3 Kan. App. 
260, 45 Pac. 118; Donaldson v. Ever- 
hart, 50 Kan. 718, ^2 Pac. 405 ; 
Fourth Nat. Bank v. Frost, 70 Kan. 
480, 78 Pac. 825; Hutchinson Whole- 
sale Grocery Co. v. R. L. McDonald 
& Co. (Kan.), 80 Pac. 950; Kane v. 

Barstow, 42 Kan. 465, 22 Pac. 588, 16 

Am. St. Rep. 490; Howe Mach. Co. 
V. Clark, 15 Kan. 492. 

Kentucky. — Dieckman v. Weirich, 

24 Ky. L. Rep. 2340, 73 S. W. ni9. 
Louisiana. — State v. Harris, 51 La. 

Ann. 1105, 26 So. 64; In re Lafourche 

Transp. Co., 52 La. Ann. 1517, 27 So. 

958. 
Maine. — Eaton v. Granite State 

Provident Ass'n, 89 Me. 58, 35 

Atl. 1015. 

Maryland. — National Mechanics' 

Bank v. National Bank of Baltimore, 

36 Md. 5; Harker v. Dement, 9 Gill 

7, 52 Am. Dec. 670; Rosenstock v. 

Tormey, 32 Md. 169, 3 Am. Rep. 125. 
Massachusetts. — Mussey v. 

Beecher, 3 Cush. 511. 
Michigan. — Bacon v. Johnson, 56 

Mich. 182, 22 N. W. 276; McPherson 

V. Pinch, n9 Mich. 36, 77 N. W. 321 ; 

Fontaine Crossing & Elec. Co. v. 

Ranch, 117 Mich. 401, 75 N. W. 

1063 ; Bond v. Pontiac, O. & P. A. R. 

Co., 62 Mich. 643, 29 N. W. 482, 4 

Am. St. Rep. 885 ; Three Rivers Nat. 

Bank v. Gilchrist, 83 Mich. 253, 47 

N. W. 104. 
Minnesota. — Larson v. Lombard 

Inv. Co., 51 Minn. 141, 53 N. W. 179. 
Mississippi. — Memphis & V. R. 

Co. r. Cocke, 64 Miss. 713, 2 So. 

495; Kinnare v. Gregory, 55 Miss. 612. 
Montana. — Nyart v. Pennington, 

20 Mont. 158, 50 Pac. 413. 
Missouri. — Craighead v. Wells, 21 

Mo. 404; Salmon Falls Bank v. Ley- 

ser, n6 Mo. 51, 22 S. W. 504; Lind- 



PRIXCIFAL AND AGENT. 



17 



say's Ex'rs v. Singer Mfg. Co.. 4 
Mo. App. 571 ; Waters Pierce Oil Co. 
r. Jackson Jr. Zinc Co.. 98 Mo. 324. 

73 S. W. 272; Peninsular Stove Co. 
V. Adams Hdw. & F. Co., 93 Mo. 
App. 237; State ex rel Fleming v. 
Henderson. 86 Mo. App. 482; Chris- 
tian V. Smith, 85 Mo. App. 117; 
Murphj' V. Mechanics' & Traders' etc. 
Ins. Co., 83 Mo. App. 481; Peck v. 
Ritchey. 66 Mo. 114. 

Nebraska. — Burke v. Frye, 44 Neb. 
223, 62 N. W. 476; Richardson & 
Bovnton Co. v. School Dist. No. 11, 
45 " Neb. 777, 64 N. W. 218 ; An- 
heuser-Busch Brew. Ass'n v. Murray, 
47 Neb. 627. 66 N. W. 635; Blanke 
Tea & Coffee Co. v. Rees Printing 
Co., 97 N. W. 627. 

New Jersey. — Gifford v. Landrine, 
37 N. J. Eq. 127; Fuller v. Saxton, 
20 N. J. L. 61 ; Smith v. Delaware & 
A. T. & T. Co.. 64 N. J. Eq. 770, 53 
Atl. 818, afiirmuig 51 Atl. 464; Peder- 
son V. Kiensel, 71 N. J. L. 525. 58 
Atl. 1088; Brounfield v. Denton, 61 
Atl. 378. 

N'ew York. — Ellis v. Messervie, il 
Paige 467; Bowen v. Powell, i Lans. 
I (recital of agency in affidavit of 
alleged agent not admissible) ; How- 
ard V. Norton, 65 Barb. 161 ; Wise v. 
International Soc, 37 Misc. 871, 76 
N. Y. Supp. 997 ; American Box 
Mach. Co. V. Bolnick. 36 Misc. 765, 

74 N. Y. Supp. 846; Le Valley v. 
Overacker, 64 App. Div. 612, 72 N. 
Y. Supp. 12; Moore v. Rankin, 33 
Misc. 749, 67 N. Y. Supp. 179; Reid 
V. Horn, 25 Misc. 523, 54 N. Y. Supp. 
1042; Lyon V. Brown. 52 N. Y. bupp. 
531, 31 App. Div. 67; Roberge v. 
Monheimer, 21 Misc. 491, 47 N. Y. 
Supp. 655 ; Booth V. Newton, 46 App. 
Div. 175, 61, N. Y. Supp. 727; Leary 
V. Albany Brew. Co., 77 App. Div. 6, 
79 N. Y. Supp. 130. 

North Carolina. — Taylor v. Hunt, 
118 N. C. 168, 24 S. E. 359; Summer- 
row V. Baruch, 128 N. C. 202, 38 S. 
E. 861. 

North Dakota. — Piano Mfg. Co. v. 
Root, 3 N. D. 165, 54 N. W. 924; 
Loverin-Browne Co. v. Bank of Buf- 
falo, 7 N. D. 569, 75 N. W. ^ 923 ; 
Gordon v. Vermont Loan & Trust 
Co., 6 N. D. 454, 71 N. W. 556. 

Oregon. — Sloan v. Sloan, 78 
Pac. ^3. 

Pennsylvania. — -Chambers v. 
Davis, 3 Whart. 40; Jordan v. Stew- 
art, 23 Pa. 244; Mclnnes v. Ritten- 



house, 16 Atl. 818; Irvine z'. Bucka- 
loe, 12 Serg. & R. 35; Baltimore & 
O. Employes Relief Ass'n v. Post, 
122 Pa. St. 579. 15 Atl. 885. 9 Am. 
St. Rep. 147; Pepper v. Cairns, 133 
Pa. St. 114, 19 Atl. 336, 19 Am. St. 
Rep. 625. 

South Carolina. — Renneker v. 
Warren, 17 S. C. 139; Martin v. 
Suber, 39 S. C. 525; 18 S. E. 125; 
New England Mtg. Security Co. v. 
Baxley, 44 S. C. 81, 21 S. E. 444. 885; 
Smith V. Asbell, 2 Strob. 141 ; Ehr- 
hardt z: Breeland, 57 S. C. 142, 35 
S. E. 537. 

Tennessee. — Floyd v. Woods, 4 
Yerg. 165. 

Te.ras. — hathzm v. Pledger, 11 
Tex. 439; Mills r. Berla (Tex. Civ. 
App.), 23 S. W. 910 (neither express 
nor ostensible agency can be so 
proved) ; Brady v. Nagle (Tex. Civ. 
App.), 29 S. W. 943; Western In- 
dustrial Co. z'. Chandler (Tex. Civ. 
App.), 31 S. W. 314; Page V. Cortez 
(Tex. Civ. App.), 31 S. W. 1071 ; 
Owen V. New York & T. Land Co., 
II Tex. Civ. App. 284. 32 S. W. 189; 
Coleman v. Colgate, 69 Tex. 88, 6. S. 
W. 553 ; Aultman & Taylor Mach. Co. 
V. Cappleman, 36 Tex. Civ. App. 523, 
81 S. W. 1243 ; Eastland v. ^NLinev, 36 
Tex. Civ. App. 147. 81 S. W. 574; 
Tabet v. Powell (Tex. Civ. App.), 78 
S. W. 997; Dyer v. Wiston, 33 Tex. 
Civ. App. 412, 77 S. W. 227;, Cooper 
& Co. V. Sawyer, 31 Tex. Civ. App. 
620. 73 S. W. 992; Ft. Worth Live- 
stock Com. Co. V. Hitson (Tex. Civ. 
App.). 46 S. W. 91s; Higley v. Den- 
nis (Tex. Civ. App.), 88 S. W. 400. 

Vermont. — Dickerman v. Quincy 
Mut. Fire Ins. Co., 67 Vt. 609, 32 
Atl. 489- 

Virginia. — Poore v. Magruder, 24 
Gratt. 197; Fisher v. White, 94 Va. 
236, 26 S. E. 573. 

Washington. — Gregory v. Loose, 

19 Wash. 599, 54 Pac. 33. 

West P'irginia. — Garber v. Blatch- 
ley. 51 W. Va. 147, 41 S. E. 222; 
Rosendorf 7/. Poling, 48 W. Va. 621, 
37 S. E. 555. 

Wisconsin. — Davis v. Henderson, 

20 Wis. 520. 

Thus a letter of the alleged agent 
is inadmissible. Sax v. Davis, 81 
Iowa 692, 47 N. W. 990; Texas Land 
& Loan Co. V. Watson, 3 Tex. Civ. 
Apo. 233, 22 S. W. 873. 

Not Admissible To Show That 
Agency Did Not Exist — Peck v. 

Vol. X 



\ 



18 



PRINCIPAL AND AGENT. 



(2.) As to Extent of Authority. — Evidence of the declarations of 
an agent is not admissible to prove the extent of his authority."^ 

(3.) Not Admissible Although Accompanied by Acts. — Such declara- 
tions are not admissible although accompanied by acts of the agent 
consistent therewith. ^^ 

As Part of Res Gestae. — It has been held, however, that declarations 
of an agent, made on the very occasion of the taking of a bond 



Ritchey. 66 Mo. 114. Nor are dec- 
larations made by an agent to a third 
party admissible to show that the 
third party was not an agent. Short 
Mountain Coal Co. v. Hardy, 114 
Mass. 197. 

Reasons — Such evidence is hear- 
say. Armour v. Ross, no Ga. 403, 
35 S. E. 787; Osgood V. Pacey, 23 111. 
App. 116; Missouri Pac. R. Co. v. 
Johnson, 55 Kan. 344, 40 Pac. 641. 

53. United States. — Walmsley v. 
Quigley, 129 Fed. 583. 64 C. C. A. 
151; W. K. Niver Coal Co. v. Pied- 
mont & Georges Creek Coal Co., 136 
Fed. 179. 

Alabama. — Hill v. Helton, 80 Ala. 
528, I So. 340. 

Arkansas. — Nicklase v. Griffith. 59 
Ark. 641, 26 S. W. 381; Carter v. 
Burnham, 31 Ark. 212. 

Colorado. — Burson v. Bogart 
(Colo. App.), 7Z Pac. 605. 

Florida. — Orange Belt R. Co. v. 
Cox, 44 Fla. 645, Z2> So. 403. 

Georgia. — Mapp v. Phillips, 32 
Ga. 72. 

////now. — Chicago. B. & Q. R. Co. 
V. Willard. 68 111. App. 315; Mann v. 
Sodakat, 66 111. App. 393; Currie v. 
Syndicate Des Cultivators Des Oig- 
nons a Fleur, 104 111. App. 165. 

Iowa. — Winch v. Baldwin, 68 
Iowa 764, 28 N. W. 62; Grant v. 
Humerick, 94 N. W. 510. 

Kansas. — Clark v. Folscroft, 67 
Kan. 446, 73 Pac. 86. 

Louisiana. — Dawson v. Land- 
reaux, 29 La. Ann. 363. 

Michigan. — Bacon v. Johnson, 56 
Mich. 182, 22 N. W. 276. 

Minnesota. — Sencerbox v. Mc- 
Grade, 6 Minn. 484; Halverson v. 
Chicago, M. & St. P. R. Co., 57 
Minn. 142, 58 N. W. 871. 

Missouri. — Hackett v. Van Frank 
(Mo. App.), 79 S. W. 1013. 

Nebraska. — 'iioxhtrg v. Plummer, 
58 Neb. 410, 78 N. W. 708. 

New Hampshire. — Bohanan v. 

Vol. X 



Boston & M. R., 70 N. H. 526, 49 
Atl. 103. 

New York. — Fulton v. Lydecker, 
19 N. Y. Supp. 374; Fullerton v. 
McLaughlin, 70 Hun 568, 24 N. Y. 
Supp. 280; Dufifus V. Schwinger. 79 
Hun 541, 29 N. Y. Supp. 930, revers- 
ing 7 Misc. 499, 27 N. Y. Supp. 949; 
Fleming v. Ryan, 9 Misc. 496, 30 N. 
Y. Supp. 224; Excelsior Consumers 
Cigar Co. v. Stracherjan, 87 N. Y. 
Supp. 489. 

North Carolina. — Parker v. 

Brown, 131 N. C. 264, 42 S. E. 605; 
Daniel v. Atlantic Coast Line R. Co., 
136 N. C. 517, 48 S. E. 816, 67 L. R. 
A. 455; Smith v. Browne, 132 N. C. 
365, 43 N. E. 915; West V. A. P. 
Messick Grocery Co., 138 N. C. 166, 
50 S. E. 565. 

North Dakota. — V\^no Mfg. Co. 
V. Root, 3 N. D. 165, 54 N. W. 924. 

Pennsylvania. — Whiting v. Lake, 
91 Pa. 349. 

Texas. — Fine v. Freeman, 83 Tex. 
529, 17 S. W. 783. 

54. Graul v. Strutzel, 53 Iowa 712, 
6 N. W. 119, 36 Am. Rep. 250 (agree- 
ment of guaranty made when note 
indorsed) ; Brigham v. Peters, i 
Gray (Mass.) 139; McDonough v. 
Heyman, 38 Mich. 334; Dowden v. 
Cryder, 55 N. J. L. 329, 26 Atl. 941 ; 
Wolfe V. Benedict, 65 Hun 624, 20 N. 
Y. Supp. 585 (statement made when 
part}^ was employed) ; Comegys v. 
American Lumb. Co., 8 Wash. 661, 
36 Pac. 1087 (declarations made when 
lumber was purchased). But see 
Seymour v. Matteson, 42 How. Pr. 
(N. Y.) 496. 

" The declarations of a professed 
agent, however publicly made, and 
although accompanied by an actual 
signature of the name of the prin- 
cipal, are not competent evidence to 
prove the authority of such agent, 
when questioned by the principal." 
Brigham v. Peters, i Gray (Mass.) 
139. 



PRINCIPAL AND AGBNT. 



19 



and mortgage, In relation to payment to himself, are part of the 
res gestae and admissible.^^ 

(4.) Admissible In Support of Other Evidence. — But evidence of acts 
and declarations of the alleged agent is admissible when there is 
some other evidence of agency, the jury being the judge of its suf- 
ficiency.^" 

(5.) Admissible To Explain Acts. — And such evidence is admissible 
to explain acts of an agent.^' 

(6.) Admissible To Show a Holding Out. — Declarations of a pur- 
ported agent are admissible to show that he purported to act for 
his principal."* 



55. Knight v. Jackson, 36 S. C. 
10, 14 S. E. 982. See also Seymour v. 
Matteson, 42 How. Pr. (N. Y.) 496. 
Compare Graul v. Strutzel. 53 Iowa 
712, 6 N. W. 119, 36 Am. Rep. 250. 

56. Alabama. — South & N. A. R. 
Co. V. Henlein. 52 Ala. 606, 23 Am. 
Rep. 578; Tanner & Delaney Engine 
Co. z: Hall, 86 Ala. 305, 5 So. 584; 
Birmingham Mineral R. Co. v. Ten- 
nessee Coal, Iron & R. Co., 127 Ala. 
137, 28 So. 679; McClung's Ex'rs. 
V. Spotswood, 19 Ala. 165. 

Colorado. — Murphy v. Gumaer, 12 
Colo. App. 472, 55 Pac. 951. 

Maryland. — National Mechanics' 
Bank v. National Bank of Baltimore, 
36 Md. 5. 

Pennsylvania. — Stewartson v. 
Watts, 8 Watts 392; Central Pennsyl- 
vania Tel. & Supply Co. V. Thomp- 
son, 112 Pa. St. 118, 3 Atl. 439. 

South Carolina. — Land Mtg. Inv. 
& Agency Co. v. Gillam, 49 S. C. 
345, 26 S. E. 990. 

" The correct rule is this, if there 
is no proof whatever tending to prove 
the agency, the act may be excluded 
from the jury by the court, but if 
there is any evidence tending to prove 
the authority of the agent, then the 
act can not be excluded from them, 
for they are the judges of the suf- 
ficiency and weight of the testimony." 
McClung's Ex'rs. v. Spotswood, 19 
Ala. 165. 

In Bird v. Phillips, 115 Iowa 703, 
87 N. W. 414, letters written by an 
alleged agent were admitted when 
there was other evidence of agency, 
but the jury were instructed that 
the agency must be made out from 
the other evidence alone. 

Evidence of declarations of an al- 
leged agent made at the time of pur- 
chase of certain personal property is 
admissible in connection with evi- 



dence of user of the property by the 
principal. Davis v. Vallev Elec. 
Light Co., 61 N. Y. Supp. 580. 

Admissibility To Impeach Witness. 
Where an alleged agent testifies that 
he acted for himself, a letter from 
him to the plaintiff is admissible to 
contradict him. Gregg v. Berkshire, 
10 Kan. App. 579, 62 Pac. 550. 

57. Johnson v. Johnson, 80 Ga. 
260, 5 S. E. 629. 

A declaration illustrative of pos- 
session is admissible. Jones v. Hess 
(Tex. Civ. App.), 48 S. W. 46. 

58. Nowell V. Chipman, 170 Mass. 
340, 49 N. E. 631. In this case the 
court, after stating that agency can- 
not be proved by the declarations of 
the agent, said : " But, as one step in 
establishing the defendant's liability 
in this aspect of the case, it was 
necessary to show that in what they 
said and did, they purported to act 
for her, and not for some one else. 
And for this purpose what they said 
and did was competent." See also 
Small v. Williams, 87 Ga. 681, 13 S. 
E. 589; Le Grand Quarry Co. v. 
Reichard, 40 Iowa 161 (admissible to 
show that agent understood he was 
acting as such) ; Christ v. Garretson 
State Bank. 13 S. D. 23, 82 N. W. 
89 ; Land Mtg. Inv. & Agency Co. v. 
Gillam, 49 S. C. 345, 26 S. E. 99°. 
29 S. E. 203. 

In a suit by the principal, the dec- 
larations of the agent are admissible 
to show that the agent held himself 
out as such. Thus, in a suit on a 
note given for a life insurance policy, 
defendant was allowed to prove 
declarations of the person from 
whom he bought the policy to show 
that he held himself out as such, and 
that the company became liable for 
his representations by adopting his 

Vol. X 



20 



PRINCIPAL AXD AGENT. 



(7.) Admissible When Ratification Relied "Upon. — Where ratification 
is relied upon, evidence of acts and declarations of the alleged agent 
may be admitted in the first instance.^^ 

(8.) Admissible When Principal Sues on Contract. — Declarations of 
an agent made at the time of a transaction are admissible against a 
principal suing upon the contract.*'" 

e. Admissions of Agent. — (1.) In General. — Subject to the 
limitations that the fact of existence of the relation and the extent 
of authority can not be proved by the agent's declarations, his ad- 
missions made in the due course of business and within the scope 
of his authority are admissible to bind the principal.''^ 

(2.) Conduct. — Upon the same principal, evidence of the conduct 
of an agent, both before and after a transaction, within the scope of 
his authority, is admissible.^^ 

f. Declarations and Admissions of Principal. — (l.) In General. 
Evidence of admissions of the alleged principal is admissible against 
him.®2 



act. Parker v. Bond, I2l Ala. 529, 
25 So. 898. 

59. Campbell v. Sherman, 49 
Mich. 534, 14 N. W. 484. In this 
case the court said : " It is not to be 
denied that there is some danger that 
the jury may be misled into inferring 
agency from proof of the agent's acts 
and statements. But we are not 
satisfied that under such circum- 
stances as were here presented the 
court was in error in treating the 
matter as one relating to the order 
of proof. There are alwaj^s cases 
which would be best presented by fol- 
lowing the order pursued here. 
Plaintifif was obliged to rely on cir- 
cumstantial evidence of recognition 
or ratification, unle'ss he chose to rest 
his case on the testimony of Cramb, 
who was interested against him, and 
who under the old rules might not 
have been competent at all. And 
where ratification is relied on proof 
of the dealings to be ratified must 
necessarily be put in first." 

60. By suing upon the contract 
the principal ratifies the methods 
used and inducements held out to ef- 
fect the contract. The declarations 
are also admissible as res gestae. 
Williamson v. Tyson, 105 Ala. 644, 
17 So. 336. 

61. For a full discussion of this 
subject, see article "Admissions," 
Vol. I. 

A conversation with an alleged 
agent prior to the time of his appoint- 
ment is not admissible. Helfrich 

Vol. X 



Lumb. & Mfg. Co. v. Bland. 21 Ky. 
L. Rep. 1 185. 54 S. W. 728. 

But Authority of Agent Must 
First Be Proved. — Bowker v. De- 
long, 141 IMass. 315, 4 N. E. 834. See 
also article " Admissions," Vol. I. 

Receipts of Agent — A receipt 
given by an authorized agent is ad- 
missible against the principal. Grant 
V. Humerick (Iowa). 94 N. W. 510; 
Starring v. Mason, 4 Neb. 367. 

62. Baker v. Tibbetts, 164 Mass. 
412, 41 N. E. 661 ; Wanamaker v. Me- 
graw. 48 App. Div. 54, 62 N. Y. Supp. 
692; Loeb V. Crow, 15 Tex. Civ. 
App. 537, 40 S. W. 506; International 
& G. N. R. Co. z'. Prince, 77 Tex. 
560, 14 S. W. 171, 19 Am. St. Rep. 795. 

Evidence of Agent's Acts in Regu- 
lar Course of Business — Evidence 
of acts of the agent showing that a 
trespass committed by him was done 
in the regular course of his principal's 
business is admissible. Exum v. 
Brister, 35 Miss. 391 (evidence that 
agent was carrying out contract on 
behalf of the defendant to sell timber 
when he cut the timber on plaintiff's 
land, admissible). 

63. Phleger v. Ivins, 5 Har. (Del.) 
118; Kelly V. Shumway, 51 111. App. 
634; Moffet V. Moffet, 90 Iowa 442, 
57 N. W. 954; Haughton v. Maurer, 
55 Mich. 323, 21 N. W. 426; Thiry v. 
Tavlor Brew. & Malt. Co., 37 App. 
Div. 391, 56 N. Y. Supp. 85; Mc- 
Donald V. Freed, 3 Wash. St. 468, 28 
Pac. 915. 

The acceptance by a railroad of a 



PRINCIPAL AND AGENT. 



21 



(2.) Self-Serving Declarations. — Communications between the prin- 
cipal and other agents are not admissible on behalf of the principal."* 

(3.) Repudiating Act. — Declarations by the alleged principal, re- 
pudiating the act of the alleged agent, made immediately upon the 
facts being called to his attention, are admissible in his favor.*^^ 

g. Declarations and Admissions of Another Agent. — Declarations 
of another agent of the same principal are not admissible ;"*' but 
admissions of a general agent as to the extent of an inferior agent's 
authority may be received upon the same footing as admissions of 
the principal. "^^ 

h. Circumstantial Evidence. — (1.) In General. — Agency may be 
proved by circumstantial evidence.*** 

(2.) Great Latitude Allowed. — Great latitude is allowed in the ad- 
mission of testimony tending to prove facts and circumstances from 
which the existence of an agency may be inferred.*^^ 



ticket issued by an agent is some evi- 
dence of authority. Chiles v. 
Southern R. Co., 69 S. C. 327, 48 S. 
E. 252. As to effect of admission in 
answer, see Steel v. Solid Silver G. 
& S. M. Co.. 13 Nev. 486. See also 
article "Admissions," Vol. I. 

Letters — Letters written by the 
principal are admissible to prove the 
agency as against him. Case v. Ly- 
man, 66 111. 229. 

A letter from the defendant stat- 
ing that another is his agent is ad- 
missible against him. Thiry v. Tay- 
lor Brew. & Malt. Co., 37 App. Div. 
391, S6 N. Y. Supp. 85. 

A letter from defendant to plaint- 
iff referring to a third person as 
"our late manager" is admissible. 
Foste V. Standard Life & Ace. Ins. 
Co., 34 Or. 125. 54 Pac. 811. 

64. Erie & Pacific Despatch Co. v. 
Cecil, 112 111. 180. 

65. Burns v. Campbell, 71 Ala. 
271. Such evidence shows verbal 
acts, and tends to show a repudiation 
of the act of the agent. But a ques- 
tion whether " he approved or dis- 
approved of it," is irrelevant if pro- 
pounded with the view of eliciting a 
mere mental approval, unaccompanied 
with acts or words. 

66. Rumbough v. Southern Imp. 
Co.. 112 N. C. 751. 17 S. E. 536, 34 
Am. St. Rep. 528. 

67. Elfring v. New Birdsall Co., 
16 S. D. 252, 92 N. W. 29. 

68. United States. — United States 
Bank v. Dandridge. 12 Wheat. 64. 

Colorado. — Gambrill v. Brown 



Hotel Co., II Colo. App. 529, 54 Pac. 
1025. 

Indiana. — Indiana, B. & W. R. Co. 
V. Adamson, 114 Ind. 282. 15 N. E. 
5; Fruchev v. Eagleson, 15 Ind. App. 
88. 43 N. E. 146. 

Minnesota. — Stewart v. Cowles, 67 
Minn. 184, 69 N. W. 694. 

Missouri. — Crosno v. Bowser Mil- 
ling Co., 106 Mo. App. 236, 80 S. W. 
275; Mosby V. McKee, 91 Mo. App. 
500; Haubelt v. Rea & Page Mill 
Co., 77 Mo. App. 672; Sharp v. 
Knox, 48 Mo. App. 169; Roberson v. 
Clevenger, iii Mo. App. 622. 86 S. 
W. 512; Hull z'. Jones, 6g Mo. 587; 
Hoppe r. Saylor, 53 Mo. App. 4. 

Nebraska. — Columbus Co. v. Hur- 
ford, I Neb. 146. 

New York. — Nutting v. Kings 
Countv El. R. Co., 21 App. Div. 72, 
47 N. Y. Supp. 327- 

Rhode Island. — Ward v. Trustees 
of New England S. C, 27 R. I. 262, 
61 Atl. 651. 

Vermont. — Walsh v. Pierce, 12 
Vt. 130. 

But agency cannot be proved by 
evidence of facts of a vague and un- 
certain nature. Fortescue v. Make- 
ley, 92 N. C. 56. 

Hearsay — Of course hearsay evi- 
dence is not admissible. Ft. Worth 
Livestock Com. Co. v. Hitson (Tex. 
Civ. App.). 46 S. W. 915; Brown v. 
Prude, 97 Ala. 639, 11 So. 838. See 
also ante, " Declarations of Agent." 

69. Patterson v. Van Loon, 186 
Pa. St. 367, 40 Atl. 495. In this case 
the court said ; " The evidence neces- 

Vol. X 



22 



PRINCIPAL AND AGENT. 



(3.) Acts Not Implying Knowledge and Consent of Principal. — Kvi- 
dence of the acts of an agent is not admissible to show the fact or 
extent of his authority unless the acts are shown to have been per- 
formed under circumstances implying knowledge and consent of 
the principal.'^*' 



sary to establish such relation is very 
different from that required to prove 
an express agency. In the former 
greater latitude must necessarily be 
allowed in the admission of testimony 
tending to prove facts and circum- 
stances from which the existence of 
an agency may be legitimately in- 
ferred. From the nature of the case, 
evidence that would tend to prove an 
implied agency, or subsequent rati- 
fication, would be inadmissible as 
proof of an express agency." 

Defendant when sued as plaintiff's 
agent set up that he was acting as 
agent for the public, and not for 
the plaintiff. To establish this, it 
was held proper to admit communica- 
tions between defendant and Con- 
gress, and resolutions adopted by 
Congress. Bingham v. Cabbot, 3 
Ball. (U. S.) 19. 

Evidence that the alleged agent 
opened a bank account in his own 
name as agent, and that he kept the 
principal's funds in it, is admissible. 
Appeal of National Shoe & Leather 
Bank. 55 Conn. 469, 12 Atl. 646. 

Evidence that a party acted as 
agent in the borrowing of money is 
admissible upon the question of 
whether he was acting as such in the 
pavment. Ballard z>. Nve, 138 Cal. 
588, 72 Pac. 156. 

Conversations between the parties 
prior to the forming of the alleged 
relation are not admissible unless it 
is shown that there was a close con- 
nection between the negotiations and 
the agreement. Irving zk Shethar, 
71 Conn. 434, 42 Atl. 258. 

Pecuniary Condition of Alleged 

Agent Evidence of the pecuniary 

condition of the alleged agent was 
held not relevant on the issue of 
agency. North v. Metz, 57 Mich. 
612, 24 N. W. 759. 

Evidence of " apparent authority is 
not restricted to proof of general cus- 
tom or to proof that the agent had 
previously performed similar acts to 
the knowledge of the principal. The 
nature of the business, usage not 
amounting to a general custom, and 
the fact, if it exists, that the principal 

Vol. X 



is at a great distance and the agent 
apparently entirely in charge of the 
business, may in proper cases be, 
among other things, elements for 
consideration.'" Johnston v. Mil- 
waukee & W. Inv. Co., 46 Neb. 480, 
64 N. W. 1 100. 

70. Alabama. — Wright v. Evans. 
53 Ala. 103. 

Arkansas. — Nicklase v. Griffith, 59 
Ark. 641, 26 S. W. 381. 

Colorado. — jMurphy v. Gumaer, 12 
Colo. App. 472, 55 Pac. 951. 

Connecticut. — Scott v. Crane, i 
Conn. 255. See also Plant v. Mc- 
Ewen, 4 Conn. 544. 

Georgia. — Doonan v. Mitchell. 26 
Ga. 472 (act of signing receipt as 
agent) ; Americus Oil Co. v. Gurr, 
114 Ga. 624, 40 S. E. 780. 

Illinois. — Peter Schoenhofer Brew. 
Co. V. Wengler, 57 111. App. 184. 

Iowa. — Clanton v. Des Moines, O. 
& S. R. Co., 67 Iowa 350, 25 N. 
W. 277. 

Kansas. — Streeter v. Poor. 4 Kan. 
412; St. Louis & S. F. R. Co. v. 
Brown, 3 Kan. App. 260, 45 Pac. 118; 
Len V. Mayer. 52 Kan. 419, 34 Pac. 
969; Fourth Nat. Bank v. Frost. 70 
Kan. 480, 78 Pac. 825 ; Richards v. 
Newstifter. 70 Kan. 350, 78 Pac. 824. 

Maine. — Eaton v. Granite State 
Provident Ass'n, 89 Me. 58, 35 
Atl. 1015. 

Michigan. — North v. Metz, 57 
Mich. 612, 24 N. W. 759 (acts which 
are expressly repudiated by the al- 
leged principal are not admissible) ; 
Davis V. Kneale, 97 Mich. 72, 56 N. 
W. 220. 

Minnesota. — Vo-wXd^ v. Evans, 52 
Minn. 551, 54 N. W. 743; Sencerbox 
V. McGrade, 6 Minn. 484. Compare 
Best V. Krey, 83 Minn. 32. 85 N. 
W. 822. 

Missouri. — Craighead v. Wells, 21 
Mo. 404; Alt V. Grosclose, 61 Mo. 
App. 409. 

Nebraska. — Burke v. Frye, 44 Neb. 
223, 62 N. W. 476; C. F. Blanke Tea 
& Coffee Co. v. Rees Printing Co. 
97 N. W. 627; Starring v. Mason, 4 
Neb. 367. 



PRINCIPAL AND AGENT. 



23 



(4.) Acts Implying Knowledge of Principal. — Evidence that one 
openly acts for another under circumstances implying a knowledge 
on the part of the supposed principal, makes a prima facie agency."^ 



New York. — Edwards v. Dooley. 
120 N. Y. 540, 24 N. E. 827; Howard 
V. Norton, 65 Barb. 161; Molt v. 
Baumann, 65 App. Div. 445. 72 N. Y. 
Supp. 832. 

North Dakota. — Loverin-Browne 
Co. V. Bank of Bufifalo. 7 N. D. 569, 
75 N. W. 923. 

Oregon. — Sloan v. Sloan, 78 
Pac. 893. 

Pennsylvania. — Whiting v. Lake, 
91 Pa. St. 349. 

South Carolina. — Martin v. Suber, 
39 S. C. 525, 18 S. E. 125. 

Texas. — Cooper & Co. v. Sawyer, 
31 Tex. Civ. App. 620. 73 S. W. 992; 
International & G. N. R. Co. v. 
Prince. 77 Tex. 560. 14 S. W. 171, 19 
Am. St. Rep. 795. 

Vermont. — Dickerman v. Quincy 
Mut. F. Ins. Co.. 67 Vt. 609. 32 
Atl. 489. 

Virginia. — Poore v. Magruder, 24 
Gratt. 197. 

Washington. — Gregory v. Loose, 
19 Wash. 599, 54 Pac. 2>Z- 

West Virginia. — Garber v. Blatch- 
le3^ 51 W. Va. 147, 41 S. E. 222; 
Rosendorf v. Poling, 48 W. Va. 621, 
37 S. E. 555. 

Thus, evidence that the agent as- 
sumed the power, standing alone, is 
not admissible. International & G. 
N. R. Co. V. Prince. 77 Tex. 560. 14 
S. W. 171, 19 Am. St. Rep. 795 ; Rey- 
nolds V. Continental Ins. Co.. 36 
Mich. 131. 

To the effect that such evidence is 
admissible in connection with other 
evidence, see Land Mtg. Inv. & 
Agency Co. v. Gillam, 49 S. C. .345. 
26 S. E. 990, and further cases cited 
under next section. 

A principal " is responsible only 
for that appearance of authority 
which is caused by himself, and not 
for that appearance of conformity to 
the authority which is caused only 
by the agent." Edwards %•. Dooley, 
120 N. Y. 540. 24 N. E. 827. 

Evidence of publication by the al- 
leged agent of an advertisement in a 
newspaper publicly announcing the 
relation is not admissible when it is 
not shown that the alleged principal 
knew or consented thereto. Schlitz 
Brew. Co. v. Barlow, 107 Iowa 252, 



77 N. W. 1031. See also Nofsinger 
V. Goldman, 122 Cal. 609. 55 Pac. 425. 

Where goods are entrusted to an 
agent and he wrongfully sells part to 
defendant, evidence that he sold some 
to others is not admissible. Thatcher 
V. Kaucher, 2 Colo. 698. 

An advertisement in a newspaper 
is not admissible when inserted by 
the agent, and the principal had no 
knowledge of it. National Bldg. 
Ass'n V. Quin, 120 Ga. 358, 47 S. 
E. 962. 

It is immaterial how many such 
acts there mav be. Howard v. Nor- 
ton. 65 Barb. '(N. Y.) 161. 

71. Alabama. — Reynolds v. Col- 
lins. 78 .Ma. 94. 

California. — Quinn v. Dresbach, 75 
Cal. 159. 16 Pac. 762, 7 Am. St. 
Rep. 138. 

Georgia. — Weaver v. Ogletree. 39 
Ga. 586. 

Illinois. — Doan v. Duncan, 17 111. 
272: Rockford. R. I. & St. L. R. Co. 
V. Wilcox, 66 111. 417. 

Indiana. — Barnett v. Gluting, 3 
Ind. App. 415, 29 N. E. 927. 

Kansas. — Cain Bros. Co. v. Wal- 
lace. 46 Kan. 138, 26 Pac. 445. 

Massachusetts. — Bragg v. Bos- 
ton & W. R. Corp., 9 Allen 54. 

Minnesota. — Fowlds v. Evans, 52 
Minn. 551, 54 N. W. 743 ('" acts of 
such a character and so continued as 
to justify a reasonable inference that 
the principal had knowledge of 
them "). 

Missouri. — Johnson v. Hurley. 115- 
Mo. 513, 22 S. W. 492. 

New Hampshire. — Kent v. Tyson, 
20 N. H. 121 ("open and public acts 
of a party claiming to be an agent " 
are admissible). 

New York. — Smith v. Martin An- 
ti Fire Car Heater Co., 64 Hun 639, 
19 N. Y. Supp. 285. 

Vermont. — Daggett v. Champlain 
Mfg. Co., 71 Vt. 370, 45 Atl. 755 (al- 
leged agent put up posters indicating 
agency, which must have been seen 
by defendant ; one of defendant's offi- 
cers was present when the property 
was purchased ; the alleged agent be- 
came a foreman of one of defend- 
ant's shops two years later). 

Vol. X 



24 



PRINCIPAL AND AGENT. 



(5.) Course of Dealing Between Parties. — Evidence of a course of 
dealing by an agent, sanctioned by the principal, is one of the rec- 
ognized modes of proving the extent of an agency. ^^ 

(6.) Similar Transactions Acted Upon by Principal. — Evidence of 
similar transactions, acted upon by the principal, is admissible as 
tending to show the extent of the authority.^^ 



Virginia. — Hoge v. Turner, 96 Va. 
624. 32 S. E. 291. 

Wisconsin. — Hansen v. Flint & 
P. M. R. Co., 72, Wis. 346, 41 N. W. 
529, 9 Am. St. Rep. 791. 

The frequency and amount of sales 
might furnish such evidence of gen- 
eral notoriety that a jury would be 
authorized to infer knowledge by the 
principal. Bragg v. Boston & W. R. 
Corp., 9 Allen (Mass.) 54. 

An advertisement in a city direc- 
tory may be admitted to show that 
the principal had allowed the agent 
to hold himself out as such. Graton 
& Knight Mfg. Co. v. Redelsheimer, 
28 Wash. 370, 68 Pac. 879. 

Evidence that for a period cover- 
ing the time of the transaction the 
defendant's wife did all his business 
is admissible. Sanborn v. Cole, 63 
Vt. 590, 22 Atl. 716, 14 L. R. A. 208. 

Evidence that the agent acted as 
general manager of defendant's hotel 
is admissible. Mullin v. Sire, 37 
Misc. 807, 76 N. Y. Supp. 926. 

Evidence Showing Knowledge. 
To show knowledge on the part of 
the principal, evidence that he saw 
the agent at work is admissible. 
Huntsvile Belt Line & M. S. R. Co. 
V. Corpening, 97 Ala. 681, 12 So. 295. 

72. United States. — Yitnt v. Ad- 
dicks, 126 Fed. 112, 60 C. C. A. 660. 

Alabama. — Gibson v. Snow Hdw. 
Co., 94 Ala. 346, ID So. 304; Tennes- 
see River Transp. Co. v. Kavanaugh, 
101 Ala. I, 13 So. 283; Lytle v. Bank 
of Dothan, 121 Ala. 215, 26 So. 6. 

Colorado. — Union Gold Min. Co. 
V. Rocky Mt. Nat. Bank. 2 Colo. 565 
(habit and course of dealing between 
the parties admissible). 

Illinois. — Sun Mut. Ins. Co. v. 
Saginaw Barrel Co., 114 111. 99, 29 N. 
E. 477; Doan V. Duncan, 17 111. 272. 

Indiana. — Barnett v. Gluting, 3 
Ind. App. 415, 29 N. E. 927. 

Kentucky. — Continental Tobacco 
Co. V. Campbell, 25 Ky. L. Rep. 569, 
76 S. W. 125. 

Maine. — Cobb v. Lunt, 4 Me. 503 ; 
Trull V. True, 33 Me. 367. 

Vol. X 



Massachusetts. — Bucknam v. Chap- 
lin, I Allen 70. 

Minnesota. — Hare v. Bailey, y2) 
Minn. 409, 76 N. W. 213. 

Missouri. — Sharp v. Knox, 48 Mo. 
App. 169; Edwards v. Thomas, 66 
Mo. 468; Franklin v. Globe Mut. 
Life Ins. Co., 52 Mo. 461 ; Brooks v. 
Jameson, 55 Mo. 505; Bonner v. 
Lisenby, 86 Mo. App. 666. 

Nebraska. — Standley v. Clay, 
Robinson & Co., 94 N. W. 140. 
_ New Hampshire. — Perry v. Dwel- 
ling-House Ins. Co., 67 N. H. 291, 33 
Atl. 731, 68 Am. St. Rep. 668. 

North Carolina. — Gilbraith v. 
Lineberger, 69 N. C. 145. 

South Carolina. — Welch v. Clifton 
Mfg. Co. 55 S. C. 568, 33 S. E. 739. 

Texas. — Missouri Pac. R. Co. v. 
Simons 6 Tex. Civ. App. 621, 25 S. 
W. 996; International & G. N. R. 
Co. V. Rags dale, 67 Tex. 24, 2 S. 
W. 51S. 

Vermont. — Walsh v. Pierce, 12 Vt. 
130 (may be proved either by course 
of dealing or by subsequent recogni- 
tion). 

See also Woodwell v. Brown, 44 
Pa. 121; Domasek v. Kluck, 113 \Vis. 
336, 89 N. W. 139. 

Such evidence is admissible 
whether the party introducing it 
knew at the time of the transaction in 
controversy that the dealings had 
taken place or not. Sharp v. Knox, 
48 Mo. App. 169; Bonner v. Lisenby, 
36 Mo. App. 666. 

Effect of Inquiry — But when in- 
quiry is made from the alleged prin- 
cipal, the course of dealing is im- 
portant only as tending to show what 
answer was probably given. Norton 
V. Richmond, 93 111. 367, 

73. United States. — W\i\iQ v. 
German Alliance Ins. Co., 103 Fed. 
260, 43 C. C. A. 216. 

Alabama. — Lytle v. Bank of Dot- 
ham 121 Ala. 215, 26 So. 6. 

Illinois. — Thurber v. Anderson, 88 
111. 167. 

Iowa. — McCormick Harv. Mach. 



PRINCIPAL AND AGENT. 



25 



(7.) Acts Must Be of Same Character. — But the prior acts from which 
authority may be inferred must be of the same character and ef- 
fect as those for which authority is sought^'* Evidence that a party 
has acted for the principal in another and entirely separate and dis- 
tinct transaction of another character is not admissible." 

(8.) Authority for a Single Act. — Evidence of special authority to 



Co. V. Lambert, I20 Iowa i8i, 94 N. 
W. 497- 

Maine. — Forsyth v. Day, 46 Me. 
176 (agent signed principal's name to 
note ; evidence that he had done this 
before and that the principal had 
recognized the notes is admissible). 

Michigan. — Thompson v. Clay, 60 
Mich. 627. 27 N. W. 699. 

New York. — American Encaustic 
Tiling Co. v. Reich, il N. Y. 
Supp. 776. 

Pennsylvania. — Stevenson v. Hoy, 

43 Pa. 191. 

South Carolina. — Welch v. Clifton 
Mfg. Co.. 55 S. C. 568. 33 S. E. 739- 

Texas. — Texas Land & Loan Co. 
V. Watson, 3 Tex. Civ. App. 233, 22 
S. W. 873; Osborne & Co. v. Gate- 
wood (Tex. Civ. App.), 74 S. W. 72 
(as evidence of authority to receive 
payment, evidence of receipt of pay- 
ments in similar transactions is ad- 
missible) ; People's BIdg.. Loan & 
Sav. Ass'n v. Keller, 20 Tex. Civ. 
App. 616. so S. W. 183. 

But evidence that the principal be- 
came guarantor to others for articles 
purchased by agent in his own name 
is irrelevant. Williams v. Stearns, 
59 Ohio St. 28, 51 N. E. 439- 

In other words, evidence showing 
ratification of such acts is admissible 
as tending to prove original authority. 

A I ab a m a. — Tennessee River 
Transp. Co. v. Kavanaugh, 93 Ala. 
324, 9 So. 395 (evidence that prin- 
cipal recognized property bought by 
agent in his own name as belonging 
to it). 

Illinois. — Stastney v. Marschall, 37 
111. App. 137; McGillis V. Anderson, 

44 111. App. 601 (evidence that orders 
issued at same time and under same 
circumstances as plaintiff's were 
paid). 

Indiana. — Jewett v. Lawrence- 
burgh & U. M. R. Co., ID Ind. 539- 

Maine. — Forsyth v. Day, 46 
Me. 176. 

Massachusetts. — Odiorne v. Max- 
cy, 15 Mass. 39; Williams v. Mitchell, 
17 Mass. 98. 



Nezu York. — Beattie v. Delaware, 
L. & W. R. Co., 90 N. Y. 643. 
Pennsylvania. — Stevenson v. Hoy, 

43 Pa. 191. 

South Carolina. — Thomson v. Dil- 
linger, 35 S. C. 608, 14 S. E. 776. 

r^A-a.y. — Mills v. Berla (Tex. Civ. 
App.). 23 S. W. 910; White v. San 
Antonio Waterworks Co., 9 Tex. Civ. 
App. 465, 29 S. W. 252. 

Wisconsin. — Gallinger v. Lake 
Shore Traffic Co., 67 Wis. 529, 30 N. 
W. 790. 

See also Haughton v. Maurer, 55 
Mich. 323. 21 N. W. 426. 

A circular from an agent soliciting 
business is admissible if brought 
home to the principal. Robinson v. 
Nevada Bank, 81 Cal. 106, 22 
Pac. 478. 

74. Keegan v. Rock (Iowa), 102 
N. W. 85; Stratton v. Todd, 82 Me. 
149, 19 Atl. hi; Hazeltine v. Miller, 

44 Me. 177; Humphrey i'. Havens, 12 
Minn. 298 (evidence that agent exe- 
cuted a note for principal is not evi- 
dence of agency for purpose of agree- 
ing to pay a note and mortgage of a 
third person) ; Hackett v. Van Frank, 
105 Mo. App. 384, 79 S. W. 1013 
(evidence of authority to sell beer 
not admissible upon question of au- 
thority to sell whisky) ; Meredith's 
Lessee v. Macoss. i Yeates (Pa.) 
200; Gregory v. Loose, 19 Wash. 599, 
54 Pac. 33- 

75. Murphy v. Gumaer, 12 Colo. 
App. 472, 55 Pac. 951 ; Watson v. 
Race, 46 Mo. App. 546; Scull v. 
Skillton, 70 N. J. L. 792. 59 Atl. 457; 
Duryea v. Vosburgh, 121 N. Y. 57, 
24 N. E. 308, reversing 49 Hun 609, 
I N. Y. Supp. 833 ; Bartlev v. Rhodes 
(Tex. Civ. App.), 33 S. W. 604. See 
also Maher v. Wilson, 50 Hun 605. 
3 N. Y. Supp. 80, afHrmed 123 N. Y. 
655j 25 N. E. 954. 

Evidence that the alleged agent had 
transacted other business for the 
principal at other places is not ad- 
missible. Tennessee River Transp. 
Co. V. Kavanaugh, loi Ala. i, 13 
So. 283. 

Vol. X 



26 



PRINCIPAL AND AGENT. 



make a particular or single contract is not admissible to show au- 
thority to make other similar contracts/^ 

(9.) Dealings Between Principal and Agent. — Evidence of the deal- 
ings between the alleged principal and agent is admissible to show 
the true relation of the parties.'^^ 

(10.) Similar Transactions With Principal. — Evidence of similar 
transactions with the principal, in which the agent was not involved, 
is not admissible.'^^ 

(11.) Character of the Business. — Evidence of the character of the 
business, the manner in which it is usual to carry on the work, and 
the manner in which it was carried on is admissible in order to de- 
termine the powers impliedly conferred upon the agent.'^^ 

(12.) Business Customs. — Where the authority is general, evidence 
of the custom of the business is admissible to show the extent of 
implied powers.**^ 



Evidence that alleged principal had 
testified in another case that party 
was not his agent for another and 
unconnected purpose is immaterial. 
Smith V. Dodge, 49 Hun 611. 3 N. Y. 
Supp. 866. 

Evidence of Agency for Another 
Branch of Business Not Admissible. 
Where a concern is engaged in two 
branches of business, evidence of 
agency for one has no tendency to 
establish agency for the other. Strat- 
ton V. Todd. 82 Me. 149. 19 Atl. in 
(business of selling logs in market 
distinct from business of operating 
in the woods ; evidence of agency for 
one branch is not admissible to show 
agency for the other). 

Nor Is Evidence of Subsequent 
Acts admissible out of the usual 
course of business. Lee v. Tinges. 7 
Md. 215; Mills V. Beria (Tex. Civ. 
App.), 23 S. W. 910. 

76. Stanley v. Sheffield Land, Iron 
& Coal Co., 83 Ala. 260. 4 So. 34. 
(" It is not any where intimated that 
this single exercise of agency was 
known to the plaintififs, so that it was 
possible for their conduct to have 
been influenced or induced by it. 
And it certainly does not tend to 
prove such a habit and course of 
dealing between principal and agent. 
as is ordinarily permitted to justify 
an inference of like authority in other 
cases"). ' 

77. As tending to show that one 
was the agent for another, it is 
proper to show that the alleged prin- 
cipal had paid commissions. Slaugh- 
ter V. Coke County. 34 Tex. Civ. App. 
598, 79 S. W. 863. 

Vol. X 



Receipts given by the alleged agent 
to the alleged principal are admissible 
where they cast any light upon the 
question. Hallack - Sayre - Newton 
Lumb. Co. V. Blake, 4 Colo. App. 486, 
36 Pac. 554. 

78. In an action for services ren- 
dered under direction of an agent, 
evidence that plaintiff had rendered 
similar services for defendant before 
is not admissible when the prior em- 
ployment was not by the agent in 
question. Cooper v. New York Cent. 
& H. R. R. Co.. 6 Hun (N. Y.) 276. 

79. Missouri Pac. R. Co. v. Si- 
mons. 6 Tex. Civ. App. 621, 25 S. 
W. 996. 

Articles of incorporation of a cor- 
poration principal are admissible to 
show the nature of the business. Ma- 
honev v. Butte Hdw. Co., 19 Mont. 
377, 48 Pac. 545- 

Where a power of attorney gives 
an agent power to do every act neces- 
sary in the transaction of the prin- 
cipal's business, evidence of the char- 
acter and extent of the business is 
admissible. Brantley v. Southern 
Life Ins. Co., 53 Ala. 554. 

80. A lab a m a. — Herring v. 
Skaggs. 62 Ala. 180, 34 Am. Rep. 4; 
Cawthon v. Lusk, 97 Ala. 674, 11 So. 
731; Guesnard v. Louisville & N. R. 
Co.. 76 Ala. 453. 

Georgia. — Mott v. Hiall, 41- Ga. 117 
(custom of clerks of boats to sign 
notes). 

Illinois. — Grain v. First Nat. Bank, 
114 111. 516, 2 N. E. 486; Bailey v. 
Bensley, 87 111. 556; Phillips v. Moir, 
69 111. 155; Corbett v. Underwood, 
83 111. 324, 25 Am. Rep. 392; Na- 



FKIXCIPAL AND AGENT. 



27 



(13.) Authority of Similar Employes. — Evidence that other employes 
occupying similar positions had a certain authority is admissible 
as tending to show authority in the agent in question.^ ^ 

(14.) General Reputation. — Evidence that it is generally reputed 
or understood that the relation of principal and agent exists, or that 
an agent has a certain authority, is incompetent.**- 

(15.) Opinion of Witness. — Where the question of agency or of "the 
extent of authority is made a principal issue, it is not competent for 



tional Furnace Co. v. Keystone Mfg. 
Co., no 111. 427. 

Iowa. — Kaufman Bros. v. Farley 
Mfg. Co.. 78 Iowa 679, 43 N. W. 612, 
16 Am. St. Rep. 462. 

Kansas. — American Cent. Ins. Co. 
V. McLanathan, 11 Kan.. 533. 

New Haiupshire. — Haven v. 
Wentworth, 2 N. H. 93. 

New York. — White v. Fuller, 67 
Barb. 267. 

Pennsylvania. — Sumner v. Stew- 
art. 69 Pa. St. 321. 

South Carolina. — Fraser v. Ten- 
ants, 5 Rich. L. 375- 

r^.ra.y. — Missouri, K. & T. R. 
Co. V. Cook, 8 Tex. Civ. App. 376, 27 
S. W. 769 ; Reese v. Medlock, 27 Tex. 
120, 84 Am. Dec. 611. 

Virginia. — Reese v. Bates, 94 Va. 
321, 26 S. E. 865 (admissible to show 
general agent's right to make a war- 
ranty) . 

Wisconsin. — Pickert v. Marston, 
68 Wis. 465, 32 N. W. 550, 60 Am. 
Rep. 876. 

Evidence that it was the custom of 
conductors to allow shippers of race 
animals and fine stock to ride in the 
car with them is admissible to show 
authority to waive a stipulation re- 
quiring plaintiff to ride in the ca- 
boose. Missouri, K. & T. R. Co. v. 
Cook, 8 Tex. Civ. App. 376, 27 S. 
W. 769. 

Evidence of custom of traveling 
agents to make certain contracts is 
admissible. Kaufman Bros. v. Far- 
ley Mfg. Co., 78 Iowa 679. 16 Am. 
St. Rep. 462, 43 N. W. 612. 

Evidence of custom is admissible 
to show that the agent neglected a 
duty, and that the principal is liable 
therefor. Collings v. Hope, 3 Wash. 
C. C. 149, 6 Fed. Cas. No. 3,003. 

The witnesses testifying as to cus- 
tom must have knowledge as to the 
particular business. Thus, evidence 
of a custom as to traveling agents in 
general is not admissible upon the 



question of the custom in the sale of 
iron safes. Deane v. Everett, 90 
Iowa 242. 57 N. W. 874. 

But it is not necessary to show that 
the principal knew of the custom. 
Guesnard v. Louisville & N. R. Co., 
76 Ala. 453. 

To Show Want of Authority. 
Such evidence is admissible to show 
that the agent did not have implied 
authority for the act. United States 
Life Ins. Co. v. Advance Co., 80 111. 
549; White V. Fuller, 67 Barb. ( N. 
Y. ) 267 ; Sumner v. Stewart, 69 Pa. 
St. 321. 

Effect of Instructions Evidence 

of custom cannot overcome positive 
instructions known to the party. 
Clark V. Cumming, yj Ga. 64, 4 Am. 
St. Rep. 72; Wanless v. McCandless, 
38 Iowa 20. 

81. Texas & P. R. Co. v. Reed, 
88 Tex. 439, 31 S. W. 1058 (evidence 
that yard foremen at other stations 
were accustomed to employ and dis- 
charge hands, admissible). 

82. ^/afcama. — Central R. & Bkg. 
Co. V. Smith, 76 Ala. 572, 52 Am. 
Rep. 353- 

Connecticut. — Union Trust Co. v. 
McKeon, 76 Conn. 508, 57 Atl. 109. 

Massachusetts. — Trowbridge v. 
Wheeler, i Allen 162. 

Minnesota. — Graves v. Horton, 38 
Minn. 66, 35 N. W. 568. 

Nezv York. — Perkins v. Stebbins, 
29 Barb. 523 ; Litchfield Iron Co. v. 
Bennett, 7 Cow. 234 (not admissible 
to show who are the officers of a 
corporation) ; but see Clark v. 
Farmers' Woolen Mfg. Co., 15 
Wend. 256. 

Texas. — McGregor v. Hudson 
(Tex. Civ. App.), 30 S. W. 489; 
Dyer v. Winston, 2>2> Tex. Civ. App. 
412, jy S. W. 227. 

As to the admissibility of evidence 
of general reputation to prove the ex- 
istence of a partnership, see article 
" Partnership," Vol. IX. 

V«l. X 



28 



PRINCIPAL AND AGENT. 



a witness to express an opinion upon the question.*^ He must 
state the facts. Testimony that a party is or is not an agent is a 
mere concUision of law.®* Likewise, testimony that an agent had 
authority to do a certain act is a conclusion of law.*^ 



83. Farrell v. United States, no 
Fed. 942. 49 C. C. A. 183 ; John Stu- 
art & Co. V. Asher, 15 Colo. App. 
403. 62 Pac. 1051 (testimony that one 
acted as agent for another is a con- 
clusion of law) ; McCluskey v. Minck, 
18 Misc. 565, 42 N. Y. Supp. 462; 
Parker v. Brown, 131 N. C. 264. 42 
S. E. 605 ; McCornick v. Queen of 
Sheba Gold M. & M. Co.. 23 Utah 
71, 63 Pac. 820 (question " were you 
manager of this English company, or 
for any of the gentlemen referred 
to," improper) ; Gore v. Canada Life 
Assur. Co., 119 Mich. 136, yj N. 
W. 650. 

Testimony of an agent as to the 
intention of his principals, not sup- 
ported by facts, is not admissible. 
California Nav. & Imp. Co. v. Union 
Transp. Co., 126 Cal. 433, 58 Pac. 
936. 46 L. R. A. 825. 
_ Testimony of a party that he be- 
lieved he was employed by another is 
incompetent. Petterson v. Stockton 
& T. R. Co., 134 Cal. 244, 66 Pac. 304. 

Evidence of a witness that he was 
under the impression that another 
had a certain authority is inadmis- 
sible. Eastman v. Martin, 19 N. 
H. 152. 

" While a witness cannot be per- 
mitted to testify to a conclusion of 
fact, yet if he incidentally states a 
conclusion necessary to a clear under- 
standing of his testimony, this will 
not be regarded as a violation of the 
rule." Thus, in Hoadley v. Ham- 
mond, 63 Iowa 599, 19 N. W. 794, 
the agent was asked : " What author- 
ity, if any, did you have to sign the 
name of Charles Hammond?" He 
answered : " I had direct authority, 
and also general authority by reason 
of the relation between Hammond 
and myself." The witness then pro- 
ceeded to testify as to verbal au- 
thority. It was held that the state- 
ment, while a conclusion, was merely 
introductory, and that it was proper 
for the better understanding of what 
was to follow. 

As to opinion evidence in general, 
see article " Expert and Opinion 
Evidence." Vol. V. 

84. Goddard & Sons v. Garner, 

Vol. X 



109 Ala. 98, 19 So. 513; Young v. 
Newark Fire Ins. Co., 59 Conn. 41, 
22 Atl. 32; Jackson v. Todd, 56 Ind. 
406; Larson v. Lombard Inv. Co., 51 
Minn. 141, 53 N. W. 179; Maurer v. 
Miday, 25 Neb. 575, 41 N. W. 395. 

But see Talladega Ins. Co. v. Pea- 
cock, 67 Ala. 253 ; Gault v. Sickles, 
85 Iowa 266, 52 N. W. 206; Knapp v. 
Smith, 27 N. Y. 277. 

In Talladega Ins. Co. v. Peacock, 
67 Ala. 253, the court said : " We 
do not think the statement of the wit- 
ness that he regarded Huey as the 
general agent of the company falls 
within this rule of exclusion. If it 
stood alone, disconnected from the 
evidence given previously and subse- 
quently by the witness, it might be 
objectionable. When considered in 
connection with that evidence, it is 
a statement in a guarded form of the 
fact that Huey was the general agent 
of the company, accompanied by a 
statement of the witness' means and 
sources of knowledge of the fact." 

Plaintiff may testify that defendant 
was his lawyer, hired by him to act 
in his legal business. Spor v. Grau, 

89 App. Div. 36s, 85 N. Y. Supp. 876. 
See also cases cited in preceding 
note. 

85, Indiana. — Hargrove v. John, 
120 Ind. 285. 22 N. E. 132 (conclu- 
sion of witness based upon state- 
ments of agent, not admissible) ; 
American Tel. & Tele. Co. v. Green, 
164 Ind. 349, 72> N. E. 707. 

Massachusetts. — Providence Tool 
Co. V. United States Mfg. Co., 120 
Mass. 35. And see Short Mountain 
Coal Co. v. Hardy, 114 Mass. 197. 

Michigan. — Gore v. Canada Life 
Assur. Co., 119 Mich. 136, 77 N. 
W. 650 (testimony of agent that he 
had authority is opinion). 

New York. — Jaton v. Brentwood 
Hotel Co., II Misc. 325, 32 N. Y. 
Supp. 131. 

Wisconsin. — Roche v. Pennington, 

90 Wis. 107, 62 N. W. 946. 

But a principal may testify that he 
did not give an agent a certain au- 
thority. Lozier v. Graves, 91 Iowa 
482, 59 N. W. 285. See also Sax v. 
Davis, 81 Iowa 692, 47 N. W. 990- 



PRINCIPAL AXD AGENT. 



29 



(16.) Understanding of Party Dealing With Agent. — Upon the ques- 
tion of apparent authority, evidence showing the understanding of 
the party deahng with the agent is admissible.®*' 

i. Pozvers of Attorney. — Instructions. — A power of attorney, or 
evidence of the actual agreement between the principal and the 
agent, is admissible to establish the extent of the authority.®'^ And 
evidence of the instructions given to the agent is generally ad- 
missible.*^ 

E. Sufficiency. — a. /;; General. — It is impossible to lay down 
any inflexible rule by which it can be determined what evidence is 
sufficient to establish agency in any given case.®^ 



And an agent may answer the ques- 
tion. " Did you have any power or au- 
thority to change that contract?" 
Joseph V. Struller, 25 Misc. 173. 54 
N. Y. Supp. 162. 

86. Curtin v. Ingle, 137 Cal. 95, 69 
Pac. 836, 1013 (conversation of party 
with agent admitted to show that 
party was justified in believing him to 
have authority) ; Gore v. Canada Life 
Assur. Co., 119 Mich. 136, 77 N. 
W. 650. 

Declarations of an agent at the 
time of a transaction are admissible 
to show that the party dealing with 
him acted in good faith. Christ v. 
Garretson State Bank (S. D.), 82 N. 
W. 89. 

The party so dealing may testify 
that he relied upon the agent's repre- 
sentations. Geraghty v. Randall, 18 
Colo. App. 194, 70 Pac. 767. 

87. " A man who is sued upon a 
contract made in his name is not pre- 
cluded from showing the limits of 
the powers expressly conferred by 
him. merely because the plaintiff has 
a right, and may attempt to show 
that the powers were enlarged by the 
defendant's subsequent conduct." Mt. 
Morris Bank z\ Gorham. 169 Mass. 
519. 48 N. E. 341. See also Fox v. 
Burlington Mfg. Co., 7 Wash. 391, 
35 Pac. 126. 

Evidence of an agent's actual au- 
thority is admissible although the is- 
sue is as to estoppel. Clark v. Dill- 
man, 108 Mich. 625, 66 N. W. 570. 

In Davis v. Benedict. 49 Neb. 119, 
68 N. W. 398, a lessor was sued as 
principal for repairs made to the de- 
mised premises by order of the les- 
see. It was held that the lease was 
admissible to show that the lessee 
was bound to repair, and thus rebut 
the inference of agency. 



Admissible Although Maker Dead. 

The fact that the maker of a power 
of attorne\' is dead is no objection to 
its admission in evidence, although it 
would be a valid objection to a deed 
executed thereunder after his death. 
Butler V. Dunagan. 19 Tex. 559. 

Defective Execution. — Although 
defectively executed, a power of at- 
torney may be admitted after con- 
firmation. Crockett v. Campbell, 2 
Humph. (Tenn.) 411. 

88. Thatcher v. Kaucher. 2 Colo. 
698; Nininger z'. Knox. 8 Minn. 140; 
Gestring v Fisher, 46 Mo. App. 603; 
Hall V. Brown. 58 N. H. 93. 

By Another Agent. — Instructions 
of one agent to another who was 
under him mav be admitted. Bick- 
ford z: Menier,' 36 Hun (N. Y.) 446. 

Admissibility When Apparent Au- 
thority Relied Upon In some jur- 
isdictions powers of attorne_v are ad- 
missible in evidence although ap- 
parent authority is relied upon. (See 
cases in preceding note.) In other<^, 
however, instructions to the agent, 
not communicated to the third party, 
are not admissible when apparent au- 
thority is relied upon. Oderkirk v. 
Fargo, 61 Hun 418. 16 N. Y. Supp. 
220; Continental Tobacco Co. v. 
Campbell, 25 Ky. L. Rep. 569, 76 S. 
W. 125. See also Van Dyke v. Wil- 
der. 66 Vt. 579, 29 Atl. 1016. 

Where a power to sell personalty 
is admitted, power to warrant is im- 
plied ; and in such a case evidence of 
conversations between the principal 
and the agent in regard to the war- 
rant}' is incompetent. Manley v. 
Ackler, 76 Hun 546, 28 N. Y. 
Supp. 181. 

89. Dickinson v. Salmon, 36 Misc. 
169. 7i N. Y. Supp. 196 {aMrming 
35 Misc. 838, 72 N. Y. Supp. 1099). 

Vol. X 



30 



PRINCIPAL AND AGENT. 



b. PrincipaVs Conduct. — Evidence of what the principal actually 
told the ag-ent or of what he has allowed him to do may be sufficient 
to establish the authority of an agent. ^° 



Rule the Same as in Cases of Or- 
dinary Contracts — In Louisiana, 
" the law requires the same amount 
of evidence to prove a verbal power 
of attorney, as it does to prove a ver- 
bal contract for monej^ or personal 
property; and that when a party at- 
tempts to enforce a contract for the 
payment of money, above $500. made 
by an agent, he should prove, by at 
least one creditable witness and other 
corroborating circumstances, the ver- 
bal agency." Gardes v. Schroeder, 
17 La. Ann. 142. 

Note Payable to Third Party. 
Evidence that a note given in settle- 
ment of a transaction was made pay- 
aljle to and received by a third party 
is prima facie evidence of agency. 
Crowe V. Capwell, 47 Iowa 426. 

90. Evidence Sufficient. 

Alabama. — Fairbanks & Co. v. 
Cawthorn. 93 Ala. 287, 9 So. 282; 
Montgomery Brew. Co. v. Caffee, 93 
Ala. 132, 9 So. 573; Rovelsky v. 
Scheuer. 114 Ala. 419, 21 So. 785- 

California. — Bank of Ukiah v. 
Mohr, 130 Cal. 268, 62 Pac. 511; 
Union Pav. & Contract Co. v. Mowry, 
137 Cal. xix, 70 Pac. 81. 

Colorado. — Witcher v. Gibson, 15 
Colo. App. 163. 61 Pac. 192. 

Georgia. — Armour v. Ross, no 
Ga. 403, 35 S. E. 787. 

Iowa. — Holsten v. Wheeler, 78 N. 
W. 845; McCormick Harv. Mach. 
Co. V. Lambert, 120 Iowa 181, 94 N. 
W. 497- 

Kentucky. — Limestone IMin. & 
Mfg. Co. V. Lehman. 25 Ky. L. Rep. 
703. 76 S. W. 328; Baldwin & Co. v. 
Tucker. 25 Ky. L. Rep. 222, 75 S. 
W. 196. 

Marxland. — Hogg v. Jackson & 
Sharp" Co. (Md.), 26 Atl. 869. 

Massachusetts. — Kelley v. Lindsey, 
7 Gray 287; Ayer v. Bell Mfg. Co., 
147 Mass. 46, 16 N. E. 754 (in ans- 
wer to letter defendant sent its agent 
to plaintiff) ; Allen v. Fuller. 182 
Mass. 202, 65 N. E. 31 ; Carberry v. 
Farnsworth, 177 Mass. 398, 59 N. 
E. 61. 

Michigan. — Booth v. Majestic 
Mfg. Co., 105 Mich. 562, 63 N. W. 
524; Ryerson v. Tourcotte, 121 Mich. 
78, 79 N. W. 933. 

Vol. X 



Minnesota. — Winter & Ames Co. 
V. Atlantic Elev. Co., 88 Minn. 196. 
92- N. W. 955 ; Dowagiac Mfg. Co. v. 
Watson, 90 Minn. 100, 95 N. W. 884; 
Wheeler v. Benton, 67 Minn. 293, 69 
N. W. 927. 

Missouri. — Hoppe v. Saylor, 53 
]\Io. App. 4; Weber v. Collins, 139 
]Mo. 501 ; 41 S. W. 249. 

Montana. — Starr v. Gregory Con. 
Min. Co.. 6 Mont. 485. 13 Pac. 195. 

Nebraska. — Creighton v. Finlay- 
son, 46 Neb. 457, 64 N. W. 1 103 ; Day 
& Frees Lumb. Co. v. Bixbv. 93 N. 
W. 688. 

Nezv Jersey. — Strauss v. American 
Talcum Co., 63 N. J. L. 613, 44 
Atl. 631. 

New York. — Dows zk Greene, 16 
Barb. '/2; Wilcox Silver Plate Co. v. 
Green, 72 N. Y. 17; Warburton v. 
Camp. 112 N. Y. 683. 20 N. E. 592; 
Mikles V. Hawkins, 59 App. Div. 253, 
69 N. Y. Supp. 557; Wallace v. Ar- 
kell, 28 Misc. 502. 59 N. Y. Supp. 
597. atErming 57 N. Y. Supp. 655; 
Goldsmith v. Schroeder, 93 App. 
Div. 206, 87 N. Y. Supp. 558; Mul- 
lin V. Sire, 37 Misc. 807. 76 N. Y. 
Supp. 926; Grannis v. Hobby, 137 N. 
Y. 559. 33 N. E. 486, aMrming 17 N. 
Y. Supp. 618. 

Pennsylvania. — Appeal of Hayes, 
195 Pa. St. 177, 45 Atl. 1007. 

Tennessee. — Whiteside v. Watkins 
(Tenn. Ch. App.), 58 S. W. 1107. 

Texas. — Harris v. Nations, 79 
Tex. 409. 15 S. W. 262; Gulf, C. & 
S. F. R. Co. V. Jones, 82 Tex. 156. 17 
S. W. 534; Osborne & Co. v. Gate- 
wood (Tex. Civ. App.), 74 S. W. 72. 

Vermont. — Guyette v. Town of 
Bolton. 46 Vt. 22"8. 

Washington. — Lough v. John 
Davis & Co., 35 Wash. 449, 77 
Pac. 732. 

Wisconsin. — Cameron v. White. 
74 Wis. 425. 43 N. W. 15s. 5 L. R. A. 
493 ; Roche v. Pennington, 90 Wis. 
107. 62 N. W. 946. 

Evidence Insufficient. 

Arkansas. — K&W&y & Lysle Mill. 
Co. V. Adams, 72 Ark. 657, 78 S. 
W. 49- 

Colorado. — Brown v. Salomon. 9 
Colo. App. 323, 48 Pac. 278. 

Georgia. — Walton Guano Co. v. 



PRIXCIPAL AND AGEXT. 



31 



c. Testimony of Agent. — The testimony of the agent may, of 
itself, be sufficient to show his authority.^^ 

d. Of Particular Facts. — (!•) General Powers Evidence show- 
ing an agent's general powers is sufficient to establish his implied 
powers.-'^ 

(2.) Evidence That One Is Acting- for Another Not Sufficient. — Evi- 
dence that one is acting for another is not sufficient to prove au- 
thority so to act.®^ 

(3.) Similar Transactions. — Evidence that the agent has openly 
conducted similar transactions for the principal under circumstances 
implying knowledge and consent of the principal may be sufficient.^* 



McCall, III Ga. 114. 36 S. E. 469; 
Smith V. Georgia & A. R. Co., 113 
Ga. 625. 38 S. E. 956. 

Kansas. — Wilcox ?'. Eadie. 65 
Kan. 459. 70 Pac. 338. 

Massachusetts. — Shaw v. Hall, 
134 ]\Ia.ss. 103. 

Aliiincsota. — Hornsby 7'. Hause. 
35 Minn. 369, 29 N. W. 119. 

Missouri. — Cockrell z>. Mclntvre, 
161 j\Io. 59. 61 S. W. 648; First Nat. 
Bank z'. Wright, 104 Mo. App. 242, 
78 S. W. 686. 

Nebraska. — Gilbert v. Garber. 62 
Neb. 464, 87 N. W. 179; Hare v. 
Winterer. 96 N. W. 179. 

New York. — Tarpy v. Bernheimer, 
16 N. Y. Supp. 870; Brown v. Rei- 
man, 48 App. Div. 295, 62 N. Y. Supp. 
663; National Park Bank v. Ameri- 
can Exch. Nat. Bank. 40 INIisc. 672. 83 
N. Y. Supp. 249; Burgess v. Willis, 
43 Misc. 672. 88 N. Y. Supp. 149. 

North Carolina. — Parker v. 
Brown, 131 N. C. 264, 42 S. E. 605; 
Smith V. Browne, 132 N. C. 365, 43 
S. E. 915. 

Oregon. — Durkee v. Carr, 38 Or. 
189. 63 Pac. 117. 

Washington. — Corbet v. Waller, 
27 Wash. 242, 67 Pac. 567 ; Sherlock 
V. Van Assclt. 34 Wash. 141, 75 
Pac. 639. 

Evidence of Authority To Em- 
ploy. — Suffiient. — Stahlberger v. 
New Hartford Leather Co., 92 Hun 
245, 36 N. Y. Supp. 708. 

Insuffiient. — St. Louis. A. & T. 
R. Co. V. Hoover, 53 Ark. 2,77, U S. 
W. 1092. 

Acting as Agent Under Circum- 
stances Implying Knowledge Evi- 
dence that a party has acted as agent 
under such circumstances that the 
principal must have known thereof 
makes a prima facie case. Indiana, 



B. & W. R. Co. V. Adamson. 114 Ind. 
282, 15 N. E. 5- 

Acting as Agent for a Consider- 
able Time " From the natural im- 
probability that one should volun- 
tarily, without authority, assume to 
act for another, settling his obliga- 
tions for a considerable period of 
time, and from the fact that such con- 
duct would naturally come to be 
known by the assumed principal, the 
fact of agencv mav be presumed." 
Neibles v. Miiineapolis & St. L. R. 
Co., T>7 Minn. 151, 33 N. W. 332. 

91. McCall V. Henderson. 11 La. 
Ann. 209. 

Where a power of attorney author- 
izes an agent to do such acts as are 
necessary, his testimony that certain 
acts were necessary is not suflficient. 
He must give the facts. Bruce v. 
Duke. 2 Litt. (Ky.) 244. 

In the following cases the testi- 
mony of the agent was not sufficient. 
State V. Bristol Sav. Bank, 108 Ala. 
3, 18 So. 533, 54 Am. St. Rep. 141 ; 
Price V. Moore, 158 Mass. 524, 33 N. 
E. 927; Blair v. Sheridan, 86 Va. 527. 
ID S. E. 414. 

In Meredith's Lessee v. Macoss, i 
Yeates (Pa.) 200, it was held that 
power to rent lands must be shown 
bv other evidence. 

92. Dows V. Greene. 32 Barb. (N. 
Y.) 490. 

93. Walsh V. St. Paul Trust Co.. 
39 Minn. 23, 38 N. W. 631. 

94. St. Louis, I. M. & S. R. Co. 
V. Bennett, 53 Ark. 208. 13 S. W. 74.2. 
22 Am. St. Rep. 187; First Nat. 
Bank v. Ridpath, 47 Neb. 96, 66 N. 

w. 37. . . , , 

But evidence of isolated transac- 
tions is not sufficient. Tadner v. 
Hibler. 26 111. App. 639; Holbrook v. 
Oberne, 56 Iowa 324, 9 N. W. 291. 

Vol. X 



32 



PRINCIPAL AND AGENT. 



(4.) Recognition of Authority. — Evidence showing recognition of 
the agent's authority is sufficient to estabhsh it.^^ 

(5.) Admissions of Principal. — Admissions of principal may be 
sufficient to prove authority.''® 

(6.) Letter in Response to One Addressed to Principal. — Evidence that 
a letter signed by an agent was sent in response to a letter addressed 
to the principal may be sufficient to establish the authority of the 

agent. ^'^ 

(7.) Limited Authority. — Evidence that an agent was authorized to 
do a certain act is not sufficient to show authority to do any further 
or other act, unless authority for the latter is necessarily implied 
from the former.^* 

e. For Particular Purposes. — (1.) Authority To Sell Property. 
Possession of property by an agent is not evidence of authority tc 
sell;®* nor is evidence of the offering of the property for sale by 
the agent sufficient to show authority.^ 

(2.) Authority To Make or Indorse Bills or Notes may be shown by 
circumstantial or direct evidence, the sufficiency of which will usu- 
ally be for the jury.^ 



Nor is evidence of circumstances 
not justifying the inference of 
knowledge sufficient. Eagle Bank v. 
Smith, 5 Conn. 71, 13 Am. Dec. 37. 

Evidence that an agent had acted 
for a principal in a transaction does 
not prove that he was subsequently 
authorized to make false and fraudu- 
lent representations for the purpose 
of evading its terms and conditions. 
Haves V. Burkam, 94 Ind. 311. 

95. Arthur v. Gard, 3 Colo. App. 
133, 32 Pac. 343 (communications be- 
tween the principal and agent in 
which the authority of the latter is 
expressly or impliedly admitted) ; 
Odiorne v. Maxcy, 15 Mass. 39 (rec- 
ognition by one partner sufficient) ; 
Ely V. James, 123 Mass. 36; Barnes 
V. Boardman. 149 Mass. 106, 21 N. 
E. 308, 3 L. R. A. 785; Hitchcock v. 
Davis, 87 Mich. 629, 49 N. W. 912; 
Thomas Roberts Stevenson Co. v. 
Tucker. 14 Misc. 297, 35 N. Y. 
Supp. 682. 

Wliere the principal receives the 
purchase price without affirming or 
denying a claimed warranty, the au- 
thority of the agent may be inferred. 
Smilie v. Hobbs. 64 N. H. 75, 5 
Atl. 711. 

96. Holden v. Terhune, 33 HI- 
App. 269 (sufficient in connection 
with other evidence). 

But they are not evidence of any 
greater authority than they purport. 

Vol. X 



Camden Fire Ins. Ass'n v. Jones, 53 
N. J. L. 189. 21 Atl. 458, 23 Atl. 166 
(admission of authority to sell land 
does not show authority to sell shares 
of stock) ; Fullerton v. McLaughlin 
70 Hun 568. 24 N. Y. Supp. 280 (ad- 
mission by owner of lots during ne- 
gotiations for sale that agent did all 
his business not evidence of authority 
for other purposes). 

97. Hopwood V. Corbin, 63 Iowa 
218. 18 N. W. 911- 

98. Evidence establishing that the 
principal had agreed to sign a con- 
tract which the agent was instru- 
mental in negotiating does not tend 
to show that the agent was author- 
ized to bind the principal by a parol 
contract. Hayes v. Burkam, 94 
Ind. 311. 

Evidence that the principal con- 
tinued to consign to factors after 
knowledge of their financial condi- 
tion is not evidence of authority in 
the factors to treat the property as 
their own. Wootiers v. Kaufman & 
Ruge, 73 Tex. 395. 11 S. W. 390. 

99. Peerless Mach. Co. v. Gates. 
61 Minn. 124. 63 N. W. 260. 

1. Mortimer v. Cornwell, I Hoff. 
Ch. (N. Y.) 351- 

Evidence Insufficient or Incon- 
clusive. — Stadleman v. Fitzgerald, 
14 Neb. 290. 15 N. W. 234; Fisher v. 
Mover (Pa.), 4 Atl. 64. 

2. Evidence Sufficient — V a 1 e n- 
tine V. Packer, 5 Pa. 333- 



PRINCIPAL AND AGENT. 



33 



(3.) Authority To Receive Payment. — Evidence that the agent has 
received other similar payments for the principal, with his knowl- 
edge and consent, is sufficient to establish authority to receive pay- 
ment.^ 

2. Evidence of Ratification. — A. Burden of Proof. — a. In 
General. — The burden of proving the facts constituting a ratifica- 
tion is upon the party claiming it.* 

B. Presumptions. — a. From Silence. — Ratification of an un- 
authorized act of an agent may be presumed from long continued 
silence in a principal who has knowledge of the facts. ^ 

b. From Nature of Acts. — Knowledge of the acts of an agent 
may be presumed when they are of such a nature that the principal 
must have known of them.*^ 

C. Essential Evidence. — a. Knowledge of Facts. — Evidence 
of knowledge of the facts is essential to ratification.'^ 

b. Injury. — When the ratification of an unauthorized act of an 
agent is sought to be inferred from the silence or conduct of his 
principal, in favor of a third person, it must clearly appear that 
the latter might have been thereby misled, and induced to forego 
some advantage he would otherwise have enjoyed.^ 

D. Mode of Proof. — a. Conduct of Principal. — Evidence of 
any conduct on the part of the principal recognizing the validity 
of the act of the agent is admissible.'-* 



Evidence Insufficient Williams 

z'. Robbins, i6 Gray (Mass.) 77, 77 
Am. Dec. 396; Lerch v. Bard, 153 
Pa. St. 573, 26 Atl. 236. 

In Consolidated Nat. Bank v. Pa- 
cific Coast S. S. Co., 95 Cal. i, 30 
Pac. 96. 29 Am. St. Rep. 85, the evi- 
dence was sufficient to disprove os- 
tensible authority. 

By Statute in Louisiana authority 
was required to be express and spe- 
cial. Nortrebe v. McKinnev, 6 Rob. 
(La.) 13. 

3. Quinn v. Dresbach. 75 Cal. 159, 
16 Pac. 762, 7 Am. St. Rep. 138. For 
other cases holding evidence suffi- 
cient to establish such authority, see 
Bronson v. Chappell, 12 Wall. (U. 
S.) 681; Wilson V. LaTour, 108 
Mich. 547, 66 N. W. 474. 

4. Moore v. Ensley, 112 Ala. 228, 
20 So. 744; Guimbillot z: Abat. 6 
Rob. (La.) 284; Allis v. Goldsmith, 
22 Minn. 123; Minter v. Cupp, 98 
Mo. 26, 10 S. W. 862; Dean v. Hipp, 
16 Colo. App. 537, 66 Pac. S04. 

Of Knowledge of Principal The 

burden of proving knowledge on the 
part of a principal of an unauthor- 
ized act of the agent is upon the par- 



ty claiming it. Moore v. Ensley. 112 
Ala. 228, 20 So. 744. 

5. Long z'. Thayer, 150 U. S. 520; 
Southern Oil Wks. v. Jefferson, 2 
Lea (Tenn.) 581. 

And a presumption so arising can- 
not be overcome by an offer at the 
trial to return the property received. 
Southern Oil Wks. v. Jefferson, 2 
Lea (Tenn.) 581. 

6. James v. Lewis. 26 La. Ann. 
664 (principal presumed to be in- 
formed of wha't her agent did in re- 
gard to the settlements with the ser- 
vants in her employ). 

7. Oxford Lake Line v. First Nat. 
Bank, 40 Fla. 349, 24 So. 480; Leon- 
ardson v. School District. 125 Mich. 
209. 84 N. W. 63; Bohanon v. Bos- 
ton & M. R., 70 N. H. 526, 49 Atl. 
103 (acts not sufficient when no 
knowledge) ; Keefe z'. Sholl, 181 Pa. 
St. 90, 37 Atl. 116. 

8. Guimbillot t-. Abat. 6 Rob. 
(La.) 284; Brown v. HenrJ^ 172 
I\Iass. 559, 52 N. E. 1073- 

9. Kentucky. — Bates' Ex'rs v. 
Best's Ex'rs, 13 B. Mon. 215. 

Louisiana. — Sentell v. Kennedy, 
29 La. Ann. 679. 

Vol. X 



34 



PRINCIPAL AND AGENT. 



b. Declarations of Principal. — Evidence of what the principal 
said when the matter was first called to his attention is admissible 
to show or to rebut ratification." 

c. Ainojmt of Evidence Required. — (1.) In General. — The fact 
of ratification should be as clearly made out as that of original au- 
thority.'^ 



Massachusetts. — Pratt v. Putnam, 
13 Mass. 361. 

Michigan. — Hammond v. Hannin, 
21 Mich. 374, 4 Am. Rep. 490; 
Dousman v. Peters, 85 Mich. 488, 48 
N. W. 697. 

Neiv Hampshire. — Hatch v. Tay- 
lor, 10 N. H. 538. 

Pennsylvania. — Hall v. Vanness, 
49 Pa. St. 457 ; Duncan v. Hartman, 
143 Pa. St. 595. 22 Atl. 1099, 24 Am. 
St. Rep. 570, s. c, 149 Pa. St. 114, 
24 Atl. 190 (receipt of rents and of 
agent's account). 

Texas. — Grande v. Chaves, 15 
Tex. 550. 

Virginia. — Downer v. Morrison, 
2 Gratt. 237. 

Evidence of conduct may be admit- 
ted and be sufficient to establish rati- 
fication, notwithstanding the princi- 
pal expressly declared he would not 
sanction the contract. Hatch v. Tay- 
lor, 10 N. H. 538. 

Deed Executed After Suit A 

deed of confirmation executed after 
the commencement of suit is admis- 
sible. McCulloch County Land & 
Cattle Co. V. Whitefort (Tex. Civ. 
App.), so S. W. 1042. 

10. Reid v. Alaska Packing Ass'n, 
43 Or. 429, 73 Pac. 337; Burns v. 
Campbell, 71 Ala. 271. 

11. Wisconsin Bank v. Morley, 19 
Wis. 62. 

Specific performance will not be 
decreed when the evidence of rati- 
fication is conflicting. De Sollar v. 
Hanscome, 158 U. S. 216. 

Where a surgeon has been em- 
ploj'ed by an agent of a railroad com- 
pany to attend an injured employe, 
slight acts of ratification are suffi- 
cient. Cairo & St. L. R. Co. v. Ma- 
honey, 82 111. 73, 25 Am. Rep. 299. 

Evidence Sufficient. 

United States. — Clark v. Van- 
Riemsdyk, 9 Cranch 153; Continental 
Ins. Co. V. Insurance Co. of State of 
Pennsylvania, 51 Fed. 884, 2 C. C. 
A. 535, I U. S. App. 201. 

California. — Ralphs r. Hensler, 97 
Cal. 296, 32 Pac. 243 (question was 

Vol. X 



as to authority to execute note ; evi- 
dence that principal authorized agent 
subsequently to negotiate for an ex- 
tension is sufficient to show ratifica- 
tion). 

Illinois. — Erie & P. Despatch v. 
Cecil, 112 111. 180; Burns v. Lane, 23 
111. App. 504. 

Indiana. — Terre Haute & I. R. Co. 
V. Stockwell, 118 Ind. 98, 20 N. 
E. 650. 

Iowa. — Hannum v. Benton, 54 
Iowa 396, 6 N. W. 549. 

Kansas. — Pacific R. Co. v. Thom- 
as. 19 Kan. 256. 

Louisiana. — Delabigarre v. Second 
Municipality, 3 La. Ann. 230. 

Maryland. — Re_vnolds v. Davison, 
34 Md. 662 (receiving rent according 
to terms of agreement) ; Hartlove v. 
William Fait Co., 89 Md. 254, 43 
Atl. 62. 

Massachusetts. — Harrod v. Mc- 
Daniels, 126 Mass. 413; Fogg v. Bos- 
ton & L. R. Corp., 148 Mass. 513, 20 
N. E. 109, 12 Am. St. Rep. 583. 

Michigan. — Jennison v. Parker, 7 
Mich. 355 ; Hutchinson v. Smith, 86 
Mich. 145, 48 N. W. 1090. 

Mississippi. — Exum v. Brister, 35 
Miss. 391. 

New York. — Hawley v. Keeler, 53 
N. Y. 114. affirming 62 Barb. 231; 
Thomas Roberts Stevenson Co. v- 
Tucker, 14 Misc. 297, 35 N. Y. Supp. 
682; Meyers z'. Brown-Cochran Co., 
91 N. Y. Supp. 72; Fischer v. Jordan, 
54 App. Div. 621, 66 N. Y. Supp. 286, 
affirmed 169 N. Y. 615, 62 N. E. 1095; 
Brown v. Reiman, 48 App. Div. 295, 
62 N. Y. Supp. 663. 

Pcnnsyhania. — Lindsley v. Ma- 
lone, 23 Pa. St. 24; Philadelphia, W. 
& B. R. Co. V. Cowell, 28 Pa. St. 3-29. 
70 Am. Dec. 128; Wright :•. Burbank, 
64 Pa. St. 247; Griswold f. Gebbie, 
126 Pa. St. 353. 17 Atl. 673, 12 Am. 
St. Rep. 878. 

South Dakota. — Schull v- New 
Birdsall Co., 17 S. D. 39- 95 N. 
W. 276. 

Te.vas. — Reese v. Medlock, 27 Tex. 
120, 84 Am. Dec. 611; Tinsley v. 



PRINCIPAL AND AGENT. 



35 



(2.) Where Acts Have Been Notorious. — When the use of the prin- 
cipal's name has been frequent and notorious, sHght evidence of 
injury to the moving party is sufficient. ^^ 

(3.) Silence. — Evidence of the silence of the principal after ac- 
quiring knowledge of the unauthorized acts of his agent is to be 
considered, but it is not necessarily conclusive.^^ 

3. Undisclosed Principal. — A. Burden of Proof. — a. In Gen- 
eral — In an action by an undisclosed principal he has the burden of 
showing the agency and that in making the contract the agent was 
acting for him.^* 

b. IVliere Principal Entrusts Agent With Indicia of Title. 
Where a principal entrusts his agent with the indicia of title, and 
the latter disposes of the property to a third person, the principal 
has the burden of showing notice of his rights in the third party. ^^ 

B. Mode of Proof. — a. Parol Evidence. — Parol evidence is 
admissible on behalf of an undisclosed principal to prove that a 
person signing a written contract was his agent and was acting 
for him in a transaction.^® 



Dowell (Tex. Civ. App.), 24 S. W. 
928; Bexar B. & L. Ass'n v. Newman 
(Tex. Civ. App.). 25 S. W. 461. 

Wisconsin. — Piatt v. Schmitt, 117 
Wis. 489. 94 N. W. 345. 

Evidence Insufficient. 

Alabama. — Simon v. Johnson, 105 
Ala. 344. ]6 So. 884. 53 Am. St. Rep. 
125; Simon V. Johnson, 108 Ala. 241, 
19 So. 244. 

Arkansas. — Hinkle v. Hinkle, 55 
Ark. 583. 18 S. W. 1049. 

Illinois. — ]\Iiller v. Drexel. 37 111. 
App. 462. 

loii'a. — Robinson v. Chapline, 9 
Iowa 91. 

Louisiana. — Mayor, etc. v. Hunter, 
12 Mart. (O. S.) 3 (express refusal 
to ratify sufficient to overcome cir- 
cumstances tending to show ratifi- 
cation). 

MassacJiusctts — Price v. Moore, 
158 Mass. 524, 33 N. E. 927. 

Michigan. — Wells v. Martin, 32 
Mich. 478; Somerville v. Wabash R. 
Co.. 109 Mich. 294, 67 N. W. 320; 
Holmes v. McAllister, 123 Midi. 493. 
82 N. W. 220, 48 L. R. A. 396; Rapid 
Hook & Eye Co. v. De Ruyter, 117 
Mich. 547, 76 N. W. 76. 

Minnesota. — Stillman i'. Fitz- 
gerald. 37 Minn. 186. 33 N. W. 564. 

New York. — Estevez 7'. Purdy. 66 
N. Y. 446; Beyers ?'. Hodge, i ^lisc. 
76, 19 N. Y. Supp. 830; Piper v. Hcr- 
rick, 26 Misc. 649, 56 N. Y. Supp. 386. 



North Dakota. — Morris v. Ewing, 
8 N. D. 99, 76 N. W. 1047. 

Receipts From Principal to Agent. 
Uncontradicted receipts in full from 
principal to agent are sufficient to 
prove ratification of all collections, 
disbursements and appropriations 
which had taken place when the re- 
ceipts were given. City Bank v. 
Kent. 57 Ga. 283. 

12. ForsAth z'. Day, 41 Me. 382. 

13. " Mere silence or nonaction, 
after knowledge, is evidence of rati- 
fication, but is not conclusive, except 
when the protection of the assumed 
agent or of third parties requires it; 
that is, where the facts are such that 
the law will presume that the agent 
or a third party would be prejudiced 
by the delay to speak or act, if the 
principal shotild thereafter be per- 
mitted to assert that he had not au- 
thorized or ratified the act." Smith 
T'. Fletcher. 75 Minn. 189, 77 N. W. 
800. See also Lynch z>. Smyth, 25 
Colo. 103, 54 Pac. 634. reversing 7 
Colo. App. 383, 43 Pac. 670. 

14. Powell T'. Wade. 109 Ala. 95, 
ig So. 500, 55 Am. St. Rep. 915; 
Ruiz 7'. Norton. 4 Cal. 355, 60 Am. 
Dec. 618. 

15. Calais Steamboat Co. v. Van 
Pelt. 2 Black (U. S.) 372. 

16. United States. — Ford v. Wil- 
liams. 21 How. 287 ; Prichard v. 
Budd, 76 Fed. 710. 22 C. C. A. 504; 

Vol. X 



36 



PRINCIPAL AND AGENT. 



b. Conduct of Principal. — A defendant, sued by a principal, may 
show that the agent was the real party in interest; and for that 
purpose he may show the conduct of the principal in regard to the 
matter.^" 

c. Direct Testimony. — A plaintifif may testify that he relied upon 
the defendants when he signed a contract and acted under it.^® 



Darrow v. Home Produce Co., 57 
Fed. 463; Nash v. Towne. 5 
Wall. 689. 

Alabama. — Powell v. Wade, 109 
Ala. 95, 19 So. 500, 55 Am. St. 
Rep. 915- ^ ^ 

Maine. — Putnam v. White, 76 Me. 
551 ; Kingsley v. Siebrecht. 92 Me. 
23, 42 Atl. 249, 69 Am. St. Rep. 486. 

Maryland. — Oelrichs v. Ford, 21 
Md. 489- 

Massachusetts. — Huntington v. 
Knox. 7 Cush. 371. 

Missouri. — 'Si^.tt V. O'Neill, 74 
Mo. App. 134. 

Oregon. — Barbre v. Goodale. 28 
Or. 465. 38 Pac. 67, 43 Pac. 378. 

South Carolina. — Buhvinkle V. 
Cramer, 27 S. C. 376, 3 S. E. 776, 13 
Am. St. Rep. 645. 

Vermont. — Edwards v. Golding, 

20 Vt. 30. 

West Virginia. — Deitz z: Provi- 
dence Wash. Ins. Co., 31 W. Va. 851, 
8 S. E. 616, 13 Am. St. Rep. 909- 

Such proof does not contradict the 
writing; it only explains the trans- 
action. Ford V. Williams, 21 How. 
(U. S.) 287; Powell V. Wade, 109 
Ala. 95, 19 So. 500, 55 Am. St. 

Rep. 915. 

Testimony of Agent — Ihe testi- 
mony of the agent is competent to 
prove that he was acting for his 
principal. Oelrichs v. Ford, 21 Md. 
489; Gilpin V. Howell, 5 Pa. St. 41, 
45 Am. Dec. 720; Edwards v. Gold- 
ing, 20 Vt. 30. 

Communications Between Princi- 
pal and Agent — Such facts may 
also be proved by communications 
which have passed between the prin- 
cipal and agent. Oelrichs v. Ford, 

21 Md. 489. See also Rice & B. 
Malting Co. v. International Bank, 
185 III. 422, 56 N. E. 1062. 

One may be asked whether he 
acted for himself or for his principal 
in a transaction. Swinnerton v. Ar- 
gonaut Land & Dev. Co., 112 Cal. 375, 
44 Pac. 719. 

As Showing Acceptance It is 

competent for plaintiffs to prove that 

Vol. X 



their agent informed them of what he 
had done, and that they thereupon 
accepted the contract and undertook 
to execute it. Canfield v. Johnson, 
144 Pa. St. 61, 22 Atl. 974. 

Evidence of Mental State Not Ad- 
missible A question to a witness 

as to whether he approved or disap- 
proved of an agent's act is irrelevant 
as calling for evidence of a mere 
mental state. Burns v. Campbell, 71 
Ala. 271. 

17. Bronson v. Herbert, 95 Mich. 
478, 55 N. W. 359 (proper to ask 
plaintiffs whether they charged de- 
fendant upon their books, and 
whether the defendant ever promised 
to pay). 

Evidence that a suit against the 
agent had been prosecuted to judg- 
ment is admissible to show that the 
agent was regarded as the principal 
debtor. Clealand r. Walker, 11 Ala. 
1058, 46 Am. Dec. 238. 

But this may be overcome by evi- 
dence that the suit was prosecuted by 
mistake. Clealand v. Walker, 11 Ala. 
1058. 46 Am. Dec. 238. 

Evidence of Secret Motives Not 
Admissible. — Evidence of the secret 
motives which may have operated 
upon the mind of a party dealing with 
an agent is inadmissible. Fobes v. 
Branson, 81 N. C. 256 (improper to 
ask, " were you induced to order the 
goods by the representations of 
plaintiffs' agent"). 

18. Crawford t'. Moran, 168 Mass. 
446, 47 N. E. 132. 

To the effect that a plaintiff may 
show that a contract, made apparently 
by the agent for himself, was really 
made for defendant, see Jones v. 
Williams, 139 Mo. i, 39 S. W. 486, 
40 S. W. 353, 61 Am. St. Rep. 436, 
37 L. R. A. 682 ; Borcherling v. Katz, 
27 N. J. Eq. 150; Lauer v. Bandow, 
43 Wis. 556. 28 Am. Rep. 571 ; Wes- 
ton V. McMillan, 42 Wis. 567. It is 
a well established proposition of sub- 
stantive law that a third party may 
hold either the agent or the undis- 
closed principal. 



PRINCIPAL AND AGENT. 



27 



d. Amount of Proof Required. — A principal may show that he 
is the real party in interest by a mere preponderance of evidence ; 
clear evidence is not required.^'' 

II. ACTIONS BETWEEN PRINCIPAL AND AGENT. 

1. Actions for Accounting. — A. Burden op Proof. — a. Of 
Receipt of Money. — In an action for accounting the principal has 
the burden of showing the amount received and not accounted for.-" 

b. Of Accounting for Amount Received. — It is not necessary for 
the principal to prove that the agent has not accounted for money 
he is shown to have received.^^ The burden is upon the agent 
to show that he has accounted.^- 

c. That Disbursements Were Aiithorized. — Likewise, the agent 
has the burden of showing that disbursements made by him were 
for the account of the principal and were authorized by him.-^ 

d. That Agent Has Received Nothing for Goods Consigned. 
The burden is upon the agent to prove that he has received noth- 
ing for goods consigned to him by the principal.-* 

B. Admissibility. — a. Conduct of Agent. — To show that the 
agent has received money, the principal may introduce evidence of 
the agent's acts from which payment to him may be inferred.-^ 



19. Barbre v. Goodale, 28 Or. 465, 
43 Pac. 378 (" requires no higher or 
superior proof than to estabhsh any 
other fact in the case"). 

20. Anderson v. First Nat. Bank, 
4 N. D. 182, 59 N. W. 1029. 

He must show that the sum col- 
lected was more than sufficient to 
offset the agent's just claims. Peeler 
V. Lathrop, 48 Fed. 780, i C. C. A. 
93, 2 U. S. App. 40. 

In general, see article, " Accounts, 
Accounting and Accounts Stated," 
Vol. I. 

21. Merchants Bank v. Rawls, 7 
Ga. 191, 50 Am. Dec. 394. 

22. Pratt v. Grimes. 48 111. 376; 
Young V. Powell, 87 Mo. 128; Car- 
der V. Primm. 52 Mo. App. 102; An- 
derson V. First Nat. Bank. 4 N. D. 
182, 59 N. W. 1029. Sec also Marvin 
V. Brooks, 94 N. Y. 71. But see 
Bcattie, 83 Hun 295. 31 N. Y. Supp. 
936 (agent who collects is presumed 
to have paid the principal). 

" Such a decree proceeds upon the 
ground that the defendant stands in 
the attitude of an agent dealing to 
some extent with the money or prop- 
erty of the other party; intrusted in 
a confidential relation with an in- 



terest which makes him a quasi trus- 
tee, and by reason of that relation 
knowing what the other party can- 
not know, and bound to reveal to him 
the entire truth. The equitable juris- 
diction has always rested largely upon 
such relation of confidence, involving 
the need of discovery and the diity 
of explanation, and hence the burden 
of such explanation and the proof of 
its truth fell, in such cases, upon the 
defendant whose conduct was ques- 
tioned, whenever an accounting was 
decreed, and required of him the ex- 
treme of good faith." Marvin v. 
Brooks, 94 N. Y. 71. 

23. Western Assur. Co. v. Uhl- 
horn, 41 La. Ann. 385, 6 So. 485. 

24. Delpeuch v. Dufart, 7 La. 533. 
See also Robson v. Sanders, 25 S. 
C. 116. 

25. Helm's Ex'rs z'. Jones' Adm'x, 
3 Dana (Ky.) 86 (deeds executed by 
an agent admissible). 

Agent's Testimony An agent 

may testify generally that he has ac- 
counted for all moneys received. 
" The defendant had an undoubted 
right to show the gross amount of 
deductions actually made, and was 
not, therefore, bound to introduce 

Vol. X 



38 



PRINCIPAL AND AGENT. 



b. Account Books. — The account books of a principal are not 
admissible to show delivery of goods to an agent as such ;-^ but the 
books of the agent may be admitted to show payments to the prin- 
cipal, especially where the principal has examined the books and 
made no objection.-^ 

2. Actions Based on Agent's Neglect or Misconduct. — A. Burden 
OF Proof. — a. Of the Wrong. — The burden of proving that the 
agent has been guilty of wrongdoing or negligence is upon the 
principal.^* 

b. Of Facts in Excuse. — Where a prima facie case of wrong or 
neglect is established, the agent has the burden of proving facts 
releasing him from liability. ^^ 

c. That Principal Has Not Been Damaged. — Where neglect of 
an agent or violation of instructions is shown, the burden is on 



evidence which would estabHsh the 
same thing by another and a more 
extended and elaborate course of ex- 
amination, when the answer to the 
question put would prove the same 
fact in a more direct and positive 
manner." France v. McElhone, i 
Lans. (N. Y.) 7. 

Receipt of Debtor. — The agent, in 
order to prove a payment to a third 
person for the principal, may intro- 
duce the receipt. Given v. Gould, 39 
Me. 410. 

26. Dunn v. Whitney, 10 Me. 9. 

27. Lever v. Lever, 2 Hill Eq. (S. 
C.) 158. In general, see article, 
" Books of Account," Vol. IL 

28. Schoelkopf v. Leonard, 8 Colo. 
159, 6 Pac. 209; Heinemann v. 
Heard, 62 N. Y. 448; Rand v. C. R. 
Johns & Sons (Tex. App.), 15 S. 
W. 200. 

_ A distinction is made between ac- 
tions for money had and received 
and actions for embezzlement. In 
the former, where it is shown that 
the agent has received money, the 
burden is upon him to show that he 
has accounted. (See ante, note 23.) 
In the latter, " it is necessary not only 
to show that he has received the 
mone}', but also that he has refused 
to pay the same upon demand, or 
that he has misapplied the same; and 
the burden of establishing these 
propositions rests upon the plaint- 
iffs, notwithstanding the admission 
of the defendant that he received the 
moneys claimed to have been em- 
bezzled." Panama R. Co. v. John- 

Vol. X 



son, 58 Hun 557, 12 N. Y. Supp. 499. 

A party claiming that another was 
his agent in the purchase of land has 
the burden of proof. Spratt v. Wil- 
son, 94 Ala. 608, ID So. 209. 

29. Collins V. Andrews, 6 Mart. 
N. S. (La.) 190 (failure to collect 
debts placed in his hands for collec- 
tion) ; Bartlett v. Hamilton, 46 Me. 
435 (agent wrongfully commingled 
funds which were stolen ; he has bur- 
den of showing that the identical 
money was stolen) ; Fahy v. Fargo, 
63 Hun 625, 17 N. Y. Supp. 344; 
Brumble v. Brown, 71 N. C. 513; 
Lamb V. Fairbanks, 48 Vt. 519 (an 
agent who claims that the principal 
authorized him to apply funds to his 
own use has the burden of proving 
the permission). 

Thus, where he claims that money 
intrusted to him has been lost, he has 
the burden of showing that the loss 
was not occasioned by a want of care 
on his part which men of ordinary 
prudence observe when clothed with 
such a trust. Darling v. Younker, 37 
Ohio St. 487, 41 Am. Rep. 532. It 
is presumed that an agent has done 
his duty. Bangs v. Hornick, 30 Fed. 
97; Ford v. Danks, 16 La. Ann. 119; 
Gaither v. Myrick, 9 Md. 118, 66 Am. 
Dec. 316; Merchants' Bank v. Gris- 
wold, 72 N. Y. 472, 28 Am. Rep. 159; 
Murdock v. Leath, 10 Heisk. 
(Tenn.) 166. 

Thus, the law presumes that money 
collected by an agent in his lifetime 
has been paid over to the principal. 
Breed z\ Breed. 55 App. Div. 121, 67 
N. Y. Supp. 162. 



PRIXCIPAL AND AG EXT. 



39 



him to show that the principal has not been damaged thereby.^** 
B. MoDii OF Proof. — a. Evidence of Circumstances. — Evidence 
of the circumstances surrounding the transaction is admissible. ^^ 

b. Admissions. — Admissions of an alleged agent are admissible 
to prove the relation as against him.^^ 

c. Custom. — Evidence of custom is admissible to aid in the con- 
struction of a general authority f^ evidence of a custom is not. 



30. Crawford v. Louisiana State 
Bank, i ]\Iart. N. S. (La.) 214 (neg- 
lect to give notice of dishonor of ne- 
gotiable instrument) ; Miranda v. 
City Bank. 6 La. 740. 26 Am. Dec. 
493 (same) ; Wilson v. Wilson, 26 
Pa. St. 393- 

Every doubt is resolved against the 
agent who violates his instructions. 
Adams z'. Robinson, 65 Ala. 586. See 
also Harvey v. Turner, 4 Rawle 
(Pa.) 223. 

31. To show that defendant was 
plaintiff's agent in a transaction, evi- 
dence of his election to the office of 
general manager, and of verbal noti- 
fication of such election is competent. 
Farnsworth v. Nevada Co., 102 Fed. 
578. 42 C. C. A. 509. 

In an action for fraud in conceal- 
ing the price received for stock, evi- 
dence of the agent's declarations to 
other stockholders similarly situated 
is admissible ; and the principal is not 
estopped to show by parol evidence 
that the true consideration was not 
expressed in a written contract made 
by the agent with a third person. 
Barber v. Martin, 67 Neb. 445, 93 N. 
W. 722. 

The agent, sued for loss of money 
intrusted to him, cannot show that 
other principals provided safes for 
their agents, where it does not appear 
that he ever asked for one. Wright 
V. Central R. & B. Co., 16 Ga. 38. 

Evidence That Another Would 
Have Pursued a Different Course. 
Evidence of a witness that ha would 
have pursued a different course is not 
admissible to prove negligence of an 
agent. " Negligence is a question of 
fact to be determined by the jury 
from all the facts and circumstances 
surrounding the transaction ; and to 
admit the testimony of a witness — 
that he would have pursued a differ- 
ent course stated — would be, in ef- 
fect, substituting the opinion of a 
witness for a conclusion which is re- 
quired by law to be reached by the 



jury." Norwood v. Alamo Fire Ins. 
Co.', 13 Tex. Civ. App. 475. 35 S. 
W. 7'i^7- 

In general, see article " Negli- 
gence." Vol. VIII. 

General Reputation of Third Party. 
Evidence that the general reputation 
of a party trusted by an agent is bad 
is not admissible to show the agent's 
neglect. Rand v. C. R. Johns & Sons 
(Tex. App.). 15 S. W. 200. 

Intent — Evidence of the intent of 
the agent is in general immaterial. 
Boykin v. Maddrey, 114 N. C. 89, 19 
S. E. 106 (not competent to show 
other similar breaches, because intent 
immaterial). 

32. Oliver v. Piatt. 3 How. (U. 
S.) 333. afiinuiug Piatt v. Oliver, 2 
McLean 267, 19 Fed. Cas. No. 11,115; 
New Home S. M. Co. z\ Seago, 128 
N. C. 158. 38 S. E. 805. 

In an action against an agent, it is 
error to refuse to permit the plain- 
tiff to prove what the agent said 
when certain money was paid to him. 
Spor V. Grau, 89 App. Div. 365, 85 
N. Y. Supp. 876. 

33. Connecticut. — Leach v^ 
Beardslee, 22 Conn. 404. 

Iltinois. — Deshler z\ Beers, 2>- HI- 
368, 83 Am. Dec. 274. 

Indiana. — Rapp v. Grayson, 2 
Blackf. 130. 

Kentucky. — Wallace z'. Bradshaw, 
6 Dana 382. 

lilarxland. — Jackson v. Union 
Bank, 6 Har. & J. 146. 

Massacliusctts. — Goodenow v. 

Tyler. 7 Mass. 36. 5 Am. Dec. 22; 
Dwight v. Whitney, 15 Pick. 179. 

Missouri. — Phillips z: Scott, 43 
Mo. 86, 97 Am. Dec. 369. 

Nezv Vort:. — McMorris v. Simp- 
son. 21 Wend. 610. 

Custom of Agents — Evidence of 
the custom of agents is admissible 
upon the question of whether an 
agent has violated general instruc- 
tions. Tyler v. O'Reilly, 59 Hun 618, 
13 N. Y. Supp. 201. 

Vol. X 



40 



PRINCIPAL AND AGENT. 



however, admissible to excuse a violation of positive instructions."* 

3. Actions for Compensation. — A, Burden of Proof. — In an 
action for compensation the agent has the burden of showing that 
he has performed services and that he had authority to do so f^. but 
the principal has the burden of proving any matter of defense."'' 

B. Mode of Proof. — a. Evidence of Employment. — The same 
evidence is admissible to show agreement and employment as is ad- 
missible in cases of contracts generally.^^ 

b. Evidence of Value. — (1.) Where Express Contract. — Where 
there is an express contract, evidence of the reasonableness of a 
commission is not admissible."^ 

(2.) Compensation of Similar Agents. — Where there is a conflict of 
testimony as to the agreement, evidence of what other agents en- 
gaged in the same business at the time received is competent.^^ And 
where there is no agreement as to amount, such evidence is admis- 
sible to show what would be a reasonable compensation. ^^ 



34. Hatcher v. Comer, 73 Ga. 418; 
Parsons v. Martin, 11 Gray (Mass.) 
lii; Porter v. Patterson, 15 Pa. 229; 
Barksdale v. Brown, i Nott & McC. 
(S. C.) 517, 9 Am. Dec. 720; Hall v. 
Storrs, 7 Wis. 253. 

35. Monnett v. Heller, 25 Jones 
& S. 576. 5 N. Y. Supp. 913, judg- 
ment modified in ]\Ionnet v. Merz, 127 
N. Y. 151, 27 N. E. 827. 

Similar Transactions To show 

employment, the agent may present 
evidence of other similar transactions 
in which he has acted for the princi- 
pal. Phillips f. Roberts, 90 111. 492. 

Acts of Agent. — To show what 
the agent has done, evidence of what 
he stated to prospective purchasers is 
admissible. Welsh v. Lemert. 92 
Iowa 116, 60 N. W. 230 (witness al- 
lowed to testify that agent claimed 
to have defendant's farm for sale). 

Consummation of Transaction. 
To show that a deal for which com- 
missions are claimed has been con- 
summated, a written agreement be- 
tween the principal and the buyer is 
admissible. Boland v. Kistle, 92 
Iowa 369. 60 N. W. 632. 

36. Nicklase v. Griffith, 59 Ark. 
641, 26 S. W. 381 (burden of proving 
negligence). 

37. Foste V. Standard Ins. Co., 34 
Or. 125, 54 Pac. 811. 

Parol Evidence.. — Parol evidence 
is admissible to show the actual 
agreement when only part is in writ- 
ing. Magill V. Stoddard, 70 Wis. 75. 
35 N. W. 346- 

Vol. X 



In the case cited, secondary evi- 
dence of the contents of an agree- 
ment was not admitted because the 
loss of the original was not proved. 
In general, as to this, see articles 
" Best and Secondary Evidence," 
and " Parol Evidence." See also 
article " Contracts." 

38. ]\IcKinnon v. Gates, 102 Mich. 
618, 61 N. W. 74. See also Ludlow 
V. Dole, I Hun (N. Y.) 715, 4 
Thomp. & C. 655. 

39. " It does not necessarily fol- 
low that because other agents re- 
ceived two and one-half per cent, 
commissions, that the defendant did 
not make the contract, as stated by 
the plaintifts ; but as the evidence is 
in conflict upon that point, what 
other agents received for the same 
service, at that time, may be con- 
sidered b\' the jury as a circumstance 
that he would not as probably have 
made a contract for less commis- 
sions than the customary rate, though 
he may have done so." Glenn v. 
Salter, 50 Ga. 170. See also Rubino 
V. Scott, 118 N. Y. 662, 22 N. E. 1 103. 

40. Hollis V. Weston, 156 Mass. 
357, 31 N. E. 483; Ruckman v. Berg- 
holz. 38 N. J. L. 531. 

The jury is to determine from the 
evidence what would be a reasonable 
compensation. Best v. Sinz, 73 Wis. 
243, 41 N. W. 169. 

In a suit for compensation for find- 
ing a purchaser for- real estate, a 
broker may testify as to what he 
would charge for the same services. 



PRINCIPAL AXD AGENT. 41 

(3.) Expert Testimony. — The value of an agent's services may be 
determined by expert evidence.*^ 

(4.) TJnskilfulness of Agent. — The principal may show that the 
agent's mode of carrying out his contract was not skilful.*- 

c. Self-Serving Declarations. — A plaintiff cannot prove his own 
agency by evidence of his declarations to others made in the course 
of his business.'*^ 

d. Evidence That Agent Was Acting for Other Party. — Evi- 
dence that the agent was acting for the other party alone is admis- 
sible ;*** and in this connection evidence of his subsequent conduct is 
admissible.*^ 

III. OTHER ACTIONS. 

1. Between Agent and Third Persons. — A. Burden of Proof. 
a. Contract Made Apparently as Principal. — Where a defendant 
sets up that a contract, made by him, apparently as principal, was in 
reality made as the agent for another, he has the burden of proving 
the fact by a preponderance of evidence.**' 

b. Contract Made Apparently as Agent. — But where he acted 
ostensibly as an agent, a party seeking to hold him personally liable 
has the burden of proving his want of authority.*" 

c. Where Credit Given to Agent of Known Principal. — A party 
claiming that exclusive credit was given to the agent of a known 
principal has the burden of proving the fact by clear evidence.*^ 

B. Presumptions. — a. Where Acts Are Within Authority. 
If the usual business of an agent is his agency, an act done by him 

Elting i'. Sturtevant, 41 Conn. 176. Y.) 256, aifirmcd 63 N. Y. 652. 

Such evidence is admissible when 46. Tiger v. Lincohi, i Colo. 394; 

the contract is denied. Kelly v. Vawter t'. Baker, 23 Ind. 63; Curts z^. 

Phelps, 57 Wis. 425, 15 N. W. 385. Scoles. i Iowa 471 ; Pratt v. Bcaupre, 

It is not conclusive. Kennedy v. 13 Minn. 187; McCall v. Elliott, 3 

Sommerville, 64 Mo. App. 75- Or. 138; Miller v. Stock, 2 Bailey (S. 

As to compensation of attorneys at C.) 163. 

law, see article " Attorney and And the burden of proving agency 

CuENT," Vol. II. is not affected by the fact that the 

41. Levitt V. Miller, 64 Mo. plaintiff has charged the alleged prin- 
App. 147. cipal upon his books. Miller v. 

In general, see article " Expert AND Stock. 2 Bailey (S. C.) 163. 

Opinion Evidence," Vol. V. Of Private, Verbal Authority. 

42. Perry v. Jensen, 142 Pa. 125, Thus, where an authority may be 
21 Atl. 866, 12 L. R. A. 393 (agreed private, or verbal, and not of record, 
to use " best reasonable endeavors to the person who claims to exercise it 
introduce" medicine; evidence that has the burden of proof when it is 
he did not use the best methods of afterward put in issue. Jackson's 
distributing samples is admissible). Ex'rs v. Holliday's Adm'rs, 3 T. B. 

43. Ehrenworth v. Putnam (Tex. Mon. (Ky.) 363. 

Civ. App.), 55 S. W. 190 (action by 47. Riionc v. Powell. 20 Colo. 41, 

broker for commissions). 36 Pac. 899; Plumb v. Milk, 19 Barb. 

44. Morehouse v. Remson, 59 (N. Y.) 74. 

Conn. 392, 22 Atl. 427. 48. Meeker v. Claghorn, 44 N. Y. 

45. Miller v. Irish, 67 Barb. (N. 349; Ferris v. Kilmer, 48 N. Y. 300. 

Vol. X 



42 



PRINCIPAL AND AGENT. 



within the scope of such agency is presumed to have been done 
for the principal.** 

b. TJiat Knoivn Principal Was Given Credit. — Where one sells 
goods to an agent of a known principal, for the use of the principal, 
the presumption is that he gives credit to the principal and not to 
the agent.^° 

c. Contract Signed " B, Agent." — A writing signed by a party 
with the word " Agent " after his name is presumed to be the in- 
dividual contract of the party signing it f^ but parol evidence is 
admissible to show that it was in fact the contract of the principal.^" 

d. No Presumption That Agent Has Paid Money to Principal. 
In an action against an agent to recover money paid to him, there 
is no presumption that he has turned it over to his principal. ^^ 

C. Mode of Proof. — a. Parol Evidence. — (l.) Not Admissible 
to Exonerate Agent Who Has Not Disclosed His Principal. — Parol evi- 
dence is not admissible to exonerate an agent who has entered into 
a written contract in which he appears as principal,^* although he 



49. Brett v. Bassett. 6;^ Iowa 340, 

19 N. W. 210; Hamilton v. Eimer, 

20 La. Ann. 391 ; McCarthy v. Mis- 
souri R. Co., 15 Mo. App. 385- 
("where the superintendent of a cor- 
poration requests a phj^sician to go 
on and treat an employe of the com- 
pany, who has been injured, the na- 
tural implication would be that he 
makes the request for the company, 
and not with the intention of charg- 
ing himself personally"). 

It seems that where an agent is also 
habitually acting for himself in the 
same sort of matters as to which it 
is claimed that he acted as agent ; or 
if in his agency he acts only occasion- 
ally and irregularly, the presumption 
is that he acts for himself. Curts v. 
Scoles I Iowa 471 ; Vawter v. Baker, 
23 Ind. 63 ; Soulter v. Stoeckle, 6 
Ohio Dec. 1054. 

50. Meeker v. Claghorn. 44 N. Y. 
349; Ferris v. Kilmer, 48 N. Y. 300. 

51. Rhone v. Powell, 20 Colo. 41, 
36 Pac. 899. In this case the court 
said : " The writing by its terms 
neither purported to be the contract 
of Smith, Powell & Lamb, nor was 
it executed in their name, but was by 
its terms and mode of execution pri- 
ma facie the individual contract of 
Powell. The addition of the word 
' agent ' was prima facie descriptio 
personae, and while the fact that the 
word was not so intended, but was 
understood by the contracting parties 
as indicating that the contract was 
signed in a representative capacity. 

Vol. X 



may be shown by parol testimony, 
the contract is to be construed as 
prima facie the individual act of the 
party executing it." See also Deer- 
ing V. Thom, 29 Minn. 120, 12 N. W. 
3 so; Braun v. S. F. Hess & Co.. 187 
111. 283. S8 N. L. 371. 79 Am. St. 
Rep. 221, affirming 86 111. App. 544. 
Compare Bradley v. McKee, 5 
Cranch C. C. 298, 3 Fed. Cas. 
No. 1,784. 

52. Rhone v. Powell, 20 Colo. 41, 
36 Pac. 899 ; Deering v. Thom, 29 
Minn. 120, 12 N. W. 350; Schaefer v. 
Bidwell. 9 Nev. 2og. See also Rut- 
land & B. R. Co. V. Cole, 24 Vt. 33 
(note payable to treasurer of corpo- 
ration ; latter may show that it was 
intended for the corporation). 

53. " Had the omission of the 
agents to pay over the money to their 
principal been a criminal offense, 
there might have been a presump- 
tion in favor of innocence, that they 
had paid it over. Not paying over 
the money was only a breach of an 
implied contract, and we are not 
aware of any presumption of the per- 
formance of a contract. The money 
was proved to be in the hands of the 
agents, and where the; existence of a 
particular subject matter or relation 
has once been proved, its continuance 
is presumed until proof be given to 
the contrary, or till a different pre- 
sumption be afforded by the very na- 
ture of the subject matter." Ship- 
herd V. Underwood, 55 111. 475. 

54. United States. — Nash v. 



PRINCIPAL AND AGENT. 



43 



proposes to show that he fully disclosed his agency at the time of 
the transaction.'"'' 

(2.) Admissible To Show Authority. — An agent who executes an in- 
strument purporting to be made under a written authority, may 
show authority by other evidence than a writing.^*^ 

b. Evidence of Intent. — Entries in books of a plaintifif are not 
conclusive against him as to whom he intended to charge/' 

D. Sufficiency. — To hold an agent personally liable, the evi- 
dence must show that he contracted personally, or that he assumed 
to act without sufficient authority."^* 

2. Between Third Parties. — An admission of agency by a 
principal who is not a party to the suit is hearsay and incompetent.^'* 

3. Criminal Actions. — In a prosecution for forgery, the burden 
of proving want of authority is on the state.^*^ 

Evidence of apparent authority of an agent is not sufficient to 
hold a defendant criminally responsible.''^ 



Towne, 5 Wall. 689; Prichard v. 
Budd, 76 Fed. 710, 22 C. C. A. 504. 

Illinois. — Hypes v. Griffin, 89 111. 
134. 31 Am. Rep. 71. 

Maryland. — McClernan v. Hall, 
33 Md. 293. 

New Jersey. — Kean v. Davis, 20 
N. J. L. 425. 

South Carolina. — Bulwinkle v. 
Cramer, 27 S. C. 376, 3 S. E. 776, 13 
Am. St. Rep. 645. 

Texas. — Heffron v. Pollard, 73 
Tex. 96, II S. W. 165, IS Am. St. 
Rep. 764. 

IVashington. — Shuev v. Adair, 18 
Wash. 188, SI Pac. 388. 63 Am. St. 
Rep. 879, 39 L. R. A. 473. 

Wisconsin. — Cream City Glass Co. 
V. Friedlander, 84 Wis. S3. S4 N. W. 
28, 36 Am. St. Rep. 89S, 21 L. R. A. 
135; Weston v. McMillan, 42 
Wis. 567. 

Reasons — Parol evidence is ad- 
missible to give the benefit of the 
contract to or to charge the 
principal, because " it does not 
deny that it is binding on those 
whom, on the face of it, purports to 
bind ; but shows that it also binds 
another, by reason that the act of the 
agent, in signing the agreement, in 
pursuance of his authority, is in law 
the act of the principal." But, on the 
other hand, to allow evidence to be 
given that the party who appears on 
the face of the instrument to be per- 
sonally a contracting party, is not 
such, would be to allow parol evi- 
dence to contradict the written agree- 
ment; which cannot be done. Hig- 



gins V. Senior, 8 M. & W. (Eng.) 834. 

55. Nash V. Towne, 5 Wall. (U. 
S.) 689; Miller z: Early. 22 Ky. L- 
Rep. 825. 58 S. W. 789; Bulwinkle v. 
Cramer, 27 S. C. 376, 3 S. E. 776, 13 
Am. St. Rep. 645; Cream City Glass 
Co. 7'. Friedlander, 84 Wis. S3. 54 N. 
W. 28, 36 Am. St. Rep. 895, 21 L. R. 
A. 135- 

56. Page & Bacon v. Lathrop, 20 
Mo. S89. 

57. jMcKeen v Providence County 
Sav. Bank, 24 R. I. S42, S4 Atl. 49. 

58. Trastour v. Fallon, 12 La. 
Ann. 25. 

Assumption of Agency. — As 
against one who assumes to be the 
agent of another, that fact is suffi- 
cient prima facie to justify the infer- 
ence that he was duly authorized to 
do what he claimed the authority to 
do. Montgomery v. Pacific Coast 
Land Bureau. 94 Cal. 284. 29 Pac. 
640, 28 Am. St. Rep. 122. 

59. Clark t'. Peabody, 22 Me. 500 
(written admission by payee of note 
that party who indorsed note for him 
was his agent, is not admissible in a 
suit by indorsee against the maker). 

60. Romans v. State, si Ohio St. 
S28, 37 N. E. 1040. 

61. " The accused, in such case, 
has the right to rebut the presump- 
tion of prima facie agency, which the 
evidence makes against him, by show- 
ing, if he can, that the criminal act 
was, in fact, committed without his 
authority and against his instruc- 
tions." Anderson v. State, 22 Ohio 
St. 30S. 

Vol, X 



PRINCIPAL AND SURETY. 



I. BURDEN OF PROOF, 48 

1. On Creditor, 48 

A. To Show Surety's Liability, 48 

B. To Show Consent to Extension, 48 

C. To Show Surety Has Not Been Injured by Release of 

Other Securities, 48 

D. To Shozv Lack of Knoivledge of Fraud, 48 

E. To Shozv Consent of All Partners to Suretyship, 49 

2. On Surety, 49 

A. To Shozv Facts Discharging Him From Liability, 49 

B. To Shfizv Notice To Sue, 50 

C. To Shozv Relation When It Does Not Appear, 50 

D. To Shozv That Creditor Had Notice of Relation, 50 

E. To Shozv Incapacity, 51 

3. On Cosurety, 51 

II. PRESUMPTIONS, 51 

1. All Signers Presumed To Be Joint Obligors, 51 

2. Effect of Addition of Word "Surety," 51 

3. Consent to Alteration, 51 

4. Presumption as to Time of Defalcation, 51 

5. Presumption as to Amount of Payment, 52 

6. Presumption as to Extension of Time, 52 

A. Taking Note, 52 

B. Payment of hiterest in Advance, 52 

7. Presumption of Cosuretyship, 52 

m. MODE OF PROOF, 52 

1. Statute of Frauds, 52 

A. In General^ 52 

B. Does Not Apply to Agreement for Contribution, 52 

2. Parol Evidence, 52 

A. To l^ary or Contradict Writing, 52 

a. Generally Not Admissible, 52 

b. But Strangers May Show the Real Facts, 53 
Vol. X 



PRINCIPAL AND SURETY. 45 

B. To Explain or Interpret Instrument, 53 

a. Generally Admissible, 53 

b. That Act Was Included in Contract, 53 

C. To Show Instrument To Be Void, 53 

a. Fraud or Mistake, 53 

b. Usury, 54 

D. To Shozv Real Character of Parties, 54 

a. Admissible When Facts Do Not Appear On Face 

of Instrument, 54 

b. As Bctiveen Obligors, 55 

c. To Show An Indorser To Be a Surety, 55 

d. Wlien Writing Expressly States Character of Par- 

ties, 55 

e. Obligee's Knozvledge of Relation of Parties, 56 

E. Obligee's Knozvledge of Conditional Signing, 57 

3. Admissions, 57 

A. Of Principal, 57 

a. In General, 57 

(i.) Admissible Wh-cn Part of Res Gestae, 57 

(2.) Receipts, 59 

(3.) Guardian's Inventory, 59 

(4.) Administrator's Settlement, 59 

(5.) Account Books, 59 

b. Officers, 59 

(i.) When Admissible, 59 

(2.) Official Reports, 60 

(3.) Transcript of Accounts, 61 

(4.) Conclusiveness, 61 

(5.) Entries Themselves a Breach of Bond, 62 

(6.) Corporation Officers, 62 

c. In Action Against Principal and Surety lointly, 62 

d. Admission of Deceased Principal, 6^, 

e. Declarations as to Character of Other Parties, 63 

f. Declarations of Hearsay, 63 

g. Effect of Admissions, 63 

B. Of Surety, 63 

C. Of Creditor, 63 

4. ludgments, 64 

A. Against Principal, 64 

a. Under Bonds of General Indonnity, 64 
(i.) Generally Not Admissible, 64 

Vol. X 



46 PRINCIPAL AND SURETY. 

(2.) Record of Bankruptcy Proceedings, 64 
(3.) Viezv That Judgments Are Prima Facie 
Evidence, 64 

b. Under Bonds To Abide the Judgment, 65 

(i.) In General, 65 

(2.) Obligation To Satisfy Judgment, 65 

(3.) Official Bonds, 66 
(A.) In General, 66 
(B.) Effect of Notice, 66 
(C.) Sheriffs and Constables, 67 

(4.) Bonds of Executors, Administrators and 
Guardians, 67 
(A.) In General, 67 
(B.) Obligation to Account, 67 
(C.) Decree Settling Account, 68 
(D.) Judgments In Fazvr of Third Parties, 

68 
(E.) Decree Removing Guardian, 68 
(F.) Prima Facie Evidence in Some Juris- 
dictions, 68 

(5.) Bonds of Assignees for Creditors, 68 

(6.) Bonds To Protect Against Mechanic's Liens, 
69 

(7.) Collusive Judgments, 69 

c. Where Surety Has Been Called Upon To Defend, 

69 

d. Where Surety Has Been a Party, 70 

e. Judgments by Confession, 70 

B. In Favor of Principal, 71 

C. Against Surety, 71 

a. Admissible Against Principal, 71 

b. Admissibility Against Cosurety, 71 

5. Azvards, 71 

6. Statements Rendered by Creditor to Debtor, 71 

7. Ezndence of WJiat Was Said and Done At Time of Con- 

tract, 71 
Vol. X 



PRINCIPAL AXD SURETY. 47 

8. Habits of Alleged Surety, y2 

9, Financial Condition of Parties, 72 

10. Recitals, ^2 

11. Certificates of Postmaster-General, yT, 

12. Evidence of Fraud, yT, 

A. Xot Admissible Unless Creditor Is Connected There- 

with^ 73 

B. Surety's Statement as to Effect of Fraud, y^ 

13. Indemnity, 73 

14. Testimony of IVitness, Since Deceased, 74 

15. Evidence To Prove Particular Facts, 74 

A. Creditor's Knowledge of Principal's Previous Defa-ult, 

74 

B. That an Extension Had Been Given to Priiicipal, 74 

C. Tliat a Valuable Consideration Was Given for an Ex- 

tension, 74 

D. That Surety Consented to an Extension, 74 

E. That Surety Has Been Released by Change in Con- 

tract, 75 

F. That Surety Demanded That Creditor Sue, 75 

G. That Surety IVas Injured by Creditor's Neglect, 75 
H. Extent of Obligation, 75 

16. Competency of Party When Other Party Is Dead, 75 

17. Evidence in Suit by Surety, 76 

IV. WEIGHT AND SUFFICIENCY OF EVIDENCE, 76 

1. Effect of Agreement, 76 

2. Amount Realized at Sheriff's Sale, 76 

3. Proof Necessary To Avoid Official Bond, 76 

CROSS-REFERENCES: 

Admissions ; 

Bills and Notes ; Bonds ; 

Guaranty ; 

Judg-ments; 

Officers ; 

Parol Evidence ; 

Statute of Frauds. 

Vol. X 



48 



PRINCIPAL AND SURETY. 



I, BURDEN OF PROOF. 

1. On Creditor. — A. To Show Surety's Liability. — The cred- 
itor has the burden of proving the Habihty of the surety by clear 
evidence.^ 

B. To Show Consent to Extension. — The burden of proving 
consent to an extension of time or other act which would otherwise 
release the surety is upon the creditor.^ 

C. To Show Surety Has Not Been Injured by Release of 
Other Securities. — The creditor has the burden of showing that 
the surety has not been injured by the release of other securities.^ 

D. To Show Lack of Knowledge of Fraud. — A creditor who 
seeks to enforce payment against the surety whose signature to the 
contract was obtained by the fraud of the principal debtor has the 
burden of showing that when he accepted the obligation of surety- 
ship he had no knowledge of the fraud.* 



1. Hazard v. Lambeth, 3 Rob. 
(La.) 378; Erwin v. Greene, 5 Rob. 
(La.) 70. 

In Koppitz-Melchers Brewing Lo. 
V. Schultz, 68 Ohio St. 407, 67 N. 
E. 719, plaintiff sued on a bond con- 
ditioned for the faithful perform- 
ance of a contract. It was held that 
he had the burden of showing per- 
formance of conditions on his part. 

In Pirkle v. Chamblee, 109 Ga. 32, 
34 S. E. 276, a party signed as surety 
a note which had previously been 
signed by two others. It was held 
that he had the burden of showing 
that one of the others was a co- 
surety. 

But unless the execution of the 
bond is denied by a plea of non est 
factum he is not obliged to prove 
that fact. State v. Duvall, 83 Md. 
123, 34 Atl. 831. 

2. Tuohy V. Woods, 122 Cal. 665, 
55 Pac. 683; Hanks v. Gerbracht, 75 
Hun 181, 26 N. Y. Supp. 1097- 

" The surety could not ordinarily 
be able to prove, that he did not as- 
sent to it, when made without his 
knowledge. The proof should come 
from the party who would be re- 
lieved from the consequences of his 
own wrongful act." Stowell v. 
Goodenow, 31 Me. 538. 

The creditor has the burden of 
showing that the surety consented to 
a stay of execution beyond the stat- 
utory time. Okey v. Sigler, 82 Iowa 
94. 47 N. W. 911. 

Wliere the defense is an altera- 



tion, and the plaintiflf sets out the al- 
teration in his claim, and makes it 
part of his case, the defendant does 
not have the burden of showing that 
he did not consent. Mundy v. Ste- 
vens, 17 U. S. App. 463. 61 Fed. 77, 
9 C. C. A. 366. 

An averment in the surety's answer 
of want of consent is unnecessary, 
and, if made, need not be proved. 
Tuohy V. Woods, 122 Cal. 665, 55 
Pac. 683. 

Contra. — To the effect that the 
surety has the burden of showing 
that he did not consent, see Wash- 
ington Slate Co. V. Burdick, 60 
Minn. 270, 62 N. W. 285; Guderian 
V. Leland, 61 Minn. 67, 63 N. W. i75- 
See also McNulty v. Hurd, 86 N. Y. 
547, where the court said : " The 
plaintiff, however, set this litigation 
in motion and was only entitled to 
recover upon proof that her intes- 
tate had not consented to this new 
contract. It is true that this involved 
a negative, but without it she had no 
cause of action. The burden or 
onus probandi would, however, be 
shifted by slight evidence and thrown 
upon the party who was to profit 
by the consent, if given, and who, 
therefore, might be supposed to have 
cognizance of it." 

3. Allen v. O'Donald, 23 Fed. 573 ; 
Rawson z: Gregory, 59 Ga. 733. 

4. Bank of Monroe v. Anderson 
Bros. jMin. & R. Co., 65 Iowa 692, 
22 N. W. 929. See also Lane v. 
Krekle, 22 Iowa 399; Union Nat. 



Vol. X 



PRINCIPAL AXD SURETY. 



49 



E. To Show Consent of All Partners to Suretyship. 
Where a partnership name is signed with the word "surety" after 
it, or where it otherwise appears tliat the name is signed as surety, 
the holder has the burden of proving the consent of all the partners, 
or the authority of the person signing.^ 

2. On Surety. — A. To Show Facts Discharging Him From 
Liability. — A surety has the burden of proving facts discharg- 
ing him from liability.*^ Thus he must prove an extension of time 
to the debtor set up by him as a defense 'J or an alteration of the 
instrument.^ It has been said, however, that this burden is only 
that of going forward with the evidence.^ 



Bank z'. Barber. 56 Iowa 559, 9 N. 
VV. 890. 

5. Boyd V. Plumb, 7 Wend. (N. 
Y.) 309. See also Hendrie v. Ber- 
kowitz, 37 Cal. 113. 99 Am. Dec. 
251 ; Bank of Rochester v. Bowen, 7 
Wend. (N. Y.) I59- 

" It is settled law that the party 
who takes a promissory' note bearing 
the endorsement of a firm, either 
as guarantors or sureties, takes it 
burdened with the presumption that 
the firm name was not signed in the 
usual course of partnership business, 
and no recovery can be had by simply 
showing the endorsement. The 
holder is required to show special 
authority to make the endorsement 
on the part of the partner by whom 
the firm name was signed, or an au- 
thority to be implied from the com- 
mon course of business of the firm, 
or previous course of dealing be- 
tween parties, or that the endorse- 
ment was subsequently adopted and 
acted upon by the firm." Clarke v. 
Wallace, i N. D. 404, 48 N. W. 339. 

6. Evans v. Kister, 92 Fed. 828, 
35 C. C. A. 28; Robinson v. Snyder, 
97 Ind. 56; Bayley v. Jeneven. 24 La. 
Ann. 288; Bramble v. Ward, 40 Ohio 
St. 267; Gass V. Citizens' Bldg. & 
Loan Ass'n., 95 Pa. St. loi. 

A surety upon an indemnity bond 
must prove his contention that the 
alleged breach of duty by the prin- 
cipal had been changed into an in- 
debtedness by the action of the cred- 
itor. Socialistic Coop. Pub. Ass'n v. 
Hoffman, 12 Misc. 440. 33 N. Y. 
Supp. 695. See, however, Stendal v. 
Ackerman, 86 N. Y. Supp. 468, 
where it was held that the creditor 
has the burden of showing that he 
has not been guilty of anything that 



might be said to change or alter the 
defendant's position. 

A surety must prove his conten- 
tion that an employer has retained 
an employe after knowledge of his 
embezzlement, without notifying the 
surety (Foster v. Franklin Life Ins. 
Co., [Tex. Civ. App.], 72 S. W. 91), 
and that funds presumably in the 
hands of the principal had been mis- 
appropriated before he became liable 
on the bond. jMcMullen ?■. Winfield 
Bldg. & Loan Ass'n, 64 Kan. 298, 67 
Pac. 892, 91 Am. St. Rep. 236. 56 L. 
R. A. 924. 

7. Truesdell v. Hunter, 28 111. 
App. 292; Barclay z: Miers, 70 Ind. 
346; Bramble v. Ward, 40 Ohio 
St. 267. 

He must prove all the essentials 
of the defense. Thus, he must show 
that an extension was founded on a 
valid consideration. Eaton v. Waite, 
66 Ale. 221. 

8. Truesdell v. Hunter, 28 III. 
App. 292. 

9. In Tenney v. Knowlton, 60 N. 
H. 572, where the defense set up was 
an unauthorized extension of time, 
the court said : " For the purpose of 
maintaining the issue on her part, she 
[plaintifi'j produced and proved the 
note, and thus made out a prima facie 
case, which would have entitled her 
to a verdict had the defendants of- 
fered no evidence. To avoid the ef- 
fect of the prima facie case so made, 
it was. tlierefore, incumbent on the 
defendants to offer some evidence in 
rebuttal; but it does not follow that 
the burden of proof was thereby 
shifted. On the contrary, we think 
it remained on the plaintiff through- 
out the trial. In every aspect of the 
cause, the substantive fact to be 



4 



Vol. X 



50 



PRINCIPAL AND SURETY. 



B. To Show Notice to Sue. — In order to be released on ac- 
count of failure to sue the principal after notice, the surety must 
show clearly the nature and terms of the notice, given at a time 
when the creditor has it in his power to proceed to, collect the debt.^^ 

C. To Show Relation When It Does Not Appear. — Where 
a party to an instrument does not appear on its face to be a surety 
but claims that in fact he is so. he has the burden of proving his 
claim.^^ 

D. To Show That Creditor Had Notice of Relation. 
Where the fact of suretyship does not appear upon the face of the 
instrument, a surety claiming rights as such must prove that the 
creditor had notice of the relation; such notice will not be pre- 
sumed.^^ 



proved by her remained the same. 
She affirmed the vahdity of the con- 
tract; the defendants denied it. 
That was the vital fact in issue at 
all stages of the trial, and to it the 
evidence on both sides was directed, 
affirmatively or negatively; and as 
the plaintiff affirmed that the con- 
tract was a legal and subsisting lia- 
bility when the alleged breach oc- 
curred, and as he who affirms must 
prove, she was bound to sustain her 
affirmation by proof satisfactory to 
the jury. No form of pleading could 
effect an actual change of the issue 
thus made up, nor shift the burden 
of proof upon it, unless by force of 
a legal presumption. And so, while 
the proof of the extension of the 
time of payment alleged in the brief 
statement necessarily commenced on 
the part of the defendants after the 
production and proof of the note, 
it was not because the burden of 
proof had shifted, but because the 
plaintiff had offered proof sufficient 
to establish the validity of the con- 
tract and its breach, unless it was 
rebutted by proof of equal or greater 
weight. This was what the defend- 
ants did; but in so doing they did 
not assume the burden of proof in 
any just sense, _ for, to rebut and 
overcome the prima facie case made 
by the plaintiff, it was not required 
of them to produce a preponderating 
weight of evidence, but only enough 
to balance the scales, because in that 
event the case would then stand as 
if no evidence had been given oa 
either side, and consequently the bur- 
den resting on the plaintiff at the 
outset would remain unchanged." 

Vol. X 



10. King V. Haynes, 35 Ark. 463; 
Conrad v. Foy, 68 Pa. St. 381. 

If the creditor does not sue as re- 
quested, he has the burden of show- 
ing that the money could not have 
been collected thereby. Strickler v. 
Burkholder, 47 Pa. St. 476. 

11. Georgia. — Love v. Lamar, 78 
Ga. 323, 3 S. E. 90. 

Indiana. — Williams v. Scott, 83 
Ind. 405. 

Kansas. — Payne v. First Nat. 
Bank, 16 Kan. 147. 

Kentucky. — Columbia Finance & 
Trust Co. V. Mitchell's Adm'r., 24 
Ky. L. Rep. 1844, 72 S. W. 350. 

New York. — Brink v. Stratton, 
72 N. Y. Supp. 87, 64 App. Div. 331. 

Tennessee — Coleman v. Norman, 
10 Heisk. 590. 

West Virginia. — Turner v. Stew- 
art, 51 W. Va. 493, 41 S. E. 924- 

12. Casey v. Gibbons, 136 Cal. 
368, 68 Pac. 1032; Mullendore v. 
Wertz, 75 Ind. 431, 39 Am. Rep. 155; 
Williams v. Scott, 83 Ind. 405; Wil- 
son V. Foot, II Mete. (Mass.) 285; 
Agnew V. Merritt, 10 Minn. 308. 

In some jurisdictions, however, 
knowledge of the relation will be 
presumed as against the original 
payee of a note, or, as the rule has 
been stated, " where the note re- 
mains with the original payee, he is 
presumed to know the relation the 
parties to the note sustain to each 
other." Ward v. Stout, 2)^ 111. 399. 
See also Champion v. Robertson, 4 
Bush (Ky.) 17; Stovall v. Adair, 9 
Okla. 620, 60 Pac. 282. But this pre- 
sumption is not conclusive. Hall v. 
Rogers, 114 Ga. 357, 40 S. E- 250. 



PRINCIPAL AXD SURETY. 



51 



E. To Snow Incapacity. — A surety defending upon the ground 
of mental incapacity has the burden of proving the fact." 

3. On Cosurety. — Where one party to a contract claims contri- 
bution from another party as cosurety he has the burden of estab- 
lishing this relationship unless it appears from the face of the in- 
strument.^* 

II. PRESUMPTIONS. 

1. All Signers Presumed To Be Joint Obligors. — All the signer.^; 
of a bond or note are presumed to be joint obligors and makers if 
there is nothing on the face of the instrument to show any differ- 
ent understanding or agreement. ^^ 

2. Effect of Addition of Word " Surety." — The addition of the 
word "surety" after a party's name raises a presumption that he 
is in fact a surety; but this is not conclusive.^" 

3. Consent to Alteration. — It is presumed that sureties consented 
to an alteration of a bond made before delivery and consisting mere- 
ly in the affixing of seals to the instrument.^' 

4. Presumption as to Time of Defalcation. — Where an oflficer 
holds for two terms, it will be presumed against him and his sure- 
ties that he had in his possession at the commencement of his sec- 
ond term all moneys for which he was accountable.^^ 



13. Gaar, Scott & Co. v. Hulse, 
90 111. App. 548. 

14. Thus the burden of proving a 
party, apparently an indorser, to be a 
cosurety, is upon the party alleging 
it. Nurre v. Chittenden, 56 Ind. 462 ; 
Sweet V. McAllister, 4 Allen 
(Mass.) 353. 

15. Chandler v. Ruddick, i Ind. 
391; Derry Bank v. Baldwin, 41 N. 
H. 434; Flanagan z: Post, 45 Vt. 
246; Harper v. McVeigh, 82 Va. 751, 
I S. E. 193. 

Order of Signature — Evidence 
of the order in which names were 
signed to a note does not raise any 
presumption of suretyship. Summer- 
hill V. Tapp, 52 Ala. 227. 

16. Lathrop v. Wilson, 30 Vt. 
604. See also Harper's Adm'r. v. 
McVeigh, 82 Va. 751, i S. E. 193. 

17. In Moses v. United States, 166 
U. S. 571, the government refused to 
receive a bond because seals were 
not attached. The bond was again 
presented with seals attached, and 
was accepted. The sureties claimed 
that they had not consented to the 
affixing of the seals. The court 
said: "The sureties were not in a 



position of having secured what they 
wanted by the execution of the in- 
strument in the manner originally 
shown ; nor was the government in 
the attitude of asking something more 
of these sureties after they had se- 
cured the benefit for which the paper 
had been executed. As the matter 
stood, when the bond was returned 
to Ilowgate, he was under the same 
obligation to furnish a proper instru- 
ment thai he had ever been, and for 
all that appears, preciselj' the same 
reason for signing the instrument 
originally still existed with the sure- 
tics at the time when the seals were 
placed upon the bond." And it was 
held that a presumption of consent 
arose. To the same effect, see How- 
gate z: United States, 3 App. D. C. 
277. See also article " Alteration 
01" Instruments," Vol. I, p. 809. 

18. In an action on a bond given 
for tlie second term, tiiis presumption 
will be indulged, and it devolves upon 
ihe surety to show that a defalcation 
occurred during the first term. 
Bernhard z: City of Wyandotte, 33 
Kan. 465, 6 Pac. 617. 

It is presumed that money not ac- 

Vol. X 



52 PRINCIPAL AND SURETY. 

5. Presumption as to Amount of Payment. — It will be presumed 
that a surety who pays a note or judgment pays the amount due 
at the time of payment.^^ 

6. Presumption as to Extension of Time. — A. Taking Note. 
The mere taking of a promissory note by the creditor from the 
debtor does not of itself create a .presumption of an extension of 
time, so as to release sureties.^" 

B. Payment of Interest in Advance. — The acceptance of in- 
terest in advance beyond the date of the maturity of the obligation 
may give rise to an inference of an agreement for an extension, 
but it raises no such presumption of law.-^ 

7. Presumption of Cosuretyship. — Where parties appear to be 
sureties, they will be presumed to be cosureties for purposes of 
contribution.^^ 

III. MODE OF PROOF. 

1. Statute of Frauds. — A. In General. — Contracts of surety- 
ship, being within the statute of frauds, cannot be proved by 
parol.-^ 

B. Does Not Apply to Agreement for Contribution. -- The 
statute of frauds does not apply to an agreement for contribution 
between the sureties themselves.-'* 

2. Parol Evidence. — A. To Vary or Contradict Writing. 
a. Generally Not Admissible. — Parol evidence is not admissible to 

counted for by a principal is still in dence." Gerguin v. Boone (Tex. 

his possession. Fidelity & Deposit Civ. App.), 77 S. W. 630. 

Co. V. Mobile Co., 124 Ala. 144, 27 22. Houck v. Graham, 106 Ind. 

^°c^^- • 1 u^ .. Ar 1 TV 195. 6 N. E. 594, 55 Am. Rep. 727; 

See article Officers. Vol. IX. Warner v. Price, 3 Wend. (N. Y.) 

^?; ,?P"o^ "''• ^'''■'■^'' 5^ ^°'^^' ^°' 397; Knopf V. Morel, in Ind. 5/0. 

II N. w. 708. ;j'^ ^ : 

The fact that a note is indorsed „„ r^ tt 1 „ r c- -i 

by the payee to the surety '• for value ^3. 29 Car. II ch. 3, § 4. Srnii ar 

received." together with Its possession statutes are m force in all of the 

by the surety, will give rise to the states. ^^ 

presumption that the full amount due See articles Guaranty, Vol. VI, 

was paid by him. Waldrip v. Black, " Parol Evidence." Vol. IX, and 

74 Cal. 409, 16 Pac. 226. " Statute of Frauds." 

20. Hutchinson v. Woodwell. 107 24. Reasons. — " The statute of 
Pa. St. 509. frauds does not apply, because the 

21. " The presumption arising parol agreement related to the obli- 
from interest being accepted in ad- gations of the indorsers inter sesc, 
vance is a presumption of fact, not and not to a promise to pay the debt 
of law, and no reference whatever of another; also, so far as there was 
ought to be made to it in the charge any promise it was one implied by 
where there is other evidence to law * * * from the mutual re- 
consider on the issue. Its mention lation of the parties when it was es- 
in such a situation is apt to confuse tablished that they were co-sureties." 
and mislead, and, besides, it is to Weeks v. Parsons, 176 Mass. 570. 58 
some extent on the weight of evi- N. E. 157. 

Vol. X 



PRINCIPAL AND SURETY. 



53 



vary or contradict a written contract of suretyship.-^ Such evidence 
is not admissible to contradict or vary a written agreement by the 
creditor for an extension of time.^® 

b. But Strangers May Shozu the Real Facts. — This rule is con- 
fined in its operation to the parties to the contract, their representa- 
tives, and those claiming under them.-'^ 

B. To Explain or Interpret Instrument. — a. Generally Ad- 
missible. — Parol evidence of surrounding facts is admissible to 
explain or interpret a written contract of suretyship.-^ But a party 
cannot testify directly as to his undisclosed intent.-^ 

b. That Act Was Included in Contract. — Parol evidence is ad- 
missible to show that a certain act was one of those included in 
the contract of suretyship where the terms of the instrument are 
general or ambiguous.'^'* 

C. To Show Instrument To Be Void. — a. Fraud or Mistake. 
Parol evidence is of course admissible to show that a bond was 
forged, or was altered after signature f'^ and where it will not work 
injury to a third party, it is admissible to show mistake.''*- 



25. United States. — Boffinger v. 
Tuyes, I20 U. S. 198. 

Arizona. — Albuquerque Nat. Bank 
V. Stewart, 3 Ariz. 293, 30 Pac. 303. 

Indiana. — Trentman v. Fletcher, 
100 Ind. 105. 

Kansas. — Brenner v. Luth, 28 
Kan. 581. 

Louisiana. — Ferguson v. Glaze. 12 
La. Ann. 667. 

Maryland. — Criss v. Withers, 26 
Md. 553. 

Missouri. — State v. Potter, 63 Mo. 
212, 21 Am. Rep. 440. 

Pennsylvania. — Arnold v. Cessna, 
25 Pa. St. 34- . 

Parol evidence is not admissible 
to show that a surety's liability was 
to be measured by another contempo- 
raneous agreement. Domestic Sew. 
Mach. Co. V. Webster, 47 Iowa, 357. 
Thus parol evidence is not admissible 
to show that one surety signed as 
such after the instrument had been 
executed by the principal and his 
other surety, on condition that plain- 
tiff would extend time of payment, 
and would bring no suit thereon 
within that period. Schroer v. Wes- 
sell. 89 111. 113. 

For a discussion of the rule, its 
limits and exceptions, see article 
" Parol Evidence," Vol. IX. 

26. Fellows v. Prentiss, 3 Denio 
(N. Y.) 512, 45 Am. Dec. 484; Halli- 
day V. Hart, 30 N. Y. 474. In the 



latter case the surety was not al- 
lowed to show the real consideration 
for a writing which he contended was 
an extension of time. 

27. " Unless both parties are 
bound, either is at liberty to show, 
by parol, a different set of facts from 
that set out in the writing." Bank 
of California v. White, 14 Nev. 373. 

28. Slater v. Demorest Spoke & 
Handle Co., 94 Ga. 687, 21 S. E. 715; 
Thomas v. Truscott, 53 Barb. (N. 
Y.) 200. 

In Wussou V. Hase, 108 Wis. 382, 
84 N. W. 433, the court said : " It 
was the duty of the court to place 
itself in the situation of the parties 
to the instrument, by means of ex- 
trinsic evidence, in order that the 
true meaning of the language used 
misiit be ascertained." 

29. Slater v. Demorest Spoke & 
Handle Co., 94 Ga. 687, 21 S. E. 715. 

See article "Intent," Vol. VII. 

30. For instance, where a bond in- 
dcnmifies against partnership lia- 
bilities, parol evidence is admissible 
to show that a certain liability was 
tliat of the partnership. Warriner v. 
Mitchell, 128 Pa. St. 153, 18 Atl. ZZ7- 

31. , In town of Barnet v. Abbott, 
53 Vt. 120, this was assumed. See 
articles " Fraud," Vol. VI, p. 16, and 
" Parol Evidence," Vol. IX. 

32. In United States Fid. & Guar. 
Co. V. Siegmann, 87 JMinn. 175, 91 N. 

Vol. X 



54 



PRINCIPAL AND SURETY. 



h. Usury. — Parol evidence is admissible to show a contempora- 
neous agreement to pay usurious interest, although the instrument 
is valid on its face.''"' 

D. To Show Reai. Character of Parties. — a. Admissible 
JVhen Facts Do Not Appear on Face of Instrument. — When a 
bond or note does not show on its face who are principals and who 
are sureties, parol evidence is admissible to establish the character 
of the parties.^* The fact of suretyship may be established, as 



W. 473, a party was allowed to show 
by parol that by mistake he signed in 
the place for sureties instead of in 
the place for witnesses. 

33. Roe V. Kiser. 62 Ark. 92. 34 S. 
W. 534. 54 Am. St. Rep. 288 (ap- 
plied to surety). 

See also Levy v. Brown, 11 Ark. 
16; Lear v. Yarnel, 3 A. K. Marsh. 
(Ky.) 420; Allen v. Hawks, 13 Pick. 
(Ma.ss.) 79; Hammond v. Hopping, 
13 Wend. (N. Y.) 505. 

The rule is based upon the ground 
that the evidence renders thi^ note 
void. The parol evidence rule as- 
sumes that the instrument has a legal 
existence, and is valid. See articles 
" Bills and Notes," Vol. H, " Parol 
Evidence," Vol. IX, and " Usury." 

34. United States. — American Sr 
General Mort. & Inv. Corp. v. Mar- 
quam, 62 Fed. 960. 

Connecticut. — Case v. Spaulding, 
24 Conn. 578. 

Georgia. — Higdon f. Bailey. 26 
Ga. 426. 

Illinois. — Kennedy v. Evans, 31 
111. 258. 

Indiana. — Dickerson v. Ripley 
County, 6 Ind. 128, 63 Am. Dec. 373; 
Harris v. Pierce. 6 Ind. 162; Nurre v. 
Chittenden, 56 Ind. 462. 

Maryland. — Owings v. Baker, 54 
Md. 82. 

Massachusetts. — Carpenter v. 
King, 9 Mete. 511. 43 Am. Dec. 405; 
M'Gee v. Prouty, 9 Mete. 547; Weeks 
V. Parsons. 176 Mass. 570. 58 N. 
E. 157. 

Minnesota. — Metzner v. Baldwin, 
II Minn. 92. 

Missouri. — Foster 7'. Wallace, 2 
Mo. 231 ; Garrett v. Ferguson's 
Adm'rs.. 9 Mo. 125; Mechanics' Bank 
V. Wright, 53 Mo. 153; Scott v. 
Bailey, 23 Mo. 140. 

New Hampshire. — Davis v. Bar- 
rington. 30 N. H. 517; Derry Bank 
T'. Baldwin, 41 N. H. 434. 

Vol. X 



Nezv Jersey. — Paulin z>. Kaighn. 
27 N. J. L. 503. 

Neiv York. — Neimcewicz v. Gahn, 
3 Paige, 614; Artcher v. Douglass, 5 
Denio, 509; La Farge v. Herter. 11 
Barb. 159; Hubbard t'. Gurney. 64 
N. Y. 457 ; Knowles v. Cuddeback, 
19 Hun 590. 

North Carolina. — Welfare z: 
Thompson, 83 N. C. 276; Cole v. Fox, 
83 N. C. 463. 

Ohio. — Champion v. Griffith. 13 
Ohio. 228. 

Oklahoma. — Stovall v. Adair. 9 
Okla. 620. 60 Pac. 282. 

Rhode Island. — Otis v. Von 
Storch, 15 R. I. 41, 23, Atl. 39. 

Soutli Carolina. — Smith v. Tunno, 
I McCord. Eq., 443, 16 Am. Dec. 102; 
Anderson v. Peareson, 2 Bailey 107. 

Tennessee. — White v. Brown. 4 
Humph. 292. 

Texas. — Burke v. Cruger. 8 Tex. 
66, 58 Am. Dec. 102. 

I'^irginia. — Williams v. Macatee's 
Trustee, 86 Va. 681, 10 S. E. 1061. 

Washington. — Harmon v. Hale, i 
Wash. T.^422, 34 Am. Rep. 816. 

IVest Virginia. — Creigh v. Hed- 
rick. 5 W. Va. 140. But see Kritzer 
V. Mills. 9 Cal. 21 ; Aud v. Magruder» 
10 Cal. 282. 

In Emmons v. Overton. 18 B. Mon. 
(Ky.) 643. it was urged that such 
evidence contradicted the writing, but 
the court said: "This argument is 
however founded on a misconception 
of the legal effect of the writing upon 
which the action was brought. It 
does not state the character or rela- 
tive position of the obligors, nor does 
the law. in the absence of such state- 
ment, conclusively fix the character 
they occupy. No statement or recital 
in the writing is contradicted by 
showing that one of the obligors is 
surety and the other is principal. In 
the absence of all testimony on the 
subject the law regards them as 



PRINCIPAL AND SURETY. 



55 



between the makers of an instrument, by evidence of the acts and 
transactions between the parties.-^^ 

b. As Between Obligor's. — This rule clearly applies as between 
the obligors themselves.'"' And a collateral contract between them- 
selves may be shown by parol.^^ 

c. To Show An Indorser To Be a Surety. — It is competent to 
show that a party apparently liable only as an indorser is in real- 
ity a surety. ^^ 

d. When Writing Expressly States Character of Parties. — But 
where the writing expressly states who are principals and who are 
sureties, parol evidence of their true character is not admissible 
against the creditor.^* 



equally liable, inasmuch as the writ- 
ing itself does not furnish any 
grounds for discrimination. But if 
this legal construction of the writing 
should be permitted to have the ef- 
fect contended for, the statute in 
favor of sureties would become, in a 
great measure, a dead letter, except 
in those cases where the note stated 
on its face who was principal and 
who was surety." 

The rule applies in law as well as 
in equity. Brown v. Stewart, 4 Md. 
Ch. 87; Davis 7'. Mikell, i Freem. 
Ch. (Miss.) 548. 

35. Strong 7'. Baker, 25 Minn. 442. 
One claiming to be a surety may 

show that his co-obligor was indebted 
to him. in corroboration of his testi- 
mony that the note was given in or- 
der to enable the other to pay him. 
Harvey v. Osborn, 55 Ind. 535. 

36. Summcrhill ?•. Tapp, 52 Ala. 
227: Hunt V. Chambliss, 7 Smed. & 
M., (Miss.) 532; Nims v. Bigelow, 44 
N. H. 376; Robison v. Lyle, 10 Barb. 
(N. Y.) 512; Oldham z'. Broom, 28 
Ohio St. 41. 

" Such evidence is not ofTered to 
contradict or vary the contract con- 
tained in the writing, but simply to 
show the actual relations subsisting 
between the joint makers of the note 
and the real nature of the contract 
between them. Such facts are not a 
part of the contract and do not af- 
fect its terms, but are wholly col- 
lateral to it.'" Bulkeley v. House, 62 
Conn. 459, 26 Atl. 352, 21 L. R. A. 247. 

37. Vary v. Norton. 6 Fed. 808: 
Mansfield v. Edwards. 136 Mass. 15, 
49 Am. Rep. i : Williams f. Glenn, 
92 N. C. 253, 53 Am. Rep. 416; Mont- 



gomerv r-. Page, 29 Or. 320. 44 
Pac. 689. 

As, where there is a parol agree- 
ment to divide the loss (Phillips z: 
Preston, 5 How. [U. S.] 278; Ross 7: 
Espy. 66 Pa. St. 481, 5 Am. Rep. 394). 
or as to method of enforcement 
(Wright r. Latham. 7 N. C. 298). 

'■ Evidence is always admissible be- 
tween principal and surety to show 
what their equitable rights toward 
each other are." In re May, 16 Fed. 
Cas. No. 9.327. 

As between sureties, parol evidence 
is admissible to show limitation of 
liability. Myers v. Fry, 18 111. 
App. 74. 

38. Indiana. — Nurre v. Chitten- 
den, 56 Ind. 462; Browning v. Mer- 
ritt. 61 Ind. 425; Kealing v. Van- 
sickle. 74 Ind. 529, 39 Am. Rep. loi. 

Maine. — Smith v. Morrill, 54 Me. 
48; Coolidge v. Wiggin, 62 Me. 568. 

Massacliusi'tts. — Weston v. Cham- 
berlin, 7 Cush. 404; Clapp v. Rice, 
13 Gray 403, 74 Am. Dec. 639; 
Sweet v. McAllister, 4 Allen 353. 

.Michigan. — Farwell v. Ensign. 66 
Mich. 600. 33 N. W. 734. 

Nczi.' Hampshire. — Paul v. Rider, 
58 N. H. 119. 

Nczv York. — Easterly v. Barber. 
66 N. Y. 433. 

North Carolina. — Love 7'. Wall. 8 
N. C. 313 

l^cniiont. — Barrows v. Lane. 5 
Vt. 161, 26 Am. Dec. 293. 

IVisconsiu. — Kiel v. Choate. 92 
Wis. 517, 67 N. W. 431, 53 Am. St. 
Rep. 9^6. 

39. Sprigg v. Bank of Mt. Pleas- 
ant. 10 Pet. (U. S.) 257; s. €., 14 Pet. 
(U. S.) 201. affirming i McLean, 384. 
22 Fed. Cas. No. 13,257; McMillan v. 

Vol. X 



56 



PRINCIPAL AND SURETY. 



e. Obligee's Knowledge of Relation of Parties. — As against the 
creditor, it must be shown that he had knowledge of the fact that 
certain obHgors were in reality sureties; and of course knowledge 
may be shown by parol.*" 



Parkell, 64 Mo. 286; McColktm v. 
Boughton. 132 Mo. 601, 30 S. W. 
1028, 33 S. W. 476, 34 S. W. 480, 35 
L. R. A. 480; Pintard v. Davis, 21 N. 
J. L. 632. 47 Am. Dec. 172; Wingate 
V. Blalock, 15 Wash. 44, 45 Pac. 663. 

In Exeter Bank v. Stowell, 16 N. 
H. 61, 41 Am. Dec. 716, the defend- 
ants said, in a note signed by all of 
them, "We jointly and severally all 
as principals promise;" parol evi- 
dence to contradict this statement was 
held inadmissible. 

" The temptations to and the prob- 
abilities of perjury would be largely 
increased in litigation, and no good or 
useful purpose would be served to 
offset the difficulties and the wrongs 
that would arise under a rule allow- 
ing the imperfect memory of 
biased witnesses to overturn the 
solemn contract, in writing and 
under seal, of the parties at the time 
the obligation was entered into. 
There can never be any necessity for 
the real principal to sign as surety, 
or the real surety as principal; and 
the safer and better method, in the 
matter of bonds, where the recital of 
the obligation of each signer is con- 
tained in the body of the instrument, 
is to hold the obligors, and each of 
them, to the full measure of the lia- 
bility each has therein solemnly as- 
sumed, and to allow no change in 
such liability upon the faith of oral 
testimony, subject as it is to all the 
imperfections and the faults that hu- 
man nature is heir to. The rule that 
parol proof cannot be given to con- 
tradict or vary the terms of a writ- 
ten instrument should be rigidly en- 
forced in the case of bonds, if at all." 
Coots V. Farnsw'orth, 61 Mich. 497, 
28 N. W. 534. 

In Louisiana, under a statute for- 
bidding a wife from being a surety 
for her husband, it is held that the 
wife, sued as principal, may show by 
parol evidence that she was only a 
surety, although it would expressly 
contradict her declarations in an au- 
thentic act. " When certain persons, 
such as married w'omen, are inca- 

Vol. X 



pacitated from contracting engage- 
ments of a particular kind, any stip- 
ulations obtained from them con- 
trary thereto, are in fraudem legis ; 
and if it were not open to them to 
show the real nature of the transac- 
tion, the laws made for their protec- 
tion would have no effect." Macarty 
V. Roach, 7 Rob. (La.) 357. See also 
Pilie V. Patin. 8 Mart. N. S. (La.) 
692. Waggaman v. Zacharie, 8 Rob. 
(La.) 181. 

40. United States. — American & 
General Mortg. & Inv. Corp. v. Mar- 
quam, 62 Fed. 960. 

Alabama. — Summerhill v. Tapp, 
52 Ala. 227. 

Georgia. — Howell v. Lawrenceville 
Mfg. Co., 31 Ga. 663; Stewart v. 
Parker, 55 Ga. 656. 

Indiana. — Davenport v. King. 63 
Ind. 64; Arms v. Beitman, y2> Ind. 
85; Mullendore v. Wertz, 75 Ind. 
431, 39 Am. Rep. 155; Albright v. 
Griffin. 78 Ind. 182; Lamson v. First 
Nat. Bank, 82 Ind. 21 ; Tharp v. 
Parker, 86 Ind. 102. 

Iowa. — Murray v. Graham, 29 
Iowa, 520; Morgan v. Thompson, 60 
Iowa. 280, 14 N. W. 306. 

Kentiictiy. — Neel v. Harding, 2 
IMetc. 247. 

Massachusetts. — Wilson v. Foot, 
II Mete. 285. 

Minnesota. — Agnew v. Merritt, 10 
Minn. 308. 

Missouri. — Patterson r. Brock, 14 
Mo. 473. 

Nezv Jersey. — Kaighn v. Fuller, 
14 N. J. Eq. 419. 

New York. — Neimcewicz z'. Gahn, 
3 Paige 614; Elwood z>. Deifendorf, 
5 Barb. 398. 

OI?Ia!ioina. — Stovall v. Adair. 9 
Okla. 620) 60 Pac. 282. 

Texas. — Roberts v. Bane, 32 Tex. 
385; Bonnell v. Prince, 11 Tex. Civ. 
App. 399, 32 S. W. 855. 

Vermont. — Sanford v. Norton. 17 
Vt. 285.. 

Washington. — Harmon v. Hale, i 
Wash. T. 422, 34 Am. Rep. 816 ; Cul- 
bertson v. Wilcox, 11 Wash. 522, 39 
Pac. 954- 



PRIXCIPAL AND SURETY. 



57 



E. Obligee's Knowledge of Conditional Signing. — To de- 
feat his liability a surety may show by parol the obligee's knowledge 
of an agreement by the principal to secure other sureties before 
delivering the instrument." 

3. Admissions. — A. Of Principal. — a. In General. — (l.) Ad- 
missible When Part of Res Gestae. — The admissions of the principal 
made in connection with and relating to the matter of suretyship, 
are competent to establish his liability, and incidentally the liability 
of the surety.*- But such admissions to be competent against the 



As to the requisite of knowledge in 
the payee of a bill or note, see article 
Bills and Notes, Vol. II, p. 468. 

A cashier of the plaintiff bank, 
appointed after a note was given, may 
be asked what his information was as 
to the relation of the parties. Young 
T. New Farmers Bank. 19 Ky. 1309, 
43 S. W. 473. 

41. Caudle v. Ford, 24 Ky. L. Rep. 
1764. 72 S. W. 270. 

42. England. — WxAdXtion v. Mel- 
ton, 10 Barn. & C. 317, 21 Eng. C. 
L. 84.. 

United States. — Ingle 
I Cranch C. C. 152, 13 
No. 7.042. 

Alabama. — Walling v. 
County, 126 Ala. 326, 2i 
Bondurant v. State Bank, 7 Ala. 830 ; 
Walker v. Forbes, 25 Ala. 139. 60 
Am. Dec. 498; Casky v 
Ala. 314; Dumas v. 
Ala. 484. 

Arkansas. — State v. 
Ark. 276. 

California. — Placer Co. 
son, 45 Cal. 12. 

Connecticut. — Davis v. Kingsley, 
13 Conn. 285. 

Georgia. — Dobbs v. Justices, 17 
Ga. 624; Stephens v. Crawford, i Ga. 
574. 44 Am. Dec. 680., 

Illinois. — Guarantee Co. of North 
America v. Mutual Bldg. & Loan 
Ass'n., 57 111. App. 254; Schureman 
V. People, 55 111. App. 629; Magner 
V. Knowles. 67 111. 325. 

Indiana. — Parker z'. State, 8 
Blackf. 292. 

Kentucky. — Pendleton z'. Bank of 
Kentucky, i T. B. Mon. 171. 

Louisiana. — Reynes v. Zacharie, 
10 La. 127. 

Maryland. — State z'. McKee. ir 
Gill & J. 378; McShane z: Howard 
Bank, 73 Md. 135, 20 .A.tl. 776< 10 L. 
R. A. 552. 



". Collard, 
Fed. Cas. 

Morgan 
' So. 433; 



Haviland, 13 
Patterson, g 

Newton, 33 



Dicker- 



Massacliuscfts. — Amherst Bank zj. 
Root, 2 Mete. 522; Bank of Brighton 
z\ Smith, 12 Allen 243, 90 Am. Dec. 
144; Williamsburg City F. Ins. Co. v. 
Frothingham, 122 I\Iass. 39; McKim 
z: Blake, 139 Mass. 593, 2 N. E. 157; 
Sigourney v. Drury, 14 Pick. 387; 
Singer Alfg. Co. z). Revnolds, 168 
Mass. 588, 47 N. E. 438, '60 Am. St. 
Rep. 417. 

Minnesota. — Whitaker v. Rice, 9 
Minn. i. 

Mississippi. — Montgomery v. Dil- 
lingham, 3 Smed. & I\I. 647; State v. 
Stewart, 36 Miss. 652. 

Missouri. — Blair v. Perpetual Ins. 
Co., 10 j\Io. 559, 47 Am. Dec. 129; 
State v. Grupe. 36 Mo. 365 : Union 
Sav. Ass'n. v. Edwards, 47 ]\Io. 445 ; 
Cheltenham Co. v. Cook, 44 AIo. 29. 

Nczv Hampshire. — Hinkle\' v. 
Davis, 6 N. H. 210. 25 Am. Dec. 457. 

Nezv York. — Eichhold v. Tiffany, 
20 Misc. 681, 46 N. Y. Supp. 534. 

Pennsylvania. — Deardorf v. Hil- 
debrand, 2 Rawle 226; Com. v. Ken- 
dig, 2 Pa. St. 448; Bachman v. Kil- 
Hnger, 55 Pa. St. 414; Respublica v. 
Davis, 3 Yeates, 128, 2 Am. Dec. 366. 

Rhode Island. — Atlas Bank v. 
Brownell. 9R. I. 168, 11 Am. Rep. 231. 

South Carolina. — State z\ Teague, 
9 Rich. 149. 

Texas. — Barry v. Screwman's 
Ass'n.. 67 Tex. 250, 3 S. W. 261 ; 
Lasater z: Purcell Mill & Elevator 
Co.. 22 Te.x. Civ. App. 33. 54 S. 
W. 425. 

Vermont. — Wilson v. Green, 25 
Vt. 450, 60 Am. Dec. 279, Richardson 
7'. Hitchcock. 28 Vt. 757, 

Virginia. — Walker v. Pierce, 21 
Gratt. 722; Smith z'. Governor. 2 

Rdll. 220. 

Reasons — "The legal presumption 
is that no one will falselv charge him- 
self. .A.gainst him it would be the 
highest and best evidence; and 

Vol X 



58 



PRINCIPAL AND SURETY. 



surety must have been made during the transaction/-^ Admissions 
made after the act complained of are not competent ;** nor are those 



against his sureties it must be, at 
least, prima facie evidence. For they 
arq his privies in law; and whatever 
will in law charge him, will charge 
them." Treasurers v. Bates, 2 Bailey 
(vS. C.) 362. 

Illustrations. — Where part of the 
principal's duty is to account, admis- 
sions made by him during the course 
of an accounting are competent 
against the surety. Hall v. United 
States Fidelity & Guaranty Co., 77 
Minn. 24, 79 N. W. 590; Thompson 
r. Commercial Union Assur. Co. 
(Colo. App.), 78 Pac. 1073. Like- 
wise, admissions made during the ex- 
amination of the principal's books, 
while the employment still existed, 
are competent. Lancashire Ins. Co. 
V. Callahan, 68 Minn. 277, 71 N. W. 
261, 64 Am. St. Rep. 475. An admis- 
sion of a trustee of an unexecuted 
trust to the effect that the fund had 
been received is competent against 
his sureties. Yates v. Thomas, 35 
Misc. 552, 71 N. y. Supp. 1 1 13. 

Upon the last day of his employ- 
ment, but before the employment had 
ceased, the principal admitted an em- 
bezzlement. It was held competent 
against his surety. Guarantee Co. of 
No. Am. V. Phenix Ins. Co., 124 Fed. 
170, 59 C. C. A. 376. 

An admission of a principal in a 
sworn answer filed by him in a pro- 
ceeding against him is competent 
against his sureties. Gilmer v. 
Baker, 24 W. Va. 72^ 

43. United States. — United 
States V. Cutter, 2 Curt. 617, 25 Fed. 
Cas. No. 14,911. 

Alabama. — Walker v. Forbes, 25 
Ala. 139, 60 Am. Dec. 498; Bondur- 
ant V. State Bank, 7 Ala. 830; Lewis 
V. Lee Co., 72 Ala. 148; Dumas v. 
Patterson^ 9 Ala. 484. 

Arkansas. — State v. Newton, 33 
Ark. 276. 

Colorado. — Jenness v. City of 
Black Hawk, 2 Colo. 578. 

Georgia. — Dobbs v. Justices, 17 
Ga. 624. 

Illinois. — Kirkpatrick v. Howk, 80 
111. 122; Guarantee Co. of N. Am. v. 
Mutual B. & L. Ass'n, 57 111. App. 254. 

Indiana. — Lane v. State, 27 Ind. 

Vol. X 



108; Hotchkiss V. Lyon, 2 Blackf. 
222; Shelby v. Governor, 2 
Blackf. 289. 

Kansas. — Lee 7'. Brown, 21 
Kan. 458. 

Kentucky. — Pollard v. Louisville 
C. & L. R. Co., 7 Bush. 597 ; Com. v. 
Brassfield, 7 B. Mon. 447 ; Lucas v. 
Chamberlain, 8 B. Mon. 276. 

Maine. — Foxcroft v. Nevens, 4 
Greenl. 72. 

Minnesota. — Hall v. United States 
Fidelity & Guar. Co., 77 Minn. 24. 79 
N. W. 590. 

Missouri. — Blair v. Perpetual Ins. 
Co., 10 Mo. 559, 47 Am. Dec. 129; 
Union Sav. Ass'n v. Edwards, 47 
Mo. 445. 

New York. — Ayer v. Getty, 46 
Hun 287; Eichhold v. Tiffany, 20 
Misc. 681, 46 N. Y. Supp. 534; Hatch 
V. Elkins. 65 N. Y. 489; Tenth Nat. 
Bank z>. Darragh, i Hun iii ; Horn 7'. 
Perry, 14 Hun 409. 

North Carolina. — State v. FuUen- 
wider, 26 N. C. 364. (But a differ- 
ent rule applies as to public officers 
in this state as a result of statute. 
State V. Woodside, 30 N. C. 104.) 

Ohio. — Stetson v. City Bank, 2 
Ohio St. 167. 

Pennsylvania. — Nikols v. Jones, 
166 Pa. St. 599, 31 Atl. 329. 

Tennessee. — Snell v. Allen, i 
Swan, 208; VVlieeler v. State, 9 Heisk. 
393_; White v. German Nat. Bank, g 
Heisk. 475 ; Trousdale v. Philips, 2 
Swan 384. 

Virginia. — Hodnett v. Pace, 84 
Va. 873, 6 S. E. 217. See also cases 
cited in following note. 

Accordingly, a statement made be- 
fore the transaction is not admissible. 
Dexter v. Clemans, 17 Pick. (Mass.) 
175. Cheltenham Co. v. Cook, 44 
Mo. 29. 

44. Bocard v. State, 79 Ind. 270; 
Lee V. Brown, 21 Kan. 458; Cassitys 
v. Robinson, 8 B. Mon. (Ky.) 279; 
Hatch r. Elkins, 65 N. Y. 489; Stet- 
son z: City Bank, 2 Ohio St. 167; 
Wheeler v. State, 9 Heisk. (Tenn.) 
393; Trousdale v. Philips, 2 Swaa 
(Tenn.) 384. 

In Knott V. Peterson, 125 Iowa, 
404. loi N. W. 173, a surety on a 



PRINCIPAL AND SURETY. 



59 



ruade after the expiration of the term for which the surety is 
bound. *^ 

(2.) Receipts. — Receipts given by the principal for money paid to 
him are admissible against his sureties.*" 

(3.) Guardian's Inventory. — An inventory filed by a guardian in 
the course of his official duties is admissible against the sureties on 
his bond.''^ 

(4.) Administrator's Settlement. — A settlement by an administrator 
is admissible against his sureties.''® 

(5.) Account Books. — Account books of the principal debtor are 
admissible against the surety. ■*'•* In some cases, however, only such 
entries as were made in the course of official duty are admissible 
against sureties.*^" 

b. Officers. — (1.) When Admissible. — Admissions of officers, to 
be admissible against their sureties, must be made in the perform- 
ance of some official act or duty connected with the transaction 



liquor dealer's bond agreed to pay 
all damages resulting from the un- 
lawful sale of liquors by the princi- 
pal. The principal illegally sold 
liquor to the plaintiff's husband and 
caused his death. It was held that 
declarations made by tlie principal 
the day after the death were not com- 
petent against the surety. 

Declarations of an employe, made 
after an embezzlement and relating 
thereto, are not competent against a 
surety. Wieder v. Union Surety & 
Guar. Co., 42 Misc. 499, 86 N. Y. 
Supp. 105. 

In Ayer v. Getty, 46 Hun (N. Y.) 
287, admissions of a lessee principal 
made as a witness in the course of a 
trial of an action for the rent, more 
than six months after the termination 
of the lease, were held incompetent. 

45. Hotchkiss v. Lyon, 2 Blackf. 
(Ind.) 222; Blair v. Perpetual Ins. 
Co., ID Mo. 559, 47 Am. Dec. 129. 

Confession of a defaulting agent of 
a railroad company made after his 
discharge are not admissible against 
his surety. Pollard v. Louisville, C. 
& L. R. Co., 7 Bush (Ky.) 597. 

To the same affect, that admissions 
after termination of service are not 
generally competent, see Chelmsford 
Co. V. Demarest. 7 Gray (Mass.) i ; 
Tenth Nat. Bank v. Darragh. 1 Hun 
III, 3 Thomp. & C. 138; McFarlane 
V. Howell (Tex. Civ. App.), 43 S. 

W. 315.. 

Admissions of an administrator 
made after his discharge are not com- 



petent against his sureties. Lacoste 
V. Bexar County, 28 Tex. 420. 

As to admissions of public officers 
made after the expiration of their 
terms of office, see post, notes 52, 53. 

46. People v. Huson, 78 Cal. 154. 
20 Pac. 369; Magner v. Knowles. 67 
111. 325. Sooy V. State, 41 N. J. L. 
394. See also Singer IVIfg. Co. v. 
Coon, 9 Misc. 465, 30 N. Y. Supp. 232. 

As to the admissibility and effect of 
receipts in general, see article " Pay- 
-MENT," Vol. IX. 

47. State v. Stewart, 36 Miss. 652. 

48. Wycough v. State. 50 Ark. 
102, 6 S. W. 598. See also article 
" Executors and .Administrators," 
Vol. V. p. 457. nn. 58, 59. 

49. McKim v. Blake, 139 Mass. 
593. 2 N E. 157; Strong V. Baker. 25 
Minn. 442; ISIetropolitan Life Ins. 
Co. V. Callon. 4 N. Y. Supp. 833; 
State V. Teague. 9 Rich (S. C.) 149 
(cash book). 

Such books are admissible although 
the entries therein were made by 
clerks. Williamsburg City Fire Ins. 
Co. V. Frothingham, 122 Mass. 391. 

As to the admissibility of account 
books in general, see article " Books 
oi" Account," Vol. II. 

50. Middleton v. Melton, 10 B. & 
C. 317, 21 Eng. C. Law 84. Entries 
were admitted in Goss v. Watlington, 
3 Brod. & Bing. (Eng.) 132; Whit- 
nash V. George, 8 B. & C. (Eng.) 
556; Town of Union v. Bcrmes. 44 
N. J. L. 269, 43 Am. Rep. 369. 

Vol. X 



60 



PRINCIPAL AND SURETY. 



out of which the breach of the condition is alleged to have arisen.^^ 
It follows, of course, that admissions made after the term of office 
has expired are not generally competent;^' although they may be 
so when the bond secures the performance of a subsequent act/^ 

(2.) Official Reports. — In an action against sureties on an official 
bond, the official entries and reports made by the principal are a 
part of the res gestae, and competent evidence, not only of the facts 
affirmatively appearing therein, but also of such other facts and 
circumstances bearing upon the liability of the sureties as are legit- 



51. Evans v. State Bank, 13 Ala. 
787 ; Dennis v. Chapman, 19 Ala. 29, 
54 Am. Dec. 186 (using the language 
of the text) ; Lewis v. Lee County. 
7S Ala. 148; Dobbs v. Justices. 17 Ga. 
624; State V. Bird, 22 Mo. 470. See 
article " Officers," Vol. IX. 

In Shelby v. Governor, 2 Blackf. 
(Ind.) 289, it was held that the ac- 
knowledgment of the sheriff that he 
had collected the money on an order 
of sale could not be proved to sustain 
an action for the money against the 
surety, unless his acknowledgment 
was; made whilst the sheriff was act- 
ing officially in relation to the receipt 
of the money, the court saying : " If 
Weathers, while officially acting in 
relation to the receipt of this money, 
stated that he had received it, such 
statement would form a part of the 
res gestae, and would be evidence to 
prove the act of receiving; and would 
therefore be admissible against his 
sureties. But declarations made by 
him at any subsequent period, would 
have no connection with the act, and 
could not be introduced as evidence of 
the act, so as to bind his sureties ; for 
it is his acts, and not his admissions 
or declarations, for which his sure- 
ties are bound. As the statement of 
Weathers, that he had collected this 
money, is not connected by the testi- 
mony, with any act of his relative to 
this order of sale, or any money col- 
lected by him on this order, it was 
inadmissible as evidence against the 
defendant in this case." 

In North Carolina a different rule 
prevails, as a result of statute. It is 
provided : " That in actions brought 
upon the official bonds of sheriffs, 
and other public officers, etc. when it 
may be necessary to prove any official 
default of any of the said officers, 
any receipt or acknowledgment of 
such officer, or any other matter or 

Vol X 



thing which, by law would be ad- 
missible, and competent, for, or to- 
ward proving the same, against such 
officer himself, shall, in like manner, 
be admissible and competent, against 
his sureties." See State v. Woodside, 
30 N. C. 104. 

52. Dennis v. Chapman, 19 Ala. 
29, 54 Am. Dec. 186; Com. v. Brass- 
field. 7 B. Mon. (Ky.) 447; Pollard 
7'. Louisville C. L. R. Co., 7 Bush 
(Ky.) 597; Chelmsford Co. v. 
Demarest, 7 Gray (Mass.) i; City of 
St. Louis V. Foster, 24 Mo. 141; 
Tompkins Countv Sup'rs. v. Bristol, 
15 Hun (N. Y.) '116. 

53. In Jenness v. City of Black 
Hawk, 2 Colo. 578, " the undertaking 
of the sureties was that their prin- 
cipal should duly account for and 
pay over all moneys which should 
come to his hands by virtue of his 
office. The nature of the official 
duty, and the character and purpose 
of the suretyship, imply, if the words 
of the condition do not, indeed, im- 
port, that a full and formal statement 
of all moneys received should be 
rendered in writing. But in the na- 
ture of things, it cannot have been 
intended by the parties that such ac- 
count should necessarily, and at all 
events, be rendered before the quali- 
fication of the officer's successor." 
According!}', admissions made during 
the performance of this subsequent 
act were held competent. See also 
Lewis v. Lee County. 7^ Ala. 148; 
Wyche v. Myrick, 14 Ga. 584. The 
same rule applies as to treasurers of 
private corporations. Father Mat- 
thew Soc. z'. Fitzwilliams, 12 Mo. 
App. 445 ; s. c., 84 jMo. 406. 

In Placer County v. Dickerson, 45 
Cal. 12, receipts given b}- an officer 
after his legal term had expired but 
while he was still a de facto officer 
were admitted. 



PRINCIPAL AND SURETY. 



61 



imately inferable therefrom.^'' And their public books are admis- 
sible although they have been kept by a clerk.^^ 

(3.) Transcript of Accounts. — A transcript of accounts of a depart- 
ment of the United States government with a contractor is admis- 
sible against his sureties.^® 

(4.) Conclusiveness. — There has been a wide difiference of opinion 
as to the conclusiveness of official reports, or entries made by pub- 
lic officials in the ordinary course of official duty. There is a re- 
spectable line of authority holding that such entries and reports 
are conclusive both u]ion the official making them and upon the 
sureties upon his official bond."' But the weight of authority is 
that they are only prima facie evidence against the surety.^^ 



54. State v. Newton, 3;^ Ark. 276; 
Stem V. People, 102 111. 540; Nolley 
V. Callaway County, 11 Mo. 447; 
Northumberland v. Cobleigh, 59 N. 
H. 250; Tompkins County v. Bristol, 
99 N. Y. 316, I N. E. 878; Lewislon 
V. Hofifman, 8 Misc. 583. 29 N. Y. 
Supp. 1 1 19; Barry v. Screwmen's 
Ass'n., 67 Tex. 250, 3 S. W. 261. See 
also cases cited in succeeding notes. 

An account required by law to be 
filed by a public official, is prima facit 
evidence of the amounts received by 
him, both against himself and against 
the sureties on his bond ; but die 
sureties may show the account to be 
erroneous. Rodes v. Com., 6 B. 
Mon. (Ky.) 359. In the case cited 
it was admitted as a part of the res 
gestae. 

Accounts rendered to the govern- 
ment by a revenue officer are admis- 
sible against his sureties. United 
States V. Gaussen, 19 Wall. (U. 
S.) 198. 

55. " Public officers are always 
presumed regularly and duly to per- 
form the duties imposed on thorn Iiy 
law ; therefore when books which tlie 
law requires them to keep are of- 
fered in evidence, all intendments are 
in their favor; it is presumed the en- 
tries were regularly made at the 
proper time and in accordance with 
the facts; consequently, if any irregu- 
larity, mistake or fraud is claimed lo 
have been committed, the burden of 
establishing it is on the party rely- 
ing upon it." State ?'. Rhoades. 6 
Nev. 352. See Cassady v. Trustees 
of Schools, 105 111. 560, and article 
" Officers," Vol. IX. 

56. Rev. Stat. §886; Moses v. 
United States, 166 U. S. 571. 



57. lUinois. — Morley v. Town of 
Metamora. 78 111. 394, 20 Am. Rep. 
266; City of Chicago v. Gage, 95 111. 
593. 35 Am. Rep. 182; Cawley v. 
People, 95 111. 249; Longan v. Tay- 
lor, 130 111. 412, 22 N. E. 745; Doll 
V. People, 48 111. App. 418. 

Indiana. — State v. Grammer, 29 
Ind. 530; Modisett v. Governor, 2 
Blackf. 135 (but see note 58). 

Iowa. — Boone Co. v. Jones, 54 
Iowa, 699, 2 N. W. 987. 7 N. W. 155. 
2,7 Am. St. Rep. 229. 

A sheriff's return on an execution 
was held conclusive on his sureties in 
Bagot V. State, 2>2) I"fl- 262. 

In Virginia it has been held that a 
settlement of a public officer is con- 
clusive upon his sureties if they had 
notice of it, but otherwise only prima 
facie evidence. Supervisors of 

Washington Co. v. Dunn, 27 Gratt. 
(Va.) 608. 

The argument advanced by the 
leading case of Baker v. Preston, 
Gilmer (Va.) 235, is. that as a judg- 
ment against the principal would 
conclude his sureties, so ought also 
the evidence on which the judgment 
is rendered conclude them. But see 
IMunford v. Overseers, 2 Rand. 
(Va.) 313; Craddock v. Turner's 
Adni'r. 6 Leigh (Va.) 116. 

Individual Books — But the indi- 
vitlual hook., of the officer are not 
conclusive. Schu reman x'. People, 55 
111. .-Vpp. 629. 

58. United 5/fl/r.y. — United Slates 
7'. Eckford, I How. 250; United 
States 7'. Boyd, 15 Pet. 187; J. r., 5 
How. 29; Supreme Conn. Cath. 
Knights of Am. v. Fid. & Cas. Co.. 
63 Fed. 48, II C. C. A. 96, 22 U. S. 
App. 439- 

Vol. X 



62 



PRIXCIPAL AXD SURETY. 



(5.) Entries Themselves a Breach of Bond. — Such entries, however, 
may in themselves constitute such fraud as would make the sure- 
ties liable under a bond for the faithful discharge of the duties of 
the office.^^ 

(6.) Corporation Officers. — Reports of an officer of a corporation 
are merely prima facie evidence against his sureties.®'' 

c. Ill Action Against Principal and Surety Jointly. — In some 
jurisdictions, when principal and surety are jointly sued on a joint, 
or a joint and several obligation, any admission or declaration 
made by the principal, which is competent evidence against him, is 
also competent against the surety.*^ 



Arkansas. — Arkansas v. Newton, 
33 Ark. 277. 

Indiana. — Ohning v. City of 
Evansville, 66 Ind. 59 ; State v. Mock, 
21 Ind. App. 629, 52 N. E. 998 {dic- 
tum ) ; Nichols' Adm'r v. State. 65 
Ind. 512. 

Mississippi. — Mann v. Yazoo City, 
31 Miss. 574. 

Missouri. — NoUey v. Callaway 
Count>% II Mo. 447. 

Nebraska. — Van Sickle v. Buffalo 
Co., 13 Neb. 103. 13 N. W. 19, 42 
Am. Rep. 753; Albertson v. State, 9 
Neb. 429. 2 N. W. 742, 892; State v. 
Paxton, 65 Neb. no, 90 N. W. 983. 

Ncii.' York. — Bissell v. Saxton. 66 
N. Y. 55. 

Texas. — Broad v. City of Paris, 
66 Tex. 119, 18 S. W. 342. 

59. United States v. Girault. 11 
How. (U. S.) 22. 

" Under bonds obligating the suret>' 
for the faithful discharge of official 
duty by his principal, the evidence of- 
fered to show fabricated entries or 
false reports may show such official 
dereliction or fraud as in itself would 
constitute a breach of the obligation 
of the bond." Supreme Coun. Cath. 
Knights of Am. v. Fid. & Cas. Co., 
22 U. S. App. 439, 63 Fed. 48, u C. 
C. A. 96. 

60. Lewison v. Hoffman. 8 ^lisc. 
583. 29 N. Y. Supp. 1 1 19. 

61. Indiana. — Parker v. State, 8 
Blackf. 292; Chapel v. Washburn, 11 
Ind. 393. But see Pierce v. Golds- 
lierry. 35 Ind. 317. 

Massachusetts. — Amherst Bank v. 
Root. 2 Mete. 541. 

Mississippi. — ^lontgomery v. Dil- 
lingham. 3 Smed. & M. 647. 

Missouri. — Union Sav. Ass'n. v. 
Edwards, 47 Mo. 445. 

Vol. X 



Texas. — Lasater v. Purceil Mill & 
El. Co., 22 Tex. Civ. App. 2>2>, =14 S. 

W. 425. 

Vermont. — Brown v. Plunger, 16 
Vl 12. 

Declarations of the principal as to 
alleged admissions of the surely are 
incompetent. Root Music Co. v. 
Caldwell 54 Iowa 432. 6 N. W. 695. 

The changes in the law allowing 
parties to testify, and allowing several 
judgments against joint defendants 
has not changed this rule. Singer 
Mfg. Co. V. Reynolds, 168 Mass. 588. 
47 N. E. 438. 60 Am. St. Rep. 417. 

Reasons — " As the suit is against 
several joint contractors or joint 
obligors a recovery- to the san. ex- 
tent must be had against all or none, 
unless one or more of the defendants 
interposes a personal defense, such 
as infancy, coverture, or bankruptcy." 
Lewis V. Lee County, 73 Ala. 148. 

" Where a surety was sued sepa- 
rately, there would be no difficulty in 
applying the rule (if it was a rule) 
against the admissibilit>', as against 
sureties, of admissions of the prin- 
cipal subsequently made; but where 
the suit is against the principal and 
sureties jointly, the difficulty becomes 
obvious. The admission of the prin- 
cipal is admissible against himself; 
how can it be rejected as against the 
surety; the plaintiff must recover 
against all or none. And the fact of 
severing in pleading makes no differ- 
ence as to this." Atlas Bank v. 
Brownell. 9 R. I. 168. 11 Am. 
Rep. 231. 

Cases Contra. — This exception is 
not law in Alabama. Lewis v. Lee 
Countv. 73 Ala. 148. See also Daniel 
V. Ballard. 2 Dana (Ky.) 296. 



PRIXCIPAL AXD SURETY 



63 



d. Admission of Deceased Principal. — Admissions of a prin- 
cipal, since deceased, are competent against his sureties, although 
not made at the time of the transaction f- but admissions of an ad- 
ministrator of the principal are incompetent." 

e. Declarations As To Character of Other Parties. — A declara- 
tion of one part}' to the contract that others are principals is not 
admissible against them." 

f. Declarations of Hearsay. — Declarations of the principal as to 
declarations and admissions of the surety are clearly hearsay and 
inadmissible.®'^ 

g. Effect of Admissions. — Admissions of a principal, when com- 
petent, are prima facie evidence against his sureties.** The suret\- 
is not confined to the impeachment of the admissions, but may 
show any facts which tend to a contrary- conclusion.*^ 

B. Of Surety. — Admissions and declarations of one surety- are 
not competent to charge a cosurety ;** nor are such admissions 
competent to charge the principaL*' 

C. Of Creditor. — An admission of non-indebtedness by the cred- 
itor is prima facie but not conclusive e\-idence in favor of the sure- 



62. Middleton v. Melton, lo Bam. 
& C. (Eng.) 317, 21 Eng. C. L. 84; 
Drabek z: Grand Lodge, 24 111. App. 
-82 ; Hinkley z: Davis, 6 N. H. 210. 25 
-'\m. Dec. 457; Peck z: Gilmer. 20 N. 
C. 249; State r. Taegiie, 9 Rich. (S. 
C) 149- 

Of course, when the admissions 
■would be competent if the principal 
were living tliey are equally compe- 
tent after his death. Walker v. 
Pierce. 21 Gratt (Va.) 722. 

63. This is because there is no 
privitj' between the administrator and 
the suretj-. Harrison v. Heflin, S4 
-Ala. 552. 

64. Barkley v. Bradford, 18 Kv. 
L. Rep. 725. 38 S. W. 432. And it 
lia$ been held that an admission of a 
fact which is immaterial as to the 
party making it is not competent as 
to others: as where the declarations 
relate to the time of a defalcation 
for which he was clearly liable. Lane 
:•. State, 27 Ind. 108. 

65. Root Mu>ic Co. f. Caldwell. 
54 Iowa. 432, 6 N. W. 695. 

66. Stephens r. Crawford, i Ga. 
574. 44 .\m. Dec. 680: State :•. Mc- 
Kee, II Gill & J. (Md.) 37S: State 
f. Stewart. 36 Miss. 6^2: Treasurers 
r. Bates, 2 Bailey, (S.~C.) 362. See 



also to tr.e eitect that adrr.iss'.ons ci 
trie pnnc:p2_ are r.ot c:r.;.".:s:vc ujcn 
the surety. Mc Shane z: Howard 
Bank, 73 Md. 135. 20 -\tL 776. 10 L 
R- -'^- 552: Labaree z: Klosterman. 33 
Xeb. 150. 49 X. W. II02L 

67. Books and records kept by a 
state treasurer, and statements made 
by him and filed in the office of the 
auditor are prima facie evidence 
against his sureties. "They are not 
conclusive, however, nor are the 
sureties confined to the impeachment 
of such books, records and state- 
ments, but they may show the facts 
as to when such defalcation oc- 
curred, and the amoimt thereoL in 
any way and by any testimony by 
which any other fact would be es- 
tablished." State f. Paxton. 65 Xeb. 
no. 90 X. W. 983. 

" They may show that they were 
made by mistake, or by fraud and col- 
lusion between an insolvent sheriff 
and his creditors." Treasurers r. 
Bates. 2 Bailev (S. C.) 362. 

68. Ver%- r. Watkins. 23 How. (U. 
S.^ 469- 

69. Thurman r. Blankenship-Blake 
Co.. 70 Te.x. 171. 15 S. W. 387- But 
see Chapel z: Washburn. 11 Ind. 393. 

Vol. X 



64 



PRINCIPAL AND SURETY. 



iy.''^ The account books of the obHgee are competent against hinr 
when relevantJ^ 

4. Judgments. — A. Against Principal. — a. Under Bonds of 
General Indemnity. — (1.) Generally Not Admissible. — In most juris- 
dictions a judgment against a principal is evidence against a surety 
only of the fact of its recovery, and not of the facts it assumes 
to decide.'^^ An exception is made when the surety has under- 
taken to be responsible for the result of a suit." 

(2.) Record of Bankruptcy Proceedings. — The record of bankruptcy 
proceedings against the maker of a note is not admissible against 
a surety on the note.^* 

(3.) View That Judgments Are Prima Facie Evidence. — In some juris- 
dictions, however, the recovery of a judgment or decree against 
the principal on a bond, although the sureties were not parties to 
the suit, is prima facie binding upon the sureties.''^ 



70. In Moses v. United States, i66 
U, S. 571, this was held as to a cer- 
tificate of non-indebtedness given by 
the government to an army officer. 
See also Soule v. United States. 100 
U. S. 8. To the effect that an admis- 
sion of the obligee is competent in 
favor of the surety, see Mennet v. 
Grisard, 79 Ind. 222. 

71. Citizens Nat. Bank v. Wilson, 
121 Iowa 156, 96 N. W. 727- In this 
case entries in the obligee's books 
were admitted to show that a new 
note was accepted as payment, there- 
by extending time. 

72. California. — Pico v. Webster, 

14 Cal. 202, 73 Am. Dec. 647. 
Minnesota. — -American Bldg. & 

Loan Ass'n. v. Stoneman, 53 Minn. 
212, 54 N. W. 1115. 

New Jersey. — DeGreiff v. Wilson, 
30 N. J. Eq."'43S. 

New For;^. — Thomas v. Hubbell, 

15 N. Y. 405, 69 Am. Dec. 619, re- 
versing 18 Barb. 9; Kane v. Cortesy, 
100 N. Y. 132, 2 N. E. 874; Jackson 
V. Griswold, 4 Hill 522; Douglass v. 
Rowland, 24 Wend. 35. 

Texas. — Glasscock t'. Hamilton, 62 
Tex. 143. 

Vermont. — Fletcher v. Jackson, 23 
Vt. 581, 56 Am. Dec. 98. 

Wisconsin. — Grafton v. Hinckley, 
III Wis. 46, 86 N. W. 859- 

Reasons. ^. " It is a fundamental 
principle in jurisprudence that every 
man shall have his day in court, and 
shall be heard in his own defense, 
and of this right he may not, under 
the constitution and laws of this state, 

Vol. X 



be deprived. For this reason, judg- 
ment against the principal may never 
foreclose investigation of the surety's 
liability, unless, by virtue of the lat- 
ter's undertaking, he has obligated 
himself directly or by implication to 
be bound thereby." McConnell v. 
Poor, 113 Iowa 133. 84 N. W. 968, 52 
L. R. A. 312. 

" A surety may give notice to his 
principal who owes him this duty to- 
defend him. but it would be a novelty 
if the principal could call in his surety 
who owes no such duty, to defend 
him. * * * ^ surety in a sepa- 
rate and independent instrument is 
no party who could appear and con- 
trol the separate action against his 
principal or appeal from the judg- 
ment. Nor is there a legal privity. 
Privity, says Mr. Greenleaf, § 189. de- 
notes mutual or successive relation- 
ship to the same right of property. 
In none of the classes enumerated, 
as in estate, in blood, and in law, 
does the case of a surety fall in ref- 
erence to a creditor's action. It is the 
right to represent, which creates 
privity in law as between ancestor 
and heir, decedent and administrator. 
&c., but clearly the principal, in an 
action against himself alone, cannot 
represent the surety." Giltinan v.- 
Strong, 64 Pa. St. 242. 

73. McConnell v. Poor. 113 Iowa. 
133. 84 N. W. 968, 52 L. R. A. 312. 

74. Kennedy v. Moore. 17 S. 

C. 464. 

75. Georgia. — Bradwell v. Spen- 
cer, 16 Ga. 578; Bennett v. Graham,. 



PRINCIPAL AND SURETY. 



65 



A judgment against an insurance company is prima facie evi- 
dence in a suit on a bond executed by the company to indemnify 
policy holders.'^*' 

It must first be shown that the judgment relates to the subject- 
matter of the suretyship."^ 

b. Under Bonds To Abide the Judgment. — (1.) In General, 
There is a line of cases in which the judgment is held conclusive, 
and this independently of the general holding in other cases. These 
cases are those in which the court interprets the contract as stipu- 
lating to abide by the judgment. '^^ 

(2.) Obligation To Satisfy Judgment. — Where a surety's obligation 



71 Ga. 211; Weaver v. Thornton, 63 
Ga. 655. 

Iowa. — Charles v. Haskins, 14 
Iowa 471, 83 Am. Dec. 378. 

Kentucky. — Com. v. Bracken, 17 
Ky. L. Rep. 785. 32 S. W. 609. 

Louisiana. — Ferguson r. Glaze, 12 
La. Ann. 667; Macready v. Schenck, 
41 La. Ann. 456, 6 So. 517; White- 
head 7K Woolfolk, 3 La. Ann. 42. 

Maryland. — Parr v. State, 71 Md. 
220, 17 Atl. 1020; Jenkins v. State. 
76 Md. 255, 23 Atl. 608. 790. 

Michigan. — People v. Mersereau, 
74 Mich. 687. 42 N. W. 153. 

Missouri. — State v. Thornton, 8 
Mo. App. 27. 

New York. — Pierpoint v. McGuire, 
13 Misc. 70, 34 N. Y. Supp. 150. 

Ohio. — O'Conner v. State, 18 
Ohio 225. 

Tennessee. — Barksdale v. Butler, 
6 Lea 450. See also Gambill v. 
Campbell, 12 Heisk. 737. 

" To avoid its effect, the surety 
may show collusion and fraud, that 
the demand has been paid, or that 
there is a clerical mistake in entering 
up the judgment." Berger v. Wil- 
liams, 4 McLean 577, 3 Fed. Cas. 
No. 1,341 ; Charles v. Haskins, 14 
Iowa, 471, 83 Am. Dec. 378. 

In a suit on a bail-bond, a return 
of non est is prima facie evidence of 
an avoidance. I Tall t'. White, 27 
Conn. 488. 

76. Union Guaranty & Trust Co. 
V. Robinson, 79 Fed. 420, 24 C. C. A. 
650, 49 U. S. App. 148. This was sup- 
ported upon the authority of City of 
Lowell V. Parker, 10 Mete. (Mass.) 
309, where Shaw. C. J., said : " When 
one is responsible, by force of law or 
by contract, for the faitliful perform- 
ance of the duty of another, a judg- 



ment against that other for a failure 
in the performance of such duty, if 
not collusive, is prima facie evidence, 
in a suit against the party so respon- 
sible for that other." 

77. New Haven v. Chidsey, 68 
Conn. 397, 36 Atl. 800; Roberts v. 
Woven Wire Mattress Co., 46 Md 
374. See also Bradford v. Freder- 
ick, loi Pa. 445. 

The judgment should disclose with 
certainty that it was founded upon 
the negligent or other improper con- 
duct of the principal. Lake Drum- 
mond C. & W. Co. v. West End 
Trust & S. D. Co., 131 Fed. 147. 

78. " There can be no doubt, that 
where a surety undertakes for the 
principal, that the principal shall do 
a specific act, to be ascertained in a 
given way. as that he will pay a 
judgment, that the judgment is con- 
clusive against the surety; for the 
obligation is express that the prin- 
cipal will do this thing, and the judg- 
ment is conclusive of the fact and 
e.xtcnt of the obligation. ... It 
is upon this ground that the liability 
of bail is fixed absolutely by the 
judgment against the principal. But 
this ruld rests upon the terms of the 
contract. In the case of official 
bonds, the sureties undertake, in gen- 
eral terms, that the principal will 
perform his official duties. They do 
not agree to be absolutely bound by 
any judgment obtained against him 
for official misconduct, nor to pay 
every such judgment. They are only 
held for a breach of their own ob- 
ligations. Pico V. Webster, 14 Cal. 
202, 73 Am. Dec. 647. See also Rid- 
dle V. Baker, 13 Cal. 295; Conner v. 
Reeves, 103 N. Y. 527. 

Vol. X 



66 



PRINCIPAL AND SURETY. 



is to satisfy a judgment, the record of the judgment is conclusive 
evidence of his habihty.^^ Instances of such obHgations are bonds 
for the release of attachments,®" bonds to stay executions, and in- 
junction bonds. ®^ 

(3.) Official Bonds (A.) In General. — In some jurisdictions sure- 
ties on ofificial bonds are held impliedly to undertake to pay judg- 
ments rendered against their principal, and accordingly such judg- 
ments are held admissible and are at least prima facie evidence. ^^ 
On the other hand, it is held elsewhere that there is no such agree- 
ment, and accordingly such judgments are not admissible. ^^ 

(B.) Effect of Notice. — In some jurisdictions it is said that judg- 
ments in such cases are conclusive when the surety had notice of 
the proceeding, but only prima facie when he did not have notice.** 



79. California.— K\M\t v. Baker, 
13 Cal. 295. 

Georgia. — Mitchell v. Toole, 63 
Ga. 93. 

Louisiana. — Fusz v. Trager. 39 La. 
Ann. 292, I So. 535 ; Jones v. Doles, 
3 La. Ann. 588. 

Michigan. — People v. Laning, 73 
Mich. 284, 41 N. W. 424. 

Mississippi. — Higdon v. Vaughn, 
58 Miss. 572. 

New York. — Barber v. Rutherford, 
12 Misc. Zi' 33 N. Y. Supp. 89, af- 
firming 10 Misc. 784, 30 N. Y. Supp. 
I129; Lee V. Clark, i Hill 56. 

Ohio. — Jaynes v. Piatt, 47 Ohio 
St. 262, 24 N. E. 262, 21 Am. St. 
Rep. 810. 

Thus a judgment rendered on a 
bond given by a defendant in a dis- 
tress warrant or trover proceeding 
is conclusive on a surety. Price v. 
Carlton, 121 Ga. 12, 48 S. E. 721, 68 
L. R. A. 736; Waldrop v. Wolff, 114 
Ga. 610, 40 S. E. 830. 

80. Fusz 7'. Trager. 39 La. Ann. 
292, I So. 535; Jaynes v. Piatt, 47 
Ohio St. 262. 24 N. E. 262, 21 Am. 
St. Rep. 810. See. however, Larti- 
gue V. Baldwin, 5 Mart. O. S. (La.) 
193- 

81. A surety on an injunction 
bond is concluded by the judgment 
dismissing the action. Shenandoah 
Nat. Bank v. Read, 86 Iowa 136, 53 
N. W. 96. See also McAllister v. 
Clark, 86 111. 236 ; Lothrop v. South- 
worth, 5 Mich. 436; Towle v. Towle, 
46 N. H. 431. 

82. " The nature of the contract 
in official bonds is that of a bond of 
indemnity to those who may suffer 

Vol. X 



damages by reason of the neglect, 
fraud or misconduct of the officer. 
The bond is made with the full 
knowledge and understanding that 
in man}' cases such damages must 
be ascertained and liquidated by an 
action against the officer for whose 
acts the sureties make themselves 
liable; and the fair construction of 
the contract of the sureties is, that 
they will pay all damages so ascer- 
tained and liquidated in an action 
against their principal." Stephens v. 
Shafer, 48 Wis. 54. 3 N. W. 835. 33 
Am. Rep. 793; McConnell v. Poor, 
113 Iowa 133, 84 N. W. 968, 52 L. R. 
A. 312. See also Moses v. United 
States. 166 U. S. 571 ; Com. v. Gould, 
118 Mass. 300. 

83. "The surety on the sheriff's 
official bond has not agreed that his 
principal shall pay any specific judg- 
ment, or that his principal shall pay 
any judgment whatever. And hence 
the production of the judgment shows 
no liability. He has agreed that the 
principal shall faithfully perform his 
office. But the judgment against the 
plaintiff does not, as against the sure- 
ty, show that the sheriff did not so 
perform." People v. Russell, 25 Hun 
(N. Y.) 524. See also Loewer's 
Gambrinus Brew. Co. v. Lithaner, 43 
Misc. 683, 88 N. Y. Supp. 372. See 
article "Officers," Vol. IX. 

84. Bridgeport Ins. Co. v. Wilson, 
34 N. Y. 275; People v. White, 28 
Hun (N. Y.) 289; State v. Colerick, 
3 Ohio 487; Westerhaven v. Clive. 5 
Ohio 136; State v. Jennings, 14 Ohio 
St. 7Z. 



PRINCIPAL AND SURETY. 



67 



Elsewhere it is held that the judgment is conclusive whether notice 
is given or not.^^ 

(C.) Sheriffs and Constables. — This conflict extends to bonds of 
sheriffs and constables. In some jurisdictions a judgment against 
a sheriff or constable is admissible against his sureties and is prima 
facie evidence f^ in others it is conclusive f and in still others it 
is not admissible at all.®^ 

(4.) Bonds of Executors, Administrators and Guardians. — (A.) In 
General. — Bonds of executors, administrators and guardians are 
of the same class, and judgments against them are conclusive evi- 
dence against their sureties.®^ 

(B.) Obligation To Account. — Where the duty guaranteed by the 
sureties is that an executor or guardian will account before any 
court of competent jurisdiction, a decree of such a court in rela- 
tion thereto is conclusive upon the surety;^" but only such decrees 



85. Rice v. Wilson, 129 IMich. 520, 
89 N. W. 336. 

86. City of Lowell v. Parker. 10 
Mete. (Mass.) 309. 43 Am. Dec. 436 
(but see Tracy v. Goodwin, 5 Allen 
(Mass.) 409, where the evidence is 
said to be conclusive) ; Treasurers 
V. Temples, 2 Spears Law (S. C.) 
48; State V. Cason, 11 S. C. 392; 
Stephens v. Shafer. 48 Wis. 54, 3 
N. W. 83s, 33 Am. Rep. 793. 

Even a judgment by confession has 
been admitted. Atkins v. Baily, 9 
Yerg. (Tenn.) iii. 

Judgments of amercement were 
held prima facie evidence against 

But the surety may take advantage 
sureties in Faj' v. Edmiston, 25 Kan. 
439; Graves v. Bulkley, 25 Kan. 249, 
37 Am. Rep. 249. 

87. Tracy z'. Goodwin, 5 Allen 
(Mass.) 409, holding the case of 
City of Lowell f. Parker, 10 Mete. 
(Mass.) 309, to be a mere dictum on 
the point of conclusiveness. See also 
Dennie v. Smith, 129 Mass. 143; 
Evans V. Com., 8 Watts. (Pa.) 398; 
Eagles V. Kern, 5 Whart. (Pa.) 144. 
of any defense personal to himself. 
Masser v. Strickland, 17 Scrg. & R. 
(Pa.) 354, 17 Am. Dec. 668. 

88. Pico V. Webster, 14 Cal. 202, 
73 Am. Dec. 647 ; Governor z: Shelby, 
2 Blackf. (Ind.) 26. 

A judgment on an indemnity bond 
given to a sheriff is not admissible 
against sureties. I^Iartin z'. Buffaloe, 
128 N. C. 305, 38 S. E. 902, 83 Am. 
St. Rep. 679. 



89. " The duty they have assumed 
is, that their principal will pay on 
demand all debts ascertained by 
judgment of a court of law against 
him in his capacity as administrator, 
if the estate be solvent." Heard z'. 
Lodge, 20 Pick. (Alass.) 53, 58. 

" The law has placed the sureties 
of executors and administrators on 
a different footing from other sure- 
ties and co-obligors in general. They 
are not liable on the administration- 
bond, until a devastavit is judicially 
established ; and, as the question of 
a devastavit is all that is controverted 
in the suit against the executor or 
administrator, the decision is con- 
clusive not only against the execu- 
tor or administrator, but against the 
sureties also." Governor v. Shelby, 
2 Blackf. (Ind.) 26. 

90. ////«o/.y. — Nevitt z: Wood- 
burn, 160 111. 203, 43 N. E. 385, 52 
Am. St. Rep. 315. 

Mai)ie. — Judge of Probate v. 
Quimby, 89 Me. 574, 36 Atl. 1049. 

Nczc York. — Douglass v. Ferris, 
138 N. Y. 192, 33 N. E. 1041, 34 
Am. St. Rep. 435 ; Gerould z: Wilson, 
16 Hun 530, affirmed 81 N. Y. 573. 

Ohio. — Braiden z'. Mercer, 44 Ohio 
St. 339. 7 N. E. 155- 

Pennsylvania. — Garber v. Com., 7 
Pa. St. 265 ; Com. v. Julius, 173 Pa. 
St. 322, 34 Atl. 21. 

JVisconsin. — Meyer v. Barth, 97 
Wis. 352. 72 N. W. 748, 65 Am. St. 
Rep. 124. 

Vol. X 



68 



PRINCIPAL AND SURETY. 



are admissible as are made against the guardian personally.''^ 

(C.) Decree Settling Account. — A decree of distribution and an 
order settling an account are conclusive upon an executor and his 
sureties.®^ Likewise, a decree settling a guardian's account is con- 
clusive upon his sureties.**^ But such a decree is not conclusive as 
to defenses personal to the surety.*^* 

(D.) Judgments in Favor of Third Parties. — A judgment against 
an administrator is conclusive upon the sureties on his official bond.'**^ 
Likewise, a judgment against a guardian for an amount due his 
ward is conclusive upon his sureties.®^ 

(E.) Decree Removing Guardian. — A decree removing a guardian 
is conclusive as against his sureties.^^ 

(F.) Prima Facie Evidence in Some Jurisdictions. — In some juris- 
dictions, however, judgments and decrees against executors, admin- 
istrators and guardians are only prima facie evidence against sure- 
ties.9« _ . 

(5.) Bonds of Assignees for Creditors. — Upon the same principle 
which e^overns in cases of administrator's bonds, it has been held 



91. McDonald v. People, I2 Colo. 
App. 98, 54 Pac. 863. 

The sureties on an administrator's 
bond are not bound by a decree 
settling accounts of his successor. 
Reithe-r v. Murdock, 135 Cal. 197, 
67 Pac. 784. 

92. Martin v. Tally, 72 Ala. 23; 
Jones V. Ritter's Adm'r., 56 Ala. 270; 
Treweek v. Howard, 105 Cal. 434, 
39 Pac. 20; Irwin v. Backus, 25 Cal. 
214, 85 Am. Dec. 125 ; State v. Done- 
gan, 83 Mo. 374, affirming 12 Mo. 
App. 190; Dix V. Morris, 66 Mo. 
514. See also Crook v. Newborg, 
124 Ala. 479, 27 So. 432, 82 Am. St. 
Rep. 190. 

An order of payment, made upon 
settlement of accounts, is conclusive 
on the sureties. State v. Creus- 
bauer, 68 Mo. 254. See also Ralston 
V. Wood, 15 111. 159, 58 Am. Dec. 
604. 

An order directing the payment of 
an allowance is conclusive. State v. 
James, 82 Mo. 509. 

93. Ryan v. People, 165 111. 143, 
46 N. E. 206; State V. Hoshaw, 86 
Mo. 193. 

The sureties are concluded by a 
decree finding the amount due. Com. 
V. Julius, 173 Pa. St. 322, 34 Atl. 21 ; 
Shepard v. Pebbles, 38 Wis. 2>72- 

94. Martin v. Tally, 72 Ala. 23. 

95. McCalla v. Patterson, 18 B. 
Hon. (Ky.) 201; Hobbs v. Middle- 

Vol. X 



ton, I J. J. Marsh. (Ky.) 176. See 
also Brown v. Pike, 74 N. C. 531. 

96. Brooks v. People, 15 111. App. 
570; Badger v. Daniel, 79 N. C. 2,72. 

97. Deegan v. Deegan, 22 Nev. 
185, 2,7 Pac. 360, 58 Am. St. Rep. 
742. See Gravett v. Malone, 54 
Ala. 19. 

98. Florida. — May v. May, 19 
Fla. 2,72,. 

Georgia. — Bennett v. Graham, 71 
Ga. 211; Bradwell v. Spencer, 16 
Ga. 578. 

Louisiana. — Verret v. Belanger, 6 
La. Ann. 109; Canal & Banking Co. 
v. Brown, 4 La. Ann. 545. 

Missouri. — State v. Rosswaag, 3 
Mo. App. II, State v. Engelke, 6 
Mo. App. 356. 

South Carolina. — Ordinary v. Car- 
lile, I McMull. Law, 100 ; Ordinary 
V. Wallace, l Rich. L., 507; but in a 
later report of this case, found in 2 
Rich. L., 460, the court said: " It cer- 
tainly was, in the beginning, stretch- 
ing legal principles as far as they 
would bear, to hold that it was only 
prima facie evidence." 

A confession of judgment by an 
administrator has been held to be 
prima facie against his sureties. 
Iglehart v. State, 2 Gill. & J. 
(Md.) 235. 

In Annett v. Terry, 35 N. Y. 256, 
it is said that "the sureties are so 
far concluded, by its terms, that they 



PRIXCIPAL AND SURETY. 



69 



that a judgment against an assignee for creditors is conclusive 
on his sureties.^'' 

(6.) Bonds To Protect Against Mechanics' liens, — An undertaking tO 
protect against mechanics' hens has been held to be subject to the 
same rule ;^ but the contrary result has been reached in some juris- 
dictions.- 

(7.) Collusive Judgments. — Judgments suffered collusiveh^ or 
negligently* by the principal are not conclusive upon the surety. 
Thus, where the principal fails to take advantage of the statute of 
limitations, the surety will not be concluded.^ It has been held, 
however, that the surety should seek his relief in equity.*^ 

c. Where Surety Has Been Called Upon To Defend. — Where 
the surety has been called in to defend the action by the principal, 



cannot impeacli it for error or ir- 
regularity by an appeal, on their own 
motion, nor collaterally '" ; and yet 
the judgment was said to be only 
prima facie evidence. 

99. " The duties imposed by law 
upon these two classes of fiduciaries 
are almost exactly similar. Each ad- 
ministers the estate committed to his 
charge, pays the debts, and pays over 
to those entitled the surplus found to 
be due upon his settlement." Na- 
tional Surety Co. v. Arteburn, 23 Ky. 
L. Rep. 281. 62 S. W. 862. See also 
Walsh V. Aliller, 51 Ohio St. 462. 38 
N. E. 381 ; Moulding v. Wilhartz, 169 
111. 422, 48 N. E. 189. 

1. " This contract or obligation 
necessarily contemplated that litiga- 
tion might arise or grow out of the 
enforcement of such claims or me- 
chanics' liens connected with the 
building of the house. It was not 
possible for Nolan and IMcLaughlin 
to become parties to any such litiga- 
tion, or to. in any way, control the 
same. In this respect their position 
was, in no way, different from that 
occupied by a surety in a bail-bond 
in a criminal case or a surety in an 
appeal bond in a civil case. There- 
fore, a fair construction of the under- 
taking leads us to the conclusion that 
Nolan and McLaughlin assumed the 
responsibility and results of a con- 
testation of such suit by their prin- 
cipals, and, so far as the force or ef- 
fect of the judgments is concerned. 
Nolan and McLaughlin must occupy 
the shoes of the Dempsey Bros."' 
McFall V. Dempsey, 43 Mo. .'\pp. 369. 
See also Oberbeck v. Mayer, 59 Mo. 



App. 289; Comstock v. Cameron, 41 
Neb. 814, 60 N. W. 105. 

Such a judgment was held prima 
facie evidence in Ihrig v. Scott, 13 
Wash. 559, 43 Pac. 633 ; LaFayette 
Bldg. Ass'n. V. Kleinhoffer, 40 ]\Io. 
App. 388. 

A default judgment is not con- 
clusiAie. Aeschlimann v. Presby- 
terian Hospital, 165 N. Y. 296, 59 N. 
E. 148. 80 Am. St. Rep. 72^. 

2. State V. Tiedermann, 10 
Fed. 20. 

3. United States. — Berger v. Wil- 
liams, 4 McLean 577, 3 Fed. Cas. 
No. 1,341. 

lozca. — Charles v. Haskins, 14 
Iowa, 471. 83 Am. Dec. 378. 

Maine. — Dane v. Gilmore, 51 
Me. 544- 

Nezo Hampshire. — Great Falls 
Mfg. Co. V. Worster. 45 N. H. no. 

North Carolina. — Parker v. 
Woodside. 29 N. C. 296. 

South Carolina. — Treasurers v. 
Bates, 2 Bailey 362. 

J'ermont. — Parkhurst v. Sumner, 
23 Vt. 538. 56 Am. Dec. 94. 

4. Dawes V. Shed, 15 Mass. 6, 8 
Am. Dec. 80. 

5. Dawes v. Shed, 15 Mass. 6, 8 
Am. Dec. 80. 

6. " If he apprehends any fraudu- 
lent collusion between the parties to 
the decree, his remedy is in chancery 
for relief against the bond. If this 
were not the case — as the action is 
against principal and surety jointly — 
the result would be that Southworth 
would be permitted, under color of 
Cleveland's claim of injury, to reliti- 
gate the matters settled by the de- 

Vol. X 



70 



PRINCIPAL AND SURETY. 



the judgment is conclusive against him/ It must be shown, how- 
ever, that clear notice has been given to the surety f but such no- 
tice need not be in writing, and it may therefore be proved by parol 
evidence.^ Where the surety actually assumes the defense the 
judgment is clearly conclusive.^'' 

d. Where Surety Has Been a Party. — Where the surety has 
been a party to the action, and has filed an answer, a judgment 
therein against the principal is conclusive against him.^^ 

e. Judgments By Confession. — In some jurisdictions judgments 
by confession or default are not admissible against the surety.^^ 
Such a judgment has but the value of a private agreement between 
the principal and his creditors.^^ In some cases, however, such 
judgments have been admitted/* and held to be prima facie e\i- 
dence.^^ 



cree." Lothrop v. Southworth, 5 
Mich. 436. 

7. " The case presents one of the 
exceptions to the general rule that 
no one is bound by a judgment un- 
less he be a party to it, or in privity 
with a party." Hersey v. Long, 30 
Minn. 114, 14 N. W. 508. Se^ also: 

United States. — Lake Drummond 
Canal & W. Co. v. West End Trust 
& S. D. Co., 131 Fed. 147- 

California. — Showers v. Wads- 
worth, 81 Cal. 270, 22 Pac. 663. 

Connecticut. — Waterbury v. 
Waterbury Traction Co., 74 Conn. 
152, 50 Atl. 3. 

Massachusetts. — Train v. Gold, 5 
Pick. 379. 

Missouri. — Stewart v. Thomas, 45 
Mo. 42. 

Nciv York. — Mayor, etc. of New 
York V. Brady, 70 Hun 250, 24 N. 
Y. Supp. 296. 

IVasIiington. — Henry v. Aetna In- 
demnity Co., 36 Wash. 553, 79 Pac. 
42; Friend v. Ralston, 35 Wash. 422, 
77 Pac. 794. 

Of course if the surety, in pursu- 
ance of such notice, takes charge of 
the case, the evidence is clearly ad- 
missible. Great Northern R. Co. v. 
Akeley, 88 Minn. 237, 92 N. W. 959. 
See cases cited post, note 10. 

8. Hersey v. Long, 30 Minn. 114, 
14 N. W. 508. 

9. Hersey ?'. Long, 30 Minn. 114, 
14 N. W. 508; Crawford v. Turk, 24 
Gratt. (Va.) 176. 

10. Jennings v. Sheldon, 44 Mich. 
92, 6 N. W. 96; Reed r. McGregor, 
62 Minn. 94, 64 N. W. 88; Great 

Vol. X 



Northern R. Co. v. Akeley, 88 Minn. 
237. 92 N. W. 959. 

11. Stoops V. Wittier, i Mo. 
App. 420. 

12. Herrick v. Conant, 4 La. Ann. 
276; Allison V. Thomas, 29 La. Ann. 
732 ; Foxcroft v. Stevens, 4 Greenl. 
(Me.) 72; Aeschlimann v. Pres. 
Hospital, 165 N. Y. 296, 59 N. E. 148, 
80 Am. St. Rep. 723. 

13. Allison V. Thomas, 29 La. 
Ann. 732. 

14. Iglehart v. State, 2 Gill. & J. 
(Md.) 235; Picot V. Signiago, 27 Mo. 
125; Niniocks v. Pope, 117 N. C. 315, 
23 S. E. 269 (surety on replevin 
bond bound by compromise judg- 
ment) ; Atkins v. Baily, 9 Yerg. 
(Tenn.) in. 

15. " Can it be affirmed, as a mat- 
ter of law, that the conditions of the 
bond only covered judgments ob- 
tained upon hostile and adverse liti- 
gation, and that no discretion was left 
in the sheriff to consent to a judg- 
ment, although he believed that by so 
doing money would be saved to the 
parties ultimately liable? This we 
think would be a too strict interpre- 
tation of the contract. But at the 
same time to hold that a judgment 
entered by consent of the parties, and 
without notice to or approval by the 
sureties, is, in the absence of proof 
of fraud or collusion, conclusive 
against them, would open the door 
to the perpetration of secret frauds 
and subject sureties to a most hazard- 
ous responsibility, and to the dis- 
cretion and judgment of a third per- 
son, which might seriously imperil 



PRINCIPAL AND SURETY. 



71 



B. In Favor of Principal. — A judgment in favor of the prin- 
cipal is admissible in favor of the surety, and is conclusive.^® 

C. Against Surety. — a. Admissible Against Principal — A 
judgment against a surety is prima facie evidence against the prin- 
cipal. It is conclusive where the principal had notice of the action." 

b. Admissibility Against Cosurety. — A judgment against one 
surety is not admissible in his favor in a suit for contribution against 
another surety, unless the latter had notice of the proceeding, and 
an opportunity to defend.^^ 

5. Awards. — Awards of arbitrators chosen by the principal and 
the debtor are not admissible against the surety, ^^ vmless he has 
agreed to be bound by such a submission.-'' 

6. Statements rendered by Creditor to Debtor. — Statements of 
account rendered by the creditor to the debtor and consented to 
by the latter are admissible to show application of payments as 
against the surety.^^ 

7. Evidence of What Was Said and Done at Time of Contract. 
Evidence of what was said and done at the time of the execution of 
a bond is competent.^^ Such testimony may be used to show that a 



them. * * * We think the rea- 
sonable rule is that a judgment so ob- 
tained is presumptive evidence only 
against the sureties." Conner v. 
Reeves, 103 N. Y. 527. 9 N. E. 439. 
See also Iglehart v. State, 2 Gill & 
J. (Md.) 235.. 

16. "The issue is precisely the 
same in this suit as it was in the 
former one; and the judgment of the 
court of competent jurisdiction is 
conclusive in a second suit between 
the same parties, or their privies, on 
the same question, although the sub- 
ject-matter may be different." State 
V. Coste, 36 Mo. 437, 88 Am. Dec. 148- 

17. Dexter Horton & Co. v. Say- 
ward. 66 Fed. 265. See also Thomas 
r. Beckman, i B. Mon. (Ky.) 29. 
Snider z'. Greathouse, 16' Ark. 72, 63 
Am. Dec. 54; Chipman z'. Fambro, 16 
Ark. 291 ; Bone v. Torry, 16 Ark. 83. 

18. Breckinridge v. Taylor, 5 
Dana (Ky.) no. In this case the 
court said, " Although there was no 
such privity between Taylor and 
Breckinridge as would make the 
record of the suit against the one, 
evidence, per se, against the other — 
still we are of the opinion that, 
Breckinridge being liable over to 
Taylor for a portion of whatever he 
was compelled to pay, there was that 
kind of relation between them which 



would have given to Breckinridge 
the right to defend the suit against 
Taylor, and therefore, such as to 
make the record of that suit evidence 
against him, if he had such actual 
notice of the pendency of the suit as 
might have enabled him to make a 
full and proper defense on the trial 
of its merits." See also Kramph's 
Exrx. 7'. Hatz's Exrs., 52 Pa. St. 525. 
A somewhat broader rule seems to 
be laid down in Cobb v. Haynes, 8 

B. Mon. (Ky.) isf. 

Such evidence was permitted in 
Leak V. Covington, 99 N. C. 559. 6 
S. E. 241, and held to be prima facie. 

19. Simonton t'. Boucher, 2 WaslL 

C. C. 473, 22 Fed. Cas. No. 12.877; 
Beall V. Beck, 3 Har. & McH. 
(Md.) 242. 

20. Binsse v. Wood, ^7 N. Y. 526. 
Where the terms of the contract 

provide for submission and the sure- 
ty takes an active part in the pro- 
ceedings, he is bound by the award. 
Hostetter v. City of Pittsburgh, 107 
Pa, St. 419. 

21. While Sowing Mach. Co. v. 
Fargo, 51 Hun 636, 3 N. Y. Supp. 494. 

22. Sureties may testify as to con- 
versations at the time a bond was 
signed, to the effect that the bond 
was not to be used unless another 
signed it, when the creditor had con- 

Vol. X 



72 



PRINCIPAL AND SURETY. 



bond was delivered conditionally. But it has been held that such 
evidence is not admissible against the obligee when not brought 
home to him.^^ 

8. Habits of Alleged Surety. — Evidence of the habits of busi- 
ness of an alleged surety, as to becoming surety, is not admissible.-* 

9. Financial Condition of Parties. — Evidence of the pecuniary 
embarrassment of the principal is generally incompetent to show 
his default ; but under special circumstances, as where he is shown 
to have commingled money promiscuously, it may be admitted. ^^ 
Evidence of the financial condition of a surety is incompetent upon 
an issue as to consideration.-® 

10. Recitals. — A recital in a mortgage that one of the parties 



structive notice by the insertion of 
the name of the other surety. Such 
evidence is competent not only as 
part of the res gestae, but as defining 
the obligation which by the delivery 
of the incomplete instrument the 
sureties were willing to undertake. 
People V. Sharp, lo Detroit Leg. N. 
21/, 94 N. W. 1074. To the same ef- 
fect see Benton County Sav. Bank f. 
Boddicker, 117 Iowa 407, 90 N. W. 
822. See also in support of the text 
State V. Gregory, 132 Ind. 387, 31 N. 
E. 952; Blaney v. Rogers, 174 Mass. 
277, 54 N. E. 561 : Wilson v. Powers, 
131 Mass. 539 (where prior conver- 
sations were admitted as well). 

23. Johnston r. Patterson, 114 Pa. 
St. 398, 6 Atl. 746; Hardwick Sav. 
Bank & Trust Co. v. Drenan, 71 Vt. 
289, 44 Atl. 347. ^ 

Evidence of what the principal told 
the surety at the time the surety 
signed a note is hearsay, and incom- 
petent. Ricketts v. Harvey, 78 
Ind. 152. 

" Conversations between a principal 
and his sureties on an official bond 
are not competent evidence. The 
obligee of such a bond is not bound 
by what occurs between the principal 
and sureties, unless brought to the 
knowledge of the officers whose duty 
k is to accept such a bond prior to 
its delivery." Harvey v. State, 94 
Ind. 159. 

24. Triplett v. Gofif's Adm'r, 83 
Va. 784, 3 S. E. 525. The reason 
given is that, in general, evidence of 
habit is inadmissible to show that a 
person did or did not do a particular 
thing. Such evidence is admissible 
only when the nature of the action 

Vol. X 



involves or directly afifects the gen- 
eral character of the party. 

25. " A public officer would not be 
presumed to apply public moneys to 
meet personal liabilities. His em- 
barrassed condition as an individual, 
would therefore generall}' have no 
tendency to prove his misapplication 
of the public funds. There is no 
necessary connection between the 
facts. But when the public officer is 
shown to have mingled promiscuously 
his own money with the money of 
the public, and to have been in the 
constant practice of meeting demands 
against the public funds in his hands 
with his individual effects, and z'ice 
versa to have paid off private debts 
with the public moneys, the pre- 
sumption with which the officer is 
ordinarily favored is destroyed. 
These facts being established, his pe- 
cuniary embarrassments form a link 
in the same chain of testimony, and 
should have been admitted." Nolley 
r. Callaway County. 11 Mo. 447. 

26. In Deposit Bank v. Peak, 23 
Ky. L. Rep. 19, 62 S. W. 268. the 
father of the principal debtor signed 
as surety before the delivery of the 
bond. The defendant signed as 
suret}' after delivery, and offered 
evidence that the father was a man 
of means while he was not, to show 
acceptance before his signature was 
given, and a consequent want of con- 
sideration. The evidence was ex- 
cluded, the court saying : " The most 
natural effect of this evidence was to 
lead the attention of the jury to the 
consideration of the ethical relation 
of these parties, as among them- 
selves." 



PRINCIPAL AXD SURETY. 



73 



was a surety is evidence of the fact against all holders of the mort- 
gage." 

11. Certificates of Postmaster-General. — A certificate of the post- 
master-general as to a shortage of a postmaster is not competent 
against his sureties,-^ although it has been intimated that an order 
disallowing commissions is prima facie evidence.-^ 

12. Evidence of Fraud. — A, Not Admissible Unless Creditor 
Is Connected Therewith. — Evidence tending to show fraud of 
the principal is not admissible in behalf of the surety when the 
creditor is not connected therewith.^" 

B. Surety's Statement As To Effect of Fraud. — Where the 
surety claims that he entered into the obligation as a result of 
fraud, he cannot be asked whether he would have signed as surety 
if he had known the true facts f^ but it has been held that he may 
so testify when the creditor misrepresents the facts.^- 

13. Indemnity. — Evidence that a surety had been fully indemni- 
fied by the principal is admissible to show that he had become a 
principal and was not released by any indulgence granted to the 
original principal,^^ though it is held to the contrary.''* 



27. Krutsinger v. Brown, 72 
Ind. 466. 

28. United States v. Case, 49 
Fed. 270. 

29. Jaedicke v. United States, 85 
Fed. 372, 29 C. C. A. 199, 56 U. S. 
App. 409. 

30. Bank of Monroe v. Gifford, 
72 Iowa 750. 32 N. W. 669. See also 
Milliken 7'. Callahan County, 69 Tex. 
205, 6 S. W. 681. 

31. " The question in this case is 
not one of intent. It was whether 
the witness had been defrauded. On 
this point, all the testimony had been 
admitted, and it was not proper to 
ask the witness what he would have 
done under other circumstances." 
Learned v. Ryder, 61 Barb. (N. Y.) 
552. 5 Lans. 539. But see Blaney v. 
Rogers, 174 Mass. 277, 54 N. E. 561, 
where it was held competent for a 
surety to testify that he would not 
have executed a bond if he had not 
believed the recitals contained there- 
in. Both the surety and the creditor 
were deceived. 

- 32. Remington Sew. Mach. Co. v. 
Kezertee, 49 Wis. 409, 5 N. W. 809. 

33. As to the admissibility and ef- 
fect of such evidence, see Crim v. 
Fleming, loi Ind. 154; Louisiana 
Soc. for Prev. of Cruelty to Children 
V. Moody, 52 La. Ann. 18 15, 28 So. 



224; Moore r. Paine, 12 Wend. (N. 
Y.) 123. The theory upon which 
such evidence is admitted is that the 
surety is not injured by any act of 
the obligee indulging the principal 
when he had full indemnity. 

34. In Rounsavell v. Wolf. 47 
Wis. 353. 2 N. W._ 545, sureties 
claimed that they signed without 
knowledge of the real character of 
the bond. Evidence that the princi- 
pal subsequently gave security to the 
sureties was held incompetent. 
" The appellants had a right to take 
indemnity against the liability which 
they admit they had assumed, and 
indeed, against their possible liability 
on the bond as written, and the evi- 
dence was not onlj' incompetent, but 
was well calculated to pass with the 
jury, as it was probably intended, for 
an affirmance by the appellants of the 
bond in suit, and a recognition of 
their liability upon it." 

To Rebut Surety's Claim That He 
Signed Conditionally — " Ordinarily, 
testimony that indenmity was given 
to the surety is immaterial in an ac- 
tion against him on a forfeited recog- 
nizance. In this case, however, it 
was not improper. In his testimony 
Madden stated that he signed the 
recognizance only upon the condition 
that Duncan or his wife should join 

Vol. X 



74 



PRINCIPAL AXD SURETY. 



14. Testimony of Witness, Since Deceased. — Testimony of a wit- 
ness, since deceased, given in a proceeding in which the principal, 
but not the surety, was a party, is not admissible against the svirety.^^ 

15. Evidence To Prove Particular Facts. — A. Creditor's 
Knowledge of Principal's Previous Default. — Evidence tend- 
ing to show that the creditor might have ascertained, by investiga- 
tion, that the principal was already a defaulter is, standing alone, 
not admissible to show knowledge of the fact."*^ 

B. That An Extension Had Been Given To Principal. — A 
valid agreement extending time may be inferred from evidence of 
an offer upon the part of the principal and a failure to proceed 
upon the part of the creditor.^' 

C. That a Valuable Consider.\tion Was Given For An Ex- 
tension. — A promissory note made by the principal to the cred- 
itor on the day an extension of time was given is admissible to show 
a valuable consideration for the extension.^® 

D. That Surety Consented To An Extension. — Evidence 
that the surety was in no danger of losing by an act of the creditor 
is admissible as tending to show his consent thereto.^** 



him as a co-suret}'. The testimony 
objected to tended to contradict this 
statement, and to show that no such 
conditions were mentioned, but, 
rather that the inducement which led 
to the signing of the recognizance 
was the transfer and delivery by the 
prisoner to him of forty-one head of 
cattle," etc., as the indemnity. Mad- 
den V. State, 35 Kan. 146, 10 Pac.46g. 
35. In Fellers v. Davis, 22 S. C. 
425, a witness testified in a proceed- 
ing for an account against an admin- 
istrator, and then died. It was held 
that his testimony was not admis- 
sible in a subsequent action against 
the surety. The court said, " This 
case, and that before the Probate 
Court, cannot be regarded as ' be- 
tween the same parties.' The sure- 
ties were not parties to that proceed- 
ing, and the administrator, who must 
be taken to have been a party there, 
is not before this court. . . . But 
it is urged that, although the parties 
personally are not the same, the sub- 
ject-matter is the same ; that the 
judgment of the Probate Court 
against the administrator is prima 
facie evidence against the sureties, 
and therefore they must be privies. 
It is true that the liability of the 
sureties arises under the same bond 
as that which binds the administra- 

Vol. X 



tor, and they all might, and indeed 
ought to be, sued together; but it 
does not seem to us that they are 
privies in the sense of the rule which 
makes evidence against one neces- 
sarily evidence against the other. 
The rule admitting the evidence is 
exceptional, and proceeds upon the 
view that the parties have had an op- 
portunity to cross-examine the wit- 
ness, but here the sureties never had 
such opportunity, and the fact that 
the administrator had such oppor- 
tunity should not bind them." 

36. Reports made by a bank 
cashier to the comptroller of the cur- 
rency are not admissible to show that 
the officers of the bank might have 
obtained knowledge. Bowne v. Mt. 
Holly Nat. Bank, 45 N. J. L. 360. 

37. A letter from the principal to 
the payee, enclosing a check and 
making a proposition for an exten- 
sion, is admissible, and is not hear- 
say. Lawrence v. Thom, 9 Wyo. 414, 
64 Pac. 339. 

38. Hutchinson v. Moody, 18 
Me. 393- 

39. Thus, evidence that the prin- 
cipal had secured the surety is ad- 
missible. " If the surety is in no 
danger, there is no reason why he 
should require the creditor to sue 
the principal ; and if there is no rea- 



PRINCIPAL AND SURETY. 



75 



E. That Surety Has Be^ex Released By Change In Contr.\ct. 
Parol evidence is admissible to show a change in a contract, whereby 
the surety has been released ;*" and also to show that the sureties 
did not consent thereto.*^ 

F. That Surety Demanded That Creditor Sue^ — The surety 
may testify to a demand on the creditor that he sue.*- 

G. That Surety Was Injured By Creditor's Xeglect. — Evi- 
dence that a cosurety was solvent and able to pay at the time de- 
mand was made for suit, and that he subsequently became insolvent, 
is admissible.*^ 

H. Extent of Obligation. — The terms of the principal's em- 
ployment may be shown, by written Evidence, when it exists,** and 
when it does not, by parol evidence.*^ 

16. Competency of Party When Other Party Is Dead. — By statute 
in some states a surety is not a competent witness against the rep- 
resentative of a deceased obligee, whether he is a party to the suit 
or not.*^ But one apparently a principal may testify that he was 
in reality a surety, although another surety is dead ;*" and an obligee 
may testify against the surety, although the principal is dead.*® 



son why he should require the cred- 
itor to sue him, that is a circumstance 
tending, more or less, to show, that 
an allegation of his that he did 
require the creditor to sue him, is 
not true ; or, to show, that he has 
waived the requisition, if he ever 
made it." Bailey z'. New. 29 Ga. 214. 

40. In Norwegian Evan. L. B. 
Congregation z: United States Fid. 
& Guar. Co., 81 Minn. 32. S3 N. W. 
487, the bond provided that changes 
in a building contract costing more 
than three hundred dollars should 
not be made without the consent of 
the surety. It was held competent 
to show such changes by parol. Of 
course such evidence is not admis- 
sible when the contract and bond ex- 
pressly provide for and allow 
changes. Ovington v. Aetna Ind. 
Co., 36 Wash. 473, 78 Pac. 1021. 

41. The sureties may testify di- 
rectly that they never knew of, nor 
were asked about, certain changes. 
Forst r. Leonard, 116 Ala. 82, 22 
So. 481. 

42. In Vancil z: Hagler, 27 Kan. 
407, the surety testified to having 
mailed a postal card to the plaintiff 
demanding that he forthwith sue, 
which was held sufficient prima facie 
evidence that the plaintiff received 
the card and that it was a sufficient 
demand under the Illinois statute. 



43. Vancil f. Hagler, 27 Kan. 407. 

44. Articles of incorporation of an 
obligee are admissible to show the 
term and duties of a secretarj- who 
is the principal. Danvers Farmers 
El. Co. z: Johnson, 93 Minn. 323, lOl 
X. \\'. 492. 

45. Where sureties sign an em- 
ploye's bond without knowledge of 
the terms of employment, parol evi- 
dence of the terms is admissible in 
order to show extent of default. 
Southern Cotton-Oil Co. v. Bass, 113 
Ala. 603, 21 So. 227. 

46. Thus, in Georgia, under a 
statute disqualifying a witness not a 
party but interested in the result, a 
surety cannot testify against the rep- 
resentative of a deceased obligee. 
Crawford z: Parker, 96 Ga. 156. 23 
S. E. 196. See also Howie v. Ed- 
wards, 113 Ala. 187. 20 So. 956, 
where the principal was applied as be- 
tween the other parties. 

47. " The statute does not render 
a witness incompetent simply be- 
cause the other part}' is dead. It in- 
cludes only direct transactions or 
communications between the witness 
and the deceased party, and as to all 
other matters the living party is a 
competent witness. " Chamblee z: 
Pirkle, loi Ga. 790, 29 S. E. 20. 

48. Lee t . Wisner, 38 Mich. 82. 

Vol. X 



76 PRINCIPAL AND SURETY. 

17. Evidence in Suit by Surety. — In an action by a surety for 
money paid, he must prove the original agreement by proof of the 
bond or other contract, and if the fact of suretyship does not ap- 
pear on the face of the instrument, it must be proved by other 
means. If he was compelled to pay by execution, a copy of the 
judgment and writ should be produced.*'* 

IV. WEIGHT AND SUFFICIENCY OF EVIDENCE. 

1. Effect of Agreement. — When it is agreed that certain proof 
shall be prima facie sufificient, the courts will give effect to the 
agreement.^" 

2. Amount Realized at Sheriff's Sale. — The amount realized by 
a sheriff's sale is conclusive as to the value of the property, although 
it be bought by the creditor. ^^ 

3. Proof Necessary To Avoid Official Bond. — The proof necessary 
to avoid an official bond must be as clear, satisfactory and demon- 
strative as that required to set aside a decree or judgment of a 
court of record upon the ground of fraud.^- 

See article, " Transactions With upon the accounts of the employer, 

Deceased Persons." shall be prima facie evidence there- 

49. Edge V. Keith, 13 Smed. & of." See also John A. Tollman Co. 
M. (Miss.) 295. ^,. Bowerman, 5 S. D. 197, 58 N. 

A note paid by the surety is admis- -^y -gg 

sible. Cameron z- Warbritton, 9 Ind. 51^ Moorman v. Hudson, 125 Ind. 

35^ : Hd V. Voorhies, 22 Pa. St. 68. ^ ^ 

50. Thus, m American Surety Co. ^ T„ ^,, -r. ^, --^ u j <. n 
r. Pauly, 38 U. S. App. 280, 72 Fed. ^2. If this can be done at al 
484. 18 C. C. A. 657, the following "PO" the unsupported testimony of 
provision in the bond was enforced: the party who is sought to be 
"It being understood that a written charged, that testimony must be 
statement of such loss, certified by clear, explicit and demonstrative, to 
the duly authorized officer or repre- a positive certainty." Amis v. 
sentative of the employer, and based IMarks, 3 Lea (Tenn.) 568. 



PRIVATE CORPORATIONS.— See Corporations. 



PRIVATE ROADS.— See Highways. 



PRIVATE WRITINGS.— See Documentary E^-i- 
dence ; Written Instruments. 



PRIVIES. — See Admissions; Judgments; Principal 
and Agent ; Principal and Surety ; Title. 

Vol. X 



PRIVILEGED COMMUNICATIONS. 

By Willoughby Rodman. 



I. PHYSICIAN AND PATIENT, 97 

1. General Rule, 97 

2. Not Prk'ilcgcd at Common Lazv, 98 

3. Founded Upon Public Policy, 98 

4. Object of Rule, 98 

5. Nature of Privilege, 99 

A. Right of Patient, 100 

a. To Exclude Physician's Testimony, 100 

b. To Refuse His Ozcn Testimony, loi 

B. Physician Cannot Refuse to Testify, 102 

C. Physician N^ot Incompetent as Witness, 102 

D. Matter Communicated Not Incompetent, 103 

E. Right Not Dependent Upon, 103 

a. Form In Which Testimony Is Presented, 103 

b. Object of Testimony, 105 

c. Patient's Relation to Action, 105 

d. Purpose of Consultation, 105 

6. Essentials to Exercise of Privilege, 105 

A. Patient, 105 

B. Physician, 105 

a. Status, 106 

(i.) Failure to Comply With Statute, 106 
(2.) iVo? Licensed in Place of Treatment, 106 
(3.) Introduction of Diploma Not Necessary, 106 
(4.) License Presumed, 106 
(5.) Dentist, Druggist or Veterinary, 106 

b. Necessary Intermediaries, 107 

c. Persons Unnecessarily Present, 107 

d. Consulting Physician, 108 
c. Partner, 108 

C. Relation, 109 

a. Attendeincc Alone InsufJjcient, 109 

b. PF/za^ Attendance Sufticioit, 109 

(i.) Casual Treatment, 109 
(2.) Single Consultation, 109 
(3.) Physician Called by Stra)iger, in 
(4.) Accompanying Attending Physician,' ill 
(5.) /a// Physician, in 

(6.) State's Physician .lttcndi)ig Subject of 
Crime, 11 1 

c. ^F//a/ InsuiTicient to Co)istitute Relatio)i, 112 

Vol. X 



78 PRIVILEGED COMMUNICATIONS. 

(i.) Employed by Third Person for Purpose 
Other llian Treatment, 112 

(2,) Physician Sent by State to Examine Pris- 
oner, 113 

{T).) Employment Refused, 113 

(4.) Administering Temporary Relief, 113 

(5.) Acting as Friend, 113 

d. Matters Not Essential to Relation, 114 

(i.) Direct Employment, 114 

(2.) Payment Unnecessary, 116 

(3.) Consultation for Self or Friend, 116 

(4.) Prescription or Treatment, 116 

e. Sufficient If Patient Believes Relation Exists, 116 

f. Relation Presumed, 117 

D. Communication, 117 

E. Necessary Information, 118 

a. Prescribe for or Treat Patient, 118 

b. To Confirm Previous Examination, 119 

c. Privileged, Whether Necessary or Not, 119 

d. Necessary Character, Question for Court, 119 

F. Information Acquired in Discharge of Duty, 120 
7. Extent of Privilege, 121 

A. What Matters Privileged, 121 

a. Physical Condition of Patient, 121 

b. Fact of Disease, 121 

c. Nature of Disease, 121 

d. Fact of Treatment, 122 

e. Mental Condition, 123 

f. Opinion Founded Upon Professional Communica- 

tion, 12^ 

g. Means of Acquiring Knozvledge Immaterial, 12^ 

(i.) Silence of Patient, 125 
(2.) Question by Patient, 126 
h. Statement of Prior Condition, 126 
' i. Statements and Acts of Physician, 126 

j. Information Acquired After Death of Patient, 126 
k. Information Acquired From Other Treatment, 126 

B. What Matters Not Privileged, *i2y 

a. Fact of Attendance and Treatment, 127 

b. Identity of Patient, 128 

c. Facts as to Patient, 128 

d. Ordinary Observation, 128 

e. Condition of Corpse of Non-Patient, i2g 

f. Unnecessary Information, 129 

(i.) Contra, 129 

(2.) Unnecessary Statements, 129 
Vol. X 



PRIVILEGED COMMUNICATIONS. 79 

(A.) Cause of Condition, i2g 
(B.) Cause of Accident, 130 
(C.) Contra, Cause of Accident Privileged, 
130 
(3.) Contra, Statements Privileged, Wlicther 
Necessary or Not, 130 
g. Examination to Ascertain Mental Condition of 

Non-Patient, 131 
h. Examination to Obtain Evidence, 132 
i. Examination to Prepare as Witness, 132 
j. Communications as to Crime, 132 
k. Privilege Not Alloivcd to Shield Criminal, 133 
1. Information From Person Subject of Crime, 135 
m. Communication Presumed Lawful, 135 
n. Testamentary Cases, 135 

(i.) Statute Not Applicable, 135 
(2.) Contra, Physician's Testimony Incompetent, 
136 
o. Non-Confidential Matter in Course of Consulta- 
tion, 136 
p. Action Agai)ist Physician, 137 
q. Action Against Patient for Physician's Services, 
138 

8. Duration of Privilege, 138 

9. Waiver of Privilege, 138 

A. Waiver Not Contrary to Public Policy, 139 

B. By Whom Waived, 139 

a. Patient, 139 

b. Personal Representative, 139 

c. Heir at Law, 140 

(A.) Win Contest, 140 

(B.) Action on Life Insurance Policy, 140 

d. Joint Action Not Necessary, 140 

e. Guardian, 140 

f. Parents, 140 

g. Husband Cannot Waive, 140 

h. Beneficiary of Life Insurance Policy May JVaii'ef 

141 
i. Assignee of Policy, 141 
j. Contra, Patient Alone May Waive, 141 

C. Relation Essential to Waiver, 141 

D. Waiver. — IIozc Shozini, 142 

a. Express, 142 

(i.) Any Apt La)iguage, 142 

(2.) Stipulation i)i Life Insurance Policy, 142 

(3.) Statute Requiring JVaiz'er at Trial, 143 

Vol. X 



80 PRIVILEGED COMMUNICATIONS. 

b. Implied, 143 

(I.) Failure to Object, 143 

(2.) Contra, Omission of Objection No Waiver, 

143 
(3.) Calling Physician as Witness, 144 
(4,) Cross-Examination by Patient, 144 
(5.) No Waiver From Voluntary Statement on 

Voir Dire, 145 
(6.) Waiver From Calling One of Several Phy- 
sicians, 145 
(7.) Patient Testifying, 147 

(A.) Testimony as to General Condition, iVo 

Waiver, i^y 
(B.) Voluntary Statement, No Waiver, 149 
(C.) Patient Answering Cross-Examination, 

No Waiver, 150 
(D.) Testimony as to Treatment by One 

Physician, A'o Waiver, 151 
(E.) No Waiver, Unless Communication 

Referred to, 151 
(F.) No Waiver, Unless N^ecessary Infor- 
mation Referred to, 151 
(8.) Introducing Proofs of Death Shozcing 

Cause, 151 
(9.) Statement in Application For Life Insur- 
ance, 151 
(10.) Certain Acts as Waiver, 152 
(A.) Shozcing Prescription, 1^2 
(B.) Introducing Hospital Record Made by 

Physician, 152 
(C.) Physician Subscribing Witness to Will, 

152 
(11.) Certain Acts, No Waiver, 152 

E. Effect of Waiver, 153 

a. Privilege Waived, Testimony Compulsory, 153 

b. Binding on Representatives and Beneficiaries, 153 

F. Waiver Irrevocable, or Not, 153 

a. Irrevocable, 153 

b. Revocable, 154 

G. Effect of Change of Statute, 154 
H. Extent of Waiver, 155 

I. Waiver Not Presumed, 155 
J. Conduct of Adverse Counsel as to Waiver, 155 
K. Comment on Refusal to Waive, 156 
10. Protection of Privilege, 156 

A. Objection to Testimony, 156 

Vol. X 



PRIVILBGBD COMMUNICATIONS. 81 

a. Who May Object, 156 

(i.) Patient, 156 

(2.) Personal Representative, Beneficiary, As- 
signee, 156 

(3.) Any Party to Action, 156 
(4.) Physician, 156 

(5.) Objection Unavailing, If Patient Consent 
or Waive, 157 

b. Patient Cannot Object After Testifying, 157 

c. Objection Not Obviated, 157 

B. Burden of Proof, 157 

a. Facts Must be Shozvn, 157 

b. All Conditions of Bxclusion Must Exist, 158 

C. Hozi* Burden Sustained, 158 

D. Prima Facie Case Made by Shozving, 158 

a. Professional Attendance, 158 

b. Examination for Treatment, 159 

c. Relation Not Disproved By Record, 159 

E. Hozi' Privilege Determined, 159 

a. Question by Person Calling Physician, 159 

b. Question by Claimant, 159 

c. Preliminary Question Necessary, 159 

d. Formal Proof of Character of Information Not Re- 

quired, 159 

e. Character of Information Inferred From, 159 

(i.) Form of Question, 159 
(2.) Fact of Attendance, 160 
(3.) Inference From Profession and Relation, 
160 

f. Status Presumed, 160 

g. Information Partly Confidential, 160 

h. Conr^ iVo^ Bound by Physician's Statement, 161 

F. Inference From Refusal to Waive, 161 

G. Instruction as to Refusal to Waive, 162 
H. Argument From Refusal, Improper, 163 

I. No Inference From Failure to Call Physician, 163 
J. Other Protection, 163 

a. Refusal to Take Testimony. — Striking Out, 163 

b. Protection of Physician's Books, 163 

c. Exclusion in Court's Discretion, 163 
II, Construction of Statutes, 164 

A. Liberal, 164 

B. Strict, 165 

C. Strict Construction in Favor of Claimant, 165 

Vol. X 



82 PRIVILEGED COMMUNICATIONS. 

II. HUSBAND AND WIFE, 165 

1. General Rule, 165 

2. Privileged at Common Law, 168 

3. Not Changed by Statute Removing General Incompetency, 

168 

4. Founded Upon Public Policy, 168 

5. Reason for Rule, 169 

6. Nature of Privilege, 169 

A. Spouse Not Disqualified as Witness, 169 

B. Matter Communicated Not Necessarily Incompetent, 

169 

C. Spouse Prohibited to Testify Concerning Communica- 

tion, 169 

D. Not Dependent Upon, 170 

a. Method of Communication, 170 

b. Spouse's Relation to Case in Which Testimony is 

Offered, 170 

7. Essentials, lyi 

A. Relation, 171 

B. Confidential, 171 

a. Privileged Though Not Confidential, 173 

b. Matters Essential to Confidence, 175 

(i.) Private, 175 

(A.) Contra. — Privileged Though Not Pri- 
vate, 175 
(B.) Private, Although in Presence of Child 

of Parties, 175 
(C.) Third Persons, 176 
(2.) Intended To Be Kept Private, 176 
(3.) Induced by Relation, 177 

C. Knowledge Acquired During Relation, 177 
. 8. Extent of Privilege, 177 

A. What Matters Privileged, 177 

a. All Knozvlcdge, 177 

(i.) Fact or Matter of Communication, 179 

(2.) Silence, iy() 

(3.) Threats, i'j<) 

(A.) Against Spouse, lyg 

(B.) Against Third Person, 180 

b. Letters Privileged, 180 

(i.) Every Part Privileged, 181 

(2.) Letter to Spouse and Third Person, 182 

(3.) Letter to Spouse and Children, 182 

(4.) Letter Written in Presence of Spouse, 182 

(5.) Custody of Letters, How Material, 183 

Vol. X 



PRIVILEGED COMMUNICATIONS. 83- 

(A.) Custody Lost, Letters Non-Privileged, 

183' 
(B.) Contra. — Privilege Not Dependent 

Upon Custody, 185 
(C.) In Custody of Agent or Attorney of 
Spouse, Privileged, 186 
(6.) Letters Competent For Certain Purposes, 
187 
(A.) Measure of Damage In Criminal Con- 
versation, 187 
(B.) To Show Relation, 187 
(C.) To Shozv Cruelty, 187 
c. Acts of Spouse Privileged, 187 
B. What Matters Non-Privileged, 188 

a. Ordinary Observation, 188 

b. Non-Confidential Source, 189 

c. Oivn Acts, 189 

d. Reasons For Conduct, 189 

e. Business Communications, 190 

(i.) Between Spouses, 190 

(2.) Spouse as Agent, 190 

(3.) Communications Concerning Separate Prop- 
erty, 191 

(4.) Communications Concerning Joint Trustee- 
ship, 191 

(5.) Knoivledge of Business of Spouse, 192 

f. Statement of Third Person Repeated, 192 

g. Criminal Acts, 192 

h. Fraudulent Acts, 193 

i. Communications in Presence of Third Persons, 193 
(i.) Spouse Competent, 193 

(A.) That Third Person Dead, Immaterial, 

193 
(B.) Private Conversation in Connection 

With Overt Acts, 193 
(C.) Statements of Other Spouse to Third 
Persons, 194 
(2.) Third Person May Testify, 194 
(A.) Concealed Witness, 196 
(B.) Private Statement Repeated Under 
Duress, 'Third Person Incompetent, 
196 
(3.) Presence of Child of Spouses, 196 
(4.) Third Person Present or Not, Question For 
Court, 196 

Vol. X 



84 PRIVILEGED COMMUNICATIONS. 

(A.) Either Spouse Competent as to Pres- 
ence, 196 
(B.) Presenee Presumed, if Testimony Ad- 
mitted, 196 
9. Duration. — Continues After Death or Dizvrcc, 196 

10. Waiver, 198 

A. Privilege May Be Waived, 198 

B. Contra, 198 

C. No Waiver Unless Permitted by Statute, 198 

D. By Whom, 198 

a. Joint Action Essential, 198 

b. Spouse Making Communication, 199 

c. Not by Personal Representative, 199 

E. How Shozvn, 199 

a. Failure to Object, 199 

b. Effect of Such Waiver on Second Trial, 199 

c. Making Spouse Witness, 199 

d. Spouse as Witness, 199 

e. Voluntary Statement, 199 

f. No Waiver Unless Communication . Referred to, 

200 

11. Protection of Privilege, 200 

A. Duty of Nisi Prius Court, 200 

B. Duty of Commissioner, 200 

C. Frame of Question, 200 

D. Application of Ride, 200 

a. Confidential Character Must Appear, 200 

b. All Privileged, or None, 200 

c. Testimony Not Admitted, Unless Consent Shown, 

200 

d. Divorce Suits, 200 

(i.) Private Conversations, 200 
(2.) Acts of Cruelty, 201 

e. Incompetency Appearing on Cross-Examination, 

201 

f. Strict Inquiry Proper, 202 

E. Construction of Rule, 202 

F. By What Lazi' Determined, 202 

12. Exceptions to Ride, 202 

A. Exception Allowed to Prevent Fraud, 202 

B. Injury of Wife by Husband, Wife Sole Wittiess, 204 

C. When Statement Is Fact in Issue, 204 

D. Statement Made to Induce Confession, Non-Privileged, 

204 

E. Fact of Relation in Issue, 204 

F. When Necessary to Fix Grade of Offense, 205 

G. Voluntary Confession of Crime, 205 

Vol. X 



PRIVILEGED COMMUNICATIONS. 85 

III. ATTORNEY AND CLIENT, 205 

1. General Rule, 205 

2. History, 207 

3. Founded Upon Public Policy, 208 

4. Object of Rule, 208 

5. To Whom Belongs, 208 

6. Nature of Privilege, 211 

A. Confers Right on Client, 211 

a. To Exclude Attorney's Testimony, 211 

(i.) Matters Communicated by Client, 211 
(2.) Matters Communicated by Agent, 211 
(3.) Attorney's Statements or Advice to Client, 

212 
(4.) Matters Communicated Between Attorneys 

For Same Client, 212 

b. To Refuse to Testify, 212 

B. Attorney Not Incompetent as Witness, 213 

C. Matter Communicated Not Incompetent, 214 

D. Privilege Relates to Communicaiion, 214 

E. Test as to Character of Communication, 214 

F. Not Affected by Change of Common Lazv Rule, 215 

7. Essentials, 21^ 

A. Attorney, 215 

a. Solicitor of Patents, 216 

b. Adviser and Conveyancer, 216 

c. Person Admitted in Inferior Court, 216 

d. When Admission Not Necessary, 216 

e. Active Practice Not Necessary, 217 

f. Scrivener Acting as Attorney, 217 

g. Admission in Country Where Privilege Claimed, 

Unnecessary, 21^ 
h. Person Addressed Must be Knozcn To Be Attor- 
ney, 217 
i. Attorney's Clerk or Agent, 218 
j. Stenographer, 219 
k. Interpreter, 219 
1. Student, 219 
m. Requisites of Communication to Clerk, etc., 219 

B. Attorney Must be Consulted Professionally, 219 

a. Attorney as Friend, 220 

b. Capacity in Which Consulted, How Determined, 

220 

(i.) Inference From Former Employment, 221 
(2.) Prior Eynploymcnt Alone, Not Sufficient, 
221 

Vol. X 



86 PRIVILEGED COMMUNICATIONS. 

(3.) Attorneys Belief as to Character, Not Con- 
clusive, 221 

c. Acts of Attorney as Business Agent, 221 

d. Attorney and Client as Co-Vendors, 222 

C. Relation of Attorney and Client Must Exist, 222 

a. Legatee and Executor's Attorney, 222 

b. Attorney and Person Transacting Business With 

Client, 227, 

c. Attorney and Client's Opponent, 22^ 

d. Applicant for Loan and Agent of Lender, 22/^ 

e. Attorney as Money Lender, 224 

f. Prosecuting Attorney and Witness, 22\ 
(i.) Communications Privileged, 224 
(2.) Contra, 226 

g. County Attorney, 226 

h. Municipal Officer to Municipal Attorney, 226 

i. Judge of Court, 226 

j. Married Woman and Husband's Attorney, 227 

k. Attorney of Person Jointly Interested, 227 

1. Attorney for Co-Conspirator, 22'j 
m. Relation, Question of Fact, 227 

(i.) Decision of Trial Court Conclusive, 22S 
(2.) Relation Disclaimed by One Claimed To Be 

Client, 228 
(3.) Relation Denied by Attorney, 228 
(4.) Conflict Between Attorney and Client, 228 
(5.) Attorney in Doubt, 22S 

n. Privileged, if Relation Believed to Exist, 230 

o. Relation Wrongly Assumed, 230 

D. Communication Must Be Made While Relation Ex- 

ists, 230 

a. Communication Made Prior to Relation, 231 

b. Subsequent, 231 

c. Former Employment Not Sufficient, 232 

d. That Statement Repetition of Privileged State- 

ment, Immaterial, 2t,2 

e. Negotiations for Employment, 232 

f. Statement to Third Person of Intention to Em- 

ploy, 233 

E. Communication Must Have Been Made by Reason of 

Relation, 233 

F. Confidential, 234 

a. Whether or Not Confidential — How Shozvn, 235 
(i.) Nature of Communication, 235 

(A.) Matters To Be Communicated to An- 
other, 235 

Vt)l. X 



PRIVILBGBD COMMUNICATIONS. 87 

(B.) Matters To Be Made Public, 236 
(C.) Paper-Recording Necessary to Attor- 
ney's Protection, 236 
(D.) Statenicjits Made in Conferring Au- 
thority, 237 
(a.) Authority To Authorize Another, 

(b.) Authority To Compromise, 22,7 
(E.) Matters Necessarily Not Private, 2^)7 
(a.) Copy of Public Record, 238 
(b.) Copies of Deposition, 238 
(c.) Testimony Taken To Enable At- 
torney to Advise, 238 
(d.) Notes of Evidence, 238 
(e.) Notes of Proceedings in Cham- 
bers, 238 
(f.) Document Identified by Client But 
Not Piled, 238 
(2.) Inferred From Circumstances of Making, 

239 
(A.) Communication Made in Public Place, 

239 
(B.) Attorney Acting For Others Than 
Claimant, 239 
b. Witness in Doubt, 2}^^ 
G. Private, 239 

a. Communication in Presence of Third Person, 239 

b. Statements of Third Person in Presence of Attor- 

ney and Client, 240 

c. Third Persons Present, Not Privileged, 240 

(i.) Clerk, 241 

(2.) Client's Agent Present, 241 

d. Third Persons Present, Privileged, 241 

e. Conversation Between Client and Third Person 

A-ot Privileged, 242 

f. Communication From Third Person to Attorney 

Not Privileged, 242 
g. Injunction of Secrecy Not Essential, 242 
H. Purpose, Advice, 242 

a. General Conversation Not Privileged, 243 

b. Attorney Also Trustee, 244 

c. Attorney Trustee for Client's Creditors, 244 

d. Attorney Agent for Other Party to Transaction, 

244 

e. Friendly Adznce as to Conduct, 245 

f. Attorney as Arbitrator, 245 

Vol. X 



88 PRIVILEGED COMMUNICATIONS. 

g. Statements by Witness, 245 
h. Statements as to Matters of Fact, 246 
i. Opinion on Abstract Question of Law, 246 
j. Service Not Requiring Legal Skill, 246 
(i.) Attorney a^ Scrivener, 247 
(2.) Attorney as Notary, 249 

(A.) That Attorney Acting as Scrivener or 
Notary Paid by One Party, Imma- 
terial, 249 
(B.) Pretending to Act as Notary, When in 
Fact Attorney, 249 
k. Immediate Advice Not Essential, 250 
1. Capacity Inferred From Other Service, 250 
I. Communication Must Relate to Employment, 251 

a. Collateral Matters, 252 

(i.) Statements as to Fee, 253 

(2.) Fee-Contract Contained in Statement of 

Confidential Matter, 253 
(3.) Matter Connected With Employment, 253 

b. Courts Liberal in Applying Ride, 254 
J. Necessity for Communication, 254 

8. Matters That Are Not Essential, 254 

A. Agreement of Employment, 254 

a. Employment Expected by Attorney, 255 

b. Former Employment Not Necessary, 255 

c. Communication in Anticipation of Employment, 

256 

d. Contemplated Action Not Brought, 256 

e. Employment Refused, 256 

f. Relation Broken, 256 

g. Hostile Employment Accepted, 257 

h. Attorney's Belief That Employment Was Intended 
Not Sufficient, 257 

B. Retainer, N on-Essential, 257 

C. Fee, N on-Essential, 257 

D. Reference to Litigation Not Essential, 258 

9. Privilege Not Affected by, 258 

A. Client's Knowledge of Rule of Privilege, 258 

B. Spontaneous or Responsive, 258 

C. By Client or Attorney, Immaterial, 258 

D. Client's Relation to Case, Immaterial, 258 

E. Attorney's Willingness, Immaterial, 259 

F. Attorney Not Admitted to Practice in Locus Fori, 259 

G. That Client May Be Witness, Immaterial, 259 

H. Matter Communicated Not Material or Important, 260 
I. Immaterial That Client Guilty of Crime, 260 

Vol. X 



PRIVILEGED COMMUNICATIONS. 89 

J, Atto-rncy Officer of Municipal Corporation, 261 
K. Object of Testimony, 261 
10. What Matters Privileged, 261 

A. Means of Acquiring, Immaterial, 262 

B. Client's Statements of Fact, 263 

C. Instructions, 264 

D. Letters, 265 

a. Not All Letters, 266 

b. Letters — Client to Agent, 266 

c. Agent to Client, 266 

d. Letters Betzceen Attorneys, 267 

e. Letters — Attorney to Third Person, 267 

f. Anonymous Letter Concerning Testimony, 267 

g. Letters Between Client and Non-Professional 

Agent, 267 
h. Letters Betiveen Parties to Action, To Be Shown 
to Attorney, 267 

E. Papers, 268 

a. Account Book, 268 

b. Abstract of Client's Deeds, 269 

c. Notes of Testimony, 269 

d. Papers Delivered by Third Person, Not Agent of 

Client, 269 

e. Delivered by Client and Others, 269 

f. Must Relate to Employment, 270 

g. Good Faith, 270 

h. Attorney Not Compellable to Produce Papers, 

When, 270 
i. When Attorney Must Produce Papers, 271 

(i.) Must Produce, if Client Compellable, 271 
(2.) Papers Non-Privileged, if Accessible to 

Public, 272 
(3.) Attorney's Duty to Make Public, 272 
(4.) Papers To Be Sent to Third Person, 272 
(5.) Forged Papers, 272 
(6.) Papers of Adversary, 272 
(7.) Must Produce to Partner, 273 
(8.) Must Produce for Identification, 273 
j. Contents of Papers Privileged, 2"]^ 
k. Clieyxt Not Compellable To Produce, 274 

(i.) Papers Delivered Betiveen Himself and At- 
torney, 274 
(2.) Papers To Be Submitted to Attorney, 275 
(A.) Privileged in Subsequent Action, 276 
(B.) That Documents Not Submitted, Im- 
material, 276 

Vol. X 



?0 PRIVILEGED COMMUNICATIONS. 

(C.) That Document Identified by Client in 
Another Case, Immaterial, 276 
(3.) Documents Lent by Attorney for Person 
Having Common Interest With Client, 
276 
(4.) Essential to Claim of Privilege for Docu- 
ments Intended To Be Used as Evidence, 
277 
1. Attorney's Possession of Papers No Excuse for 
Non-Prodiiciion by Client, 277 
m. Attorney's Lien No Excuse for Client or Attor- 
ney, 277 
n. Paper Not Under Client's Control, 2^^ 
o. Custody of Paper Lost, 278 
p. What Facts Concerning Papers May Be TestiHed 

to by Attorney, 278 
q. Condition or Appearance of Papers, 279 
r. Admissibility of Paper A^ot Dependent Upon Man- 
ner of Possessioii, 279 
s. Consequence of Refusal to Produce, 279 

F. Reasons For Attorney's Conduct, 2/g 

G. Attorney's Inferences, 280 
H. Client's Belief, 280 

I. Privilege Extends to Third Person to Whom Attorney 

Referred, 280 
J. Not Limited to Litigation, 280 
K. Part Privileged, All Privileged, 284 
II. What Matters Not Privileged, 284 

A. Existence of Relation A' on-Privileged, 284 

B. By Whom Attorney Employed, 285 

C. Fact That Communicatioji Was Made, 285 

D. Time of Making Communication, 285 

E. Whether Certain Subject Discussed, 285 

F. Ordinary Observation, 285 

G. Facts Not Confidential, 2^y 

a. Name of Client, 2^y 

b. Identity, 287 

c. Residence, 2'&y 

(i.) When Knowledge of Residence Privileged^ 

2%7 

(2.) Purpose of Inquiring as to Residence, 287 

d. Handwriting, 288 

e. Location and Character of Estate, 288 
H. Sources Other Than Client, 288 

I. Acts of Attorney or Client, 290 

J. Attorney as Subscribing Witness, 2gi 

Vol. X 



PRIVILBGED COMMUNICATIONS. 91 

K. Attorney Party to Transaction, 292 
L. Action Bctzvecn Attorney and Client, 293 
M. Communications to Common Attorney, When Non- 
Privileged, 294 

a. Action Betzveen Clients, 294 

r- ■ (i.) Husband and Wife, 295 

(2.) Husband and Wife, Interests Adverse, Priv- 
ileged, 296 

b. Action Betzceen Representatives of Clients, 296 

c. Action Betzceen One Client and Attorney, 296 

d. Relation to Both Parties Must Clearly Appear, 297 
N. Communications to Common Attorney Privileged 

Against Persons Other Than Clients, 297 
O. Persons Claiming Under Common Grantor, 297 
P. Issue, Good Faith and Advice, 298 
Q. Testamentary Communications, 298 

a. Contra, 299 

b. Conflict in Nezv York, 299 

. c. Privileged Unless Will Made, 301 

d. Privileged Against Adverse Claimants, 301 

e. Lost Will, 301 

f. Revoked Will as Memorandum, 301 

g. Attorney' Siibscribiiig Witness to Will, 302 

(i.) Waiver, 302 

(2.) Injunction of Secrecy Ineffectual, 302 
R. Communications as to Crime, 303 

a. Criminal Intent Must Appear, 304 

b. Act Must Be Malum In Se, 304 

c. Mere Charge of Criminal Intent InsufUcient, 304 

d. Court To Find Intent, 305 

e. Limitation of Rule, 305 

f. Communication Must Relate to Crime Intended, 

305 

g. Attorney Without Fault, Immaterial, 306 

S. Communications as to Fraud, 306 

a. Non-Priznleged, 306 

(i.) Acts, 307 

(2.) Fraudulent Character Must Appear, 307 
(3.) Limit of Rule, 308 

(.4.) Attorney May Claim Privilege if Not 
Charged With Participation, 308 

b. Privileged, 308 
T. Illegal Act, 309 

U. Wrongful Act, 309 

V. Communication of Knozvledge by Person in Contempt 

of Court, 309 
W. Matters Concerning Which Attorney May Testify, 

309 

12. Limit of Privilege, 314 

Vol. X 



92 PRIVILEGED COMMUNICATIONS. 

13. To Whom Privilege Extends, 314 

14. Duration of Privilege, 314 

A. Survives Action, 315 

B. Survives Relation, 315 

C. Attorney Afterivards Executor, 315 

D. Attorney Devisee of Client, Immaterial, 316 

15. Waiver, 316 

A. By Whom Waived, 316 

a. Client, 316 

b. Personal Representative, 317 

c. //^i>, 317 

d. Assignee, Not, 317 

e. Successor of Client in Representative Capacity, 317 
f. Several Clients, 317 

B. Express or Implied, 318 

a. Express, 318 

b. Implied, 319 

(i.) Nature of Communication, 319 

(A.) Letter To Be Communicated, 319 
(B.) J'erbal Statement To Be Communi- 
cated, 319 
(C.) Gra»/ of Authority, 319 
(2.) Circumstances of Making, 319 

(A.) Attorney Subscribing Witness, 319 
(B.) Employing Common Attorney, 320 
(3.) Client's Conduct, 320 

(A.) Client's Disclosure of Privileged Mat- 
ter, 320 
(B.) Offering Testimony in Support of 
Pleading, 320 
(a.) Waiver as to Part, Not Total, 321 
(b.) Referring in Pleading to Docu- 
ments, Tf2l 
(c.) Partial Disclosure of Documents 

by Attorney, 321 
(d.) Solicitor's Affidavit to Documents, 

321 
(e.) Proceedings For Discovery, 321 
(f.) Producing Portions of Documents 
Demanded by Adversary, 321 
(C.) Failure to Ob feet, 321 
(D.) Turning S'tatc's Evidence, 322 
(E.) Client Testifying Concerning Comniu- 

c at ion, 2>22 
(F.) Client Testifying, 323 

(a.) Waiver Implied From Client's Tes- 
tifying. 324 
(b.) No Waiver From Testifying, 324 

Vol. X 



PRIVILEGED COMMUNICATIONS. 93 

(c.) No Waiver Unless Communication 

Referred to, 324 
(d.) Not Implied From Ansivering on 

Cross-Examination, 325 
(e.) Testifying on Cross-Examination 

Without Objection, 325 
(f.) Testifying as to Advice, 325 
(G.) Charging Attorney With Wrongful 

Conduct, 325 
(H.) Making Attorney Witness, 325 

(a.) No Waiver Unless Questioned as 

to Communication, 325 
(b.) Introducing Letters From Attor- 
ney, 325 
(c.) Subpoena Duces Tecum to Attor- 
ney, 326 
(d.) Causing Attorney to Anszver In- 
terrogatories, 326 
(I.) Client Testifying After Objection 
Overrided, 326 

C. Waiver Must Appear — Court Cannot Waive, 12^ 

D. Must Be Unequivocal, 327 

E. Effect of Waiver, ^2y 

a. Attorney's Testimony Competent For Any Pur- 

pose, 328 

b. Effect in Subsequent Trial of Same Action, 328 

c. No Presumption Against Client For Insisting Up- 

on Privilege, 328 
16. Protection of Privilege, 328 

A. Who May Claim, 328 

a. Client, 328 

b. Personal Representative, 328 

c. Antagonist Cannot Claim, 328 

B. Ho-cV Claimed, 328 

a. Objection, 328 

b. Motion to Strike Out, 329 

c. Demurrer to Interrogatories, 329 

C. Protection by Court, 329 

a. JVithdrazval of Witness, 330 

b. Duty of Court, 330 

c. Client's Right to Notice, 330 

D. Privilege, Hoi<< Determined, 330 

a. Preliminary Inquiry, By IVhom, 331 

b. Permitting Attorney to Determine Question, 331 

c. Excluded if Attorney Make Oath to Privdegcd 

Character, 331 

d. Client's Affidavit as to Documents, 2>2)~ 

e. Attorney's Statement as to Document, t>;},2 

f. Admitted if Relation Denied by Attorney, 332 

Vol. X 



94 PRIVILEGED COMMUNICATIONS. 

g. Denied by One Claimed To Be Client, 332 
h. Court Not Bound by Attorney's Testimony, 332 
i. Burden of Proof, 332 

(i.) Facts Showing Incompetency Must Be 
Shoivn, 333 
(A.) What Facts, 2,2,2) 
(B.) Knozvledge Not Obtained Otherwise, 

333 
(2.) Hozv Shozvn, 334 
(3.) AfHdaz'it of Client, 334 
(4.) Testimony of Witnesses, 334 
(5.) Presumption, 334 

(A.) Presumption Not Conclusive, 335 
(a.) Rebutted by Ezndencc, 335 
(b.) By Rules and Maxims, 335 

E. By What Law Determined, 335 

a. United States Courts, 335 

b. Commission From Foreign Tribunal, 336 

F. Construction of Statutes, 336 

a. Liberally Construed, 336 

b. Strictly Construed, 337 

G. Other Protection, 337 

a. Injunction, 337 

b. Striking Attorney's Name From Roll, 237 

c. Action For Damages, 338 

17. Duty of Attorney Tozvard Confidential Communications, 338 

A. Duty to Keep Client's Secrets, 338 

B. Duty to Divulge Criminal ComnuDiications, 338 

C. Violation of Confidence Not Presumed, 338 

D. Cannot Conceal Confidential Communications From 

Client's Representative, 339 

E. To Charge Attorney With Violating Confidence, Libel- 

ous, 339 

IV. COMMUNICATIONS TO CLERGYMEN, 339 

1. Not Privileged at Common Lazv, 339 

2. General Ride, 340 

3. Essentials, 340 

A. Clergyman. — Communication to Fellozv Church Mem- 

ber Not Privileged, 340 

B. Must Be Acting in Professional Capacity, 340 

C. Confession, 341 

D. In Course of Discipline, 342 

E. Confidential, 342 

F. Certain Essentials Lacking, 342 

4. Clergyman's Statements Privileged, 343 

V. AFFAIRS OF GOVERNMENT, 343 

I. President, 343 
Vol. X 



PRIVILEGED COMMUNICATIONS. 95 

2. Governor of State, 343 

A. Not Compellable to Produce Papers, 343 

B. Reasons, 344 

C. Action, 344 

D. Time of Signing Bill, 344 

E. Governor's Subordinates Entitled to Privilege, 344 

3. Governor of Colony, 344 

4. Lord Lieutenant, 344 

5. Departments of Government, 344 

A. 5"?a^(? Department, 344 

B. [Far Department, 344 

a. Secretary of War, 344 

b. Commander-in-Chief , 344 

c. F/an 0/' Fortress, 345 

C. Admiralty, 345 

D. Treasury, 345 

a. National Bank Examiner, 345 

b. Appraiser of Imported Goods, 345 

E. Postal Matters — Letter Carrier, 345 

F. Interior Department, 346 

a. Collector of Internal Revenue, 346 

b. Other Revenue Officers, 346 

c. Patent Office, 346 

G. Officers of Government and Agencies of Government, 

346 
H. Legal Department, 346 

a. Prosecuting Officers — United States Attorney- 

General, 346 

b. Prosecuting Attorney, 7,47 

(i.) Contra, 347 

(2.) Prosecuting Attorney as to Grand Jury 

Proceedings, 347 
(3.) Statement of Witness, 347 

c. Arresting Officer, 347 

d. Information Coiicerning Informer, 348 

e. Complaining Witness in Prosecution, 348 
I. O/Zz^r Fn&//c Matters, 348 

a. Bankruptcy Commissioner and Insolvent, 348 

b. Board of Trade, 348 

c. Ship's Papers, 348 

d. Herald's OfUce, 349 

e. Records of Foreign Consulate, 349 

f. Municipal Corporation, 349 

g. Town Clerk, as to Inventories of Taxable Prop- 

erty, 349 

6. Character of Communication — Hoiv Shown, 349 

VI. JUDICIAL MATTERS, 350 
I. Judge, 350 

Vol. X 



% PRIVILEGED COMMUNICATIONS. 

A. Matters Taking Place at Trml, 350 

B. Case and Opinion for Judge, 350 

C. Before Grand Jury as to Statements of Witness at 

Trial, 351 

D. Papers Upon Which Warrant Issued, 351 

E. Grounds of Decision, 351 

F. Records of Court, 351 
2. Arbitrator, 352 

A. What May Show, 352 

a. Course of Proceedings, 352 

b. Mistake in Award, 352 

c. Competent to Sustain Award, 353 

d. But Not to Impeach it, 353 

(i.) May Impeach in Case of Fraud, 353 
(2.) Arbitrator Not Joining in Azvard, 353 
(3.) Cannot Shozu Dissent in Opinion, 353 
(4.) Misconduct of Self, 353 
(5.) Misconduct of Associates, 353 

B. To Whom Privilege Belongs, 353 

VII. COMMUNICATION IN VIEW OF LITIGATION, 354 

1. Bctzveen Partners, 354 

2. Between Principal and Agent, 354 

A. Limited to Pending Litigation, 355 

B. Threat Not Sufficient, 355 

3. Party to Action and Party to Transaction, 355 

4. Writing Signed by Opponent, 355 

5. Minutes of Corporation, 355 

6. Admissibility in Court's Discretion, 356 

7. Regular Reports in Course of Employment, 356 

VIII. COMMUNICATION IN REGARD TO COMPROMISE, 356 

1, Proposed, 356 

2. Accomplished, 356 

IX. EXPERT IN PATENT CASE, 356 

X. CERTAIN COMMUNICATIONS NON-PRIVILEGED, 357 

1. Ordinary Business Communications, 357 

2. Telegraphic Dispatch, 357 

A. Action Betzveen Receiver and Sender, 358 

B. In Criminal Prosecution, 358 

3. Banking Matters, 358 

4. Medical Adviser to Life Insurance Company, 358 

5. Nezvspaper Reporter, 358 

6. Mason, 358 

7. Attorney and Clerk, 358 

8. Commercial Agency, 359 

9. Ordinary Communication, Under Oath of Secrecy, 359 
10. Letter as to Character of Servant, 359 

Vol. X 



PRIVILEGED COMMUNICATIONS. 



97 



I. PHYSICIAN AND PATIENT. 

1. General Rule. — A physician^ may not, without the consent of 
his patient, give in evidence any information acquired from or in 
regard to his patient in the course of professional employment, 
which was confidential and necessary to enable him to perform his 
duty ;^ and a patient cannot be compelled to testify concerning the 
advise or treatment of his physician.-"^ 



1. The word " physician," as used 
in this article, includes surgeon. 
Statutes creating the privilege use 
the words " physician or surgeon." 

2. Physicians may not testify as 
to knowledge acquired from patient 
in the course of professional em- 
ployment. 

California. — Keast v. Santa Ysabel 
G. AI. Co., 136 Cal. 256, 68 Pac. 771. 

Colorado. — Colorado Fuel & Iron 
Co. V. Cummings, 8 Colo. App. 541, 
46 Pac. 875. 

Illinois. — Reeves v. Herr, 59 111. 81. 

Indiana. — Masonic M. B. Assn. v. 
Beck, yy Ind. 203, 40 Am. Rep. 295; 
Excelsior Mut. Aid Assn. v. Riddle, 
91 Ind. 84; Penn. Mut. L. Ins. Co. v. 
Wiler, 100 Ind. 92, 50 Am. Rep. 769; 
Heuston v. Simpson, 115 Ind. 62, 17 
N. E. 261, 7 Am. St. Rep. 409; Wil- 
liams V. Johnson, 112 Ind. 273, 13 N. 
E. 872; Morris v. Morris, 119 Ind. 
341, 21 N. E. 918; Springer v. Byram, 
137 Ind. 15, 36 N. E. 361, 45 Am. 
St. Rep. 159; Harris v. Rupel, 14 
Ind. 209; Gurlcy v. Park, 135 Ind. 
440, 35 N. E. 279. 

lozca. — Raymond v. Burlington, 
C. R. & N. R. Co., 65 Iowa 152; 21 
N. W. 495 ; Prader v. Accident Assn. 
95 Iowa 149, 63 N. W. 601 ; Finne- 
gan V. Sioux City, 112 Iowa 232, 83 
N. W. 907; Battis V. Chicago, R. I. 
& P. R. Co., 124 Iowa 623, 100 N. 

W. 543. 

Michigan. — Briggs v. Briggs, 20 
Mich. 34; Cooley v. Foltz, 85 Mich. 
47, 48 N. W. 176; Jones v. Life As- 
sur. Co., 120 Mich. 211, 220, 79 N. W. 
204; Storrs V. Scougale, 48 Mich. 
387, 12 N. W. 502 ; Perry v. John 
Hancock Mut. L. Ins. Co., 106 N. \V. 
860; Krapp v. Metropolitan L. Ins. 
Co., 106 N. W. 1 107. 

Missouri. — Harriman v. Stowe, 57 
Mo. 93 ; Groll i'. Tower, 85 Mo. 249, 
55 Am. Rep. 358; s. c. to same effect 



in 12 Mo. App. 585 ; Linz v. Massa- 
chusetts Mut. L. Ins. Co., 8 Mo. App. 
363; Norton v. City of Moberly, 18 
Mo. App. 457 ; Kling v. City of Kan- 
sas, 27 Mo. App. 231, 241 ; Webb r. 
Metropolitan St. R. Co., 89 Mo. App. 
604; Haworth v. Kansas C. So. R. 
Co., 94 Mo. App. 215, 68 S. W. III. 

Nezc York. — Edington zr. Mutual 
L. Ins. Co., 67 N. Y. 185, 194, revers- 
ing s. c. 5 Hun I ; Dilleber v. Home 
L. Ins. Co., 69 N. Y. 256, 25 Am. 
Rep. 182; Matter of Coleman, iii 
N. Y. 220, 19 N. E. 71 ; Nelson v. 
Oneida, 156 N. Y. 219, 50 N. E. 802, 
66 Am. St. Rep. 556; Hanford v. 
Hanford, 3 Edw. Ch. 468; Hunn v. 
Hunn, I Thomp. & C. 499; Redmond 
V. Industrial Ben. Assn., 28 N. Y. 
Supp. 1075 ; McGillicuddy v. Farm- 
ers' L. & T. Co., 55 N. Y. Supp. 242 ; 
In re Myer's Will, 184 N. Y. 54, 76 
N. E. 920. 

Rhode Island. — Not privileged in 
Rhode Island. Banigan v. Banigan, 
26 R. I. 454^ 59 Atl. 313. 

Texas. — Such communications are 
not privileged in Texas. See Stea- 
gald V. State, 22 Tex. Crim. 464, 3 
S. W. 771. 

Wisconsin. — Boyle :•. N. W. M. 
R. A., 95 Wis. 312, 70 N. W. 351; 
Kcnyon v. City of Mondovi, 98 Wis. 
50, 72 N. W. 314; Shafer v. City of 
Eau Claire, 105 Wis. 239, 81 N. W. 
409 ; Green v. Town of Nebagamain, 
113 Wis. 508, 89 N. W. 520. 

A case in which communications 
to a physician were held privileged, 
although not confidential, as that 
term is used in this article, and not 
made for the purpose of receiving 
medical advice or treatment is found 
in Doran v. Cedar R. & M. C. R. 
Co., 117 Iowa 442, 90 N. W. 815. 
See statement and quotation under 
I, 5. E, d, post. 

3. See I, 5, A, b, post. 



Vol. X 



98 



PRIVILEGED COMMUNICATIONS. 



2. Not Privileged at Common Law. — Communications to physi- 
cians were not privileged at common law.* 

Statutes. — Statutes making such communications privileged have 
been enacted in almost all of the United States. Federal courts 
apply the statute of the state in which the trial court sits.^ 

3. Founded Upon Public Policy. — It has been held that the rule 
declaring incompetent the testimony of ph)'sicians as to knowledge 
acquired from patients while engaged in professional employment is 
founded upon public policy." But the contrary has been held." 

4. Object of Rule. — Protection of Patient. — The object of the 
rule is the protection of the patient.^ 



4. £ n gla n d. — Wheeler v. Le 
Marchant, i? Ch. Div. 675, 50 L. J. 
Ch. 793, 44 L. T. 632; Rex v. Gib- 
bons, I Car. & P. 97, 1 1 E. C. L. 327 ; 
Broad v. Pitt, 3 Car. & P. 518, 14 
E. C. L. 423; Doe, d. Peter v. Wat- 
kins, 6 L. J. N. S. C. P. 107; Rus- 
sell V. Jackson. 9 Hare 387, 68 Eng. 
Reprint 558. 

Indiana. — Springer v. Byram, 137 
Ind. 15, 36 N. E. 361, 45. Am. St. 
Rep. 159, 163, 23 L. R. A. 244. 

Iowa. — Prader v. Accident Assn. 
95 Iowa 149, 63 N. W. 601 ; Winters 
V. Winters, 102 Iowa 53, 71 N. W. 
184, 63 Am. St. Rep. 428. 

Michigan. — Campau v. North, 39 
^Nlich. 606, i:i Am. Rep. 433. 

Montana. — Territory v. Corbett, 3 
Mont. 50. 

Nezi' York. — Edington v. Aetna L. 
Ins. Co., 77 N. Y. 564, Pierson v. 
People, 79 N. Y. 424, 35 Am. Rep. 
524; Buffalo, L. T & S. Co. v. 
Knight T. & M. M. A. Assn., 126 
N. Y. 450, 27 N. E. 942, 22 Am. St. 
Rep. 839; Allen v. Public Admr., i 
Bradf. 221 ; People v. Stout, 3 Park. 
Crini. 670; Deutschmann v. Third 
Ave. R. Co., 84 N. Y. Supp. 887, 893. 

North Carolina. — Fuller v. Knights 
of Pythias, 129 N. C. 318, 40 S. E. 65. 

Rhode Island. — Banigan v. Bani- 
gan, 26 R. I. 454, 59 Atl. 313. 

Utah. ^Mnnz v. Salt Lake City 
R. Co., 25 Utah 220, 70 Pac. 852. 

IVisconsin. — Boyle v. Northwest- 
ern Mut. R. Assn. 95 Wis. 312, 320, 
70 N. W. 351- 

5. Connecticut Life Ins. Co. f. 
Union Trust Co., 112 U. S. 250, ap- 
plying New York Statute. Statute 
of Missouri applied in Adreveno v. 
Mutual R. F. L. Assn., 34 Fed. 870; 
statute of New York applied in 

Vol. X 



Pennsylvania R. Co. t'. Durkee. 147 
Fed. 99, and in Metropolitan St. R. 
Co. V. Jacobi, 112 Fed. 924, 50 C. C. 
A. 619 ; Mutual Ben. Life Ins. Co. 
c'. Robins, 58 Fed. 723, 731, 19 U. S. 
App. 266. 22 L. R. A. 331, applying 
Iowa statute. 

6. Westover 1'. Aetna L- Ins. Co., 
99 N. Y. 56, I N. E. 104, 52 Am. 
Rep. I ; Davis 7'. Supreme Lodge, K. 
of H., 165 N. Y. 159, 58 N. E. 891 ; 
Butler V. Manhattan R. Co., 30 Abb. 
N. C. 78, 23 N. Y. St. 163; In re 
Will of Bruendl, 102 Wis. 45, 78 N. 
W. 169; In re Myer's Will, 184 N. 
Y. 54, 76 N. E. 920. 

7. Adreveno v. INIutual R. F. L. 
Assn., 34 Fed. 870 ; Grand Rapids I. 
R. Co. V. Martin, 41 'M'xch. 667. 3 
N. W. 173.. 

As to public policy, and question 
of waiver contained in application 
for life insurance as being contrary 
to public policy, see Dougherty v. 
Metropolitan L. Ins. Co., 33 N. Y. 
Supp. 873. 

8. Indiana. — Hauk v. State, 148 
Ind. 238, 260, 46 N. E. 127, 47 N. E. 

465- . 

Michigan. — Grand Rapids & I. R. 
Co. V. Martin, 41 Mich. 667, 3 N. 
W. 173 ; Scripps v. Foster, 41 Mich. 
742, 3 N. W. 216. 

Missouri. — Groll v. Tower, 85 Mo. 
249, 55 Am. Rep. 358 ; Carrington v. 
St. Louis, 89 IMo. 208, I S. W. 240, 
58 Am. St. Rep. 108. 

Nezi' For/c. — Buffalo L. F. & Co. 
V. Knights T Assn., 126 N. Y. 450, 
27 N. E. 942, 22 Am. St. Rep. 839, 
People t'. Stout, 3 Park. Crim. 670. 

IVisconsin. — Boyle zf. Northwest- 
ern Mut. R. Assn., 95 Wis. 312. 322. 
70 N. W. 351. In re Will of Bruendl, 
102 Wis. 45, 78 N. W. 169. 



PRIVILEGED COMMUMCATJOXS. 



99 



5. Nature of Privilege. — The rule confers a right upon the 
patient." 

To Whom Belongs. — 'The privilege belongs to the patient/" or to 
his personal representative.^^ 



In Grand Rapids & I. R. Co. z'. 
Martin, 41 Mich. 667, 3 N. W. 173, 
the court says: "The objection that 
a phj'sician cannot reveal with his 
patient's consent what he has learned 
during his treatment, is one which 
if valid would render it impossible 
in either civil or criminal cases to 
use the only testimony which would 
show the nature and extent of dis- 
ease. The statute is one passed for 
the sole purpose of enabling persons 
to secure medical aid without be- 
trayal of confidence. It is only a 
question of privilege, and such com- 
munications are on the same footing 
with any other privileged communi- 
cations which the public has no con- 
cern in suppressing when there is no 
desire for suppression on the part of 
the persons concerned." 

In an action to recover value of 
physician's services, the Supreme 
Court of New York says : " The 
statute was not passed for the pecun- 
iary benefit of the medical fraternity, 
but to silence its voice, and in this 
manner protect those seeking med- 
ical assistance, by excluding all in- 
quiry which may offend the sensi- 
tiveness of the living, or reflect in 
the slightest on the memory of the 
dead. It was to throw the mantle 
of charity over the sick and unfortu- 
nate, and at the same time elevate 
the medical practitioner to the high 
plane with the clergy and good Sa- 
maritan, leaving him to protect his 
fees according to professional ethics, 
•SO long as he does not infringe the 
humanitarian sentiment embraced in 
the statutory prohibition. It is a 
beneficent statue, clearly indicating 
the policy of the state. It should not 
be impaired, but preserved in its in- 
tegrity, according to its manifest 
spirit and purpose." McGillicuddy v. 
Farmers' L. & T. Co., 55 N. Y. 
Supp. 242. 

" The object of the statute is 
plainly this, that persons may feel 
sure that whatever they disclose to 
a physician, in his professional capac- 
ity, in regard to their bodily condi- 



tion, whether it be by word or by 
allowing a physical examination, shall 
be held sacred." Grattan ?-. Metro- 
politan L. Ins. Co., 24 Hun (N. 

^■^ 43. 

9. The privilege is a legal right. 
McConneil t'. Osage, 80 Iowa 293, 
303, 45 N. W. 550, 8 L. R. A. 778. 

It is a personal privilege. Briesen- 
meister v. Knights of Pythias, 81 
Mich. 525. 45 N. W. 977; Allen z'. 
Public Admr.. i Bradf. (N. Y.) 221. 

10. Indiana. — Penn. Mut. L. Ins. 
Co. z'. Wiler, 100 Ind. 92, 50 Am. 
Rep. 769; Springer v. Byram, 137 
Ind. 15, 36 N. E. 361, 45 Am. St. 
Rep. 159, 23 L. R. A. 244; Hauk v. 
State, 148 Ind. 238, 260, 46 N. E. 
127, 47 N. E. 465- 

Michigan. — Eraser z'. Jennison, 42 
Mich. 206, 3 N. W. 882; Storrs v. 
Scougale, 48 Mich. 387, 395, 12 N. 
W. 502; Lincoln r. City of Detroit, 
loi Mich. 245, 59 N. W. 617. 

Nezi' York. — Johnson z\ Johnson, 
14 Wend. 637. 

J^Visanisin. — Boyle v. Northwest- 
ern Mut. L. Assn., 95 Wis. 312, 70 
N. W. 351 ; Kenyon v. City of Mon- 
dovi. 98 Wis. 50, 7:^ N. W. 314. 

11. Heuston v. Simpson, 115 Ind. 
62, 17 N. E. 261, 7 Am. St. Rep. 409. 

" The right to exclude the testi- 
mony prohibited survives to the rep- 
resentatives ... of a deceased 
person." Staunton z'. Parker, 19 Hun 
(N. Y.) 55. This case involved a 
will contest, in which the issue was 
the testator's sanity. Pending pro- 
bate of will, it was held that the 
heirs at law represented testator so 
far as related to privilege. 

It was held that, pending proceed- 
ings for probate, and while executor's 
status was undetermined, the heirs- 
at-law represented decedent so far 
as related to the exercise of this 
privilege. 

For cases in which physician was 
allowed to raise question of privilege, 
sec Mott z'. Consumers' Ice Co., 52 
How. Pr. (N. Y.) 148, s. c. on ap- 
peal, lb. 244 ; Lowenthal v. Leonard, 
46 N. Y. Supp. 818. 

Vol. X 



100 



PRIVILEGED COMMUNICATIONS. 



Prohibition Relates to Physician Alone. — The prohibition of the 
law operates upon the physician alone. It is his mouth that is closed. ^^ 

A. Right of Patient. — a. To Exclude Physician's Testimony. 
The rule confers upon the patient a right to exclude his physician's 
testimony. Consequently a physician shall not testify as to any 
knowledge acquired f^om his patient in the course of professional 
employment and necessary to enable him to perform his duties.^^ 



12. Buffalo L. T. & S. D. Co. v. 
Knights T. & M. M. A. Assn., 126 
N. Y. 450, 27 N. E. 942, 22 Am. St. 
Rep. 839; Deutschmann v. Third 
Ave. R. Co., 84 N. Y. Supp. 887. 

13. United States. — Adreveno v. 
Mutual R. F. Assn., 34 Fed. 870. 

Indiana. — Penn. Mut. L. Ins. Co. 
V. Wiler, 100 Ind. 92, 50 Am. Rep. 
769; Heuston v. Simpson, 115 Ind. 
62, 17 N. E. 261, 7 Am. St. Rep. 409. 

Iowa. — Raymond v. BurHngton 
C. R. & N. Co. (Iowa), 17 N. W. 
923, same ruling on rehearing, 65 
Iowa 152, 21 N. W. 495; Keist v. 
Chicago, G. W. R. Co., no Iowa 32, 
81 N. W. 181. 

Michigan. — Grand Rapids & I. R. 
Co. V. Martin, 41 Mich. 667, 3 N. 
W. 173. 

New York. — Grattan v. Metropol- 
itan L. Ins. Co., 80 N. Y. 281, 298, 36 
Am. Rep. 617; Davis v. Supreme 
Lodge K. of H., 165 N. Y. 159, 58 
N. E- 891 ; Matter of Hoyt, 20 Abb. 
N. C. 162 ; Buffalo L. T. & S. O. Co. 
V. Knights Templar & M. AI. A. 
Assn., 126 N. Y. 450, 27 N. E. 942, 
22 Am. St. Rep. 839; Edington v. 
Aetna L. Ins. Co., .77 N. Y. 564; 
Westover v. Aetna h. Ins. Co., 99 
N. Y. 56, I N. E. 104, 52 Am. Rep. 
I ; Cahen v. Continental L. Ins. Co., 
69 N. Y. 300; Renihan v. Dennin, 
103 N. Y. 573, 9 N. E. 320, 57 Am. 
Rep. 770; Redmond v. Industrial B. 
Assn., 28 N. Y. Supp. 1075; s. c. 
affirmed 150 N. Y. 167, 44 N. E. 769. 

The rule gives the patient the 
" privilege of suppressing informa- 
tion " acquired confidentially by a 
physician. Referring to statute making 
a physician incompetent to testify to 
professional communications, the su- 
preme court of Missouri says : 
" This statute, as frequently con- 
strued by this court, merely gives the 
patient the privilege of suppressing 
information thus acquired and was 
not intended to operate in its abso- 

Vol. X 



lute suppression." Davenport v. Han- 
nibal, 108 Mo. 471, 18 S. W. 1 122. 

" A rule is prescribed which he is 
not to be ' allowed ' to violate ; a 
privilege is guarded which does not 
belong to him but to his patient, and 
which continues indefinitely, and can 
be waived by no one but the patient 
himself." Storrs v. Scougale, 48 
.Mich. 387, 12 N. W. 502. The stat- 
ute applied in this case (Comp. Laws 
of Alichigan, §5943) provided that 
" no person duly authorized to prac- 
tice physic and surgery shall be al- 
lowed to disclose any information 
which he may have acquired in at- 
tending any patient, in his profes- 
sional character, and which informa- 
tion was necessary to enable hun to 
prescribe for such patient as a phy- 
sician, or do any act for him as a 
surgeon." 

Statute providing that physician 
cannot be " compelled " to testify, etc., 
construed to provide that he shall not 
be allowed so to do. Boyle v. North- 
western M. R. Assn., 95 Wis. 312, 70 
N. W. 351 ; Green v. Town of Nebag- 
amain, 113 Wis. 508, 89 N. W. 520. 

jMasonic Assn. v. Beck, 77 Ind. 203, 
40 Am. Rep. 295, was decided under 
a statute which provided that physi- 
cians were not competent witnesses 
" as to matters confided to them in 
the course of their profession; * * 
* unless with the consent of party 
making such confidential communica- 
tions." The action was upon a policy 
of life insurance. The depositions 
of certain physicians were excluded. 
Their testimony in the main con- 
cerned the ailments of the patient 
when under their treatment, and 
tended to sustain the allegations of 
the answer that patient had certain 
diseases, and perhaps died from their 
effect. After quoting the statute, the 
Court says : " The question to be de- 
cided, therefore, is, whether the phy- 



PRIVILEGED COMMUNICATIONS. 



101 



b. To Refuse His Ozoi Testimony. — The rule also gives the pa- 



sician, who, in the course of the 
treatment of his patient has obtained 
a knowledge of his aihnents, is com- 
petent to testify in relation thereto, 
in a civil action, without consent of 
the patient or of the party represent- 
ing the patient-" It was contended 
that before the testimony could be 
excluded it must affirmatively appear 
that the information was confided to 
him which he is called on to disclose. 
Also that the physician might be re- 
quired to testify as to what he had 
learned by observation or by an ex- 
amination of the patient, and, indeed, 
as to what the patient told him, un- 
less learned or told under an injunc- 
tion of secrecy, express or implied, 
as in case of secret or private dis- 
' eases. On this question the Court 
says : " We think the statute ought 
to have, and was designed to have, a 
much broader scope. The relation of 
physician and patient, no matter what 
the supposed ailments, should be pro- 
tected as strictly confidential, sub- 
ject only to the right of the patient 
to waive the restriction; or if the 
patient shall have died, then subject 
to the choice of the party who may 
be said to stand in the place of the 
deceased and whose interests may be 
affected by the proposed disclosure." 
In Gartside v. Connecticut RI. L. 
Ins. Co., 76 Mo. 446, 43 Am. Rep. 
765, the statute provided that the fol- 
lowing persons were incompetent : 
" A physician or surgeon, concerning 
any information which he may have 
acquired from any patient while at- 
tending him in a professional char- 
acter, and which information was 
necessary to enable him to prescribe 
for such patient as a physician, or do 
any act for him as a surgeon." 
Under this statute the court held that 
any information acquired by the phy- 
sician from his patient in the course 
of professional employment, whether 
from statements of the patient or 
from observation, is privileged. Stat- 
utes of New York and Michigan 
were cited which provided that no 
person authorized to practice physic 
and surgerj' should be allowed to 
" disclose any information which he 
may have acquired in attending any 



patient in a professional character," 
etc. It was contended that, as the 
Missouri statute added the words 
" from the patient " it was intended 
to limit the privilege to statements 
made by the patient to the physician. 
But it was held that information ac- 
quired by observation or inspection 
was acquired from the patient, as well 
as that obtained from oral statements. 
The court said : " The construction 
contended for by defendant's counsel, 
that by the statute a physician is for- 
bidden to disclose only such informa- 
tion as may have been communicated 
to him orally by his patient, would, 
in our opinion, nullify the law. To 
hold that, while under the statute a 
physician would be forbidden from 
disclosing a statement made to him 
by his patient that he was suffering 
from S3'philis ; and to allow him to 
state as the result of his observation 
and examination of the patient that 
he was diseased with syphilis, would 
be to make the statute inconsistent 
with itself. It is doubtless true that 
a physician learns more of tlie condi- 
tion of a patient from his own diag- 
nosis of the case than from what is 
communicated by the words of the 
patient; and to say that while the 
mouth of a physician is sealed as to 
the information acquired orally from 
his patient, it is opened wide as to 
information acquired from a source 
upon which he must rely, viz. : his 
own diagnosis of the case, would be 
to restrict the operation of the stat- 
ute to narrower limits than v.'as ever 
intended by the legislature and vir- 
tually to overthrow it. It follows 
from what has been said that the Cir- 
cuit Court erred in permitting Drs. 
Gregory and Bauduy, two physicians, 
to give in evidence the information 
acquired by them while attending 
Gartside, their patient, professionally, 
although such information was ac- 
quired not from what the patient said 
but from observ.ation and examina- 
tion. The same error was committed 
in reference to the admission of the 
evidence of Dr. Hodgcn, except as to 
information acquired by him from 
observing Gartside on the street an- 

Vol. X 



102 



PRIVILEGED COMMUNICATIONS. 



tient the right to refuse to give his own testimony concerning mat- 
ters confidentially communicated to his physician.^* 

B. Physician Cannot Refuse; to Testify. — As the rule sim- 
ply confers a right upon the patient, it does not give the physician 
a right to refuse to give his testimony as to matters communicated 
between himself and patient. ^^ 

C. Physician Not Incompetent as Witness. — Nor does it 
make a physician incomj^etent as a witness for or against his 
patient. ^° 

May Testify as Expert. — The fact of attendance does not disqualify 
attending physician as an expert ; and, in response to questions pre- 
senting a hypothetical case, he may state his opinion as to his pa- 
tient's condition, although knowledge acquired while attending pa- 
tient may influence his answers.^' 



terior to his employment as a physi- 
cian." 

14. Burgess v. Sims Drug Co., 114 
Iowa 275, 86 N. W. 307, 89 Am. St. 
Rep. 359. 54 L. R. A. 364- 

In Citizens' St. R. Co. v. Shepherd. 
30 Ind. App. 193, 65 N. K. 765. the 
court says : " While in the case at bar 
appellant sought only to prove the 
statements of the injured part}', yet, 
if the patient may be compelled to 
testify to the facts disclosed to his 
phj'sician, the protection intended by 
the statute would be removed." 

In Aspy V. Botkins, 160 Ind. 170. 66 
N. E. 462, it is held that patient can- 
not be compelled to state whether or 
not a physician had taken an X-ray 
photograph of a part of her body. 

15. Penn. Mut. L,. Ins. Co. v. 
Wiler. 100 Ind. 92, 50 Am. Rep. 
769 ; Zimmer v. Third Ave. R. Co., 55 
N. Y. Supp. 308; Valensin z'. Valen- 
sin, 72 Cal. 106, 14 Pac. 397. Contra. 
Johnson z;. Johnson, 4 Paige Ch. (N. 
Y.) 460, 468. 

16. Winters v. Winters, 102 Iowa 
53, 71 N. W. 184. 63 Am. St. Rep. 
428; Fraser v. Jennison. 42 Mich. 
206, 3 N. W. 882; Squires v. Chilli- 
cothe, 89 Mo. 226, I S- W. 22, ; Block 
V. Milwaukee, St. L. & C. R. Co., 89 
Wis. 371, 61 N. W. iioi, 46 Am. 
St. Rep. 849, 27 L. R. A. 365 ; Schlos- 
ser V. Schlosser, 29 Ind. 488. 

In Groll V. Tower, 85 Mo. 249, 55 
Am. Rep. 358. the Supreme Court of 
Missouri refers to Harriman v. 
Stowe. 57 Mo. 93, stating that that 
case holds a physician to be incompe- 

Vol. X 



tent as a witness, and disapproves the 
decision. It was held in an early 
case in New York that a physician 
was absolutely privileged from giv- 
ing in evidence any knowledge ac- 
quired from his patient. See John- 
son V. Johnson, 4 Paige Ch. (N. Y.) 
460. 468. That case was reversed in 
14 Wend. (N. Y.) 614, and the New 
York courts now hold a physician to 
be a competent witness. See Hoyt v. 
Hoyt. 112 N. Y. 493, 20 N. E. 402. 

17. In Meyer v. Standard L. & A. 
Ins. Co., 40 N. Y. Supp. 419, the court 
says: "That fact (attendance) did 
not render such an answer incompe- 
tent, but merel}' affected its weight." 
The court further says : 

" If a physician, who has profes- 
sionally attended upon and pre- 
scribed for a person, and has also 
observed such patient while not thus 
in attendance, can give an opinion 
as to his condition, based upon facts 
he observed while not acting profes- 
sionally, and excluding from his 
mind what he observed while in at- 
tendance, we can see no reason to 
doubt that he may also give an opin- 
ion upon a hypothetical state of facts 
stated in a question which exclude-i 
all knowledge of -the condition of 
the patient which he derived while m 
professional attendance. The only 
objection that can be urged to a doc- 
tor, who has been in medical at- 
tendance upon a person, giving an 
opinion in answer to a hj-pothetical 
question as to the condition of nis 
patient, is that the knowledge he de- 
rived while in attendance might af- 



PRI VI L E C ED CO MM UNI CA Tl NS. 



103 



D. Matter Communicated Not Incompetent. — The rule does 
not make matter communicated to, or knowledge acquired by, a 
physician incompetent/'* 

E. Right Not Dependent Upon. — a. Form In Which Testi- 
mony Is Presented. — Patient has the right to exclude his physi- 
cian's testimony, in whatever form presented, whether orally in 
court, or by deposition, affidavit, certificate of death, proof of death 
of insured person, or otherwise.^® 



feet his answer. But the same ob- 
jection exists to the physician's giv- 
ing an opinion foimded upon obser- 
vation of his patient while not in ac- 
tual professional attendance. See 
also Edington v. Insurance Co., 77 
N. Y. 564; Herrington v. Winn, 60 
Hun, 238, 14 N. Y. Supp. 612; In re 
Loewenstine's Will, 2 Misc. Rep. 323, 
21 N. Y. Supp. 931." Meyer v. Stan- 
dard L. & Ace. Ins. Co., 40 N. Y. 
Supp. 419. To same general eflfect, 
see Crago v. Cedar Rapids, 123 Iowa 
48, 98 N. W. 354. 

18. Allen v. Public Admr., i 
Bradf. (N. Y.) 221; Deutschmann v. 
Third Ave. R. Co.. 84 N. Y. Supp. 
887; Davenport v. Hannibal, 108 Mo. 
471, 18 S. W. 1 122; Penn. v. Mut. L. 
Ins. Co. V. Wiler, 100 Ind. 92, loi, 
50 Am. Rep. 769. See " Waiver," 
infra. 

In May v. Northern Pac. R. Co., 
32 Mont. 522, 81 Pac. 328, 70 L. R. 
A. Ill, the court says: "It is not the 
inherent incompetency of the evidence 
that precludes it being given, but it 
is the fact that the evidence comes 
from a person who occupies a cer- 
tain relation of confidence to the pa- 
tient, by virtue of which the statute 
saj's he shall not disclose his infor- 
mation without the consent of the 
person from whom he gained it." 
" It (statute in question) does not ex- 
clude the evidence by reason of its 
inherent character, but only when 
given by the persons within its pur- 
view." Mcllor V- Missouri Pac. R. 
Co., 105 Mo. 455, 16 S. W. 849. 10 
L. R. A. 36. 

19. As to oral testimony or dep- 
ositions, see cases generally. 

" By reasonable construction it 
(New York statute) excludes a phy- 
sician from giving testimony in a ju- 
dicial proceeding in anv form, 
whether by affidavit or oral examina- 



tion, involving a disclosure of confi- 
dential information acquired in at- 
tending a patient, unless the seal of 
secrecy is removed by the patient 
himself." Buffalo, L. T. & S. D. Co. 
c'. Knights Templar & M. M. A. Assn. 
126 N. Y. 450, 27 N. E. 942. 22 .\m. 
St. Rep. 839. 

Certificate of Death. . — Physician's 
certificate of death, tiled with a mun- 
icipal board, is not admissible to 
show cause of death. Davis v. Su- 
preme Lodge, 165 N. Y. 159. 58 N. 
E. 891. aifinning s. c. 35 App. Div. 
354, 54 N. Y. Supp. 1023 ; Robinson 
V. Supreme Commandery. U. O. G. 
C. 77 N. Y. Supp. hi; s. c. affirnicd 
by Appellate Division, 79 N. Y. Supp. 
13 ; afRnncd by Court of Appeals, 
177 N. Y. 564, 69 N. E. 1 130. Contra. 
But it has been held that a certifi- 
cate of death required by statute to 
be filed is competent to show cause 
of death. Krapp v. Metropolitan L. 
Ins. Co. (Mich.), 106 N. W. 1107. 

It has been held that in an action 
upon a policy of life insurance a phy- 
sician's certificate of death, presented 
with proofs, is admissible as an ad- 
mission of plaintiff, and that its re- 
ception in evidence did not violate 
the rule forbidding the disclosure of 
confidential communications. Buffalo 
L- T. & S. D. Co. V. Knights Templar 
& M. M. A. Assn., 126 N. Y. 450, 27 
N. E. 942, 22 Am. St. Rep. 839; Car- 
michael v. John Hancock L. Ins. Co.. 
90 N. Y. Supp. J033. Contra. — But 
the contrary of this has been held. 
Dreier v. Continental L. Ins. Co.. 24 
Fed. 670. 

Affidavit — Affidavit of physician 
showing the condition and appear- 
ance of a certain person, and intended 
to be used in support of an applica- 
tion to appoint a guardian of such 
person as an habitual drunkard, is 
inadmissible. Matter of Hoyt, 20 

Vol. X 



104 



PRIVILEGED COMMUNICATIONS. 



Abb. N. C. (N. Y.) 162; Dick v. Su- 
preme Body of I. C, 138 Mich. 372. 
loi N. W. 564. 

Competent as Admission of Plain- 
tiiF But such certificate may be in- 
troduced as an admission of plaintiff. 
Carmichael v. John Hancock L. Ins. 
Co., 90 N. Y. Supp. I033. 

Statements in Proof of Death — In 
an action on a hfe insurance 
poHcy, defense being that insured had, 
in his application for msurance. made 
false representations as to his health, 
statements of the physician of in- 
sured set forth in proofs of death 
furnished by beneficiary to the insur- 
ance company are inadmissible. 
Dreier v. Continental L. Ins. Co-, 24 
Fed. 670. In this case the only proof 
as to the condition of insured at the 
time application was made consisted 
in certain statements of his physician 
set forth in proofs of death. The 
court says : 

" It is clear that Dr. Hadley could 
not, against the will of the plaintiff, 
if called as a witness, have been al 
lowed to testify to the facts contained 
in these statements. Pennsylvania 
Mut. Life Ins. Co. v. Wiler, supra; 
Masonic Mut. Benefit Assn. v. Beck. 
77 Ind. 208; Connectitut Mut. Life 
Ins. Co. V. Union Trust Co., supra. 
It is true that by the terms of the 
policy the plaintiff, in order to have 
a right of action, was bound to furn- 
ish the company within a specified 
time ' satisfactory proof of the death ;' 
but this did not entitle the company 
to go further, as it seems to have 
done, and require of the plaintiff a 
statement by the physician of his 
knowledge concerning the previous 
complaints and ailments of the de- 
ceased, which, proximately at least, 
did not cause the death ; and I see no 
reason at all why such statements, 
when so obtained, should become 
available to the company as evidence, 
in a suit upon the policy, of facts 
which could not be shown by the tes- 
timony of the one who made the 
statement. The law which declares 
communications between patient and 
physician confidential should not be 
evaded in any such way." Contra 
Briesenmeister v. Knights of Pythias, 
81 Mich. 525. 45 N. W. 977- 

In Buffalo, L. T. & S. D. Co. v. 



Knights Templar & M. M. A. Assn., 
126 N. Y. 450, 27 N. E. 942, 22 Am. 
St. Rep. 839, statements of physician 
as to cause of death were excluded 
as privileged communications. The 
exclusion was held wrong on this 
ground, but proper on the ground 
that, admission, being that of a guar- 
dian, did not bind his ward. The 
court says that the statute of privi- 
lege prevents a physician " testify- 
ing," not from making statements. 

In Nelson v. Nederland L. Ins. Co., 
no Iowa 600, 81 N. W. 807, it is held 
that the inclusion of physician's affi- 
davit as to patient's condition in proof 
of death does not violate rule against 
disclosure of confidential communica- 
tions. The court uses this language : 
" But it is said this was in violation 
of the statute already mentioned. 
That does not prescribe any rule of 
professional conduct. The physician, 
in disclosing the secrets of his pa- 
tient in conversation or writing, vio- 
lates no law of which we have knowl- 
edge, though such a course may be 
reprehensible, and in disregard of 
professional propriety. It is ' in giv- 
ing testimony' in a judicial proceed- 
ing that such disclosures are pro- 
hibited by statute, and doubtless this 
may no more be done by affidavit 
than orally. But here the informa- 
tion ascertained professionally had 
been revealed in an affidavit, not for 
use in such a proceeding, and it was 
not offered nor received as evidence 
of the physician, or of what he said, 
as in that event it would have been 
incompetent, but as an admission by 
the plaintiff that its contents were 
true." 

Books of Physician. — The books 
of a physician showing his accounts 
for services rendered to patients are 
not admissible- Mott v. Consumers' 
Ice Co., 52 How. Pr. (N. Y.) 148. 
In this case physician sued a corpora- 
tion for personal injuries alleging loss 
of income as an element of damage. 
To contradict plaintiff as to amount 
of income, defendant made a motion 
to be allowed to inspect plaintiff's 
books showing his accounts with pa- 
tients for services rendered. Motion 
was denied. On appeal to general 
term, order , denying motion was 
affirmed. 52 How. Pr. (N. Y.) 244. 



Vol. X 



PRIVILEGED COMMUNICATIONS. 



105 



b. Object of Testimony. — Physician will not be permitted to 
give evidence of confidential communications for the purpose of 
impeaching a witness.^^ 

c. Patient's Relation to Action. — The fact that physician's tes- 
timony relates to persons who are not parties to the action in which 
it is sought is immaterial. ^^ 

d. Purpose of Consultation. — Privilege exists, although a per- 
son consults a physician and discloses his physical condition for 
the purpose of obtaining his testimony, and not for purpose of 
treatment. -- 

6. Essentials to Exercise of Privilege. — A. Patient. — It is es- 
sential to a claim of privilege that the matter sought to be excluded 
be communicated by a person in need of, or believed to be in need 
of, medical or surgical assistance, or by some one in his behalf, 
to a physician.^^ 

B. Physician. — Statutes of many of the states use the expres- 
sion " regularly licensed physician, etc. " The question as to the 
status or qualification of medical attendant, necessary to protect 
knowledge acquired by him, will depend upon the phraseology of the 
statute under which privilege is claimed. 



No opinion rendered. To same ef- 
fect, see Lowenthal v. Leonard, 46 
N. Y. Siipp. 818. 

A physician examined as a judg- 
ment debtor in proceedings in aid of 
execution will not be compelled to 
deliver to a receiver his books show- 
ing nature of his patients' maladies. 
Kelly V. Levy, 8 N. Y. Supp. 849. 

Records of Hospital made from 
statements of attending physicians to 
superintendent, and showing nature 
of disease of a certain patient, are 
not admissible. Price v. Standard L. 
& A. Ins. Co., 90 Minn. 264, 95 N. 
W. 1 1 18. 

20. McConnell v. Osage. 80 Iowa 
293, 303, 45 N. W. 550, 8 L. R. A. 778. 

21. In re Myers Will, 184 N. Y. 
54, 76 N. E. 920; Krapp v. Metropoli- 
tan L. Ins. Co. (Mich.), 106 N. 
W. 1 107. 

22. Doran v. Cedar Rapids & M. 
C. R. Co.. 117 Iowa 442, 90 N. W- 
815. In this case the court says: 
" Counsel for appellant urge that this 
witness was not consalled as a phy- 
sician with reference to the treatment 
of plaintiff, but only for the purpose 
of securing his testimony as a wit- 
ness, and that therefore the statute 
does not apply to him. We are not 
referred to any authorities which 



make this distinction. It seems to us 
that whenever an injured party con- 
sults a physician as physician, and 
discloses to him his physical condi- 
tion, and thus enables him to obtain 
information which as an ordinary 
person he would not have obtained, 
such physician is prohibited from tes- 
tifying with reference to the knowl- 
edge thus obtained, except with the 
consent of the injured party." 

23. Communications made to phy- 
sician by one acting for or on behalf 
of patient are privileged. Thus state- 
ments as to his wife's condition made 
by a husband to physician were held 
privileged. People v. Brower, 6 X. 
Y. Supp. 730. 

In Need of Professional Services. 
See Doran v. Cedar Rapids & M. C. 
R. Co., 117 Iowa 442, 90 N. W. 815. 
where communications made to a 
physician for the purpose of obtain- 
ing his testimony were held privi- 
leged. 

The word "patient " includes a per- 
son under disability, such as infancy, 
lunacy, etc. Corey v. Bolton. 63 N. 
Y. Supp. 915. 

" A dead man is not a ' patient.' 
capable of sustaining the relation of 
confidence toward his physician which 
is the foundation of the rule given in 

Vol. X 



106 



PRIVILEGED COMMUNICATIONS. 



a. Status. — Must Be Duly Licensed Physician. — To substan- 
tiate claim of privilege as to communications to a certain person, 
he must be a physician duly licensed to practice.-* 

(1.) Failure to Comply With Statute. — A duly licensed physician 
is incompetent, although he has failed to register his license as 
required by statute.^^ 

(2.) Not Licensed in Place of Treatment. — It has been held that if 
physician called as a witness has not been duly licensed to prac- 
tice by the state in which his services were rendered, he may be 
compelled to testify concerning information confidentially com- 
municated by his patient.-" 

(3.) Introduction of Diploma Not Necessary.- — If a witness testify 
that he received a diploma from a medical college, and that he 
practiced in the state issuing the diploma, his qualifications are suf- 
ficiently proved, and it will not be necessary to introduce his di- 
ploma in evidence.^'' 

(4.) License Presumed. • — So, if he testify that he is practicing 
medicine, it will be presumed that he has been duly licensed.-^ 

(5.) Dentist, Druggist or Veterinary. — It has been held that privi- 
lege does not extend to knowledge acquired by a dentist f^ or by 



the statute, but vs a mere piece of 
senseless clay which has passed be- 
yond the reach of human prescrip- 
tion, medical or otherwise." Harri- 
son v. Sutter St. R. Co., ii6 Cal. 156, 
166, 47 Pac. 1019. In this case it was 
held erroneous to exclude the testi- 
mony of a physician as to the cause 
of death of a person who had been 
injured in an accident, it appearing 
that witness had not been the physi- 
cian of deceased in his Hfetime. 

24. Wiel V. Cowles. 45 Hun (N. 
Y.) 307. 

25. M'Gillicuddy z'. Farmers' L. & 
T. Co., 55 N. Y. Supp. 242. 

26. Head Camp. Pacilic Jurisdic- 
tion, W. of W. z.'. Loeher, 17 Colo. 
App. 247, 68 Pac 136. In this case 
it appeared that physician called as a 
witness had not been duly authorized 
to practice in Colorado. The statute 
of privilege provided : " A physician 
or surgeon duly authorized to prac- 
tice his profession under the laws of 
this state, shall not," etc. Held, wit- 
ness competent. 

27. McDonald v. Ashland, 78 
Wis. 251, 47 N. W. 434. 

28. Record v. Saratoga Springs, 
46 Hun (N. Y.) 448. 

29. A dentist is not a physician or 
surgeon within the meaning of a stat- 

Vol. X 



ute forbidding a physician or sur- 
geon to disclose information ac- 
quired in attending a patient. People 
f. DeFrance. T04 Mich. 563, 62 N. 
W. 709, 28 L. R. A. 139. In this case 
the court says : " Counsel contend 
that the testimony of the witness 
Land was a privileged communica- 
tion, under the provisions of How. 
Stat. § 7516, which provides that ' No- 
person duly authorized to practice 
physic or surgery shall be allowed to 
disclose any information which he 
may have acquired in attending any 
patient in his professional character, 
and which information was neces- 
sary to enable him to prescribe for 
such patient as a physician, or to do 
any act for him as a surgeon.' The 
question presented is whether this 
language includes a dentist. At the 
common law, information gained by 
a physician or surgeon while in at- 
tendance upon his patient was not 
privileged. The purpose of this stat- 
ute was to throw around such dis- 
closures as the patient is bound to 
make for the information of his at- 
tending physician the cloak of se- 
crecy, and the prime object of the act 
was to invite confidence in respect to 
ailments of a secret nature, and the 
.spirit of the act would not include a 



PRIVILEGED CO MM UNICA TIONS. 



107 



a drugg-ist f or to knowledge acquired by a veterinary surgeon 
from examination of an animal, or from statements of its owner." ^ 

b. Necessary hi tcrme diaries. — Communications must have been 
made to physician or to a third person whose intervention was to 
enable physician to obtain information essential to the performance 
of his duty.''- 

c. Persons Unnecessarily Present. — Statements made by patient 
to physician in the presence of third persons whose presence is not 
necessary to assist him or his physician are not privileged as re- 
gards such persons, and such persons may give such statements 
in evidence.'*^ 



case where the infirmity was appar- 
ent to every one on inspection. In 
practice, however, the statute has not 
heen so limited in construction, for 
the reason that the words of the act 
are broad enough to include any in- 
formation necessary to enable the 
physician to prescribe or the surgeon 
to act. Nevertheless, the purpose of 
the act is to be considered in deter- 
mining whether the dentist was in- 
tended to be included within its 
terms. Certainly the terms ' dentist ' 
and ' surgeon ' are not interchange- 
able, and if a dentist is to be held to 
be a surgeon, within the meaning of 
this act, it must be because his busi- 
ness as a dentist is a branch of sur- 
gery. It is apparent that the act re- 
lates to general practitioners, and to 
those whose business as a whole 
comes within the definition of ' phy- 
sician ' or ' surgeon.' A dentist is one 
whose profession it is to clean and 
extract teeth, repair them when dis- 
eased, and replace them, when neces- 
sary, by artificial ones. The only 
case which we have found which 
bears directly upon this question is 
that of State v. Fisher (Mo. Sup.), 
24 S. W. 167, 22 L. R. A. 799, in 
which a majority of the supreme 
court of Missouri held that a dentist 
is not to be considered a surgeon. 
We think there was no error in ad- 
mitting the testimony of this wit- 
ness; that he is not within the terms 
or the spirit of the act." 

In Carrington v. St. Louis, 89 Mo. 
208, I S. W. 240, the court, after de- 
ciding that patient may waive privi- 
lege, and does so by calling physician 
as a witness, says : " There was, 
therefore, no error in allowing the 
dental surgeon to testify, should he 



be within the purview of the statute, 
a question which is not considered." 

A dentist is not " a person exer- 
cising the functions of a . . . 
practitioner of medicine " under a 
statute exempting such persons from 
jury duty. State v. Fisher, 119 Mo. 
344, 24 S. W. 167, 22 L. R. A. 799. 

30. Knowledge which a druggist 
obtains from purchaser of medicine 
is not privileged. Brown v. Hanni- 
bal & St. J, R, Co., 66 Mo. 588; 
Deutschmann v. Third Ave. R. Co., 
84 N. Y. Supp. 887. 

31. In Hendershot v. Western 
Union Tel. Co., 106 Iowa 529, 76 N- 
W. 828, 68 Am. St. Rep. 313, a vet- 
erinary surgeon who had treated a 
horse at request of the owner was 
asked what was said to him by the 
owner and by the keeper of the horse. 
Question was objected to as calling 
for privileged communication, and the 
court actually sustained the objection 
on the ground that the question vio- 
lated the statute prohibiting dis- 
closure of professional communica- 
tions. Counsel for objecting party 
said in argument, " We have no case 
exactly in point to cite." The su- 
preme court says: "We think that 
none can be found to sustain the rul- 
ing. The reasons upon which said 
section is based have no application 
whatever to a case like this. Com- 
munications are privileged in certain 
cases for the reason that full and free 
communication in those cases is nec- 
essary and to be encouraged, but these 
reasons do not apply to veterinary 
surgeons called to treat animals." 

32. Springer v. Byram. 137 Ind. 
15, 36 N. \i. 361, 45 Am. St. Rep. 159, 
2i h. R- A. 244. 

33. Mason's Union L. Ins. Co. v. 



Vol. X 



108 



PRIVILEGED COMMUNICATIONS. 



d. Consulting Physician. — Physician called in to consult with 
regular attendant as to patient's condition and treatment cannot 
testify as to knowledge acquired by him in the course of his em- 
ployment."* 

Consulting Physician. — Consultation Privileged. — When regular at- 
tendant and consulting physician consult in patient's presence con- 
cerning his condition, their statements are privileged.^'^ 

Fact of Agreement Immaterial. — Whether they agree or not is 
immaterial on the question of privilege.^'' 

e. Partner. — The privilege also extends to partner of physician 
who is treating a person, and a physician cannot testify as to state- 
ments made in his presence to his partner.^^^ 

Knowledge Prom Partner's Patient. — Nor to any knowledge ac- 
quired from his partner's patient.^* 



Brockman, 26 Ind. App. 182, 59 N. 

E. 401. 

If it appear that a third person 
was present at only one of many 
visits, and question calls for informa- 
tion obtained during entire treatment, 
physician cannot testify. Miirphy v. 
Board of Police Comrs. (Cal. App.), 
83 Pac. 577- 

Springer v- Byram, 137 Ind. 15, 30 
N. E. 361, 45 Am. St. Rep. 159, 23 L. 
R. A. 244. In this case a boy who 
had been injured in getting into an 
elevator sued the owner of the build- 
ing for damages. Defendant sought 
to introduce the testimony of two wit- 
nesses who were in the ambulance 
which conveyed the boy from the 
building and heard what passed be- 
tween him and an attending physi- 
cian. It was not shown that the pro- 
posed witnesses were in the employ 
of the physician or of plaintiff. The 
trial court excluded the evidence. 
Held that this ruling was error. 

But in Grattan c'. Metropolitan L. 
Ins. Co., 80 N. Y. 281, 297, 36 Am. 
Rep. 617, it is said that it is not neces- 
sary that examination of patient by 
physician be private. 

In Cahen v. Continental Ins. Co., 
41 N. Y. Super. 296, it is held that 
communications to physician in the 
presence of patient's wife and nurse 
are privileged. Judgment reversed 
on another question, but held correct 
on this subject, in 69 N. Y. 300. 

34. Renihan v. Dennin, 103 N. Y. 
573, 9 N. E. 320, 57 Am. Rep. 770; 
Thompson v. Ish, 99 Mo. 160, 12 S. 
W. 510, 17 Am. St. Rep. 552; 



Springer v. Byram, 137 Ind. 15, 36 
N. E. 361, 45 Am. St. Rep. 159. 23 L. 
R. A. 244; State v. Smith, 99 Iowa 
26, 68 N. W. 428, 61 Am. St. Rep. 
219; Prader r. Accident Assn., 95 
Iowa 149, 63 N. W. 601 ; Morris v. 
New York, O. & W. R. Co., 73 Hun 
560. 26 N. Y. Supp. 342; s. c. on ap- 
peal, 148 N. Y. 88, 42 N. E. 410, 51 
Am. St. Rep. 675 ; Green v. Nebaga- 
main, 113 Wis. 508, 89 N. W. 520. 

Rule recognized in McGillicuddy 
V. Farmers' L. & T. Co., 55 N. Y. 
Supp. 242. But see Henry v. New 
York, L. E. & W. R. Co., 10 N. Y. 
Supp. 508. In this case an attending 
physician brought his patient to of- 
fice of witness, requesting witness to 
examine patient to see what was the 
matter with him.. Witness examined 
patient. The trial court excluded 
witness's testimony as to patient's 
condition. Judgment was reversed 
on this ground, the appellate court 
holding that there was nothing to 
show that witness was requested or 
expected to treat or prescribe for the 
patient, or to advise as to his treat- 
ment, or that he did either. 

35. Morris v- New York, . O. & 
W. R. Co., 26 N. Y. Supp. 342. 
See Goshen v- England, 119 Ind. 368, 
21 N. E. 977, 5 L. R. A. 253. 

36. Morris v. New York, O. & W- 
R. Co., 26 N. Y. Supp. 342. 

37. Raymond v. Burlington, C 
R. & N. R. Co. (Iowa), 17 N. W. 
923 ; s. c. on rehearing, and same 
ruling, 65 Iowa 152, 21 N. W. 495- 

38. Aetna L- Ins. Co. ■:■. Deming, 



PRIVILEGED COMMUNICATIONS. 



109 



C. Relation. — Before an objection to a question can be sus- 
tained on the ground of its calling for privileged communication, 
it must appear that the relation of physician and patient existed 
between witness and the person making the communication, or from 
whom information was acquired.^'' 

a. Attendance Alone Insufficient. — The mere fact that a physi- 
cian attended a certain person does not disqualify him as a wit- 
ness. Other conditions essential to exclusion of his testimony must 
exist." 

b. What Attendance Sufficient. — Whether or not the relation of 
physician and patient existed between given persons depends upon 
the circumstances of the case. 

(1.) Casual Treatment. — It has been held that the relation exists 
between a physician and a person whom he casually treats, whether 
he be his family physician or not.*^ 

(2.) Single Consultation. — Also that one consultation is sufficient 
to constitute the relation.*^ 



123 Ind. 384, 24 N. E. 86, 375. 

39. Clark v. State 8 Kan. App. 
782, 61 Pac. 814; People v. Koerner, 
154 N. Y. 355, 365; Henry v. New 
York. L. E. & W. R. Co.. 10 N. Y. 
Supp. 508; State V. Lyons, 113 La. 
959. 2)7 So. 890; Smoot V. Kansas 
City, 194 Mo. 513. 92 S. W. 363. 

Denial of Relation by Physician. 
When physician testifies that his 
knowledge was not acquired while 
attending a person in his profes- 
sional capacity, and that he stated 
to such person that he was not act- 
ing as his physician, his testimony 
is not privileged. People v. Koener, 
154 N. Y. 355, 365, 48 N. E. 730. 

In Babcock v. People, 15 Hun (N. 
Y.) 347, a person applied to a phy- 
sician for medicine for one not a 
member of his family. Held, that 
his testimony as to what was stated 
was properly admitted, it not ap ■ 
pearing that the person addressing 
the physician was cfddressing him 
for himself, or that he was represent- 
ing any one who needed or desired 
medical assistance. 

40. Linz V. Massachusetts Mut- 
L. Ins. Co., 8 Mo. App. 363 ; James 
V. Kansas City, 85 IMo. App. 20; 
People V. Schuyler, 106 N. Y. 298, 
12 N. E. 783; Edington v. Aetna L- 
Ins. Co., 77 N. Y. 564; Gibson v. 
American Mut. L. Ins. Co., 2)7 N 
Y. 580; GritSths v. Metropolitan St. 
R. Co., 171 N. Y. 106, 63 N. E. 808, 



reversing s. c, 71 N. Y. Supp. 406; 
James v. Kansas City 85 Mo 
App. 20. 

In State v. Lyons, 113 La. 959, 37 
So. 890, questions were asked as 
to communications between a cer- 
tain person and a physician. The 
court says : " The accused had been 
taken after the homicide to the 
Charit}' Hospital, where he was 
under the treatment of the surgical 
staff of that institution. Dr. 
Richard was the coroner, and pre- 
sumably a physician and surgeon. 
He was acquainted with the de- 
fendant, and visited him on a par- 
ticular occasion whilst the latter 
was in the hospital ; but it does not 
appear that he paid such visit, or 
any other, in the capacity of physi- 
cian or surgeon, or that he ever oc- 
cupied that relation towards the ac- 
cused. The objection was there- 
fore inapplicable to the facts, and 
was properly overruled. Whether 
it would have made any difference, 
under our law, if Dr. Richard had 
been the attending physician, need 
not be considered." Hamilton v. 
Crowe, 1 75 Mo. 634, 75 S. W- 389. 

41. Edington v. Mutual L. Ins. 
Co., 5 Hun (N. Y.) i. 

42. In Grattan v. .Metropolitan 
L. Ins. Co., 92 N. Y. 274, 44 Am. 
Rep. 2)7^, it is held that physician is 
disqualified to testify as to knowl- 
edge acquired from patient, al- 

Vol. X 



110 



PRIVILEGED COM MU NIC A TIONS. 



though he met him only once in his 
professional capacity. 

Same ruling in same case below, 
in which it is held that relation is 
established if examination takes 
place at the first interview between 
physician and person treated. See 
24' Hun (N. Y.) 43. 

But see Edington v. Aetna Mut. L. 
Ins. Co., 5 Hun (N. Y.) i. In 
this case a person requested physi- 
cian to examine an eruption upon 
his skin. The physician complied, 
but neither gave advice nor pre- 
scription. Held, that person making 
examination was not an attending 
physician, and that it could not be 
said that his knowledge was ac- 
quired to enable him to prescribe 
as a physician. 

In Grattan v. Metropolitan L. Ins. 
Co., 24 Hun (N. Y.) 43, action was 
brought to recover the amount of 
a life insurance policy. Defendant 
claimed that insured had made false 
statements in his application, in 
stating that his brother was in good 
health, and had never had any pul- 
monary or other constitutional dis- 
ease, whereas, as defendant claimed, 
the brother had a disease of the 
lungs. Defendant attempted to 
show the brother's condition by the 
testimony of a physician. It ap- 
peared that the brother's employer 
took him to a physician whom he 
requested to make an examination. 
After a careful examination, the 
physician stated to the brother that 
he would not live long. The physi- 
cian's testimony was admitted by 
the trial court. In holding that 
this ruling was erroneous, the ap- 
pellate court says : " The defendant 
insists that there was no relation of 
physician and patient between Mere- 
ness and Grattan. First. Because 
Mereness had not known Grattan 
before this interview. But the first 
interview with a physician is as 
sacred as any other. Second. Be- 
cause Grattan did not consult him 
as to a prescription, and the doctor 
did not prescribe. But the day has 
passed when it was thought that a 
physician's advice was of no use 
unless he ordered a dose of medi- 
cine. Third. Because the exam- 
ination was made for Grattan's em- 
ployer, and the employer paid the 

Vol. X 



doctor. Then if a father calls a 
physician to examine and advise as 
to a child, the child is not the phy- 
sician's patient. Or if. out of benev- 
olence, a man requests a physician 
to examine some poor person, the 
physician is at liberty to reveal all 
he discovers. 

Next, the defendant insists that 
there was no attendance of the doc- 
tor on Grattan, because he was not 
called upon to examine or consult, 
in order to give advice or relief. 
The defendant cannot mean that a 
physician must attend at the pa- 
tient's house instead of having the 
patient at the physician's office. 
And the doctor was requested to 
give advice— advice of the most im- 
portant kind — that is, whether Grat- 
tan was capable of doing certain 
work. Such advice, in a case of 
consumption, was probably more 
valuable than any prescription 
would have been. 

Next, the defendant insists that 
the doctor did not act in a profes- 
sional capacity, because he gave no 
prescription and no advice. But it 
is plain enough that there are cases 
where a physician, on examining a 
patient, sees that medicine will do 
no good; and that there is no ad- 
vice to give, except just what the 
doctor gave to Grattan, to make the 
best of the present, because he 
would not remain here very long. 
And it is incorrect to say that the 
words in section 834, ' which was 
necessary to enable him to act in 
that capacity,' limit the restriction 
imposed by the section to cases 
where the physician actually pre- 
scribes a dose of medicine or gives 
some medical advice. In fact the 
physician does act in a professional 
capacity when, after examining a 
patient, he decides that neither med- 
icine nor advice are needed, and 
therefore gives neither. I am un- 
able to see how this testimony can 
be allowed under the statute. The 
information which the doctor ac- 
quired was not such as might have 
been obtained by any person on a 
casual sight of Grattan. It was ob- 
tained by removing a part of Grat- 
tan's clothing; and by percussing 
and by listening to the action of the 
lungs. These are professional acts, 



PRIVILEGED CO MM UNICA TIONS. 



Ill 



(3.) Physician Called by Stranger. — Also that relation exists be- 
tween a sick person and a physician called to attend him by a per- 
son sustaining no legal relation to such person/^ upon the ground 
that if a person is suffering, //; extremis, and unable to call a phy- 
.sician, any person is authorized to call one to attend him.'* 

(4.) Accompanying Attending Physician. — A physician who, al- 
though not employed so to do, accompanies a hospital physician 
•on his rounds and administers treatment to inmates, occupies the 
relation of physician towards persons so treated.''^ 

(5.) Jail Physician. — Between prisoner and jail physician, rela- 
tion does not exist to the extent that the latter is disqualified as 
an expert as to prisoner's condition.*'^ 

(6.) State's Physician Attending Subject of Crime. — Relation exists 
between a physician sent by prosecuting officer to examine a per- 
son who has been the subject of a crime and such person, if his 
services are accepted ; and statements made by such person to the 
physician are privileged.'*' 



and the information was obtained 
professionally. (Edington v. Mut. 
Life Ins. Co.. 67 N. Y. 185; Grat- 
tan V. Met. Life Ins. Co., 21 Alb. 
Law Jour., 288.)" But see Griffiths 
V. Metropolitan St. R. Co., 171 N. 
Y. 106, 63 N. E. 808, reversing s. c, 
71 N. Y. Supp. 406. 

43. Meyer z'. Supreme Lodge, K. 
of P., 17S N. Y. 63, 70 N. E. Ill, 
affirming s. c, 81 N. Y. Supp. 813; 
Munz V. Salt Lake City R. Co., 25 
Utah 220, 70 Pac. 852. 

44. Meyer v. Supreme Lodge, K. 
of P., 178 N. Y. 63, 70 N. E. Ill, 
affirming s. c., 81 N. Y. Supp. 813. 

45. Physician who states that he 
made the rounds of a hospital with 
the attending physician, " out of 
curiosity," and assisted him in mak- 
ing examination of a certain per- 
son, and " partly attended her," but 
did not have charge of her, and had 
charge of the different wards with 
the attending physician, cannot tes- 
tify as to the condition of a person 
so examined. Grossman v. Su- 
preme Lodge, 6 N. Y. Supp. 821. 
The court says : " To bring the case 
within the statute, ' it is sufficient 
that the person attended as a phy- 
sician upon the patient, and obtained 
his information in that capacity.' 
(Quoting Renihan v. Dennin, 103 N. 
Y. 573, 9 N. E. 320, 57 Am. Rep. 
770.) Whether the witness was 
actuated by curiosity or a higher 
motive makes no difference. His 



own admission that he attended the 
deceased, although he qualifies the 
statement by the use of the adverb 
' partly,' sufficies to establish the ex- 
istence of the professional relation." 
See also Green v. Nebagamain, 113 
Wis. 508, 8g N. W. 520. 

46. People v. Schuyler, 43 Hun 
(N. Y.) 88. 

47. In People v. Murphy, loi N. 
Y. 126, 4 N. E. 326, 54 Am. Rep. 661, 
defendant was charged with attempt 
to produce an abortion. A physi- 
cian was sent by the prosecuting at- 
torney to examine the female upon 
whom the abortion was attempted. 
Defendant questioned the physician 
as to the statements made to him 
by the woman. Held, that her state- 
ments were privileged. The court 
uses this language : " Here the pa- 
tient was living, and the disclosure 
which tended to convict the prisoner 
inevitably tended to convict her of 
a crime, or cast discredit and dis- 
grace upon her. We have no doubt 
upon the evidence that between her 
and the witness whose disclosure 
was resisted there was established 
the relation of physician and patient. 
Although he was selected by the 
public prosecutor and sent by him, 
yet she accepted his services in his 
professional character, and he ren- 
dered them in the same character. 
She was at liberty to refuse and 
might have declined his assistance, 
but when she accepted it, she had 

Vol. X 



112 



PRIVILEGED COMMUNICATIONS. 



c. What Insufficient to Constitute Relation. — (1.) Employed by 
Third Person for Purpose Other Than Treatment. — When a third person 
employs a physician to examine a person for the purpose of ac- 
quiring information for the use of such third person, the relation 
does not exist between the physician and the person examined.** 
Tlius, the relation does not exist between an injured person and 
a physician sent by the person claimed to be liable for the injury, 
to ascertain its nature and extent, and who states to the injured 
person that he visits him on behalf of his employer.'*^ 

Service Rendered After Such Statement. — But if, after stating to 
injured person that he calls on behalf of defendant, the physician 



a right to deem him her physician 
and treat him accordingly. It fol- 
lows that the exception to his dis- 
closure of what he learned while 
thus in professional attendance was 
well taken." See note 25. under I, 
7, B, j, "Communications as to 
Crime." 

48. When an attorney who pre- 
pares a will employs two physi- 
cians to examine his client to ascer- 
tain his mental condition at time 
of execution, and they make such 
examination, then become subscrib- 
ing witnesses to the will, they may, 
upon an issue involving the validity 
of the will, testify as to the mental 
condition of testatrix, as learned 
from their examination. Matter of 
Freeman, 46 Hun (N. Y.) 458. The 
court based its ruling upon the facts 
that testatrix, though perfectly 
conscious, did not accept the serv- 
ices of witnesses as physicians, 
that they were not employed to so 
attend her, and that information ac- 
quired by them was not information 
acquired while attending a patient 
in a professional capacity which was 
necessary to enable them to act in 
that capacity. The court says: 
" The section implies that the phy- 
sician is to do some act in his pro- 
fessional capacity. Of course, this 
act may be merely negative, that is, 
the physician may decide that no 
medicine is needed. But in this case 
these physicians were not to do, or 
to omit to do. anything for the de- 
ceased. The signing of the will as 
witnesses was not a professional 
act. I think there was no error in 
allowing these physicians to testi- 
fy." 

In Scripps v. Foster, 41 Mich. 

Vol. X 



742. 3 N. W. 216, a physician in- 
stituted an action against a news- 
paper to recover damages caused by 
publication of a statement to the ef- 
fect that plaintiff had caused the 
death of one child and the illness 
of others by the use of a certain in- 
strument. Several physicians who 
visited the children stated to have 
been made ill were permitted to tes- 
tify as to their condition. Their 
testimony was objected to because 
their knowledge was acquired 
during visits made as attending 
physicians. Held, that the relation 
of physician and patient did not 
exist, and no confidence was re- 
posed in witnesses ; therefore, their 
testimony was admissible- 

In In re Will of Bruendl, 102 
Wis. 45, 78 N. W. 169, a physician 
had been sent by a son-in-law to 
ascertain the mental condition of 
his mother-in-law, for the purpose 
of determining whether or not to 
apply to the court for a release 
from guardianship to which she had 
voluntarily submitted. Afterwards, 
the will of the mother-in-law was 
contested on the ground of un- 
soundness of mind. Held, that 
physician who had examined her 
was competent to testify, in the will 
contest, as to her mental condition. 

49. In Heath v. Broadwav, etc. 
R. Co., 8 N. Y. Supp. 863, 'physi- 
cian of railway company visited 
and examined person injured by al- 
leged negligence of the company. 
Upon seeing this person, he stated 
that he came on behalf of the com- 
pan}'. Held, that statements made to 
him by the injured person were not 
privileged. 



PRIVILEGED COMMUNICA TIONS. 



113 



continues to visit and prescribe for him, the relation is estabHshed, 
and the physician's knowledge is privileged.^*' 

(2.) Physician Sent by State to Examine Prisoner, — The relation of 
physician and patient does not exist between a person imprisoned 
on a criminal charge and a physician sent by the prosecuting of- 
ficer to report upon prisoner's sanity,^^ or to obtain other informa- 
tion necessary to be used in conducting prosecution. ^- 

(3.) Employment Refused. — The relation does not exist if physician 
refuse the employment, and he may testify concerning statements 
of person to whom he has stated that he will not act as his physi- 
cian,^^ or to whom he states that he is not acting as his physician.^* 

(4.) Administering Temporary Relief. — The administration of tem- 
porary relief to a person, while awaiting the arrival of his regular 
physician, does not constitute one an attending physician, although 
the person so acting had, some years previously, practiced med- 
icine. ^^ 

(5.) Acting as Friend. — One who renders friendly assistance to 
friend and neighbor who has been injured, does not thereby as- 
sume the relation of physician, although that is his profession.^® 

If witness testifies that he called to attend a person who had 
been injured, that when the regular family physician of the in- 
jured person came, witness considered him as in charge of the 
case, that witness had called later to inquire as to condition of the 
injured person ; and witness testifies that he has not been dis- 



50. Free! v. INIarket St. R. Co., 97 
Cal. 40, 31 Pac. 730. 

51. People V. Sliney, 137 N. Y. 
570, 33 N. E. 150; People V. Hoch, 
150 N. Y. 291, 303, 44. N. E. 976. 
Nesbit V. People, 19 Colo. 441, 36 
Pac. 221. 

In People v. Kemmler, 119 N. Y. 
580, 24 N. E. 9, physicians who had 
been sent by prosecuting attorney to 
examine a prisoner and report as to 
his mental condition were permitted 
to testify as to the result of their 
examination. Their testimony was 
held properly admitted. The court 
distinguishes the case from People v. 
Stout, 3 Park. Crim. (N. Y.) 670, by 
stating that in the latter case physi- 
cia-ns whose testimony was sought, 
attended and prescribed for the pris- 
oner, while in the Kemmler case the 
physicians were not questioned con- 
cerning any conversations had with 
prisoner, or any transactions in the 
jail. 

As to physician sent by state, whose 
conduct leads prisoner to believe that 
he attended him as a physician, and 
who actually renders proiessional ser- 

8 



vices, see People v. Stout, 3 Park. 
Crim. (N. Y.) 670. See statement 
.and quotation in note 65 under I, 
6, C, e. 

52. People v. Glover, 71 Mich. 303, 
38 N. W. 874; State v. McCoy, 109 
La. 682, 22, So. 730. 

State V. Height, 117 Iowa 650, 91 
N. W. 935 ; 94 Am. St. Rep. 323, 59 
L. R. A. 437. In this case physicians 
examined a prisoner to ascertain the 
existence of a certain disease, but no 
communications were made to them 
by him. 

53. If physician refuses to act for 
person requiring medical aid, the 
relation is not created. State v. 
Smith, 99 Iowa 26, 68 N. W. 428, 61 
Am. St. Rep. 219; (See statement in 
note 24, infra) ; Jacobs v. Cross, 19 
INIinn. 454. 

Attendance Refused See I, 6, C. 

d. (i.), post. 

54. People v. Koerner, 154 N. Y. 
355. 365. 48 N. E. 730. 

55. Gibson i'. American Mut. L. 
Ins. Co., 27 N. Y. 580. 

56. Gibson v. American Mut. L. 
Ins. Co., 27 N. Y. 580. 

Vol. X 



114 



PRIVILEGED COMMUNICA TIONS. 



charged, and it appears that the injured person regarded witness 
as his physician, the relation is estabhshed.^'^ 

d. Matters Not Essciifi'al to Relation. — (l.) Direct Employment. 
Relation may exist, although physician was not emplo}-ed directly 
by patient ;^^ and has been held to exist although patient refused 
attendance, and commanded physician to leave him.^^ 

Physician Employed by Adversary. — Relation of physician and 



57. Patterson v. Cole, 67 Kan. 441. 
73 Pac. 54. 

58. Renihan v. Dennin, 103 N. Y. 
573, 9 N. E. 320, 57 Am. Rep. 770; 
People V. Murphy, loi N. Y. 126, 
4 N. E. 326, 54 Am. Rep. 661 ; Dug- 
gan V. Phelps, 81 N. Y. Supp. 916. 

59. Meyer v. Supreme Lodge, K. 
of P., 178 N. Y. 63. 70 N. E. Ill, 
64 L. R. A. 839. atfirniiiig s. c, 81 
N. Y. Supp. 813. In this case the 
court says : " The deceased was in 
extremis, incapable of acting or de- 
ciding for himself, and from the 
necessity of the case anyone was 
authorized to call a physician to 
treat him. Without the knowledge 
or consent of the dying man Dr. 
Bruso was called for that purpose 
and for that purpose alone he at- 
tended. He found Mr. Meyer, the 
deceased, in bed in an upper room 
of a hotel 'suffering intense pain 
and vomiting.' Meyer told him to 
get out of the room, that he did not 
want him there, but he did not 
leave. He remained to treat him as 
a physician, and in order to treat 
him intelligently tried to find out 
what the matter was. He learned 
from Meyer, partly in answer to 
questions and partly through volun- 
tary disclosures, that he had taken 
a preparation of arsenic, known as 
Rough on Rats, 'because he wanted 
to die.' From this information, and 
from observation of the physical 
symptoms, he decided that Meyer 
was suffering from arsenical poison- 
ing. Thus informed as to the nature 
of the disease, he at once adminis- 
tered a remedy and soon followed 
it by another. The helpless man, 
without friends to aid or advise, 
hopeless of life and courting death, 
objected and tried to curse him 
away from his bedside. The doctor, 
loyal to the instincts of his profes- 
sion, refused to listen to the ravings 

Vol. X 



of the would-be suicide and contin- 
ued to prescribe in order to relieve 
suffering and prolong life. Upon 
the trial he was not allowed to dis- 
close the information acquired under 
these circumstances, and we are now 
to determine whether there was 
enough evidence to warrant the trial 
judge in deciding, as a preliminary 
question of fact, that such informa- 
tion was acquired 'in attending a 
patient, in a professional capacity,' 
and that it 'was necessary to enable 
him to act in that capacity.' (Code 
Civ. Pro. § 834 ; Griffiths v. Met. St. 
Ry. Co., 171 N. Y. 106, III.) The 
learned doctor was called as a phy- 
sician ; he attended as a physician ; 
he made a diagnosis as a physician 
and he administered remedies as a 
physician. In all that he did he 
acted in a professional capacity. 
While it is true that in all he did 
he acted against the will and in spite 
of the remonstrance of a man whose 
condition imperatively called for 
professional treatment, still the meet- 
ing was professional in nature, and 
all that he said or did was strictly 
in the line of his profession. . . . 
When one who is sick unto death 
is in fact treated by a physician as 
a patient even against his will, he 
becomes the patient of that physician 
by operation of law. The same is true 
of one who is unconscious and unable 
to speak for himself. If the deceased 
had been in a comatose state when 
the physician arrived, the existence 
of the professional relation could 
not be questioned. The relation of 
physician and patient, so far as the 
statute under consideration is con- 
cerned, springs from the fact of pro- 
fessional treatment, independent of 
the causes which led to such treat- 
ment. An examination made in 
order to prescribe establishes the 
same relation." 



PRIVILEGED COMMUNICATIONS. 



115 



patient exists between an injured person and a physician regularly 
employed by his adversary to treat its employes.*'*' 



60. When two corporations main- 
tain a hospital which is supported 
by contributions reserved from the 
wages of their employes for the pur- 
pose, and an employe of one of 
them, who is injured while engaged 
in his employment, is treated by the 
surgeon in charge of this hospital, 
who receives his salary from the 
corporation, the relation of physician 
and patient exists between the in- 
jured person and the surgeon; and 
knowledge acquired by the latter in 
performing his professional duty is 
privileged. Colorado Fuel & Iron 
Co. V. Cummings, 8 Colo. App. 541, 
46 Pac. 875 ; McRae v. Erickson, i 
Cal. App. 326, 82 Pac. 209. 

Railroad Surgeon and Employe. 
Statements of injured railway em- 
ploye to surgeon of the same corpo- 
ration who inquires as to nature of 
accident in which injury occurred 
are privileged. Raymond v. Burling- 
ton, C. R. & N. R. Co. (Iowa), 17 
N. W. 923 ; .y c. on rehearing, 65 
Iowa 152, 21 N. W. 495 and same rul- 
ing. In this case, which was an ac- 
tion by an employe against a railway 
company to recover damages for per- 
sonal injuries, it was claimed that the 
injury complained of was caused by 
the sudden starting of defendant's 
train. Defendant's surgeon stated 
that he questioned plaintiff in regard 
to the injury; that he desired this 
information to enable him to 
judge if the company was re- 
sponsible ; also that it was neces- 
sary to enable him to make a 
diagnosis of the case. He also 
stated that the injury would be 
more severe if the cars were in 
motion. It was held that plaintiff's 
statements concerning the manner in 
which the accident occurred were 
privileged. To same general effect, 
see Keist v. Chicago, G. W. R. Co., 
no Iowa ^2, 81 N. W. 181; New 
York, C. & St. L. V. Mushrush, 11 
Ind. App. 192, 2,7 N. E. 954; Battis 
V. Chicago, R. I. & P. R. Co., 124 
Iowa 623, 100 N. W. 543. 

In Battis v. Chicago, R. I. & P. R. 
Co., 124 Iowa 623, 100 N. W. 543, 
the court says : " It may be con- 
ceded that the sole purpose of the 



agent in calling the physician was 
that the latter might ascertain the 
condition of plaintiff, and thus be 
prepared to advise the company, 
should occasion therefor arise, or be 
a witness on its behalf, if necessary. 
Certainly, if the visit of the physi- 
cian had been confined to the limits 
incident to such purpose alone, his 
eligibility as a witness on behalf of 
the company might not be open to 
question. Without doubt, a railway 
company, with the utmost propriety, 
may thus advise itself of the fact of 
injury, and the character and extent 
thereof, in anticipation of a possi- 
ble claim against it for damages. 
And with that end in view, it may 
send a physician to inspect and take 
notes, or otherwise inform himself 
of existing conditions. But this can 
avail the company nothing unless the 
physician shall strictly retain his 
character as an employe of the com- 
pany. If, upon request or upon his 
own motion, he assumes to advise or 
administer treatment to the patient, 
and the latter in any manner ac- 
quiesces therein, the physician thereby 
casts aside his relation as an em- 
ploye of the company, and transfers 
his allegiance to the patient. In 
such instances a case is presented 
where one cannot serve two masters 
at one and the same time. The alle- 
giance of the physician must be 
wholly upon one side or the other. 
It matters not, in this connection, 
who calls him in the first instance, 
or who pays him. He may present 
himself at the side of the patient on 
his own motion, and he may not 
expect, or in fact receive, pay. The 
reason for this is apparent upon a 
moment's reflection. If the physi- 
cian assumes to advise or treat, he 
should be put in possession of all 
facts necessary or material to enable 
him to do so properly. If the pa- 
tient acquiesce, he should have the 
right to, and should, communicate 
freely and fully, without fear of ex- 
posure or of having his confidence 
made common property. It was to 
this end that the statute was en- 
acted, and manifestly the purpose 
thereof may not be frustrated by 

Vol. X 



116 



PRIVILEGED COMMUNICATIONS. 



(2.) Payment Unnecessary. — Relation exists although physician's 
bill is not paid by person treated,"^ or never paid.*'- 

(3.) Consultation for Self or Friend. — It is immaterial whether a 
person consults a physician to relieve his own anxiety or that of 
a friend.*^^ 

(4.) Prescription or Treatment, — Also immaterial that no prescrip- 
tion was given or treatment administered.*^* 

e. Sufficient If Patient Believes Relation Exists. — In a case 
where a physician has attended upon a person under circumstances 
calculated to induce the opinion that his visit was of a professional 
nature, and the visit has been so regarded and acted upon by such 
person, the relation of physician and patient may be said to exist.®^ 



proof that, at the time of rendering 
professional service, the physician 
was under contract of employment 
to serve the interest of the person 
or company subsequently charged 
with responsibility for the identical 
injury he is called upon or assumes 
to treat." 

61. Grattan v. Metropolitan L. 
Ins. Co., 24 Hun (N. Y.) 43; Noble 
V. Kansas City, 95 Mo. App. 167, 
68 S. W. 969. 

62. Grattan v. Metropolitan L. 
Ins. Co., 24 Hun (N. Y.) 43. 

63. Grattan v. Metropolitan L. 
Ins. Co., 24 Hun (N. Y.) 43. 

64. Grattan v. Metropolitan L. 
Ins. Co., 24 Hun (N. Y.) 43. 

65. People v. Stout, 3 Park. 
Crim. (N. Y.) 670, was a prosecu- 
tion for murder in which the cir- 
cumstances indicated that the person 
committing the murder had received 
some injury. When defendant was 
arrested he gave signs of having 
been injured. Physicians were sent 
to the jail to examine defendant. 
Two of the physicians stated to de- 
fendant that they had been sent by 
the coroner to examine the nature 
and extent of his injuries. Each 
physician made an examination. The 
first gave no prescription, but stated 
what he intended prescribing. The 
last two physicians testified that 
they examined defendant in the 
same manner as they examined their 
own patients. Defendant- consented 
to the examination, granted every 
request, answered every question, 
and requested them to call again. 
One of the last two physicians stated 
that from the manner of himself 
and companion defendant had rea- 

Vol. X 



son to think they were physicians. 
The testimony of the physicians was 
objected to as calling for disclosure 
of privileged communications. Ob- 
jection sustained. The court uses 
this language : 

" The spirit of this statute we ap- 
prehend to be that, whenever the 
confidential relation of physician and 
patient has once existed, and the 
patient has, in consequence thereof, 
yielded to examinations and made 
communications which he would not 
otherwise have made, the seal of 
secrecy shall be set on the transac- 
tion. It follows that it is the duty 
of the court to give full effect to 
this wise and humane provision. 
Such effect cannot, however, be 
given unless the party be protected 
in all cases of confidential disclos- 
ures whenever the patient had rea- 
son to suppose that the relation ex- 
isted, and did, in fact and truth, so 
suppose. The injury to him is as 
great, in the case of divulgement of 
information thus obtained, as it 
would be if the relation had technic- 
ally existed ; for it is plain that the 
opportunities for gaining the infor- 
mation would not have been volun- 
tarily afforded had it not been for 
an entire confidence in the fact of 
such relation existing. We are of 
opinion, therefore, that in a case in 
which a physician has attended up- 
on a person, under circumstances 
calculated to induce the opinion that 
his visit was of a professional nature, 
and the visit has been so regarded 
and acted upon by the person, that 
the relation of physician and patient 
contemplated by the statute may 
fairly be said to exist. The spirit of 



PRIVILEGED CO MM UXICA TIONS. 



Ill 



f. Relation Presumed. — When it appears physician made an ex- 
amination of a certain person, it will be presumed that the relation 
of physician and patient existed, and that information obtained was 
for the purpose of enabling physician to act.*^** 

D. Communication. — It is essential to claim of privilege that 
the communication in question was confidential/'^ 

Knowledge Intended To Be Made Known, — Thus, knowledge which 
patient knows physician must necessarily make known to another 
person is not privileged.*^^ 

Examination of Dead Person, Not Patient. — A physician may state 
what was disclosed by his examination of a dead person, who had 
not been in his lifetime a patient of witness, the information not 
having been imparted in confidence. "^^ 

It is not essential that the examination or consultation be con- 
ducted or held in secret.'" 



the statute is thereby respected, and 
no great violence done to its literal 
terms. We are also of opinion that 
the prisoner had reasonable ground 
of apprehension that Drs. Avery and 
Montgomery called to render him 
aid. Their language to him which 
introduced this interview, though to 
our minds and at this distance from 
the occasion conveying a dififerent 
meaning from that in which the 
prisoner manifestly received it, did 
not necessarily exclude the idea of 
their visit being one of a profes- 
sional nature. By a person reduced 
by pain and very much in need of 
treatment the language would not 
be closely scanned, and it might well 
be understood by him as a message 
from the coroner to examine into 
his injuries. Their manner to him 
was, moreover, purely professional, 
and as we now look at the descrip- 
tion of it, aside from the other mat- 
ters, we naturally adopt the con- 
clusion that it was by profession- 
al men for professional purposes, 
rather than by government wit- 
nesses to obtain testimony for the 
prosecution." 

66. Munz V. Salt Lake City R. 
Co., 25 Utah 220, 70 Pac. 852. 

67. Scripps V. Foster, 41 ]Mich. 
742, 3 N. W. 216. (See statement in 
note 48 under I, 6, C, c, (i.) ; Clark 
V. State, 8 Kan. App. 782, 61 Pac. 
814. 

" Confidential Communication," 
" Necessary Information." — There 
seems to be some uncertainty in the 



use of these expressions. In many 
cases they are used interchangeably. 
In some decisions the expression 
" confidential communication " i s 
used to indicate either communica- 
tions directly made, or knowledge in 
any manner acquired by reason of 
the relation of physician and patient. 
Other cases limit " communication " 
to matter communicated to physician 
by an act of patient. In this arti- 
cle the expressions are treated as 
synonymous. 

68. In Clark v. State, 8 Kan. 
App. 782, defendant was prosecuted 
for bastardy. Defendant and rela- 
trix agreed that relatrix should be 
examined by a physician, and if his 
examination showed that pregnancy 
of relatrix was of not more than 
four months' duration, defendant 
would marry her. Held, that state- 
ments made by relatrix to physician 
were not privileged. 

69. Harrison v. Sutter St. R. Co., 
116 Cal. 156, 166, 47 Pac. 1019. 

70. Grattan v. Metropolitan L. 
Ins. Co., 80 N. Y. 281, 297, 36 Am. 
Rep. 617. 

In Cahen v. Continental Ins. Co.. 
9 Jones & S. (N. Y.) 296, it was 
held that communication to physi- 
cian in presence of patient's wife 
and nurse are privileged. Judg- 
ment reversed on another ground, 
but this question not discussed. See 
also Murphy v. Commissioner (Cal. 
App.), 83 Pac. 577. 

As to third persons unnecessarily 
present, see ante, I, 6, B, c. 

Vol. X 



118 



PRIVILEGED COMMUNICATIONS. 



But it has been held that all knowledge is privileged, whether 
confidential or not/^ 

E. Necessary Information. — It is also essential that knowl- 
edge acquired by a physician was necessary/- 

a. Prescribe for or Treat Patient. — Knowledge must have been 
necessary to enable physician to prescribe for^^ or treat his patient 
for an actual or supposed ailment/* 



71. Renihan v. Dennin, 103 N. Y. 
573, 9 N. E. 320, 57 Am. Rep. 770 ; 
Grattan v. Metropolitan L. Ins. Co., 
80 N. Y. 281, 36 Am. Rep. 617; 
Griffiths V. Metropolitan St. R. Co., 
171 N. Y. 106, 63 N. E. 808. 

72. " The word ' necessary ' 
should not be so restricted as to 
permit testimony of statements or 
information in good faith asked for 
or given to enable intelligent treat- 
ment, although it may appear that 
the physician might have diagnosed 
the disease and prescribed for it 
without certain of the information, so 
that it was not strictly necessary. 
Sloan V. N. Y. C. R. Co., 45 N. Y. 
125 ; Grattan v. Met. Life Ins. Co., 80 
N. Y. 281 ; Renihan v. Dennin, 103 
N. Y. 573." In re Will of Bruendl, 
102 Wis. 45, 78 N. W. 169; In re 
Hunt's Will, 122 Wis. 460, 100 N. 
W. 874. 

73. The word " prescribe " as 
used in statutes of privilege, should 
not be limited to its ordinary sense 
of writing directions for drugs or 
medicines, but should be held to in- 
clude any directions given to alle- 
viate the patient's condition. In re 
Will of Bruendl, 102 Wis. 45, 78 N. 
W. 169; In re Hunt's Will, 122 Wis. 
46, 100 N. W. 874. 

74. Necessary Information. 
Statement to, or knowledge ac- 
quired by, a physician is not privi- 
leged, unless it was necessary to en- 
able him to perform his duties. 

Arkansas. — Collins v. Mack, 31 
Ark. 684, 694. 

California. — /;; re Black's Estate, 
132 Cal. 392, 64 Pac. 695; Harris v. 
Zanone, 93 Cal. 59, 71, 28 Pac. 845. 

Iowa. — Sutcliffe v. Iowa State 
T. M. Assn., 119 Iowa 220, 93 N. 
W. 90, 97 Am. St. Rep. 298. 

Kansas. — Clark v. State, 8 Kan. 
App. 782, 61 Pac. 814; Kansas City, 
etc. R. Co. V. Murray, 55 Kan. 336, 
40 Pac. 646. 

Vol. X 



Michigan. — Campau v. North, 39 
Mich. 606. 33 Am. Rep. 433; People 
v. Glover, 71 Mich. 303, 38 N. W. 
874; Lincoln v. Detroit, loi Mich. 
245, 59 N. W. 617; People v. Cole, 
113 Mich. 83, 71 N. W. 4SS. 

Missouri. — James t'. Kansas City, 
85 Mo. App. 20; Smart v. Kansas 
Cit\-, 91 Mo. App. 586, 596; Hamil- 
ton" V. Crowe, 175 Mo. 634, 75 S. W. 
389; Hollowav V. Kansas City. 184 
Mo. 19, 82 S." W. 89; Linz V. Mas- 
sachusetts Mut. L. Ins. Co., 8 Mo. 
App. 363. 

New York. — Edington v. Aetna 
L. Ins. Co., 77 N. Y. 564; Henry 
V. New York L. E. & W. R. Co., 10 
N. Y. Supp. 508; People v. Koerner, 
154 N. Y. 355. 365, 48 N. E. 730; 
Green v. Metropolitan St. R. Co., 
171 N. Y. 201, 63 N. E. 958, revers- 
ing s. c. 72 N. Y. Supp. 524, 89 Am. 
St. Rep. 807; Griebel v. Brooklyn H. 
R. Co., 74 N. Y. Supp. 126; De Jong 
V. Erie R. Co., 60 N. Y. Supp. 125; 
Brown v. Rome, W. & O. R. Co., 45 
Hun 439; Deutschmann v. Third 
Ave. R. Co., 84 N. Y. Supp. 887, 
893; People %'. Abrahams, 88 N. Y. 
Supp. 924; Benjamin v- Tupper Lake, 
97 N. Y. Supp. 512. Grattan v. Na- 
tional L. Ins. Co., 15 Hun 74. 

Wisconsin. — James v. State, 124 
Wis. 130, 102 N. W. 320. 

But see Doran v. Cedar Rapids 
& M. C. R. Co., 117 Iowa 442, 90 
N. W. 815; Hewitt V. Prime, 21 
Wend. (N. Y.) 79- 

In Bower v. Bower, 142 Ind. 194, 
41 N. E. 523, it was held that a phy- 
sician could testify concerning his 
patient's mental condition, it ap- 
pearing that his knowledge was ac- 
quired while collecting a bill for 
services, and not in the course of 
consultation. 

" It is not sufficient to authorize 
the exclusion that the physician ac- 
quired the information while at- 
tending his patient; but it must be 



PRIVILEGED COMMUNICATIONS. 



119 



b. To Confirm Previous Exauiiiiation. — If an examination be 
made to confirm previous observation, the information thereby ob- 
tained is privileged/^ 

c. Privileged, Whether Necessary or Not. — But it has been held 
that all information acquired by a physician in the discharge of his 
duty is privileged, whether such information was necessary or not.'*^ 

d. Necessary Character, Question for Court. — Whether or not 
certain information was necessary to enable physician to act, is a 
question for the court. "^ 

Whether or Not Necessary. — The question whether or not certain 
information was necessary, will be determined by the court from 
examination of physician ofifered as a witness, and if he states that 
information was not necessary to enable him to prescribe for or 
treat his patient, his evidence as to the information in question 
will be admitted.'* 



the necessary information men- 
tioned" (in statute above quoted). 
Edington v. Aetna L. Ins. Co., 77 
N. Y. 564. See Hoyt v. Hoyt, 112 
N. Y. 493, 20 N. E. 402. 

Information Acquired Partly at 
Social Visits — Where testimony of 
physician showed that he had at- 
tended a certain person profes- 
sionally for a number of years, that 
he made some visits which were not 
professional, and for which he made 
no charge, his testimony as to that 
person's mental condition, founded 
upon knowledge acquired during the 
period testified to should be ex- 
cluded. Brigham v. Gott, 3 N. Y. 
Supp. 518. In this case the issue 
was the mental condition of pa- 
tient, it being sought to show by 
her physician that at a certain time 
her memory became defective. It 
was contended that the testimony 
was competent, because some of the 
information testified to might have 
been obtained at non-professional 
visits ; but the appellate court held 
that the evidence showed that the 
information was acquired during a 
period when physician was prescrib- 
ing for patient as such, and was 
priv'ileged. 

Physician Unable to Segregate. 
If physician is unable to separate 
what he learned from patient by 
confidential communication or ex- 
amination from that which he 
learned from social visits, his testi- 
mony should be excluded. In re 
Darragh's Estate, 5 N. Y. Supp. 58. 



Competent, if Segregation Possi- 
ble But his testimony is compe- 
tent, if confidential matter can be 
separated from matter not confiden- 
tial. Seifert v. State, 160 Ind. 464, 
67 N. E. 100, 98 Am. St. Rep. 340. 

Information Casually Obtained 
from general observation of a per- 
son while attending other members 
of his family is not privileged, it 
not appearing that the person in 
question consulted the physician. 
Jennings v. Supreme Council, L. A. 
Ben. Assn., 81 N. Y. Supp. 90. 

75. In Smart v. Kansas Cit}', 91 
Mo. App. 586, 596, the court holds 
that such information, although ac- 
quired after the relation has ceased, 
is continuing information and privi- 
leged. 

76. Pennsylvania Co. v. Marion, 
123 Ind. 415, 23 N. E. 973, 18 Am. 
St. Rep. 330. 7 L. R. A. 687. (See 
statement in note 21, under I, 7, B. f. 
(3.) ; New York, C. & St. L. R. Co. 
v. Mushrush, 11 Ind. App. 192, 2>7 N. 
E- 954, rehearing denied, 38 N. E. 
871 ; McRae v. Erickson, i Cal. App. 
326, 82 Pac. 209; Briesenmeister v. 
Knights of Pvthias, 81 Mich. 525, 45 
N. W. 977. 

77. In re Redfield's Estate, 116 
Cal. 637, 644, 48 Pac. 794. 

78. In re Halsey's Estate, 9 N. Y. 
Supp. 441. 

Necessity Shown by Physician's 
Statement — Kenyon v. City of 
Mondovi, 98 Wis. 50, 73 N. W. 314. 

Where physician called as a witness 
stated that he did not attend a certain 

Vol. X 



120 



PRIVILEGED COMMUNICA TIONS. 



Presumed Necessary From Relationship. — But the relationship of 
physician and patient being shown, it will be presumed that the 
information in question would not have been imparted to the physi- 
cian, except for the purpose of aiding him to prescribe."^ 

F. Information Acquired in Discharge of Duty. — It is es- 
sential to a claim of privilege that the information in question be 
acquired while the' physician is engaged in rendering professional 
service to his patient, the mere fact of the existence of the relation 



being insufficient. ^° 



person as a ph3'sician, and there was 
nothing from which the contrary ap- 
peared, ruling admitting his testimony 
will not be disturbed upon appeal. 
Stowell V. American C. R. Assn., 5 
N. Y. Supp. 233. 

In State v. Kennedj', 177 Mo. 98, 
75 S- W. 979. 987, it is said that the 
physician must determine for himself 
whether the information acquired by 
him from his patient is necessary. 

79. Necessary Character Pre- 
sumed. — Grattan V. MetropoHtan L. 
Ins. Co., 80 N. Y. 281, 36 Am. Rep. 
617; Fenney v. Long Island R. Co., 
116 N. Y. 375, 22 N. E. 402, 5 L. R. 
A. 544; State V- Kennedy, 177 Mo. 
98, 75 S. W. 979. 988. 

In Edington v. Mutual L. Ins. Co., 
67 N. Y. 185, 194, the court says : 
" The point made that there was no 
evidence that the information asked 
for was essential to enable the phy- 
sician to prescribe is not well taken, 
as it must be assumed from the rela- 
tionship existing that the information 
would not have been imparted except 
for the purpose of aiding the physi- 
cian in prescribing for the patient." 

In Battis v. Chicago, R. I. & P. R. 
Co., 124 Iowa 623, 100 N. W. 543, the 
court says : "' We are not to be re- 
garded as overlooking the further 
contention of counsel for appellant 
in the case at bar to the effect that 
the testimony here sought to be 
elicited did not relate to any com- 
munication ' necessary and proper to 
enable him to discharge the func- 
tions of his office,' etc. It may be 
true, possibly, that the knowledge ac- 
quired by thfe physician was not, in 
point of fact, and strictly speaking, 
necessary and proper to enable him 
to perform the functions of his office. 
But of this we are not in position to 
judge, nor are we called upon to de- 
termine what the fact might be when 

Vol. X 



reduced to a last analysis. It was 
the condition of plaintiff that was 
the subject of the inquiry, and it was 
the professional judgment of the phy- 
sician that was called for. The 
privilege cannot be subject to 
measurement by metes and 
bounds, and we may well assume 
that all that was told to the phy- 
sician, and all that was developed by 
his examination or came under his 
observation, was necessary and 
proper for his understanding of the 
condition of his patient. The rela- 
tion of physician and patient being 
established, if by any fair intendment 
communications made have relation 
to the physical or mental condition 
of the patient, we are bound to hold 
them privileged." 

80. Herries v. Waterloo, 114 Iowa 
374, 86 N. W. 306; Hamilton v. 
Crowe, 175 Mo. 634, 75 S. W. 389; 
In re Black's Estate, 132 Cal. 392, 64 
Pac. 695. 

In Bower v. Bower, 142 Ind. 194, 
41 N. E. 523, a physician was ques- 
tioned as to his patient's mental 
condition. It appeared that he had 
been employed by patient, but that 
his knowledge on the question in is- 
sue was acquired while collecting 
from patient a bill for professional 
services. Held, that his testimony 
was admissible. 

Seifert v. State, 160 Ind. 464, 67 
N. E. 100, 98 Am. St. Rep. 340. In 
this case a physician called to collect 
his bill from a woman upon whom 
an abortion had been committed. In 
response to his inquiry as to whether 
a certain man would pay the bill, she 
said the man referred to had had 
nothing to do with producing her 
condition. Held, that this state- 
ment could be proved by the physi- 
cian. 

Information of the condition of a 



PRIVILEGED COMMUNICATIONS. 



121 



Duty Not Connected With Patient. — As to information acquired 
by physician in the course of performing duty not relating to per- 
son examined, see cases in notes. ^^ 

7. Extent of Privilege. — A. What Matters Privileged. — a. 
Physical Condition of Patient. — As privilege extends to all in- 
formation*^ necessarily acquired by physician in the cotirse of pro- 
fessional employment, it follows that he cannot testify concerning 
the physical condition of his patient.**^ 

b. Fact of Disease. — Nor as to whether his patient had a cer- 
tain disease.®* 

c. Nature of Disease. — Nor as to the nature of the disease for 
which he was treated.^^ 



person, acquired by a physician prior 
to formation of the relation is not 
privileged. In re Lowenstine's Es- 
tate, 21 N. Y. Supp. 931. 

81. It has been held that when 
hospital physician attends a patient 
of his hospital, and, in accordance 
with the rules of his hospital ques- 
tions patient as to the cause of in- 
jury, the information thus acquired 
is privileged, as being necessary to 
enable the phj-sician to perform his 
professional duty. Griebel v. Brook- 
lyn Heights R. Co., 74 N. Y. 
Supp. 126. 

But in Green v. Metropolitan St. 
R. Co., 171 N. Y. 201, 63 N. E. 958, 
89 Am. St. Rep. 807, it appeared that 
the same state of facts existed, that 
is, a physician, in order to comply 
with hospital rules, questioned a pa- 
tient as to cause of injury. Objec- 
tion to question was sustained, and 
upon appeal this ruling was held er- 
roneous. The court did not discuss 
the question of necessity as affected 
by hospital rules, but held the testi- 
mony admissible. 

As to admissibility of record, re- 
quired by hospital rule to be made by 
physician as to inmate, and as to 
waiver arising from its introduction 
bv patient, see Kemp v. Metropolitan 
St. R. Co., 88 N. Y. Supp. i. 

82. " Information." — " Informa- 
tion " mentioned in the New York 
statute extends to all facts which 
necessarily come to the knowledge of 
the physician in a given professional 
case. People v- Stout, 3 Park. 
Crim. (N. Y.) 670. 

All Necessary Knowledge Privi- 
leged Kenyon v. City of Mondovi, 

98 Wis. 50, 72, N. W. 314; BaUis v. 



Chicago, R. I. & P. R. Co., 124 Iowa 
623, 100 N. W. 543. 

83. Physical Condition of Pa- 
tient — Finnegan v. Sioux City, 112 
Iowa 232; Jones v. Brooklyn, B. & 
W. E. R. Co., 3 N. Y. Supp. 253; 
Grossman v. Supreme Lodge, 6 
N. Y. Supp. 821 ; Lackland v. Lex- 
ington Coal Min. Co., no Mo. App. 

634, 85 s. w. 397. 

Even as Regards Sobriety. 

Finnegan v. Sioux City, 112 Iowa 
232, 83 N. W. 907. 

In Edington v. Aetna L. Ins. Co-, 
13 Hun (N. Y.) 543, the following 
questions were held improper : " Was 
he cured when he left your hands ? " 
" Was he better or worse after you 
ceased treating him?" Also the 
question whether or not, on a certain 
day, patient was in good health, was 
of sound body, and one who usually 
enjoyed good health. The last ques- 
tion was held objectionable, as based 
upon information acquired in profes- 
sional attendance. 

Whether Patient Conscious or Un- 
conscious Battis V. Chicago, R. I. 

& P. R. Co., 124 Iowa 623. 100 N. 
W. 543, . 

Physician can not give statements 
of patient as to condition of health 
prior to time of making statement. 
Barker v. Cunard S- S. Co., 36 N. Y. 
Supp. 256, affirmed without opinion. 
157 N. Y. 693, 51 N. E. 1089. 

Contra, as to Condition Metro- 
politan L. Ins. Co. .V. Howie, 68 
Ohio St. 614, 68 N. E. 4. 

84. Nelson v. Nederland Ins. Co.. 
no Iowa 600, 81 N. W. 807; Sloan 
V. New York, C. R. Co., 45 N. Y. 
125. 

85. Nelson v. Nederland L. Ins. 

Vol. X 



122 



PRIVILEGED COMMUNICATIONS. 



Testimony Incompetent, Though Specific Disclosure Not Hade. — It has 
been held that it is error to admit the testimony of physicians, al- 
though it makes no specific disclosure of nature of disease, if it 
shows that they treated a person for a considerable time and that 
they were specialists in the disease which caused the patient's 
aeath.^*^ 

Whether Certain Illness Was Last Illness. — Physician cannot be 
asked when he was applied to in relation to the last illness of his 
patient, as such question requires statement of information which 
could be acquired in professional capacity only ; as whether or not 
the illness in question was patient's last illness, involves a consider- 
ation of the nature of the disease.^^ 

Cause of Death. — Nor can he state the cause of his patient's 
death.** 

d. Fact of Treatment. — Or that he treated patient for a cer- 
tain disease.*" 



Co., no Iowa 600, 81 N. W. 807; 
Lammiman v. Citizens' St. R. Co.. 
112 Mich. 602, 71 N. W. 153; 
Cahen v. Continental L. Ins. Co., 
69 N. Y. 300; Himn v. Hunn, i 
Thomp. & C. (N. Y.) 499; Redmond 
V. Industrial Ben. Assn., 28 N. Y. 
Supp. 1075; s- <^- affirmed 150 N. Y. 
167, 44 N. E. 769; Davis V. Supreme 
Lodge K. of H., 54 N. Y. Supp. 
1023 ; Grattan v. Metropolitan L- Ins. 
Co., 80 N. Y. 281, 36 Am. Rep. 617. 

In Brown v. Metropolitan L. Ins. 
Co., 65 Mich. 306, 32 N. W. 610, 8 
Am. St. Rep. 894, 901, it was held 
that a question to a physician as to 
whether or not he had treated a per- 
son for a certain disease was proper 
But in Jones v. Banker's Life Assur. 
Co. 120 Mich. 211, 79 N. W. 204, the 
supreme court of Michigan says of 
Brown v. Metropolitan L. Ins. Co., 
that that decision must be limited to 
the facts there involved. The court 
states that in Brown v. Metropolitan 
L. Ins. Co., the testimony of a phy- 
sician was admitted because an in- 
jured person had in one application 
for insurance stated that she had had 
a certain disease for which she had 
been treated by a physician whom she 
named, and stated in her second ap- 
plication that she had never been sick. 
The court in Jones v. Life Assn. said 
this ruling was correct. 

86. McCormick v. United L. & A. 
Ins. Assn., 29 N. Y. Supp. 364. This 
was an action upon policy of life iri- 

Vol. X 



surance. Defense, breach of war- 
ranty by insured. Defendant claimed 
that when insured made his applica- 
tion he was suffering from cancer. 
Three physicians were permitted to 
testify for defendant against plain- 
tiff's objection. On this subject the 
court says : " It is urged that these 
physicians disclosed no information 
derived from Story while they were 
treating him in a professional ca- 
pacity. While this may be tech- 
nically true, we think that by per- 
mitting the defendant to show by 
these witnesses that they had treated 
him for some disease for a long time 
anterior to the date of the policy, 
and that they were specialists, and 
accustomed to treat cancers, and dis- 
eases of the tongue and throat, the 
spirit of the section was violated, and 
an error was committed in admitting 
this evidence over the objection of 
the plaintiff." 

87. Patten v. United L. & A. Ins. 
Assn., 16 N. Y. Supp. 376; reversed 
133 N. Y. 450, 31 N. E. 342, but this 
subject is not discussed. 

88. Physician cannot state cause 
of a person's death, if knowledge of 
the disease which caused it was ac- 
quired in the course of professional 
treatment. Grattan v. Metropolitan 
L. Ins. Co., 80 N. Y. 281, 298; s. c 
92 N. Y. 274, 287, 36 Am. Rep. 617. 

89. McGowan v. Supreme Order 
I. O. F., 104 Wis. 173, 80 N. W. 603. 



PRIVILEGED COMMUNICATIONS. 



123 



e. Mental Condition. — Nor can he testify concerning patient'5 
mental condition."" 

Competent in Inquisition in Lunacy. — But it has been held in New 
York that upon an inquisition in lunacy a physician may testify con- 
cerning mental condition of his patient.®^ 

f. Opinion Founded Upon Professional C ommunication. — Phy- 
sician may not state his opinion of his patient's condition, mental 
or physical, when that opinion is based upon knowledge obtained 
from patient's statements, or from an examination made in course 
of professional employment."^ 

g. Means of Acquiring Knowledge Immaterial. — Privilege ex- 
tends to information acquired from examination or observation of 
patient, as well as to matters communicated to physician orally.^^ 



90. California. — In re Flint's Es- 
tate, 100 Cal. 391, 34 Pac. 863; In re 
Nelson's Estate, 132 Cal. 182, 64 Pac. 
294; In re Redfield's Estate, 116 
Cal. 637, 644, 48 Pac. 794. 

Indiana. — Gurley v. Park, 135 Ind. 
440, 35 N. E- 279 ; Brackney v. Fogle, 
156 Ind. 535. 60 N. E. 303; Towles v. 
McCurdy, 163 Ind. 12, 71 ^. E. 129. 

New York. — Renihan v. Dennin, 
103 N. Y. 573, 9 N. E. 320, 57 Am. 
Rep. 770, aiRrming 38 Hun 270; In re 
Coleman, iii N. Y. 220, 19 N. E. 71 ; 
Loder V. Whelpley, iii N. Y. 239, 
18 N. E. 874; Mason v. Williams, 6 
N. Y. Supp. 479; In re Connor's Will, 
7 N. Y. Supp. 855 ; Van Orman v. 
Van Orman, 11 N. Y. Supp. 931; In 
re Preston's Will, 99 N. Y. Supp. 312. 
In re Darragh's Estate, 5 N. Y. Supp. 

58- 

Wisconsin. — In re Hunt's Will, 

122 Wis. 460, 100 N. W. 874. 

91. In In re Benson, 16 N. Y. 
Supp. Ill, the court admitted an affi- 
davit of attending physician showing 
that person whom he had treated pro- 
fessionally was insane. The court 
held that the statute of privilege did 
not extend to inquisition of lunacy. 
The court also held that, even if 
statute did extend to such cases, the 
privilege was waived by failure to 
object, although the record does not 
show that patient was represented on 
the hearing. 

92. Thompson v. Ish, 99 Mo. 160, 
12 S. W. 510, 17 Am. St. Rep. 552; 
Heuston v. Simpson, 115 Ind. 62, 17 
N. E. 261, 7 Am. St. Rep. 409. 

See statement of case of Grattan 
V. Metropolitan L. Ins. Co. 24 Hun 



(N. Y.) 43. When this case was sent 
back for new trial, the trial court ex- 
cluded a question to the examining 
physician calling for his opinion 
founded upon knowledge of the gen- 
eral appearance of the person ex- 
amined, on the theory that all the 
physician's information was acquired 
at one examination, and if part was 
privileged, all was. On appeal to 
general term this ruling was held 
correct. See 28 Hun (N. Y.) 430. 
Opinion not reported. 

In Rose v. Supreme Court O. of 
P., 126 Mich. 577. 85 N. W. 1073, a 
physician was asked, " Excluding 
any knowledge or information you 
obtained while treating the insured, 
and judging from her appearance at 
the time of the treatment, what is 
3'Our opinion, whether she was a wo- 
man in good health and sound body, 
and a woman who usually enjoyed 
good health?" Held, improper, as 
calling for opinion based upon in- 
formation acquired during treatment. 

Jail Physician as Expert The 

nominal professional relation be- 
tween jail physician and a prisoner 
does not disqualify the physician as 
an expert upon the subject of the 
prisoner's mental condition. People 
V. Schuyler, 43 Hun (N. Y.) 88. 

93. Colorado. — Colorado Fuel & 
Iron Co. V. Cummings, 8 Colo. App. 
541, 46 Pac. 875. 

Indiana. — Springer v. Byram, 137 
Ind. 15, 36 N. E. 361, 45 Am. St. Rep. 
159, 23 L. R. A. 244; Carthage Tpk. 
Co. V. Andrews, 102 Ind. 138, 52 Am. 
Rep. 653; Heuston v. Simpson, 115 
Ind. 62, 17 N. E. 261, 7 Am. St. Rep. 

Vol. X 



124 



PRIVILEGED COMMUNICATIONS. 



409; Gurley v. Park, 135 I"d. 440. 35 
N. E. 279; Masonic Assn. v. Beck, 77 
Ind. 203, 40 Am. Rep. 295. 

/owa. — Battis v. Chicago, R. I. & 
P. R. Co., 124 Iowa 623, 100 N. W. 
543; Prader v. Accident Assn., 95 
Iowa 149, 63 N. W. 601. 

Michigan' — ^v\ggs v. Briggs, 20 
Mich. 34. 

Missouri. — Smart f. Kansas City, 
91 Mo. App. 586, 595; Thompson v. 
Ish, 99 Mo. 160, 12 S. W. 510, 17 Am. 
St. Rep. 552; Linz v. Massachusetts 
Mut. L. Ins. Co., 8 Mo. App. 363; 
Streeter v. City of Breckenridge, 2^ 
Mo. App. 244, 251 ; Smoot v. Kansas 
City, 194 Mo. 513, 92 S. W. 363. 

New York. — Grattan v. Metropoli- 
tan L. Ins. Co., 92 N. Y. 274, 44 Am. 
Rep. 372; s. c. 80 N. Y. 281, 36 Am. 
Rep. 417; s. c. 15 Hun 74; Renihan v. 
Dennin, 103 N. Y. 573. 9 N. E. 320, 
57 Am. Rep. 770 ; Sloan v. New York 
Cent. R. Co., 45 N. Y. 125; People v. 
Stout, 3 Park. Cr. 670. 

Wisconsin. — Shafer v. Eau Claire. 
105 Wis. 239, 81 N. W. 409; In re 
Hunt's Will, 122 Wis. 460, 100 N. 
W. 874. 

In Edington v. Mutual L. Ins- Co., 
67 N. Y. 185, s. c. 5 Hun i, the stat- 
ute in question prohibited physician 
disclosing any " information which he 
may have acquired in attending any 
patient in a professional character, 
and which information was necessary 
to enable him to prescribe for such 
patient as a physician, or to do any act 
for him as a surgeon." The court 
says : " It is also urged that the stat- 
ute does not prohibit the disclosure 
of the knowledge which the physicians 
acquired otherwise than by com- 
munications made by the patient. 
We think such a construction would 
be too narrow. The word ' informa- 
tion,' as used in the statute, com- 
prehends the knowledge which the 
physicians acquired in any way 
while attending the patient, whether 
by their own insight, or by verbal 
statements from him, or from mem- 
bers of his household, or from nurses 
or strangers, given in aid of the 
physician in the performance of hi3 
duty. Such is the true signification 
of the word ' information.' Knowl- 
edge, however communicated, is in- 
formation. It may be as well de- 
rived through the sense 01 sight as 

Vol. X 



that of hearing. The principle is 
the same in whatever way the in- 
formation passes. (Coveney v. Tan- 
nahill, i Hill 35; Robson v. Kemp, 
5 Esp. 53.) A dumb patient and one 
whose vocal organs have been para- 
lyzed, are equally protected by the 
statute with others. The secrets of 
the sick chamber cannot be revealed, 
because the patient was too sick to 
talk, or was temporarily deprived of 
his faculties by delirium or fever, or 
any other disease, or because the 
physician asked no questions. The 
statute seals the lips of the physician 
against divulging in a court of jus- 
tice the intelligence — or, if the word 
is preferred, ihe knowledge or in- 
formation — which he acquired while 
in the necessary discharge of his pro- 
fessional duty. It was enacted for 
the purpose of extending to the re- 
lation between a patient and his phy- 
sician, the same rule of public policy 
by means of which the common law 
protected the professional confidence 
necessarily existing between a client 
and his attorney." Judgment re- 
versed on appeal, but ruling on this 
subject held correct. See also Grat- 
tan V. National L. Ins. Co., 15 Hun 
(N. Y.) 74- 

" If the knowledge is acquired in 
the chamber of the patient, and in 
the discharge of professional duty, 
the physician can make no dis- 
closure. This is true, whether the 
knowledge is communicated by the 
words of the patient, or is gained by 
observation, or is the result of a 
professional examination. The law 
forbids the physician from disclosing 
what he learns in the sick-room, no 
matter by what method he acquires 
his knowledge." Heuston v. Simp- 
son, 115 Ind. 62, 17 N. E. 261, 7 Am. 
St. Rep. 409. 

The word " communication " as 
used in a statute, means much the 
same as the word " information." 
Prader v.' Accident Assn., 95 Iowa 
149, 63 N. W. 601. 

In Briggs v. Briggs, 20 Mich. 34, 
41, referring to a stace statute which 
forbade a physician to disclose any 
information which he may have ac- 
quired in attending any patient in his 
professional character, the court says : 
" We do not understand the informa- 
tion here referred to, to be confined 



PRIVILEGED COMMUNICATIONS. 



125 



(1.) Silence of Patient. — Physician will not be permitted to testify 
that his patient made no statement in regard to a particular pain 
or ailment.^* 



to communications made by the pa- 
tient to the physician, but regard it 
as protecting, with the veil of privi- 
lege, whatever in order to enable 
the physician to prescribe, was dis- 
closed to any of his senses, and 
which in any way was brought to his 
knowledge for that purpose." 

" It is the acquisition of informa- 
tion through the medium of profes- 
sional attendance that is the essential 
thing. When the patient submits his 
person to the physician, no word may 
be necessary; and if necessary, this 
makes no difference, since in both 
cases the information is acquired 
from the patient." Linz v. Massa- 
chusetts Mut. L- Ins. Co., 8 Mo. App. 
363. . 

Privilege extends to knowledge 
acquired from the patient himself, 
not only communications received 
from his lips, but from observations 
of his appearance and symptoms and 
from the statements of others who 
may surround him at the time. 
Edington v. Mutual L. Ins. Co., 67 
N. Y. 185. See statement of Gart- 
side V. Connecticut Mut. L. Ins. Co., 
76 Mo. 446, 43 Am. Rep. 765, and 
language quoted therefrom in note 
13 under I, 5, A, a, ante. 

In Squires v. City of Chillicothe, 
89 Mo. 226, 231, I S. W. 23, it is 
said that the case of Gartside v. Ins. 
Co., has been overruled. No deci- 
sion rendered between the dates of 
the two cases expressly overrules 
Gartside v. Ins. Co. An overruHng 
of that decision was not necessary in 
Squires v. Chillicothe. It would 
seem that in the Squires case the 
court intended to refer to Harriman 
V. Stowe, 57 ]\Io- 93, a decision which 
is inconsistent with the principle an- 
nounced in Squires v. Chillicothe. 
This is strengthened by the fact that 
the Squires case refers to Groll v. 
Tower, 85 Mo. 249, as the overruling 
case, and in Groll v. Tower, Harri- 
man V. Stowe is expressly disap- 
proved, while Gartside v. Ins. Co., is 
not even criticized, the court stating 
that the ruling therein was correct, 
but the facts being different from 



those involved there (Groll v. 
Tower), the case was not a control- 
ling authority in that case. Further, 
Gartside v. Ins. Co. is cited as au- 
thority in Thompson v. Ish, 99 Mo- 
160, 173, a case decided three years 
subsequent to decision of Squires v. 
Chillicothe, and in Kling v. City of 
Kansas, 2y Mo. App. 231, 241. 

Knowledge is privileged whether 
gathered from statements of patient, 
or from examination. Colorado 
Fuel & Iron Co. v. Cummings. 8 
Colo. App. 541, 46 Pac. 875, in which 
the court says : " As we view the case, 
and as we believe the law to be, the 
inhibition is broad enough to exclude 
an examination of the surgeon as to 
any information which he has ac- 
quired while attending* a patient, 
whether this information is deduced 
from statements or gathered from his 
professional or surgical examination. 
It is a common knowledge that the 
eye and finger of the attending sur- 
geon is vastly more expert in locat- 
ing cause or trouble than the tongue 
of the most astute patient. The au- 
thorities hold that no matter how the 
information may be acquired, 
whether it comes to the surgeon in 
the shape of oral statements, or by 
reason of his examination, he cannol 
be interrogated respecting it. Freel 
V. Railway Co., 97 Cal. 40, 31 Pac. 
730; Gartside v. Insurance Co., 76 
Mo. 446; Briggs V. Briggs, 20 Mich. 
34; Dilleber v. Insurance Co., 69 N. 
Y. 256; Masonic Assn. v. Beck, yj 
Ind. 203." 

Contra, Limited to Communica- 
tions Made by Patient Metro- 
politan L. Ins. Co. V. Howie, 68 Ohio 
St. 614. 68 N. E. 4. 

94. If patient makes no reference 
to a certain feeling or pain, his phy- 
sician is justified in assuming that it 
does not exist, and thus acquires in- 
formation as to his patient's condi- 
tion. This information is privileged. 
Smart z\ Kansas City, 91 Mo. App. 
586. In this case the court says : 
" There were several questions asked 
of physicians, who attended plaintiff 
in a professional capacity, which 

Vol. X 



12^ 



PRIVILEGED COMMUNICA TIONS. 



(2.) Question by Patient. — Physician will not be permitted to 
testify as to question asked him by patient concerning disease or 
condition treated."" 

h. Statement of Prior Condition. — The privilege extends to 
statements of patient showing his condition prior to first consulta- 
tion with physician."'' 

i. Statements and Acts of Physician. — Privilege also extends to 
statements of physicians to patient,"'^ and to testimony of physician 
as to medicine prescribed."^ 

Prescription. — A physician's prescription is also privileged."" 

j. Information Acquired After Death of Patient, but which is the 
result of continued observation, is privileged.^ 

k. Information Acquired From Other Treatment. — The Court 
of Appeals of New York, following its policy of applying a liberal 



raise important legal questions of 
evidence. In order to support de- 
fendant's theory that the hurt from 
the fall on the sidewalk did not 
cause the amputation, two of the 
physicians who waited upon her for 
several weeks before the amputation, 
were asked questions designed to 
show that she never mentioned to 
them the fall on the sidewalk. The 
offer of this testimony was objected 
to by plaintiff and rejected by the 
court. Defendant insists that this 
was not a communication from the 
patient to the physician, but was, on 
the other hand, evidence that there 
was no communication and was 
thereby not covered by the statute. 
The statute (section 4659, Revised 
Statutes 1899) reads that a physician 
and surgeon shall not testify ' con- 
cerning any information which he 
may have acquired from any patient 
while attending him in a professional 
character, and which information 
was necessary to enable him to pre- 
scribe for such patient as a physician, 
or to do any act for him as a sur- 
geon.' It will be observed that the 
statute does not use the word, ' com- 
munication' ; the statutory word is, 
' information.' It is knowledge com- 
mon to everyone, but especially acted 
upon by physicians, that information 
may be had by lack of communica- 
tion ; and in many instances it is 
acted upon as if there was an affirm- 
ative statement. A physician hear- 
ing no complaint or statement as to 
certain feeling, or pain, or other con- 
dition of his patient, must assume 
that it does not exist ; he thereby 



gains ' information ' that it does not 
exist. The effort made by defend- 
ant to show as a fact that no com- 
plaint of the fall was made, was, of 
course, that the jury might be in- 
formed that, in all probability, no 
injury resulted from the fall. In 
other words, defendant wanted to 
convey to the jury the information 
which the doctor received through 
the silence of his patient. Informa- 
tion is not confined to communica- 
tions. Briggs V. Briggs, 20 Mich. 34." 

95. Baxter v. Cedar Rapids, 103 
Iowa 599, 72 N. W. 790. 

96. Barker r. Cunard S. S. Co., 
36 N. Y. Supp. 256. 

97. Consultation of patient's phy- 
sicians in his presence is privileged. 
Morris v. New York & W. O. R. 
Co., 26 N. Y. Supp. 342. 

Physician cannot state whether or 
not he informed his patient of the 
nature of the disease treated. Nel- 
son V. Nederland L. Ins. Co., no 
Iowa 600, 81 N. W. 807. 

98. Streeter v. City of Breckin- 
ridge, 23 Mo. App. 244, 251. 

99. Nelson v. Nederland L. Ins. 
Co., no Iowa 600, 81 N. W. 807. 

1. vSmart v. Kansas City, 91 Mo- 
App. 586, 596. In this case it was at- 
tempted to be shown by a surgeon 
that several days after a certain am- 
putation, he examined the bones of 
the amputated limb and ascertained 
that a certain condition had not ex- 
isted. It was held that his knowl- 
edge was the result of continued ob- 
servation and was privileged. The 
court said that, whether or not that 
condition existed was a matter of 



Vol. X 



PRIVILEGED COMMUNICATIONS. 



127 



construction to statutes of privilege, has held that a physician 
may not testify, if his knowledge of the condition or disease sought 
to be proved was acquired in the course of treatment of another 
disease, and to treat which the knowledge so acquired was not 
necessary.^ 

B. What Matters Not Privileged. — a. Fact of Attendance 
and Treatment. — The fact that a physician attended a certain per- 
son professionally is not privileged, and physician may be com- 
pelled to state that he did examine, or treat, or prescribe for such 
person,^ or that a certain persoiT consulted him professionally ;* or 



opinion before the operation, and of 
demonstration afterward. 

2. In re Redfield's Estate. ii6Cal. 
637, 644, 48 Pac. 794; In re Preston's 
Will, 99 N. Y. Supp. 312. 

Nelson v. Oneida, 156 N. Y. 219. 50 
N. E. 802, 66 Am. St. Rep. 556. This 
case was an action against a mu- 
nicipal corporation for damages sus- 
tained by a fall due to a defective 
sidewalk. Plaintiff claimed to have 
sufifered, as the result of the accident, 
an umbilical hernia, prolapsus of the 
uterus, and several bruises. Defend- 
ant claimed that plaintifif had an um- 
bilical hernia prior to the accident, 
and offered her attending physician as 
a witness. The physician testified 
that prior to the accident he had at- 
tended and treated plaintifif as her 
physician more or less during eight or 
ten years, during which period he had 
attended her twice in childbirth. At 
this point plaintifif's counsel objected. 
In response to questions by the court 
the witness stated that he learned all 
he knew in regard to plaintiff in his 
capacity as her physician, and that it 
was necessary to enable him to treat 
her case. The court refused to strike 
out the evidence given by witness, 
and inquired if defendant proposed to 
obtain any other non-privileged testi- 
mony from the witness. To this in- 
quiry defendant's counsel stated that 
he proposed to show that plaintifif had 
never been treated by witness for um- 
bilical hernia ; but that, on the occa- 
sion of other treatment, witness had 
discovered that plaintifif had a hernia, 
and that the information was not 
necessary to enable him to treat her 
for the trouble for which he did treat 
her. The court excluded the evi- 
dence on the ground that the knowl- 
edge sought to be disclosed was ac- 



quired while treating plaintiff in a 
confidential capacity. This ruling 
was held to have been correct. The 
statute relied upon provided : " A per- 
son duly authorized to practice physic 
or surgery shall not be allowed to dis- 
close any information which he ac- 
quired in attending a patient in a pro- 
fessional capacity, and which was 
necessary to enable him to act in that 
capacity." The court says : " The evi- 
dence offered was clearly within the 
protection of the statute. The wit- 
ness acquired the information which 
the defendant desired to elicit from 
him, while attending the patient in a 
professional capacity, and the dis- 
covery of an umbilical hernia was a 
necessary incident of the investiga- 
tions made to enable him to act in 
that capacity." 

3. Indiana. — Haughton v. Aetna 
L. Ins. Co., 165 Ind. 32, 73 N. E- 
592, 74 N. E. 613. 

Michigan. — Brown v. Metropoli- 
tan L. Ins. Co., 65 Mich. 306, 32 N. 
W. 610, 8 Am. St. Rep. 894, 901 ; 
Briesenmeister v. Knights of Pythias, 
81 Mich. 525, 45 N. W. 977; Cooley 
V. Foltz. 85 Mich. 47. 48 N. W. 176; 
Dittrich ;'. Detroit. 98 Mich. 245, 57 
N. W. 125. 

Minnesota. — Price v. Standard L- 
& A. Ins. Co., 90 Minn. 264, 95 N. 
W. 1 118. 

Nczu York. — Numrich v. Supreme 
Lodge, 3 N. Y. Supp. 552; Patten 
v. United L. & A. Ins. Co., 133 N. 
Y. 450, 31 N. E. 342; Deutschmann 
V. Third Ave. R. Co., 84 N. Y. 
Supp. 887. 

4. Nelson v. Nederland L. Ins. 
Co., no Iowa 600, 81 N. W. 807. 

Physician may state that he had 
an interview with a certain person 
when he wanted medicine. Bab- 

Vol. X 



128 



PRIVILEGED COMMUNICA TIONS. 



that he, as a physician, prescribed remedies for a certain person.^ 

b. Identity of Patient. — He may also identify his patient.® 

c. Facts as to Patient. — Physician may also testify that a cer- 
tain person was sick ;^ that he was the family physician of a cer- 
VAn person, and the number and dates of his visits f also the place 
where, and the time during which his treatment continued f also 
that a patient was, at a certain time, discharged from treatment i^** 
also that witness refused to attend a patient because another phy- 
sician was called in without consent of witness. ^^ 

d. Ordinary Observation. — A physician may testify as to 
the existence of any facts concerning his patient which are 
equally open to the observation of any other person, and to the 
apprehension of which a medical education is not essential.^- 



cock V. People, 15 Hun (N. Y.) 347- 

5. Nelson v. Nederland L. Ins. 
Co., no Iowa 600, 81 N. W. 807. 

6. Deutschmann v. Third Ave. 
R. Co., 84 N. Y. Supp. 887. 

7. Patten v. United L. & A. Ins. 
Co., 133 N. Y. 450, 31 N. E. 342. 

8. Briesenmeister v. Knights of 
Pythias, 81 jMich. 525, 45 N. W. 977; 
Patten v. United L. & A. Ins. Co.. 
133 N. Y. 450, 31 N. E. 342; Becker 
V. Metropolitan L. Ins. Co., 90 N. 
Y. Supp. 1007, reversing s. e., 87 N. 
Y. Supp. 980; Sovereign Camp W. 
O. W. V. Grandon, 64 Neb. 39, 89 
N. W. 448. 

9. Deutschmann v. Third Ave. R- 
Co., 84 N. Y. Supp. 887; Price v. 
Standard L. & A. Ins. Co., 90 Minn. 
264, 95 N. W. 1 1 18. 

10. Dittrich v. Detroit, 98 Mich. 
245, 57 N. W. 125. 

11. Dittrich v. Detroit, 98 Mich. 
245, 57 N. W. 125. 

12. Bower v. Bower, 142 Ind. 
194, 41 N. E. 523; Staunton v. 
Parker, 19 Hun (N. Y.) 55; Steele 
V. Ward, 30 Hun (N. Y.) 555, 563- 
See discussion in Linz v. Massa- 
chusetts Mut. L. Ins. Co., 8 Mo. App. 
363, although not necessary to de- 
cision; s. c. disapproved on this 
point in Kling v. City of Kansas, 27 
Mo. App. 231, 245; Edington v. 
Aetna L. Ins. Co., 77 N. Y. 564; 
Fisher v. Fisher, 129 N. Y. 654, 29 
N. E. 951 ; In re Loewenstine's Es- 
tate, 21 N. Y. Supp. 931. 

On this subject, see Jones v. 
Brooklyn, B. & W. E. R. Co., 3 N. 
Y. Supp. 253. The court* says : " The 
counsel of appellant insisted that the 

Vol. X 



statute did not apply to this testi- 
mony; that the condition of a bro- 
ken leg did not call for the dis- 
closure of any of the secrets of the 
patient; that the condition of the leg 
was obvious to all ; that privacy, the 
reason of the rule, having failed, the 
rule itself failed. The scars re- 
ceived sometimes in the wars of 
Venus are as plain to sight as a leg 
broken in a railroad accident; yet 
the physician has no more right to 
expose the latter to public gaze than 
the former. Renihan v. Dennin, 103 
N. Y. 573, 9 N. E. Rep. 320; Grat- 
tan V. Insurance Co., 80 N. Y. 281. 
The counsel seems to have been mis- 
led by the following language of the 
learned judge delivering the opinion 
in Edington v. Insurance Co., 77 N. 
Y. 571, viz. : ' Suppose a patient has 
a fever, or a fractured leg or skull,- 
or is a raving maniac, and these ail- 
ments are obvious to all about him,, 
may not the physician who is called 
to attend him testify to these mat- 
ters? In so doing there would be no 
breach of confidence, and the policy 
of the statute would not be invaded." 
If this is the law, what would pre- 
vent the physician from testifying to 
cancers, fistulas, tumors, syphilitic 
marks and sores, all of which may be 
obvious to others than the medical 
expert? But such is not the law; 
and the same judge, in referring to 
this citation, says in Renihan v. Den- 
nin, 103 N. Y. 579, 9 N. E. Rep. 
320, where the same question, viz-, 
that the statute should be confined in 
its application to information of a 
confidential nature, came before the 



PRIVILEGED COMMUNICATIONS. 



129 



Contra. — But the contrary of this rule has also been held.^* 

e. Condition of Corpse of Non-Patient. — A physician may 
testify as to the result of his examination of the body of a dead 
person who was not his patient in his lifetime.^* 

f. Unnecessary Information. — Information, though obtained in 
the course of treatment, which is not necessary to enable physician 
to prescribe for or treat his patient, is not privileged. ^^ 

(1.) Contra. — But the contrary has been held.^^ 

(2.) Unnecessary Statements. — Physician may give in evidence 
statements of his patient relating to matters, knowledge of which 
was not necessary to enable him to prescribe.^^ 

(A.) Cause of Condition. — Consequently he may testify as to 



court [as] in Grattaii v. Insurance 
Co., 8o N. Y. 281 :' I again attempted 
to enforce the same view upon my 
bretliren and again failed, and it 
was then distinctly held that the stat- 
ute could not be confined to informa- 
tion of a confidential nature, and that 
the court was bound to follow and 
give effect to the plain language, 
without interpolating the broad ex- 
ception contended for.' " Chicago 
City R. Co. V. McCaughna, 216 111. 
202, 74 N. E. 819, affirming s. c. 117 
111. App. 538. 

Independent Knowledge Met- 
ropolitan L. Ins. Co. V. Howie, 68 
Ohio St. 614, 68 N. E. 4. In this 
case the following questions were 
held proper. " From your treat- 
ment of Mrs. Sarah Howie, and the 
facts you have testified to, what do 
you say was her state of health on 
Nov. 12, 1894?" "You may state 
what was her condition on that day." 
" What, if anything, did j^ou pres- 
scribe for her, if j'ou remember?" 
The action of the trial court in sus- 
taining objection to that question was 
held erroneous, the appellate court 
holding that the question did not call 
for anything communicative by pa- 
tient to physician, but for the inde- 
pendent knowledge of the latter. 

13. In Post V. State. 14 Ind. App. 
452, 42 N. E. 1 120, it was held that 
a physician could not testify as to 
whether or not a certain person ac- 
companied a patient who consulted 
witness professionallv. 

14. Harrison z: Sutter St. R. Co., 
116 Cal. 156, 166, 47 Pac. 1019. 

15. Edington v. Aetna L. Ins. Co., 
77 N. Y. 564; In re O'Neil's Estate, 



7 N. Y. Supp. 197; Griebel v. Brook- 
lyn Heights R. Co., 74 N. Y. Supp. 
126; De Jong V. Erie R. Co., 60 N. 
Y. Supp. 125; People v. Abrahams, 88 
N. Y. Supp. 924; Benjamin v. Tup- 
per Lake, 97 N. Y. Supp. 512. 

In Brown v. Rome, W. & O. R. Co., 
45 Hun (N. Y.) 439, a physician who 
treated a person who had been in- 
jured by a railway train was ofifered' 
as a witness to prove that plaintiff 
stated to him that he, plaintiff, heard* 
several persons hallooing to him, and 
saw a man wave his hat, but did not: 
think where he was until the train 
was upon him. This evidence was-, 
excluded. Held, error as the in- 
formation was not necessary to en- 
able physician to act in his profes- 
sional capacity. 

In In re O'Neil's Estate, 7 N. Y> 
Supp. 197, it was held that physician 
might testify that decedent had made 
declarations as to making a will, and 
that witness had advised him on that 
subject. See also In IMatter of Hal- 
sey, 2 Connolly (N. Y.) 220- 

Physician may testify that a cer- 
tain person acted as nurse for his pa- 
tient. In re McQueen's Estate, 13 N. 
Y. Supp. 705. 

16. Pennsylvania Co. v. Marion,. 
123 Ind. 415, 23 N. E. 973. 18 Am. 
St. Rep. 330, 7 L. R. A. 687. (See 
statement in note 21 under I, 7, B, f, 
(3.), post.) New York, C. & St. L. 
R. Co. V. Mushrush, 11 Ind. App. 
192. S7 N. E. 954 ; rehearing denied, 
38 N. E. 871 ; McRae v. Erickson, I 
Cal. App. 326, 82 Pac. 209. 

17. Arkansas. — Collins v. Mack, 
31 Ark. 684, 694. 

Vol. X - 



130 



PRIVILEGED COMMUNICATIONS. 



patient's statements concerning the cause of his condition, if in- 
formation thereby acquired was not necessary to enable him to 
prescribe/* 

(B.) Cause of Accident. — Physician may also give statement of 
patient as to cause of accident in which his injury was sustained.^^ 

(C.) Contra, Cause of Accident Privileged. — But it has been held 
that a physician may not give in evidence conversations between 
himself and patient as to the manner in which the accident was 
sustained which caused the injury for which patient was being 
treated.-" 

(3.) Contra, Statements Privileged, Whether Necessary oi Not. — But 
it has been held that statements made by patient to physician are 
privileged, whether information thereby conveyed was necessary 
or not.^^ 



Kansas. — ¥i.?in?,as City, Ft. S.. etc. 

R. Co. V. Murray, 55 Kan. 336, 40 

Pac. 646. 

Missouri. — James v. Kansas City, 

85 Mo. App. 20. 

Michigan — Cooley v. Foltz, 85 

Mich. 47, 48 N. W. 176; People v. 

Cole, 113 Mich. 83, 71 N. W. 455- 
New York. — Brown v. Rome, W. 

& O. R. Co., 45 Hun 439 ; In re Hal- 

sey's Estate, 9 N. Y. Supp. 441; In 

Matter of Halsey, 2 Connolly 220; 
De Jong V. Erie R. Co., 60 N. Y. 
Supp. 125; People V. Koerner, 154 
N. Y. 355, 48 N. E. 730; Griebel v. 
Brooklyn Heights R. Co., 74 N. Y. 
Supp. 126; People V. Abrahams. 88 
N. Y. Supp. 924; Benjamin v. Tup- 

per Lake, 97 N. Y. Supp. 512. 

In Cleveland v. New Jersey Steam- 
boat Co., 5 Hun (N. Y.) 523, it was 
held that statement by patient to phy- 
sician that he was restless at night 
was admissible, but on what ground 
does not appear. Reversed 68 N. Y. 
306, but no discussion of this subject. 
Patients' statements as to physi- 
cian's bill are not privileged. Hol- 
lowav V. Kansas City, 184 Mo. 19, 82 
S. W. 89. 

18. Campau v. North, 39 Mich. 
606, 33 Am. Rep. 433- Plaintiff sued 
ior damages alleging that blows ad- 
ministered by defendant caused a 
rupture. Plaintiff's physician was 
called as a witness, and, having testi- 
fied that he had been employed and 
had acted as her physician, that he 
had charge of her case, and that all 
the facts which had come to his 
knowledge of and concerning her^ had 

Vol. X 



been acquired by him while attend- 
ing her in his professional capacity, 
was tendered as a witness to prove 
that she admitted to him at a certain 
time and place that she had been 
ruptured before she went to live with 
defendant, and had not been ruptured 
by him. This offer of proof was ob- 
jected to as calling for confidential 
communication. Objection was sus- 
tained. On appeal this ruling was 
held erroneous. Green v. Metropoli- 
tan St. R. Co., 171 N. Y. 201, 63 N. 
E. 958, reversing s. c 72 N. Y. 
Supp. 524. 

19. Kansas City, Ft. S. & M. R. 
Co. V. Murray. 55 Kan. 336, 40 
Pac. 646. 

20. McRae v. Erickson, I Cal. 
App- 326, 82 Pac. 209; Norton v. City 
of Moberly, 18 Mo. App. 457; 
Streeter v. City of Breckinridge, 23 
Mo. App. 244, 251 ; Kling v. City of 
Kansas, 27 Mo. App. 231, 241. 

Such was the holding in Green v. 
Metropolitan St. R. Co., 72 N. Y. 
Supp. 524; but in s. c. 171 N. Y. 201, 
63 N. E. 958, the Court of Appeals 
reversed the decision of the Appel- 
late Division on the ground that phy- 
sician's testimony as to patient's 
statements concerning manner in 
which accident was sustained was er- 
roneously excluded. 

21. Pennsylvania Co. v. Marion, 
123 Ind. 415, 23 N. E. 973. 18 Am. 
St. Rep. 330. 7 L. R. A. 687. In this 
case plaintiff sued for damages caused 
by defendant's negligence. Defend- 
ant called as a witness a physician 
who had attended plaintiff, and who 



PRIVILEGBD COMMUNICATIONS. 



131 



g. Bxamination to Ascertain Mental Condition of Non-Patient. 
It has been held that information acquired by a physician for the 
purpose of ascertaining the mental condition of a person, not his 
patient, and not to enable him to render professional service, is not 
privileged.-^ 



had while engaged in his professional 
duties, conversed with him. It was 
proved that the physician asked 
plaintiff how the accident occurred, 
and that plaintiff had answered that 
defendant companj' was not to blame. 
Objection to this evidence was sus- 
tained on the ground that the com- 
munication was privileged. It was, 
on appeal, contended that, as the phy- 
sician's inquiry was propounded, not 
to ascertain the nature of the injury, 
but to learn w'hether the appellee was 
to blame for the injury, the informa- 
tion so acquired was not privileged. 
The court uses this language : " The 
appellant called one Dr. Schill as a 
witness. The doctor had assisted in 
dressing the appellee's injuries, and 
while engaged in such professional 
duties he conversed with appellee, 
and the doctor was interrogated on 
the subject, and it was proposed to 
prove by him that he asked the ap- 
pellee how the accident occurred, and 
that appellee answered that the com- 
pany was not to blame for the acci- 
dent; that he tried to get off the 
train before it stopped, and slipped 
off the step. The objection was sus- 
tained to this evidence, on the 
grounds that the communication was 
privileged, and made to the doctor 
while engaged professionally in 
treating the appellee for the injury. 
It is contended by appellant that this 
question was propounded, not to as- 
certain the nature of the injury, but 
to learn whether the appellee was to 
blame for the injury. In this ruling 
there was no error. The case of 
Heuston v. Simpson, 115 Ind. 62, 7 
Am. St. Rep. 409, and other decisions 
collected and cited in that opinion, 
are decisive of this question. The 
physician had no business to interro- 
gate his patient for any purpose or 
object other than to ascertain the na- 
ture and extent of the injury, and to 
gain such other information as was 
necessary to enable him to properly 
treat the injury and accomplish the 



object for which he was called pro- 
fessionally, and such communications 
are privileged, and he cannot disclose 
them. If the physician took advant- 
age of the fact of being called pro- 
fessionally, and while there in that 
capacity made inquiries of the in- 
jured party concerning matters in 
which he had no interest or concern 
professionally, or for the purpose of 
qualifying himself as a witness, he 
cannot be permitted to disclose the 
information received. The patient 
puts himself in the hands of his phy- 
sician; he is not supposed to know 
what questions it is necessary to 
answer to put the physician in pos- 
session of such information as will 
enable the physician to properly treat 
his disease or injur}', and it will be 
conclusively presumed that the phy- 
sician will onl)'' interrogate his pa- 
tient on such occasions as to such 
matters and facts as will enable him 
to properly and intelligently discharge 
his professional dut}', and the patient 
may answer all questions propounded 
which in any way relate to the sub- 
ject or to his former condition, with 
the assurance that such answers and 
communications are confidential, and 
cannot be disclosed without his con- 
sent." 

To same effect, see New York, C. 
& St. L. R. Co. V. Mushrush, 11 Ind. 
App. 192, 2,7 N. E. 954, 38 N. E. 871 ; 
IMcRae v- Erickson, i Cal. App. 326, 
82 Pac. 209. 

22. In re Will of Bruendl, 102 
Wis. 45, 78 N. W. 169. This case in- 
volved the validity of a will contested 
on ground of unsoundness of mind. 
The proof showed that testatrix had 
been, by her own consent, placed 
under guardianship. To ascertain 
whether or not to apply to court for 
a release from guardianship, a son- 
in-law of testatrix caused physicians 
to examine her to ascertain her men- 
tal condition. This examination was 
made about four months prior to the 
date of the will. The examining phy- 

Vol. X 



132 



PRIVILBGBD COMMUNICATIONS. 



h. Examination to Obtain Evidence. — Nor is information ac- 
quired in course of examination conducted for the purpose of ob- 
taining evidence.^^ 

i. Examination to Prepare as Witness. — Information acquired at 
an examination made to enable physician to testify concerning the 
condition of a certain person is not privileged.^* 

j. Communications as to Crime. — Communications to a physi- 
cian for the purpose of securing his action or assistance in the com- 
mission of a crime are not privileged.-^ 



sicians were offered as witnesses in 
the will contest, and their testimony 
excluded, on the ground that their in- 
formation was confidential. This 
ruling was, on appeal, held er- 
roneous. The Supreme Court of 
Wisconsin uses this language : " Ap- 
plying such rule, it is nevertheless ap- 
parent that the word ' prescribe,' 
when used as appHcable to physicians, 
embodies the purpose of cure, reme- 
dy, or alleviation. The word means 
' to advise, appoint, or designate as 
a remedy for disease.' Cent.. Diet. 
Indeed, the counsel for proponents 
has the same understanding. He 
says in his brief: 'The word "pre- 
scribing," used in the statute, does not 
only apply to prescribing medicines. 
It has a broader sense. After a 
physician has professionally ex- 
amined a patient, he may find that 
the patient does not need any medi- 
cine, but that he needs different air, 
different food, different employment, 
must keep away from bad company, 
etc., and advises him what to do so 
as to regain his health.' We think, 
therefore, that the purpose to cure 
or alleviate is an essential element in 
the meaning of the words ' to pre- 
scribe as a physician,' as used in this 
statute, and that the prohibition 
against disclosing information only 
applies when such purpose is present. 
It may be contended, not without 
force, that there is the same reason 
for confidence when the examination 
is only to ascertain whether a certain 
disease exists, without any purpose 
that the physician shall attempt any 
prescription or advice for cure, but 
the legislature has not seen fit to so 
declare, and such a case is as it was 
before the statute. In the present 
case, the purpose of attempting any- 
thing remedial was wholly wanting 

Vol. X 



in the interview between the medical 
witnesses and the deceased. The 
question was not whether resumption 
of control over her property would 
or would not be beneficial to her 
physically or mentally, but whether 
her mental condition was such that 
the county court would be likely to 
restore such control to her. Advice, 
if any, was sought, not with reference 
to treatment of any disease, but as 
to whether to make an application to 
the court. We hold, therefore, that 
the information obtained by the phy- 
sicians at the interview of Septem- 
ber i8, 1896, was not necessary, and 
was not obtained for the purpose of 
enabling them to prescribe for the 
testatrix as physicians, and therefore 
they were not incompetent to give 
testimony thereof." 

23. In James v. State, 124 Wis. 
130, 102 N. W. 320, defendant was 
indicted for rape of a child. It ap- 
peared that defendant was suffering 
from a venereal disease at the time of 
the offense. The child's mother had 
her examined by a physician for the 
sole purpose of determining whether 
or not she had this disease. Held, 
that physician's testimony as to the 
child's condition was admissible. The 
court based its ruling on the ground 
that the information was not ac- 
quired for the purpose of enabling 
the physician to prescribe. The court 
cites, In re Will of Brundl, 102 Wis. 
45, 78 N. W. 169. Compare Doran v. 
Cedar Rapids & M. C. R. Co., 117 
Iowa 442, 90 N. W. 815. 

24. Nesbit v. People, 19 Colo. 441, 
36 Pac. 221 ; State v. McCoy, 109 La. 
682, 33 So. 730. Compare Doran v. 
Cedar Rapids & M. C- Co., 117 Iowa 
442, 90 N. W. 815. 

25. Seifert v. State, 160 Ind. 464, 
67 N. E. 100, 98 Am. St. Rep. 340; 



PRIVILEGED COMMUNICATIONS. 



133 



Mere Fact of Criminal Charge Not Sufficient. — But the mere fact that 
the person making communication is being tried on a criminal 
charge in the case in which the testimony is offered, is not sufficient 
to justify its exchision; and if it appear that the communication in 
question was made in good faith and to secure medical assistance 
for one in need, it will be held privileged.^^ 

k. Privilege Not Allozved to Shield Criminal. — It has been sev- 
eral times held that if the allowance of a claim that certain in- 
formation is privileged will result in shielding a crim.inal, the claim 
will not be allowed." 



McKenzie v. Banks, 94 Minn. 496, 103 
N. W. 497- 

In State v. Smith, 99 Iowa 26, 68 
N. W. 428, 61 Am. St. Rep. 219, de- 
fendant, a physician, requested an- 
other physician to perform an abor- 
tion upon a woman under defendant's 
care. Held, that the physician so re- 
quested was competent to testify as 
to what was said by defendant in re- 
gard to the patient's condition. The 
court held that the privilege extended 
to a consulting physician, but that, 
as the communication was made for 
the purpose of doing an unlawful act, 
the physician's testimony was prop- 
erly admitted. 

26. In People v. Brower, 6 N. Y. 
Supp. 730, defendant requested a phy- 
sician to attend his wife who was 
suffering from consequences of an 
act performed by both defendant and 
wife for the purpose of producing a 
miscarriage. Upon defendant's trial 
for manslaughter the evidence showed 
that defendant desired to relieve his 
wife's suffering. Held, that his 
statements to the physician were 
privileged. 

27. People v. Griffith, 146 Cal. 
339, 80 Pac. 68; State v. Height, 117 
Iowa 650, 91 N. W. 935. 

In a prosecution for producing an 
abortion, a physician who attended 
the subject of the crime may give 
evidence of what he discovered dur- 
ing his examination; also that a mis- 
carriage occurred in his presence. 
The court said : " The rule declared 
by the statute, which forbids a phy- 
sician to reveal in evidence matters 
discovered by him in the course of 
professional attendance or treatment 
of a patient, is intended to protect the 
latter, and not to shield one who is 
charged with perpetrating an unlaw- 



ful act upon the patient. The stat- 
ute cannot be so construed as to per- 
mit a party charged with crime, to 
invoke it as a weapon of defense in 
his own favor, instead of its being 
used as a protection to his victim." 
Hauk V. State, 148 Ind. 238, 46 N. 
E. 127, 47 N. E. 465- 

In People v. Lane, loi Cal. 513, 36 
Pac. 16, and People v. West, 106 
Cal. 89, 39 Pac. 207, the California 
statute on the subject of privileged 
communications (C. C. P. § 1881) 
was held limited to civil cases. 

In State v. Grimmell, 116 Iowa 596, 
88 N. W- 342, the court says : " But 
we need not go into this matter fur- 
ther than to demonstrate that even 
in civil cases we have extended the 
language of the statute, and ex- 
pressly hold that the prohibition may 
be waived, either by the testator, or 
after his death by those who stand for 
him. Denning v. Butcher, supra. 
This, as will be observed, is a crim- 
inal case, and it surely will not do to 
hold that a statute intended to pro- 
tect a patient should operate as a 
shield for one who is charged with 
murder. Such a construction, while 
perhaps technically correct, is evi- 
dently so foreign to the purpose and 
object of the act, and so subversive 
of public justice, that it ought not to 
be adopted, except for the most im- 
perative reasons. The safety of the 
public is the supreme law of the com- 
monwealth, and we do not think the 
legislature, in passing the act in 
question, intended it to operate as a 
barrier to the enforcement of the 
criminal laws of the state. If the 
patient were alive, perhaps no one 
but she could waive the prohibition. 
But in this case she is dead and un- 
able to speak. If in a civil case her 

Vol. X 



134 



PRIVILEGED COMMUNICATIONS. 



representative may waive the prohi- 
bition, we see no good reason for 
saying that in a criminal one the pro- 
hibition is absolute. The purpose of 
the statute, as we have said, is to pro- 
tect the patient, and not to shield one 
who feloniously takes his life. The 
authorities uniformly support this 
position. Hauk v. State, 148 Ind. 
238, 46 N. E. 127; People V. Harris, 
136 N. Y. 424, 33 N. E. 65; Underh. 
Cr. Ev. §351-" 

In Pierson v. People, 79 N. Y. 424, 
35 Am. Rep. 524, defendant was in- 
dicted for causing the death, by 
poison, of W. The court states the 
case and discusses the question in- 
volved as follows: "While Withey 
was sick, suffering from the poison 
which is supposed to have been ad- 
ministered to him, Dr. Coe, practic- 
ing physician, was called to see him 
by the prisoner; and he examined 
him and prescribed for him. On the 
trial he was called as a witness for 
the people, and this question was put 
to him : ' State the condition in which 
you found him at that time, both 
from your own observation and from 
what he told you?' The prisoner's 
counsel objected to this question on 
the ground that the information 
which the witness obtained was ob- 
tained as a physician, and that he had 
no right to disclose it; that the evi- 
dence offered was prohibited by the 
statute. The court overruled the ob- 
jection, and the witness answered, 
stating the symptoms and condition 
of Withey, as he found them from an 
examination then openly made in the 
presence of Withey's wife and the 
prisoner, and as he also learned them 
from Withey, his wife and the 
prisoner. There was nothing of a 
confidential nature in any thing he 
learned or that was disclosed to him. 
The symptoms and condition were 
such as might be expected to be 
present in a case of arsenical poison- 
ing. It is now claimed that the court 
erred in allowing this evidence, and 
the statute (§834 of the Code) is in- 
voked to uphold the claim. , . The 
design of the provision was to place 
the information of a physician, ob- 
tained from his patient in a profes- 
sional way, substantially on the same 
footing with the information ob- 

Vol. X 



tained by an attorney professionally 
of his client's affair. The purpose was 
to enable a patient to make such dis- 
closures to his physician as to his ail- 
ments, under the seal of confidence, 
as would enable the physician intelli- 
gently to prescribe for him ; to invite 
confidence between physician and 
patient, and to prevent a breach 
thereof. (Edington v. Mut. Life Ins. 
Co., 67 N. Y. 185, 77 id. 564.) There 
has been considerable difficulty in 
construing this statute, and yet it 
has not been under consideration in 
many reported cases. It was more 
fully considered in the Edington case 
than in any other or all others. It 
may be so literally construed as to 
work great mischief, and yet its scope 
may be so limited by the courts as 
to subserve the beneficial ends de- 
signed without blocking the way of 
justice. It could not have been de- 
signed to shut out such evidence as 
was here received, and thus to pro- 
tect the murderer rather than to 
shield the memory of his victim. If 
the construction of the statute con- 
tended for by the prisoner's counsel 
must prevail, it will be extremely 
difficult, if not impossible, in most 
cases of murder by poisoning, to con- 
vict the murderer. Undoubtedly such 
evidence has been generally received 
in this class of cases, and it has 
not been understood among lawyers 
and judges to be within the prohibi- 
tion of the statute. . • . But we 
do not think it expedient, at this 
time, to endeavor to lay down any 
general rule applicable to all cases, 
limiting the apparent scope of this 
statute. We are quite satisfied with 
the reasoning upon it of Judge Tal- 
cott, in his able opinion delivered at 
the General Term of the Supreme 
Court, and we agree with him ' that 
the purpose for which the aid of this 
statute is invoked, in this case, is so 
utterly foreign to the purposes and 
objects of the act, and so diametrical- 
ly opposed to any intention which 
the legislature can be supposed to 
have had in the enactment, so con- 
trary to and inconsistent with its 
spirit, which most clearly intended 
to protect the patient and not to 
shield one who is charged with his 
murder, that in such a case the stat- 



PRIVILEGED COMMUNICATIONS. 



135 



1. Information From Person Subject of Crime. — Testimony as 
to information acquired by physician from a person who was the 
subject of a crime will not be excluded upon objections of de- 
fendant.^* 

m. Communication Presumed Lawful. — Communications are 
presumed to have been made for a lawful purpose.^'' 

n. Testamentary Cases. — Authorities Conflicting. — On the 
question whether or not statutes creating privilege are applicable 
to cases in which the testimony of physicians is offered to show 
testator's mental condition for the purpose of sustaining or inval- 
idating a will, the authorities are conflicting. 

(1.) Statute Not Applicable. — Physician's Testimony Competent. — It 
has been held that in contests between devisees or legatees and heirs 
at law, all claiming under the same deceased person, any party to 
the contest may require an attending physician to give in evidence 
information acquired in the course of his professional treatment of 
testator.^" 



lite is not to be so construed as to 
be used as a weapon of defense to the 
party so charged, instead of a pro- 
tection to his victim.' This objection 
was, therefore, not well taken." 

In People v. Murphy, loi N. Y. 
126, 4 N. E. 326, 54 Am. Rep. 661, the 
court says of Pierson v. People, that 
the statute as to confidential com- 
munications " did not cover a case 
where it was invoked solely for the 
protection of a criminal, and not for 
the benefit of the patient, and where 
the latter was dead so that an ex- 
press waiver of the privilege had be- 
come impossible." When Pierson v. 
People was heard before an inter- 
mediate appellate tribunal, it was 
held that objections to physician's 
testimony were properly overruled. 
The court said : " It is the duty of the 
courts so to construe statutes as to 
meet the mischief and to advance the 
remedy, and not to violate funda- 
mental principles." 

28. People v- Murphy, 161 N. Y. 
126, 4 N. E. 326, 54 Am. Rep. 661. 

In People v. Benham, 63 N. Y. 
Supp. 923, 937, 30 Misc. 466, defend- 
ant was indicted for murder of his 
wife by poison. Held, competent to 
show by wife's physician that she had 
been addicted to the use of mor- 
phine for a long time. The court 
cites People v. Murphy, Pierson v. 
People and People v. Harris, supra, 
and says that if statements to phy- 



sicians are competent when they tend 
to prove the crime of murder, they 
should be equally competent when 
they tend to disprove it. 

29. In Guptill V. Verback, 58 Iowa 
98, 12 N. W. 125, a physician was 
asked if plaintiff had consulted him 
in regard to producing a miscarriage. 
The question was objected to as cal- 
ling for the disclosure of a privileged 
communication. Against the objec- 
tion it was contended that as the 
communication was made for the pur- 
pose of committing a crime, it was 
not privileged. The court states that 
the production of a miscarriage is not 
a crime when necessary to save life^ 
and that until it be shown that the 
communication was made for an il- 
legal purpose, it would be presumed 
to have been made for a legal pur- 
pose. 

30. Thompson v. Ish, 99 Mo. 160^ 
12 S. W. 510, 17 Am. St. Rep. 552; 
III re Shapter's Estate (Colo.), 85. 
Pac. 688. 

In Iowa, it is held that the stat- 
ute of that state does not apply to 
testamentary cases, and that in a con- 
test between a devisee or legal rep- 
resentative and heirs at law, all 
claiming under deceased, the attend- 
ing physician of deceased may be 
called as a witness by either party„ 
The statute provides : " No practic- 
ing attorney, counselor, physician^ 
surgeon, minister of the gospel, or 



Vol. X 



136 



PRIVILEGED COMMUNICATIONS. 



(2.) Contra. — Physician's Testimony Incompetent. — But it has also 
been held that the statute does apply in such cases, and that phy- 
sician is not a competent witness on the subject of testator's men- 
tal condition.^^ 

o. Non-Confidential Matter in Course of Consultation. — If in 
course of consultation patient communicates to physician matters 



priest of any denomination, shall be 
allowed, in giving testimony, to dis- 
close any confidential communication 
properly intrusted to him in his pro- 
fessional capacity, and necessary and 
proper to enable him to discharge the 
functions of his office according to 
the usual course of practice and disci- 
pline. Such prohibitions shall not 
apply to cases where the party in 
whose favor the same are made 
waives the right conferred." The 
Court discusses the question of the 
right of waiver, reviews authorities 
on the subject, and concludes: "It is 
not very material to the result 
whether we say the heir or devisee 
may, in the interest of the estate of 
the deceased, waive the privilege, or 
that the statute does not apply to a 
case where the proceedings are not 
adverse to the estate, and the interest 
of the deceased as well as his estate 
could only be the determination of 
the truth. In either event, we hold 
that in a dispute between the devisee 
or legal representative and the heirs 
at law, all claiming under the de- 
ceased, the attending physician may 
be called as a witness by either party." 
Winters v. Winters, 102 Iowa 53, 71 
ISr. W. 184. 63 Am. St. Rep. 428. 

81. Statute Applies in Testa- 
mentary Cases — California. — In re 
Nelson's Estate, 132 Cal. 182, 64 Pac. 
294; In re Redfield's Estate, 116 Cal. 
637, 644, 48 Pac. 794- 

Indiana. — Gurley v. Park, 135 Ind. 
440, 35 N. E. 279; Brackney v. Fogle, 
156 Ind. 535, 60 N. E. 303; Towles 
■V. McCurdy, 163 Ind. 12, 71 N. 
E. 129. 

New York. — Renihan v. Dennin, 
103 N. Y. 573, 9 N. E. 320, 57 Am. 
Rep. 770; In re Coleman, iii N. Y. 
220, 19 N. E. 71 ; Loder v. Whelpley, 
III N. Y. 239, 18 N. E. 874; Renihan 
"v. Dennin, 38 Hun 270 {affirmed in 
103 N. Y. 573, 9 N. E. 320) ; Mason 
■v- Williams, 6 N. Y. Supp. 479; In re 
Connor's Will, 7 N. Y. Supp. 855; 

Vol. X 



Van Orman v. Van Orman, 11 N. Y. 
Supp. 931 ; In re Preston's Will, 99 
N. Y. Supp. 312. 

Wisconsin. — hi re Hunt's Will, 
122 Wis. 460, 100 N. W. 874. 

In Renihan v. Dennin, 103 N. Y. 
573. 9 N. E. 320. 57 Am. Rep. 770, 
the Court says : " But it is claimed 
that the statute should be held not to 
apply to testamentary cases. There 
is just as much reason for applying 
it to such cases as to any other, and 
the broad and sweeping language of 
the two sections cannot be so limited 
as to exclude such cases from their 
operation. There is no more reason 
for allowing the secret ailments of a 
patient to be brought to light in a 
contest over his will than there is 
for exposing them in any other case 
where they become the legitimate 
subject of inquiry. An exception so 
important, if proper, should be en- 
grafted upon the statute by the leg- 
islature, and not by the courts." 

Contra in New York The courts 

of New York have not always held 
the statute applicable to cases involv- 
ing validity of wills. 

In Allen v. Public Administrator, 
I Bradf. (N. Y.) 221, the statute 
under consideration provided that 
" no person duly authorized to prac- 
tice physic or surgery shall be al- 
lowed to disclose any information 
which he may have acquired in at- 
tending any patient in a professional 
character, and which information was 
necessary to enable him to prescribe 
for such patient as a physician, or to 
do any act for him as a surgeon." 
The court held that this statute did 
not apply in testamentary cases. 
The court says that the statute does 
not establish a general and absolute 
prohibition of such testimony, in all 
cases, but secures a personal privi- 
lege to the party, not to the witness, 
which may be waived. The discus- 
sion, however, seems to proceed not 
so much on the ground of waiver, as 



PRIVILEGED COMMUNICATIONS. 



137 



not necessary to enable him to perform his duty, he may testify 
concerning them.^^ 

p. Action Against Physician. — In action against physician for 
damages caused by his malpractice the rule does not apply, and 
physician may testify as to what occurred between himself and 
patient.^^ 



upon a holding that the statute does 
not apply to probate proceedings. On 
the question of waiver, the court 
seems to hold that, if the statute did 
apply, the death of testator put it be- 
3'ond possibility to assert or waive the 
privilege. Allen v. Public Adminis- 
trator, is approved in Whelpley v. 
Loder, I Dem. (N. Y.) 36S. 376; 
Pearsall v. Elmer, 5 Redf. (N. Y.) 
i8r, 190, and is recognized in Pierson 
V. People, 18 Hun (N. Y.) 239. (See 
pp. 247, 249.) ^ It is overruled by 
Renihan v. Dennin, 103 N. Y. 573, 
57 Am. Rep. 770. 

In Staunton v. Parker, 19 Hun (N. 
Y.) 55, evidence of physician as to 
testator's sanity seems to have been 
admitted upon the ground that ques- 
tions as to mental condition did not 
call for anything communicated 
under the seal of professional confi- 
dence. As to New York statute, see 
In re Hopkins' Will, 77 N. Y. 
Supp. 178. 

32. Statement Confidential in 
Part. — Seifert v. State, 160 Ind. 464, 
67 N. E. 100, 98 Am. St. Rep. 340. 
In this case a woman requested a 
physician to perform an abortion 
upon her. In the course of her con- 
versation she stated that a certain 
man had caused her condition. It 
was held that the physician could 
give the latter statement in evidence. 
The court says : " The matter of dif- 
ficulty in this case is the segregation 
of the competent from the incompe- 
tent. We think, however, that the 
questions asked were fairly calculated 
alone to develop that which was com- 
petent. If the deceased requested the 
physician to perform a crmiinal r.bor- 
tion upon her person, as the offer 
to prove tended to show, that fact 
could have been developed as a 
proper introductory fact, and that 
would furnish the basis for a show- 
ing in a negative way that the proper 
subject on which professional advice 
had been sought and given had no re- 



lation to an abortion, and was no 
longer under discussion. This being 
shown, it would prima facie appear 
that the balance of the conversation 
was not privileged. The statute 
under consideration is highly bene- 
ficient in its operation, and it should 
not be frittered away by permitting 
the answering of questions which 
tend to reveal that which should be 
kept inviolate. AH doubtful points 
must be solved against the compe- 
tency of the proposed testimony, but 
if counsel, by a line of questions, can 
develop the isolated point, concerning 
which the court can say, this is com- 
petent, and at the same time avoid the 
disclosure of that which should be 
kept sacred, it is his privilege to pur- 
sue that course. In the case of Mc- 
Donald V. McDonald, 142 Ind. 55, 
where the court below has let in evi- 
dence of a disclosure to an attorney, 
although it was claimed that the con- 
versation opened with a prior pro- 
fessional communication, this court 
held that the subsequent statement 
was competent, by way of admission, 
on the ground that the opening and 
subsequent statements were as separ- 
ate and distinct as though they had 
been made at different times." The 
court cites McDonald v- McDonald, 
142 Ind. 55, 41 N. E. 336, which 
makes a similar holding concerning 
communications to attorneys. 

33. Lane v. Boicourt, 128 Ind. 
420, 27 N. E. iiii, 25 Am. St. Rep. 
442 ; Becknell v. Hosier, 10 Ind. App. 
S, 2,7 N. E. 580. 

In Cramer v. Hurt, 154 Mo. 112, 55 
S. W. 258, 77 Am. St. Rep. 752, the 
decision seems to be based upon the 
ground of necessity, that is, that de- 
fendant's own testimony was neces- 
sary to enable him to maintain his de- 
fense. 

In Becknell v. Hosier and Cramer 
V. Hurt, the court intimates that the 
institution of such action may be con- 
sidered a waiver of privilege. 

Vol. X 



138 



PRIVILEGED CO MM UNICA TIONS. 



Consulting Physician. — In such case a physician called in to con- 
sult may also testify.^* 

q. Action Against Patient for Physician's Services. — But in an 
action by physician's, assignee against patient, to recover for pro- 
fessional services, the physician cannot testify as to information 
acquired from patient while attending him in a professional ca- 
pacity.^^ 

General Denial No "Waiver. — In such case the filing, of a general 
denial to plaintiff's declaration does not constitute a waiver of 
privilege. ^"^ 

Competent as to Value of Service. — But a physician who assists at 
an operation may testify as to the value of services rendered in 
performing it.^^ 

8. Duration of Privilege. — The privilege does not cease upon 
the death of patient,^* nor upon the cessation of the relation of 
physician and patient,^^ but continues, unless waived by patient, 
or by some person representing him. 

9. Waiver of Privilege. — As privilege is created for protection 
of patient, and is designed for his benefit, it may be waived.*** 



34. Lane v. Boicourt, 128 Ind. 420, 
2y N. E. nil, 25 Am. St. Rep. 442. 

35. Van Allen v. Gordon, 31 N. Y. 
Supp. 907; MacEvitt V. Maass, 67 
N. Y. Supp. 817. 

Nor can physician prove case 
against his patient by testimony of 
another physician, who attended pa- 
tient professionally, as to patient's 
condition. M'Gillicuddv v. Farmer's 
L. & T. Co., 55 N. Y. Supp. 242. 

36. Van Allen v. Gordon, 31 N. Y. 
Supp. 907. 

37. In MacEvitt v. Maass, 67 N. 
Y. Supp. 817, the court says: "The 
defendant then excepted to the ad- 
mission of the testimony of the 
plaintifif and of the said surgeons as 
experts in respect of the vakie of the 
plaintiff's services, on the ground that 
as the nature and particulars of the 
surgical operation had not been given 
in evidence, there was no basis for 
such evidence. There was evidence 
that a capital surgical operation was 
performed, of the time it took, and 
of the number of visits the plaintiff 
made to the patient before and after 
it ; but there was none to show what 
the operation really was. But while 
there were no particulars before the 
jury to serve as a basis for the value 
of the surgical operation, the wit- 
nesses knew the particulars. The 

Vol. X 



statute excluding such particulars 
cannot justly be held to exclude such 
evidence of value by the surgeons 
who saw them. It was the best evi- 
dence which the nature of the case 
admitted of; and that has been held 
to justify the admission of evidence. 
The operation of the statute having 
created ..an exceptional case it had to 
be treated in an exceptional manner. 
Van Allen v. Gordon, 31 N. Y. Supp. 
907." 

38. Penn Mut. L. Ins. Co. v. 
Wiler, 100 Ind. 92, 50 Am. Rep. 
769; Grattan v. Metropolitan L. Ins. 
Co., 80 N. Y. 281, 36 Am. Rep. 617; 
Westover v. Aetna L- Ins. Co., 99 
N. Y. 56, I N. E. 104, 52 Am. Rep. i ; 
Edington v. Mutual L. Ins. Co., 5 
Hun (N. Y.) I, 9; Cahen v. Contin- 
ental L. Ins. Co., 41 N. Y. Super. 296. 
Judgment reversed, but ruling on this 
subject held correct, 69 N. Y. 300, 
308; Shuman v. Supreme Lodge K. 
of H. no Iowa 480, 81 N. W. 717. 

39. Smart v. Kansas City, 91 Mo. 
App. 586, 596. 

40. Grand Rapids & I. R. Co. v. 
Martin, 41 Mich. 667, 3 N. W. i73- 
See also cases cited in notes 41-53, 
post. 

In Penn Mut. L. Ins. Co. v. Wiler, 
100 Ind. 92, 50 Am. Rep. 769, it is 
said : "Notwithstanding the abso- 



PRIVILEGED COMMUNICATIONS. 



139 



A. Waiver Not Contrary to Public Policy. — To permit 
waiver of privilege is not contrary to public policy.*^ 

B. By Whom Waived. — a. Patient. — Privilege may be waived 
by patient*- who may make it through his attorney.'*^ 

b. Personal Representative. — Or by his personal representative.** 

Executor Cannot Waive in Action to Revoke Probate and Substitute a 

Later WilL — It has been held that in an action to revoke probate of 

a will and substitute therefor a later will, the executor named in 

the first will cannot waive privilege as to testimony of physician.*^ 



lutely prohibiting form of our present 
statute, we think it confers a privi- 
lege which the patient, for whose ben- 
efit the provision is made, may claim 
or waive. It gives no right to the 
physician to refuse to testify, and 
creates no absolute incompetency." 

"The right of waiving a privilege 
must be as broad as the privilege it- 
self." Blair v. Railroad Co., 89 Mo. 
334, I S. W. 367, quoted in Daven- 
port V. Hannibal, 108 Mo. 471, 18 S. 
W. 1 122. 

The Missouri statute considered in 
Adreveno v. Mutual R. F. Assn., 34 
Fed. 870. was as follows: "The fol- 
lowing persons shall be incompetent 
to testify: A physician or surgeon 
concerning any information which he 
may have acquired from any patient 
while attending him in a professional 
character, which information was 
necessary to enable him to prescribe 
for such patient as a physician, or do 
any act for him as a surgeon." It 
was held that this statute conferred 
a privilege, which might be waived. 

41. Grand Rapids & I. R. Co. v. 
Martin, 41 Mich. 667, 3 N. W. 173; 
Adreveno v. Mutual R. F. Assn., 34 
Fed. 870. 

42. United States. — Adreveno v. 
Mutual R. F. L. Assn.. 34 Fed. 870. 

Indiana. — Penn Mut. L. Ins. Co. 
V. Wiler, 100 Ind. 92, 50 Am. Rep. 
769; Morris v. Morris, 119 Ind. 341, 
21 N. E. 918. 

Iowa. — Denning v. Butcher, 91 
Iowa 425, 59 N. W. 69. 

Michigan. — Grand Rapids & I. R. 
Co. V. Martin, 41 Mich. 667, 3 N. 
W. 173. 

Missouri. — Thompson v. Ish, 99 
Mo. 160, 12 S. W. 510, 17 Am. St. 
Rep. 552; Carrington v. St. Louis, 89 
Mo. 208, I S. W. 240, 58 Am. Rep. 
108; Blair v. Chicago & A. R. Co., 



89 Mo. 334, I S. W. 367; Blair v. 
Chicago & A. R. Co., 89 Mo. 383. i 
S. W. 350; Davenport v. Hannibal, 
108 Mo. 471, 18 S. W. 1 122. 

43. Alberti v. New York, etc. R. 
Co., 118 N. Y. 77, 86, 23 N. E. 35, 6 
L. R. A. 765; Dougherty v. Metro- 
politan L. Ins. Co., 33 N. Y. Supp. 

873- 

44. Thompson v. Ish, 99 Mo. 160, 
12 S. W. 510, 17 Am. St. Rep. 552; 
Morris v. Morris, 119 Ind. 341, 21 
N. E. 918; Denning v. Butcher, 91 
Iowa 425, 59 N. W. 69; Twaddell v. 
Weidler, 96 N. Y. Supp. 90. Contra. 
— Westover v. Aetna L. Ins. Co., gg 
N. Y. 56, I N. E. 104, 52 Am. Rep. 
I. Decided under C. C. P., §§835, 
836 as in force in 1885. 

In Eraser v. Jennison, 42 Mich. 206, 
3 N. W. 882, defendants, proponents 
of a will which was sought to be set 
aside on ground of mental incapacity 
of testator, were permitted to inter- 
rogate testator's attending physician 
as to his condition while witness was 
treating him. The court states that 
as a person may waive the privilege 
during his lifetime, those who repre- 
sent him after his death may waive 
it for the protection of the interests 
they claim under him. 

Under statute of New York confer- 
ring right of waiver upon "personal 
representatives" it is held that those 
words apply only to executors and 
administrators. Beil v. Supreme 
Lodge K. of H., 80 N. Y. Supp. 75i- 

45. In Heaston v. Kreig (Ind.), 
77 N. E. 805, the court says : "A 
waiver must have its basis in the 
right of the decedent, and in such a 
case as this it can only be invoked 
by the executor who is seeking to 
support what prima facie at least was 
the valid act of his testator." 

Vol X 



140 



PRIVILBGED COMMUNICATIONS. 



c. Heir at Law. — Privilege may be waived by heir at law of 
deceased person.*'' 

Heirs at Law Alone. — It has been held that in case of a will con- 
test the heirs at law of decedent are the only persons who have 
right to waive privilege.*'' 

(A.) Will Contest. — In contest of validity of proposed will, when 
no executor has been appointed, an heir at law cannot waive priv- 
ilege as to testimony of testator's attending physician.*^ 

(B.) Action on Insurance Policy. — Heirs at law, not claiming as 
such, but as appointees of insured in life insurance policy, cannot, 
in an action on the policy, waive privilege.*** 

d. Joint Action Not Necessary. — It is not necessary that exe- 
cutor, widow and heir at law join in making waiver of privilege. 
The action of any one person having right of waiver is sufficient. ^° 

e. Guardian. — Privilege may be waived by the guardian of a 
minor.^^ 

f. Parents. — It has been held that the privilege may be waived 
by parents of child who had been treated by physician.^- 

g. Husband Cannot Waive. — In action brought by a man 
against a physician to recover damages for producing an abor- 
tion on plaintifif's wife, the husband cannot waive his wife's priv- 
ilege as to information acquired by defendant from professional 
examination.^^ 



46. Roche v. Nason (N. Y.), 77 
N. E. 1007. 

47. In Staunton v. Parker, 19 Hun 
(N. Y.) 55, the court holds that heirs 
at law are the only ones who succeed 
to rights of testator as to privilege. 
The court states that at that stage 
of the proceedings the person named 
as executor is a stranger to the es- 
tate ; and the heirs at law, contest- 
ing probate, were the parties who 
succeeded to decedent's rights. The 
court cites Allen v. Public Admr., i 
Bradf. (N. Y.) 221, although in that 
case the court appears to hold that 
privilege died with the decedent, and 
after his death no one could waive 
it. The court also cites Thayer v. 
Allen, Selden's notes, p. 93. 

48. In In re Flint's Estate, 100 
Cal. 391, 34 Pac. 863, statute prohib- 
ited physician from testifying "with- 
out the consent of his patient." Held, 
that in contest of probate of will, an 
heir at law could not waive privilege. 

49. Heirs at Law. — Life Policy. 
Shuman v. Supreme Lodge, K. of 
H., no Iowa 480, 81 N. W. 7i7- 

50. In re Hopkins' Will, 77 N. Y. 
Supp. 178. 

Vol. X 



Heirs and Devisees. — One Set 

Cannot Waive In Towles v. Mc- 

Curdy, 163 Ind. 12, 71 N. E. 129, it 
is said, although not expressly de- 
cided, that in a contest among heirs 
and devisees involving validity of a 
will, one set of heirs or devisees can- 
not, against the wishes of others, 
waive privilege as to testator's at- 
tending physician. 

51. Corey v. Bolton, 63 N. Y. 
Supp. 915, affirming s. c., 61 N. Y. 
Supp. 917, was an action by a father 
to recover for loss of service of his 
son. Against defendant's objection a 
physician was permitted to testify to 
nature of injuries causing such loss. 
Held, that the child's father and 
mother, being his natural guardians, 
could waive privilege as to physician's 
testimony. 

52. State v. Depoister, 21 Nev. 107, 
25 Pac. 1000, was a case of prosecu- 
tion for rape upon the person of a 
young girl. Held, that the child's 
parents could waive privilege as to 
the physician who treated her. 

53. Cramer v. Hurt, 154 Mo. 112, 
55 S. W. 258, 77 Am. St. Rep. 752. 



PRIVILEGED COMMUNICATIONS. 



141 



h. Beneficiary of Life Insurance Policy May Waive. — In an ac- 
tion to recover money agreed to be paid by a policy of life insur- 
ance, the beneficiary therein named may waive privilege as to tes- 
timony of physician who treated or examined the insured,^* 

i. Assignee of Policy. — The assignee of a policy of life insur- 
ance has the same right. ^^ 

j. Contra. — Patient Alone May Waive. — But it has been held 
that the privilege is personal to patient, and can be waived by 
him alone.^'' 

C. Relation Essential to Waiver. — A person has no power 
of waiver unless the relation of physician and patient existed be- 



54. Penn Mut. L. Ins. Co., v. 
Wiler. 100 Ind. 92, 50 Am. Rep. 679. 

In Edington v. Mutual L. Ins. Co-, 
5 Hun (N. Y.) I, 9, the court refers 
to the litigant (beneficiary) as the 
"party" upon whom statute confers 
power of waiver. Ruling on this sub- 
ject held correct, though judgment 
reversed on appeal, 67 N. Y. 185. 
Contra. — Beil v. Supreme Lodge K. 
of H., 80 N. Y. Supp. 751. 

In Shuman v. Supreme Lodge K. 
of H., no Iowa 480, 81 N. W. 717, 
two persons claimed to be appointees 
of insured. It was held they could 
not waive privilege as to physician's 
testimony. 

55. Edington v. Mutual L. Ins. 
Co., 67 N. Y. 185, 196. 

56. Harrison v. Sutter St. R. Co., 
116 Cal. 156, 167, 47 Pac. 1019; In re 
Hunt's Will, 122 Wis. 460, 100 N. 
W. 874. 

In Westover v. Aetna L. Ins. Co., 
99 N. Y. 56, I N. E. 104, 52 Am. Rep. 
I, action was brought on a policy of 
life insurance which provided that it 
should be void if insured would die 
by his own hand. Insured hanged 
himself. To prove that the act of 
hanging was done by insured while 
insane, plaintiff, executor of deceased, 
called a physician who had attended 
him and inquired as to his condition. 
The question was objected to and ob- 
jection sustained. It was contended 
that plaintiff, as executor, could waive 
the privilege. The statute provided 
as follows : § 834 provides that " a 
person duly authorized to practice 
physic or surgery shall not be al- 
lowed to disclose any information 



which he acquired in attending a pa- 
tient in a professional capacity, and 
which was necessary to enable him 
to act in that capacity." 

The court says : " Section 836 pro- 
vides that ' the last three sections ap- 
ply to every examination of a person 
as a witness, unless the provisions 
thereof are expressly waived by the 
person confessing, the patient or cli- 
ent.' It is thus seen that clergymen, 
physicians and attorneys are not only 
absolutely prohibited from making 
the disclosures mentioned, but that by 
an entirely new section it is provided 
that the seal of the law placed upon 
such disclosures can be removed only 
by the express waiver of the persons 
mentioned. Thus there does not 
seem to be left any room for con- 
struction. The sections are absolute 
and unqualified. These provisions of 
law are founded upon public policy, 
and in all cases where they apply the 
seal of the law must forever remain 
until it is removed by the person con- 
fessing, or the patient or the client. 
Edington v. Mutual Life Ins. Co., 67 
N. Y. 185; Edington v. Aetna Life 
Ins. Co., 77 N. Y. 564; Pierson v. 
People, 79 N. Y. 424; s. c, 35 Am. 
Rep. 524; Grattan v. Metropolitan 
Life Ins. Co., 80 N. Y. 281; s- c, 
36 Am. Rep. 617." See also Terri- 
tory V. Corbett, 3 Mont. 50, 59. 

Under statute providing that a phy- 
sician may not testify without the 
consent of his patient, it has been 
held that a personal representative 
has no right to waive privilege. Har- 
rison V. Sutter St. R. Co., 116 Cal. 
156, 167, 47 Pac. 1019. 

Vol. X 



142 



PRii .^J^uBD COMMUMCATIOXS. 



tween bim, or a person whom he 
tesdmcmy is o£Fered.*' 

D. Waiver. — How Showk. - 
plied. 

a. Express. — (i ' a- 7 at: 1 — 
an intenticHi not to 
as a warrer, whettc: 

(2.) Stifmbitiom im life I 
of life insuranvT: 
part of the a£r. 
cause of death aivi sao 
the insnrer, coiasrir-rrr? 
tesomcHiT of phvsi: 



rcjwesents, and the person whose 

-Waiver may be express or im- 

ir^;.r- — Any language indicating 
a of the rule operates 



'.sy. 



A stipulation in a policy 

- " 'th shall consist in 

rh shall state the 

•e required by 

rtvtlege as to 

i-.ess.^ 



ST. fc 5- 

Hfe iar.: - ' 



T'^^Ikv of 
-"i to 

- r^a- 



w&Jix cs m 3^ 



1 __ - H_ 54 X- Y. 5 

_— i X- Y. i^ 5S . 

"V V "■??■ -T" X, E. 452i- 5& Airm 

' 5 A." f- ^ X- 



KsagSais ci PyiSaias. 3-29 - 



Y. 



iaas. Col, 34 j^i. Y. 

:-n as a ■ 



j'mi Piringile E". Z - '- - 

^. Wesiana Tisindlers' Aioc Assa. 
tr^ MxmsoE: (XdiL), iCQ X. W. 688; 

ToL X 



AdrCT-erao s?. Mratmal R. F. L Assn. 
34 Fed. ^o: Mefiropiditan I» Ins. Co. 
r. WHIis (Ind-), ;6 N. E. 360; TraD 
r- Modern WoodEsneii of Am. (Ida- 
ho). ^ Pac 1081; Fuller w. Knouts 
of Pjt2i32i5. 135 X- C 3iS- 40 S. E. 6s 
Ss Am St. Rrp. 744; Keler c Horae 
:^ - = Cc 55 Mo- App. 627, 69 Sl 
z.. To ssnnnte effect, see Piopps 
L. Isas. Co^ 34 N- Y. 






Si3S)p. I7i ^ 
"WilTrT ii WritiBS In Foley r. 

1^53 X. Y. 196. 45 X. 

_ - SiL Rfft. 621. actJon 

recover 00. life ie- 

Tlie defense was 

i ;ri'fii-^ f<Tr»ir»r-^«rTi"'ii''t''"^""'<ffl as to pjiysiical Cdl- 

■^tnTurt ^y^f^on of waoajuilv. Tnc 

rions^laisaed of weie 

i-nimmj iJifflt he did QOt 

It was pioved 

Tiiili and did die 

: - : ~ : m wSiiich he had 

r- -f-df to he feee. His 

da was held to ooii- 

'dae cum II II 8 act of m- 

fl the fedlowing: "I 

waire sssy and all 

-Lw I9DW existung of 

i_ jifreafiter exist preventing 

1 11J flii n wiia dsscSosnng any m- 

ic^miifed SSI attendnig mc 

-- rsiKPunal capQot^ or other- 

Wuic, «iir rendering lunTnni jjBcoaEpetent 

as a witness in ■h?^ it^t whatever, 

23MS I heir^iiy oc ' r'a^ioest ithat 

~n'i'*'' 5;i!!cS! pBiysD 1 - - ~ ~ig cQsooefn- 

Z'A iC:^ ^..Ij i.C2lJ 

-1, or 
'^-r .^-T-^-'.^^ge ouaitstilnted a waiver of 



PRIVILEGED COVJrrXICATIONS. 



14: 



(3.) statute Eequiring Waiver at TriaL — 1 836, N. Y. C C. P. 
X)rovides that the section creating privilege shall apply unless its 
proinsions " are expressly waived on the trial or examinatioo by 
the person confessing, the patient or the client. "** 

b. Implied. — Waiver may also be implied. Waiver may be im- 
plied from various acts or omissions of person entitled to privil^je. 

(1.) Pailnre to Object. — By failing to object to question, the 
answer to which would involve disclosure of privileged communi- 
cations beuveen himself and his physician, patient waives privilege.®* 

(2.) Contra. — Omissioii of Objection Ho Wairer. — But the contrary 
bas been held.^- 



In Marx :-. Manhattan R. Co.. 10 
N- Y. Supp. 159. the court refers to 
plaintiffs testifying to subject of con- 
sultation with his physician as an ex- 
press warmer of privilege. 

60. Meyer z: Supreme Lodge, K. 
of P., 81 N. Y. Supp. 813; Scher v. 
:MetropoIitan St. R. Co.. 75 X. Y. 
Supp. 625 : Holden z: [Metropolitan L. 
Ins. Co., 165 X. Y. 647. 59 X. E, 150, 
rezerses s. c. below which held that 
waiver contained in application for 
life insurance policy was sufficient, 
and overrules Dougherty z\ Metro- 
politan L. Ins. Co., 33 X. Y. Supp. 
S/^. which made a similar holding. 

Calling physician as witness for pa- 
tient or his representative is an ex- 
press waiver at the trial within this 
statute. Holcomb :■- Harris. 166 N. 
Y. 257, 59 X. E. 820: Pringle p. Bur- 
roughs, 74 X. Y. Supp. 105s 

61. Johnson z\ Johnson. 14 Wend. 
(X. Y.) 637; Lincoln z'. City of De- 
troit, loi Mich. 24^, 59 X. W. 617; 
Lissak t'. Crocker Estate Co., 119 
Cal. 442, 51 Pac. 688: Deutschmann 
z: Third Ave. R. Co.. 84 X. Y. Supp. 
887. 

One claiming pri\-ilege must object 
to question put to physician. It will 
be too late to permit question to be 
answered, then move to strike out 
testimony. Briesenmeister z: Knights 
of Pythias, 81 Mich. 525, 45 X. W. 
977- . 

Pri%-ilege cannot be claimed, unless 
question objected to. Hoyt z: Hoyt, 
112 X. Y. 493. 514, 20 X. E. 402. 

Failure to object constitutes waiver, 
although the person against whom 
the evidence is offered is insane. In 
re Benson, t6 X. Y. Supp. iii. This 
case was an inquisition of lunacy. 
Affidavit of an insane person's physi- 



cian was received to show his tnewfal 
conditH>n. 
62. In Pennsylvania R. Co. tr. 

Durkee, 147 Fed. 99, *:- r says: 

"In the brief of defe error 

it is asserted -"--- -' -^ ^;_ 

corded to tJ 

834 may *:e 

ject, ac: 

except ; 

jeddon- X.; 

port of this 

absence 

we wc 7 

convers- : 

and perT 

physicia: 

format! 

capadt;. . 

sudi P' - 

him, wbci-.r ___.. -.i^ .-.- 

lent or raise: rction. Until 

the express -^^- ■:'■■—. 

which sectic: 

the duty of :!.. .._. 

betray the confidence - 

as a professional man. ... 

judge would no doubt o: 

motion prevent any disdos-i.- - ; 

flie statnte forbids. Had it ceer. 
the intention of the legislature : .: 
tilie prohibition of the stat 
be operative only when t' 
took affirmative action to excitiOic ilie 
testimony by interposing an objec- 
tion, presumably it would have used 
language appropriate to indicate such 
an intention. On the contrary, it has 
placed the prohibition on the statute 
book, to be lifted only upcr : '- 

ing of express affirmatiTe 
the patient to obtain a disci, -..:c / 
the physician. The situation is ver\' 
different from that arising when a 

VoL X 



144 



PRIVILEGED COMMUNICATIONS. 



(3.) Calling Physician as Witness. — Patient waives privilege by 
calling physician to give in evidence information acquired in treat- 
ing patient professionally.^^ 

Cross-Examination, Where Privileged Matter Not Referred to on Directs 
If patient's representative interrogate physician as to fact of treat- 
ment and number of times medicine administered, his opponent 
may, on cross-examination, question witness as to the nature of 
disease for which he treated patient.®* 

(4.) Cross-Examination by Patient. — If opponent examine physician 
as to fact of treatment, introduction by patient's representative, on 
cross-examination of testimony showing patient's condition, op- 
erates as a waiver.®^ 



part}' to a civil action, who appar- 
ently must be cognizant of the facts 
of some controverted issue, avoids 
cross-examination bj' not going on 
the witness stand, or persuades some 
witness to remain out of reach of a 
subpoena, or destroys documentary 
evidence. The prohibition against 
disclosure of professional secrets is 
manifestly an exercise of public 
policy. It secures a right to every 
individual which he is under no ob- 
ligation to waive or abandon. ' The 
statements of an attending physician 
are excluded, not only for the pur- 
pose of protecting parties from the 
disclosure of information imparted 
in the confidence that must neces- 
sarily exist between physician and 
patient, but on grounds of public 
policy as well. The disclosure by a 
physician, whether voluntary or in- 
voluntarv', of the secrets acquired by 
him while attending upon a patient 
in his professional capacity, naturally 
shocks our sense of decency and pro- 
priety, and this is one reason why the 
law forbids it.' Davis v. Supreme 
Lodge, 165 N. Y. 159, 58 N. E. 891." 

The statute in question, § 834, N. Y. 
Code of Civ. Proc. provided that 
physician " shall not be allowed to 
disclose any information." 

63. Patient waives privilege by 
calling physician to give evidence as 
to information acquired in a profes- 
sional character. Carrington v. St. 
Louis. 89 ]\Io. 208, 216, I S. W., 240, 58 
Am. Rep. 108; Lawson v. Morning 
Journal Assn., 52 N. Y. Supp. 484; 
Alberti v. New York, etc., R. Co., 118 
N. Y. 77, 23 N. E. 35, 6 L. R. A. 765 ; 
Lissak V. Crocker Estate Co., 119 
Cal. 442, 51 Pac. 688; Kemp v. Metro- 

Vol. X 



politan St. R. Co.. 88 N. Y. Supp. 1 1 
Powers V. Metropolitan St. R. Co., 94 
N. Y. Supp. 184. 

Personal representative of patient 
waives privilege bj' calling physician 
as witness. Morris v. Morris. 119 
Ind. 341, 21 N. E. 918; Thompson v, 
Ish, 99 Mo. 160, 12 S. W. SID, 17 Am. 
St. Rep. 552. 

New York Statute. — Deposition, 
of Physician Not Read by Claimant. 
Lender Xew York Code Civ. Proc. 
§§ 834. 836, providing that waiver 
must be made when in open court, or 
on written stipulation of attorneys, 
if person claiming privilege takes de- 
position of physician but does not 
read it, he may object to the testi- 
mony when offered by his opponent. 
Clifford V. Denver & R. G. R. Co., 97 
N. Y. Supp. 707. 

64. Ellis V. Baird, 31 Ind. App. 
295, 67 N. E. 960. 

65. Sovereign Camp, W. O. W. v^ 
Grandon, 64 Neb. 39. 89 N. W. 448, 
involved an action upon a policy of 
life insurance. Defendant examined 
a physician as to fact of attendance 
upon deceased. On cross-examina- 
tion, plaintiff introduced a writing 
signed by witness, containing state- 
ments of the condition of deceased. 
Held, that the introduction of this 
writing constituted a waiver. The 
court says : " No privilege was vio- 
lated in so doing, and the defendant 
in error, by introducing the written 
statement of the doctor that Gran- 
don was not seriously sick until the 
evening previous to his death, opened 
up the question of his condition, and 
thereby waived the privilege which 
the statute gave her." 

When in action for personal in- 



PRIVILEGED COMMUNICATIONS. 



145 



(5.) No Waiver From Voluntary Statement on Voir Dire. — When in 
an action for personal injuries, defendant questions plaintiff's phy- 
sician concerning plaintiff's condition, and plaintiff obtains leave 
to question witness, in order to lay foundation for objection on 
the ground of privilege, a waiver does not arise, if, in answer to 
plaintiff's question, witness states that plaintiff was unconscious 
at the time referred to, it appearing that witness had already given 
such answer in response to question by defendant. '^'^ 

(6.) Waiver From Calling One of Several Physicians. — It has been 
held that if person who has been treated by two or more physicians 
interrogates one of them as to information acquired by means of 
confidential communications, he waives his privilege as to the tes- 
timony of the others, so far as relates to information acquired at 
the same consultation, or in the course of examination jointly con- 
ducted.*'^ 



juries patient, on cross-examination 
testified that a certain physician had 
treated her for headaches only, such 
conduct was held not to constitute a 
waiver of privilege to object to such 
physician's evidence when introduced 
by defendant to show for what dis- 
ease he had treated patient. Hollo- 
way V. Kansas City, 184 Mo. 19, 82 
S. W. 89, 95. 

66, Nugent v. Cudahy Pack Co.. 
126 Iowa 517, 102 N. W. 442. 

67. In Morris v. New York, O. & 
W. R. Co., 148 N. Y. 88, 42 N. E. 410, 
51 Am. St. Rep. 675, plaintiff sued de- 
fendant for damages caused by per- 
sonal injuries. About the time the 
action was commenced plaintiff was 
attended by two physicians for the 
purpose of examining her case and 
ascertaining the nature and extent of 
her injuries. On the trial the plain- 
tiff called as a witness one of the phy- 
sicians who testified as to her injuries 
and condition. Plaintiff did not call 
the other physician, but defendant 
did, and interrogated him as to his 
opinion of plaintiff's injuries, based 
upon his observation and examina- 
tion of the case. This testimony 
plaintiff objected to, under a statute 
prohibiting the testimony of a phy- 
sician as to information acquired 
professionally. Defendant con- 
tended that, by calling one of her 
physicians, plaintiff waived her 
privilege as to both. The trial court 
sustained the objection. This ruling 
was held erroneous. The court 
says : " In this case, it was the privi- 



lo 



lege of the plaintiff to insist that 
both ph3''sicians should remain silent 
as to all information they obtained 
at the consultation, but she waived 
this privilege when she called Dr. 
Payne as a witness and required 
him to disclose it. The plaintiff 
could not sever her privilege and 
waive it in part and retain it in 
part. If she waived it at all, it 
then ceased to exist, not partially, 
but entirely. The testimony of Dr. 
Payne having been given in her be- 
half, every reason for excluding that 
of his associate ceased. The whole 
question turns upon the legal con- 
sequences, of the plaintiff's act in 
calling one of the physicians as a 
witness. She then completely un- 
covered and made public what be- 
fore was private and confidential. 
It amounted to a consent on her 
part that all who were present at 
the interview might speak freely as 
to what took place. The seal of 
confidence was removed entirely, not 
merely broken into two parts and 
one part removed and the other re- 
tained. I have not been able to find 
any controlling authority in this 
court in support of the idea that 
the waiver applied only to the wit- 
ness that the plaintiff called. On 
the contrary, the principle decided 
in McKinney v. Grand Street etc. 
R. Co., 104 N. Y. 352, supports the 
views herein expressed. That was 
a case where the plaintiff called and 
examined her own physician as to 
her physical condition on the first 

Vol. X 



146 



PRIVILEGED COM MU MCA TIONS. 



Joint Action Necessary. — But to constitute such waiver it must 
appear that the physicians attended patient at the same time, or 
examined him together.*^^ 

The mere fact of calHng one of two or more physicians who 
treated patient does not constitute a waiver as to the testimony of 
those not called by patient or his representatives.*^'' 



trial. On a subsequent trial, he was 
called by the defendant, and the 
same objection was made to his 
testimonj' that was made in the case 
at bar. This court held that it was 
admissible, on the ground that the 
statutory prohibition having once 
been expressly waived by the patient, 
and the waiver acted upon, it could 
not be recalled, but the information 
was open to the consideration of the 
entire public, and the patient was no 
longer privileged to forbid its repe- 
tition. The reasoning of Chief 
Judge Ruger in- support of these 
propositions in that case is applicable 
here. It furnishes a safe basis for 
holding that when a waiver is once 
made it is general and not special, 
and its effect cannot properly be 
limited to a particular purpose or a 
particular person. After the in- 
formation has once been made pub- 
lic, no further injury can be in- 
flicted upon such rights and interests 
of the patient as the statute was in- 
tended to protect, by its repetition 
at another time or by another per- 
son." After citing decisions here- 
inafter noted, the court continues : 
" We think that a construction of 
the statute which permits a patient, 
who has been attended by two phy- 
sicians at the same examination or 
consultation, to call one of them as 
a witness to prove what took place 
or what he learned, thus making 
public the whole interview, and still 
retain the right to object to the 
other, is unreasonable and unjust, 
and should not be followed. The 
waiver is complete as to that con- 
sultation when one of them is used 
as a witness. The considerations 
and reasons upon which the statute 
was founded no longer exist when 
full disclosure is made by either 
with the consent of the patient, and 
every party to the transaction thus 
disclosed is relieved from any in- 
junction of secrecy. The patient 

Vol. X 



cannot limit the scope or effect of 
the waiver when made, any more 
than she can recall it. When the 
plaintiff in this case called one of 
the physicians, who disclosed the 
whole consultation, the law deter- 
mined the legal effect of that act, 
irrespective of any mental reserva- 
tions on her part. Upon every 
principle of reason and justice, this 
act amounted to a waiver of the 
right to object to the testimony of 
the other physician, when called by 
the defendant as to the same trans- 
action." 

In Hennessy v. Kelly, 64 N. Y. 
Supp. 562, it was held that, by call- 
ing one of several attending phy- 
sicians, patient waives his privi- 
lege as to the others. The judg- 
ment in this case was reversed on 
appeal to the Appellate Division (66 
N. Y. Supp. 871), the court holding 
that patient's conduct did not con- 
stitute a waiver. In the reversing 
opinion the court considers the New 
York cases cited in note 69, next 
succeeding, and attempts to reconcile 
them with Morris v. New York, etc. 
R. Co., supra. 

68. Tracey v. Metropolitan St. 
R. Co., 63 N. Y. Supp. 242; Metro- 
politan St. R. Co. V. Jacobi, 112 Fed. 
924, 50 C. C A. 619. 

69. United States. — Metropolitan 
St. R. Co. V. Jacobi, 112 Fed. 924, 
50 C. C. A. 619. 

Indiana. — Citizens' St. R. Co. z'. 
Shepherd, 30 Ind. App. 193, 65 N. E. 
765; Springer v. Byram, 137 Ind. 
15, 36 N. E. 361, 45 Am. St. Rep. 
159, 23 L- R. A. 244. 

Iowa. — Baxter v. Cedar Rapids, 
103 Iowa 599, 72 N. W. 790. 

Michigan. — ■ Dotton v. Albion, 57 
Mich. 575, 24 N. W. 786. 

Missouri. — Mellor v. Missouri 
Pac. R. Co., 105 Mo. 455, 14 S. W. 
758, and 16 S. W. 849. 10 L. R. 
A. 36. 

New York. — Hope %•. Troy & L. 



PRIVILEGED COMMUNICATIONS. 



14: 



(7.) Patient Testifying. — By giving in evidence matters communi- 
■cated between his physician and himself, a person waives his priv- 
ilege as to the matters communicated.'" 

(A.) Testimony as to General Condition No Waiver. — But he does 



R. Co., 40 Hun 438, s. c. affinncd by 
Court of Appeals, 110 N. Y. 643, 17 
N. E. 873; Record v. Saratoga 
Springs, 46 Hun 448, s. c. affinncd by 
Court of appeals, 120 N. Y. 646, 24 
N. E. 1 102; Barker v. Cunard S. S. 
Co., 36 N. Y. Supp. 256; affirmed 
without opinion, 157 N. Y. 693, 51 
N. E. 1089 ; Duggan v. Phelps, 81 
N. Y. Supp. 916. 

In Penn Mut. L. Ins. Co. v. Wiler, 
100 Ind. 92, 102, 50 xA.m. Rep. 769, 
the court says : " The plaintifif, by 
way of rebuttal, introduced as a wit- 
ness the physician, who on behalf 
of the defendant as medical ex- 
aminer, had examined the insured 
for this insurance, and elicited tes- 
timony from him tending to prove 
that the insured was in good health 
at the time of the application. 
Afterwards the defendant recalled 
the physicians before introduced by 
the defendant, and again sought 
from them the evidence which had 
been excluded as above stated. 
Upon objection, their testimony was 
again excluded. This offer was 
made upon the theory that the 
plaintiff, by having herself intro- 
duced the testimony of one phj^si- 
cian, had waived her right to ob- 
ject to the testimony of other phy- 
sicians. This theory is not well 
founded. If the plaintiff's examina- 
tion of said medical examiner as 
a witness could be regarded as a 
waiver of a privilege, the consent of 
the patient, or of one entitled to 
stand as his representative, to the 
production in evidence of facts 
learned in a professional capacity 
by one physician, could not be con- 
strued as consent to the divulging of 
other confidential communications 
to other physicians." 

70. Lane v. Boicourt, 128 Ind. 
420, 27 N. E. nil, 25 Am. St. Rep. 
442; Highfill V. Missouri Pac. R. 
Co., 93 Mb. App. 219; Holloway v. 
Kansas City, 184 Mo. 19, 82 S. W. 
89; Marx V. Manhattan R. Co., 56 
Hun. 575, 10 N. Y. Supp. 159. 



In Rauh v. Deutscher Verein. 51 
N. Y. Supp. 985, the court says : 
" Did the plaintiff', by her testimony 
detailing the operations that were 
performed upon her at the hospital 
by the physicians, the treatment she 
then received, the statement of the 
physician as to the fact of the 
operation and as to the advice he 
gave to the patient, operate as a 
waiver of her privilege to exclude 
the testimony of the physician who 
performed the operation and who 
gave the advice? The waiver of 
the privilege cannot be limited to a 
particular purpose or a particular 
person, and if the plaintiff, by so 
testifying on her direct examina- 
tion, waived this privilege, then it 
was competent for the physician to 
testify. We think it clear from 
principle and authority that she did. 
. . . If these physicians who at- 
tended her at the hospital cannot 
testify as to what happened at the 
hospital as to the operations per- 
formed and the treatment prescribed, 
it is clear that there is no one else 
that can. The condition would be 
that the plaintiff could testify to 
what she pleased as to the treatment 
she received without danger of con- 
tradiction. If this contention of the 
plaintiff is sustained, the plaintiff is 
entirely safe in testifying to any- 
thing that it pleased her to say as to 
what happened to her or was done 
to her at the hospital, for the mouth 
of the only witness that could con- 
tradict her is silenced by this sec- 
tion of the Code cited. The rea- 
soning of the court of appeals in 
the case of Morris v. Railroad Co., 
supra, applies with full force to 
this contention. . . And it would 
appear to be equally unfair and un- 
reasonable to allow a plaintiff — the 
one most interested in the recovery 
— to testify to what took place at 
the time of the examination by the 
physicians, or of the operations that 
were performed or the treatment 
received, and at the same time en- 

Vol. X 



148 



PRIVILEGED COMMUNICATIONS. 



join silence upon the physician. A 
phj'sician, when called, may be said 
to be, under ordinary circumstances, 
a disinterested witness. His pro- 
fessional position and his reputation 
would of themselves be a pledge for 
his not intentionally violating his 
oath, and generally he would have 
no great object in making a false 
statement as to the result of his in- 
vestigations, while his professional 
knowledge would enable him to 
state correctly the result of his in- 
vestigations and the treatment he 
prescribed or the operations he per- 
formed. In the case, however, of a 
plaintifif, irrespective of the interest 
that he would have in coloring the 
testimony to suit his case, his lack 
of professional knowledge would 
expose him to mistakes in testify- 
ing, and would make it quite pos- 
sible, with the utmost good faith on 
the part of the party testifying, that 
the testimony would be grossly mis- 
leading. It must be apparent that 
such a rule would work the greatest 
injustice, and would expose the de- 
fendant to danger on account of the 
fact that the rule would prevent 
him from examining into the truth 
of the plaintiff's statements. The 
question was presented at the late 
general term in this department in 
the case of Marx v. Railway Co., 56 
Hun 575, 10 N. Y. Supp. 159, and it 
seems to me that the opinion of 
the presiding justice is a most satis- 
factory solution of the question. 
The conclusion there stated by him 
seems to me to be unassailable. As 
therein said : ' It seems to us clear 
that, having thus himself gone into 
the privileged domain to get evi- 
dence on his own behalf, he cannot 
prevent the defendant from assail- 
ing such evidence by the only testi- 
mony available for that purpose.' " 
In Treanor v. Manhattan R. Co., 
16 N. Y. Supp. 536, the court says : 
" The thing forbidden by the Code 
is the disclosure of professional in- 
formation, and the policy of the en- 
actment is to protect patients in the 
free revelation of their maladies to 
the physician. But what if, in order 
to enforce a claim against a 
stranger, the patient himself pro- 
mulgates the information, and un- 
covers his maladies and infirmities 

Vol. X 



in court, does he not thereby break 
the seal of secrecy, and absolve the 
physician from the obligation of 
silence ? Does he not, in the strict- 
est and most emphatic sense, waive 
his privilege? Is it to be tolerated 
that, to mulct another in damages, 
he may inflame a jury with a false 
or exaggerated story of his injuries 
and suffering, and yet the physician 
whom he has consulted is not to be 
allowed to prevent the meditated in- 
justice by a truthful statement of 
the case? It is to be borne in mind, 
too, that here the ph\-sician was not 
called to reveal the ailments of the 
patient, but to prove that she suf- 
fered from no such injuries as she 
represented. Obviously respond- 

ent's contention is as inconsistent 
with the object and policy of the 
statute as it is fatal to the interests 
of justice. In McKinney v. Rail- 
road Co., 104 N. Y. 352, 10 N. E. 
Rep. 544, the court of appeals held 
that, when the condition of the pa- 
tient is once disclosed with his con- 
sent, ' it is then open to the consid- 
eration of the entire public, and the 
privilege of forbidding its repetition 
is not conferred by the statute;' de- 
claring as the ground of its deci- 
sion that, ' the object of the statute 
having been voluntarily defeated by 
the party for whose benefit it was 
enacted, there can be no reason for 
its continued enforcement.' In Hunt 
V. Blackburn, 128 U. S- 464, 470, 9 
Sup. Ct. Rep. 125, the supreme court 
of the United States, by Field, J., 
said : * The privilege is that of the 
client alone, and no rule prohibits 
him from divulging his own secrets; 
and, if the client has voluntarily 
waived the privilege, it cannot be 
insisted on to close the mouth of the 
attorney.' In People v. Schuj^ler, 
106 N. Y. 306, 12 N. E. Rep. 783, 
the court of appeals sa}', per curiam : 
'The object of the statute was to 
prevent the disclosure by a physi- 
cian of his patient's ailments and in- 
firmities, and it may be queried 
whether it makes him incompetent 
to testif}^ that his patient was free 
from disease of any kind. Can a 
party himself upon trial expose his 
ailments and make them the sub- 
ject of inquiry, and then object that 
his physician shall tell anything he 



PRIVILBGBD COMMUNICATIONS. 



149 



not waive privilege by giving testimony as to his general health or 
physical condition/^ or by stating in evidence the general nature 
of his injuries/- or that a certain person had attended him as phy- 
sician, and had prescribed/^ 

(B.) Voluntary Statement, No Waiver. — Patient does not waive 



knows about them ?' In Marx v- 
Railroad Co., supra, the supreme 
court at general term in this depart- 
ment, per Van Brunt, J., say : ' The 
patient may keep the door of the 
consultation-room closed, but he 
cannot be permitted to open it so 
far as to give an imperfect and er- 
roneous x'ltvf of what took place, 
and then close the door when the 
actual facts are about to be dis- 
closed. ... In construing this 
legislation, we must consider the ob- 
ject that was sought to be attained, 
viz., the greatest freedom in con- 
sultations with a physician. The 
reason for the rule no longer exists 
where the party himself pretends to 
give the circumstances of the privi- 
leged interview.' " 

In Morris v. New York. O. & W. 
R. Co., 148 N. Y. 88, 42 N. E. 410, 
51 Am. St. Rep. 675, the Court of 
Appeals says the Treanor case 
" pushes the principle too far." 
Treanor v. Manhattan R. Co., is dis- 
approved in City of Warsaw v. 
Fisher, 24 Ind. App. 46, 55 N. E. 
42, and in May v. Northern Pac. R. 
Co., 2i2 Mont. 522, 81 Pac. 328, 70 
L. R. A. III. 

In Fox V. Union Tpk. Co., 69 N. 
Y. Supp. 551, it is said that Treanor 
V. Manhattan R. Co., is overruled 
by Morris v. Manhattan R. Co. 

The courts of New York speak 
of the waivers in Marx v. Manhat- 
tan R. Co., and Treanor v. Manhat- 
tan R. Co., as express waivers. The 
ruling statute provided that privi- 
lege might be expressly waived in 
open court, making no reference to 
acts which would create an impli- 
caton of waiver. In In re Cole- 
man, III N. Y. 220, 19 N. E. 71, the 
Court of Appeals of New York had 
held that the act of a testator in 
causing his attorney to become sub- 
scribing witness to his will was an 
.express waiver. 

In action for personal injuries, 
where plaintiff goes into detail, 



showing that he has been treated by 
certain doctors at certain times 
prior to the alleged injury for cer- 
tain ailments different from the one 
at issue in the case, he thereby 
waives his privilege, and such phy- 
sicians become competent witnesses 
as to the matters testified to by 
plaintiff. Webb v. Metropolitan St. 
R. Co.. 89 Mo. App. 604. 

71. City of Warsaw v. Fisher, 
24 Ind. App. 46, 55 N. E. 42; 
McConnell v. City of Osage, 80 
Iowa 293, 45 N. W. 550, 8 L. R. A. 
778; Butler V. Manhattan R. Co., 23 
N. Y. Supp. 163, 30 Abb. N. C. 78; 
Dunckle v. McAllister, 74 N. Y. 
Supp. 902; May V. Northern Pac. 
R. Co., 2^ Mont. 522, 81 Pac. 328, 
70 L. R. A. Ill; Holloway v. Kansas 
City, 184 Mo. 19, 82 S. W. 89, 95. 

Contra. — But in State v. De- 
poister, 21 Nev. 107, 25 Pac. 1000, 
a mother who had employed a phy- 
sician to examine her minor child, 
testified concerning the nature and 
extent of injuries sustained by the 
child, who had been the victim of a 
criminal assault. Held, that her 
conduct in so doing constituted a 
waiver of privilege as to physi- 
cian's testimony. 

72. Jones v. Brooklyn R. Co., 3 
N. Y. Supp. 253, afHrmed 121 N. Y. 
683, 24 N. E. 1098; Indianapolis & 
M. R. T. Co. V. Hall, 165 Ind. 557, 
76 N. E. 242; Fox V. Union Tpk. 
Co., 69 N. Y. Supp. 551. 

In Jones v. Brooklyn R. Co., it 
was held that plaintiff did not, by 
stating that his leg was broken, 
waive privilege as to testimony of 
physician who treated him for the 
injury. 

73. Williams v. Johnson, 112 
Ind. 273, 13 N. E. 872; Indianapolis 
& M. R. T. Co. V. Hall, 165 Ind. 
557, 76 N. E. 242; McConnell v. 
Osage, 80 Iowa 293, 45 N. W. 550, 
8 L. R. A. 778; May v. Northern 
Pac. R. Co., z^: Mont. 522, 81 Pac. 
328, 70 L. R. A. III. 



Vol. X 



150 



PRIVILEGED COMMUNICATIONS. 



privilege by making voluntary statement, not in response to ques- 
tion, as to statements of physician, when such statement is objected 
to by party afterwards alleging waiver.^* 

(C.) Patient Axswerixg Cross-Examination, No Waiver. — Answer- 
ing questions on cross-examination as to a matter of privilege does 
not constitute a waiver of patient's right to object to physician's 
testimonv."^ 



74, Smart v. Kansas City. 91 
Mo. App. 586. 595. 

In this case the court says : " De- 
fendant called another of plaintiff's 
phj'sicians and asked him what was 
the condition of plaintiff's knee as 
he found it after the fall. The 
question was not allowed by the 
court. Defendant bases its claim to 
this evidence on the ground that 
plaintiff had testified to what the 
physician had stated to her was the 
condition of the knee and thereby 
had estopped herself from claiming 
the privilege of the statute under the 
case of Webb v. Railroad. 89 Mo. 
App. 604. But the difficulty with 
defendant's position is that what 
plaintiff said as to the statement of 
the physician was not in answer to 
a question. Her statement was ob- 
jected to b}'' defendant and the 
answer was disclaimed by plaintiff's 
attorne}' by telling her that ' what 
the doctor said was not good evi- 
dence.' Defendant's counsel seemed 
then to be satisfied, as nothing fur- 
ther was said by him and no ruling 
asked of the court." 

75. Burgess v. Sims Drug Co., 
114 Iowa 275. 86 N. W. 307, 89 Am. 
St. Rep. 359. 54 L- R. A. 364. In 
this case the court says : " But the 
testimony of the client or patient as 
to the communication, which will 
constitute a waiver of the privilege 
so as to admit the attorney or phy- 
sician to testify with reference 
thereto, must be voluntarily given; 
for the privilege is that of the client 
or patient, and it exists in his favor 
until in some way abandoned. No 
doubt, under this privilege, the cli- 
ent or patient may refuse to answer 
on cross-examination when asked 
with reference to the privileged 
communication. Barker v. Kuhn, 
38 Iowa 392; Bigles v. Reynolds, 43 
Ind. 112; Hemenway v. Smith, 28 
Vt. 701; State V. White, 19 Kan. 

Vol. X 



445, 27 Am. Rep. 137; Duttenhofer 
V. Statfe, 34 Ohio St. 91, 32 Am. Rep. 
362. But we are not willing to hold 
that the failure to insist on this 
privilege makes the testimony which 
he may give on cross-examination 
voluntary, in such sense as to con- 
stitute a waiver of his privilege 
with reference to the communication 
to his attorney or physician. In 
McConnell v. Osage, 80 Iowa, 293, 
this court said that even the volun- 
tary act of the plaintiff in that case, 
as a witness, in testifying to her 
physical health at a particular time, 
would not constitute a waiver of 
objection to testimony by her phy- 
sician as to communications made 
by her to him at that time showing 
that she was not in good health, and 
that the mere fact of the exclusion 
of the physician's testimony might 
result in putting the condition of her 
health at the time referred to in a 
false light before the jury would 
not be a sufficient reason for im- 
plying a waiver. And it was fur- 
ther said (and this is especially per- 
tinent to our present inquiry) that 
it was improper to ask witness on 
cross-examination whether she was 
willing that the physician might dis- 
close any communications which 
she had made to him with reference 
to her health. Accordingly it was 
held that the propounding of such 
a question to the witness over the 
objection of her attorney, and to 
which her answer was, ' No,' con- 
stituted error; this language being 
used : ' The statute gives the prohi- 
bition. It is a legal right, and a 
party should no more be required to 
state under oath that he did not 
want to surrender it, than any other 
legal right he possessed. We think 
a fair trial requires that such a mat- 
ter should not even be referred to; 
that the jury should not be im- 
pressed with a belief that there is 



PRIVILEGED COMMUNICATIONS. 



151 



(D.) Testimony as to Treatment by One Physician, No Waiver. 
By testifying concerning treatment of himself by one physician, 
patient does not waive right to object to testimony of other physi- 
cians who treated him at another time for the same affliction/^ 

(E.) No Waiver, Unless Communication Referred To. — Patient's 
act in testifying does not constitute a waiver, unless in his testimony 
he gives evidence concerning matter communicated to his phy- 
sician.'^^ 

(F.) No Waiver, Unless Necessary Information Referred To. — Pa- 
tient does not, by testifying, waive privilege, unless he testifies 
concerning matter necessary to be stated to his physician. No 
waiver arises from testimony in regard to collateral matters.'^^ 

(8.) Introducing Proofs of Death Showing Cause. — Beneficiary of a 
life insurance policy waives privilege by introducing in evidence 
proofs of death furnished to the insurance company which con- 
tain affidavit or certificate by attending physician showing cause 
of death.'^ 

(9.) Statement in Application for Life Insurance. — If applicant for 
policy of life insurance state in his application that he has been 
treated by a certain physician for a certain disease, beneficiary 
cannot, in an action on the policy, exclude the testimony of the 
physician referred to concerning the disease mentioned in the ap- 
lication.®'' 



even reluctance to giving such as- 
sent. The subject-matter of such a 
waiver has no place for reference in 
the taking of testimonj', except by 
the party permitted to make it.' In 
the case before us it is evident that 
any objection of the witness on 
cross-examination to testify as to 
the communication might well have 
been prejudicial, and therefore that 
the answer of the witness with ref- 
erence thereto cannot be treated as 
a waiver of the privilege, for it is 
essentially not voluntary. If coun- 
sel saw fit on cross-examination to 
inquire into this matter, he must be 
bound by the answer, and cannot 
afterwards claim that the witness, 
by answering without objection, 
voluntarily waived the privilege." 

76. Webb v. Metropolitan St. R. 
Co., 89 Mo. App. 604; Green v. Ne- 
bagamain, 113 Wis. 508, 89 N. 
W. 520. 

77. In other words, the mere act 
of testifying does not operate as a 
waiver. Butler v. Manhattan R. Co., 
30 Abb. N. C. 78, 23 N. Y. Supp. 163. 

78. In HoIIoway v. Kansas City, 
184 Mo. 19, 82 S. W. 89, it was held 
that patient's testimony concerning 



conversation with physician in re- 
gard to his bill did not constitute a 
waiver of privilege as to necessary 
matter communicated. 

79. Proppe v. Metropolitan L. 
Ins. Co., 34 N. Y. Supp. 172; Kel- 
wig V. Mutual L. Ins. Co., 132 N. 
Y. 331, 28 Am. St. Rep. 578. These 
cases seem to proceed more upon the 
theory of estoppel than waiver. 

In Kelwig v. Mutual L. Ins. Co., 
beneficiary of a life insurance policy 
sued to recover the amount thereby 
agreed to be paid. Plaintiff intro- 
duced in evidence the proofs of 
death presented to the company. 
These proofs included sworn state- 
ment of attending physician of de- 
ceased which contradicted certain 
statements in plaintiff's application. 
Plaintiff contended that this state- 
ment could not be received in evi- 
dence because the matter therein 
contained was such as the physician 
could not have , been compelled to 
testify to. But the court held that, 
as plaintiff had put in the proof 
without qualification, she could not 
claim that the statements of the phy- 
sician were privileged. 

80. In Brown v. Metropolitan L. 

Vol. X 



152 



PRIVILEGED COMMUNICATIONS. 



Waiver Limited. — But the .waiver in such case relates to matters 
stated in the appHcation only, and does not affect privilege as to 
any information acquired by physician prior to issuance of the pol- 
icy sued on.®^ Nor does including in the proofs statements as to 
diseases which did not proximately cause death of insured, op- 
erate as a waiver of privilege concerning such diseases. ^- 

(10.) Certain Acts as Waiver. — (A.) Showing Prescription. — It has 
been held that by showing physician's prescription to a druggist, 
who fills the same, patient waives privilege as to the contents of 
the prescription.^^ 

(B.) Introducing Hospital Record Made by Physician. — It has also 
been held that if person who has been injured introduces in evi- 
dence an entry made in a hospital record by physician of hospital 
where such person has been treated, he thereby waives his right 
to object to that physician's testimony as to matters entered in the 
book showing the history of the case, and as to patient's state- 
ments concerning injury.®* 

(C.) Physician Subscribing Witness to Will. — By requesting his 
physician to become subscribing witness to his will testator waives 
privilege as to physician's testimony concerning testator's mental 
condition.®^ 

(11.) Certain Acts, No Waiver. — Reference is made in the notes to 
certain acts which have been held not to operate as waiver of 
privilege.*^ 



Ins. Co., 65 Mich. 306, 32 N. W. 610, 
8 Am. St. Rep. 894, plaintiff sued 
upon policj' of life insurance. In her 
application for insurance deceased 
stated that she had been treated by 
a certain physician for typhoid 
fever. The trial court refused to 
permit the physician referred to to 
testify concerning his treatment of 
deceased for typhoid fever. The 
Supreme Court held that under the 
circumstances the representative of 
insured could not claim privilege 
regarding the fact of treatment or 
non-treatment for typhoid fever. 
But the case is different where ap- 
plication makes no reference to the 
disease concerning which physician 
is questioned. Jones v. Preferred 
Bankers' L. Assur. Co., 120 Mich. 
211, 79 N. W. 204. 

81. Redmond v. Industrial Ben. 
Assn.. 28 N. Y. Supp. 1075, s. c. 
judgment affirmed by Court of Ap- 
peals. See 150 N. Y. 167, 44 N. 
E. 769. 

82. Dreier v. Continental L. Ins. 
Co.. 24 Fed. 670. To same general 
eft'ect, see Briesenmeistcr v. Knights 



of Pythias, 81 Mich. 525, 45 N. 
W. 977. 

83. Deutschmann v. Third Ave. 
R. Co.. 84 N. Y. Supp. 887. 

84. Kemp v. Metropolitan St. R. 
Co., 88 N. Y. Supp. I. 

85. In re Mullin's Estate, no 
Cal. 252, 42 Pac. 645. 

86. Certain Conduct no Waiver. 
Fact of Suing for Personal Injury. 
The fact of instituting an action for 
personal injuries does not operate as 
a waiver of privilege as to testi- 
mony of physician who treated 
plaintiff for such injuries. Jones v. 
Brooklyn R. Co., 3 N. Y. Supp. 253; 
Butler V. Manhattan R. Co., 23 N. 
Y. Supp. 163, 30 Abb. N. C. 78. 

Referring Insurance Company to 

Physician of Applicant A person 

applying for issuance of policy of 
life insurance does not waive privi- 
lege, by referring the insurance 
company to his physician. Eding- 
ton V. Mutual L- Ins. Co., 5 Hun 
(N. Y.) I, 9. 

Examination by Opponent of His 
Own Physician — In action for dam- 
ages, no waiver of privilege by 



Vol. X 



PRIVILBGBD CO MM UNICA TIONS. 



153 



E. Effeict of Waiver. — a. Privilege Waived, Testimony Com- 
pulsory. — If patient waives privilege and physician refuses to tes- 
tify, the court should compel him to do so.^'^ 

Heir at Law. — Same if heir at law waives.^® 

b. Binding on Representatives and Beneficiaries. — If applicant 
for life insurance expressly waives privilege, his waiver is binding 
upon his personal representative, and upon the beneficiary of the 
policy.®^ 

Not Binding on Assignee. — But it has been held that such waiver 
is not binding upon person to whom policy has been assigned.'"' 

F. Waiver Irrevocable, or Not. — Upon the question of the 
irrevocability of waiver the authorities are conflicting. 

a. Irrevocable. — After some hesitation the courts of New York 



plaintifif is shown by the fact that 
defendant examines its own physi- 
cian, who, at its request, examines 
plaintiff's injuries. Jones v. Brook- 
lyn R. Co., 3 N. Y. Supp. 253, 
affirmed 121 N. Y. 683, 24 N. E. 1098. 

Patient's Submission to Cross-Ex- 

amination No Waiver Butler v. 

Manhattan R. Co., 2t, N. Y. Supp. 
163, 30 Abb. N. C. 78. 

Giving Name of Family Physician. 
Applicant for life insurance does not 
waive privilege by stating the name 
of his family physician in his appli- 
cation. Masonic Mut. Ben. Assn. v. 
Beck, 7y Ind. 203, 1211, 40 Am. 
Rep. 295. 

Notice to Produce letter. — By 
giving notice to adversary to produce 
in evidence a letter written by a per- 
son's physician, the party giving the 
notice does not waive right to ob- 
ject to the admission of confidential 
communications between that person 
and his physician. Phillips v. 
United States Ben. Soc, 120 Mich. 
142, 79 N. W. I. 

General Denial in Suit by Phy- 
sician If in action by physician to 

recover for services defendant inter- 
poses general denial, such act does 
not constitute a waiver. Van Allen 
v. Gordon. 83 Hun 379, 31 N. Y. 
Supp. 907. 

Exhibition of Peculiarities By 

consenting to exhibition of his phy- 
sical peculiarities to physicians other 
than his regular attendant, who in- 
spect the same for scientific pur- 
poses, and by not objecting to pub- 
lication of an article by his phy- 



sician describing his case, patient 
does not waive privilege in the man- 
ner required by New York statute. 
Scher v. Metropolitan St. R. Co., 75 
N. Y. Supp. 625. 

87. Zimmer v. Third Ave. R. Co., 
55 N. Y. Supp. 308; Valensin v. 
Valensin, 73 Cal. 106, 14 Pac. 397. 

88. Roche v. Nason (N. Y.), 77 
N. E. 1007. 

89. Foley v. Royal Arcanum. 151 
N. Y. 196. '56 Am. St. Rep. 621. 45 
N. E. 456; Metropolitan L. Ins. Co- 
V. Willis (Ind.), 76 N. E. 560; Ful- 
ler V. Knights of Pj'thias. 129 N. C. 
318, 40 S. E. 65, 85 Am. St. Rep. 744. 

In Adreveno v. Mutual R. F. L. 
Assn., 34 Fed. 870, the court says : 
" As the patient is at liberty to 
waive the privilege which the law 
affords him. it appears to me it is 
immaterial whether the patient 
waives the privilege by calling the 
physician to testify in his behalf, or 
whether he waives it, as in this case, 
by a clause contained in the contract 
on which the suit is brought; and 
if the patient himself waives the 
privilege by a clause contained in the 
contract, that waiver, in my judg- 
ment, is binding on any one who 
claims under the contract, whether it 
be the patient himself or his repre- 
sentative." Keller v. Home L. Ins. 
Co.. 95 Mo. App. 627, 69 S. W. 612. 

In Proppe v. Metropolitan L. Ins. 
Co., 34 N. Y. Supp. 172, it is said 
that such a waiver is " an agree- 
ment and condition binding upon 
the plaintiff." 

90. Briesenmeister v. Knights of 
Pythias, 81 Mich. 525. 45 N. W. 977. 

Vol. X 



154 



PRIVILBGBD COMMUNICATIONS. 



have settled upon the doctrine that waiver once duly made is ir- 
revocable.^^ 

b. Revocable. — The supreme courts of Michigan and Iowa have 
held that waiver is revocable, to the extent that waiver made upon 
first trial of an action is not binding upon a retrial.^- 

G. Effect of Change of Statute. — If express waiver of priv- 
ilege be made in writing it is not affected by change in the law 
made between the making of the waiver and the time of trial of the 
action in which it is invoked.^^ 



91. McKinney v. Grand St. P. R. 
Co., 104 N. Y. 352, 10 N. E. 544- 

Grattan v. Metropolitan L. Ins. 
Co., 92 N. Y. 274, 44 Am. Rep. 372, 
was an action to recover the amount 
of a life insurance policy. Upon 
the trial plaintiff waived privilege 
as to physician's testimony. Upon 
a second trial of the action, plaintiff 
objected to the testimony of the phy- 
sician to whose testimony upon the 
first trial he had consented. It was 
contended that, the privilege having 
been renounced, it could not after- 
wards be asserted. But the court 
held otherwise, ruling that plaintiff 
could insist upon his privilege. 
But Grattan v. Metropolitan L. Ins. 
Co., was practically overruled by 
the same court in McKinney v. G. 
St. R. Co., 104 N. Y. 352, 10 N. E. 
541. The McKinney case does not 
mention the Grattan case, although 
the brief of counsel asserting the 
privilege cites it. But as the Mc- 
Kinney case makes a decision dia- 
metrically opposite to the holding in 
the Grattan case, the latter is, in 
effect, overruled. McKinney v. 
Grand St. R. Co. is followed, and 
waiver made upon first trial of an 
action held irrevocable in Schlot- 
terer v. New York Ferry Co., 85 
N. Y. Supp. 847. In this case the 
court holds that the statutory pro- 
vision requiring waiver to be made 
" upon the trial," does not require 
that waiver be made upon the par- 
ticular trial under review. 

92. Briesenmeister v. Knights of 
Pythias, 81 Mich. 525, 45 N. W. 977. 
In this case it was held that while 
plaintiff in an action upon life in- 
surance policy waived privilege by 
introducing proofs of death contain- 
ing physician's statement as to cause, 
plaintiff might, upon a second trial 

Vol. X 



of the same action assert his privi- 
lege. The court approves Grattan 
V. Metropolitan L. Ins. Co., and dis- 
approves McKinney v. Grand St. R. 
Co., stating that the former case 
announces the better rule. The 
court says : " Privilege includes both 
the security against publication and 
the right to control the introduction 
in evidence, of such information or 
knowledge communicated to or pos- 
sessed by the physician. The latter 
right exists although the former has 
ceased to be of any benefit. The 
public may know; but shall the jury 
be permitted to receive and weigh 
testimony derived from a source 
which the law has put the seal of 
silence upon, unless released by the 
party who alone has the right to say 
whether that particular witness shall 
be the medium of conveying such 
knowledge to the jury? For in- 
stance, the party may have disclosed 
to a third person all that he has to 
his physician. Now, while his ad- 
missions may be proved in a proper 
manner by such third person, they 
cannot be proved by the physician 
against the objection of the party. 
The privilege conferred is that the 
physician shall not disclose or testi- 
fy to those matters which the stat- 
ute inhibits without the consent ot 
the party to whom the privilege is 
extended, and this objection may be 
interposed whenever and as often as 
the party's rights may be affected by 
proffered testimony, if the objection 
Ije timely made. McConnell v. City 
of Osage, 45 N. W. Rep. 550." See 
also Burgess v- Sims Drug Co., 114 
Iowa 275, 86 N. W. 307, 89 Am. St. 
Rep. 359, 54 L. R. A. 364, which also 
rejects the rule announced in Mc- 
Kinney V. Grand St. R. Co. 
93. Foley v. Royal Arcanum, 151 



PRIVILEGED COMMUNICATIONS. 



155 



H. Extent of Waiver. — If privilege is once waived, the waiver 
extends to the whole professional conduct of the physician.'-'* 

L Waiver Not Presumed. — Upon appeal it will not be pre- 
sumed that a patient waived a privilege to which the record shows 
he was entitled.^^ 

J. Conduct oe Adverse Counsee as to Waiver. — Counsel for 
party adverse to patient or his representative will not be allowed 
to ask patient whether or not he will waive his privilege.^° 



N. Y. 196, 45 N. E. 456, 56 Am. St. 
Rep. 621. See statement of this case 
in note 59 ante. Between the time 
of signing the appHcation containing 
the waiver and the trial of the ac- 
tion, § 836, Code of Civ. Proc, which 
gave the right to waive privilege 
as to the testimony of physicians, 
was so amended as to provide that 
waiver must be made upon the trial 
of the action. The court held the 
waiver binding, notwithstanding the 
amendment of the statute, holding 
that the provision for waiver was 
made as a contract, the obligation of 
which was not impaired by a change 
in the law. 

In Holden v. Metropolitan Ins. 
Co., 165 N. Y. 647, 59 N. E- ISO, a 
waiver similar to that applied in the 
Foley case was held ineffectual, be- 
cause made subsequent to the adop- 
tion of the amendment to § 836. 

94. Morris v. New York, O. & 
W. R. Co., 148 N. Y. 88, 42 N. E. 
410, 51 Am. St. Rep. 675; Rauh v. 
Deutscher Verein, 51 N. Y. Supp. 
985 ; Powers v. Metropolitan St. R. 
Co., 94 N. Y. Supp. 184; HoUoway 
V. Kansas City. 184 j\Io. 19, 82 S. 
W. 89. 

95. Holcomb v. Harris, 59 N. Y. 
Supp. 160. 

Carthage Tpk. Co. v. Andrews, 102 
Ind. 138, I N. E. 364, 52 Am. Rep. 
653. , In this case the court holds 
that certain testimony offered to be 
given by a physician was incompe- 
tent, and adds : " Appellee, probably, 
might have waived the point, and al- 
lowed his physician to testify, but 
we cannot indulge the presumption 
that he would have done so in or- 
der to overthrow the ruling of the 
court below, especially when he re- 
sisted the continuance, and argues 
here the incompetency of the wit- 
ness to testify to the facts stated 



in the affidavit for the continuance." 
96. McConnell z'. Osage, 80 Iowa 
293, 303, 45 N. W. 550, 8 L. R. A. 
778. In this case the court says : 
" While plaintiff was on the witness 
stand, and being cross-examined, 
she was asked this question : ' Q. 
Are you willing that the physicians 
who have treated you for past ten 
or fifteen years may disclose to this 
jury any conversation you made to 
them, at times they treated you, in 
reference to your conditions?' Ob- 
jections to the question being over- 
ruled, the plaintiff answered that she 
was not. The ruling is assigned as 
error, and we think it was mani- 
festly so. Counsel for appellee does 
not in argument attempt to vindi- 
cate the ruling, and it would seem 
that an attempt must result in fail- 
ure. The statute gives the prohi- 
bition. It is a legal right, and a 
party should no more be required 
to state under oath that he did not 
want to surrender it than any other 
legal right he possessed. We think 
a fair trial requires that such a mat- 
ter should not even be referred to; 
that a jury should not be impressed 
with a belief that there is even re- 
luctance to giving such assent. The 
subject-matter of such a waiver has 
no place for reference in the tak- 
ing of testimony except by the party 
permitted to make it. That preju- 
dice resulted from the ruling in 
question is more than probable. 
After making oath that she would 
not consent to the testimony, the jury 
was left to assume something — we 
know not what. It would naturally 
believe that, if assent had been 
given, testimony unfavorable to the 
plaintiff would have been the re- 
sult. However, we need not specu- 
late as to the probable conse- 
quences. It was clearly error." 

Vol. X 



156 



PRIVILEGED COMMUNICATIONS. 



K. Comment on Refusal to Waive. — Patient's conduct in 
calling as a witness one of three physicians who attended him, and 
objecting to the testimony of others, is a legitimate subject for 
consideration by the jury in determining the merits of the case.^^ 

10. Protection of Privilege. — A. Objection to Testimony. 
a. Who May Object. — (l.) Patient. — It is obvious that when 
physician is interrogated concerning information necessarily ac- 
quired from his patient, the question may be objected to by the pa- 
tient.^^ 

(2.) Personal Representative, Beneficiary, Assignee. — Such question 
may also be objected to by the patient's personal representative,^^ 
or beneficiary of life insurance policy ;^ or by the assignee of a 
life insurance policy.^ 

(3.) Any Party to Action. — It has been stated, though not ex- 
pressly decided, that any party to an action in which privileged 
matter is sought to be proved by a physician may object to his 
testimony.^ 

(4.) Physician. — It has been held that in certain cases the phy- 
sician himself may raise the question of his patient's privilege, by 
objecting to the production of testimony which would make known 
their confidential communication.* 



97. Cooley v. Foltz, 8s Mich. 47, 
48 N. W. 176. See notes 29, 30 post, 
under I, 10, F. 

98. Groll V. Tower, 85 Mo. 249, 
55 Am. Rep. 358; Corbett v. St. 
Louis, I. M. & S. R. Co., 26 Mo. App. 
621. See generally cases cited in 
notes. 

99. Groll V. Tower, 85 Mo. 249, 
55 Am. Rep. 358; Heuston v. Simp- 
son, 115 Ind. 62, 17 N. E. 261, 7 Am. 
St. Rep. 409. 

1. Penn Mut. L. Ins. Co. v. 
Wiler, 100 In J. 92, 50 Am. Rep. 769; 
Dilleber v. Home L. Ins. Co., 69 N. 
Y. 256, 25 Am. Rep. 182. 

2. Briesenmeister v. Knights of 
Pythias, 81 Mich. 525, 45 N. W. 977. 

3. Westover v. Aetna L. Ins. Co., 
99 N. Y. 56, I N. E. 104, 52 Am. 
Rep. I. 

In Davis v. Supreme Lodge, K. of 
H., 35 App. Div. 354. 54 N. Y. Supp. 
1023, action was brought to recover 
amount of life insurance policy. To 
show breach of warranty, physicians 
who had attended certain relatives of 
applicant were offered as witnesses. 
Held, that their testimony could be 
excluded upon plaintiff's objection. 

In Westover v. Aetna L. Ins. Co., 
99 N. Y. 56, I N. E. 104, the court 
in commenting on Edington v. Mu- 

Vol. X 



tual L. Ins. Co., 67 N. Y. 185, says 
that in that case it was not decided 
that a personal representative could 
waive the protection of the statute, 
but " it was held that the personal 
representative or assignee of the pa- 
tient could make the objection to 
evidence forbidden by the statute, 
and the opinion might have gone 
further and held that any party to 
an action could make the objection, 
as the evidence itself is objection- 
able, unless the objection be waived 
by the person for whose protection 
the statutes were enacted." The 
court in Westover v. Aetna L. Ins. 
Co., also says : " The purpose of the 
laws would be thwarted, and the 
policy intended to be promoted 
thereby would be defeated, if death 
removed the seal of secrecy from the 
communications and disclosures 
which a patient should make to his 
physician, or a client to his attorney, 
or a penitent to his priest. When- 
ever the evidence comes within the 
purview of the statutes, it is abso- 
lutely prohibited, and may be ob- 
jected to by any one unless it be 
waived by the person for whose ben- 
efit and protection the statutes were 
enacted." 
4. Mott V. Consumer's Ice Co., 52 



PRIVILEGED COMMUNICATIONS. 



157 



(5.) Objection Unavailing if Patient Consent, or Waive. — If patient 
consents to testimony of physician, the objection of any other per- 
son is unavailing, and the physician may testify.^ 

b. Patient Cannot Object After Testifying. — If a person has 
testified that he had a certain disease, he cannot afterwards object 
to the testimony of a state officer, who is a physician, which con- 
firms his own testimony on the subject." 

c. Objection Not Obviated. — If question is objectionable as 
calling for privileged communication, the objection is not obviated 
by a subsequent question calling for witness' opinion on the mat- 
ter covered by former question, although second question excludes 
any knowledge or information acquired while treating patient.' 

B. Burden of Proof. — The burden is upon one claiming priv- 
ilege to show the existence of conditions entitling him to insist upon 
the exclusion of the proposed testimony.^ 

a. Facts Must Be Shozvn. — Facts showing incompetency of pro- 
posed testimony must appear.^ 

Relation. — Thus, person claiming privilege must show that the 



How. Pr. (N. Y.) 148; s. c. on ap- 
peal, 52 How. Pr. 244; Lowenthal 
V. Leonard, 46 N. Y. Supp. 818; Kel- 
ley V. Levy, 8 N. Y. Supp. 849. See 
reference to these cases in note 19, 
ante, 1, 10, a (4). 

5. In Territory v. Corbett, 3 
Mont. 50, 59, defendant objected to 
question addressed to a physician 
who had treated one of the witnesses 
in the case. The patient consented 
to the testimony. Held, that physi- 
cian's testimony was properly ad- 
mitted. 

6. State V. McCoy, 109 La. 682, z:^ 
So. 730. 

7. Edington v. Aetna L. Ins. Co., 
13 Hun (N. Y.) 543. 

8. Stowell V. American Co-op. 
Relief Assn., 5 N. Y. Supp. 233; 
Heath v. Broadway & S. A. R. Co., 
8 N. Y. Supp. 863; Henry v. New 
York, etc. R. Co., 10 N. Y. Supp. 508; 
People V. Koerner, 154 N. Y. 355, 48 
N. E. 730; Green v. Metropolitan St. 
R. Co., 171 N. Y. 201, 63 N. E. 958, 
89 Am. St. Rep. 807 ; Griffiths v. Met. 
ropohtan St. R. Co., 171 N. Y. 106, 
63 N. E. 808; Jennings v. Supreme 
C. L. A. B. Assn., 81 N. Y. Supp. 
90; Deutschmann v. Third Ave. R. 
Co., 84 N. Y. Supp. 887 ; Van Bergen 
V. Catholic, R. & B. Assn., 99 x'\pp. 
Div. 72, 91 N. Y. Supp. 362; James 
V. Kansas City, 85 Mo. App. 20. 



9. People V. Schuyler, 106 N. 
Y. 298, 12 N. E. 783, affirming s. c. 43 
Hun 88; Bowles r. Kansas City. 51 
Mo. App. 416; Stowell V. American 
C. R. Assn., 5 N. Y. Supp. 233. 

Party objecting to testimony has 
a right to demand that witness' re- 
lation to the person in question be 
defined, as, otherwise, the court can- 
not rule. Tracey v. Metropolitan 
St. R. Co., 63 N. Y. Supp. 242. 

In Edington v. Aetna L. Ins. Co., 
77 N. Y. 564, the court says : " Be- 
fore the exclusion is authorized, the 
facts must in some way appear 
upon which such exclusion can be 
justified." The court also says : " It 
is not incumbent on the party who 
seeks information from a physician 
who has been in attendance upon a 
patient, to show that the information 
was not acquired as specified in the 
statute; but the party objecting must 
in some way make it appear, if it 
does not otherwise appear, that the 
information is within the statutory 
exclusion." 

It is incumbent upon one claiming 
privilege to support his objection by 
proof of the facts necessary to bring 
the case within the definition upon 
which objection was based. Henry 
V. New York, etc. R. Co., 10 N. Y. 
Supp. 508. 

Vol. X 



158 



PRIVILEGED COMMUNICATIONS. 



relation of physician and patient existed between witness and the 
person to whom his testimony relates.^" 

b. All Conditions of Exclusion Must Exist. — To exclude pro- 
posed testimony claimant must show the existence of all the con- 
ditions of exclusion. ^^ 

C. How Burden Sustained. — Burden is sustained when claim- 
ant obtains from physician a statement that whatever he learned 
he learned in his professional capacity as a physician, and that such 
information was necessary to enable him to treat the case.^- 

D. Prima Facie Case Made by Showing. — What Sufficient. 
a. Professional Attendance. — To make a prima facie case of in- 
competency, it is sufficient to show that the physician offered as 
witness attended a person in that capacity.^^ 



10. People r. Koerner, 154 N. Y. 
355, 365, 48 N. E. 730; Linz v. Mas- 
sachusetts Mut. L. Ins. Co.. 8 Mo. 
App. 363; Weitz V. M. C. R. Co.. 53 
Mo. App. 39; Clark v. State, 8 
Kan. App. 782, 61 Pac. 814. 

Hospital Physician. — In Griffiths 
V. INIetropolitan St. R. Co., 171 N. 
Y. 106, 63 N. E. 808. a boy was in- 
jured by a street car. He was taken 
to a drug store, where a physician 
volunteered his services. This phy- 
sician rode about three blocks in an 
ambulance with the boy as tl;e lat- 
ter was being conveyed to a hos- 
pital. The physician was an em- 
ploye of the hospital, it not appear- 
ing whether his employment com- 
menced before the accident. About 
ten days afterward he saw the boy 
at the hospital, and questioned him 
as to the accident. Physician's tes- 
timony as to the boy's statements 
was excluded. Upon appeal to Ap- 
pellate Division this ruling was held 
correct. (See Griffiths v. Metropoli- 
tan St. R. Co., 71 N. Y. Supp. 406). 
Upon appeal to the court of appeals 
the judgment of the Appellate Divi- 
sion was reversed, the court holding 
that plaintiff did not successfully 
sustain the burden of showing that 
the relation of physician and patient 
existed. 

11. Gartside v. Connecticut Mut. 
L. Ins. Co., 8 Mo. App. 592, where 
the court says: " (i.) Where the 
whole testimony of a physician is 
excluded on the ground that he can- 
not separate impressions received by 

Vol. X 



him growing out of the relation of 
physician and patient, and those re- 
ceived by observations of the patient 
when that relation did not exist, the 
fact justifying such exclusion must 
appear; the statement of the physi- 
cian to that effect is not sufficient. 
(2.) The fact that such discrimina- 
tion can be made by the witness may 
be developed on a proper cross-ex- 
amination." Griffiths V. Metropolitan 
St. R. Co., 171 N. Y. 106, III, 63 N. 
E- 808. 

" All the conditions of exclusion 
must exist, and, one failing, the pres- 
ence of the others amounts to noth- 
ing." Linz v. Massachusetts Mut. 
L. Ins. Co., 8 Mo. App. 363. 

In addition to fact of attendance 
claimant must show that information 
was necessary to performance of pro- 
fessional duty. Linz v. Massachus- 
etts Mut. L. Ins. Co., 8 Mo. App. 363 ; 
People v- Schuyler, 106 N. Y. 298, 
12 N. E. 783 ; Edington v. Aetna L. 
Ins. Co., 77 N. Y. 564. 

But if testimony shows that a third 
person was present at only one of 
many consultations, and question to 
physician calls for information ac- 
quired during entire treatment, the 
physician's testimony should be ex- 
cluded. Murphv V. Board of Comrs. 
(Cal. App.), 83" Pac. 577- 

12. Van Bergen v. Catholic. R. & 
B. Assn.. 99 App. Div. 72, 91 N. Y. 
Supp. 362. 

13. Brigham v. Gott, 3 N. Y. 
Supp. 518; Jones V. Brooklyn, R. Co., 
3 N. Y. Supp. 253. 



PRIVILEGED COMMUNICATIONS. 159 

b. Examination for Treatment, and examined him for the pur- 
-pose of enabling physician to prescribe.^* 

c. Relation Not Disproved by Record. — When the fact of at- 
tendance is shown and there is nothing in the record to show that 
relation did not exist, physician cannot testify. ^^ 

Relationship Denied. — Witness Competent. — When physician called 
as a witness testifies that he did not attend a certain person, and 
there is nothing in the record from which the contrary appears, a 
ruling that witness was competent will not be disturbed upon ap- 
peal.^*' 

E. How Privilege; Determined. — a. Question by Person Call- 
ing Physician. — The court will permit the party calling a physician 
as witness to ask him whether or not the information to which his 
questions are directed was necessary to enable him to prescribe 
professionally.^^ 

b. Question by Claimant. — Or the court wdll permit objector 
to interrogate witness as to the existence of relation, or character 
of information proposed to be shown.^^ 

c. Preliminary Question Necessary. — Objection cannot be 
formulated until it appear whether or not witness obtained his 
knowledge in such manner as to disqualify him.^^ 

d. Formal Proof of Character of Information Not Required. — It 
is not necessary to show in the first instance by formal proof that 
the information in question was necessary to enable physician to 
prescribe, as the character of the information will be inferred from 
the relationship of the parties.''* 

e. Character of Information Inferred From. — (1.) Form of 
Question. — Fact of attendance being shown, the question itself 
justifies the inference that the information to which it was directed 
was acquired in a professional capacity.-^ 

14. Weitz V. M. C. R. Co., 53 land R. Co., n6 N. Y. 375, 22 N: 
Mo. App. 39; James v. Kansas City, E. 402, 5 L,. R. A. 544. 

85 Mo. App. 20. Nor is an examination of patient 

15. Weitz V. M. C. R. Co., 53 Mo. necessary. Brigham v. Gott, 3 N. Y. 
App. 39; James v. Kansas City, 85 Supp. 518, citing Renihan v. Dennin, 
Mo. App. 20. 103 N. Y. 573, 9 N. E. 320, 57 Am. 

16. Stowell V. American C. R. Rep. 770. 

Assn., 5 N. Y. Supp. 233. Formal Proof of Status of Wit- 

17. Herrington v. Winn, 14 N. ness — • See notes ante. 

Y. Supp. 612. 21. In Sloan v. New York Cent. 

18. Nugent v. Cudahy Pack. Co., R. Co., 45 N. Y. 125, a physician was 
126 Iowa 517, 102 N. W. 442. asked if plaintiff had a certain dis- 

19. Tracey v. Metropolitan St. R. ease while under his care. The 
Co.. 63 N. Y. Supp. 242. court says : " The presumption is, 

20. Edington v. Mut. Life Ins. from the question, that he learned it 
Co., 67 N. Y. 185, 194; Grattan v. as a physician, for the purpose of 
Metropolitan L. Ins. Co.. 80 N. Y. prescribing. The question itself im- 
281, 297; In re Darragh's Estate, 5 plies it. To require the plaintiff to 
N. Y. Supp. 58; Feeney v. Long Is- make the preliminary inquiry 

Vol. X 



160 



PRIVILEGED COMMUNICA TIONS. 



(2.) Fact of Attendance. — The fact that the information was 
necessary to professional treatment may be inferred from the fact 
of attendance,^^ especially in connection with the nature of the 
question.^^ 

(3.) Inference From Profession and Relation. — The profession of 
the witness, the fact of treatment, the fact that information was 
received in professional capacity, and the relation of physician and 
patient being shown, it follows as a necessary inference that wit- 
ness' knowledge was acquired in his character of physician.^* 

f. Status Presumed. — If witness states that he is a physician, 
it will be presumed that he has the license required by law.-^ 

g. Information Partly Confidential. — When part of witness' in- 
formation of his patient's mental condition was acquired at con- 
fidential, and part at non-confidential interviews, it appearing that 
impressions gathered at the latter necessarily related to knowledge 
acquired through professional treatment, and that witness cannot 



whether he learned the fact for the 
purpose of prescribing would in ef- 
fect, if the fact existed, have de- 
prived the plaintifiF of the protection 
of the statute. It would have proved 
the fact indirectly, which might be 
as injurious as if proved legiti- 
mately." Approved in Grattan v. 
Metropolitan L. Ins. Co., 8o N. Y. 
281, 299. 

Fact of consultation, in connection 
with the nature of the questions 
themselves is sufficient in the absence 
of other proof, to bring them with- 
in the prohibition of the statute. 
Feeney v. Long Island R. Co., 116 
N. Y. 375, 22 N. E. 402, 5 L. R. 
A. 544- 

22. Munz V. Salt Lake City R. 
Co., 25 Utah 220, 70 Pac. 852. 

The fact that a physician is called 
to attend a person creates the pre- 
sumption that he examined him for 
the purpose of enabling himself to 
prescribe for that person's ailment. 
James v. Kansas City, 85 Mo. 
App. 20. 

23. See note 21 ante, under I, 10, 
E, e, (I.). 

24. Grattan v. Metropolitan L- 
Ins. Co., 80 N. Y. 281, 297. 

In re Redfield's Estate, 116 Cal. 
637, 644, 48 Pac. 794. In this case 
physician testified that he had treated 
a person for consumption. He stated 
that he had no information as to his 
patient's condition, mental or physi- 
cal, except such as he had acquired 



as a physician to enable him to act 
for her. Held, that he could not be 
interrogated as to patient's mental 
condition. 

25. Record v. Saratoga, 46 Hun 
(N. Y.) 448, afiiniicd without opin- 
ion, 120 N. Y. 646. This was an ac- 
tion for damages for personal in- 
juries. Defendant offered to show 
by plaintiff's physician the nature of 
plaintiff's injuries. Objection was 
sustained. Defendant claimed that, 
as witness did not produce his li- 
cense, and was not examined as to 
his being a duly licensed physician, 
objection was not well founded. 
Held, that in the absence of any ob- 
jection taken at the trial to the suffi- 
ciency of the proof, patient was en- 
titled to the benefit of the presump- 
tion that witness had the license re- 
quired by law. The court says : 
" If the privilege were the physi- 
cian's, he might, if the objection were 
taken, be required to prove by the 
best evidence that he was duly au- 
thorized ; but it is the patient's privi- 
lege, and, in the absence of any ob- 
jection upon the trial to the suffi- 
ciency of the proof, she is now en- 
titled to the benefit of the presump- 
tion that the physician had the li- 
cense which the law requires to en- 
title him to practice. If any objec- 
tion had been taken upon the trial 
to the sufficiency of the proof, no 
doubt it could have then been sup- 
plied. It cannot now be entertained." 



Vol. X 



PRIVILEGED COMMUNICATIONS. 



161 



separate confidential knowledge from that otherwise acquired, the 
witness will be held incompetent.-^ 

Segregation Possible, Testimony Competent. — But where witness is 
able to separate confidential statements from those which were non- 
confidential, he may give the latter in evidence.-^ 

h. Court Not Bound by Physician's Statement. — The court is 
the judge of the admissibility of testimony, and may hold that a 
given statement was not confidential, notwithstanding physician's 
statement to the contrary.^* 

F. Inference From Refusal to Waive. — It has been held 
that the refusal of a patient to permit a physician to testify notwith- 
standing the law against disclosure of confidential commmiications, 
authorizes the jury to draw therefrom inferences unfavorable to 
patient.^^ 



26. In In re Darragh's Estate, 5 
N. Y. Supp. 58, the court says : " It 
is urged upon the part of the appel- 
_lant that it was not shown that the 
'knowledge which he had acquired in 
respect to his patient by the physi- 
cian while he was attending her was 
necessary to enable him to prescribe 
for her. But it seems to us, in view 
of the rule laid down by the court 
of appeals, in construing the statute 
prohibiting the disclosure by physi- 
cians of the information they have 
received in respect to the condition 
of their patients, that it was not nec- 
essary that this should be established, 
and that all that it was necessary to 
establish in order to preclude the 
physician from testifying was that 
he had obtained the information dur- 
ing the course of his professional em- 
ployment. And this is the only 
reasonable construction to be placed 
upon the statute, because otherwise 
it is placing it within the physician's 
power to violate the statute at will. 
The information which the physician 
receives by his eyes, by his ears, and 
by his touch, is in the course of his 
professional employment, and it may 
or may not be necessary for the pur- 
pose of prescribing, and this neces- 
sity may only be disclosed by the 
very fact of the imparting of the in- 
formation, and therefore, although 
information of this character may be 
communicated, supposedly under the 
safeguards thrown around such com- 
munications by the law, yet it may 
turn out that such disclosure was not 
necessary to enable the physician to 



act in a professional capacity; but 
this could only be ascertained after 
the disclosure had been made. It is 
so difficult to draw the line that it is 
certainly best to err upon the side 
of safety, and shut the door against 
all disclosures of information ac- 
quired by a physician in attending a 
patient in a professional capacity, 
without requiring absolute proof that 
such information was necessary to 
enable him to act in that capacity. 
The intention evidently was to pro- 
tect all communications made b\' a 
patient to his physician, which the 
patient supposed, or had reason to 
believe, were protected by the pro- 
visions of the law. This seems to be 
the construction of this section 
adopted by the highest court, and 
that it is the one which accords best 
with the evident policy of the law 
is manifested by the restriction which 
it has thrown around the disclosures 
to attorneys and priests. Therefore, 
in the case at bar, this physician be- 
ing unable to separate the knowledge 
which he had acquired as a physi- 
cian, or while attending her in a pro- 
fessional capacity, from the knowl- 
edge which he acquired when paying 
her a friendly visit, it is clear that 
his testimony was properly rejected." 

27. Seifert v. State, 160 Ind. 464, 
67 N. E. 100. 

28. Griffiths v. Metropolitan St. 
R. Co., 171 N. Y. 106, 113, 63 N. 
E. 808. 

29. Deutschmann v. Third Ave. 
R. Co.. 84 N. Y. Supp. 887. (See 
quotation in note 31.) But see Mc- 

Vol. X 



162 



PRIVILEGED CO MM UNICA TIONS. 



Contra. — But the contrary has been held by other courts."^ 
G. Instruction as to Refusal to Waivk. — It is not error to 
refuse to instruct the jury that " under the law, communications 
from a patient to a physician are privileged, and cannot be given 
in testimony, except that the privilege be waived, and could have 
been waived in this case by the plaintiff, bvit her refusal to waive 
it does not warrant the jury in indulging in any inferences unfa- 
vorable to her or to her cause of action. She stood upon her legal 
rights, and because of doing so she cannot be prejudiced in the 
eyes of the jury."^^ But it is held that it is error for the court to 



Connell v. Osage, 80 Iowa 293, 303, 
45 N. W. 550. 8 L. R. A. 778, under 
I, 9, J. n. 96, ante. 

Deutschmann v. Third Ave. R. 
Co., is disapproved in Pennsylvania 
R. Co. V. Durkee, 147 Fed. 99, 102, 
which involved an application of the 
same statute. 

30. No Inference From Refusal 

to Waive Pennsylvania R. Co. v. 

Durkee, 147 Fed. 99, loi. The court, 
in this case, says : " To hold that, 
because the patient does not waive or 
abandon the prohibition, inferences 
adverse to his side of the contro- 
versy may be drawn by the jury, 
would be to fritter away the protec- 
tion it was intended to afford. When 
it is the legal right of a party not 
to have some specific piece of testi- 
mony marshaled against him, he 
may exercise that right without mak- 
ing it the subject of comment for the 
jury. The law of evidence provides 
that the copy of a document shall 
not be proved until the failure to 
produce the original shall be satis- 
factorily explained. When a copy is 
offered, the party against whom it is 
offered ma}', if he choose, waive this 
particular objection; but, if he does 
not, are the jury to be allowed to 
draw unfavorable inferences from 
his insisting upon the cause being 
tried in the orderly way in which 
the law provides? In a case where 
communications between client and 
counsel were inquired about, Lord 
Chelmsford said : ' The exclusion of 
such evidence is for the general in- 
terest of the community, and there- 
fore to say that, when a party re- 
fuses to permit professional confi- 
dence to be broken, everything must 
be taken most strongly against him, 
what is it but to deny him the pro- 

Vol. X 



tection which for public purposes the 
law affords him, and utterly to take 
away a privilege which can thus only 
be asserted to his prejudice?' Went- 
worth V. Lloyd, 10 House of Lords, 
589." 

31. Deutschmann v. Third Ave. 
R. Co., 84 N. Y. Supp. 887. In this 
case the court says: "The jury is al- 
ways justified in taking into consid- 
eration the attitude, appearance, and 
acts of parties and witnesses upon a 
trial, and to deduce therefrom such 
inferences as fairly arise out of the 
given circumstances, and we see no 
- reason why they may not also take 
into consideration an objection in- 
terposed which shuts out the intro- 
duction of testimony. We think, 
therefore, that the court was cor- 
rect in its charge with respect to the 
authority of the jury in considering 
all the circumstances. The jury was 
limited in drawing inferences unless 
they were justified by the evidence 
in *the case, and the court refused to 
charge that the law prevented them 
from drawing any inference whatso- 
ever from the situation. We think, 
in view of the fact that the statute 
is silent upon the subject, that the 
jury were not precluded from con- 
sidering the entire attitude of the 
party, and drawing such inference 
therefrom as was fairly deducible 
from the situation which had been 
created. Carpenter v. Pennsylvania 
R. Co., 13 App. Div. 328, 43 N. Y. 
Supp. 203 ; People v. Hovey, 92 N. 
Y. 554. If, however, we should be 
wrong in this conclusion, we think 
there is another and fatal objection 
to the request to charge as made. 
The language of the request is, 
' Under the law, communications 
from a patient to a physician are 



PRIVILEGED COMMUNICATIONS. 



163 



■charge that the jury might consider a refusal to waive privilege in 
determining the case.^^ 

H. Argument From Refusal, Improper. — It has been held 
that it is error for the trial court to permit counsel to argue to 
jury that refusal to waive privilege should be taken as an admis- 
sion that the physician's testimony would be unfavorable.^^ 

I. Kg Inference From Failure to Call Physician. — No un- 
favorable inference can be drawn from patient's failure to call phy- 
sician as witness.^* 

J. Other Protection. — Besides powxr to exclude testimony 
by sustaining objection, the courts have other means of protecting 
privilege. 

a. Refusal to Take Testimony. — Striking Out. — If, in the 
course of taking testimony before a commissioner, a physician re- 
veals professional secrets, the commissioner may refuse to take the 
testimony, or a judge of the court in which the action is pending, 
should, without motion, strike it out.^^ 

b. Protection of Physician's Books. — Court will not order a 
physician to produce his account books containing records of knowl- 
edge acquired from patients in evidence upon a trial, or deliver 
them to a receiver appointed upon proceedings in aid of execution.^^ 

c. Exclusion in Court's Discretion. — It has been held that it is 



privileged, and cannot be given in 
testimony except that the privilege 
be waived.' This was too broad a 
statement of the law. The prohibi- 
tion relates only to those matters 
which the statute covers. The stat- 
ute only prohibits the physician from 
making disclosure of confidential in- 
formation acquired in attending upon 
a patient where the relation of pa- 
tient and physician is established, and 
when the information was necessary 
to enable him to act in that capacity- 
When that relation is established, all 
disclosure of matters relating there- 
to is privileged. It does not extend, 
however, to information acquired by 
the physician, unless such informa- 
tion was acquired for the purpose of 
enabling him to act in that capacity. 
Hoyt V. Hoyt, 9 N. Y. St. Rep. 731, 
afHrmed 112 N. Y. 493, 20 N. E. 402; 
Brown v. R., W. & O. R. Co., 45 
Hun 439; De Jong v. Erie R. Co., 43 
App. Div. 427, 60 N. Y. Supp. 125. 
The request to charge embraced all 
communications had between a pa- 
tient and a physician. Clearlj', this 
is not the law, and the request was 
therefore too broad." Lane v- Spo- 
kane Falls & N. R. Co., 21 Wash. 



119. 57 Pac. 367. 75 Am. St. Rep. 
821, 46 L. R. A. 153. 

32. Brackney v. Fogle, 156 Ind- 
535, 60 N. E. 303; Thomas v. Gates, 
126 Cal. I, 58 Pac. 315. 

33. Brackney v. Fogle, 156 Ind. 
535. 60 N. E. 303. See remarks of 
court in State v. Booth (Iowa), 88 
N. W. 344- 

34. Arnold v. Maryville, no Mo. 
App. 254, 85 S. W. 107. In this case 
the court says : " In Wentworth v. 
Loyd, 10 H. L. Cas. 589, it was held 
no ground for presumption against 
one who refused to waive the privi- 
lege as to communications made to 
his solicitor in a professional ca- 
pacity. It must be clear that if an 
unfavorable presumption against one 
should be allowed when he refused 
to waive his privilege, or failed to 
call the physician as a witness, the 
privilege itself would be destroyed, 
and the policy of the statute 
thwarted." 

35. Storrs v. Scougale, 48 Mich. 
387, 12 N. W. 502. 

36. Mott V. Consumers' Ice Co., 
52 How. Pr. (N. Y.) 148; Lowenthal 
v. Leonard, 46 N. Y. Supp. 8x8; 
Kelly V. Levy, 8 N. Y. Supp. 849. 

Vol. X 



164 



PRIVILEGED COMMUNICATIONS. 



within the discretion of the court to exclude physicians' testimony, 
when its admission would blacken the memory of the dead.^'^ 

11. Construction of Statutes. — A. Liberal. — Statutes mak- 
ing incompetent the testimony of physicians and surgeons should 
be liberally construed.^® 



In Sailings v. Shakespeare, 46 
Mich. 408, 9 N. W. 451, 41 Am. Rep. 
166, it is said that a physician has no 
right to pubHsh knowledge acquired 
in professional confidence, but such 
decision was not necessary in that 
case. 

37. Winters v. Winters, 102 Iowa 
53, 71 N. W. 184, 63 Am. St. 
Rep. 428. 

38. Edington v. Mutual L. Ins. 
Co., 67 N. Y. 185; Feeney v. Long 
Island R. Co., 116 N. Y. 375, 22 N. 
E. 402, 5 L. R. A. 544 ; Buffalo L. T. 
etc., Co. V. Knights' T. Assn., 126 N. 
Y. 450. 27 N. E. 942, 22 Am. St. Rep. 
839; People V. Stout, 3 Park. Crim. 
(N. Y.) 670; Masonic Mut. Ben. 
Assn. V. Beck, 77 Ind. 203, 40 Am. 
Rep. 295. 

In Edington v. Aetna L. Ins. Co., 
77 N. Y. 564, the court, after stating 
that this privilege did not exist at 
common law, says : " It should not, 
therefore, be made broader by con- 
struction than the language of the 
statute plainly requires; and in ap- 
plying the statute, the purpose of its 
enactment should be kept in view; 
and that was tersely expressed by 
the revisers, in a note to the section, 
as follows : ' The ground on which 
communications to counsel are privi- 
leged, is the supposed necessity of a 
full knowledge of the facts, to ad- 
vise correctly, and to prepare for the 
proper defense or prosecution of a 
suit. But surely the necessity of 
consulting a medical adviser, when 
life itself may be in jeopardy, is still 
stronger. And unless such consul- 
tations are privileged, men will be 
incidentally punished by being 
obliged to suffer the consequences of 
injuries without relief from the medi- 
cal art, and without conviction of 
any offense. Besides, in such cases, 
during the struggle between legal 
duty on the one hand, and profes- 
sional honor on the other, the latter, 
aided by a strong sense of the in- 
justice and inhumanity of the rule. 

Vol. X 



will, in most cases, furnish a tempta- 
tion to the perversion or conceal- 
ment of truth, too strong for human 
resistance.' " 

On question of so construing stat- 
ute as to prevent its becoming a 
means of shielding a criminal, see 
State V. Grimmell, 116 Iowa 596, 88 
N. W. 342. See quotation in note 27 
ante, under I, 7, B, k. 

In Boyle v. Northwestern M. R. 
Assn., 95 Wis. 312, 322, 70 N. W. 
351, a statute providing that physi- 
cian could not be " compelled " to 
disclose information acquired in his 
professional capacity was construed 
to mean that he would not be " al- 
lowed " to testify as to such matters. 
The court says : " Under statutes 
providing that a professional wit- 
ness ' shall not be allowed to dis- 
close ' information so acquired, it 
has been held in a great number of 
cases, and with entire uniformity so 
far as we have been able to discover, 
that the privilege is that of the pa- 
tient, client, etc., and the information 
or disclosure cannot be given in evi- 
dence against him, or persons claim- 
ing under him, unless waived. 
' After one has gone to his grave, 
the living are not permitted to im- 
pair his fame or disgrace his mem- 
ory by dragging to light communi- 
cations and disclosures made under 
the seal of the statute.' Westover v. 
Aetna L. Ins. Co., 99 N. Y. 56, 60; 
Grattan v. Metropolitan L. Ins. Co.. 
80 N. Y. 282; Edington v. Mut. L. 
Ins. Co., 67 N. _Y. 185. The dis- 
closure by a physician of information 
acquired in his professional character, 
in attending on a patient, where not 
made in the course of his profes- 
sional duty, is a plain violation of 
professional propriety, but the law 
does not prohibit such disclosure in 
his general intercourse. The stat- 
ute relates only to his giving testi- 
mony in court in relation to informa- 
tion thus acquired, and it should re- 
ceive, we think, a liberal interpreta- 



PRIVILEGED COMMUNICATIONS. 



165 



B. Strict. — But the contrary has been held by one court.^® 

C. Strict Construction in Favor of Claimant. — It has been 
said that statute should be construed with great strictness in favor 
of the person against whom the testimony is offered.*" 



II. HUSBAND AND WIFE. 

1. General Rule. — Neither husband nor wife can testify as to 
any communications between them made during the existence of the 
marriage relation."*^ 



tion, in order to carry out its evi- 
dent beneficial purposes. It pro- 
vides that the phj-sician shall not be 
compelled to disclose any informa- 
tion, etc., acquired in his confidential 
relations with his patient. For 
whose benefit was this provision in- 
tended? Clearl}', for the benefit of 
the patient, whose interests, reputa- 
tion, and sensibilities may be injured 
and grossly outraged by its dis- 
closure. The fact that the physician 
acquired the information in order to 
prescribe for or treat the patient can- 
not affect the physician in the least 
degree unfavorably, nor that he 
should be compelled to disclose as a 
witness the information or knowledge 
thus acquired. The object of the 
section, therefore, was to protect the 
patient, to whom protection was so 
important, and not the physician, to 
whom it was quite unimportant, 
from the consequences of such dis- 
closure, and shows that the provision 
that the physician shall not be com- 
pelled to make the disclosure as a 
witness renders the statement of the 
patient privileged as to him, and that 
this was within the intention of the 
makers of the statute clearly im- 
plied from its language, and that it 
should not be disclosed by the phy- 
sician without his consent. . . We 
think that it is a clear and justifiable 
inference from the section under 
consideration, and the cause and ap- 
parent necessity of making the stat- 
ute, that the information of the phy- 
sician, so acquired, is privileged as 
to the patient, and that the physician 
can neither be compelled nor allowed 
to disclose it, as a witness, against 
the will or without the consent of the 
patient. This interpretation gives 
the law the beneficial effect it was 
evidently designed to have, while by 



the literal meaning of its language it 
would be rendered of little or no 
practical effect. We think that the 
court erred in admitting the testi- 
monjr of the physician thus objected 
to." To same effect, see In re Will 
of Bruendl, 102 Wis. 45, 78 N. 
W. 169. 

Statute of Iowa providing that no 
physician or surgeon " shall be al- 
lowed, in giving testimony, to dis- 
close any confidential communication 
properly intrusted to him in his pro- 
fessional capacity and necessary and 
proper to enable him to discharge the 
functions of his office, etc.," is con- 
strued to confer upon the patient the 
right to refuse to give his own testi- 
mony in regard to confidential com- 
munications to his physician. Bur- 
gess V. Sims Drug Co., 114 Iowa 275, 
86 N. \N. 307, 54 L. R. A. 364. The 
court says : " Further than this, the 
provision of the Code extends the 
privilege which at common law was 
recognized in regard to communica- 
tions between client and attorney so 
as to cover communications between 
the patient and his physician; and 
we have no doubt that it was in- 
tended to extend to these communi- 
cations the same complete protec- 
tion, not only as to physicians, but 
also as to the patient, which by com- 
mon law was recognized in regard 
to communications between client and 
attorney. We think that there is no 
question but that the patient is privi- 
leged from disclosing communica- 
tions made to his physician, although 
the statute does not so expressly 
provide." 

39. Linz V. Massachusetts Mut. 
L,. Ins. Co., 8 Mo. App. 363. 

40. Post V. State, 14 Ind. App. 
452, 42 N. E. 1 1 20. 

41. England. — Monroe z\ Twis- 

Vol. X 



166 



PRIVILBGBD CO MM UNICA TIONS. 



tleton, Peake Ad. C. 219; O'Connor 

V. Majoribanks, 4 Man. & G. 435, 12 
L. J. C. P. 161, 7 Jur. 834. 

United States. — Bassett v. United 
States, 137 U. S. 496; Hopkins v. 
Grimshaw, 165 U. S. 342. 

Alabama. — Swoope v. State, 115 
Ala. 40, 22 So. 479; Troy Fertilizer 
Co. V. Logan, 90 Ala. 325, 8 So. 46. 

California. — People v. MuUings, 
83 Cal. 138, 2Z Pac. 229, 17 Am. St. 
Rep. 223. 

Florida. — Henderson v. Chaires, 
25 Fla. 2)7, 6 So. 164; Mercer v. 
State, 40 Fla. 216, 24 So. 154, 74 Am. 
St. Rep. 135- 

Georgia. — Jackson v. Jackson, 40 
Ga. 150; Toole v. Toole, 107 Ga. 
472, 33 S. E. 686; Castello v. Cas- 
tello, 41 Ga. 613; Mclntyre v. Mel- 
drim, 40 Ga. 490. 

Illinois. — Joiner v. Duncan, 174 
111. 252, 51 N. E. 323; Sagar v. 
Eckert, 3 111. App. 412, 418. 

Indiana. — Higham v. Vanosdol, 
lOi Ind. 160. 

Iowa. — Shuman v. S. L. K. of 
H., no Iowa 480, 81 N. W. 717. 

Kansas. — Van Zandt v. Schuyler, 
2 Kan. App.. 118; Chicago K. & N. 
R. Co. V. Ellis, 52 Kan. 41, 33 Pac. 
478; Anderson v. Anderson, 9 Kan. 
112; French v. Wade, 35 Kan. 391, 
II Pac. 138. 

Kentucky. — McGuire v. Maloney, 
I B. Mon. 224; New York L. Ins. 
Co. V. Johnson's Admr., 24 Ky. 
L. Rep. 1867, 72 S. W. 762; Howard 
V. Com., 118 Ky. i, 80 S. W. 211, 
81 S. W. 704, Manhattan E. Ins. 
Co. V. Beard, 112 Ky. 455, 66 S. W. 

35. 

Maine. — Walker v. Sanborn, 46 
Me. 470. 

Massachusetts. — Raynes v. Ben- 
nett, 114 Mass. 424; Drew v. Tar- 
bell, 117 Mass. 90; Com. v. Ma- 
honey, 152 Mass. 493, 25 N. E. 833; 
Fuller V. Fuller, 177 Mass. 184, 58 
N. E. 588, 83 Am. St. Rep. 273. 

Michigan. — Hunt v. Eaton, 55 
Mich. 362, 21 N. W. 429; Maynard 
z;. Vinton, 59 Mich. 139, 152, 26 N. 
W. 401, 60 Am. Rep. 276; Rice v. 
Rice, 104 Mich. 371, 62 N. W. 833; 
McKenzie v. Lautenschlager, 113 
Mich. 171, 71 N. W. 489; Maynard 
V. Vinton, 59 Mich. 139, 26 N. W. 
401, 60 Am. Rep. 276. 

Minnesota. — Newstrom v. St. 
Paul & D. R. Co., 61 Minn. 78, 63 

Vol. X 



N. W. 253; Beckett v. Northwestern 
Masonic Aid Assn., 67 Minn. 298, 
69 N. W. 923. 

Mississippi. — Stuhlmuller v. Ew- 
ing, 39 Miss. 447. 

Missouri. — Moore v. Wingate, 53 
Mo. 398, 408; Buck V. Ashbrook. 51 
Mo. 539; Berlin v. Berlin, 52 Mo. 
151 ; Dwyer v. Dwyer, 2 Mo. App. 
17; Miller v. Miller, 13 Mo. App. 
591; s. c. 14 Mo. App. 418; Schier- 
stein V. Schierstein, 68 Mo. App. 
205. 

Nebraska. — Buckingham v. Roar, 
45 Neb. 244, 63 N. W. 398. 

New York. — Burrell v. Bull, 3 
Sandf. Ch. 15, 26. 

North Carolina. — Hester v. Hes- 
ter, 15 N. C. (4 Dev. L.) 228; Toole 
v. Toole, 109 N. C. 615, 14 S. E. 
57; State V. Brittain. 117 N. C. 
783, 23 S. E. 433; State v. Jolly, 20 
N. C. (3 Dev. & B. L.) no, 32 Am. 
Dec. 656. 

Tennessee. — Pillow v. Thomas, i 
Baxt. 120, 129; Orr v. Cox, 3 Lea 
617; E. W. M. V. J. C. M., 2 Tenn. 
Chan. App. 463, 479; Insurance Co. v. 
Shoemaker, 95 Tenn. 72. 

Texas. — Williams v. State, 40 
Tex. Crim. 565, 51 S. W. 224. 

Virginia. — Murphy v. Com., 2^ 
Gratt. 960. 

IVest Virginia. — Statute of West 
Virginia expresses rule of common 
law. White v. Perry, 14 W. Va. 
66, 78. 

"Communication." — As to the 
meaning of the word "communica- 
tion" when used in this connection, 
the supreme court of Indiana in 
Beyerline v. State, 147 Ind. 125, 45 
N. E. 772, says : "It is not every 
conversation between husband and 
wife, nor every word or act said or 
done by either in the presence of 
the other, that is protected under 
the seal of secrecy, but only such 
communications, whether by word or 
deed, as pass from one to the other 
by virtue of the confidence re- 
sulting from their intimate relations 
with one another. Where the crim- 
inal, in seeking advice and consola- 
tion, lays open his heart to his 
wife, the law regards the sacredness 
of their relation, and will not permit 
her to make known what he has 
thus communicated, even as it will 
not ask him to disclose it himself. 
But if what is said or done by either 



PRIVILEGED COMMUNICATIONS. 



167 



has no relation to their mutual trust 
and confidence as husband and wife, 
then the reason for secrecy ceases. 
Accordingly, many conversations and 
actions by and between husband and 
wife have been held not to be priv- 
ileged." 

In Parkhurst v. Berdell, no N. Y. 
386, 18 N. E. 123, 6 Am. St. Rep. 384, 
the court says: " But if the objection 
to the evidence had been timely, it 
would not have been available. The 
section of the Code referred to for- 
bids not all communications between 
husband and wife, but only confiden- 
tial communications. What are con- 
fidential communications within the 
meaning of the section? Clearly not 
all communications made between 
husband and wife when alone. If 
such had been the meaning it would 
have been so provided in general and 
simple terms. They are such com- 
munications as are expressly made 
confidential, or such as are of a con- 
fidential nature or induced by the 
marital relation." 

The word " communication " should 
be liberally construed. Com. v. Sapp, 
90 Ky. 580, 14 S. W. 834, 29 Am. 
St. Rep. 405. 

The relation of husband and wife 
being shown, the law absolutely pro- 
hibits testimony of the spouses con- 
cerning communications between 
them. Humphrey v. Pope, i Cal. 
App. 374, 82 Pac. 22^. 

In Stein v. Bowman, 13 Pet. (U. 
S.) 209, the court says that the law 
makes a spouse absolutely incom- 
petent to testify to any con- 
fidential communication made dur- 
ing marriage. The court uses 
this language : " The law does 
not seem to be entirely settled how 
far, in a collateral case, a wife may 
be examined on matters in which her 
husband may be eventually inter- 
ested. Nor whether in such a case, 
she may not be asked questions as to 
facts, that may, in some measure, 
tend to criminate her husband, but 
which afford no foundation for a 
prosecution. The decisions which 
have been made on these points, seem 
to be influenced by the circumstances 
of each case, and they are somewhat 
contradictory. It is, however, ad- 
mitted in all the cases, that the wife 
is not competent, except in cases of 
violence upon her person, directly to 



criminate her husband; or to dis- 
close that which she has learned from 
him in their confidential intercourse. 

Some colour is found in some of 
the elementary works for the sugges- 
tion that this rule, being founded on 
the confidential relations of the 
parties, will protect either from the 
necessity of a disclosure; but will 
not prohibit either from voluntarily 
making any disclosure of matters re- 
ceived in confidence; and the wife 
and the husband have been viewed, in 
this respect, as having a right to pro- 
tection from a disclosure, on the 
same principle as an attorney is pro- 
tected from a disclosure of the facts 
communicated to him by his client. 

The rule which protects an attor- 
ney in such a case, is founded on 
public policy, and may be essential 
in the administration of justice. But 
this privilege is the privilege of the 
client, and not of the attorney. The 
rule which protects the domestic 
relations from exposure, rests upon 
considerations connected with the 
peace of families. And it is con- 
ceived that this principle does not 
merely afford protection to the hus- 
band and wife, which they are at lib- 
erty to invoke or not, at their dis- 
cretion, when the question is pro- 
pounded; but it renders them incom- 
petent to disclose facts in evidence 
in violation of the rule. And it is 
well that the principle does not rest 
on the discretion of the parties. If 
it did, in most instances it would af- 
ford no substantial protection to per- 
sons uninstructed in their rights, and 
thrown off their guard and embar- 
rassed by searching interrogatories." 

In Owen v. State, 78 Ala. 425, 56 
Am. Rep. 40, the supreme court of 
Alabama states the rule as follows : 
" There is a well defined rule of law, 
that any transaction or communica- 
tion between husband and wife, 
which does not on its face appear to 
have been intended to be public, or 
to become so, is shielded by the 
sacredness of the relation from the 
public eye; and neither is a compe- 
tent witness to testify as to such 
transaction or communication, when 
the interests of the other are in- 
volved. This rule rests on the 
ground of public policy, and stands 
unchanged, even after the marriage 
relation is dissolved by the death of 

Vol. X 



168 



PRIVILEGED COMMUNICA TIONS. 



2. Privileged at Common Law. — Such communications were 
privileged at common law.*- 

3. Not Changed by Statute Removing General Incompetency. 

Change of common law rule by making one spouse a competent 
witness against the other does not affect the rule against disclosure 
of marital communications.'*'^ Nor does the statute permitting a 
party to an action to call his adversary as a witness.** 

4. Founded Upon Public Policy. — The rule is founded upon 
public policy.*^ 



one of the parties, or by judicial 
sentence. When, however, the con- 
duct or transaction is in no sense 
traceable to their relation of husband 
and wife and the confidence it in- 
spires, but in its nature is as likely 
to have occurred before the public 
as in private, there are authorities 
which hold that, after the marriage ii 
dissolved, the parties, or survivor, as 
tlie case may be, are competent, in 
civil cases, to testify for and against 
each other." 

In Dickerman v. Graves, 6 Cush. 
(Mass.) 308, 53 Am. Dec. 41, the 
rule is stated : " the proposition is 
no doubt fully established by the 
authorities, that even after the disso- 
lution of the marriage contract, the 
husband and wife are not in general 
admissible to testify against each 
other, as to any matters which oc- 
curred during the existence of that 
relation." This language limits the 
rule to cases in which one spouse 
is called to testify against the other; 
but the general rule is broader, and 
is as stated in the text. The statute 
under which Dickerman v. Graves 
was decided provided that husband 
and wife were not competent to tes- 
tify against each other as to what oc- 
curred during the marriage relation. 

42. United States. — Hopkins v. 
Grimshaw, 165 U. S. 342. 

District of Columbia. — McCartney 
V. Fletcher, 10 App. Gas. 572, 595. 

Illinois. — Joiner v. Duncan, 174 
111. 252, SI N. E. 323; Goelz V. 
Goelz, 157 111. 33, 41 N. E. 756; Geer 
V. Goudy, 174 111. 514, 51 N. E. 623. 

Kentucky. — Short v. Tinsley, i 
Met. 397, 401. 

Massachusetts. — Dexter v. Booth, 
2 Allen 559; Raynes v. Bennett, 114 
Mass. 424, 427; Hyde v. Gannett, 
175 Mass. 177, 55 N. E. 991- 

Minnesota. — Leppla v. Minnesota 

Vol. X 



Tribune Co., 35 IMinn. 310, 29 N. W. 
127. 

Mississippi. — StuhlmuUer v. Ew- 
ing, 39 Miss. 447, 461. 

Missouri. — Shanklin v. McCrack- 
en, 140 Mo. 348, 357, 4i S. W. 898; 
Moore v. Wingate, 53 Mo. 398, 409; 
Miller v. Miller, 14 Mo. App. 418. 

In Mercer v. Patterson, 41 Ind. 
440, it is said that the statute of In- 
diana which excludes from evidence 
communications between husband 
and wife during coverture creates no 
new law, but is a re-enactment of the 
common law. The same is said of 
Michigan statute on the subject. 
Hagerman v. Wigent, 108 Mich. 192, 
65 N. W'. 756. 

43. Not Affected by Change of 
Common Law — Mercer z'. State, 40 
Fla. 216, 24 So. 154, 74 Am. St. Rep. 
135; Gee v. Scott, 48 Tex. 510, 26 
Am. Rep. 331. 

44. National German-American 
Bank v. Lawrence, 77 Minn. 282, 79 
N. W. 1016; .y. c. on rehearing, 80 
N. W. 363. See Strode v. Frommey- 
er, 115 Mo. App. 220, 91 S. W. 167. 

45. Georgia. — Goodrum v. State, 
60 Ga. 509; Wilkerson v. State, 91 
Ga. 729, 738, 17 S. E. 990, 44 Am. 
St. Rep. 63. 

Illinois. — Reeves v. Herr, 59 111. 
81, Goelz •</. Goelz, 157 111. 33, 4i 
N. E. 756; Munford v. Miller, 7 111. 
App. 62. 

Kentucky. — McGuire v. Maloney, 
I B. Mon. 224. 

Michigan. — Maynard v. Vinton. 59 
Mich. 139, 152, 26 N. W. 401, 60 
Am. Rep. 276. 

Missouri. — State v. Kodat, 15S 
Mo. 125, 59 S. W. 73, 81 Am. St. 
Rep. 292, 51 L. R. A. 509. 

Ohio. — Sessions v. Trevitt, 39 
Ohio St. 259, 267. 

Pennsylvania. — Seitz v. Seitz, 170 
Pa. St. 71, 32 Atl. 578. 



PRIVILEGED COMMUNICATIONS. 



169 



5. Keason for Rule. — The rule is not based upon the common 
law fiction of the identity of husband and wife f^ nor upon an actual, 
voluntary confidence reposed in one spouse by the other,'*^ but upon 
the peculiarly confidential nature of the marriage relation.*^ 

6. Nature of Privilege. — A. Spouse^ Not Disqualified as Wit- 
ness. — The rule against the disclosure of confidential communica- 
tions between husband and wife does not disqualify one spouse as 
a witness against the other.*^ 

B. Matter Communicated Not Neicessarily Incompetent, 
Nor does the rule declare the communicated matter to be incom- 
petent in evidence.^" 

C. Spouse Prohibited to Testify Concerning Communica- 
tion. — The rule prohibits either spouse to give in evidence, mat- 
ter confidentially communicated to the other during the existence 
of their marital relations. ^^ 

Spouse Making Communication Permitted, But Not Compelled, to Testify. 
It has been held that the privilege belongs to the spouse making 



46. Not Eased Upon Identity.— 

Dunlap ;:'. Hearn, 2>7 Miss. 471. 

47. Nor Actual Confidence — State 
z: Jolly, 20 N. C. (3 Dev. & B. L.) 
no, 32 Am. Dec. 656. 

48. Founded Upon Relation — In 
Walker, Exr. v. Sanborn, 46 Me. 470, 
the court says that communications 
between husband and wife are sacred, 
and adds : " The exclusion, on this 
latter ground, rests not upon the na- 
ture of the evidence, but upon the 
source or mode in which the knowl- 
edge is obtained by the husband or 
wife." 

In State v. Jolly, 20 N. C, (3 Dev. 
& B. L.) no, 32 Am. Dec. 656, the 
court says : " But moreover the rule 
is not founded exclusively upon an 
actual voluntary confidence reposed 
by one of the married pair in the 
other — but also upon the unavoidable 
confidence which the intimacy of the 
marriage state necessarily produces." 

49. Munford v. Miller, 7 111. App. 
62. See also Palmer v. Henderson, 
20 Ind. 297. 

An Ohio statute (2d. subd.) pro- 
vided that husband and wife should 
be incompetent to testify " for or 
against each other or concerning any 
communication made by one to the 
other during coverture, whether 
called as a witness while that rela- 
tion subsists or afterwards." Under 
this statute it was held : " The second 
(referring to quoted provision) does 



not preclude them from being wit- 
nesses in any case, but renders them 
incompetent to give testimony upon 
a particular subject, and with respect 
to that is of general application." 
Robinson v. Chadwick, 22 Ohio St. 

527. 

50. State V. Gray, 55 Kan. 135, 
143. 39 Pac- 1050; Southwick v. 
South wick, 2 Sweeny (N. Y.) 234. 

51. Stem V. Bowman, 13 Pet. (U. 
S. 209; People V. Wood, 126 N. Y. 
249, 2y N. E. 362; State v. Jolly, 20 
N. C. (3 Dev. & B. L.) no; 32 Am. 
Dec. 650; Humphrey v. Pope, i Cal. 
App. 374, 82 Pac. 223 ; Owen v. 
State, 78 Ala. 425; 56 Am,. Rep. 40; 
Robinson v. Chadwick, 22 Ohio St. 

527. 

Where statute makes husband or 
wife of a person indicted for a crime 
a competent witness in all cases, and 
provides neither a husband nor wife 
can be compelled to disclose a con- 
fidential communication made by 
one to the other during their mar- 
riage, it is held that " this section 
does not leave the matter entirely to 
the discretion of the witness, but 
that the other party interested may 
object to any such communication, 
and that upon such objection being 
made the witness not onl}' cannot be 
compelled, but that he or she has no 
right to make the disclosure." People 
1: Wood, 126 N. Y. 249, 27 N. E. 
362. 

Vol. X 



170 



PRIVILEGED COMMUNICATIONS. 



the comimunication, and that he or she may be permitted to give it 
in evidence, but cannot be compelled to do so.^^ 

It is also held that neither spouse shall, without the consent 
of the other, testify to confidential communications.^^ Also, that 
matter confidentially communicated between spouses cannot be dis- 
closed without the consent of the one against whom the disclosure 
is sought.^* 

D. Not Dependent Upon. — a. Method of Coimmunicating. 
It is immaterial that evidence of confidential communication at- 
tempted to be elicited was stated in a negative form.^^ 

b. Spouse's Relation to Case in Which Testimony is Offered. 
It has been held that the privilege may be claimed irrespective of 
the fact that the spouse making the communication in question, 
was not a party to the action in which the testimony was offered.^*^ 



52. To Whom Belongs May- 

nard v. Vinton, 59 jNlich. 139, 26 N. 
W. 401 ; 60 Am. Rep. 276. But see 
People V. Wood, 126 N. Y. 249, 27 
X. E. 362. 

In Stickney v. Stickney, 131 U. S. 
227, a contest arose l)etween a mar- 
ried woman and her husband's heirs 
concerning her separate property. 
The wife offered to testify as to cer- 
tain directions which she had given 
the husband concerning the disposi- 
tion of her money in his possession. 
Her testimony was objected to as 
calHng for privileged communication. 
Held, that the testimony was admis- 
sible. The controlling statute. Rev. 
Stat. U. S., § § 876, 877, relating to 
evidence in the District of Columbia, 
provided : " Nor shall a husband be 
compellable to disclose any communi- 
cation made to him by his wife dur- 
ing the marriage, nor shall a wife be 
compellable to disclose any communi- 
cation, made to her by her husband 
during the marriage." The court 
held that, under this statute, the wife 
was at liberty, though not compell- 
able, to testify to the directions which 
she had given her husband. But in 
Hopkins v. Grimshaw, 165 U. S. 
342, it was held that under act of July 
2, 1864 (13 Stat, at large 374) a wife 
was incompetent to testify to conver- 
sations between herself and her hus- 
band when she was not a party nor 
interested in the suit in which her 
testimony was offered. In this case 
action was brought by heirs of a 
deceased person against other heirs, 
to enforce a resulting trust in certain 

Vol. X 



real property. Decedent's widow, 
who was not a party to the action, 
testified to statements and acts of her 
husband which tended to show 
that he proposed purchasing the 
land in question. The controll- 
ing statute (13 Rev. Stat. 374), 
provided " nor shall any husband be 
compellable to disclose any commun- 
ication made to him by his wife dur- 
ing the marriage nor shall any 
wife be compellable to disclose 
anj' communication made to her 
by her husband during the mar- 
riage." Held, that the widow's 
testimony was incompetent. 

In Southwick v. Southwick, 2 
Sweeny (N. Y.) 234, it is held that 
a statute which provides that neither 
spouse shall be " compellable " to 
testify to confidential communica- 
tions, did not prevent voluntary dis- 
closure of such communications. 

53. Humphrey v. Pope, i Cal. 
App. 374, 82 Pac. 223. Same opinion 
expressed, though not necessary to 
decision in People v. Wood, 126 N. 
Y. 249, 270, 27 N. E. 362. Maynard 
■:■. Vinton, 59 Mich. 139; 26 N. W. 
401, 60 Am. Rep. 276. 

54. People v. Mullings, 83 Cal. 
138, 23 Pac. 229, 17 Am. St. Rep. 223. 

55. Moore v. Wingate, 53 Mo. 398. 
410; State V. Jolly, 20 N. C. (3 Dev. 
& B. L.) no, 32 Am. Dec. 656; 
Stanford v. Murphy, Admr., 63 Ga. 
410; Perry v. Randall, 83 Ind. 143. 

56. Moore v. Wingate, 53 Mo. 398, 
409. decided under Missouri statute, 
which, after removing the common 
law disqualification of married 



PRIVILEGED COMMUNICATIONS. 



171 



7. Essentials. — A. Relation. — It is essential to a claim of 
privilege, that at the time the communication in question was made, 
the actual, legal relation of husband and wife existed between the 
parties between whom it was made.^" 

Not Affected by Separate Domicil. — The rule is not afifected by the 
fact that the spouses are living apart.^^ 

B. Confidential. — It is also essential that the communication 
be made by reason of the confidence necessarily incidental to the 
marriage relation.^'* 

Test. — ■ Whether a communication is to be considered as confi- 
dential depends upon its character, as well as upon the relation of 



women as witnesses, states : " Pro- 
vided that nothing in this section 
shall be so construed as to authorize 
or permit any married woman, while 
the relation exists, or subsequently, 
to testify to any admissions or con- 
versations of her husband, whether 
made to herself or third persons." 

57. Wells V. Fletcher, 5 Car. & 
P. (Eng.) 12. 

Cole V. Cole, 153 HI- 585. 3.8 N. E. 
703, was an action for assignment 
of dower and partition of real estate 
between two women, each claiming 
to be the widow of deceased, who 
had gone through a marriage cere- 
mony with each. It was sought to 
be shown that deceased had admit- 
ted to the second wife that he had 
never been divorced from the first. 
This testimony was objected to as 
calling for privileged communication. 
The testimony was admitted. In af- 
firming this judgment the supreme 
court uses this language: "It was, 
however, also shown by the testi- 
mony of the Illinois wife, Amelia 
Hahn; and by one of his brothers, 
that George Cole admitted that he 
was not divorced from his wife Em- 
ma. But it is contended neither of 
these witnesses was competent to 
prove the fact — the former because 
she testified to conversations or ad- 
missions between herself and Cole 
during the continuance of the mar- 
riage relation between them, and the 
brother because he was a party in 
interest. The position as to Amelia 
Hahn is, that she was only compe- 
tent to testify to conversations and 
admissions upon clear proof that she 
never was his wife, and that to ad- 
mit her testimony is assuming the 
very fact sought to be proved. Posi- 



tive proof that the wife of a former 
valid marriage was living was made 
by other testimony. 'Prima facie, 
every person is competent to testify 
on all issues. If he is to be ex- 
cluded by the policy of the law, the 
burden is on the party objecting to 
him to show the reason for such ex- 
clusion. . . . Where a man and 
woman lived, as they supposed, as 
husband and wife, but separated in 
consequence of the woman discover- 
ing a former husband believed to be 
dead was still alive, it was held that 
the woman was a competent witness 
against such a man with whom she 
thus lived as a second husband, even 
as to facts she learned from him 
during their cohabitation, for when 
a former existing marriage is con- 
ceded, no subsequent marriage, no 
matter how solemn, can operate to 
invest witnesses with incapacities 
which a valid marriage alone can 
establish." Wharton on Evidence, 
(2d ed.) sec. 421. Greenleaf on 
Evidence lays down the rule in the 
following language : ' On the other 
hand, upon a trial for polygamy, the 
marriage being proven and not con- 
troverted, the woman with whom the 
second marriage was had is a com- 
petent witness, for the second mar- 
riage was void.' i Greenleaf, sec. 

3.39" 

58. Parties Living Apart. 

Murphy v. Com., 23 Gratt. (Va.) 960. 

59. Alabama. — Gordon, Rankin 
& Co. V. Tweedy, 71 Ala. 202, 210; 
Troy Fertilizer Co. v- Logan, 90 Ala. 
32s, 8 So. 46. 

Indiana. — Beitman v. Hopkins, 
109 Ind. 177, 9 N. E. 720; Reynolds 
V. State, 147 Ind. 3, 46 N. E. 31. 

Kentucky. — McGuire v. Moloney, 

Vol. X 



172 



PRIVILEGED COMMUNICATIONS. 



1 B. Mon. 224; Elswick v. Com., 13 
Bush 155; English's Admr. v. Crop- 
per, 8 Bush 292. 

New York. — Babcock v. Booth, 

2 Hill 181. 38 Am. Dec. 578. 

0/n'o. — Stober v. McCarter, 4 
Ohio St. 513. 

Pennsylvania. — Seitz v. Seitz, 170 
Pa. St. 71, 2>2 Atl. 578. 

Texas. — Edwards v. Dismukes, 
S:S Tex. 611; Eddy v. Boslev, 34 Tex. 
Civ. App. 116, 78 S. W. 565. _ 

Vermont. — In re Buckman's Will, 
64 Vt. 313, 24 Atl. 252. 33 Am. St. 
Rep. 930. 

In Beyerline v. State, 147 Ind. 125, 
45 N. E. 772, the court says : " It is 
not every conversation between hus- 
band and wife, nor every word or 
act said or done by either in the 
presence of the other, that is pro- 
tected under the seal of secrecy, but 
onl)^ such communications, whether 
by word or deed, as pass from one 
to the other by virtue of the confi- 
dence resulting from their intimate 
relations with one another. Where 
the criminal, in seeking advice and 
consolation, lays open his heart to 
his wife, the law regards the sacred- 
ness of their relation, and will not 
permit her to make known what he 
has thus communicated, even as it 
will not ask him to disclose it him- 
self. But if what is said or done 
by either has no relation to their 
mutual trust and confidence as hus- 
band and wife, then the reason for 
secrecy ceases. Accordingly, many 
conversations and actions by and be- 
tween husband and wife have been 
held not to be privileged." 

In French v. Ware, 65 Vt. 338, 26 
Atl. 1096, the court says : " It may 
be difficult to frame a definition 
which will be applicable to all the 
varying circumstances of the married 
life. Doubtless some latitude must 
be given to the trial court, in deter- 
mining whether the offered testi- 
mony, under the existing circum- 
stances of the case, involves the dis- 
closure of matters of confidence- In 
New Hampshire, by statute, the hus- 
band and wife are made competent 
witnesses for or against each other 
on all matters except such as would 
be a violation of marital confi- 
dence. In Clements v. Marston, 52 
N. H. 38, Judge Sargent says: 'And 

Vol. X 



this violation must be something 
confided by one to the other, simply 
and specially as husband or wife, 
and not what would be communicated 
to any other person under the same 
circumstances.' In Parkhurst v. 
Berdell, no N. Y. 386, (6 Am. St. R. 
384), it is said: 'The section of the 
code referred to forbids not all com- 
munications between husband and 
wife, but only confidential communi- 
cations. What are confidential com- 
munications? . . . They are such 
communications as are expressly 
made confidential, or such as are of 
a confidential nature, or induced by 
the marital relation. Ordinary con- 
versations relating to matters of 
business, which there is no reason to 
suppose he would have been unwil- 
ling to hold in the presence of any 
person, are not confidential.' In these 
decisions we have carefully guarded 
statements, both positive and nega- 
tive, of what are, and what are not, 
confidential communications. Their 
nature is so dependent upon the ex- 
isting circumstances of each case that 
it would be difficult to enlarge or 
limit these statements." 

In Sackman v. Thomas, 24 Wash. 
600, 64 Pac. 819, a woman was per- 
mitted to testify that certain prop- 
erty in controversy between her hus- 
band and a third person, was pur- 
chased in part with money given by 
her to him. To same effect, see In 
re Van Alstine's Estate, 26 Utah 193, 
72 Pac. 942. 

What Communications Confiden- 
tial. — In Millspaugh v. Potter, 62 
App. Div. 521, 71 N. Y. Supp. 134. 
the court says : " In Parkhurst v. 
Berdell, no N. Y. 386, 18 N. E. 123, 
Judge Earl assumes to define what 
class of communications is by this 
section protected. He says : ' What 
are confidential communications, 
within the meaning of this section? 
Clearly, not all communications made 
between husband and wife when 
alone. . . . They are such com- 
munications as are expressly made 
confidential, or such as are of a con- 
fidential nature or induced by the 
marital relation.' This definition is 
not wholly satisfactory, because it 
does not define what are communica- 
tions of a confidential nature. It is 
probably impossible to give an ex- 



PRIVILEGED COMMUNICATIONS. 



173 



the parties.^*' If a topic is such as would not have been discussed 
by husband and wife but for the relation between them, communi- 
cation on the subject is privileged.^^ 

a. Privileged Though Not ConMential. — But it has been held 
that all communications between husband and wife are privileged, 
and the rule is not limited to communications concerning subjects 
which are confidential in their nature.*^^ 



act and comprehensive definition of 
the term ' confidential communica- 
tions.' Defining by exclusion, how- 
ever, we think it may be safely said 
that unfounded charges of im- 
morality, abusive language, profanity 
towards a wife, are not such com- 
munications as the legislature in- 
tended to protect ; and, when the 
plaintiff would charge another with 
alienating the affections of his wife, 
he cannot shield himself behind this 
statute from proof by the wife of 
such acts as were in this action prop- 
erly pleaded and sought to be 
proven." 

In Parkhurst v. Berdell, no N. Y. 
386, 18 N. E. 123, 6 Am. St. Rep. 
384, action was brought to compel 
defendant to account for certain se- 
curities of plaintiff's appropriated by 
him. During the progress of the 
trial, defendant's wife, upon exam- 
ination by plaintiff's counsel, gave 
evidence of conversations with her 
husband, when alone, concerning 
plaintiff's securities taken by him, his 
obligation to plaintiff therefor, and 
his promise to give plaintiff security. 
She was cross-examined as to the 
same conversations. After deciding 
that defendant waived his privilege 
by failing to object when questions 
were asked, the court says : " But if 
the objection to the evidence had 
been timely, it would not have been 
available. The section of the Code 
referred to forbids not all communi- 
cations between husband and wife, 
but only confidential connnunications. 
What are confidential communica- 
tions within the meaning of the 
section? Clearly not all communica- 
tions made between husband and 
wife when alone. If such had been 
the meaning it would have been so 
provided in general and simple 
terms. They are such communica- 
lions as are expressly made confiden- 



tial, or such as are of a confidential 
nature or induced by the marital re- 
lation." 

In Ward v. Oliver, 129 Mich. 300, 
88 N. W. 631, the Michigan statute 
in question provided that " a hus- 
band shall not be examined as a wit- 
ness for or against his wife without 
her consent." The statute provided 
further: "Nor shall either (husband 
or wife), during the marriage or 
afterwards, without the consent of 
both, be examined as to any com- 
munication made by one to the other 
during the marriage." Held, that 
under this statute such communica- 
tions only as were confidential were 
privileged. 

60. Seitz V. Seitz, 170 Pa. St. 71, 
2>2 Atl. 578. 

Privilege extends to such acts 
only as are confidential in their na- 
ture. Eddy V. Bosley, 34 Tex. Civ. 
App. 116, 78 S. W. 565; Edwards v.- 
Dismukes, 53 Tex. 611; Rudd v. 
Rounds, 64 Vt. 432, 25 Atl. 438; 
Davis V. Weaver, 46 Ga. 626; Sack- 
man V. Thomas, 24 Wash. 600, 64 
Pac. 819; Parkhurst v. Berdell, [lo 
N. Y. 386, 18 N. E. 123, 6 Am. 
St. Rep. 384. 

61. Warner v. Press Pub. Co., 
132 N. Y. 181, 30 N. E. 393. 

62. Newstrom v. St. Paul & D. R. 
Co., 61 Minn. 78, 63 N. W. 253; 
People V. Mullings, St, Cal. 138, 23 
Pac. 229, 17 Am. St. Rep. 223 ; Hert- 
rich V. Hertrich, 114 Iowa 643, 87 
N. W. 689, 89 Am. St. Rep. 389; 
Sutcliffe V. Iowa Traveling Men's 
Assn., 119 Iowa 220, 93 N. W. 90, 97 
Am. St. Rep. 298; Estate of Low, 
Myrick (Cal.) 143; Com. v. Hayes, 
14s Mass. 289, 14 N. E. 151. 

In Leppla v. Minnesota Tribune 
Co., 35 Minn. 310, 29 N. W. 127, the 
statute applied provided that neither 
husband nor wife could " during the 
marriage or afterward, be, without 

Vol. X 



174 



PRIVILBGED CO MM UNICA TIONS. 



the consent of the other, examined 
as to any communication made by 
one to the other during tiie mar- 
riage." (Gen. Stat. Minn., c. 7Z, 
§ lo). The court says: "The re- 
spondent contends that the statute 
only applies to communications of a 
confidential nature, and that those 
testified to were not of that kind. 
The language of the statute will not 
admit of such limitations. The 
word ' communication ' is used with- 
out qualification, and any such limi- 
tation as that suggested would be 
extremely difficult of application. 
It would introduce a separated issue 
in each case as to whether or not 
the communication was of a confi- 
dential character. To enable the 
court to judge as to its character, 
the communication would have to be 
disclosed, and so the very mischief 
committed which was designed to be 
prevented. There was formerly 
some question as to whether, at com- 
mon law, the rule included com- 
munications between husband and 
wife which in their nature did not 
seem to be confidential, though made 
in private conversation ; but it was 
finally quite generally held that it 
mcluded all conversations between 
husband and wife, though on sub- 
jects not confidential in their nature. 
O'Connor v. Majoribanks, 4 Man. & 
G. (Eng.) 435; Dexter v. Booth, 2 
Allen (Mass.) 559. 

By using the word ' communica- 
tion ' without qualification or limi- 
tation, in our statute, we think it 
was the intention to adopt this rule.'' 
Same ruling was made in Campbell 
V. Chace, 12 R. I. 2>i2>, under a stat- 
ute, which, after making husband 
and wife competent as witnesses, 
provided " neither shall be permitted 
to give any testimony tending to 
criminate the other, or to disclose 
any communication made to him or 
her, by the other, during their mar- 
riage." But see Michigan statute of 
similar purport construed in case of 
Ward V. Oliver, quoted in note 59, 
under II, 7, B. 

In Scroggin v. Holland, 16 Mo. 
419, the court cites O'Connor v. Ma- 
joribanks, 4 Man. & G. (Eng.) 435, 
442, and states that in that case the 
court rejected the distinction be- 
tween communications which are of 

Vol. X 



a confidential nature, and those 
which are not. The Missouri court 
says : " And it was held, that in an 
action of trover by the personal 
representatives of a deceased hus- 
band, his widow was not a compe- 
tent witness for the defendant, to 
prove that with her husband's au- 
thority she pledged the goods with 
him. We concur in the views above 
expressed, and see the difficulty of 
distinguishing between commmiica- 
tions which are confidential, and 
those which are not so. It is ob- 
vious too, that if husband and wife 
were conscioiis that information de- 
rived from other sources than those 
of' trust and confidence, could be 
evidence against each other, means 
would be resorted to, with a view 
to prevent, in many instances, infor- 
mation from being so acquired, which 
would be a source of endless broils 
and difficulties. The husband would 
not be willing that the wife should 
be in a situation to acquire this in- 
formation. He might use means to 
prevent her obtaining it, and thus 
impose restraints which would fill 
her with mistrust and anxiety. 
This opinion is sustained by a great 
weight of authority in the Ameri- 
can courts. Stein v. Bowman, 13 
Pet. 219; Robbins v. King, 2 Leigh, 
142; Brewer v. Ferguson, 11 Hum- 
phreys, 565." Scroggin v. Holland 
was not decided upon the ground 
of privileged communications, the 
court holding that a widow is a 
competent witness for the personal 
representative of her deceased hus- 
band. 

" It is safest we think to hold 
that whatever is known by reason of 
that intimacy should be regarded as 
knowledge confidentially acquired, 
and that neither should be allowed 
to divulge it to the danger or dis- 
grace of the other." State v. J0II3', 
20 N. C. (3 Dev. & B. L.) no, 22 
Am. Dec. 656. 

In Reeves v. Herr, 59 111. 81, the 
court says : " What was sought to 
be proved by the witness here, was 
a conversation between the defend- 
ant and the husband, before and in 
the presence of the witness, his wife, 
which is claimed to have amounted 
to an admission, by the defendant, 
of the account sued upon, and a prom- 



PRIVILEGED COMMUNICATIONS. 



175 



Rule Applies, Though Spouse Called by Representative of the Other. 
It has been held that this rule applies, even when one spouse is 
called as a witness by the personal representative of the other.*^^ 

b. Matters Essential to Confidence. — Before a communication 
can be considered as confidential it must appear that it was ( i ) 
Private and intended to be kept so. (2) Induced by the marriage 
relation. 

(1.) Private. — No communication between husband and wife is 
privileged unless it was private.*'* 

(A.) Contra. — Privileged Though Not Private. — But it is held 
under Rhode Island statute referred to in note 62 ante that commu- 
nications between husband and wife are privileged, although made 
in presence of third persons,*'^ and a similar ruling has been made 
in Illinois.'^'' The supreme court of Kansas has indicated a similar 
opinion, although not so deciding."^ 

(B.) Private, Although in Presence oe Child oe Parties. — It has 
been held that a conversation between husband and wife is private, 
although held in presence of their child, who is too young to com- 
prehend it f^ also if held in presence of child who takes no part 
in it.«'' 

Remark Addressed to Child. — Also that a remark addressed to 
their child by one spouse in presence of the other is privileged."^" 



ise on his part, within the period 
fixed by the statute of limitations, to 
pay it. We do not find from the 
authorities, that this 'rule of ex- 
chision is confined to subjects which 
are confidential in their nature, and 
we think it should apply whenever 
the wife is called upon to disclose 
any matter, which came to her 
knowledge in consequence of the 
marriage relation." 

63. Called by Representative. 
Reeves v. Herr, 59 111. 81. 

64. Mainerd v. Reider, 2 Tnd. 
App. 115, 28 N. E. 196; Queener v. 
Morrow, i Cold. (Tenn.) 123; Al- 
lison V. Barrow, 3 Cold. (Tenn.) 
414; Cole V. State (Tex. Crim.), 88 
S. W. 341- 

" Confidential communications be- 
tween husband and wife are such as 
pass between them when they are 
alone." Long v. Martin, 152 Mo. 
668. 54 S. W. 473. 

65. Campbell v. Chace, 12 R. 
I. 333- 

66. Reeves v. Herr, 59 III. 81. 
In this case the court says : " The 
conversation ui question, though not 
between the witness an<l her hus- 
band, but between him and the de- 



fendant, yet, as it occurred between 
them in the ptesence and hearing of 
the wife, we must regard that she 
came to the knowledge of it by 
means of her situation as wife, that 
she could not properly be admitted 
to testify concerning it against the 
representative of her husband, nor 
should she be admitted to testify in 
his favor." 

67. Eagon v. Eagon, 60 Kan. 697, 
57 Pac. 942. 

68. Presence of Young Child. 
Schierstein v. Schierstem, 68 Mo. 
App. 205. 

69. Presence of Child Who Takes 
No Part. — Hopkins v. Grinshaw, 
165 U. S. 342; Jacobs V. Hesler, 113 
I\Iass. 157. 

But in Lyon v. Prouty, 154 Mass. 
488, 28 N. E. 908, it was held that 
a husband might testify to conver- 
sations between himself and wife in 
presence of their daughter, aged 
fourteen. The court said that the 
subject of the conversation was a 
matter the daughter would naturally 
be interested in and would attract 
her attention. 

70. In Schierstein v. Schierstein, 
68 Mo. App. 205, a husband, in the 

Vol. X 



176 



PRIVILEGED COMMUNICATIONS. 



(C.) Third Persons. — Communications in presence of third per- 
son are not privileged.'^ 

(2.) Intended To Be Kept Private. — A communication made by 
one spouse to the other, which was intended to be made known, is 
not privileged.^- 

Dying Declaration. — A widow may give her husband's dying 
declaration in evidence."^ This ruling has been based upon the the- 



presence of his wife, addressed a 
remark to their nine months' old 
child, indicating that he feared his 
wife would poison him. Held, that 
this remark was privileged. 

71. See II, 8, B, i (I.), Post. 

72. Crook v. Henry, 25 Wis. 569; 
Caldwell v. Stuart's Exrs., 2 Bailey 
(S. C.) 574; 

In McGuire v. Maloney, i B. 
Mon. (Ky.) 224, it was held that 
a wife was competent to testify con- 
cerning the execution of her hus- 
band's will, and that, after execu- 
tion, he handed it to her. The 
court cites Allison's Devisees v. Al- 
lison's Heirs, 7 Dana (Ky.) 90, 
and Singleton's Devisees v. Single- 
ton's Heirs, 8 Dana (Ky.) 315, as 
authorities, but it does not appear 
that the question of competency was 
raised in either of those cases. 

A letter found among the papers 
of a deceased person, in the hand- 
writing of his wife, addressed " To 
whom it may concern," and refer- 
ring to the cause of their separation, 
and speaking of him in the third 
person, is not privileged. Hoyt v. 
Davis, 21 Mo. App. 235. The court 
says that the paper was not privi- 
leged, as it was evidently intended to 
be communicated to all " con- 
cerned " in knowing the cause of 
their separation. 

In Hester v. Hester, 15 N. C. (4 
Dev. L.), 228, the court says: "The 
rule upon the subject of confidential 
communications is not denied ; the 
sanctity of such communications 
will be protected. Persons con- 
nected by the marriage tie have, as 
was said at the bar, the right 
to think aloud in the presence of 
each other. But the question re- 
mains, what communications are to 
be deemed confidential? Not those, 
we think, which are made to the 
wife, to be by her communicated to 
others; nor those which the hus- 

Vol. X 



band makes to the wife as to a mat- 
ter of fact upon which a thing is 
to operate after his death, when it 
must be the wish of the husband, 
that the operation should be accord- 
ing to the truth of the fact, as es- 
tablished by his declaration. Sup- 
pose a husband to disclose to his 
wife that he had given to one of 
their children a horse, can she not 
after his death prove that as against 
the executor? Suppose also that 
the declaration to which the wife 
was called had been made to her 
and another, there is no reason why 
she, if she will, may not testify to 
it, as well as the other. Why? Be- 
cause it is then apparent that it was 
not confidential between the hus- 
band and wife, in the sense of the 
rule. The same reason equally ap- 
plies, when from the subject of the 
conversation, it is obvious he did 
not wish it concealed, but on the 
contrary must have desired to make 
it known, and through her, if he 
found no other means of doing so." 

In Hagerman v. Wigent, 108 
Mich. 192, 65 N. W. 756, a wife 
entrusted certain property to her 
husband to be delivered after her 
death. Held, that he could testify 
as to the delivery of a mortgage in- 
cluded among such property, and as 
to instructions accompanying deliv- 
ery, the court stating that the cir- 
cumstances indicated an expectation 
that the communication be disclosed. 

In Weston v. Weston. 86 App. 
Div. 159, 83 N. Y. Supp. 528, held 
that letter written by wife to third 
person and given by her to her hus- 
band to be posted, is not a confiden- 
tial communication. 

73. State z'-. Ryan, 30 La. Ann. 
1 176; Arnett v. Com., 114 Ky. 593, 
71 S. W. 635; Bright V. Com., 27 
Ky. L. Rep. 677, 86 S. W. 527; Hil- 
bert V. Com., 21 Ky. L. Rep. 537, 
51 S. W. 817. 



PRIVILEGED COMMUNICATIONS. 



Ill 



ory that the husband intended his declaration to be made known 
in the interests of justice/* 

(3.) Induced by Relation. — Communications which are not in- 
duced by the relation are non-privilegedJ^ 

C. Knowledge: Acquired During Relation. — But the priv- 
ilege is limited to knowledge obtained while the relation existed, 
and either spouse may testify concerning matters, knowledge of 
which was acquired prior or subsequent to marriage.'** 

8. Extent of Privilege. — A. What Matters Privileged. — a. 
All Knozvlcdge. — The privilege extends to all knowledge acquired 
by one spouse from the other during the existence of the marriage 
relation, and by reason of the confidence arising therefrom, irre- 
spective of the means by which it was acquired."'^ 



74. Theory. — Arnett v. Com., 
114 Ky. 593. 7i S. W. 635. 

75. Warner v. Press Pub. Co., 
132 N. Y. 181, 30 N. E. 393; Beit- 
man z'. Hopkins, 109 Indiana 177, 9 N. 
E. 720 ; Schniied v. Frank, 86 Ind. 250 ; 
Reynolds v. State, 147 Ind. 3, 46 N. 
E. 31; People V. Marble, 38 
Mich. 117; French v. Ware, 65 
Vt. 338, 26 Atl. 1096; Renshaw v. 
First Nat. Bank (Tenn. Ch. App.), 
63 S. W. 194- 

A wife may be compelled to testi- 
fy that her husband compelled her 
to forge a promissory note (Beyer- 
line V. State, 147 Ind. 125, 45 N. E. 
772) ; also that he had stated to her 
he had recognized a certain person 
as one who had committed a rob- 
bery (Reynolds v. State, 147 Ind. 3, 
9, 46 N. E. 31). 

In a divorce suit a woman may 
testify that her husband boasted to 
her that he had had intimate rela- 
tions with other women. Seitz v. 
Seitz, 170 Pa. St. 71, 32 Atl. 578. 

But in California it is held that 
in an action for alienation of hus- 
band's affections, wife cannot testi- 
fy concerning husband's statements 
as to his relations with defendant. 
Humphrey v. Pope, i Cal. App. 374, 
82 Pac. 223. 

Acts of Cruelty. — In E. W. M. 
V. J. C. M., 2 Tenn. Ch. App. 463, 
it is held that in a divorce suit wife 
may testify concerning her hus- 
band's acts of cruelty. The court 
says such matters are " matters 
which occur not by virtue of, or in 
consequence of, the marital rela- 
tion, but in spite of and in violation 

12 



of the marital relation." In the same 
case a sealed letter sent by husband 
to wife and containing expressions 
of cruelty was held admissible. 

Fraud Against Wife. — Wife may 
testify to acts showing fraud prac- 
ticed against her by her husband. 
Edwards v. Dismukes, 53 Tex. 605. 

76. Wife may testify concerning 
knowledge acquired prior to mar- 
riage. Stillwell V. Patton, 108 Ma 
352, 18 S. W. 1075. 

Subsequent to Termination. — Wife 
may testify as to knowledge acquired 
subsequent to divorce. Crose v. Rut- 
ledge, 81 111. 266. 

After death of husband wife may 
testify concerning information ac- 
quired after his death. Gillespie v. 
Gillespie, 159 111. 84, 42 N. E. 305. 

After divorce a spouse may testify 
for or against the other concerning 
facts which did not come to knowl- 
edge of witness during the existence 
of the relation. Inman v. State, 6$ 
Ark. 508, 47 S. W. 558. 

Confession After Divorce. — Wife 
may prove confession of husband 
made after divorce. White v. State^ 
40 Tex. Crim. 366, 50 S. W. 705. 

Letter written by one spouse to 
another after divorce is not privi- 
leged. In re Van Alstine's Estate, 
26 Utah 193, y2 Pac. 942. 

77. All Knowledge Privileged^ 
See cases cited under II, i, n, 41, 
ante, also; Reeves v. Herr, 59 IlL 
81; Orr V. Miller, 98 Ind. 436, 445; 
Davis V. State, 45 Tex. Crim. 292, 77 
S. W. 451. 

All knowledge, verbally communi- 
cated, or acquired by exercise of 

Vol. X 



178 



PRIVILEGED COMMUNICATIONS. 



sense of sight, is privilege. State v. 
Jolly, 20 N. C. (3 Dev. & B. L.) no, 
32 Am. Dec. 656. 

In Stanford v. Murphy, Admr., 63 
Ga. 410, 416, the court says : " Any 
confidential communication from 
husband to wife may not be divulged 
in any court, for the reason that the 
fact communicated was disclosed in 
the privacy of the marital relation 
and the peace of the household might 
be disturbed if it were divulged. 
Upon precisely the same principle, 
any knowledge acquired by the wife 
on account of the trust confided to 
her by her husband ot any fact 
whatever should be excluded ; 
whether the husband told it to her 
out of his mouth or showed it to 
her in a letter, or pointed it out with 
his hand, or locked it up and gave 
to her alone access to it by entrust- 
ing her with the key. If competent 
to sv.ear for him, she is competent to 
swear against him; and suppose that 
in this case she had been introduced 
by the complainants to show that 
she kept her husband's papers in 
that drawer, and that this note never 
was seen among them until the death 
of the testator, and she had so 
sworn, what a disturbance would 
have been produced between man and 
wife; and what would have been left 
of peace in that home ! The rule 
must work both v.-ays; she must not 
be allowed to testify about facts as- 
certained by reason of such confi- 
dential intercourse at all." Wil- 
liams V. State, 40 Tex. Crim. 565, 
51 S- W. 224; Mercer v. State, 40 
Fla. 216, 24 So. 154, 74 Am. St. 
Rep. 135. 

In Perry v. Randall, 83 Ind. 143, 
the court says : " It was not neces- 
sary that the appellant's communi- 
cation to his wife, the witness, in re- 
lation to the monej% should be ex- 
pressed in words." But see Bej-er- 
j line V. State, 147 Ind. 125, 45 N. E. 
772, and Poison v. State, 137 Ind. 
I 519, 35 N. E. 907- 

Assignment of claim to wife by 
husband is not a " communication." 
Hanks v. VanGarder, 59 Iowa 179, 
13 N. W. 103. 

In Com. V. Sapp, 90 Ky. 580, 14 
S. W. 834, 29 Am. St. Rep. '405, the 
court quotes Kentucky statute as fol- 
lows : " Neither husband nor wife 



shall be competent for or against 
each other, or concerning any com- 
munication made by one to the other 
during marriage, whether called 
while fliat relation subsisted, or 
afterwards." As to this provision 
the court says : " The word ' com- 
munication,' therefore, as used in 
our statute, should be given a liberal 
construction. It should not be con- 
fined to a mere statement by the 
husband to the wife or vice versa, 
but should be construed to embrace 
all knowledge upon the part of the 
one or the other obtained by reason 
of the marriage relation, and which, 
but for the confidence growing out 
of it, would not have been known to 
the party." To same effect, see 
Perry v. Randall, 83 Ind. 143 ; Smith 
z: Smith, 77 Ind. 80. 

Confession. — Private confession 
of guilt made by wife to husband is 
privileged in case for crini. con. 
Sanborn v. Gale, 162 Mass. 412, 38 
N. E. 710, 26 L. R. A. 864. 

Contra. — But voluntary confes- 
sion of crime is not privileged. See 
note 78, under II, 12, G. 

In Briggs v. Briggs (R. I.), 26 
Atl. 198, one statute permitted hus- 
band or wife to testify for or against 
each other; and another forbade 
either to testify concerning confiden- 
tial communications. Held, that the 
first statute was subject to the sec- 
ond, and that husband was incompe- 
tent to testify as to confession of 
crime made by his wife. 

When husband and wife are 
jointly indicted for murder, but tried 
separately, the wife cannot be com- 
pelled to testify that her husband 
told her, before the murder, that he 
was going to get a pistol. Williams 
V. State, 40 Tex. Crim. 565, 51 S. 
W. 224. 

" The matter that the law prohibits 
either the husband or wife from tes- 
tifying to as witnesses includes any 
information obtained by either dur- 
ing the marriage, and by reason of 
its existence." Mercer v. State, 40 
Fla. 216, 24 So. 154, 74 Am. St. 
Rep. I3S- 

Wife cannot testify concerning 
husband's statement to the effect that 
a certain deed had not been de- 
livered. Toole V. Toole, 107 Ga. 
472, 23, S. E. 686. 



Vol. Z 



PRIVILBGBD COMMUNICATIONS. 



179 



A wife cannot testify as to her husband's statements to her con- 
cerning the nature and effect of an instrument."^ Nor can a hus- 
band give in evidence statements made by him to his wife showing 
whether or not he intended to abandon her/^ 

(1.) Fact or Matter of Communication. — Neither spouse can be 
heard to reveal the fact or the matter of a communication made by 
the other.so 

(2.) Silence, — Whatever transpires between husband and wife is 
privileged, whether acquired positively through verbal statement, 
or by exeicise of the sense of sight, or negatively, by way of si- 
lence.^^ 

(3.) Threats (A.) Against Spouse. — Thus it has been held that 

one spouse cannot testify to vituperative epithets addressed to him or 
her by the other f~ and that such testimony cannot be admitted even 



In an action b}^ a wife against an- 
other woman to recover damages for 
alienation of husband's affection, 
plaintiff cannot testify concerning 
husband's statements to her as to his 
relations with defendant, or as to his 
desire to obtain a divorce from 
plaintiff', and his reason therefor. 
Humphrey v. Pope, i Cal. App. 374, 
82 Pac. 223. 

A widow will not be permitted to 
testify concerning her husband's 
statements to her as to his pedigree. 
Brooks V. Francis, 3 McArthur (D. 
C.) 109. 

78. Toole V. Toole, 107 Ga. 472, 
33 S. E. 686. 

79. Dye v. Davis, 65 Ind. 474. 

80. Goodrum v. State, 60 Ga. 
509; Van Zandt v. Schuyler, 2 Kan. 
App. 118. 

81. State V. Jolly, 20 N. C. (3 
Dev. & B. L.) no, 32 Am. Dec. 656. 

In Spaulding v. Albin, 63 Vt. 148, 
21 Atl. 530, it is held that a wife 
may testify that a certain paper was 
not mentioned at a certain conver- 
sation between herself and husband. 

Silence Privileged In Good- 
rum V. State, 60 Ga. 509, defendant 
was convicted of assault upon a 
married woman. His counsel at- 
tempted to discredit the testimony 
of prosecutrix by proving by her 
husband that she did not complain 
to him for some time after the out- 
rage. It was held that the pro- 
posed testimony was incompetent. 
Judgment afRnned. The supreme 
court says : " She was the state's 
witness, and testified to the outrage 
and the facts attending it. Her hus- 



band was not a competent witness to 
prove, in behalf of the prisoner, that 
she delayed complaining. What 
transpired between her and her hus- 
band (whether positively by way of 
communication, or negatively by 
way of silence), in the privacy and 
confidence of the marriage relation, 
is sacred. Neither can be heard to 
reveal the fact or the matter of a 
communication made by the other. 
For the same reason, the fact of the 
other's silence ought to be, and, we 
think, is protected. A wife ought to 
feel, when alone with her husband, 
as free to be silent as to speak; and 
as secure that her silence will not 
be disclosed, to her detriment or 
disadvantage, as that what she says 
will not be repeated. The twain 
are one flesh ; and when they are se- 
cluded from all the world besides, 
their speech and their silence should 
be alike under the seal of confidence, 
and as free and unrestrained as the 
most inviolable confidence can in- 
spire. The fact that the wife did not 
complain to her husband in their 
private, confidential intercourse was 
known to him, if at all, by virtue of 
that very intercourse; and all knowl- 
edge so acquired by husband or wife 
is inadmissible evidence in a court 
of justice, notwithstanding the en- 
larged rule as to the competency of 
witnesses established by the act of 
1866." 

82. Anderson v. Anderson, 9 
Kan. 78; Vogel v. Vogel, 13 Mo. 
App. 588; Ayers v. Ayers, 28 Mo. 
App. 97 ; Miller v. Miller, . 14 Mo. 
App. 418; King V. King. 42 Mo. App. 

Vol. X 



180 



PRIVILEGED COMMUNICATIONS. 



when the epithets were accompanied by acts of physical violence.®* 
Contra. — As to Threats. — But the contrary has been held,^* 
(B.) Against Third Person A wife is not competent to prove 

threats made by her husband against third person.^^ 

b. Letters Privileged. — Letters written by one spouse to the 

other are privileged.^® 



454; Millspaugh v. Potter, 71 N. Y. 
Supp. 134. 

83. Anderson v. Anderson, 9 
Kan. 78. 

84. In French v. French, 14 
Gray (Mass.) 186, it was held that 
under INIassachusetts statute of 1857, 
c. 305. one spouse might testify as to 
abusive language used by the other, 
although no one else was present. 

85. Davis v. State, 45 Tex. Crim. 
292. 77 S. W. 451. 

86. Arkansas. — Ward v. State, 
70 Ark. 204, 66 S. W. 926. 

Florida. — Henderson v. Chaires, 
25 Fla. 26, 34, 6 So. 164. 

Indiana. — Orr v. Miller. 98 Ind. 
436, 445- 

Kentucky. — Manhattan L. Ins. 
Co. z: Beard, 112 Ky. 455, 66 S. 
W. 35- . 

Michigan. — Derham v. Derham, 
125 Mich. 109, 83 N. W. 1005. 

Missouri. — State v. Ulrich, no 
Mo. 350, 364, 19 S. W. 656; Hall V. 
Hall, 77 Mo. App. 600; State z: St. 
John, 94 Mo. App. 229, 68 S. W. 374. 

Texas. — MitcheW v. Mitchell, 80 
Tex. loi, 15 S. W. 705. 

Wisconsin. — Selden v. State, 74 
Wis. 271, 42 N. W. 218, 17 Am. St. 
Rep. 144; Lanctot v- State, 98 Wis. 
136, 7Z N. W. 57S, 67 Am. St. 
Rep. 800. 

In Wilkerson v. State, 91 Ga. 729, 
738, 17 S. E. 990, 44 Am. St. Rep. 63, 
the court says : " On the trial, the 
accused offered in evidence, and also 
offered to read as a part of his state- 
ment, a letter which had been writ- 
ten by Stephens to his wife, and 
which she had voluntarily delivered 
to Wilkerson some time before the 
homicide. This letter contained in- 
timations that the writer knew of 
the relations existing between his 
wife and Wilkerson, and also a 
threat against the latter. The courj; 
rightly rejected the letter, and re- 
fused to allow it to be read to the 
jury. Section 3797 of the code de- 

Vol. X 



clares that communications between 
husband and wife are. from public 
policy, excluded as evidence. Mrs. 
Stephens would not, for this reason, 
have been permitted, as a witness 
upon the stand, to testify to com- 
munications from her husband to 
herself, or to read to the jury a 
letter which he had written to her. 
We are therefore decidedly of the 
opinion that the same result cannot 
be indirectly accomplished by her 
voluntarily delivering a letter of this 
kind to another person. We are 
aware that there are respectable au- 
thorities holding that a privileged 
oral communication may be given in 
evidence by one who overheard it, 
though an eavesdropper; or that a 
privileged written communication, 
purloined from the proper custodian 
of it, may be received in evidence. 
In such instances, however, the par- 
ties to the privileged communication 
do not themselves successfully make 
and keep it private; but where this 
result is accomplished, the law will 
not permit either of the parties, di- 
rectly or indirectly, to violate the 
confidence of the other. In respect 
to documents, there is a difference 
between those which are confidential 
in their own nature, such as letters 
between husband and wife, and those 
which become confidential by cus- 
tody, such as papers deposited by a 
client with his attorney. The law, 
for reasons of its own, desires that 
all communications between hus- 
band and wife shall be absolutely 
free and untrammeled, and that each 
may say or write whatsoever he or 
she pleases to the other, with the 
absolute assurance that the one re- 
ceiving the communication will 
neither be compelled nor permitted 
to disclose it. We therefore think 
it the better and wiser course to ad- 
here strictly to the declared policy 
of our law, and to hold that this 
letter was properly rejected, how- 



PRIVILEGED COMMUNICATIONS. 



181 



Contra. — Under Massachusetts Statute. — But in Massachusetts, 
letters are held not privileged, the supreme court of that state 
holding that the controlling statute limits the privilege to oral com- 
munication.^' 

(1.) Every Part Privileged. — Address. — Postmark. — Every part of 
a letter passing from one spouse to the other is privileged.®^ 



ever important it maj' be in the de- 
termination of this case." 

Sent Indirectly, Immaterial. — In 
Brown v. Brown, 53 Mo. App. 453, 
it was claimed that certain letters 
were not privileged, because not sent 
directly, but were, by a wife, sent to 
the daughter of the parties to be de- 
livered to the husband. The court 
says : " It does not appear that the 
letters were unsealed when enclosed 
to the daughter and, if it did so ap- 
pear, we would not assume that they 
were intended for her to read. 
Whatever doubt there may be in such 
case should be resolved in favor of 
the inviolability of the communica- 
tion." 

In Fowler v. Fowler, 11 N. Y. 
Supp. 419, which was a divorce suit, 
a letter from wife, — plaintiff — to her 
husband was held competent. On 
this subject the court says: ''She 
herself handed to him, and he read 
it. It was a long letter, in which she 
reviewed the history of their un- 
happy married life. It reminded him 
of her struggles and sacrifices in the 
vain effort to gain his confidence and 
affection, and depicted the cruelty 
and injustice which she had suffered 
at his hands, and it disclosed a con- 
dition of mind bordering on despair. 
It was competent evidence, because 
it was a declaration, made to the de- 
fendant himself, of facts which he 
had the opportunity to deny or ex- 
cuse. The response which the de- 
fendant made to this communication 
is in evidence, and it was for the 
trial court to attach to both their 
proper significance as bearing upon 
the issues in the action." 

87. Com. V. Caponi. 155 Mass. 
534. 30 N. E. 82. The statute in 
question, Pub. Stat. c. 169, § 18. 
Subd. I, provides : " Neither husband 
nor wife shall be allowed to testify 
as to private conversation with each 
other." The court cites i Greenl. 
§ 254, as authority. 



88. Every Part of letter Privi- 
leged. — Selden v. State, 74 Wis. 
271, 42 N. W. 218, 17 Am. St. Rep. 
144. In this case defendant was in- 
dicted for perjury, which consisted 
in falsely swearing, in an affidavit 
for publication of summons in his 
divorce suit, that he did not know 
his wife's address. The state intro- 
duced as a witness an attorney wliQ 
had been employed by the wife to 
take steps to set aside the judgment 
of divorce. Witness had in his pos- 
session letters written to his client 
by her husband. He was asked to 
produce these letters. Their pro- 
duction was objected to, and objec- 
tion overruled. The letters were 
produced and the state offered in 
evidence the date and the place from 
which the letters appeared to have 
been written, the address to the wife, 
the signature of defendant, together 
with the envelope with the address 
and postmark thereon, but did not 
otherwise offer the contents of the 
letters. All of which was objected 
to, and objection overruled. The 
parts of the letters were offered to 
show that defendant did know the 
address of his wife. The court held 
that all objections should have been 
sustained. i. Because the letters 
were privileged as communications 
between attorney and client. 2. Be- 
cause the letters were confidential 
communications between husband 
and wife. The court says : " But it 
is said that the particulars of the 
letters and envelopes admitted in 
evidence were not the letters them- 
selves containing such confidential 
communications. These particulars 
were material parts of the letters, 
and pertinent to the issue. Without 
them, there would be no letters or 
envelopes, as such. He has told her 
by these particulars that he knows 
where she lives, and where she can 
be found, at the time he swore that 
he did not so know. These parts of 

Vol. X 



182 



PRIVILEGED COMMUNICATIONS. 



(2.) letter to Spouse and Third Person. — Letter addressed by one 
spouse to the other jointly with a third person is privileged as to 
the part addressed to the spouse.^^ 

(3.) To Spouse and Children. — Letter written to spouse and chil- 
drn is not privileged.^" 

(4.) Letter Written in Presence of Spouse. — A letter written by one 
spouse in the presence of the other, though not addressed to that 
other, is privileged, unless intended to be delivered to a third 
person.®^ 



the letters and envelopes contained 
these material and confidential com- 
munications, and are the most ob- 
jectionable of any. Both branches of 
this evidence are made incompetent 
by our statute." The statute in 
question forbade husband or wife to 
disclose confidential communications 
from one to the other; and forbade 
an attorney to disclose communica- 
tions made by his client. 

89. Where husband handed to his 
wife a written communication partly 
addressed to her and partly to an- 
other, so much as was addressed to 
her is inadmissible against him as a 
privileged communication ; but the 
remainder of the writing is admis- 
sible to show the purpose for which 
it was written, though it was taken 
from the wife against her will. Ward 
V. State, 70 Ark. 204, 66 S. W. 926. 

90. In State v. St. John, 94 Mb. 
App. 229. 68 S. W. 374, a letter writ- 
ten by a man to his wife and children 
was held non-privileged, on the 
ground that the writer removed the 
privilege by joining other persons in 
a message to his wife. 

91. Smith V. Merrill, 75 Wis. 461, 
44 N. W. 759, was an action for 
criminal conversation. Plaintiff's 
wife wrote a certain note and re- 
tained it upon her person. Plaintiff 
took it from her and made a copy 
which he offered in evidence. It did 
not appear that the note was sent to 
defendant, or that any one besides 
the husband and wife ever knew of 
its existence. The court says : " On 
the plaintiff's direct examination he 
testified to the effect that he had an 
altercation with the defendant one 
night in the spring of 1888, in con- 
sequence of the latter's intimacy 
with his wife ; that after that affair 
took place some papers were drawn; 

Vol. X 



' that a note was written by his wife 
the same day the paper was drawn; 
that he took the original from her 
bosom, agreed to return it, copied it, 
and gave it back to her; that he saw 
his wife write it, and put it in her 
bosom. ... It was simply 
written by the wife in the presence of 
her husband, and then retained upon 
her person. There is no evidence 
that any one ever saw it before the 
trial except the wife and her hus- 
band. There is no pretense that it 
was connected with any matter of 
agency for the husband, and hence 
was not admissible on that ground. 
. . . Sec. 4072, R. S., provides 
that ' a husband or wife shall not be 
allowed to disclose a confidential 
communication made by one to the 
other, during their marriage, without 
the consent of the other. In an ac- 
tion for criminal conversation, the 
plaintiff's wife is a competent wit- 
ness for the defendant as to any mat- 
ter in controversy, except as afore- 
said.' The first part of this section 
is confirmatory of the common law, 
and the last part is in contravention 
of it. 

The note in question may not have 
been intended by the wife as a com- 
munication to the husband, confiden- 
tial or otherwise. . . . But, what- 
ever may have been the intentions 
of the wife in writing the note, it 
was, according to the record, written 
in the presence of the husband, and 
became a communication from her to 
him, and unknown to any one else, 
and hence necessarily was, and re- 
mained, as essentially a confidential 
communication between husband and 
wife, until disclosed by one or the 
other, a,s though the same words had 
been uttered by her in the presence 
of the husband. This being so, the 



PRIVILEGED COMMUNICATIONS. 



183 



But it has been held that if wife writes a letter in her husband's 
presence which she intends that he shall post to a third person, 
such letter is not privileged.^^ 

(5.) Custody of Letters, How Material. — Letters exchanged between 
spouses cannot be introduced in evidence so long as they remain 
in custody of either.^^ 

(A.) Custody Lost. — Letters Non- Privileged. — But it has been 
held that if such letters are permitted to pass into the possession 
of a third person, he may produce them in evidence in an action 
or proceeding against the writer,^* or against the receiver,"'^ even 



statute cited expressly prohibited 
the admission of the note, and much 
more a copy of it, in evidence. The 
rule as to the admission of such 
commiunications in evidence is very 
fully considered by Mr. Justice Or- 
ton in the recent case of Selden v. 
State, 74 Wis. 271." 

92. letter Written in Spouse's 
Presence, Non-Privileged In Wes- 
ton V. Weston, 86 App. Div. 159, 83 
N. Y. Supp. 528, a wife, in her hus- 
band's presence and at his dictation, 
wrote a letter to a person with whom 
she had been charged with having 
illicit intercouse, and delivered it to 
her husband to be posted. Held, 
that this letter was not a confiden- 
tial communication. 

93. State v. Buffington, 20 Kan. 
599, 27 Am. Rep. 193; Scott v. 
Com., 94 Ky. 511, 23 S. W. 219, 42 
Am. St. Rep. 371 ; State v. Ulrich, 
no Mo. 350, 363, 19 S. W. 656; 
Brown v. Brown, 53 Mo. App. 453. 

94. State v. Buffington, 20 Kan. 
599, 27 Am. Dec. 193; Lloyd v. Pen- 
nie, 50 Fed. 4; Brown v. Brown. 53 
Mo. App. 453 ; DeLeon v. Territory 
(Ariz.), 80 Pac 348, 351- 

In State v. Hoyt, 47 Conn. 518, 36 
Am. Rep. 89, the court says: "The 
State having possession of several 
letters written by the defendant to 
his wife (how obtained or whether 
thej' were ever in the wife's posses- 
sion did not appear), offered them in 
evidence as containing admissions in- 
consistent with the testimony of the 
accused given in court and with his 
claim as to unsoundness of mind. 
They were objected to by the ac- 
cused on the ground that they were 
confidential communications between 
husband and wife, but the court ad- 



mitted the evidence. In this ruling 
the court violated no rule of evi- 
dence. The question was not 
whether the husband or wife could 
have been compelled to produce this 
evidence, but whether, when the 
letters fell into the hands of a third 
person, the sacred shield of privi- 
lege went with them. We think not. 
I Greenl. Ev., § 254a. The fact that 
the communications in this case were 
written, places them on no higher 
ground than if they were merely oral. 
And as to the latter, it is well settled 
that conversations between husband 
and wife are not privileged so as to 
prevent a third person who over- 
heard them from testifying. i 
Bishop's Crim. Proc, § 1155. In 
State V. Centre, 35 Verm., 378, it was 
decided that a conversation between 
the prisoner, a married woman, and 
her husband, tending to show an ad- 
mission of her guilt to him, and 
overheard by a witness in an adjoin- 
ing room, was not such a confidential 
communication as the law excludes 
as evidence. And in Commonwealth 
V. Griffin, no Mass., 181, on trial of 
an indictment for manslaughter, it 
was held that a private conversation 
between husband and wife, who 
thought no one overheard them, may 
be testified to by a concealed listener. 
See also Hendrickson v. The People, 
I Parker's C. C, 406; Rex v. Si- 
mons, 6 Car. & P., 832." 

Competent to Impeach. — It has 
been held that a letter written by a 
wife to her husband containing a 
confession of guilt may be introduced 
to impeach her testimony. State v. 
Nelson, 39 Wash. 221, 81 Pac. 721. 

95. Competent Against Person 
Receiving. — People v. Hayes, 140 

Vol. X 



184 



PRIVILEGED COMMUNICATIONS. 



if illegally taken from the custody of the person against whom 
they are ofifered.®^ 

Letter Addressed to Spouse, But Not Delivered, — A letter addressed 
by one spouse to the other and placed in course of transmission, but 
which, before delivery, comes into possession of third person, may 
be introduced in evidence against the writer.^^ 



N. Y. 484, 35 N. E. 951. 2,7 Am. St. 
Rep. 572. 23 L- R. A. 830. affirming 
s. c. 24 N. Y. Supp. 194; Wilkerson 
V. State, 91 Ga. 729, 738, 17 S. E. 
990, 44 Am. St. Rep. 63. 

In Alahner v. Linck, 70 Mo. App. 
380, 388, it is held that a letter from 
husband to wife could not be intro- 
duced unless it be shown that per- 
son offering it did not obtain pos- 
session of it through the agency or 
connivance of the wife. On the 
subject of such letters as evidence, 
the court says : " It has been held in 
some of the cases that the fact that 
the communication was written 
places it on no higher ground than 
if oral. Lloyd v. Pennie, 50 Fed. 
Rep. 4; State v. Bliss, 36 Cal. 508; 
State V- Bufifington, 20 Kan. 599. It 
seems to us that these cases lose 
sight of the policy of the law mak- 
ing communications between hus- 
band and wife privileged, to wit, to 
secure the peace of the twain and 
to protect and keep inviolate that 
mutual confidence so essential to 
their happiness, and we are disposed 
to adopt the reasoning and ruling of 
Judge Miller of the United States 
supreme court in the case of Bow- 
man V. Patrick, 32 Fed. Rep. 368, 
where he refused to admit letters of 
the husband to the wife to be read 
in evidence, which had come into the 
possession of the administrator of 
the wife's estate. We think the 
policj- of the law will be best sub- 
served, by refusing to admit written 
communications of this character, 
whenever they have come to 
the possession of a third party by 
the agency of the husband or the 
wife, or where such third party has 
gained possession of them by reason 
of his representative character, his 
agency or other fiduciary relation to 
the husband or wife. The letter in 
this case should not be admitted, 
unless it is first shown, that the 
plaintiff did not get possession of it 

Vol. X 



through the agency or connivance of 
the wife." 

Letter written by a prisoner to his 
wife which, under prison rules, is 
read by sheriff, is non-privileged as 
to sheriff, who may testify concern- 
ing its contents. DeLeon v. Terri- 
tory (Ariz.). 80 Pac. 348. 

96. Illegally Taken. — Letters 
Competent. — State v. Buffington, 20 
Kan. 599, 27 Am. Rep. 193. 

In State v. Mathers. 64 Vt. loi, 23 
Atl. 590, 22 Am. St. Rep. 921, 15 L. 
R. A. 268, defendant was indicted 
for rape. He wrote a criminating 
letter to his wife which he gave to 
one of his daughters for delivery. 
Before delivery it was taken from 
that daughter's pocket by another 
daughter and on the trial produced 
in evidence by the prosecution. Its 
admission was objected to by defend- 
ant on the ground that it was a con- 
fidential communication. It was held 
that, as the letter did not come from 
the possession of the wife, it was not 
privileged, and that the court could 
not take notice of the manner in 
which it was obtained. 

97. Letter Not Delivered Ham- 

mons V. State, 7i Ark. 495, 84 S. 
W. 718, 68 L. R. A. 234. In this 
case a man was indicted for rape of 
his stepdaughter. While in jail he 
wrote to his wife a letter admitting 
his guilt, and urging her and the 
child (to whom the letter was also 
addressed), to save him by changing 
their testimony. The letter was 
given to a messenger, who gave it to 
the wife's father, who said she should 
never see it, but gave it to an uncle 
of the child's, who introduced it in 
evidence against the writer. Held, 
the letter was admissible. In making 
its decision the court seems to pro- 
ceed upon the theory announced in 
State V. Ulrich, no Mo. 350, 19 S. 
W. 656, that such letters are admis- 
sible when not accompanied by proof 
that they had been procured by con- 



PRIVILEGED COMMUNICATIONS. 



185 



(B.) Contra. — Privilege Not Dependent Upon Custody. — But it has 
l)een held that such letters are not competent, although in the pos- 
session of third parties.^^ 

Letter Voluntarily Surrendered by Wife, Not Competent. — Letter 
from husband to wife is not made competent by the fact that the 
wife voluntarily surrenders it to a third person.'-"* 



nivance of the person to whom they 
were addressed. 

98. Letters in Custody of Third 
Person Privileged. — Letter written 
by husband to his wife and by her 
delivered to a third person cannot 
be introduced in evidence against the 
husband. Scott v. Com., 94 Ky. 511, 
23 S. W. 219, 42 Am. St. Rep. 371 ; 
Wilkerson v. State, 91 Ga. 729, 17 
S. E. 990, 44 Am. St. Rep. 63. 

In Mercer v. State, 40 Fla. 216, 24 
So. 154, 74 Am. St. Rep. 135, it is 
held that letter of husband or wife 
in possession of third party cannot 
be introduced against the writer, un- 
less its possession is accounted for. 
The court says : " The letter from 
the husband to the wife here ex- 
cluded, however, was not sought to 
be introduced directly through the 
wife as a witness to whom it had 
been written, but, in some manner, 
not disclosed by the record, had 
found its way to the possession of 
the attorneys for the defendants, and 
its offer in evidence was from their 
immediate custody. There is a con- 
siderable array of authorities to the 
effect that when confidential com- 
munication between husband and 
wife, or between attorney and client 
get out of the possession and con- 
trol of the parties to the confidence 
and that of their agents and at- 
torneys, and find their way into the 
possession and control of third per- 
sons, regardless of the manner in 
which the possession thereof may be 
obtained by such third persons, that 
then such communications lose the 
protected privilege of the law and 
become competent and admissible 
evidence. To this effect, see i 
Greenleaf on Evidence, § 254a and 
the cases there cited; also the cases 
cited in the notes to Com. v- Sapp, 
29 Am. St. Rep. 415 et seq. We can- 
not agree to the correctness of this 
rule thus broadly laid down by these 
and other authorities, but think the 



policy of the law, that forms the 
foundation of the general rule, is far 
more strongly upheld and subserved 
by those authorities that recognize 
and declare certain classes of com- 
munications to be privileged from the 
inherent character of the communi- 
cation itself, and that in such cases 
the privilege attaches to the com- 
munication itself and protects it from 
exposure in evidence wheresoever or 
in whosesoever hands it may be. 
Judge Shiras, now of the Supreme 
court of the United States, in the 
case of Liggett v. Glenn, 2 C. C. A. 
286, 51 Fed. 381, with great force and 
clearness explains what we conceive 
to be the correct rule. . . The 
same reasoning applies with equal, if 
not greater, force to the communica- 
tions between husband and wife, up- 
on the inviolacy of which depends 
that perfect confidence between the 
twain so necessary to maintain the 
sacred institution of marriage up to 
that standard demanded by every 
well ordered and civilized society. 
And the same reasoning and rule was 
applied in the exclusion of a letter 
from husband to wife in the case of 
Wilkerson 2'. State, 91 Ga. 729, 17 S. 
E. 990; Bowman v. Patrick, 32 Fed. 
368; Scott z\ Com., 94 Ky. 511, 23 S. 
W. 219; Reg. V. Pamenter, 12 Cox's 
Crim. Cas. 177; Dreier v. Continental 
Life Ins. Co., 24 Fed. 670; Mahner v. 
Linck, 70 Mo. App. 380; Mitchell v. 
Mitchell, 80 Tex. loi, 15 S. W. 705- 
We think the letter offered in evi- 
dence here from the witness Brock 
to his wife was inherently a confi- 
dential communication, and that it 
was privileged from exposure in evi- 
dence, in and of itself, regardless of 
the custody from which it was pro- 
duced at the trial, and that its ad- 
mission in evidence was properly re- 
fused." 

99. Letter Voluntarily Sur- 
rendered — Wilkerson v. State, 91 
Ga. 729, 17 S. E. 990. 44 Am. St. 

Vol. X 



186 



PRIVILEGED COMMUNICATIONS. 



(C.) In Custody of Agent or Attorney of Spouse, Privileged. — But if 
such letters are in possession of the personal representative of the 
receiver, they are privileged.^ 

Contra. — But the contrarv has been held.^ 



Rep. 63. In this case the court says : 
" On the trial, the accused offered in 
evidence, and also offered to read as 
a part of his statement, a letter which 
had been written by Stephens to his 
wife, and which she had voluntarily 
deHvered to Wilkerson some time 
before the homicide. This letter 
contained intimations that the writer 
knew of the relations existing be- 
tween his wife and Wilkerson, and 
also a threat against the latter. The 
court rightly rejected the letter, and 
refused to allow it to be read to the 
jury. Section 3797 of the Code de- 
clares that communications between 
husband and wife are, from public 
policy, excluded as evidence. Mrs. 
Stephens would not, for this reason, 
have been permitted, as a witness 
upon the stand, to testify to com- 
munications from her husband to 
herself, or to read to the jury a let- 
ter which he had written to her. We 
are therefore decidedly of the opinion 
that the same result cannot be indi- 
rectly accomplished by her volun- 
tarily delivering a letter of this kind 
to another person. We are aware 
that there are respectable authorities 
holding that a privileged oral com- 
munication may be given in evi- 
dence by one who overheard it, 
though an eavesdropper; or that a 
privileged written communication, 
purloined from the proper custodian 
of it, may be received in evidence. 
In such instances, however, the par- 
ties to the privileged communication 
do not themselves successfully make 
and keep it private ; but, where this 
result is accomplished, the law will 
not permit either of the parties, di- 
rectly or indirectly, to violate the 
confidence of the other. In respect 
to documents, there is a difference be- 
tween those which are confidential in 
their own nature, such as letters be- 
tween husband and wife, and those 
which become confidential by custody, 
such as papers deposited by a client 
with his attorney. The law, for rea- 
sons of its own, desires that all com- 

Vol. X 



munications between husband and 
wife shall be absolutely free and un- 
trammeled, and that each may say or 
write whatsoever he or she pleases to 
the other, with the absolute assur- 
ance that the one receiving the com- 
munication will neither be compelled 
nor permitted to disclose it. We 
therefore think it the wiser and bet- 
ter course to adhere strictly to the 
declared policy of our law, and to- 
hold that this letter was properly re- 
jected, however important it may be 
in the determination of this case." 

1. Representative. — Admin- 
istrator. — Letters written to a wife 
and in the possession of her admin- 
istrator in his fiduciary capacity can 
not be introduced in evidence against 
the husband. Bowman v. Patrick, 
32 Fed. 368; Mahner v. Linck, 70 
Mo. App. 380, 388. 

2. Contra. — Lloyd v. Pennie, 50 
Fed. 4. In this case it was held that 
letters written by a man to his wife, 
and in the hands of her administra- 
tor, are admissible against her hus- 
band. In this case the question 
arose upon an order to show cause 
why the wife's administrator should 
not be punished for contempt for re- 
fusing to produce before an examiner 
letters written to his intestate by her 
husband. The court held that the 
letters should be produced in pur- 
suance of rules of practice in federal 
courts which require that rejected 
testimony be incorporated in the 
record on appeal. But the court held 
that letters from husband to wife, in 
the custody of a third person, are ad- 
missible. The case arose in Cali- 
fornia, and the court held that the 
protection of Cal. Code of Civ. Proc, 
§ 1881, Sub. § I, does not extend to 
such letters, that that statute does 
not protect the communications, but 
simply renders either spouse incom- 
petent to give them in evidence. The 
court states that Bowman v. Patrick,. 
32 Fed. 368 (see preceding note) 
could not be considered an authori- 
ty upon the question under considera- 



PRIVILBGBD COMMUNICATIONS. 



187 



Attorney. — Letters written by husband to wife and by her in- 
trusted to her attorney in the course of professional employment 
cannot be produced in evidence by the attorney,^ 

(6.) Letters Competent for Certain Purposes (A.) Measure of Dam- 
age IN Criminal Conversation. — But it has been held that in an 
action of criminal conversation letters written by wife to husband, 
showing her affection for him, are competent on the measure of 
damages.^ 

(B.) To Show Relation. — It has also been held that letters con- 
taining no private or confidential matter which are offered to show 
that husband signed his name as such, are cornpetent as tending 
to show existence of relation.^ 

•(C.) To Show Cruelty. — It has also been held that letter from 
husband to wife, containing expressions of cruelty, is competent 
against husband in divorce suit.® 

c. Acts of Spouse Privileged. — Knowledge of the acts of one 
spouse, acquired by the other by reason of their relation, is priv- 
ileged.'^ 

Act in Connection With Statement. — But if an act of a spouse open 
to ordinary observation is so connected with a statement made by 
him or her that the conversation might explain or attach a signifi- 
cance to the act, the other spouse cannot testify concerning the act.* 



tion. The court seems to attach 
some importance to the circumstance 
that in Bowman v. Patrick the let- 
ters in question had been deHvered 
by the wife's administrator to the 
husband's adversary in a spirit of 
hostihty. 

3. S'elden v. State, 74 Wis. 271, 
42 N. W. 218, 17 Am. St. Rep. 144. 
See note under II, 8, b. (i.) n. 88. 

4. Letter Competent on Measure 
of Damages — Horner v. Yance, 93 
Wis. 352, 67 N. W. 720. Competent 
to show feelings of wife toward hus- 
band. Willis V. Bernard, 8 Bingham 
(Eng.) 376, I M. & Scott 584, 5 Car. 
& P. 342, I L. J. C. P. 118. 

5. Caldwell v. State (Ala.), 41 
So. 473. 

6. E. W. M. V. J. C. M., 2 Tenn. 
Ch. App. 463. 

7. Acts of Spouse Owen v. 

State, 78 Ala. 425, 56 Am. Rep. 40; 
State V. Jolly, 20 N. C, (3 Dev. & B. 
L.) no, T,^ Am. Dec. 656; Com. v. 
Sapp, 90 Ky. 580, 14 S. W. 834, 29 
Am. St. Rep. 405; Beyerline v. State, 
147 Ind. 125, 45 N. E. 772- 

In Perry v- Randall, 83 Ind. 143, 
defendant was sued for money which 



plaintifif claimed defendant converted 
to his own use. Defendant's wife 
was permitted to testify as to defend- 
ant's actions in regard to the money. 
The supreme court held that the ad- 
mission of her testimony con.stituted 
reversible error. The court uses this 
language : " We are of the opinion, 
however, that the appellant's acts in 
relation to the appellee's lost money, 
done in the presence of the witness 
Henrietta, during the marriage and 
in response to her questions or sug- 
gestions, were ' contidential com- 
munications ' to her by her husband, 
the appellant, within the meaning of 
the statute. It was not necessary 
that the appellant's communication to 
his wife, the witness, in relation to 
the money, should be expressed in 
words. Their interview was private 
and confidential ; and the actions of 
the appellant, in the presence of his 
wife, in relation to appellee's lost 
money, were such a communication 
by him to her, that she was not a 
competent witness, under the stat- 
ute, to testify in regard to his actions, 
without his consent." 
8. See Holman v. Bachus, 72, Mo. 

Vol. X 



188 



PRIVILBGBD COMMUNICATIONS. 



And the fact that a private conversation between spouses accom- 
panies and explains an act of one of them, is not sufficient to en- 
title the conversation to be given in evidence.^ 

B. What Matters Non-Privii^eged. — a. Ordinary Observa- 
tion. — But acts, the knowledge of which a spouse might have ac- 
quired by the exercise of ordinary observation, and to the acquire- 
ment of which the opportunities afforded by the marital relation 
were not necessary, are not privileged/*^ Nor are acts privileged 



49; Hofifman v. Parry, 23 Mo. 
App. 20, 30; Wright V. Wright, 114 
Iowa 748, 87 N. W. 709, ss L. R. A. 
261. This latter case involved an ac- 
tion by a wife against her husband's 
father to enforce agreement made to 
support her in case of abandonment 
by her husband. After holding that 
she might testify as to husband's 
treatment to show abandonment and 
necessity for relying upon defend- 
ant's agreement, the court says, quot- 
ing language of trial court in ruling 
upon objections, "The court holds 
that the remarks or statements as 
between the parties* husband and 
wife, which they had, in connection 
with the conduct of the party and as 
explanatory of it simply, are not 
such communications as are excluded 
under sec. 4607 of the statutes, and 
holds them strictly to those that are 
simply explanatory of facts and 
transactions that bear upon the treat- 
ment of the husband to the wife." 

9. Fuller v. Fuller, 177 Mass. 184, 
58 N. E. 588, 83 Am. St. Rep. 273. 

10. Ordinary Observation. 
Alabama. — Owen v. State, 78 Ala. 

425, 56 Am. Rep. 40. 

Arkansas. — Inman v. State, 65 
Ark. S08, 47 S. W. 558. 

Indiana. — Stanley v. Stanley, 112 
Ind. 143, 13 N. E. 261. 

Iowa. — Romans v. Hay's Admr., 
12 Iowa 270. 

Kentucky. — Short v. Tinsley, i 
Met. 397, 71 Am. Dec. 482. 

Utah. — In re Van Alstine's Es- 
tate, 26 Utah 193, 72 Pac. 942. 

Vermont. — Williams v. Baldwin, 
7 Vt. 503; French v. Ware, 65 Vt. 
338, 26 Atl. 1096. 

Physical Condition Wife who in 

case of injury to her husband acts 
as his nurse and attendant, may tes- 
tify concerning knowledge thus ac- 
quired of his physical condition (Ma- 

Vol. X 



con R. & L. Co. V. Mason, 123 Ga. 
773, 780, 51 S. E. 569) ; also concern- 
ing his statements of pain and suffer- 
ing (Stack V. Portsmouth, 52 N. 
H. 221). 

Husband Competent as to Wife's 
Health. — Supreme Lodge J\I. W. of 
W. z'. Jones, 113 111. App. 241. 

Act of One Spouse in Delivering 
a Deed to the other is not privi- 
leged. Poulson V. Stanley, 122 Cal. 
655. 55 Pac. 605, 68 Am. St. Rep. 73. 

Facts as to Bond, Its Contents. 
In Carpenter v. Dame, 10 Ind. 125, it 
was held that in an action against the 
widow and heirs of a deceased per- 
son to compel specific performance 
of a bond executed by decedent, the 
widow was a competent witness to 
prove the execution, delivery and 
subsequent destruction of the bond, 
and then its contents. 

In Com. V. Sapp, 90 Ky. 580, 14 S. 
W. 834. 29 Am. St. Rep. 405, de- 
fendant was indicted for attempting 
to poison his wife. The state offered 
to prove by the wife that she had 
seen the accused sprinkle a substance 
upon a piece of watermelon intended 
for her, and that the portion of it 
produced at the examination, and 
then shown to contain arsenic, was 
a part of the piece prepared for her, 
and was, when produced, in the same 
condition as when she received it 
from him. The trial court excluded 
her testimony. The court of appeals 
in its opinion, certified to the trial 
court as the law of the case, held, 
that her testimony was admissible. 
After using the language quoted in 
note 77, under II, 8, A, a, the court 
continues : " The reason of this rule 
does not apply, however, to facts 
known to a surviving or divorced 
husband or wife, independent of the 
existence of the former marriage, al- 
though the knowledge was derived 



PRIVILBGED COMMUNICATIONS. 



189 



which do not in any way involve the elements of confidence.^^ 

b. Non-Confidential Source. — One spouse may testify concern- 
ing information relating to the other obtained in some other way 
than from the spouse. ^- 

c. OiMU Acts. — Either spouse may testify concerning his or 
her own acts.^^ 

d. Reasons for Conduct, or concerning reasons for taking a cer- 
tain action.^* 



during its existence, and relates to 
the transactions of the one or the 
other; therefore, the rule should not 
be applied in such a case. What the 
State proposed to prove by the di- 
vorced wife in this case was not any 
communication or knowledge which 
can fairly be considered as having 
come to her by reason of her being 
then the wife of the accused. If she 
had not then been his wife, ordinary 
observation would have enabled her 
to know all that it was proposed to 
prove by her." See Stober v. McCar- 
ter, 4 Ohio St. 513. 

Killing of Husband in Wife's 

Presence Wife may testify of 

killing of her husband which takes 
place in her presence. Hale v. 
Kearly, 8 Baxt. (Tenn.) 49. 

In Shanklin v McCracken, 140 Mo. 
348, 41 S. W. 898, a wife was permitted 
to testify that a third person, in her 
presence handed a package of papers 
to her husband, who opened it, that 
the package contained deeds of some 
sort, and that husband handed back 
the package. The court says : "The 
evidence offered was simply an act of 
the husband unconnected with any 
'admission or conversation' with him, 
a knowledge of which the witness 
derived not from her husband, but 
from the exercise of her own sense 
of sight, and we think the court 
committed error in rejecting it." 
The court is careful to discriminate 
between acts and statements, and 
cites Holman v. Bachus, 7s Mo. 49, 
to the effect that if an act of one 
spouse is so connected with a state- 
ment made by him that the con- 
versation might explain or attach a 
significance to the act, the other 
spouse cannot testify to the act. See 
also Cannon v. Moore, 17 Mo. App. 
92, 100; Hoffman v. Parry, 23 Mo. 
App. 20, 30. 



Own Knowledge — In Smith v. 
Potter, 27 Vt. 304. 65 Am. Dec. 198, 
it is held that a wife may, after death 
of her husband, give in evidence facts 
known of her own knowledge ; and 
may testify in regard to any trans- 
action affecting her husband's inter- 
est, unless her testifying result in.' 
the disclosure of matters of confi- 
dence between husband and wife. 

11. The act of a husband in giv- 
ing his wife certain letters to mail, 
it not appearing that she was aware 
of their contents, is not confidential 
communication. People v. Truck, 
170 N. Y. 203, 212, 63 N. E. 281. 

Receipt of Letter. — Wife may 
testify that her husband received a 
certain letter. Williams v. Baldwin, 
7 Vt. 503. 

12. Patton V. Wilson, 2 Lea 
(Tenn.) loi, 113; Bigelow v. Sickles, 
75 Wis. 427, 44 N. W. 761 ; Brown 
V. Johnson, loi Wis. 661, 77 N. W. 
goo; White v. Perry, 14 W. Va. 
66, 78; Cannon v. Moore, 17 Mo. 
App. 92, 100. 

13. Chamberlain v. People, 23 N. 
Y. 85. 80 Am. Dec. 255. 

Dickerman v. Graves, 6 Cush. 
(Mass.) 308, 53 Am. Dec. 41, was 
an action for criiii con. It was held 
that the wife might, when called as 
a witness by her husband, testify to 
the act charged. The court an- 
nounced the rule to be that neither 
husband nor wife was competent to 
testify against the other as to what 
occurred during the marriage rela- 
tion, and held that in the case at bar, 
the wife did not testify against her 
husband. 

14. Yowell V. Vaughn, 85 Mo. 
App. 206. This was an action by 
husband for damages caused b/ 
alienation of his wife's affections. It 
was held that the wife might prove 
that her reasons for leaving him 

Vol. X 



190 



PRIVILEGED COMMUNICA TIONS. 



e. Business Communications. — (1.) Between Spouses. — Commimi- 
tions from one spouse to the other concerning business transactions 
between them are not privileged.^^ 

Gift. — But husband and wife are incompetent as to private con- 
versation concerning gift from him to her of money and chattels.^® 

Contra. — But the contrary has been held.^^ 

(2.) Spouse as Agent. — Communications between spouses concern- 
ing matter wherein one acts as agent for the other, are not priv- 
ileged.^^ 



were his misconduct and ill-treat- 
ment, as questions as to her reasons 
did not call for disclosure of con- 
fidential communications. 

15. Hannaford v. Dowdle, 75 
Ark. 127, 86 S. W. 8i8; Sedgwick, 
Admr. v. Tucker, go Ind. 271, 281 ; 
Beitman v. Hopkins, log Ind. 177, 9 
N. E. 720; Assignment of Rea, 82 
Iowa 231; Dowling v. Dowling, 116 
Mich. 346, 74 N. W. 523. In re 
Buckman's Will, 64 Vt. 313, 24 Atl. 
252, 32 Am. St. Rep. 930. 

Wife may testify that husband de- 
livered a certain deed to her. 
Hutchinson z^'. Hutchinson, 16 Colo. 
349, 26 Pac. 814. 

On trial of wife's claim against 
estate of insolvent husband, her 
husband may be examined as to the 
details of a transaction between 
them, the question being whether or 
not he had borrowed a certain sum 
from her. Rea v. Jafifray, 82 Iowa 
231. 48 N. W. 78. 

But a wife cannot be compelled to 
testify concerning all special circum- 
stances attending the receipt of any 
and all property received from her 
husband during marriage. McCart- 
ney V. Fletcher, 10 App. Cas. (D. C.) 
572, 595- 

In prosecution of a claim pre- 
sented by a wife against her hus- 
band's estate, his promises and rep- 
resentations made to induce her to 
advance to him the money repre- 
sented by her claim are not privi- 
leged. Spitz's Appeal, 56 Conn. 184, 
14 Atl. 776, 7 Am. St. Rep. 303. 

Transfer of Chose in Action by a 
man to his wife, is not privileged. 
Kanks' Admr, v. Van Carder, 59 
Iowa 179, 13 N. W. 103. 

But in Brown v. Wood, 121 Mass. 
137, it is held that a married woman 
cannot testify concerning business 

Vol. X 



transactions had between herself and 
husband in the absence of other 
persons. 

Letter as to Business, Privileged. 
It has been held that letter from 
husband to wife, stating that joint 
business is unprofitable, is privileged. 
Mitchell V. Mitchell, 80 Tex. loi, 15 
S. W. 705. 

Privileged "Under Kansas Statute. 
Under Kansas statute a woman can- 
not testify concerning communica- 
tions between her husband and her- 
self in regard to business in which 
they are jointly interested. Marshall 
V. Marshall, 71 Kan. 313, 80 Pac. 
629; VanZandt v. Shuyler, 2 Kan. 
App. 118, 43 Pac. 295. But wife may 
testify concerning her husband's 
statements made in creating her his 
agent. McAdow v. Hassard, 58 Kan. 
171, 48 Pac. 846. 

W^ife cannot testify concerning 
husband's declaration made at time 
of conveying certain real property to 
her of his purpose in so doing. Em- 
mons V. Barton, 109 Cal. 662, 42 
Pac. 303. 

16. Young V. Hurst (Tenn. Ch. 
App.), 48 S. W. 355, citing Insurance 
Co. V Shoemaker, 95 Tenn. 72, 31 S. 
W. 270. See note 28, under II, 8, 
B, h. 

17. German-American Ins. Co. z>. 
Paul, 2 Ind. Ter. 625. 53 S. W. 442. 

18. Husband Agent for Wife. 
Brown v. Thomas, 14 111. App. 428; 
Schmied v. Frank, 86 Ind. 250; 
Pierce v. Bradford, 64 Vt. 219. 23 
Atl. 637. 

Wife may testify that she in- 
structed her husband to deliver a 
certain deed to her attorneys, in- 
stead of to the person to whom it was 
delivered. Edwards v. Dismukes. S3 
Tex. 605. 

But in Com. v. Hayes, 145 Mass. 



PRIVILEGED COMMUNICATIONS. 



191 



(3.) Communications Concerning Separate Property. — Nor are com- 
munications from one to the other concerning the separate prop- 
erty of either.^^ 

(4.) Communications Concerning Joint Trusteeship. — Nor communi- 
cations concerning subject of a joint trusteeship.^" 



289, 14 N. E. 151, it is held that 
upon trial of a woman for illegally 
selling liquor, she could not testify 
as to private directions given by her 
to her husband, as her agent, the court 
holding that the statute applicable 
i n c lu d e d all communications 
whether confidential or not. 

Wife as Agent for Husband. 
Bell v. Day, 9 Kan. App. iii; 
Darrier v. Darrier, 58 Mo. 222; De- 
^enhart v. Schmidt, 7 jNIo. App. 117; 
Clements v. ]\Iarston, 52 N. H. 31 ; 
Schwantes v. State (Wis.), 106 N. 
W. 237, 246. 

When statute permits wife to 
testify concerning transactions in 
which she acted as her husband's 
agent, she cannot on behalf of her 
husband, prove payment of money 
made by her in his presence, or by 
his direction, as such transaction 
must be regarded as done by him and 
not by her. Pingree v. Johnson. 69 
Vt. 225, 39 Atl. 202; Bates v. Sabin, 
64 Vt. 511, 24 Atl. 1013. 

Statements Concerning Subject of 
Agency — Wife who acts as her 
husband's agent may testify as to 
his statements concerning subject of 
agency. Clements v. Marston, 52 N. 
H. 31. 

Wife may prove statements of her 
husband made in appointing her his 
agent. Crook v. Henry, 25 Wis. 
569; McAdow V. Hassard, 58 Kan. 
171. 48 Pac. 846. 

Husband is competent to prove 
the fact that he is his wife's agent. 
American Express Co. v. Lankford, 
I Ind. Ter. 233, 39 S. W. 817. 

19. Stickney v. Stickney. 131 U. 
S. 227. 

So if husband and wife are joined 
as parties in an action relating to 
property in which the wife claims an 
interest, she may testify in her own 
behalf. Biggins v. Brockman, 6^ 
111. 316. 

In an action by a widow to compel 
trustees of her husband's estate to 
indemnify her for her separate 



funds used in paying her husband's 
debts, it was held that she might 
testif}' concerning directions given by 
her to her husband respecting invest- 
ment of her separate estate. Shea v. 
Mc.Alahon, 16 App. Cas. (D. C.) 
65, 83. 

In Hunt V. Eaton, 55 Mich. 362, 
21 N. W. 429, the statute relied 
upon provided that during the mar- 
riage or afterwards neither spouse 
should, without the consent of both, 
be examined as to any communica- 
tion made by one to the other during 
the marriage (How. Stat. §7546). 
The court held that this provision 
should be construed in connection 
with § 6297, which provided : "Ac- 
tions may be brought by and against 
a married woman in relation to her 
sole propert}', in the same manner as 
if she were unmarried." Construing 
these provisions together, the court 
held that communications between 
the spouses relating to the wife's 
separate property were not priv- 
ileged. 

20. Wood V. Chetwood, 27 N. J. 
Eq. 311. In this case it is held that 
when husband and wife are joint 
trustees of an estate or fund, and an 
action is brought by a beneficiary of 
the trust to compel an accounting, 
the wife is com.petent to testif}' con- 
cerning conversations between her- 
self and husband respecting the trust 
propert}'. 

Bound to Produce Documents. 
In Wood V. Chetwood, 27 N. J. Eq. 
311, it was held that the wife could 
be compelled to produce documents 
found among her husband's papers. 
The court says : " It appears part of 
the documents ofifered in evidence 
v/ere found by the wife among the 
papers of her husband. They are not 
before me. . . . It is insisted their 
production by the wife is a breach of 
duty and a betrayal of confidence, 
which the court cannot permit with- 
out endangering the institution of 
marriage. If they relate to the trust 

Vol. X 



192 



PRIVILEGED COMMUNICA TIONS. 



(5.) Knowledge of Business of Spouse. — One spouse may testify 
concerning the business affairs of the other, provided knowledge of 
the matter given in evidence was not acquired through the medium 
of a confidential communication.-^ 

Not Competent as to Statements. — It has been held that a wife is 
not competent to testify concerning her husband's statements in 
regard to his business affairs ;-- or as to knowledge of business mat- 
ters confided to her alone.-^ 

Bankruptcy Act. — Thus it has been held that in a proceeding un- 
der the Bankruptcy Act of 1898, a wife cannot be questioned by 
creditors of her husband concerning his statements to her regard- 
ing his business affairs.-* 

f. Statement of Third Person Repeated. — Repetition by one 
spouse to the other of statement of third person is not privileged.^^ 

g. Criminal Acts. — The wife may testify to the act of her hus- 



property, the husband is bound to 
produce them. Besides, the court 
will not stop to consider how papers 
material to the issue were obtained 
b}- the party offering them, whether 
lawfully or unlawfully; if they tend 
to elucidate the point m dispute, the 
court is bound to receive the light 
they give. . . . However, I con- 
fess I am unable to see how the 
wife commits a breach of duty or a 
betrayal of confidence, in doing that 
which the husband would be com- 
pelled to do if he were within the 
reach of the process of the court." 

21. Spivey v. Platon, Admr. 29 
Ark. 603; Cannon v. Moore, 17 Mo. 
App. 92, 100; Pike V Hays, 14 N. H. 
19, 40 Am. Dec. 171 ; Ryan v. Fol- 
lansbee, Extrx. 47 N. H. 100; Jack- 
son V. Barron, Z7 N. H. 494, 501 ; 
Robb's Appeal, 98 Pa. St. 501 ; Cor- 
nell V. Vanartsdalen, 4 Pa. St. 364, 

374- 

Wife may testify concernuig hus- 
band's admission of promise to pay 
monev to a third person. Beveridge 
V. Minter, i Car. & P. (Eng.) 364- 

In Parkhurst v. Berdell, no N. Y. 
386, 18 N. E. 123, 6 Am. St. Rep. 
384. the court, after using the lan- 
guage quoted in note -59, under II, 7, 
B, continues : " The conversations 
with her husband, testified to by 
Mrs. Berdell, cannot be excluded by 
the application of any of these tests. 
They were ordinary conversations 
relating to matters of business which 
there is no reason to suppose he 

Vol. X 



would have been unwilling to hold 
in the presence of any person. 
There was, therefore, no violation of 
the section of the Code cited." 

In Peiffer v. Lytle. 58 Pa. St. 386, 
it is held that a husband might tes- 
tify concerning transactions between 
himself and wife as to certain ad- 
vancements made to her by her par- 
ents. Cornell v. Vanartsdalen, 4 Pa. 
St. 364, 374. is cited. Compare 
Patton V. Wilson, 2 Lea (Tenn.) 
loi, 112. 

Wife is incompetent as to her hus- 
band's business affairs, if, in the 
matter to which her testimony is 
directed, she simply acted as copyist 
or amanuensis. Eastabrooks v. 
Prentiss. 34 Vt. 457. 

22. Incompetent as to Statements. 
Babcock v. Booth, 2 Hill (N. Y.) 
181, 38 Am. Dec. 578. 

23. Confidential Business Matter. 
Stanford v. Murphy, Admr., 63 Ga. 
410; Brown v. Wood, 121 Mass. 137. 
In this case it is held that a wife can- 
not testify as to the circumstances 
attending her husband's possession 
of a certain note, or as to its deposit 
wnth her by him, it appearing that 
she kept all his papers in a certain 
place accessible to him and herself 
alone. 

24. Under Bankruptcy Act — Ir. 
re Jefferson, 96 Fed. 826. 

25. Repeating Statement — Gid 
dings V. Iowa Sav. Bank, 104 Iowa 
676, 74 N. W. 21. 



PRIVILBGBD COMMUNICATIONS. 



193 



band in compelling her to forge a name to a promissory note.-" 

h. Fraudulent Acts. — Wife may be compelled to testify con- 
cerning gifts made to her by her husband in fraud of his cred- 
itors.-'^ 

But it has been held that in an action to set aside as fraudulent 
a deed from husband to wife, the testimony of either as to private 
conversations concerning method of purchase and holding of title 
is incompetent.^* 

i. Coininimications in Presence of Third Persons. — (l.) Spouse 
Competent. — Either spouse may testify concerning communications 
between the spouses made in the presence of third person. -*' 

(A.) That Third Person Dead, Immaterial. — Statement made by 
one spouse to another in presence of third person is non-privileged, 
although such person die prior to time of trial in which the tes- 
timony is offered.'^" 

(B.) Private Conversation in Connection with Overt Acts. — Where 
the testimony of a wife shows overt acts on her part, the effect of 
which would be to confer certain authority upon her husband, it 
is not error to refuse to strike out her testimony on the subject of 
his authority, on the ground that such authority was conferred dur- 
ing a private conversation.^^ 



26. Beyerline v. State, 147 Ind. 
147 Ind. 3, 46 N. E. 31- 

In Poison V. State, 137 Ind. 519, 35 
N. E. 907, the following language is 
used : " The court did not err, in 
our opinion, in permitting the wife 
of the appellant to testify that he 
had communicated to her a loath- 
some venereal disease, on the ground 
that such testimony was a breach of 
the confidential relations existing be- 
tween husband and wife. Such con- 
duct on his part was a gross breach 
of his duty as a husband, and he 
could not, therefore, shield himself 
from exposure in a court of justice, 
where such fact became material 
evidence in a cause, on the ground 
that it was a confidential communi- 
cation." 

California Statute ■ California 

statute, _C. C. P., sec. 1881, Sub § i, 
applies in criminal cases. People v. 
Mullings, 83 Cal. 138. 23 Pac. 229, 17 
Am. St. Rep. 223. 

27. Wiley v. McBride, 74 Ark. 34, 
85 S. W. 84. 

" It is not believed that it is the 
spirit of the law to regard a com- 
munication of the husband to the 
wife of the existence of a right of 

13 



third parties which he is attempting 
to convey to her, and which, if ac- 
complished, would operate as a 
fraud upon such parties, as priv- 
ileged, on the ground that such com- 
munication is confidential." Eddy i: 
Bosley, 34 Tex. Civ. App. 116, 78 S. 
W. 565 ; citing Henry v. Sneed, 99 
Mo. 407. 12 S. W. 663, 17 Am. St. 
Rep. 580. See note 72, under II, 12. 

28. Contra, Phoenix F. & M. Ins. 
Co. v. Shoemaker, 95 Tenn. 72, 31 
S. W. 270. 

29. Conversations in Presence of 
Third Persons Non-Privileged, 
Reynolds v. State, 147 Ind. 3, 46 N. 
E. 31 ; Long V. Martin, 152 Mo. 668, 
54 S. W. 473 ; Sessions v. Trevitt, 39 
Ohio St. 259, 267; Eyon v. Prouty, 
154 Mass. 488, 28 N. E. 908; Reed v. 
Reed (Mo. App.), 70 S. W. 505. In 
re Buckman's Will, 64 Vt. 313, 24 
Atl. 252. 33 Am. St. Rep. 930; Cole 
7'. State (Tex. Crim.), 88 S. W. 341. 

30. Sessions v. Trevitt, 39 Ohio 
St. 259, 267. 

31. Private Conversation — Overt 
Acts. — Nichols v. Rosenfeld, 181 
IMass. 525, 63 N. E. 1063. In this 
case it was sought to be shown by a 
woman's testimony that she had au- 

Vol. X 



194 



PRIVILEGED CO MM UNICA TIONS. 



(C.) Statements of Other Spouse to Third Persons. — The rule of 
privilege does not prevent one spouse from testifying concerning 
statements made by the other to third persons in presence of 
witness. "- 

But it has been held that wife cannot testify concerning conver- 
sations between her husband and third persons."^ 

(2.) Third Person May Testify. — Statements of one spouse to the 



thorized her husband to make a cer- 
tain alteration in an instrument after 
signature. Her testimony was ob- 
jected to on the ground that the au- 
thorit}" was conferred in the course 
of a private conversation. The court 
says : " A motion then was made 
that the evidence as to her husband's 
acting for her be ruled out. and other 
exceptions were taken upon the same 
principle, which was of course that 
it sufficiently appeared that the hus- 
band's authority was given only in 
private conversation. Brown v. 
Wood, 121 Mass. 137; Com. v. 
Hays, 145 Mass. 289, 293 ; Com. v. 
Cleary, 152 Mass. 491. But such is 
not the fact. Such a conversation is 
. not necessarily private. There is no 
presumption one way or the other. 
The judge may have disbelieved Mrs. 
Jeffrey's statement. But if he be- 
lieved it fully, her account implied a 
course of overt acts which was not 
private, and further an assumption 
by her husband assented to by her 
without words that he was to man- 
age the whole affair. See Anderson v. 
Ames, 151 Mass. 11; Jefferds 
7'. Alvard, 151 Mass. 94; Dyer 
V. Swift, 154 Mass. 159, 162; 
Beston v. Amadon, 172 Mass. 84." 

32. Alabama. — Troy Fertilizer 
Co. V. Logan, 90 Ala. 325, 8 So. 46. 

Indiana. — Mercer v. Patterson. 41 
Ind. 440; Griffin v. Smith, Admr., 45 
Ind. 366; Denbo v. Wright, Admr., 
53 Ind. 226; Floyd. Admr. v. Miller, 
61 Ind. 224, 235 ; McConnell v. Han- 
nah, 96 Ind. 102; Mainard v. Reider, 
2 Ind. App. 115, 28 N. E. 196. 

Iowa. — Pratt v. Delavan, 17 Iowa 
307; Auchampaugh t>. Schmidt, 77 
Iowa 13, 41 N. W. 472. 

Kansas. — Higbee v. McMillan, 18 
Kan. 133. 

Mississippi. — Stuhlmuller z'. Ew- 
ing. 39 Miss. 447. 461. 

A^ew Hampshire. — Clements f. 

Vol. X 



Marston. 52 N. H. 31, 38. 

Wife competent as to transactions 
between husband and third person 
in her presence. Walker, Exr., v. 
Sanborn, 46 Me. 470; Herrick v. 
Odell, 29 Mich. 47; Graves v. 
Graves, 70 Ark. 541, 69 S. W. 544. 

33. Contra. — Moore v. Wingate, 
53 Mo. 398; Holman z'. Backus, 73 
Mo. 49; IMcFadin v. Catron, 120 Mo. 
252. 274. 25 S. W. 506; Willis V. 
Gammill, 67 Mo. 730. In Moore z: 
Wingate, the court based its ruling 
upon a statute which, after removing 
the disqualification of married 
women as witnesses, stated " pro- 
vided that nothing in this section 
shall be so construed as to author- 
ize or permit any married womeii 
while the relation exists, or subse- 
quently, to testify to any admissions 
or conversations of her husband, 
whether made to herself or third 
persons." The court says : " This 
provision of the statute was intended 
to apply to all cases, whether the hus- 
band was a party to the action or 
not.'' 

In Reeves v. Herr, 59 111. 81, the 
court says : " What was sought to 
be proved by the witness here, was a 
conversation between the defendant 
and the husband, before and in the 
presence of the witness, his wife, 
which is claimed to have amounted 
to an admission, by the defendant, 
of the account sued upon, and a 
promise on his part, within the 
period fixed by the statute of limi- 
tations, to pay it. 

" We do not find from the authori- 
ties, that this rule of exclusion is 
confined to subjects which are confi- 
dential in their nature, and we think 
it should apply whenever the wife is 
called upon to disclose any matter, 
which came to her knowledge in 
consequence of the marriage rela- 
tion." 



PRIVILEGED COMMUNICA TIOXS. 



195 



other in presence of third persons may be proved b}^ such persons,^^ 
Admission, — Statements of wife made in presence of third per- 
sons and husband, and not objected to by him, may be proved 
against him by such third person as admissions."^ 

If a husband is ofifered as a witness to prove confidential commu- 
nications between himself and wife, and objection to his testimony 



34. England. — Rex z'. Simons, 6 
Car. & P. 540. 

United States. — Hopkins r. Grini- 
shaw, 165 U. S. 342. 

Georgia. — Knight v. State, 114 
Ga. 48, 39 S. E. 928, 88 Am. St. 
Rep. 17. 

Illinois. — Gannon z\ People, 127 
111. 507, 21 N. E. 525, II Am. St. 
Rep. 147. 

Iowa. — State z'. Bertoch (Iowa), 
79 N. W. 378; Shuman v. Supreme 
Lodge, 1X0 Iowa 480. 81 N. VV. 717. 

Kansas. — Jacquith v. David.son, 
21 Kan. 341 (p. 251 of reprint) ; 
Bank v. Hutchinson, 62 Kan. 9. 19, 
61 Pac. 443 ; State v. Gra}', 55 Kan. 
135, 39 Pac. 1050. 

Massachusetts. — Fay v. Guj'non, 
131 Mass. 31. 

Missouri. — Long v. Martin, 152 
^lo. 668, 54 S. W. 473. 

Nezv York. — People v. Hayes, 140 
N. Y. 484, 35 N. E. 951, 37 Am. St. 
Rep. 572, 23 L. R. A. 830. 

North Carolina. — Toole z\ Toole. 
109 N. C. 615, 14 S. E. 57. 

Tennessee. — Allison v. Barrow, 
3 Coldw. 414; Queener z'. Morrow, 
I Coldw. 123. 

In Toole i: Toole, 112 N. C. 152, 
16 S. E. 912, 34 Am. St. Rep. 479, 
it is said that the rule permitting a 
third person to testify concerning 
statements made by one spouse to the 
other in presence of third persons 
applies especially when such state- 
ment is offered in connection with 
evidence of wife's conduct tending to 
show disregard of her husband's 
wishes and unlawful intimacy with 
another person. This case was an 
action for divorce. A witness testi- 
fied that plaintiff said to his wife in 
presence of witness that he did not 
wish to find a certain man in his 
house again. It was held that this 
testimony was competent, especially 
as it was offered in connection with 
other testimony of the same witness 



which tended to show improper con- 
duct of the wife with the person 
whose presence was objected to by 
the husband. 

Exclamation of Wife to husband, 
on hearing that he had killed her 
son by a former marriage. State v. 
Middleham, 62 Iowa 150, 17 N. W. 
446. 

35. People v. Garner, 72 N. Y. 
Supp. 66; aifirmed by court of ap- 
peals, see 169 N. Y. 585, 62 N. E. 
1099. 

In Allison v. Barrow, 3 Coldw. 
(Tenn.) 414, 91 Am. Dec. 291, the 
court saj's : " Conversations be- 
tween husband and wife, or admis- 
sions made by either to the other, 
in the presence of a third person, do 
not belong to that class of priv- 
ileged communications between the 
husband and wife, which, upon 
grounds of public policy, and to pre- 
serve the happiness of the married 
state, are so carefully protected by 
the well-established rules of evi- 
dence. The declarations and acts of 
the husband, in the presence of the 
wife, may alwai's be shown in evi- 
dence against him; yet it might, and 
frequently would be, impossible to 
show the meaning or application of 
the declaration or act, without prov- 
ing the statement of the wife, by way 
of inducement or explanation of the 
declaration or act of the husband; 
and, as has been already stated, the 
statements of the wife, in the pres- 
ence of the husband, are not admis- 
sible for any other purpose. If, in 
this case, the wife of the defendant 
stated, in the presence of her hus- 
band and the witness, that the note 
in question had been paid, it is com- 
petent for the plaintiff to show that 
the defendant responded, and, ex- 
plicitly, or by his silent acquiescence, 
impliedly admitted the truth of the 
statement." 

In People v. Garner, yi N. Y. 

Vol. X 



196 PRIVILEGED COMMUNICATIONS. 

is sustained, his statements made in testifying to the same matter 
upon a former trial of the action cannot be shown by persons pres- 
ent at the former trial.^^ 

(A.) Concealed Witness. — A person, who, while concealed, over- 
hears a conversation between husband and wife which they thought 
no one overheard, may give the same in evidence.^'^ 

(B.) Private Statement Repeated Under Duress, Third Person In- 
competent. — If a confidential statement made by a woman to her 
husband is repeated by her, under his duress, to a third person, 
such third person cannot give it in evidence.^® 

(3.) Presence of Child of Spouses. — Communication between 
spouses in the presence of their child too young to participate in 
conversation, is privileged.^^ 

(4.) Third Person Present or Not Question for Court. — Whether or 
not a third person was present at conversation betw-een husband 
and wife, is a question for the court.*" 

(A.) Either Spouse Competent as to Presence. — Either spouse may 
testify whether or not third person was present.''^ 

(B.) Presence Presumed, ie Testimony Admitted. — If statute makes 
either spouse incompetent as to communications made by one to 
the other, and acts done by either in presence of the other, and 
not in the known presence of a third person, if the record on ap- 
peal does not show whether or not third person was present on a 
certain occasion, it will be presumed that a third person was pres- 
ent at a conversation to which one spouse testified.'*^ 

9. Duration. — Privilege continues after termination of marriage 
relation by death or divorce; and neither spouse can, after termina- 
tion of the relation, testify concerning confidential communications 
made during its existence.*^ 

Supp. 66, it is held that wife may both as against the wife and her co- 
testify to husband's confession made defendant, 
to her mother in her presence. 39. See note 68, under II, 7, B. 

36. Kelly v. Andrews, I02 Iowa b, (B.) 

119, 71 N. W. 251. In this case the 40. Presence, Question for Court. 

court held that wife's failure to ob- Westerman v. Westerman. 25 Ohio 

ject to husband's testimony at for- St. 500. 

mer trial did not constitute a waiver 41. Spouses Competent as to 

of right to object at the second trial. Presence — McCague v. Miller, 36 

37. Com. V. Griffin, no Mass. Ohio St. 595. 

181 ; State v. Hoyt, 47 Conn. 518, 42. Presence Presumed Wes- 

540, 36 Ain. Rep. 89. terman v. Westerman, 25 Ohio St. 

Person in Adjoining Hoom. 500. But in Nichols v. Rosenfeld, 

State V. Center, 35 Vt. 378. 181 Mass. 525, 63 N. E. 1063. it is 

38. In State v. Brittain, 117 N. C. said that where a certain communi- 
783, 23 S. E. 433, under threats of cation was not necessarily private 
desertion made by her husband the in its nature, there is no presumption 
wife confessed that she had com- either way as to whether it was pri- 
mitted certain crime. Afterwards, vate or not. 

influenced by the same threats, she 43. Duration. — Privilege C n - 

repeated this confession to another tinues After Death. 

person. Held, that the testimony of England. — Doker v. Hasler, Ryan 

this third person was incompetent, & M. 198; O'Connor v. Majoribanks, 

Vol. X 



PRIVILEGED COMMUNICATIONS. 



197 



S Scott (N. R.) 394, 4 Man. & G. 435. 
442; 12 L. J., C. P. 161, 7 Jur. 834. 

United States. — Stein v. Bowman, 
13 Pet. 209, 223. 

District of Columbia. — McCartney 
V. Fletcher, 10 App. Cas. 572, 595. 

Delaware. — Farmers' Bank v. 
Cole, 5 Harr. 418. 

Illinois. — Fletcher v. Shepherd, 
174 111. 262, 269, 51 N. E. 212; Geer 
V. Goudy, 174 111. 514, 522, 51 N. E. 
623; Reeves v. Herr, 59 111. 81. 

Indiana. — Griffin v. Smith, Admr. 

45 Ind. 366 ; Denbo v. Wright, Admr. 

53 Ind. 226; Turner v. Cook. 36 Ind. 
129; Noble V. Withers, Admr., 36 
Ind. 193. 

Massachusetts. — Dexter r. Booth, 2 
Allen 559. 

Michigan. — Derham v. Derham, 
125 Mich. 109, 83 N. W. 1005. 

Minnesota. — Newstrom 7'. St. 
Paul & D. R. Co., 61 Minn. 78, 
63 N. W. 253. 

Missouri. — Willis v. Gammill, 67 
Mo. 730. 

Nezv Hampshire. — Young, Admr. 
V. Gilman, 46 N. H. 484. 

AVw York. — Keator v. Dimmick, 

46 Barb. 158; Babcock. Admr. z'. 
Booth, 2 Hill 181, 38 Am. Dec. 578. 

Pennsylvania. — Hitner's Appeal, 

54 Pa. St. no. 

Tennessee. — Brewer v. Ferguson : 
II Humph. 565; Kimbrough v. 
Mitchell, I Head 539; State v. Mc- 
Auley, 4 Heisk. 424. 430; Wisener 
V. Maupin, 2 Baxt. 342. 

T^;i-aj'. — Mitchell v. Mitchell, 80 
Tex. loi, 15 S. W. 70s; Brock 7'. 
State, 44 Tex. Crim. 335, 71 S. W. 
20, 100 Am. St. Rep. 859, 60 L. R. 
A. 465. ^ 

Virginia. — Robin v. King, 2 
Leigh 140. 

Privilege Continues After Divorce. 

Alabama. — Owen v. State, 78 
Ala. 425, 56 Am. Rep. 40. 

Illinois. — Crose v. Rutledge, 81 
111. 266; Griff eth v. Griffeth, 162 
111. 368, 373. 44 N. E. 820. 

Indiana. — Mercer v. Patterson. 4T 
Ind. 440; Perry v. Randall. 83 Ind. 
143- 

Indian Territory. — German-Amer- 
ican Ins. Co. V. Paul, 5 Ind. Ter. 
703, 83 S. W. 60. 

Kentucky. — Com. z'. Sapp, 90 Ky. 



580, 14 S. W. 834. 29 Am. St. Rep. 
405; Elswick V. Com., 13 Bush 155. 

Massachusetts. — Dickerman v. 
Graves, 6 Cush. 308, 53 Am. Dec. 41. 

Michigan. — Hitchcock v. Moore, 
70 Mich. 112, 116, 37 N. W. 914, 14 
Am. St. Rep. 474. 

Missouri. — State v. Kodat, 158 
Mo. 125, 59 S. W. 73, 81 Am. St. 
Rep. 292, 51 L. R. A. 509; Schnabel 
z: Schnabel, 12 Mo. App. 587. 

Nezv York. — Chamberlain v. 
People, 23 N. Y. 85, 80 Am. Dec. 
255 ; Barnes v. Carmack, i Barb. 392. 

North Carolina. — State v. Jolly, 
20 N. C. (3 Dev. & B. L.) no, 32 
Am. Dec. 656. 

Ohio. — Cook z'. Grange, 18 Ohio 
526. 

Pennsylvania. — Brock v. Brock, 
116 Pa. St. 109, 9 Atl. 486. 

Rhode Island. — Robinson v. Rob- 
inson, 22 R. I. 121, 46 Atl. 455, 84 
Am. St. Rep. 832. 

South Dakota. — Clark v. Evans, 
6 S. D. 244. 

Texas. — Davis v. State, 45 Tex. 
Crim. 292, 77 S. W. 451. 

In Dexter v. Booth, 2 Allen 
(Mass.) 559, it is said that at com- 
mon law the character of privileged 
communications remains unaffected 
b}' death. 

In Maynard v. Vinton, 59 Mich. 
139, 26 N. W. 401, 60 Am. Rep. 276, 
the court says : " This statute rests 
upon public policy, and the seal which 
the law has fixed upon communica- 
tions between husband and wife dur- 
ing marriage remains forever, un- 
less removed by the consent of both. 
The death of one cannot remove the 
seal of secrecy. If it could, the pol- 
icy of the law would be defeated. 
After the husband or wife has gone 
to the grave the survivor cannot be 
permitted to blacken the good name 
and bring disgrace upon the memory 
of the departed by dragging to light 
communications made in the confi- 
dence of marital relation, and to pro- 
tect which the statute was enacted." 

In People v. Mullings, 83 Cal. 
138, 23 Pac. 229, 17 Am. St. Rep. 
223, the court does not discuss this 
question at length, but says : " The 
examination of defendant's divorced 
wife was properly stopped as soon as 
she was asked about communications 

Vol. X 



198 



PRIVILEGED COMMUNICATIONS. 



10. Waiver. — A. Privilege May Be Waived. — It has been 
held that the privilege may be waived.** 

B. Contra. — It has also been held that the privilege, being 
founded upon public policy, cannot be v^aived.*^ 

C. No Waiver Unless Permitted by Statute. — When stat- 
ute protects communications betw^een husband and wife, and also 
provides, in regard to attorneys, physicians and priests, that con- 
fidential communications shall not be given in evidence without the 
consent of the person communicating, but makes no such provision 
concerning marital communications, the authority to waive priv- 
ilege does not exist in either spouse.*^ 

D. By Whom. — a. Joint Action Essential. — It has been held 
that the concurrence of both spouses is essential to a waiver.*' 



between defendant and herself dur- 
ing the marriage." 

The cases of Deniston v. Hoag- 
land, 67 111. 265, and Galbraith v. 
McLain, 84 111. 379, referred to in 
Goelz V. Goelz, 157 111. 33. 4i N. E. 
756, decided upon a statute which 
limited the privilege to cases in which 
either husband or wife was a party 
to the action in which the testimony 
was offered. 

In Lingo v. State, 29 Ga. 470, 
483, it was held that a wife could 
not testify concerning threats made 
by her husband, the person killed, 
to kill defendant. 

In Hester v. Hester, 15 N. C. (4 
Dev. L.) 228, the court indicates a 
view contrary to statement in the 
text, but the testimony there in ques- 
tion was held competent on another 
ground. 

See extended discussion of this 
question in Stober v. McCarter, 4 
Ohio St. 513. The court says: "It 
is well known that the rule that for- 
bids husband and wife to testify for 
or against each other, or where 
either is interested, is not limited to 
the duration of the marital relation, 
but for excellent reasons whose 
importance can hardly be overesti- 
mated continues beyond it. i 
Greenl. Ev., sec. 337. But whether 
the rule does not undergo some mod- 
ification upon the dissolution of the 
marriage, is a question upon which 
the language of judges is scarcely 
reconcilable. This is owing not so 
much, or at least not so, often, to 
any real difference of opinion, as to 

Vol X 



a somewhat incautious generality of 
expression, and to the additional fact 
that, by some courts, the question 
of competency has been treated as 
one of interest merely, while by 
others, an enlarged and philosophical 
view of it has been taken." The court 
then discusses numerous English and 
American cases wherein this question 
has arisen. The decision was, that 
after the death of a husband his 
wife could testify to acts done by her 
husband and another person, which 
were not confidential in their nature, 
but open to the observation of any 
one. 

44. See cases cited under II, 10, 
B, C, and D, infra. 

45. Robinson v. Robinson, 22 R. 
I. 121, 46 Atl. 455, 84 Am. St. Rep. 
832. 

Maynard v. Vinton, 59 Mich. 139, 
26 N. VV. 401, 60 Am. Rep. 276. 

46. Statutory Authority Essen- 
tiaL — Bevins v. Clines, Admr., 21 
Ind. 37- 

It was also held that privilege can- 
not be waived under statute which 
provides that " neither spouse shall 
be permitted to . . . disclose any 
communication made to him or her 
by the other, during their marriage." 
Campbell v. Chace, 12 R. I. 332; 
Robinson v. Robinson, 22 R. I. 121, 
46 Atl. 455, 84 Am. St. Rep. 832. 

47. Derham v. Derham, 125 Mich. 
109, 83 N. W. 1005; Maynard v. 
Vinton, 59 Mich. 139, 26 N. W. 401, 
60 Am. Rep. 276. 

When a woman is sued jointly 
with her husband, and is called as a. 



PRIVILEGED COMMUNICATIONS. 



199 



b. Spouse Making Communication. — But it has been held that 
the spouse making a given communication may waive privilege.*^ 

c. Not by Personal Representative. — The privilege cannot be 
waived by the personal representative of the spouse making the 
communication, even in the interest of his estate.*** 

E. How Shown. — a. Failure to Object. — Objection is waived 
unless objection is taken when testimony concerning confidential 
communications is called for;^" 

b. Effect of Such Waiver on Second Trial. — If on the first 
trial of an action spouse omits to object to testimony of the other 
concerning confidential communications, such conduct does not con- 
stitute a waiver of right to object to such testimony upon a sec- 
ond trial. ^^ 

c. Making Spouse Witness. — One spouse waives privilege by 
interrogating the other concerning confidential communication."- 

d. Spouse as Witness. — Or by testifying without objection con- 
cerning such communication.^^ 

e. Voluntary Statement. — If husband, on cross-examination, 
voluntarily, without having been questioned in regard thereto, gives 
part of a conversation between himself and wife, he can be com- 
pelled to give the whole conversation.^* 



witness under a statute permitting a 
party to make an adverse party a wit- 
ness, her testimony concerning a pri- 
vate conversation between her hus- 
band and herself is incompetent 
against him, although it may be ad- 
missible against her. Strode v. 
Frommever, 115 Mo. App. 220, 91 
S. W. 167. 

48. Stickney v. Stickney, 131 M. 
S. 227, recited under statute relating 
to District of Columbia. 

Compare Hopkins v. Grimshaw, 
165 U. S. 342. 

49. Maynard v. Vinton, 59 Mich., 
139, 26 N. W. 40X, 60 Am. Rep. 276. 

50. Norris v. Stewart's Heirs, 
105 N. C. 455, 10 S. E. 912. 18 Am. 
St. Rep. 917; German z'. German, 7 
Coldw. (Tenn.) 180; Parkhurst v. 
Berdell, no. N. Y. 386, 18 N. E. 
123, 6 Am. St. Rep. 384. 

Appellate Court. It has been held 
that an appellate court will reverse a 
judgment in support of which tes- 
timony concerning contidential com- 
munication was admitted, although 
the records show that no exception 
was taken. Carter v. Hill. 81 Mich. 
275; 45 N. W. 988. 

Contra. — Robinson v. Robinson, 
22 R. I. 121, 46 Atl. 455, 84 Am. St. 



Rep. 832; Davis v. State (Tex. 
Crim.-), 77 S. W. 451- 

51. Kelley z'. Andrews, 102 Iowa 
119, 71 N. W. 251. In this case it is 
held that the right of a wife to ob- 
ject to her husband's testifying con- 
cerning communications between 
them, in an action against her, is not 
waived by failure to object to his tes- 
tifying for the adverse party on the 
first trial of an action, if proper ob- 
jection is made when it is attempted 
to use such testimony upon a second 
trial. 

52. Dickerman v. Graves, 6 Cush. 
(Mass.) 308, Columbia & P. S. R. 
Co. V. Hawthorne, 3 Wash. Ter. 353, 

364. 

53. Dickerman v. Graves, 6 Cush. 
(Mass.) 308, 53 Am. Dec. 41. 

In People v. Lewis, 16 N. Y. Supp. 
881, it was held that when a wife 
voluntarily testified against her hus- 
band in an action for crim. con., she 
may testify concerning communica- 
tions made during marriage. This 
ruling was based on §715. Penal 
Code, which provided that neither 
spouse could be " compelled " to tes- 
tify concerning such communications. 

54. State V. Turner, 36 S. C. 534, 
15 S. E. 602. 

Vol. X 



200 PRIVILEGED COMMUNICATIONS. 

f. No Waiver Unless Communication Referred to. — But priv- 
ilege is not waived unless confidential communication is referred 
to, and if spouse who becomes a witness does not, on direct ex- 
amination, testify concerning confidential communication, he or 
she cannot, on cross-examination, be required to testify concerning 
such matter.^^ 

11. Protection of Privilege. — A. Duty of Nisi Prius Court. 
It has been held that it is the duty of the trial court to prevent a 
spouse testifying concerning confidential communications, although 
no objection be made to question calling for it.^^ 

B. Duty of Commissioner. — When testimony is being taken 
before a commissioner, he should not permit confidential communi- 
cations to be given in evidence. ^^ 

C. Frame of Question. — Question to spouse as to any matter 
occurring or communicated between spouses should be so framed 
as to exclude confidential conversations.^* 

D. Application of Rule. — a. Confidential Character Must 
Appear. — Unless it appear that proposed testimony of husband or 
wife would violate the rule against the disclosure of confidential 
communications, the testimony should be admitted.^'* 

b. All Privileged, or None. — If objection to question on the 
ground that it calls for disclosure of confidential communications 
between husband and wife be waived or overruled, witness may be 
cross-examined as to all the particulars of the communication.*^" 

c. Testimony Not Admitted, Unless Consent Show-n. — The tes- 
timony of neither spouse concerning private, confidential commu- 
nications will be admitted, unless the consent of the other is shown.*'^ 

d. Divorce Suits. — (l.) Private Conversations between husband 



55. People v. Mullings, 83 Cal. 57. Page v. Page, 51 Mich. 88, 16 
138, 23 Pac. 229, 17 Am. St. Rep. n. w 245. 

223. In this case the court decides 53. jones v. New York L. Ins. 

the question as stated m the text ^o., 168 Mass. 245, 47 N. E. 92. 

upon the authority of Duttenhofer v. __ ^, -n'. ^ tCt tt 

State, and State v. White, cited in ^^' Chase v. Pitman, 69 N. H. 

notes post, under "Attorney and 423, 43 Atl. 617; Rutland & B. R. 

CHent." Co. v. Lincohi, 29 Vt. 206; Stowe v. 

If in criminal prosecution, on Bishop, 58 Vt. 498, 3 Atl. 494, 56 Am. 

cross-examination defendant's at- Rep. 569. 

torney brings out confessions of de- "Nothing should be excluded ex- 
fendant to his wife, defendant can- cept something that is strictly con- 
not object. People v. Garner, 72 N. Udential, and not only so, but com- 
Y. Supp. 66. municated in strict marital confi- 

Wife cannot, on cross-examina- dence." Clements v. Marston, 52 N. 

tion, be questioned concerning priv- -^ 31 

ileged matter not referred to in di- gO. 'Baldwin v. Parker, 99 Mass. 

rect exaniination WAh^msz.Si^t^ ^^^ ^ 

40 Tex. Cnm. 565, 570, 51 S. W. 224. ^i" ^ ^^ , d n \ 

56. Carter v. Hill, 81 Mich. 275, 61- Humphrey v. Pope, i Cal. 
45 N. W. 988. App. 374, 82 Pac. 223. 

Vol. X 



PRIVILEGED COMMUNICA TIONS. 



201 



and wife are privileged in divorce suit, in Missouri f- but not in 
California.*'^ 

(2.) Acts of Cruelty. — Wife may testify concerning acts of cru- 
elty by her husband, or may introduce husband's letter to her con- 
taining expressions of cruelty.®* 

e. Incompetency Appearing on Cross-Examination. — If, on di- 
rect examination witness makes a statement which is entirely com- 
petent, the fact that on cross-examination he testifies that his knowl- 
edge was acquired from one toward whom he occupied a privileged 
relation does not render his direct testimony incompetent,*^^ 



62. ]\Ioore v. Moore, 51 Mo. 118; 
Dwver v. Dwj-er. 2 Mo. App. 17. 

63. Cal. Code of Civ. Proc, 
§ 1881, sub. § I. "A husband cannot 
be examined for or against his wife 
without her consent; nor a wife for 
or against her husband without his 
consent ; nor can either, during the 
marriage or afterward, be, without 
the consent of the other, examined 
as to any communication made by- 
one to the other during the mar- 
riage ; but this exception does not 
apply to a civil action or proceed- 
ing by one against the other, nor to 
a criminal action or proceeding for 
a crime committed by one against 
the other." 

64. E. W. M. V. J. C. M., 2 Tenn. 
Ch. App. 463. 484. See article " Di- 
vorce;/' Vol. IV, p. 791, n. 22. 

65. Bank v. Hutchinson, 62 Kan. 
9. 61 Pac. 443. a woman testified that 
she had heard that certain threats 
had been made against her husband. 
On cross-examination she testified 
that her information as to threats 
had come from her husband. 
The court says : " No case involv- 
ing the precise point has been called 
to our attention by counsel for 
either side, nor have we, with re- 
search, been able to find a case in 
point. The question, therefore, ap- 
pears to be one of first impression, 
and, in the lack of precedent, to bt, 
determined upon reason. The wit- 
ness did not. upon her direct exam- 
ination, testify to any communica- 
tion from her husband. She testi- 
fied only to a fact — a fact which 
might have been learned (although 
such was not the case) from others 
than her husband. What she stated 
was not as a communication from 
her husband, but as a fact, to wit, 



the story of the threats. The testi- 
mony thus far was unobjectionable. 
Could it be made objectionable by a 
cross-examination disclosing the 
sources of the wife's information? 
Clearly not. To do so would have 
withdrawn from the consideration of 
the jury all testimony as to the 
cause of the making of the home- 
stead mortgage, and would have left 
the witness's testimony as to a mo- 
tive for that action without any ra- 
tional explanation. All that would 
have been left of the witness's testi- 
mony would have been that she 
made the mortgage, and the state of 
mind in which she made it. A single 
word beyond that, to show that her 
state of mind was induced by a story 
of threats against her husband, 
would be, in the theory of counsel 
for plaintiff in error, incompetent 
and objectionable, provided the story 
was heard from the husband. That 
theory is not sound ; it is not sup- 
ported by any fair interpretation of 
the statute. 

" The statute forbids the testi - 
mony of husband or wife as to con- 
versations between each other, but 
the bare statement of a wife that she 
heard that her husband was to be 
arrested is not the statement of a 
conversation. She is entitled to go 
that far in explanation of the in- 
ducement to her action. The sub- 
stantive litigated question in the 
case was whether the wife heard an 
alarming story as to her husband; 
not the words in which the story 
was told, nor that it was told to her 
by her husband. A litigating party 
cannot deprive his antagonist of the 
right to prove that substantive fact 
by showing that the information as 
to it came from the husband." 

Vol. X 



202 PRIVILEGED COMMUNICATIONS. 

Abandonment of Objection by Spouse, Ineffective Against Co-Party. 
Incompetent testimony of one spouse is not rendered competent 
against co-party of the other by the fact that the spouse against 
whom such testimony is admitted does not appeal from the judg- 
ment rendered in the case.*^" 

f. Strict Inquiry Proper. — As commiuiications between hus- 
band and wife are privileged, the opportunity for fraud is great, 
and searching inquiry into the circumstances of each case is proper.*^'' 

E. Construction of Rule. — It has been held that statutes 
rendering husband and wife incompetent as to confidential com- 
munications should be strictly construed.*^^ 

It has also been held that the word " communication " should re- 
ceive a liberal construction."" 

Incompetent by One Statute, Competent by Another. — When statute 
makes husband and wife incompetent against one another, but an- 
other statute provides that person injured by commission of a pub- 
lic offense shall be competent against the offender, a husband may 
testify as to admission of his wife who is indicted for burning 
his barn."° 

F. By What Law Determined. — In proceedings in bankruptcy 
under the Federal Act of 1898, a wife cannot be compelled to tes- 
tify concerning communications made by her husband, if the stat- 
ute of the state where the proceeding is pending makes her in- 
competent.'^ 

12. Exceptions to Rule. — A. Exception Allowed to Prevent^ 
Fraud. — Where, from the peculiar circumstances of the case, 
evidence of communications between husband and wife is neces- 

Wife cannot, on cross-examination, protection of married women will 

be examined as to privileged matters Ijecome repulsive to the moral sense 

not referred to on examination in as mere covers for fraud." 

chief. Williams v. State, 40 Tex. 68. Lloyd v. Pennie, 50 Fed. 4. 

Crim. App. 565. 51 S. W. 224 u ^^ ^^^^ tendency of the rule is to 

66. State z'. Jolly, 20 N C (3 ^^^.^^^^ ^ ^^^jj disclosure of the 
Dev. & B. L.) no, 32 Am. Dec. 656. ^^^,^,^^ j^ ,^^,g^ ^^ g^^i^^j construed."' 
This case mvolved a crmimal prose- Hammons v. State, 73 Ark. 495- 84 
cution of a man and woman for un- g ^ g^ 53 ^ r a. 234. See 
lawfully cohabiting. The woman s .t^^tutes construed in Robinson v. 
divorced husband was permitted to chadwick, 22 Ohio St. 527. note 49. 
testify concerning actions of his ^^,^^ ^,,^^^^ jj_ g. A, and in Bevins 
wife prior to divorce. The supreme ^, j^jj ^^.^^ ^ ^i Ind. 37- 

court held his testimony incompe- o« .. « • x- „ t-i. n 

tent, and held that it was not made , ^9 "Communication" liberally 

competent against the man-the ap- Construed _ Com. t'. Sapp, 90 Ky. 

pealing defendant— by the fact that -^80, 14 b. W. 834. 29 Am. St. 

the woman did not join in the appeal. ^*^P- 405- 

67. Van Zandt r;. Shuyler, 2 Kan. 70. Conflicting Statutes. — Jor- 
App. 118. dan v. State, 142 Ind. 422. 41 N. E. 

In Dresher v. Corson, 23 Kan. 313. 817; Briggs v. Briggs (R. I.), 26 

Brewer, J., says : " Unless care is Atl. 198. 

taken and courts are watchful, those 71. In re Fowler, 93 Fed. 417;. 

laws which were designed for the In re JefTerson, 96 Fed. 826. 

Vol. X 



PRIVILEGED COMMUNICATIONS. 



20S 



sary to be introduced to show a fraud practiced against one of 
them, such evidence will be admitted ex necessitate.''^ 



72. Exception. — ■ Ex Necessitate. 

In Henry v. Sneed, 99 Mo. 407, 
12 S. W. 663, 17 Am. St. Rep. 580, 
certain persons, by false and fraudu- 
lent statements, induced a man to 
agree to purchase on trial certain per- 
sonal property at a sum greatly in 
excess of its value, the purchase 
price to be secured by a trust deed 
of his wife's real property. When 
the purchase price became due, de- 
fault was made and the trustee under 
the trust deed advertised the real 
property for sale. The wife then 
brought suit to enjoin the sale and 
to set aside the deed on the ground 
of fraud. On the trial of this suit 
both husband and wife were per- 
mitted to testify to conversations had 
between themselves. This was 
claimed to constitute error. The su- 
preme court of Alissouri says : " Sev- 
eral things are, however, made very 
clear by the testimony : First, that 
the defendants Sneed, Stringer and 
Shobe were engaged in a most au- 
dacious scheme of fraud. Second, 
that the husband was used as the con- 
duit, through which the fraiid-fcas- 
ors operated to induce the wife reluc- 
tantly to sign and acknowledge the 
deed of trust, which would have 
accomplished the end desired and de- 
signed by the conspirators, but for 
the timely interposition of a court of 
equity. The conversations then be- 
tween the husband and wife, which 
brought about, and were intended to 
bring about, the result had in view, 
were clearly a part of the res gestae, 
(State y. Gabriel. 88 Mo. 631, and 
cases cited), and would, therefore, 
seem to occupy a different attitude 
from the ordinary, confidential com- 
munications between husband and 
wife. 

On one occasion, we held that a 
letter written by the husband to his 
wife, authorizing her to take the title 
to certain land in his name, did not 
fall within the rule respecting con- 
fidential communications between 
husband and wife, nor did the testi- 
mony of the former, touching such 
letter, fall within such rule : Darrier 
V. Darrier, 58 Mo. 222, and cases 



cited. But that was a contest inter 
scse. We incline to the opinion, 
however, that the testimony of both 
husband and wife, as to the conver- 
sations referred to, was admissible 
on a much broader ground, and for 
a more elevated reason. At common 
law, parties to the record were ad- 
mitted as witnesses, as a marked ex- 
ception to the general rule, where 
fraud was charged, or embezzlement, 
or where, on general grounds of pub- 
lic polic}', it was deemed essential 
to the purposes of justice, i Greenl. 
Ev. [14 Ed.] § 348 and cases cited. 
In the present case, Sneed attempted 
to take advantage of a legal technical- 
ity as to conversations between hus- 
band and wife to prevent the full 
extent of his fraud from being un- 
earthed. 

Now, in view of the other facts 
in evidence, it would be simply mon- 
strous to permit a party to take ad- 
vantage of his own wrong, and 
assist his own fraud by such an ob- 
jection. The rule he invokes was in- 
tended to subserve a very wise, 
wholesome and holy purpose, but 
never to further such an end as that 
for which he invokes it. And this 
exception to a general rule should 
certainly have place in a court of 
equity, which will throttle fraud in all 
of its protean manifestations. We 
shall, therefore, rule that the tes- 
timony of both husband and wife 
was, ex necessitate, competent as to 
their conversations, on two grounds : 
That those conversations were a part 
of the res gestae, and on the foot of 
the fraud." 

Wife's testimony concerning hus- 
band's statements is excluded on 
grounds of public policy ; but when 
the necessity for her testimony over- 
balances public policy, her testimony 
will be admitted. Maget v. Maget, 
85 Mo. App. 6. 

In Moeckel v. Heim, 134 Mo. 576, 
36 S. W. 226, the court says : " We 
adhere to the ruling announced in 
Henry v. Sneed, 99 Mo. 407, that 
where a husband is made the conduit 
and mouthpiece of the fraud of 
others, and in furtherance of that 

Vol. X 



204 



PRIVILEGED COMMUNICATIONS. 



B. Injury oi^ Wife: by Husband, Wife Sole Witness. — Wife 
may testify concerning injury committed against her by her hus- 
band, when she is the only witness by whom the act in question can 
be proved/^ 

C. When Statement is Fact in Issue. — When the statement 
of one spouse is a fact in itself contributing to constitute a cause 
of action, it may be testified to by the other.''* 

D. Statement Made to Induce Confession, Non-PrivilEged. 
Statement made by one spouse with intent to induce the other to 
make a confession is non-privileged.'^ 

E. Fact of Relation in Issue. — When the issues in a case 
involve the relations between husband and wife, communications 
between them are admissible in evidence as an index of such re- 
lations.'^^ 



fraud prevails upon his wife to sign 
a note and incumber her property, 
that there a court of equity, in the 
absence of other evidence, in order 
to unearth that fraud and to expose 
it in all of its details, will, ex neces- 
sitate rei, and upon a familiar com- 
mon law principle, respecting evi- 
dence of fraud, permit both husband 
and wife to testify as to the conver- 
sations had between them in regard 
to the transaction." 

73. King V. Sassaman (Tex. Civ. 
App.), 64 S. W. 937. 

74. Fowler v. Fowler, 11 N. Y. 
Supp. 419. This was an action for 
divorce. Exceptions were taken to 
admission in evidence of defendant's 
statements, on the ground of priv- 
ilege. On this subject the court 
says : " One was the declaration of 
the defendant to his young bride, on 
the second night after their mar- 
riage, that he did not love her, and 
that he had made a mistake in mar- 
rying her. If to make such a decla- 
ration at such a time was an act of 
cruelty, if it was the early beginning 
of a course of treatment persisted in 
throughout their married life, which 
was destined to destroy her happi- 
ness, to rob her of her peace of mind, 
to undermine her physical and men- 
tal health, and to drive her to at- 
tempts upon her own life, and thus 
to render it improper and unsafe for 
her to cohabit with him, then it was 
not a privileged communication. It 
was to be received in evidence, not 
as a declaration of the fact declared, 
but as a fact in itself contributing to 

Vol. X 



constitute the plantiff's cause of ac- 
tion. Such acts cannot be concealed 
under the cloak of privilege.'' 

75. Statement to Induce Confes- 
sion — -In Fowler v. Fowler 11 N. 
Y. Supp. 419, the court says : " An- 
other objection by the defendant, on 
the same ground, seems to be equally 
untenable. The plaintifif was per- 
mitted to prove, by her own testi- 
mony, that the defendant at one time 
made a statement to her, in the form 
of a confession, that he had had im- 
proper relations with a woman in his 
office. There was no charge of 
adultery against the defendant in the 
complaint, and the declaration was 
plainly inadmissible to prove the 
fact confessed. But further testi- 
mony of the plaintifif shows the true 
character of the so-called ' confes- 
sion,' and demonstrates the admissi- 
bility of the evidence. The defend- 
ant afterwards admitted to the plain- 
tiff that the pretended confession 
was false, made, as he said, out of 
whole cloth, and with the hope of 
inducing a similar confession from 
her in return. In other words, this 
' confidential communication ' from 
the husband to the wife was a de- 
liberate device to entrap the wife 
into a confession of guilt on her own 
part. There is no shield of priv- 
ilege for such an act as this." 

76. Pettit V. State, 135 Ind. 393. 
415, 34 N. E. 1 118; Caldwell v. State 
(Ala.), 41 So. 473. In this latter 
case it is held that letters from hus- 
band to wife which disclose no fact 
of private or confidential nature, 



PRIVILEGED COMMUNICATIONS. 



205 



F. When Necessary to Fix Grade oe Offense. — It has been 
held that defendant in murder case may testify that his wife in- 
formed him of threats made against him by deceased, the decision 
being apparently based upon the ground that such testimony is nec- 
essary to fix the exact grade of the offense."' 

G. Voluntary Confession of Crime is not within the rule 
against the disclosure of confidential communications.'^^ 

III. ATTORNEY AND CLIENT. 

1. General Rule. — Communications between attorney'^^ and cli- 
ent during and by reason of their relation as such, made in confi- 
dence and for the purpose of enabling the attorney to perform his 
professional duty in regard to the matter communicated, or made 
by him in performing such duty, are privilged.^" 



and which are ofifered to show that 
the husband signed his name as such, 
are competent, their only tendency' 
being to show the existence of the 
relation. 

Spouse may testify as to fact of 
marriage. Chase v. United States, 
7 App. Cas. (D. C.) 149. 

77. Shepherd v. Com., 27 Ky. L. 
Rep. 376. 85 S. W. 191. 

78. State v. IMann, 39 Wash. 144, 
81 Pac. 561. 

79. The term " attorney " as used 
in this article includes solicitor, bar- 
rister, counselor, proctor and all 
other persons who perform legal 
services. 

80. General Rule. 

England. — B e r d v. Lovelace, 
Cary 62, 21 Eng. Reprint 33; Dennis 
V. Codrington, Cary 100, 21 Eng. 
Reprint 53 ; Storey v. Lord George 
Lennox, i Keen 341, 48 Eng. Re- 
print 338; Kelway v. Kelway, Cary 
89, 21 Eng. Reprint 47; Bulstrod u. 
Letchmere. 2 Freeman Ch. 6 (Case 
4). 22 Eng. Reprint 1019; Dwyer v. 
Collins. 7 Exch. (Welsh. H. & G.) 
639, 21 L. J. Ex. 2.-5; Legard z\ 
Foot, Finch 82. 23 Eng. Reprint 44; 
Parkhurst z'. Lowten. 2 Swanst. 194, 
216. 36 Eng. Reprint 589; Green- 
ough r. Gaskell, i Myl. & K. 98. 39 
Eng. Reprint 618; Branford v. 
Branford, 40 L. T. N. S. 659, 48 L. 
J., P. 40, 4 P. D. 72; Sandford v. 
Remington, 2 Ves. Jr. 189, 30 Eng. 
Reprint 587; Southwark & V. W. 
Co. V. Quick. 3 Q. B. Div. 315. 47 L. 
J., Q. B. 258. See also Austen z: 



Vesey. Cary 63. 21 Eng. Reprint 34, 
and Hartford z'. Lee, Cary 63. 21 
Eng. Reprint 34. 

Canada. — Dederick v. Ashdown 
4 Manitoba 174. 

United States. — Liggett v. Glenn, 
SI Fed. 381, 2 C. C. A. 286. 4 U. S. 
App. 438; Chirac v. Reinicker, 11 
Wheat. 280, 294; Connecticut Mut. 
L. Ins. Co. v. Schaefer, 94 U. S. 
457 ; Alexander v. United States, 138 

u. s. 353. 

Alabama. — Crawford v. McKis- 
sack, I Port. 433; Dickson v. Mc- 
Larney, 97 Ala. 383. 392, 12 So. 398. 

Arkansas. — Bobo v. Bryson, 21 
Ark. 387, 76 Am. Dec. 406; An- 
drews' Admx. z'. Simms, Admr., 33 
Ark. 771 ; Casey v. State, 37 Ark. 67, 
84; Fox V. Spears, 93 S. W. 560. 

California. — Landsberger v. Gor- 
ham, 5 Cal. 450. 

Connecticut. — Mills v. Griswold, 
I Root 383; Calkins v. Lee, 2 Root 
363 ; Goddard v. Gardner, 28 Conn. 
172. 

Delaware. — Bush z'. McComb, 2 
Houst. 546. 

District of Columbia. — Oliver z'. 
Cameron, McArthur & M. 237. 

Georgia. — Neal z'. Patten, 47 Ga. 
73 ; Freeman v. Brewster, 93 Ga. 
648, 21 S. E. 165 ; Peek v. Boone, 90 
Ga. 767. 17 S. E. 66; O'Brien v. 
Spalding, 102 Ga. 490, 31 S. E. 100. 
66 Am. St. Rep. 202; State v. Min- 
ter. III Ga. 45; Philman z'. Mar- 
shall, 103 Ga. 82, 29 S. E. 598. 

Illinois. — Dietrich v. Mitchell. 43 
111. 40. 92 Am. Dec. 99; People z: 

Vol. X 



206 



PRIVILEGED COMMUNICA TIONS. 



Barker, 56 111. 300; Oliver z: Mc- 
Dowell, 100 111. App. 45. 

Indiana. — Jenkinson z'. State, 5 
Blackf. 465 ; Gurley v. Park, 135 Ind. 
440. 35 N. E. 279; Bigler v. Reyher, 
43 Ind. 112; Wilson v. Ohio Far- 
mers' Ins. Co., 164 Ind. 462, 73 N. 
E. 892. 

Iowa. — Singer v. Sheldon, 56 
Iowa 354, 9 N. W. 298; Blacknian v. 
Wright, 96 Iowa 541, 549, 65 N. W. 

843. 

Kansas. — Tays r. Carr. 37 Kan. 
141, 14 Pac. 456. 

Louisiana. — Holmes v. Barbin, 15 
La. Ann. 553 ; Travis r. January, 3 
Rob. 227; State v. Hazleton, 15 La. 
Ann. 72. 

Maine. — Sargent v. Hampden, 38 
Me. 581; Wade v. Ridley, 87 Me. 
368, 32 Atl. 975. 

Maryland. — Hodges v. MuUikin. 

1 Bland's Ch. 503. 
Massachusetts. — Doherty v. O'Cal- 

laghan, 157 Mass. 90,31 N. E. 726, 34 
Am. St. Rep. 258, 17 L. R. A. 188. 

Michigan. — Lorimer v. Lorimer, 
124 Mich. 631, 83 N. W. 609. 

M i n n e s t a. — Struckmeyer v. 
Lamb, 75 Minn. 366, 77 N. W, 987. 

Mississippi. — Parkhurst v. Mc- 
Graw, 2 Cushm. 134; Randel v. 
Yates, 48 Miss. 685; Lengslield v. 
Richardson, 52 Miss. 443; Jones z: 
State. 66 Miss. 380, 6 So. 231, 14 
Am. St. Rep. 570. 

Missouri. — Gray v. Fox, 43 Mo. 
570, 97 Am. Dec. 416; Sweet v. 
Owens, 109 Mo. i, 18 S. W. 928. 

Nebraska. — Nelson v. Becker, 32 
Neb. 99, 48 N. W. 962; Basye v. 
State, 45 Neb. 261, 282, 63 N. W. 
811; Sloan V. Wherry, 51 Neb. 703, 
71 N. W. 744; Spaulding v. State, 
61 Neb. 289, 85 N. W. 80. 

Nevada. — Mitchell v. Bromberger, 

2 Nev. 345, 90 Am. Dec. 550. 
Nezv Hampshire. — Brown v. Pay- 
son, 6 N. H. 443 ; Sleeper v. Ab- 
bott, 60 N. H. 162. 

Nezu York. — Bacon v. Frisbie, 80 
N. Y. 394, 36 Am. Rep. 627; Riggs 
V. Denniston, 3 Johns. Cas. 198, 2 
Am. Dec. 145 ; Britton v. Lorenz, 45 
N. Y. 51 ; Renoux v. Geney, 67 N. 
Y. Supp. 928. 

North Carolina. — Hughes f. 
Boone, 102 N. C. 137, 159, 9 S. E. 
286; Carey v. Carey, 108 N. C. 267, 
12 S. E. 1038. 

Vol. X 



Ohio. — Duttenhofer z: State, 34 
Ohio St. 91, 32 Am. Rep. 362; King 
V. Barrett, 11 Ohio St. 261. 

Pennsylvania. — Beltzhoover v. 

Blackstock, 3 Watts 20, 28, 27 Am. 
Dec. 330; Moore v. Bray, 10 Pa. St. 
519; Miller v. Weeks, 22 Pa. St. 
89; Kaut V. Kessler, 114 Pa. St. 
6c3, 7 Atl. 586. 

South Dakota. — Austin T. & W. 
Mfg. Co. V. Heiser, 6 S. D. 429, 437, 
61 N. W. 445. 

Tennessee. — Lockhard v. Brodie, 
I Tenn. Ch. 384. 

Texas. — Sutton v. State, 16 Tex. 
App. 490. 

Utah. — People v. Mahon. i Utah 
205. 

Vermont. — Durkee v. Leland. 4 
Vt. 612. 

J'irginia. — Clay z'. Williams, 2 
Munf. 105, 5 Am. Dec. 453; Parker 
V. Carter, 4 Munf. 273, 6 Am. Dec. 

513. 

West Virginia. — State v. Doug- 
las, 20 W. Va. 770. 780. 

Wisconsin. — Dudley v. Beck, 3 
Wis. 274. 284; Koeber v. Somers, 108 
Wis. 497, 84 N. W. 991. 52 L. R. 
A. 512. 

" An attorney at law cannot be 
compelled, and will not be permitted 
to disclose what his client, as such, 
has confidentially confided to him." 
Rogers v. Dare, Wright (Ohio) 136; 
Morris v. Cain's Exrs., 39 La. Ann, 
712, 726, I So. 797, 2 So. 418. 

For collection of common law au- 
thorities on the subject of the gen- 
eral rule, see Hernandez v. State, 18 
Tex. Crim. 134, 152. 

" The unrestricted communication 
between parties and their profes- 
sional advisers has been considered 
to be of such importance as to make 
it advisable to protect it, even by the 
concealment of matter without the 
discovery of which the truth of the 
case cannot be ascertained." Lord 
Langdale in Reece v. Trye, 9 Beav. 
316. 50 Eng. Reprint 365. 

" Where the attorney is profes- 
sionally emploj'ed, any communica- 
tion made to him by his client with 
reference to the object or the sub- 
ject of such employment, is under 
the seal of professional confidence, 
and is entitled to protection as a 
privileged communication." Bank of 
Utica V. Mersereau, 3 Barb. Ch. (N. 



PRIVILEGED COMMUNICA TIONS. 



207 



2. History. — Such communications were privileged at common 
law,^^ and are protected by statute in all of the states of the union. ^- 

United States Courts. — Courts of the United States in determining 
questions of privilege apply the statute of the state wherein the 
trial court is held.^^ 



Y.) 528, 49 Am. Dec. 189. Opinion 
by Chancellor Walworth. 

In National Bank v. Delano, 177 
Mass. 362, 58 N. E. 1079, 83 Am. St. 
Rep. 281, the court says : " The pe- 
titioner admitting the general rule 
that, where an attorney is profes- 
sionally employed by a client, all 
communications between them in the 
course and for the purpose of that 
employment are so far privileged 
that the legal adviser, when called as 
a witness, cannot be permitted to 
disclose them, Taylor, Ev. (9th Ed.) 
§911, contends that 'it is impossible 
to conceive how the information 
conveyed by the communication 
could have been presumed to be of 
any consequence in connection with 
the matter in hand,' especially when 
taken in connection with the offer to 
show that it was not made for the 
purpose of taking advice. This con- 
tention does not seem to us tenable. 
The insolvency of an ordinary part- 
nership imports the insolvency of 
every partner, and the proceedings 
in insolvency in such a case may in- 
volve the marshaling of the assets 
and claims as between the creditors 
of the firm and the individual cred- 
itors of each partner. Whether the 
notes in dispute were provable 
against the firm, or only against the 
individual estate of George, was a 
matter with which Emmons in the 
course of his professional duty was 
likely to have occasion to deal, both 
as counsel for the firm and as coun- 
sel for Cadmus. He needed to be 
informed about it, and the communi- 
cation made by Cadmus was in the 
strict line of the information needed. 
Indeed it is difficult to see how the 
attorney could have been in a situ- 
ation to do his duty properly without 
some information on this point. It 
is a plain case of a communication 
from a client to an attorney, while 
such attorney, and employed to con- 
tinue to act as such in a matter 
running into the future. The com- 



munication was of a fact about 
which he, as such attorney and in 
no other capacity, needed informa- 
tion. It was made to him in the 
course of his employment. It mat- 
ters not that at that time it was not 
made for the express purpose of 
taking advice. It is enough if it was 
a statement of a fact made' in the 
course of the employment and was 
material thereto, or believed to be 
such, and was made by the client 
to his attorney in recognition and 
because of the professional relation 
between them. The case is clearly 
distinguishable from Hatton v. Rob- 
inson, 14 Pick. 416, and similar cases 
upon which the petitioner relies." 

The case of Anderson v. Bank of 
British Columbia, 2 Ch. Div. (Eng.) 
644. 45 L. J. Ch. 449, 35 L. T. 76, 
contains an elaborate discussion of 
the law governing communications 
to attorneys, and a review of Eng- 
lish authorities, although the ques- 
tion there decided was that corre- 
spondence between a bank and its 
agents is not privileged, it not ap- 
pearing that the letter there in ques- 
tion was prepared for the purpose of 
being submitted to counsel. 

81. 3 Black. Com. Ch. 3, p. 370; 
I Greenl. Ev. 15th Ed., %227; 4 
Wigmore Ev., § 2290 ; King v. Bar- 
rett, II Ohio St. 261; Struckmeyer 
v. Lamb, 75 Minn. 366, 77 N. W. 987. 

82. In Peek v. Boone, 90 Ga. 767, 
17 S. E. 66, it is said that communi- 
cations of client to attorney are priv- 
ileged irrespective of statute. 

83. Connecticut Mut. L. Ins. Co. 
v. Schaefer, 94 U. S. 457. This case 
involved privilege of statement to 
physician, but announces the rule as 
stated in the text. It is followed, on 
question of state law as prescribing 
rule of evidence in Nashua Sav. 
Bank v. Anglo-American, L. M. & 
A. Co., 189 U. S. 221. To same ef- 
fect is Vance v. Campbell, i Black 
(U. S.) 427; Witters v. Sowles, 32 
Fed. 130. 



Vol. X 



208 



PRIVILEGED COMMUNICATIONS. 



3. Founded Upon Public Policy. — The rule forbidding the giv- 
ing in evidence of such communications is founded upon public 
policy.®* 

4. Object of Rule. — The object of the rule is to protect the cli- 
ent,®^ and to enable and encourage free and unembarrassed com- 
munication between those needing advice and their legal advisers.®" 



84. Arkansas. — Andrews' Admx. 
V. Simms' Admr. 33 Ark. 771. 

Connecticut. — State v. Barrows, 52 
Conn. 323. 

District of Columbia. — Oliver v. 
Cameron, Mc Arthur & M. 237. 

Illinois. — People v. Barker, 56 111. 
300. 

Kentucky. — Carter v. West^ 93 Ky. 
211, 19 S. W. 592. 

Maine. — Sargent v. Hampden, 38 
Maine 581. 

Mississippi. — Crisler v. Garland, 
II Smed. & M. 136, 49 Am. Dec. 49; 
Lengsfield f. Richardson, 52 Miss. 443. 

Missouri. — Denser v. Walkup, 43 
Mo. App. 625; Hamil v. England, 50 
Mo. App. 338. 

New York. — Bacon v. Frisbie, 80 
N. Y. 394, 36 Am. Rep. 627. 

Ohio. — King v. Barrett, 11 Ohio 
St. 261. 

South Dakota. — Austin T. & W. 
Mfg. Co. z> Heiser, 6 S. D. 429, 437, 
61 N. W. 445. 

West Virginia. — State v. Douglas, 
20 W. Va. 770, 780. 

85. Protection of Client United 

States. — Liggett z'. Glenn. 51 Fed. 
381, 2 C. C. A. 286, 4 U. S. App. 438. 

California. — In re Mullin's Estate, 
no Cal. 252, 42 Pac. 645. 

Georgia. — O'Brien v. Spalding, 102 
Ga. 490, 31 S. E. 100, 66 Am. St. 
Rep. 202; State v. Minter, in Ga. 
45, 36 S. E. 321, 50 L. R. A. 356. 

Maine. — McLellan v. Longfellow, 
22 Me. 494, 54 Am. Dec. 599. 

Massachusetts. — Brooks v. Hold- 
en, 175 Mass. 137, 55 N. E. 802. 

Michigan. — Hamilton v. People, 
29 Mich. 173, 183. 

New Hampshire. — Sleeper v. Ab- 
bott, 60 N. H. 162. 

" The rule is, that the solicitor 
must conceal the communications of 
his client, and that not for his own 
sake, but for the sake of his clients." 
Hutchins v. Hutchins, i Hogan 
(Irish) 315. 

86. To Encourage Confidence - 

Vol. X 



Sleeper v. Abbott, 60 N. H. 162. 
Crosby v. Berger, 11 Paige (N. Y.) 
377, 42 Am. Dec. 117. 

" There must be the freest pos- 
sible communication between solic- 
itor and client, and it is on this 
ground that professional communi- 
cations are entitled to privilege, 
which excepts them from the general 
rule." Southwark & V. W. Co. v. 
Quick, 47 L. J. Q. B. 258, 3 Q. B. 
Div. 315, affirming 38 L. T 28. 

In Wade v. Ridley, 87 Me. 368, 
32 Atl. 975, the court says : " An 
order of men, honorable, enlightened, 
learned in the law and skilled in 
legal procedure, is essential to the 
beneficient administration of justice. 
The aid of such men is now practi- 
cally indispensable to the orderly, ac- 
curate and equitable determination 
and adjustment of legal rights and 
duties. While the right of every per- 
son to conduct his own litigation 
should be scrupulously respected, he 
should not be discouraged, but rather 
encouraged in early seeking the as- 
sistance or advice of a good lawyer 
upon any question of legal right. In 
order that the lawyer may properly 
perform his important function, he 
should be fully informed of all facts 
possibly bearing upon the question. 
The person consulting a lawyer 
should be encouraged to communi- 
cate all such facts, without fear that 
his statements may be possibly used 
against him. For these reasons, the 
rule above stated should be construed 
liberally in favor of those seeking 
legal advice. It does not apply, of 
course, where it is sought to find a 
way to violate some law." 

" This privilege is essential to pub- 
lic justice, for did it not exist, no 
man would dare to consult a profes- 
sional adviser, with a view to his de- 
fense, or to the enforcement of his 
rights." State v. White, 19 Kan. 445,. 
27 Am. Rep. 137. 



PRIVILBGBD COMMUNICATIONS. 



209 



5. To Whom Belongs. — The privilege belongs to the client.^^ 
Client Public Official, Immaterial. — Privilege extends to communi- 
cations made between public officers and their attorneys.^^ 

Trustee Acting as Attorney for One Beneficiary. — If an attorney who 
is trustee for two beneficiaries acts as attorney for one of them in 



87. England. — Strode v. Seaton, 
2 Ad. & El. 171; Merle v. More, 
Ry. & M. 390; In re Cameron's etc. 
R. Co., 25 Beav. i ; 53 Eng. Reprint 
535; Wright v. Mayer, 6 Ves. Jr. 280, 
31 Eng. Reprint 1051 ; Gresley v. 
Mousley, 2 Kay & J. 288, 69 Eng. 
Reprint, 789. Intimated to the con- 
trary in Maddox v. Maddox, i Ves. 
Sr. 62, 27 Eng. Reprint 892 ; Procter 
V. Smiles, 55 L. J. N. S. Q. B. 527, 
affirming s. c. ib. 467; Original 
Hartlepool Collieries Co. v. Moon, 
30 L. T. N. S. 193 ; affirmed, 30 L. T. 
N. S. 585. 

United States. — Chirac v. Rein- 
ecker, 11 Wheat. 280, 289; Hunt v. 
Blackburn, 128 U. S. 464. 

California. — People v. Atkinson, 
40 Cal. 284; Weidekind v. Tuolumne 
County Water Co., 74 Cal. 386, 19 
Pac. 173, 5 Am. St. Rep. 445. In 
re Cowdery, 69 Cal. 32, 10 Pac. 47, 
58 Am. Rep. 545. In re Mullin's 
Estate, no Cal. 252, 42 Pac. 645. 

Georgia. — Martin v. Anderson, 
21 Ga. 301 ; O'Brien v. Spalding, 102 
Ga. 490, 31 S. E. 100, 66 Am. St. 
Rep. 202; Stone v. Minter, in Ga. 
45, 36 S. E. 321, 50 L. R. A. 356. 

Illinois. — Fossler v. Schriber, 38 
111. 172; Scott V. Harris, 113 111. 447; 
People V. Barker, 56 111. 300. 

Indiana. — Bigler v. Royher, 43 
Ind. 112; Wilson v. Ohio Farmers' 
Ins. Co., 164 Ind. 462, y2 N. E. 892. 

Kentucky. — Carter v. West, 93 
Ky. 211, 19 S. W. 592. 

Louisiana. — Morris v. Cain's Exrs., 
39 La. Ann. 712, 726, i So. 797; 2 
So. 418. 

Maine. — Aiken v. Kilburne, 27 
Me. 252. 

Maryland. — Chase's Case, I 
Bland's Ch. 206, 17 Am. Dec. 377; 
Hodges V. Mullikin, i Bland's Ch. 
503. Bx parte Maulsby, 13 Md. 625. 

Massachusetts. — Foster v. Hall, 12 
Pick. 89, 22 Am. Dec. 400; Hatton 
V. Robinson, 14 Pick. 416, 25 Am. 
Dec. 415. 

Michigan. — Passmore v. Passmore, 



14 



50 Mich. 626, 16 N. W. 170, 45 Am. 
Rep. 62 ; Maynard v. Vinton, 59 Mich. 
139, 151 ; 26 N. W. 401, 60 Am. Rep. 
276; People V. Gallagher, 75 Mick 
512, 42 N. W. 1063. 

Minnesota. — State v. Tall, 43 
Minn. 273, 45 N. W. 449. 

Mississippi. — Perkins' Admr. v, 
Guy, 55 Miss. 153, 178, 30 Am. Rep. 
510. 

Missouri. — Hamil v. England, 50 
Mo. App. 338. 

Nezv Hampshire. — Sleeper v. Ab- 
bott, 60 N. H. 162. 

New York. — Bank of Utica v. 
Mersereau. 3 Barb. Ch. 528, 49 Am. 
Dec. 189; Benjamin v. Coventry, 19 
Wend. 353 ; Britton v. Lorenz, 3 
Daly 23, affirmed in 45 N. Y. 51. 

Ohio. — Duttenhofer v. State, 34 
Ohio St. 91, 32 Am. Rep. 362; King 
V. Barrett, 11 Ohio St. 261. 

Pennsylvania. — Beltzhoover v. 
Blackstock, 3 Watts 20, 27 Am. Dec. 
330; Moore v. Bray, 10 Pa. Sl 
519; Dowie's Estate (Appeal of Mc- 
Nulty), 135 Pa. St. 210; 19 Atl. 936. 

South Carolina. — Stoney v. Mc- 
Neil, Harp. L. 557, 18 Am. Dec. 666. 

Texas. — Smith v. Boatman Sav- 
ings Bank, i Tex. Civ. App. 115, 
123, 20 S. W. 1 1 19. 

Virginia. — Parker v. Carter, 4 
Munf. 273, 6 Am. Dec. 513; Clay v. 
Williams, 2 Munf. 105, 5 Am. Dec 

453. ^ . 

In Ramsbotham v. Senior, L. R- 
8 Eq. (Eng.) 575. the court says: 
" With regard to the privilege, I be- 
lieve I am right in saying that the 
universal rule is, that the privilege of 
the solicitor is not his privilege, but 
the privilege of the client, and there- 
fore, if the circumstances are such 
that the client has no privilege, the 
solicitor can have none, because it 
is only for the sake of the client that 
the privilege of the solicitor of not 
producing documents exists." 

88. Client Public Official. — Pax- 
ton V. Steckel, 2 Pa. St. 93. 

Vol. X 



210 PRIVILEGED COMMUNICATIONS. 

litigation between them, communications between himself and his 
client are not privileged as against the other beneficiary.^^ 

Agent Cannot Claim. — If an agent communicate with his prin- 
cipal's attorney concerning principal's business, he cannot, on his 
own behalf, object to the attorney testifying concerning the matter 
communicated.*^" 

Trustee. — Nor can a trustee, as against his beneficiary, so object 
to communications between himself and an attorney concerning the 
trust estate.''^ 

Co-Trustees. — Communications between co-trustees, one of whom 
acts as attorney for the other, are not privileged as against a ben- 
eficiary of the trust. "^ 

When Trustee May Claim, — Trustee may claim privilege as to com- 
munications between himself and attorney, had after the institution 
of an action by beneficiary of trust against trustee concerning the 
subject of the trust,"^ also as to opinions of counsel taken by 
trustee in reference to similar proceedings in another suit.®* 

Representatives of Deceased Trustee may, in an action by beneficiary 
concerning the subject of the trust, claim privilege as to communi- 
cations between themselves and their attorney. ^^ 

Executor. — It has been held in England that a surviving executor 
who had not acted in testator's affairs cannot be compelled to pro- 
'duce cases and opinions of counsel stated and given on behalf of a 
deceased executor who had acted, such cases and opinions relating 
to a claim against deceased executor of the same nature as the claim 
against the surviving executor.'^® 

Corporation. — Nor can a corporation, as against one of its stock- 

89. Tugwell V. Hooper, lo Beav. agent, the attorney may testify 
348, 16 L. J. Ch. 171, 50 Eng. Reprint against the agent concerning such 
616. matters. 

90. Bingham v. Walk, 128 Ind. See also State v. McChesney, 16 
164. 27 N. E. 483. In this case a hus- Mo. App. 259, 268. 

band caused an attorney to prepare 91. Devajaies v. Robinson, 20 

a paper for his wife. In an action Beav. 42, 52 Eng. Reprint 518; 

involving this paper the attorney was Wynne v. Humberston, 27 Beav. 421, 

questioned concerning it. To such 54 Eng. Reprint 165; Talbot v. 

questions the husband's administrat- Marshfield, 2 Drew. & S. 549, 62 

or objected. It did not appear that Eng. Reprint 728. In re Mason v. 

the wife, who was a party to the ac- Cattley. L. R., 22 Ch. Div. 609, 52 

tion objected. Held, that the testi- L. J. N. S. Ch. 478; 48 L. T. 631. 

mony was admissible, the court hold- 92. In re Postlethwaite, L. R. 35 

ing that, as the husband acted in Ch. Div. 722. 

the matter as agent for his wife, the 93. Talbot v. Marshfield, 2 Drew, 

relation of attorney and client ex- & S. 549, 62 Eng. Reprint 728; Bacon 

isted between her and the attorney, v. Bacon, 34 L. T. N. S. (Eng.) 349. 

and she alone could claim the priv- 94. Underwood zr. Secretary of 

ilege. State, 35 L. J. Ch. 545, 14 L. T. 385. 

In Leyner v. Leyner, 123 Iowa 185, 95. Devaynes v. Robinson, 20 

98 N VV. 628, it is held that if the Beav. 42, 52 Eng. Reprint 518. 

principal v/aive privilege as to matters 96. Adams v. Barry, 2 Younge & 

communicated to his attorney by his C. (Eng.) 167, 63 Eng. Reprint 7^. 

Vol. X 



PRIVILEGED COMMUNICATIONS. 



211 



holders, object to the proof of communications between its officers 
and its attorney.^^ 

Attorney for Two Clients, Without Common Interest in the Same Matter, 
is not bound to disclose to one communication made by him to the 
other.»« 

6. Nature of Privilege. — A. Confers Right on Client. — Pos- 
session of this privilege confers upon the client the right to prevent 
confidential communications being given in evidence.^^ 

a. To Exclude Attorney's Testimony. — (1.) Matters Communi- 
cated by Client. — Possessing this right, client may prevent his at- 
torney testifying as to the matter of any statement confidentially 
made by client.^ 

Attorney Not Compelled or Permitted to Testify. — An attorney can- 
not, without the consent of his client, be compelled, and will not be 
permitted to disclose his client's statements.^ 

(2.) Matters Communicated by Agent. — Privilege extends to mat- 
ters communicated to an attorney by client's agent in the course of 
transacting business for his principal.^ 



97. In Gouratid v. Edison Co.. 59 
L. T. N. S. (Eng.) 813, the decision 
seems to be based upon the principle 
that as corporate funds had been 
used in obtaining opinions and ad- 
vice of counsel, the corporation held 
such information in trust for its 
shareholders and must disclose it to 
them. 

As to municipal corporation and 
rate pa3^er, see Mavor of Bristol v. 
Cox, L. R., 26 Ch.' Div. 678, 50 L. 
T. N. S. 719- 

98. Ex parte The Assignee, 27 L. 
T. N. S. (Eng.) 460. 

99. Tays v. Carr, 37 Kan. 141, 14 
Pac. 456; Hamil v. England, 50 Mo. 
App. 338. 

As to "Right" see Liggett v. 
Glenn, 51 -Fed. 381, 396. 2 C. C. A. 
286, 4 N. S. App. 438, where the 
court referring to the general prin- 
ciple of privilege, says : " It confers 
a right upon the client for his pro- 
tection and advantage, and which he 
alone is authorized to waive." 

1. See cases cited in note 80 
ante, under III, i, and note 76 under 
III, 10, post. 

2. " The courts will never compel, 
or even allow, an attorney to dis- 
close facts communicated to him by 
his client." People v. Barker, 56 111. 
300. See also Clay v. Williams. 2 
Munf. (Va.) 105, 5 Am. Dec 453; 



Thorp V. Goewey, 85 III. 61 1; Dut- 
tenhofer v. State, 34 Ohio St. 91, 32 
Am. Rep. 362; Rogers v. Dare, 
Wright (Ohio) 136; King v. Bar- 
rett, 1 1 Ohio St. 261 ; Morris v. Cain's 
Exrs. 39 La. Ann. 712, 726, i So. 
797, 2 So. 418; Struckmeyer v. Lamb, 
75 Minn. 366, 77 N. W. 987; State 
V. Hedgepeth, 125 Mo. 14, 28 S. 
W. 160. 

3. England. — Bunbury v. Bun- 
bury, 2 Beav. 173, s. c. i Beav. 318, 
48 Eng. Reprint 1146; Carpmael v. 
Powis, 9 Beav. 16, i Phil. 687; s. c. 
atnnncd 15 L. J. N. S. Ch. 275, 50 
Eng. Reprint 248; Walker v. Wild- 
man, 6 Madd. 47, 56 Eng. Reprint 
1007; Russell z/. Jackson, 9 Hare 387; 
.y. c. 21 L. J. Ch. 146, 15 Jur. 11 17, 68 
Eng. Reprint 558. 

Canada. — Lawton v. Chance, 9 N. 
B. 411. 

Indiana' — Bingham v. Walk, 128 
Ind. 164, 27 N. E. 483; City of In- 
dianapolis V. Scott, 72 Ind. 196. 

New Hampshire. — Chamberlain v. 
Davis, 33 N. H. 121, 131. 

Vermont. — Strong v. Dodds, 47 
Vt. 348- 

Letters sent to agent by client to 
be communicated to attorney are 
privileged. Reid v. Langlois, i 
Macn. & G. (Eng.) 627, see note 
84, under III, 10, D, b, post. 

Vol. X 



212 



PRIVILEGED COMMUNICATIONS. 



Authority Must Appear, — To entitle such communications to priv- 
ilege, agent's authority to make them must appear.* 

(3.) Attorney's Statements or Advice to Client. — An attorney can- 
not testify concerning his statements or advice to his client.^ 

(4.) Matters Communicated Between Attorneys for Same Client. — The 
client may object to testimony of one of his attorneys concerning 
communications between witness and other attorneys for client.'^ 

b. To Refuse to Testify. — The rule also gives client the right 
to refuse to give his own testimony as to the matter of confidential 
communications between himself and his attorneys.'^ 



4. Sharon v. Sharon, 79 Cal. 633, 
678. 22 Pac. 26, 131. 

5. Statements or Advice of At- 
torney. —Lewis V. State, 91 Ga. 168, 
16 S. E- 986; People V. Hillhouse, 80 
Mich. 580, 45 N. W. 484; Erickson 
V. Milwaukee L. S. & W. R. Co., 
93 Mich. 414, 53 N. W. 393- 

In Jenkinson v. State, 5 Blackf. 
(Ind.) 465, it is held that an at- 
torney can not state what he in- 
formed his client as to the intent 
and meaning of certain papers. 

6. Communications Between At- 
torneys.— See United States v. Six 
Lots of Ground, i Wood C. C. (U. 
S.) 234, where it is held that cor- 
respondence between attorney gen- 
eral of the United States and a dis- 
trict attorney in regard to a criminal 
prosecution is confidential. 

In Jones v. Nantahala M. & T. Co., 
137 N. C. 237, 49 S. E- 94, action was 
brought by attornej^s to recover from 
their clients the value of services 
rendered. An attorney who had 
been associated with plaintiffs, intro- 
duced by defendants, testified that 
plaintiffs' charges were exorbitant. 
On cross-examination he was ques- 
tioned in regard to a letter he had 
written plaintiffs, and a copy of the 
letter was admitted over defendants' 
objection. Held, that the letter was 
privileged. The court says : " The 
objection was hat it was a confiden- 
tial communication between attorneys 
and client, and could not be re- 
ceived as evidence over the objec- 
tion of the client (the defendant). 
The letter, upon its face, shows that 
the matter was of a confidential na- 
ture between lawyer and client. It 
contained matters directl}^ connected 
with the important features of the 

Vol. X 



litigation, bearing on the amount that 
might be recovered against the de- 
fendant, and which, if they had been 
known to the opposing side, might 
have been harmful. The matters be- 
ing confidential at the time the letter 
was written, they remained so per- 
petually, unless they should be after- 
wards waived by the client. It 
makes no difference that the carbon 
copy of the letter was sent to the 
plaintiffs by the witness. It was just 
as much a confidential communication 
as if it had been sent bj^ the client to 
the plaintiffs. All communications, 
whether by conversation or in writ- 
ing, between the attorneys for a party 
concerning the subject-matter of the 
litigation, are privileged." 

letters Between Attorneys See 

note 86. under III, 10, D, d, post. 

7. Client Not Compellable to Tes- 
tify. — England. — Pearse v. Pearse, 
I De G. & S. 12; s. c. 16 L. J. Ch. 
153, II Jur. 52, 63 Eng. Reprint 950. 

Alabama. — Birmingham R. & E. 
Co. V- Wildman, 119 Ala. 547, 24 
So. 548. 

Arkansas. — Bobo v. Bryson, 21 
Ark. 387, 76 Am. Dec. 406. 

California. — Verdelli v. Graj^'s 
Harbor, C. Co., 115 Cal. 517, 526, 47 
Pac 364. 

Indiana. — Jenkinson v. State, 5 
Blackf. 465 ; George v. Hurst, 31 Ind. 
App. 660, 68 N. E. 1031 ; Bigler v. 
Reyiier, 43 Ind. 112. 

Iowa. — Barker v. Kuhn, 38 Iowa 
392. 

Kansas- — State v. White, 19 Kan. 
445, 27 Am. Rep. 137, cited in Wil- 
kins V. Moore, 20 Kan. 538. 

Nebraska. — Basye v. State, 45 
Neb. 261, 283, 63 N. W. 811. 

New For^. — Carnes v. Piatt, 15 



PRIVILEGED COMMUNICATIONS. 



213 



B. Attorne;y Not Incompetent as Witness. — The rule does 
not make the attorney incompetent as a witness for or against his 
cHent.* Consequently, a client cannot object to his attorney being 



Abb. Pr. N. S. 337, 39i; People v. 
Gilon, 9 N. Y. Supp. 243. 

Ohio. — Duttenhofer v. State, 34 
Ohio St. gi. 32 Am. Rep. 362. 

Texas. — Herring v. State (Tex. 
Crim.), 42 S. W. 301; Fort Worth 
& D. C. R. Co. V. Lock. 30 Tex. Civ. 
App. 426, 70 S. W. 456. 

Vermont. — Hemenway v. Smith, 
28 Vt. 701- 

Wisconsin. — Herman v. Schle- 
singer, 114 Wis. 382, 90 N. W. 460, 
91 Am. St. Rep. 922. 

In Kennedy v. Lyell, 23 Ch. Div. 
387, 48 L. T. N. S. 455, the court 
says : " Having regard to the way 
in which the solicitor was emploj^ed 
on behalf of his client for the pur- 
pose of protecting his interests and 
obtaining evidence for his defense, I 
am of opinion that the cHent is not 
bound to disclose any information 
given him by his solicitor as to the 
inferences drawn by him, or as to 
the effect on his mind of what he 
has seen or heard, any more than 
he would be bound to produce as a 
whole the confidential reports made 
to him, whether in writing or verbal- 
1}^ by his solicitor, as to the result 
of the inquiries which the solicitor 
has made." 

Client Turning State's Evidence. 
Accomplice — In Alderman v. Peo- 
ple, 4 Mich. 414, 69 Am. Dec. 321, it 
is held that if a person turn state's 
evidence against his accomplice in 
crime, he may, for purposes of im- 
peachment, be asked on cross-exam- 
ination, if he had not made certain 
statements to his attorney, and he 
will not be permitted to refuse to 
answer on the ground that his state- 
ments were privileged. The court 
says : " The witness Bush was an ac- 
complice in the crime for which the 
defendants, his associates, were on 
trial. He had been led to give evi- 
dence for the people under an ex- 
press or implied promise of pardon, 
or that he should not be prosecuted, 
on condition that he should make a 
full and fair confession of the truth. 
It is a rule of law, that no witness 



shall be required to answer any 
question that may tend to criminate 
himself, yet the accomplice, when he 
enters the witness box with a view 
of escaping punishment himself, by 
a betrayal of his co-workers in crime, 
yields up and leaves that privilege 
behind him. He contracts to make 
a full statement, to keep back noth- 
ing, although in doing so he may but 
confirm his own guilt and infamy. If 
he fails to do so in full, if he know- 
ingly keeps back any portion of the 
history of the crime he undertakes to 
narrate, he forfeits his right to par- 
don, and may be proceeded against 
and convicted upon his own confes- 
sion, already made : Rex v. Rudd, 
Cowper, 331 ; Com. v. Knapp, 10 
Pick., 477; 2 Russell on Cr., 958, 
note a. We think an accomplice 
who makes himself a witness for the 
people should be required to give a 
full and complete statement of all 
that he and his associates may have 
done or said, relative to the crime 
charged, no matter when or where 
done, or to whom said. He should 
be allowed no privileged communi- 
cations. These he has voluntarily 
surrendered. The enforcement of 
such a rule may be the only protec- 
tion the party on trial has left — the 
only means remaining to him to 
meet, it may be, the perjury of the 
criminal upon the witness stand." 

8. Attorney Not Made Incompe- 
tent United States. — Baldwin v. 

National Hedge & W. F. Co., 72> 
Fed. 574. 19 C. C. A. 575- 

Arkansas' — Milan v. State, 24 
Ark. 346. 

California. — Wood v. Etiwanda 
Water Co., 147 Cal. 228, 81 Pac. 512. 

District of Columbia. — Oliver v. 
Cameron, McArthur & M. 237. 

Florida. — Buckniaster v. Kelley, 
IS Fla. 180, 193. 

Georgia. — Smith v. Wilkins, 113 
Ga. 140, 38 S. E. 406; Sharman v. 
Morton, 31 Ga. 34, 45. 

Missouri. — ■ State v. Hedgepeth, 
125 Mo. 14, 28 S. W. 160; Riddles v. 
Aikin, 29 Mo. 453. 

Vol. X 



214 



PRIVILBGBD COMMUNICATIONS. 



sworn as a witness f and an attorney cannot refuse to be sworn.^* 

C. Matte;r Communicated Not Incompetent. — The effect of 
the rule is not to make the matter communicated incompetent/^ 

D. Privilege Relates to Communication. — The privilege ap- 
plies to the communication.^^ 

Character Not Changed by Fact of Payment' of Fee. — Non-privileged 
knowledge of attorney is not rendered privileged by the fact that 
the person v/ith whom he transacts business for his client pays the 
attorney's fee.^^ 

E. Test as to Character oe Communication. — Whether or 
not a given communication shall be held privileged, depends upon 
the circumstances under which the attorney acquired the knowl- 
edge, or imparted the advice in question.^* 



Pennsylvania. — Follansbee v. Wal- 
ker, y2 Pa. St. 228, 13 Am. Rep. 671. 

Texas. — Houx v. Blum, 9 Tex. 
Civ. App. 588. 29 S. W. II35- 

Attorney May Testify to commu- 
nications when called as a witness 
by his client. Riddles v. Aikin, 29 
Mo. 453. 

" But this obligation of secrecy is 
the privilege of the client, not the 
incompetency of the solicitor." 
Chase's Case, i Bland's Ch. (Md.) 
206, 17 Am. Dec. 277. 

9. Oliver v- Cameron, McArthur 
& M. (D. C.) 237. 

10. In re Woodward, 4 Ben. 102, 
30 Fed. Cas. No. 17,999; Wisden v. 
Wisden, 6 Hare 549, 67 Eng. Re- 
print 1281. 

11. In Tays v. Carr, 2,7 Kan. 141, 
14 Pac. 456, the court says : " It is not 
the communication itself from an at- 
torney to his client that is incompe- 
tent; but the attorney is prevented 
from testifying concerning it." 

12. "The privilege applies to the 
communication; and it is immaterial 
whether the client is or is not a party 
to the action in which the question 
arises, or whether the disclosure is 
sought from the client or his at- 
torney." Duttenhofer v. State, 34 
Ohio St. 91, 32 Am. Rep. 362, citing 
Wharton on Ev. § 588, and Stephen's 
Ev. art. 115. 

On this subject, see discussion in 
Liggett V. Glenn, 51 Fed. 381, 395, 
2 C. C. A. 286, 4 U. S. App. 438. 

" Such communications are not ex- 
cluded on account of a privilege 
which an attorney may waive because 
it is a personal one, but on account 

Vol. X 



of a privilege attached to the com- 
munication, for the better adminis- 
tration of justice, and which can only 
be separated from it, by the consent 
of the client." Aiken v. Kilbourne, 
27 Me. 252. 

In Hoyt V. Hoyt, 112 N. Y. 493, 20 
N. E. 402, speaking of New York 
statute which embodied the rule of 
the common law, the court of ap- 
peals of New York says : " The rule 
does not prohibit the examination of 
such classes of witnesses ; but it pro- 
hibits the evidence of the character 
described from being given in the 
face of an objection." 

13. Character Not Changed by 
Payment. — Brown v. Grove, 80 Fed. 
564. 25 C. C A. 644. 

14. Test. — " The determination 
of this question (i. e. privileged or 
non-privileged communication) must 
necessarily depend upon the circum- 
stances under which the particular 
' matter or thing ' claimed to be priv- 
ileged came to be known to the wit- 
ness. If ' by virtue of his relations 
as attorney,' he may not testify; 
otherwise, if ' he may have acquired 
in any other manner ' knowledge 
thereof." O'Brien v. Spalding, 102 
Ga. 490, 31 S. E. 100, 66 Am. St. 
Rep. 202. 

" The test or rule deducible from 
the authorities seems to be this: If 
the statements of fact were made to 
an attorney at law in good faith, for 
the purpose of obtaining his profes- 
sional guidance or opinion, they are 
privileged ; otherwise they are not 
privileged." Wade v. Ridley, 87 Me> 
368, 32 Atl. 975- 



PRIVILEGED COMMUNICATIONS. 



215 



F. Not Affected by Change of Common Law Rule. — Privi- 
lege is not affected by statute which changes the common law rule 
and permits parties to testify in their own behalf, or requires them 
to testify when called by opponent.^^ 

7. Essentials. — A. Attorney. — To exclude evidence on the 
ground that its disclosure would violate professional confidence, 
it must appear that the communication in question was made to 
a member of the legal profession, as an attorney, barrister, counsel 
or solicitor.^^ 



" In determining whether or not 
an attorney should be required or 
permitted to testify to a conversation 
between himself and another person 
without the consent of the latter, the 
test is : Had such person at the time 
of the conversation employed the at- 
torney in his professional capacity in 
respect to the subject matter of the 
conversation? If yes, the testimony 
would not be admissible; otherwise, 
it would be." Denver Tramway Co. 
V. Owens, 20 Colo. 107, 36 Pac. 848. 

" The admissibility of the com- 
munication, in our judgment, is not 
dependent upon the manner in which 
control thereof is obtained from the 
counsel, but upon the inherent char- 
acter of the communication itself. 
If the admission or statement sought 
to be put in evidence was made by 
reason of the confidential relation ex- 
isting between client and counsel, it 
becomes a privileged communication, 
and as such it is not competent evi- 
dence against the client. Its com- 
petency is not dependant upon the 
mere manner in which knowledge 
thereof may be obtained from coun- 
sel. The principle forbidding its use 
is not adopted as a mere rule of pro- 
fessional conduct on part of the at- 
torney. It confers a right upon the 
client for his protection and ad- 
vantage, and which he alone is au- 
thorized to waive. It will not do to 
hold that the communication loses 
its confidential and privileged char- 
acter if knowledge thereof can be 
obtained by means which do not in- 
volve the counsel in a breach of pro- 
fessional duty." Liggett v. Glenn, 51 
Fed. 381, 2 C. C. A. 286, 4 N. S. App. 
438. In this case it was claimed that, 
because a certain document had 
passed out of an attorney's posses- 
sion, it could be introduced in evi- 
dence. 



15. Brand v. Brand, 39 How. Pr. 
(N. Y.) 193, 261. 

16. Illinois. — McLaughlin v. Gil- 
more, I 111. App. 563. 

Iowa. — Sample v. Frost, 10 Iowa 
266; Charles City Plow & Mfg. Co. 
V. Jones, 71 Iowa 234, 32 N. W. 280. 

North Carolina. — State v. Smith, 
138 N. C. 700, 50 S. E. 859. 

Ohio. — Benedict v. State, 44 Ohio 
St. 679, 688, II N. E. 125. 

Pennsylvania. — Schubkagel v. Dier- 
stein, 131 Pa. St. 46, 54, 18 Atl. 
1059, 6 L. R. A. 481. 

Vermont. — Holman v. Kimball, 22 
Vt. 555. 

Wisconsin. — Brayton v. Chase, 3 
Wis. 456. 

See also discussion in Foster v. 
Hall, 12 Pick. (Mass.) 89, 22 Am. 
Dec. 400; Hatton v. Robinson, 14 
Pick. (Mass.) 416, 25 Am. Dec. 415. 

In Pierson z'. Steortz, i Morris 
(Iowa) 136, it is said that: "The 
rule of exemption within which it is 
sought to include this case, has never, 
we believe, been extended further 
than to include disclosures made to 
practicing attorneys for the purpose 
of obtaining professional advice." 

Record Must Show Status — Be- 
fore an Appellate Court will rule 
that certain testimony should have 
been excluded on the ground that 
it called for disclosure of privil- 
eged communication, it must appear 
that the person to whom the state- 
ment in question was made was a 
lawyer. IMachette v. Wanless, 2 
Colo. 169, 179. 

If a person, not an attorney, is 
applied to and requested to draw a 
conveyance, and, after communica- 
tion with an attorney, advises the 
person addressing him that he cannot 
make the proposed conveyance, state- 
ments made to the person originally 
applied to are held not privileged. Doe 

Vol. X 



216 



PRIVILEGED COMMUNICATIONS. 



a. Solicitor of Patents. — Communications between applicant for 
patent and solicitor of patents are not privileged/^ 

b. Adviser and Conveyancer. — Nor are communications to a 
person who acts as conveyancer and general adviser for people of 
a village, but who has not been admitted to practice.^* 

c. Person Admitted in Inferior Courts. — As to whether commu- 
nications to persons who have been admitted to practice in inferior 
courts, but not in superior courts, are privileged, the authorities are 
conflicting. It has been held that such communications to such per- 
sons are privileged ;^^ also that they are not.-° 

d. When Admission Not Necessary. — Under statute permitting 
any citizen to prosecute or defend an action by any other citizen 



V. Jauncy. 8 Car. & P. (Eng.) 99- 

17. Brungger v. Smith, 49 Fed. 
124. 

In England communications to a 
" Patent Agent " are not privileged. 
Mosele}^ v. Victoria Rubber Co., 55 
L. T. N. S. (Eng.) 482. 

18. Later v. Haywood (Idaho), 
85 Pac. 494- 

19. Scales v. Kelley, 2 Lea 
(Tenn.) 706; English v. Ricks 
(Tenn.), 95 S. W. 189. 

In Benedict v. State. 44 Ohio St. 
679, 688, II N. E. 125, it is held that 
communications to a person who 
practices before Justice's courts, but 
not before superior courts, are priv- 
ileged. So in Tennessee as to per- 
son admitted to practice before 
Justices of the Peace and County 
Courts. Scales v. Kelley; English 
V. Ricks, supra. In the case last re- 
ferred to the court says : " In the 
court below, Mr. Bond, a witness for 
the contestants, was permitted to tes- 
tify — over objection — that the tes- 
tator offered him $1000 to assist 
him in obtaining a divorce from his 
wife. In stating the offer of this 
fee, the witness was permitted to de- 
tail a rather extended conversation 
between himself and his proposed 
client in respect of the relations ex- 
isting between the latter and his 
wife. The ground of the objection 
was that Bond was an attorney and 
was consulted by Mr. English in that 
capacit}^ It appears from the tes- 
timony of Mr. Bond that he had a 
license only under the statute per- 
mitting him to practice before jus- 
tices of the peace. 

Vol. X 



One acting under such limited li- 
cense would, of course, have no 
power to conduct a divorce proceed- 
ing, since justices of the peace are 
without jurisdiction in such matters. 
However, the relations between an 
attorney of this grade and one con- 
sulting him upon legal rights would, 
nevertheless, be confidential. It is 
true, strictly speaking, all that such 
embryonic attorney could legally do 
would be to emplo}^ some lawyer hav- 
ing a general license and turn the 
fee over to him ; yet, it would not be 
proper to permit one having such 
limited license to obtain confidential 
communications on the faith of his 
office as an attorney and then to di- 
vulge them on the ground that the 
particular kind of case was beyond 
his legal powers. Public policy re- 
quires that confidential communica- 
tions between client and counsel shall 
be held sacred. We think the whole 
conversation was incompetent, and 
should have been excluded." 

20. McLaughlin v Gilmore, i 111. 
App. 563. In this case a man testi- 
fied that a certain person had con- 
sulted with him in regard to the de- 
fense of an action pending before a 
justice of the peace; also that wit- 
ness was not a licensed attorney, 
never having been admitted to prac- 
tice before the supreme court, but 
that he did practice in justice's 
courts. Held, that the communica- 
tion was not privileged, on the 
ground that witness was not a law- 
yer, as the laws of Illinois recognized 
as lawyers those only who were elig- 
ible to practice before the supreme 
court. 



PRIVILEGED COMMUNICATIONS. 



217 



of good moral character, communications between a party to an 
action and a non-professional person who represents him in such 
action are privileged.-^ 

e. Active Practice Not Necessary. — It is not necessary that the 
attorney be in active practice.^- 

f. Scrivener Acting as Attorney. — It has been held that the priv- 
ilege extends to a scrivener who acts as attorney in a particular 
transaction.^^ 

g. Admission in Country Where Privilege Claimed, Unnecessary. 
Communications to an attorney are privileged, although made to 
him in a country in which he has not been admitted to practice, and 
privilege is claimed in a court of that country.^* 

h. Person Addressed Must he Knozvn to be Attorney. — It is 
necessary that the person to whom a professional communication 
is made, be known by the party communicating, to be an attorney.^^ 

Belief Not Sufficient. — It has been held that it is not sufficient that 
the person making a given communication believes the person ad- 
dressed to be a member of the legal profession.-^ 

But if belief in existence of relation is caused by fraud, or mis- 
take, communications made under the influence of such belief are 
privileged.^^ 



21. Bean v. Quimby, S N. H. 94. 
In this case it was sought to ex- 
ckide the testimony of a perso_;i who, 
not having been admitted to practice, 
had represented another person in an 
action. The court cited a statute of 
1771, permitting any citizen of the 
state to prosecute or defend an ac- 
tion by any other citizen of good 
moral character. Held, that com- 
munications between such persons 
were privileged. 

22. Charles City Plow & Mfg. Co. 
•;:•. Jones, 71 Iowa 234, 239, 32 N. W. 
280. 

23. Clay v. Williams, 2 Munf. 
(Va.) 105. 5 Am. Dec. 453. 

24. Lawrence v. Campbell, 4 Dr. 
(Eng.) 485; ^. c. 28 L. J. N. S. 
Ch. 780, 5 Jur. N. S. 1071, 62 Eng. 
Reprint 186. 

25. Hawes v. State, 88 Ala. 37, 
68, 7 So. 302; Barnes v. Harris, 7 
Cush. (Mass.) 576, 54 Am. Dec. 
734; Sample v. Frost, 10 lovya 266; 
Union Pac. R. Co. v. Day, 68 Kan. 
726, 75 Pac. 1021. 

See remarks of court in Foster v. 
Hall, 12 Pick. (Mass.) 89, 22 Am. 
Dec. 400. 

26. Hawes v. State, 88 Ala. 37, 
68, 7 So. 302; Barnes v. Harris, 7 



Cush. (Mass.) 576, 54 Am. Dec. 
734; Sample v. Frost, 10 Iowa 266. 

This principle is stated by the court 
in Foster v. Hall, 12 Pick (Mass.) 
89, 22 Am. Dec. 400, in discussing 
the general rules governing commun- 
ications between attorney and client, 
the court giving as authority for this 
proposition, Fountain v. Young, 6 
Esp. cEng.) 113. 

27. Belief Sufficient, if Induced 
by Fraud — In People v. Barker, 60 
Mich. 277, 27 N. W. 539. 546, I Am. 
St. Rep. SOI, the court says : " The 
respondents then examined the wit- 
ness Cross, and also the prosecuting 
attorne\' and sheriff, whose testimony 
did not show that any confessions 
were obtained from respondents by 
means of threats, or b}'^ promises of 
favor, or by holding out to the flat- 
tery of hope ; but did show, conclus- 
ively, that artifice and deception were 
used to obtain a confession from re- 
spondents. This was accomplished 
through a detective agency of Chi- 
cago, by which a detective, by arti- 
fice and deception, personated, and 
led respondents to believe that he 
was a lawyer of celebrity from Chi- 
cago ; and in the confidence of that 
supposed relation obtained from them 

Vol. X 



218 



PRIVILEGED COMMUNICATIONS. 



i. Attorney's Clerk or Agent. — Communications to employes or 
agents of an attorney are privileged, if made to or by them in the 
course of the performance of their duty to their employer, in regard 
to professional business of person making the communications. 

Clerk. — Thus, communications are privileged when made to or 
by, or in the presence of an attorney's clerk, -^ or agent.-'-* 

Agent to Collect Evidence. — If an attorney employ an agent to 
collect evidence to be used in the conduct of his client's case, com- 
munications between such agent and the client, and between agent 
and attorney, are privileged.^'^ 

Must Be Agent in law Business. — To entitle communications to an 



a statement of their connection with 
the crime. Confidential communica- 
tions made in reliance upon the sup- 
posed relation of attorney and client, 
whether party assuming to. act as 
such is an attorney or not, are ex- 
cluded upon the plainest principles of 
justice. Indeed, the confessions thus 
obtained, when offered in evidence, 
were promptly excluded by the court. 
The confessions sought to be intro- 
duced were statements to or in the 
hearing of other parties having no 
connection whatever with the pre- 
tended lawyer, and upon other and 
different occasions. There was no 
testimony showing what statements 
the detective made to respondents 
to induce them to confide in him, or 
to make any confessions to him, 
other than that of his being an attor- 
ney from Chicago, at the time the 
circuit judge decided to admit the 
testimony of the witnesses relative 
to the alleged confessions." 

In Calley v. Richards, ig Beav. 
401, 52 Eng. Reprint 407, a person 
addressed letters to a solicitor who 
had ceased to practice, but whose 
name remained in his firm, not 
knowing of the cessation from busi- 
ness. Held, the letters were privi- 
leged. 

The distinction between cases cited 
in note immediately preceding, and 
those cited in this note is obvious. 
In the former cases witness was not 
and had not been, a lawyer. In 
Richards v. Calley, witness had been 
solicitor for the person addressing 
him, and, so far as the record shows, 
there was nothing to put such per- 
son upon inquiry as to a change of 
status or relationship. In People v. 
Barker, the making of the communi- 

Vol. X 



cation in question was obtained by- 
fraud. 

28. ClerK — Bngland. — Taylor v. 
Forster, 2 Car. & P. 195 ; 12 E. C. L. 
85 ; Rex. V. Upper Bodington, & 
Dowl. & Ryl. 726, 16 E. C. L. 348- 

Alabama. — Hawes v. State, 88 
Ala. 2>1, 68, 7 So. 302. 

California. — Landsberger v. Gor- 
ham, 5 Cal. 450. 

Illinois. — Kinney v. Bauer, 6 111. 
App. 267. 

Indiana. — Indianapolis v. Scott, 72- 
Ind. 196, 203. 

Massachusetts. — Foster v. Hall, 12 
Pick. 89, 22 Am. Dec. 400; Hatton v. 
Robinson, 14 Pick. 416, 25 Am. Dec. 

415- 

Nezv York. — Sibley v. Wafifle, 16 
N. Y. 180. 

In Jackson v. French, 3^ Wend. 
(N. Y.) 337, 20 Am. Dec. 699, it is 
said that the cases differ on the ques- 
tion whether or not communications 
made to a clerk in a lawyer's office 
are privileged. 

29. Agent. — Parkins v. Hawk- 
shaw, 2 Stark. 239, 3 E. C. L. 333- 

Attorney Employed by Another^ 
Communications made by a person 
to an attorney employed by such per- 
son's attorney are privileged. State 
V. Mewherter, 46 Iowa 88, 94. 

Reports made by one solicitor to 
another by whom he is employed to 
examine and report upon records, his 
report to be used in conduct of liti- 
gation for his employer's client, are 
privileged. Churton v. Frewen, 2 
Dr. & S. 390, 62 Eng. Reprint 669. 

SO. Steele v. Stewart, i Phil. 47i» 
affirming s. c. 13 Sim. 533, 14 L. J. 
Ch. 34, 9 Jur. 121, 41 Eng. Reprint 
711; Churton v. Frewen, 2 Dr. & 
S. 390, 62 Eng. Reprint 669, 



PRIVILEGED COMMUNICATIONS. 



219 



agent to privilege, such agent must act for his principal in conduct- 
ing his professional business. ^^ 

j. Stenographer. — Communications to an attorney in presence 
of his stenographer are privileged, and stenographer cannot give 
such communications in evidence. ^- 

k. Interpreter. — So as to statements made to an interpreter to be 
translated to an attorney.'^ 

1. Student. — Communications to a student in a lawyer's office are 
not privileged, unless the student was acting as a clerk.^* 

m. Requisites of Conununication to Clerk, Etc. — Communica- 
tions to clerk or agent not privileged unless it appear that they re- 
lated to the business upon which their employer was engaged for 
his client, and were made to enable him to perform his professional 
duty.^^ 

B. Attorney Must be Consulted Professionally. — To en- 
title a client to exclude his attorney's testimony on the ground of 
privilege, it must appear that his communication was made to the 
attorney professionally, the mere fact that witness v/as an attorney 
not beins: sufficient."" 



31. Goddard v. Gardner, 28 Conn. 
172. In this case client had a conver- 
sation with his attorney in the pres- 
ence of the latter's son, who was his 
father's agent in conducting a farm 
and other business, but rendered no 
service in regard to law business. 
Held, that the son could be compelled 
to give such conversation in evidence. 

32. In State v. Brown. 2 Marv. 
(Del.) 380, 36 Atl. 458, the state- 
ments in question were made to a 
stenographer in the office of the at- 
torney-general, in preparing a case 
for trial. 

33. Interpreter, Client's State- 
ments to — DuBarre v. Livette, i 
Peake N. P. (Eng.) 108; Foster v. 
Hall, 12 Pick. (Mass.) 89, 22 Am. 
Dec. 400; Jackson v. French, 3 
"Wend. (N. Y.) 2)2i7^ 20 Am. Dec. 
699; Hatton V. Robinson, 14 Pick. 
(Mass.) 416, 25 Am. Dec. 415; Clay 
V. Williams, 2 Munf. (Va.) 105, 
5 Am. Dec. 453. 

Attorney to Interpreter As to 

attorney's statements to interpreter, 
see Maas v. Bloch, 7 Ind. 202. 

34. Knight v. Sampson, 99 Mass. 
36; Andrews v. Solomon, i Pet. C. 
C. (U. S.) 356. 

Even if Student is Supposed by- 
Client to be an Attorney In 

Barnes v. Harris, 7 Cush. (Mass.) 
576, 54 Am. Dec. 734, and in Hawes 



V. State, 88 Ala. 37, 68, it is held that 
communications made to a student in 
a lawyer's office are not privileged, 
even if the person making it sup- 
posed the student to be an attorney. 

Or Employed to Assist in Litiga- 
tion — Schubkagel v. Dierstein, 131 
Pa. St. 46, 54, 18 Atl. 1059. 

Or Conduct Litigation Holman 

V. Kimball, 22 Vt. 555. 

35. Com. V. Best, 180 Mass. 492, 
62 N. E. 748; Morton v. Smith 
(Tex. Civ. App.), 44 S. W. 683; 
Vaillant v. Dodemead, 2 Atk. 524, 
26 Eng. Reprint 715. 

Attornej^'s clerk held to be within 
the rule, but testimony held com- 
petent on another ground. Lecour v. 
Importers' & T. Nat. Bank, 6 App. 
Div. 163, 70 N. Y. Supp. 419. 

Agent or Clerk Not Known to be 
Such — Communications made to a 
person who is in fact agent or clerk 
of the attorney, but who is not 
known by client to be such, are not 
privileged. Hawes v. State, 88 Ala. 
37, 68, 7 So. 302. 

36. England. — Bunbury v. Bun- 
bury, 2 Beav. 173, 48 Eng. Reprint 
1 146; Wilson V. Rastall, 4 Term. Rep. 

754, 759. 

United States. — Laflin v. Herring- 
ton, I Black. 326; In re Aspinwall, 7 
Ben. 433, 2 Fed. Cas. No. 591 ; In re 
O'Donohoe, 18 Fed. Cas. No. 10,435. 

Vol. X 



220 



PRIVILEGED COMMUNICATIONS. 



a. Attorney as Friend. — Communications made to an attorney as 
a friend, and not for the purpose of enabling him to render profes- 
sional service, are not privileged.^^ 

b. Capacity in Which Consulted. — How Determined. — The na- 



Alabama. — State v. Marshall, 8 
Ala. 302. 

California. — Sharon v. Sharon, 79 
Cal. 633, 678, 22 Pac. 26, 131. 

Colorado. — Caldwell v. Davis, 10 
Colo. 481, 15 Pac. 696, 3 Am. St. 
Rep. 599. 

District of Columbia. — Patten v. 
Glover, i App. Cas. 466. 

Georgia. — O'Brien v. Spalding, 102 
Ga. 490, 31 S. E. 100, 66 Am. St. 
Rep. 202. 

Illinois. — Granger v. Warrington, 
8 111. 299, 308; Goltra v. Wolcott, 14 
111. 88; City of Rockford v. Falver, 27 
111. App. 604. 

Indiana. — Borum v. Fonts, 15 Ind. 
50; McDonald v. McDonald, 142 
Ind. 55, 74, 41 N. E. 336. 

lozva. — Sample v. Frost, 10 Iowa 
266; Shaffer v. Mink, 60 Iowa 754, 
14 N. W. 726. 

Kansas. — State v. Herbert, 63 
Kan. 516, 66 Pac. 235. 

Louisiana. — Reeves v. Burton, 6 
Mart. (N. S.) 283. 

Michigan. — Alderman v. People, 
4 Mich. 414, 69 Am. Dec. 321. 

Nebraska. — Mills v. State, 18 Neb. 
575, 26 N. W. 354. 

New Hampshire. — Brown v. Pay- 
son, 6 N. H. 443. 

New York. — Bacon v. Frisbie, 80 
N. Y. 394, 36 Am. Dec. 627 ; Hoffman 
V. Smith, I Caines 157; Matter of 
Monroe, 2 Connolly 395; Bogert v. 
Bogert, 2 Edw. Ch. 399; Crosby v. 
Berger, 4 Edw. Ch. 254; .y. c. on ap- 
peal, judgment affirmed, same ruling 
as to privileged communications, see 
Crosby v. Berger, 11 Paige Ch. 
2,77 \ Clark v. Richards, 3 E. D. 
Smith 89, Haulenbeek v. McGibbon, 
60 Hun. 26, 14 N. Y. Supp. 393; 
People V. Hess, 80 App. Div. 143, 
40 N. Y. Supp. 486; Boyd v. Daily, 
85 App. Div. 581, 83 N. Y. Supp. 
539. affirmed without opinion 176 N. 
Y. 613, 68 N. E. 1 1 14. 

Pennsylvania. — Beeson v. Beeson, 
9 Pa. St. 279. 

Texas. — Orman v. State, 22 Tex. 
App. 604, 3 S. W. 468, 58 Am. 
Rep. 662. 

Vol. X 



Utah. — State v. Snowden, 23 
Utah 318, 65 Pac. 479. 

Vermont. — Thompson v. Kil- 
borne, 28 Vt. 750, 67 Am. Dec. 742; 
Dixon V. Parmelee, 2 Vt. 185; Coon 
V. Swan, 30 Vt. 6; State v. Fitz- 
gerald, 68 Vt. 125, 34 Atl. 429. 

Virginia. — Parker v. Carter, 4 
Munf. 273, 6 Am. Dec. 513. 

37. England. — Wilson v. Rastall, 
4 T. R. 4 Durnf. & E. 753; Green- 
law V. King, I Beav. 137 ; .?. r. 8 L. 
J. Ch. N. S. 92, 48 Eng. Reprint 891 ; 
Smith V. Daniel], 44 L. J. Ch. 189, 
L. R. 18 Eq. 649, 654. 30 L. T. 752. 

District of Columbia. — Patten v. 
Glover, i App. Cas. 466. 

Georgia. — O'Brien v. Spalding, 
102 Ga. 490, 31 S. E. 100, 66 Am. St. 
Rep. 202. 

Illinois. — Goltra v. Wolcott, 14 
111. 88. 

Nebraska. — M\\\?> v. State, 18 
Neb. 575, 26 N. W. 354- 

New York. — Hoffman v. Smith, i 
Caines 157; Avery v. Mattice, 9 N. 
Y. Supp. 166, 29 N. Y. St. 706, af- 
firmed 132 N. Y. 601, 30 N. E. 1 152; 
Haulenbeek v. McGibbon, 14 N. Y. 
Supp. 393 ; .y. c. 60 Hun 26 ; People 
V. Hoss, 8 App. Div. 143, 40 N. Y. 
Supp. 486. 

Pennsylvania. — Beeson v. Beeson, 
9 Pa. St. 279. 

South Carolina. — Branden v. Go- 
wing, 7 Rich. 459, 472. 

Texas. — Walker v. State. 19 Tex. 
App. 176. 

Vermont. — Coon v. Swan, 30 Vt. 6. 
So where in arranging a transac- 
tion, an attorney acts as friend of 
both parties, and each of them con- 
tributes to his expenses. Haulen- 
beek V. McGibbon, 14 N. Y. Supp. 
393. Or where he acts as attorney 
for both parties without compensa- 
tion. Ewers V. White's Estate, 114 
Mich. 266, 72 N. W. 184. In this 
case the court says : " The claimant's 
case was established by the testimony 
of William N. Brown, an attorney at 
law. His testimony as to statements 
made by Dr. White was objected to, 



PRIVILBGBD COMMUNICATIONS. 



221 



ture of the application to the attorney will be considered in deter- 
mining whether or not he was consulted in his professional ca- 
pacity.^® 

(1.) Inference From Former Employment. — The fact that witness 
had, both prior and subsequent to the communication sought to be 
given in evidence, acted as attorney for the person against whom his 
testimony is offered, justifies the inference that he was consulted 
professionally.^^ 

(2.) Prior Employment Alone, Not Sufficient. — But a given commu- 
nication will not be held privileged from the mere fact that, prior 
to its making, witness had acted as general attorney for the person 
communicating.*" 

(3.) Attorney's Belief as to Character, Not Conclusive. — The char- 
acter of the communication is not affected by the fact that the at- 
torney regarded it in the light of a casual conversation, if it related 
to matters such as are usually the subject of professional advice, and 
the relation of attorney and client existed between witness and the 
person addressing hirn.*^ 

c. Acts of Attorney as Business Agent. — An attorney can be 
compelled to testify concerning communications relating to acts of 
a non-professional character which he performs for his client. ■*- 

Protection does not extend to cases where the attorney is em- 
ployed in non-professional matters.*^ 



on the ground that the relation of 
attorney and client existed. Mr. 
Brown testified that he told Dr. 
White in the beginning that, if there 
was to be any difficulty between the 
parties, he should refuse to have any- 
thing to do in the matter; that he 
acted as a friend of both parties. 
There was no retainer or employ- 
ment. The testimony was properly 
admitted. Alderman v. People, 4 
Mich. 414 (69 Am. Dec. 321)." See 
also State v. Herbert, 63 Kan. 516, 
66 Pac. 235. 

Letter to Friend Requesting At- 
torney's Opinion upon stated ques- 
tion, is not privileged. Rex v. 
Brewer, 6 Car. & P. (Eng.) 363. 

38. Parker v. Carter, 4 Munf. 
(Va.) 273, 6 Am. Dec. 513. 

39. Bacon v. Frisbie, 80 N. Y. 
394, 36 Am. Rep. 627. 

40. Branden & Nethers v. Cow- 
ing, 7 Rich. L. (S. C.) 459, 472. See 
Rudd V. Frank, 17 Ont. Rep. (Can.) 
758. 

41. Attorney's Belief Not Con- 
clusive. _ Moore V. Bray, 10 Pa. 
St. 519. 

42. Non-Professional Acts In 



re O'Donohoe, Fed. Cas. No. 3,990: 
Lord VValsingham v. Goodricke, 3 
Hare 122, 67 Eng. Reprint 322; 
Hawkins v. Gathercole, i Sim. N. S. 
150, 20 L. J. Ch. 303, IS Jur. 186. 61 
Eng. Reprint 58; Wilson v. Rastall, 
4 T. R. 753. 759. 

In In re O'Donohoe, 18 Fed. Cas. 
No. 10,435, s. c, 2 Hask. 17, 7 Fed. 
Cas. No. 3,990, it was held that an 
attorney could be compelled to testify 
whether or not he had charge of an 
auction sale of his client's effects ; 
also the amount and disposition of 
proceeds of sale. 

In Toms v. Beebe, 90 Iowa 612, 
the court says : " It is held that a 
statement made to a lawyer by one 
for whom he had drawn certain re- 
leases, and made after the releases 
were drawn, that they belonged to 
the grantee in them and that said 
grantee wished the lawyer to keep 
them in his safe, is not a confidential 
communication within Iowa Code, 
section 3643, which relates to confi- 
dential communications to attorneys." 

43. Non-Professional Matters Not 
Protected — Walker v. Wildman. 6 
Madd. (Eng.) 47; Lord Walsing- 

Vol. X 



223 



PRIVILEGED COMMUNICATIONS. 



d. Attorney and Client as Co-Vcndors. — If attorney and client 
act together as co-vendors of property, communications between 
them on the subject of the sale are not privileged.** 

C. Relation of Attorney and Client Must Exist. — It is also 
essential that the relation of attorney and client exist as to the sub-, 
ject of the communication; in other words, the attorney must be 
addressed as the attorney for the person making the communica- 
tion in question.*" 

a. Legatee and Exccuto/s Attorney. — The relation of attorney 



ham V. Goodricke, 3 Hare 122, 67 
Eng. Reprint 322; Hawkins v. Gath- 
ercole, i Sim. N. S. 150, 20 L. J. 
Ch. 303, 15 Jur. 186, 61 Eng. Re- 
print 58. 

Attorney maj' be compelled to tes- 
tify as to his receipt of rents for 
client. Stratford v. Hogan. 2 B. & 
B. (Irish) 164; Holmes v. ]\Iatthews, 
3 G. Ch. N. C. (Eng.) 379, 384. 

44. In re Postlethwaite, L. R. 35 
Ch. Div. (Eng.) 722. 

45. England. — Rex v. Brewer, 6 
Car. & P. 363 ; Reg. v. Farley. 2 Car. 

6 K. 313; Marsh v. Keith, i Dr. & 
S. 342. 62 Eng. Reprint 410; Wilson 
V. Rastall, 4 T. R. 754; Greenlaw v. 
King, I Beav. 137, 48 Eng. Reprint 
891 ; INIarston v. Downes, 6 Car. & 
P. 381. 

Canada. — Rudd v. Frank, 17 Ont. 
Q. B. 758. 

United States. — In re Aspinwal!, 

7 Ben. 433. 2 Fed. Cas. No. 591 ; 
Montgomery v. Perkins, 94 Fed. 23. 

Alabama. — Williams %'. McKis- 
sack, 117 Ala. 441, 22 So. 489; Baker 
■V. Jackson, 40 So. 348. 

California. — George v. Silva, 68 
Cal. 272, 9 Pac. 257; Sharon v. 
Sharon, 79 Cal. 633, 22 Pac. 26; 
Carroll v. Sprague, 59 Cal. 655. 

Georgia. — Thompson v. Wilson, 
29 Ga. 539; McLean v. Clark, 47 Ga. 
24: Equitable Securities Co. v. 
Green. 113 Ga. 1013, 39 S. E. 434? 
Harkless v. Smith. 115 Ga. 350, 41 
S. E. 634. 

Illinois. — "TyXtr v. Tyler, 126 111. 
525, 21 N. E. 616, 9 Am. St. Rep. 
642; Thayer v. INIcEwen, 4 111. App. 
416; Granger v. Warrington, 8 111. 
299. 309; City of Rockford v. Falver, 
27 111. App. 604; Chillicothe Ferrv R. 
& B. Co. V. Jameson. 48 111. 281. 

Indiana. — Scranton v. Stewart, 52 
Ind. 68; McDonald v. McDonald, 142 
Ind. 55. 41 N. E. 336, 345- 

Vol. Z 



Iowa. — Shaffer v. Mink. 60 Iowa 
754, 14 N. \N. 726. 

Kansas. — State v. Calhoun, 50 
Kan. 523. 32 Pac. 38, 34 Am. St. 
Rep. 141, 18 L. R. A. 838; State v. 
Herbert, 63 Kan. 516, 66 Pac. 235; 
Sheehan v. Allen, 67 Kan. 712, 74 
Pac. 245. 

Massachusetts. — Lynde v. Mc- 
Gregor. 13 Allen 172; Hoar v. Til- 
den, 178 Mass. 157, 59 N. E. 641. 

Michigan. — Lange v. Perley, 47 
Mich. 352, II N. W. 193; Ewers v. 
White's Estate, 114 Mich. 266. 72 N. 
W. 184; Tucker v. Finch, 66 Wis. 
17, 27 N. W. 817. 

Missouri. — State v. Hedgepeth, 
125 Mo. 14, 28 S. W, 160; State v. 
Cummings, 189 Mo. 626, 88 S. W. 
706. 

Nebraska. — Clay. v. Tyson, 19 
Neb. 530, 26 N. W. 240; Basye v. 
State, 45 Neb. 261, 282, 63 N. W. 
811; Home F. Ins. Co. v. Berg, 46 
Neb. 600, 65 N. W. 780; Farley v. 
Peebles, 50 Neb. 723, 70 N. W. 231 ; 
Romberg v. Hughes, 18 Neb. 579, 26 
N. W. 351. 

Nezv Hampshire. — Harriman v. 
Jones, 58 N. H. 328. 

Nezv York. — Bacon v. Frisbie, 80 
N. Y. 394. 36 Am. Rep. 627; Kitz v 
Buckmaster, 45 App. Div. 283, 61 N. 
Y. Supp. 64; Rosseau v. Bleau, 131 
N. Y. 177, 30 N. E. 52, 27 Am. St. 
Rep. 578. In re Mellen, 18 N.. Y. 
Supp. 515. 

Tennessee. — Henry v. Nubert 
(Tenn. Ch. App.), 35 S. W. 444- 

Texas. — Flack's Admr. v. Neill, 
26 Tex. 273. 

Vermont. — Coon v. Swan. 30 Vt. 
6; Earle v. Grout, 46 Vt. 113, 125. 

Virginia. — Hall v. Rixey. 84 Va. 
790, 6 S. E. 215. 

Nominal Party Without Interest 
in Litigation — In Allen, Adams & 
Co. V. Harrison, 30 Vt. 219, 72 Am. 



PRIVILBGBD COMMUNICATIONS. 



223 



and client does not exist between a legatee or devisee under a will 
and the attorney for the executor.*'' 

b. Attorney and Person Transacting Business With Client. — At- 
torney may testify concerning statements of person with whom he 
transacts business for his client.*" But it has been held that if such 
person asks the attorney's advice, their communications are priv- 
ileged.*^ 



Dec. 302, action was brought on a 
note held by a partnership. A., one 
of the partners, assigned his interest 
in the note to his co-partners, and 
suit was thereafter brought on the 
note in the name of the partnersliip. 
Plaintiff's attorney was examined as 
to a conversation had with A. con- 
cerning the firm's possession of the 
note. This testimony was objected 
to as involving the disclosure of 
privileged communications, and ob- 
jection overruled. The supreme 
court sustained the ruling on the 
ground that as A. was merely a nom- 
inal party to the action, and had no 
interest in or control over it, the re- 
lation of attorney and client did not 
exist between him and the witness. 

46. Althouse v. Wells, 40 Hun 
(N. Y.) 336. 

47. Marston v. Dov.mes, 6 Car. & 
P. (Eng.) 381; Hill V. Elhott, 5 Car. 
& P. (Eng.) 436; Desborough v. 
Rawlins, 3 Myl. & Cr. (Eng.) 515, 
40 Eng. Reprint 1025 ; State v. Stone, 
65 N. H. 124, {sub nom. State v. 
Merchant. 18 Atl. 654). See also 
Brennan v. Hall, 14 N. Y. Supp. 864, 
aifirmed 131 N. Y. 160, 29 N. E. 1009. 
In this case client and the person 
with whom he proposed to transact 
business consulted in the attorney's 
presence, and the attorney's knowl- 
edge of the circumstances and of \h:t 
services to be rendered by him was 
derived from statements of the third 
party. It was held that he might 
state what was said by such third 
party. See Rudd v. Frank, 17 Ont. 
(Can.) 758. 

48. Hartness v. Brown. 21 Wash. 
655. 59 Pac. 491. In this case con- 
sultations were had in attorney's 
presence by his client and a third 
person concerning certain transac- 
tions between them. The attor- 
ney's advice was asked, not only by 
his client, but by the third person. 
Held, that he could not testifv con- 



cerning the latter's statements. The 
court says : " In the case at bar the 
relation of attorney and client ac- 
tually existed between Wiswell and 
the counsel witnesses. In the sub- 
ject matter of that engagement was, 
at any rate, the upholding of the 
transfer made from Wiswell to 
plaintiff. In fact, it is apparent that 
the essence of the consultation be- 
tween Wiswell and counsel witnesses 
and the plaintiff was the very facts 
which are in controversy in this case, 
and it is further apparent that Wis- 
well and the plaintiff at such consul- 
tation were each interested in the 
maintenance of the conveyance. The 
communications received at that time 
from Wiswell were intermingled with 
and supplemented by those from the 
plaintiff, and, as one of the cotmsel 
witnesses says, the whole matter was 
thoroughly gone into, and Wiswell 
and plaintiff each communicated un- 
reservedly to counsel ; and we think 
it fairly appears, also, that the plain- 
tiff, while present, desired the advice 
which was given at the time by the 
coimsel witnesses. It seems that 
counsel were impressed with the 
idea that Wiswell alone was their 
client, as he is the one who paid 
them ; but the advice upon this mat- 
ter in which both plaintiff and Wis- 
well were directly interested was 
given to both, though not formally 
at any request from the plaintiff. 
The information received by the 
counsel witnesses was attributable 
solely to their professional character. 
It was given to tliem for advice, and 
it is immaterial here to determine, 
under the circumstances surround- 
ing the consultation, whether the ac- 
tual relation of attorney and client 
existed between the plaintiff and 
coimsel witnesses. The disclosures 
made to the counsel witnesses by the 
plaintiff, imder the circtmistances. 
are within the privilege declared by 

Vol. X 



224 



PRIVILEGED COMMUNICA TIONS. 



c. Attorney and Client's Opponent. — Communications between 
an attorney and his client's opponent in litigation are not privileged.*** 

d. Applicant for Loan, and Agent of Lender. — The relation of 
attorney and client does not exist between a person who applies to an 
attorney, who is agent of a loan company, for a loan, and the agent 
making the loan, it appearing that the latter in consummating the 
loan simply acted as agent, and that such legal services as he per- 
formed were rather as attorney for the lender than the borrower.^* 

e. Attorney as Money Lender. — Nor does the relation exist be- 
tween applicant for loan and an attorney who is requested to make 
loan, although applicant presents to the attorney a document show- 
ing the nature of security offered. ^^ But where attorney examines 
abstract of title furnished by applicant, and passes upon it, the re- 
lation exists. ^- 

f. Prosecuting Attorney and Witness. — On the question as to the 
privileged character of communications relating to prosecution or 
trial of a criminal case held between prosecuting attorney and pros- 
ecuting witness the authorities are conflicting. 

(1.) Communications Privileged. — It has been held that such com- 
munications are privileged.^^ 



the statute. The authorities usually 
state that this privilege is for the 
benefit of the client, and that he 
alone can waive it. This is unques- 
tionably correct. But. as observed in 
Bacon v. Frisbie, supra, the objection 
can be made by any one against 
whom the evidence is ofifered, in tha 
interest of sound public policy. The 
rule should be fairly construed, so 
that the freest communication may 
be made between counsel and client, 
and that communications thus made, 
involving the necessary and useful 
intervention of others, may be equally 
protected." 

49. Statements by Opposite 
Party. — Thompson v. Wilson, 29 
Ga. 539; McLean v. Clark, 47 Ga. 
24; Henry v. Nubert (Tenn. Ch. 
App.), 35 S. W. 444; Thayer v. Mc- 
Ewen, 4 111. App. 416; Spenceley v. 
Schulenberg, 7 East (Eng.) 357; 
Shore V. Bedford, 5 Man & G. 
(Eng.) 271, 44 E. C. L. 149, 12 L. 
J. C. P. 138. 

Attorney may testify concerning 
paper delivered to him by his client's 
opponent in an action. Spenceley v. 
Schulenberg, 7 East (Eng.) 357, 3 
Smith 325 ; also that he wrote a cer- 
tain letter upon request of client's 
opponent (Shore v. Bedford. 5 Man. 
& G. (Eng.) 271, 12 E. J. C. P. 138. 

Vol. X 



50. Turner v. Turner, 123 Ga. 5, 
50 S. E. 969, 107 Am. St. Rep. 79; 
Jackson v. Bennett, 98 Ga. 106. 26 S. 
E. S2i- See Reg. v. Avery, 8 Car. & 
P. (Eng.) 596, where attorney for 
person lending money was compelled 
to testify as to statements made to 
him by person seeking loan, and to 
produce in evidence a forged will de- 
livered to him by applicant to show 
title to land offered as security, the 
attorney's testimony being offered hi 
prosecution of applicant for forgery 
of such will. 

51. Attorney Applied to for loan. 
Reg. V. Farley, 2 Car. & K. (Eng.) 

313- 

52. Abstract Examined Doe d. 

Peter v. Watkins, 6 L. J. C. P. 
(Eng.) 107; .y. c. 4 Scott 15s; 3 
Hodges 25, I Jur. 42. This case fol- 
lows Taylor z>. Blacklow, 3 Bing. N. 
C. (Eng.) 23s, 3 Scott 614, 2 Hodges 
224. 6 L. J. C. P. 14. 

53. Statements to Prosecuting' 

Attorney Privileged Vogel v. 

Gruaz, no U. S. 311; Oliver v. Pate, 
43 Ind. 132, 141 ; State v. Phelps. 
Kirby (Conn.) 282; Gabriel v. Mc- 
MuUin, 127 Iowa 426, 103 N. W. 
355; Bowers v. State, 29 Ohio St. 
542. 

In State v. Houseworth, 91 Iowa 
740, 60 N. W. 221, the court says: 



PRIVILEGED COMMUNICATIONS. 



225 



" The statute under which the ex- 
emption is claimed is as follows : 
* No practicing attorney, counselor, 
physician, surgeon, minister of the 
gospel or priest of any denomina- 
tion shall be allowed in giving testi- 
mony to disclose any confidential 
communication properly entrusted 
to him in his professional capacity, 
and necessary and proper to enable 
him to discharge the functions of his 
office according to the usual course 
of practice or discipline. Such pro- 
hibition shall not apply to cases 
where the party in whose favor the 
same are made waives the rights 
conferred.' We do not understand it 
to be questioned but that the state- 
ments by the prosecuting witness to 
the county attorney were confidential, 
intrusted to him in his professional 
capacity, and were necessary and 
proper to enable him to discharge 
the functions of his office according 
to the usual course of practice. This 
being true, it becomes a question 
whether or not statements of a 
prosecuting witness in a criminal 
case can come within the purview of 
the statute. Because of remarks by 
the district court while the question 
was pending before it, we are led to 
understand that much, if not con- 
trolling, importance was given to the 
fact of whether or not the relation 
of attorney and client existed be- 
tween the prosecuting witness and 
the county attorney; the court think- 
ing that it did not exist, for it said : 
' So far as the relation of attorney 
and client is concerned, none existed 
in the world.' While it is true that, 
as to attorneys, such communications 
are oftener made by clients than by 
others, we do not think there is any 
such limitation upon the operation of 
the statute, but that it matters not 
from whom the communication is re- 
ceived, if it be to a practicing at- 
torney in his professional capacity, 
and necessary for him to discharge 
the functions of his office. Mr. 
Ranck Avas attorney for the state. 
What transpired at the time of the 
alleged offense was necessary and 
proper to enable him to discharge 
the duties of his office. His client 
could not communicate with him, 
and all communications must be 
from third parties. But the statute 

15 



nowhere fixes the communication to 
be privileged as between attorney 
and client, nor is it there by legal 
inference. The design of the law is 
to better enable attorneys, ministers, 
physicians, and others to discharge 
the duties of their respective offices; 
and it matters not from whom the 
communication comes, the question 
being, at all times, was it properly 
intrusted, and necessary for that 
purpose? We do not think it nec- 
essary to consider the question from 
the standpoint of public policy, which 
has received some attention in ar- 
gument, as we think, under the pro- 
visions of the statute, the objection 
should have been sustained." 

In State v. Brown, 2 Marv. (Del.) 
380, 36 Atl. 458, the court says : 
" The attorney general could not be 
required to disclose facts coming to 
his knowledge for the use of the 
state in its prosecution of the ac- 
cused ; nor can his private amanuen- 
sis, or clerk, as Mr. Hardesty then 
was. To do so would be prejudicial 
to the public interest, and would in 
many cases defeat the ends of public 
justice. When the witness Thomas 
Oakes, against objection by the 
state, was permitted, for the purpose 
of laying a ground for contradicting 
him, to state what he had said on 
this occasion to the attorney general, 
in order to aid him in preparing for 
the prosecution of this case, I con- 
sidered that the ruling of the court 
was erroneous. In public prosecu- 
tions, witnesses for the state, and 
those who give information to the 
prosecuting officer, will not be per- 
mitted to disclose Vv^hether or not 
they have given information to such 
officer. Such communications are 
regarded as secrets of state, or mat- 
ters the disclosure of which would 
be prejudicial to the public inter- 
ests. They are therefore protected, 
and all evidence thereof excluded, 
from motives of public policy. To 
allow the said witness to state that 
he had made a commiuiication to the 
attorney general respecting this 
prosecution, for the purpose of lay- 
ing a ground for his subsequent con- 
tradiction by now calling Mr. 
Hardesty to the stand, was then as 
improper as it is now futile." 

Vol. X 



226 



PRIVILEGED COMMUNICATIONS. 



(2.) Contra Several courts hold that they are not privileged.^* 

g. County Attorney — Knowledge of county attorney acquired in 
the discharge of a duty not appertaining to his office is not priv- 
ileged.^^ 

h. Municipal Officer to Municipal Attorney. — Nor are commu- 
nications made to a city attorney by street commissioner in regard 
to the condition of a street.^^ But the advice of corporation counsel 
to a municipal board has been held to be privileged.^^ 

i. Judge of Court. — It has been held that if a person under sub- 
poena to testify before a grand jury applies to the judge in control 
of the grand jury for advice as to his testimony, his statements are 
privileged.^® 



54. Non-Privileged — Granger v. 
Warrington, 8 111. 299; People v. 
Davis. 52 Mich. 569, 18 N. W. 362; 
Cole V. Andrews. 74 Minn. 93, 76 N. 
W. 962; Cobb V. Simon, 119 Wis. 
597, 97 N. W. 276, 100 Am. St. Rep. 
909; Meysenberg v. Engelke, 18 ]Mo. 
App. 346. ^^. , 

55. In Lange v. Perley, 47 Mich. 
352, II N. W. 193. a surety upon 
the bond of a defaulting county 
treasurer paid the amount of the 
bond, and brought suit against his 
principal to recover the amount so 
paid. The prosecuting attorney of 
the county, who had been a member 
of a committee appointed to obtain 
a surrender of the treasurer's prop- 
erty in settlement of his public lia- 
bilities, was permitted to testify as 
to knowledge obtained in the course 
of negotiations had to obtain siich 
surrender. Held, that his knowledge 
was not privileged. The court says : 
*' It was well understood that the 
transaction was of a public nature 
and that the facts were not private 
and confidential, nor confined to the 
knowledge of any descriptions of 
persons connected as attorney and 
clients." 

56. City of Rockford v. Falver, 
27 111. App. 604. 

57. Advice of Corporation Coun- 
sel — People V. Gilon, 9 N. Y. Supp. 

243- 

58. In People v. Pratt, 133 Mich. 
125, 94 N. W. 752. a man who had 
been subpoenaed to appear as a wit- 
ness before a grand jury applied for 
advice concerning his testimony to 
the judge of the court which caused 
the grand jury to be summoned. 
The judge stated " I cannot give j^ou 

Vol. X 



any advice." The judge then stated 
that the person applying was not 
bound to say before the grand jury 
anything to incriminate himself. He 
then advised the person addressing 
him to see an attorney. He then 
said : " Tell the truth, whatever it 
is." The person addressing the 
judge then proceeded to make a 
statement. In a subsequent prose- 
cution of this person it was held that 
communications between him and the 
judge were privileged. The court 
says : " If Judge Person had not 
been, as he was, the judge of the 
circuit court for the county of Ing- 
ham, who had convened the grand 
jur}-, the principles of law above re- 
ferred to would have prevented his 
disclosing the communication re- 
spondent made to him. It is true 
that Judge Person's position as 
judge of the circuit court prevented 
his becoming, in law, respondent's' 
attorney. But it did not, in fact, 
prevent his advising respondent what 
course to pursue. How is the prin- 
ciple which regards as confidential 
communications between attorney 
and client affected by the fact that 
the attorney in this case was also a 
judge? If it be true that the fact 
that the attorney was the judge pre- 
vented his legally acting as attorney, 
it is also true that the fact that he 
occupied that position gave an in- 
creased weight to his advice. The 
reasons for regarding as confidential 
communications made in conse- 
quence of advice from an ordinary 
attorney apply with full force, and 
are re-enforced by others, when that 
advice emanates from an attorney 
who is also a judge. The law pro- 



PRIVILEGED COMMUNICATIONS. 



227 



j. Married Woman and Husband's Attorney. — Communications 
between a married woman and her husband's attorney have been held 
to be privileged. ^^ 

k. Attorney of Person Jointly Interested. — Where two persons 
are jointly interested in an enterprise, and one of them refers the 
other to the solicitor of the first party for advice, and the second 
party consults such solicitor, their communications are privileged.*'" 

1. Attorney for Co-Conspirator. — When several persons jointly 
indicted for conspiracy employ separate counsel, and meet, with 
their respective attorneys, for consultation as to their joint defense, 
none of the attorneys can testify as to statements made by any of 
the defendants."^ 

m. Relation, Question of Fact. — Whether or not the relation of 
attorney and client existed between given persons, is a question of 
fact,**- but although a question of fact it has nevertheless been held 



tects these communications as con- 
fidential, because of the nature of 
the confidence which exists between 
the client and the attorney of his 
choice. That confidence is not di- 
minished, but is increased, when the 
advice is given by the judge author- 
ized not merely to express an opin- 
ion, but to declare the law. Not 
often will a judge undertake to give 
legal advice. Circumstances may, 
however, as in this case, make it his 
duty to give it. When they do, he 
will not, in any technical sense, be- 
come the attorney of the person to 
whom it was given. But if, as a 
result of such advice, he receives the 
confidence of that person, the prin- 
ciples of public policy applicable to 
attorney and client require that con- 
fidence to be respected." 

59. Statements made by a mar- 
ried woman to her husband's at- 
torney in regard to sale of personal 
property, part of which is claimed by 
her, have been held privileged, the 
attorney being regarded as acting for 
both husband and wife. Scranton v. 
Stewart, 52 Ind. 68. To same ef- 
fect, see Scott v. Ives, 22 Misc. 749, 
51 N. Y. Supp. 49. wliere attorney 
who prepared a will for his client 
sent for testator's wife and con- 
sulted with her concerning her 
rights under the will. 

Such communications are not 
privileged, as against the wife, in 
litigation between herself and hus- 
band, it appearing that in the trans- 
action out of which the litigation 



arose the wife acted upon the ad- 
vice of her husband's attorney. In 
such case the wife has the right to 
production of cases laid before coun- 
sel and opinions rendered thereon. 
Warde v. Warde, 3 Macn. & G. 365, 
21 L. J. Ch. 90. IS Jur. 759, re- 
versing I Sim. (N. S.) 18. 42 Eng. 
Reprint 301. In this case it was held 
that the attorney was the common 
attorney of husband and wife. See 
"Common Attorney," under III, 11, 
M, a, (i.). 

60. Rochefoucauld v. Boustead, 
74 L. T. N. S. (Eng.) 783. 

61. Chahoon's Case, 21 Gratt. 
(Va.)_822, 841. See remarks of 
court in Rochefoucauld v. Boustead. 
74 L. T. N. S. (Eng.) 783. 

62. /»o'/a»a. — IMcDonald v. Mc- 
Donald, 142 Ind. 55, 41 N. E. 336. 

Nebraska. — Basye v. State, 45 
Neb. 261, 282, 63 N. W. 811; Clay v. 
Tyson, 19 Neb. 530, 26 N. W. 240. 

New York. — Bacon v. Frisbie, 80 
N. Y. 394, 36 Am. Rep. 627; Kitz v. 
Buckmaster, 45 App. Div. 283, 61 N. 
Y. Supp. 64. 

North Carolina. — Hughes v. 
Boone, 102 N. C. 137, 9 S. E. 286. 

Texas. — Harris v. Daugherty. 74 
Tex. I, II S. W. 921, 15 Am. St. 
Rep. 812. 

Utah. — State v. Snowden, 23 
Utah 318, 65 Pac. 479. 

Vermont. — Childs v. Merrill, 66 
Vt. 302, 29 Atl. 532. 

Such is a reasonable conclusion 
from the opinion of the court in 
Goltra V. Wolcott. 14 111. 88. 

Vol. X 



228 



PRIVILEGED COMMUNICATIONS. 



to be a question to be determined by the court, not by the jury.*'^ 

(1.) Decision of Trial Court Conclusive. — The finding of the trial 
court as to existence of relation is conclusive, and is not reversible by 
appellate court.®* 

(2.) Relation Disclaimed by One Claimed to be Client. — It has been 
held that when an attorney refuses to answer a question on the 
ground that his answer would involve the disclosure of matter com- 
municated to him by a certain person as client, and the person re- 
ferred to makes oath that the relation of attorney and client never 
existed between himself and witness, the attorney must testify.*^^ 

Contra. — But the contrary has been held.^*' 

(3.) Relation Denied by Attorney. — If attorney denies that in a 
certain transaction he acted for a person claimed to be his client, he 
may testify concerning the transaction.*'^ 

(4.) Conflict Between Attorney and Client. — Cases involving con- 
flict of testimony of attorney and client as to existence of relation 
are given in the notes.®* 

(5.) Attorney in Doubt. — If an attorney who is interrogated con- 



Test as to Relation "If a per- 
son, in respect to his business af- 
fairs or troubles of any kind, con- 
sults with an attorney in his profes- 
sional capacity with the view to ob- 
taining professional advice or as- 
sistance, and the attornej' voluntarily 
permits or acquiesces in such con- 
sultation, then the professional em- 
ployment must be regarded as es- 
tablished; and the communication 
made by the client or advice given 
by the attorney under such circum- 
stances is privileged. An attorney is 
employed — that is, he is engaged in 
his professional capacity as a lawyer 
or counselor — when he is listening to 
his client's preliminary statement of 
his case, or when he is giving advice 
thereon, just as truly as when he is 
drawing his client's pleadings, or ad- 
vocating his client's cause in open 
court. It is the consultation between 
attorney and client which is priv- 
ileged, and which must ever remain 
so, even though the attorney, after 
hearing the preliminary statement, 
should decline to be retained further 
in the cause, or the client, after hear- 
ing the attorney's advice, should de- 
cline to further employ him. The 
general rule undoubtedly is that a 
breach of professional relations be- 
tween attorney and client, whatever 
may be the cause, does not of itself 
remove the seal of silence from the 

Vol. X 



lips of the attorney in respect to 
matters received by him in confi- 
dence from his client. Foster v. 
Hall. 12 Pick. 89; Hunter v. Van 
Bomhorst, i Md. 504; Cross v. Rig- 
gins, 50 Mo. 335." Denver Tram- 
way Co. V. Owens, 20 Colo. 107, 36 
Pac. 848. 

63. McDonald v. McDonald, 142 
Ind. 55, 41 N. E. 336. In this case, 
referring to question of relation, the 
court says : " This, however, was a 
matter of fact for the court to de- 
termine, we think, from the facts, 
after hearing them, bevond the jury." 

64. Childs V. Merrill, 66 Vt. 302, 
29 Atl. 532. 

65. Relation Denied by Client. 
In re Mellen, 18 N. Y. Supp. 515; 
Schurtz V. Romer, 82 Cal. 474, 23 
Pac. 118. 

66. Contra. _ Gulf, C. & S. F. R. 
Co. V. Gibson (Tex. Civ. App.), 93 
S. W. 469. 

67. Brinkerhoff 7'. Peek, 114 
^lich. 628. 72 N. W. 621. 

In case where attorney and a cer- 
tain person contradicted each other 
as to existence of relation, held that 
attorney's testimony was admissible, 
apparently upon the ground that the 
trial court believed the attorney. 
Reese v. Bell, 138 Cal. xix, 71 Pac. 87. 

68. State v. Calhoun, 50 Kan. 
523. 32 Pac. 38. 34 Am. St. Rep. 141, 
18 L. R. A. 838. This was a pro- 



PRIVILEGED COMMUNICATIONS. 



229 



ceeding in the nature of a writ of 
error coram nobis to revoke sen- 
tences passed upon plaintiff. The 
state claimed that error was com- 
mitted in excluding the testimony of 
K., an attorney, on the ground that 
a conversation testified to was had 
while K. was acting as plaintiff's at- 
torney. Plaintiff testified, in a depo- 
sition given seven years after the 
conversation, that K. never was his 
attorney. K. testified that when the 
conversation was had he was plain- 
tiff's attorney. On objection of 
plaintiff, K.'s testimony was ex- 
cluded. This ruling was held cor- 
rect. The appellate court held that 
it was for the trial court to deter- 
mine whether or not the relation of 
attorney and client existed. The 
court further held that plaintiff was 
not conclusively bound' by his state- 
ments made in his deposition, but 
had the right, through his counsel, 
to show by the testimony of the 
proposed witness that the relation of 
attorney and client did in fact exist. 
In M'Intyre v. Costello, 6 N. Y. 
Supp. 397, widow claimed dower in 
certain lands conveyed by her hus- 
band. It was claimed that the hus- 
band had bought the land in ques- 
tion from his sister, taking title in 
his own name. The attorney who 
prepared the deed by which the hus- 
band acquired title was offered as a 
witness to testify to declarations 
made to him by the husband prior 
to his acquisition of title, as well as 
subsequent declarations to the effect 
that the land belonged to the sister. 
The attorney testified that he acted 
for both parties to the deed, after- 
wards attempting to qualify this by 
stating that he acted for grantor and 
grantee (husband) or the person for 
whom grantee was transacting the 
business — adding "That is. his sis- 
ter." He added that he never saw 
the sister in the matter, that he was 
general attorney for the husband, 
who paid him for this particular 
servnce. Witness was permitted to 
testify to declarations and admis- 
sions of husband as to ownership of 
the land. Held, that the admission 
of this testimony constituted error. 
Conflict Between Attorney and 

Client as to Relation In Davis v. 

Morgan, 19 Mont. 141, 47 Pac. 793, 



an attorney's testimony was intro- 
duced to the effect that a certain per- 
son consulted him as to so transfer- 
ring certain personal property as to 
avoid the levy of an execution. The at- 
torney testified that the consultation 
was had, but that he did not con- 
sider this consultation and the advice 
which he gave as constituting the 
relation of attorney and client, that 
nothing was said about a fee, and 
he did not regard himself as at- 
torney for the other person when he 
advised him. The other person tes- 
tified that he consulted the attorney 
as such and for the purpose of ob- 
taining his professional opinion. On 
motion the attorney's testimony was 
stricken out. This ruling was held 
correct. The supreme court says : 
" The omission to pay a fee is not 
the only test of whether such a re- 
lation may have existed." 

Where testimony of an attorney is 
objected to on the ground that it will 
disclose confidential communication, 
and the attorney testifies that he was 
not the attorney for the person making 
the communication, and the circum- 
stances under which it was made 
show that he was not, his testimony 
is admissible. Sharon v. Sharon, 79 
Cal. 633, 678, 22 Pac. 26, 131. 

Evidence Conflicting — Attorney 

Permitted to Testify Where it is 

claimed that an attorney acted for 
all parties to a transaction, and the 
evidence on the subject is conflicting, 
the attorney will be permitted to 
testifj' as to statements made by the 
parties during the transaction. Har- 
ris V. Daugherty, 74 Tex. i, 11 S. W. 
921, 15 Am. St. Rep. 812. In this 
case an attachment had been levied 
on certain live stock as the property 
of S. H. claimed the property and 
brought proceedings to try the right 
of property. H. claimed under bill 
of sale executed by S. Plaintiff 
claimed that the bill of sale was 
made to hinder, delay and defraud 
creditors of S. The attorney who 
drew the bill of sale was offered as 
a witness to show statements of S. 
made at the time the bill of sale was 
drawn. His testimony was objected 
to. It appeared that H. and S. were 
present when the bill of sale was 
drawn, and that after the institution 
of the proceedings to try the right of 

Vol. X 



230 



PRIVILEGED COMMUNICATIONS. 



cerning information acquired from a certain person is in doubt as 
to existence of the relation of attorney and client between them, he 
should decline to testify,'^'' or his testimony should be excluded.'^'' 

n. Privileged, if Relation Believed to Exist. — It has been held 
that if a person seeking professional assistance makes statements to 
an attorney believing that the attorney is acting for him, such state- 
ments are privileged/^ 

o. Relation Wrongly Assumed. — It has been held that, if attor- 
ney, in violation of duty, acts as attorney for a certain person, their 
communications are not privileged.^- 

D. Communication Must be; Made; While; Relation Exists. 
It is essential that the communication be made while the relation of 
attorney and client exists, or during a conference held for the pur- 
pose of forming the relation.'^^ 



property, the attorney was employed 
by H. It also appeared that the at- 
torney accepted employment from H., 
believing that it would not conflict 
with the interest of S., for whom 
he considered himself retained, he 
having been S."s attorney prior to 
that time, and having continued to be 
such. It also appeared that before 
the trial the attorney received from 
S. a letter waiving privilege, and 
consenting that he might make full 
disclosure. H. testified that he em- 
ployed the attorney to draw the bill 
of sale and paid him for it. S. and 
the attorney testified that S. was the 
employer. Held, that the attorney's 
testimony as to statements made by 
H. when the bill of sale was drawn 
was properly admitted. 

69. People v. Barker. 56 111. 300. 

70. Myers v. Dorman, 34 Hun 
(N. Y.) 115. 

71. Relation Believed to Exist. 
Carroll v. Sprague, 59 Cal. 655 ; 
People V. Barker, 60 Mich. 277, 27 
N. W. 539. 546, I Am. St. Rep. 501 ; 
People V. Pratt, 133 Mich. 125. 94 N. 
W. 752, 67 L. R. A. 923, Sheehan 
V. Allen, 67 Kan. 712. 74 Pac. 245. 

In Alderman v. People, 4 Mich. 
414, 69 Am. Dec. 321, it is held that a 
communication which a person 
makes to an attorney under the im- 
pression that the attorney has con- 
sented to act for him is privileged, 
although the attorney did not so un- 
derstand and denies that he agreed to 
act for such person. In this case 
several persons were indicted for 
conspiracy. One of them, having 

Vol. X 



turned state's evidence, was asked as 
to a conversation he had had with 
an attorney. Witness testified that 
the attorney had agreed to act for 
him. The attorney testified that he 
had declined to act as attorney for 
the witness. The trial court refused 
to require the witness to testify to 
a conversation between himself and 
the attorney. On appeal this ruling 
was held correct. The supreme 
court says : " We have no doubt that 
if a communication should be made 
to an attorney in fact, by a party, 
under an impression that such at- 
torney had consented or agreed to 
act as the attorney of such party, 
that such communication would be 
privileged, although the attorney 
himself may not have so understood 
the agreement." 

72. In Tugwell v. Hooper, 10 
Beav. 348, 50 Eng. Reprint 616, 
an attorney was appointed trustee 
for two persons. In a contest be- 
tween two beneficiaries the attorney 
claimed that he had acted as at- 
torney for one of them, and that 
their communications were privil- 
eged. The court held that the at- 
torney, being trustee for both par- 
ties, could not act as adviser to one 
of them, and that, as to the other 
beneficiary, communication between 
attorney and his client were not 
privileged. 

73. Such relation must be exis- 
tent or in contemplation at the time 
the communication is made. 

Georgia. — Skellie v. James, 81 
Ga. 419, 8 S. E. 607. 



PRIVILEGED COMMUNICATIONS. 



231 



a. Communications Made Prior to Relation Are Not Privileged.'* 

b. Subsequent. — Communications made after termination of re- 
lation are not privileged/^ 



Indiana. — -Jennings v. Sturde- 
vant, 140 Ind. 641, 40 N. E. 61. 

loiva. — Theisen v. Dayton, 82 
Iowa 74, 47 N. W. 891. 

Kansas. — Robinson's Exrs. v. 
Blood's Heirs, 10 Kan. App. 576, 62 
Pac. 677. 

Massachusetts. — Hoar v. Tilden, 
178 Mass. 157, 59 N. E. 641. 

Missouri. — Wilson v. Godlove, 34 
Mo. 337- ^ 

New York. — Yordan v. Hess, 13 
Johns. 492. 

Tennessee. — Ellis v. State, 92 
Tenn. 85, 20 S. W. 500. 

In Brown v. j\Iattliews, 79 Ga. i, 
4 S. E- 13, the court says : " The tes- 
timony which rendered it certain that 
the deceased had procured Hardison 
to amend his deed to the defendants 
by inserting therein the premises now 
in dispute, was that of Mr. Haygood, 
an attorney at law, who detailed a 
conversation which he had with the 
deceased and his brother, or rather, 
which they had with him, touching 
the matter. This testimony was ob- 
jected to as disclosing knowledge 
acquired under the seal of profes- 
sional confidence. We agree with 
the court below in thinking that 
Haygood was neither employed pro- 
fessionally, nor consulted with a 
view to employment. He was 
' raided,' not retained. To exclude 
declarations as communications to 
counsel, or made with a view to em- 
ployment, their root in the relation, 
or contemplated relation, of client 
and attorne}^ must be manifest. They 
must be the offspring of the relation, 
present or prospective, not of taking 
or expecting to take the fruits of 
such a relation without forming it. 
To tax a lawyer's courtesy or liber- 
ality for advice or services is not to 
employ him. Generally, the test of 
employment is the fee.'' 

74. Prior to Employment — Non- 
Privileged. — England. — Vaillant v. 
Dodemead, 2 Atk. 524, 26 Eng. Re- 
print 715; Cutts V. Pickering, Ventr. 
197, as cited in note to Vaillant v- 
Dodemead, supra, in Vol. 26, p. 715, 
English Reprint; cited to same effect 



by Lord Brougham in Greenough v. 
Gaskell. 11 Myl. & K. 98, 107. 39 
Eng. Reprint 618; Bulstrod r. Letch- 
mere, 2 Freeman Ch. 5 (case 4), 22 
Eng. Reprint 1019. 

Alabama. — Johnson v. Cunning- 
ham, I Ala. 249; Crawford v- Mc- 
Kissack. i Port. 433. 

Georgia. — Chappell & Co. v. 
Smith, 17 Ga. 68. 

Indiana. — Jennings v. Sturdevant, 
140 Ind. 641, 40 N. E. 61. 

lozi'a. — State v. Swafford, 98 Iowa 
362, 67 N. W. 284. 

Missouri. — Gerhardt v- Tucker, 
187 Mo. 46, 85 S. W. 552. 

Nezv York. — Baker v. Arnold, i 
Caines 258. 

North Carolina. — State v. Smith, 
138 N. C. 700, 50 S. E. 859. 

South Carolina. — Stoney v. M'- 
Neil, Harp. Law 557, 18 Am. 
Dec. 666. 

Texas. — Harris v. Daughertv. 74 
Tex. I, II S. W. 921, 15 Am. St. 
Rep. 921 ; Simmons Hdw. Co. v. 
Kaufman, 77 Tex. 131, 8 S. W. 283. 

In Theisen v. Dayton, 82 Iowa 74, 
47 N. W. 891, an attorney was em- 
.plo\'ed to draw a conveyance of land 
purchased by his client- His em- 
ploj-er wished to retain him to render 
services in the future concerning the 
property conveyed, which employ- 
ment the attorney refused. Held, 
that what was said in regard to the 
future employment was not privi- 
leged in an action in which the con- 
veyance was in question. 

75. Subsequent to Relation. 

Georgia. — Philman v. Marshall, 
103 Ga. 82, 29 S. E. 598. 

Illinois. — Chillicothe Ferry R. & 
B. R. Co. V- Jameson, 48 III' 281. 

Indiana. — Doan v. Dow, 8 Ind. 
App. 324. 35 N. E. 709- 

Kansas. — State v. Herbert, 63 
Kan. 516, 66 Pac 235. 

Louisiana. — Williams, Phillips & 
Co. z'. Benton, 12 La. Ann. 91. 

Nezv York. — IMarsh v. Howe, 36 
Barb. 649; Mandeville v. Guernsey, 
38 Barb. 225. 

Communications Subsequent to 
Relation — In Yordan z'. Hess, 13 

Vol. X 



232 



PRIVILEGED COMMUNICATIONS. 



c. Former Employment Not Sufficient. — The fact that an attorney- 
had, prior to the time of making the communication in question, 
acted as such for a certain person in all or some of his business 
transactions, is not sufficient to entitle such communication to priv- 
ilege, if it appears that the attorney was not so acting in the matter 
to which the communication related.'*^ 

d. That Statement Repetition of Privileged Statement, Imma- 
terial. — The fact that statements the same as, or similar to, that 
in question were made while relation existed, does not render incom- 
petent statements made, or voluntarily repeated, after termination of 
relation."^ 

e. N'egotiations for Employment. — Privilege extends to state- 
ments made in the course of negotiations for the employment of 
an attorney.'^ 

Negotiations by Third Person. — But if negotiations are made by a 
person claimed to have been acting as agent for the person alleged 



Johns. (N. Y.) 492, it is held that 
statements made to attorney by one 
who had once been his client, but 
between whom and the attorney the 
relation had ceased to exist at the 
time communication was made, were 
not privileged. And this, although 
the statements may have been but 
repetitions of communications made 
while the relation existed. But the 
court states that if a repetition of the 
statement appears to have been 
elicited by an artifice, for the pur- 
pose of being used as evidence, the 
evidence should not be received. 

In Hager v. Shindler, 29 Cal. 47, 
a person convej^ed certain property 
to his attorney, who, in turn, con- 
veyed it to a third party. In an ac- 
tion to set aside these deeds, on the 
ground of fraud, the attorney was 
called as a witness to show that both 
the deed to him and the deed by him 
were made without consideration. 
Questions were objected to as call- 
ing for disclosure of privileged com- 
munications. Objections were over- 
ruled, and, on appeal, this ruling was 
held correct, on the ground that the 
communication as to the first convey- 
ance was made to witness not as at- 
torney but as trustee, and as to the 
second conveyance, the relation of 
attorney had ceased to exist. 

Statement of client to attorney af- 
ter termination of action, to effect 
that he, client, is pleased with the 

Vol. X 



result of the action, is not privileged. 
Cobden v. Kendricks, 4 T. R. 431. 

76. Indiana — Thomas v. Griffin, 
I Ind. App. 457, 27 N. E. 754- 

Kansas. — State v. Herbert, 63 
Kan. 516, 66 Pac. 235. 

Missouri. — Wilson v. Godlove, 34 
Mo. 32,7; Aultman v. Daggs, 50 Mo. 
App. 280. 299. 

Nebraska. — Home F. Ins. Co. v. 
Berg, 46 Neb. 600, 65 N. W. 780. 

New York. — People v. Hess. 8 
App. Div. 143. 40 N. Y. Supp. 486. 

North Carolina. — Eekhout v. Cole, 
135 N. C. 583, 47 S. E. 655. 

Pennsylvania. — In re Turner's 
Estate, 167 Pa. St. 609, 31 Atl. 867. 

Te.vas. — Flack's Admr. v. Neill, 
26 Tex. 273. 

That Relation Once Existed Not 
Sufficient. — In Harless v. Harless, 
144 Ind. 196, 41 N. E. 592, it is said 
that it is not enough to exclude a 
statement that the relation of at- 
torney and client once existed be- 
tween witness and a certain person, 
so long as it is not proposed to prove 
by witness confidential communica- 
tions made in the course of his em- 
ployment. 

77. Brady v. State, 39 Neb. 529, 
58 N. W. 161 ; Yordan v. Hess, 13 
Johns. (N. Y.) 492. 

78. Farley v. Peebles, 50 Neb. 723, 
70 N. W. 231 ; Nelson v. Becker, 32 
Neb. 99, 48 N. W. 962; State v. 
Snowden, 23 Utah 318, 65 Pac. 479. 



PRIVILBGBD COMMUNICATIONS. 



233 



to occupy the relation of client, it must appear that such person 
authorized the employment/^ 

f. Statement to Third Party of Intention to Employ. — Privilege 
does not extend to statements that a person intends to employ a 
certain attorney, although made to another attorney with whom 
the attorney in question was associated.^^ 

E. Communication Must Have Been Made by Reason oe Re- 
lation. — It is also essential that the communication be made by 
reason of the existence of the relation of attorney and client.*^ 

Information Presumed Acquired by Reason of Relation. — Communi- 
cations made to an attorney by a third person, and relating to evi- 
dence in a pending cause in which he is engaged, are presumed to 
have been made to him in his professional capacity.^^ 



79. Sharon v. Sharon, 79 Cal. 633, 
678, 22 Pac. 26, 131. 

80. Baker v. Jackson (Ala.), 40 
So. 348. 

81. England. — Morgan v. Shaw, 
4 Madd. 54, 56 Eng. Reprint 629. 

Alabama. — KHng v. Tunstall, 124 
Ala. 268. 27 So. 420. 

Georgia. — Chappell & Co. v. 
Smith, 17 Ga. 68; McDougald v. 
Lane, 18 Ga. 444; Brown v. Mat- 
thews, 79 Ga. I, 4 S. E. 13 ; Skellie 
X'. James, 81 Ga. 419, 8 S. E. 607; 
Harkless v. Smith, 115 Ga. 350, 41 
S. E. 634. 

Iowa. — Reinhart v- Johnson, 62 
Iowa 155, 17 N. W. 452. 

Massachusetts. — Hoar v. Tilden, 
178 Mass. 157, 59 N. E. 641. 

Nebraska. — Clay v. Tyson, 19 
JSIeb. 530, 26 N. W. 240. 

Texas. — Taylor v. Evans (Tex. 
Civ. App.), 29 S. W. 172. 

Vermont. — State v. Fitzgerald, 68 
Vt. 125, 34 Atl. 429. 

If it may be fairly inferred that 
■communications were induced by the 
fact of relationship, they are privi- 
leged. Bacon v. Frisbie, 80 N. Y. 
394, 36 Am. Rep. 627 ; Myers v. Dor- 
man, 34 Hun (N. Y.) 115. 

82. Young V. Holloway, 57 L- T. 
N. S. (Eng.) 515. In this case the 
court says : " The affidavit here ap- 
pears to me to be drawn in a way 
which ought not to be taken as a 
precedent. If we were to hold the 
plaintiff strictly to her affidavit, I 
think the affidavit is defective ; but 
we must deal with the case upon 
broad principles, and must read the 
affidavit by the light of the admis- 



sion of the opposite parties — that 
there is no other cause for which 
these letters can be suggested to have 
been sent to the solicitor and counsel, 
except the mere cause that they were 
the solicitor and counsel at the time 
in this action. If these letters had 
reference to the case in which they 
were solicitor and counsel, and if 
the true inference is that they were 
sent to them as such, the affidavit 
must be treated as if it had stated 
that inference on oath, which I think 
would be done if we allowed an ad- 
journment for the purpose. If then 
we draw that inference upon the affi- 
davit as it stands, we have simply to 
ask ourselves the question whether 
the fact that a letter was volunteered 
by a person who wrote and sent it 
to a solicitor because he was a soli- 
citor, and for the purpose of the doc- 
ument being held by him as solicitor, 
differentiates this from the ordinary 
case where a solicitor has procured 
documents in the course of his em- 
ployment. It appears to me that 
there is no such difference, and in 
reality there was as much an invi- 
tation to the person who sent these 
letters as if the solicitor had written 
to the person and expressly asked for 
them. His character as solicitor was 
an indication to the world that all 
information which was honest, bona 
fide, and material for the purposes of 
the cause might be sent to him, ought 
to be sent to him, and would be re- 
ceived by him on behalf of his client. 
Therefore he received those letters 
confidentially for his client, not for 
himself or for any other purpose, and 

Vol. X 



234 



PRIVILEGED COMMUNICATIONS. 



F. CoNFiDKNTiAi.. — It is also essential that the communication: 
in question was confidential,^^ and so regarded by client.^* 

Client's Belief Sufficient. — It has been held that communications 
relating to matters which are ordinarily the subject of professional 
advice are privileged, when made by client in the course of trans- 
acting his business, to his attorney, and believed by him to be con- 
fidential, although the attorney may have regarded what was said 
in the light of a casual conversation.**^ So, if under belief that it 



I think received them for the very 
reason that he was professionally 
employed. Therefore this case falls 
within the principle laid down by 
Lord Blackburn in Lyell v. Kennedy, 
and by many other judges." 

83. England. — Bunbury v. Bun- 
bury, 2 Beav. 173, 9 L. J. Ch. N. S. 
I, I Beav. 318, 48 Eng. Reprint 
1 146; Marsh v. Keith, i Dr. & S- 
342; s. c. 30 L. J. Ch. 127, 3 L. T. 
498, 62 Eng. Reprint 410; Cotman v. 
Orton, 9 L. J. N. S. Ch. 268; Park- 
hurst V. Lowten, 2 Swanst. 194, 216, 
36 Eng. Reprint 589. 

Alabama. — Kling v. Tunstall, 124 
Ala. 268, 27 So. 420. 

California. — Sharon v. Sharon, 79 
Cal. 633, 678, 22 Pac. 26, 131 ; Hager 
V. Shindler, 29 Cal. 47. 

Georgia. — Burnside v. Terry, 51 
Ga. 186. 

Illinois. — Tyler v. Tyler, 126 111. 
525, S41, 21 N. E. 616, 9 Am. St. 
Rep. 642. 

Indiana. — Harless v. Harless, 144 
Ind. 196, 41 N. E. 592. 

Iowa. — Caldwell v. Meltveldt, 93 
Iowa 730, 61 N. W. 1090; State v. 
Kidd, 89 Iowa 54, 56 N. W. 263. 

Kansas. — In re Elliott (Kan.), 84 
Pac. 750. 

Louisiana. — Reeves v. Burton, 6 
Mart. N. S. 283. 

Missouri — Henry v. Buddecke, 
81 Mo. App. 360. 

Montana. — Smith v. Caldwell, 22 
Mont. 331, 56 Pac. 590. 

Nebraska. — Elliott v. Elliott 
(Neb.), 92 N. W. 1006. 

Nezv Hampshire. — Brown v. Pay- 
son, 6 N. H. 443. 

New York. — King v. Ashley, 96 
App. Div. 143, 89 N. Y. Supp. 482, 
affirmed 179 N. Y. 281, 72 N. E. 106. 

Pennsylvania. — Levers v. Van- 
Buskirk, 4 Pa. St. 309; Heaton v. 
Findlay, 12 Pa. St. 304; Kramer v. 

Vol. X 



Kister, 187 Pa. St. 227, 40 Atl. 1008, 
44 L. R. A. 432. 

Utah. — State v. Snowden, 23 Utah 
3 1 8, 6s Pac. 479. 

Vermont. — Earle v. Grout, 46 Vt> 

113. 125- 

Wisconsin. — Aultman & Co., v^ 
Ritter. 81 Wis. 395, 51 N. W. 569. 

"The purpose of the provision of 
law is, no doubt, to secure to liti- 
gants ample protection against any 
breach of the proper confidence which 
it is necessary that they should re- 
pose in their legal advisers. It may 
therefore be argued that the word 
" confidence," as used in the code, 
properly was intended to apply to 
any facts, the knowledge of which 
was acquired by the attorney in the 
course of his dealings as attornej' 
with his client, whether the knowl- 
edge of such facts was acquired by 
word or writing, or in any other 
manner." McClure v. Goodenough, 
12 N. Y. Supp. 459. The context 
shows that the word " argued " is 
used by the court in the sense of 
" assumed " or " concluded-" 

84. R e g a r d e d as ConfidentiaU 
Sharon v. Sharon, 79 Cal. 633. 678, 
22 Pac. 26, 131. In re Elliott 
(Kan.), 84 Pac. 750. 

85. Moore v. Bray, 10 Pa. St. 519; 
Sheehan v. Allen, 67 Kan. 712, 74 
Pac. 245. In this latter case it was 
attempted to be shown by two at- 
torneys that a certain person was in- 
sane. It appeared that he had con- 
sulted each of them as to matters 
usually discussed with lawyers, but 
each testified that, on account of such 
person's condition, he had made no 
charge, and had not considered the 
relation as existing. Each admitted 
professional relations, and one con- 
ceded that the person in question 
acted upon a belief in the existence 
of the relation. The court says : " In 



PRIVILEGED COMMUNICATIONS. 



235 



is necessary, client inserts unnecessary matter in privileged writ- 
ing, it is privileged. ^'^ 

a. Whether or Not Confidential. — Hoiv SJiozvn. — Whether or 
not a particular communication was confidential is a matter to be 
established by evidence,^' or by an application of the maxims and 
principles which usually control human action.^^ 

Confidential or Not, Inference. — Whether or not a given communi- 
cation was confidential, may be inferred from (i) the nature of the 
communication; (2) the circumstances under which it was made. 

(1.) Nature of Communication (A.) Matters To Be Communicated 

To Another. — Matters communicated to an attorney for the purpose 
of beins: communicated to others are not confidential.®^ 



this case Richard Collins twice sought 
out an attorney for the purpose of 
obtaining legal advice and assistance 
upon matters he deemed of import- 
ance. In each case the attorney con- 
sulted accepted his confidences as an 
attorney at law engaged in the prac- 
tice of his profession, and obtained 
from him information imparted upon 
the faith of that relation. One of 
these attorneys conceded that Richard 
Collins acted upon a belief in the 
existence of such relation. The other 
conceded that he himself at the time 
acted in good faith upon such a be- 
lief to the extent of procuring a 
patent, writing letters, and investi- 
gating a title. Therefore neither one 
will be allowed to profane the rela- 
tion after his client's death. Be- 
sides this, it would be a strange pro- 
cedure which would permit a witness 
to testify outright that he believed 
a person to be insane at a certain 
time for the purpose of removing a 
bar to his relating certain facts, with- 
out which he would not be qualified 
to speak at all upon the question ot 
the person's sanity. The very ques- 
tion at issue could not be conclusively 
decided by the witness in order to 
render him competent to speak upon 
it. If the witnesses had founded 
their opinions upon observations 
made in common with others in a 
nonprofessional capacity, or upon 
facts which did not come to their pe- 
culiar knowledge because their pro- 
fessional opinions and guidance had 
been sought, they might have shown 
themselves to be competent to tes- 
tify. ... In this case, however, 
it is quite clear the witnesses would 



not have learned the major portion 
of the facts which they disclosed, or 
held the most important conversa- 
tions which they repeated on the wit- 
ness stand, had they not undertaken 
to consult with and act for Richard 
Collins as his attorney. This being 
true, they were incompetent to tes- 
tify as to such facts and conversa- 
tions." 

86. Cleave v. Jones, 7 Exch. 
(Welsby, H. & G.) 421. 

87. Hager v. Shindler, 29 Cal. 47 ; 
Sharon v. Sharon, 79 Cal. 633, 678, 
22 Pac. 26, 131. See note 88. 

88. Hager v. Shindler, 29 Cal. 47- 
In this case the coi^rt says : " If it 
appears by extraneous evidence, or 
from the very nature of the trans- 
action, that confidence was not, and 
on the maxims by which human na- 
ture is ordinarih' governed, could not 
have been contemplated, then the fact 
communicated may be proved by the 
testimony of the attorney." 

89. Matters to be Made Known. 
England. — Gore r. Bowser, 5 De 

G. & S. 30, 64 Eng. Reprint 1004; 
Gore V. Harris, 21 L. J. N. S. Ch. 10, 
15 Jur. 1 168. Compare Gainsford v. 
Grammar, 2 Camp. 9. 

Canada. — Walton v. Bernard, 2 
Grant Ch. (U. C.) 344. 363. 

United States. — Edison Elec. L. 
Co. V. United States Elec. L- Co., 44 
Fed. 294. 

California. — Ferguson v. McBean^ 
91 Cal. 63, 73, 27 Pac. 518, 14 L. R. 
A. 65. 

District of Coliwibia. — Oliver v. 
Cameron, McArthur & M. 237. 

Illinois. — Scott z'. Harris, 113 
111. 447. 

Vol. X 



236 



PRIVILEGED COMMUNICATIONS. 



(B.) Matters To Be Made Public. — The communication of matters 
which the attorney must necessarily, in the discharge of his duty, 
make pubHc is not confidential, as the making of statements to be 
embodied in a pleading to be filed for client."" 

(C.) Paper, Recording Necessary To Attorney's Protection. — Nor is 
the delivery to attorney of a paper which it is necessary for him 
to record to protect his own interest.^^ 



Kentucky. — List's Exrx. v. List, 
26 Ky. L. Rep. 691, 82 S. W. 446. 

New York. — Collins v. Robinson, 
72 Hun 495, 25 N. Y. Supp. 268; Do- 
heny v. Lacy, 59 N. Y. Supp. 724, 
734, 42 App. Div. 218, affirmed 168 
N. Y. 213, 61 N. E. 255; Bartlett v. 
Bunn, ID N. Y. Supp. 210. 

Texas. — Henderson v. Terry, 62 
Tex. 281; Taylor v. Evans (Tex. 
Civ. App.), 29 S. W. 172. 

Wisconsin. — Herman v. Schle- 
singer, 114 Wis. 382, 394, 90 N. W. 
460, 91 Am. St. Rep. 922. 

In McTavish v. Denning, Anthon. 
(N. Y.) 15s, defendant's attorney 
was asked if he had not at a certain 
time, on behalf of defendant, made 
certain propositions to defendant's 
creditors. This question vi^as ob- 
jected to as calling for confidential 
communications. The court says: 
" The witness must answer the ques- 
tion proposed to him. The compro- 
mise was not a matter confidential in 
its nature, but was made public by 
communication to the creditors." 

90. Caldwell v. Meltveldt, 93 
Iowa 730, 61 N. W. 1090; Ruiz v. 
Dow, 113 Cal. 490, 45 Pac. 867. 

Matter to be Pleaded, — In Wal- 
do V. Beckwith, i N. M. 182, an at- 
torney was offered as a witness to 
prove that a partnership existed be- 
tween certain persons. His testimony 
was objected to on the ground that 
he had learned the facts sought to be 
disclosed as attorney for those per- 
sons. It was shown that witness had 
been employed by them to bring suits. 
The, court said that the information 
was ' given to be made public in 
bringing the suits, and could not be 
regarded as confidential. 

Matters communicated to counsel 
for the purpose of being set forth 
in a pleading are not confidential. 
San Antonio & A. P. R. Co. v. 
Brooking (Tex. Civ. App.), 51 S. 

w. 537. 

Vol. X 



Pleading to be Filed In State 

V. Marshall. 8 Ala. 302, M. was in- 
dicted for burglary, the indictment 
charging him with being a slave. 
The state introduced as a witness an 
attorney who testified that M. had 
applied to him to prepare a petition 
to the legislature praying for M.'s 
freedom. Witness stated that he 
had prepared such a petition, but 
that M. had never called for it. 
Prisoner objected to this testimony, 
and his objection was overruled. On 
appeal this ruling was held correct. 
The court says : " No inference can 
be drawn from the statement upon 
the bill of exceptions that the com- 
munication was confidential, but the 
inference must be that it was not, 
as the only fact disclosed was one 
which it was proper to make public. 
If the disclosure had been of the 
facts upon which the prisoner rested 
his application to the legislature, it 
might be different." See also Cor- 
mier V. Richard, 7 Mart N. S. (La.) 
177. 

In /n re Elliott (Kan.), 84 Pac. 750, 
an attorney was proceeded against 
for disbarment, it being charged, 
among other matters that he had 
disclosed privileged communications, 
the disclosure consisting in showing 
an answer prepared for a client. It 
appeared that the client had caused 
■ the substance of this answer to be 
printed in a newspaper, and had al- 
lowed the notary before whom it 
was verified to read it. As to the 
nature of the communication the 
court says : " The only purpose of 
preparing this answer evidently was 
that it was to be filed in court in the 
case in which it was entitled and 
thus making it public." Held, that 
the communication was not privil- 
eged. 

91. Strickland v. Capital City 
Mills (S. C), 54 S. E. 220. 



PRIVILEGED COMMUNICATIONS. 



237 



(D.) Statements Made In Coneersing Authority. — Statements made 
by client to attorney in the course of conferring authority upon him 
to make a contract or other business arrangement with third per- 
son for client are not confidential.^^ 

(a.) Authority To Authorice Another. — Nor are statements giving 
him power to authorize a third person to do a certain act.^^ 

(b.) Authority To Compromise. — Nor are statements made in con- 
ferring authority to make a compromise.'** 

(E.) Matters Necessarily Not Private. — Knowledge which attor- 
ney has of matters concerning his client which are necessarily not 
private in their nature is not confidential.^^ 



92. Burnside v. Terry, 51 Ga. 
186; Benton v. Benton, 106 La. Ann. 
99, 30 So. 137; Martin v. Piatt. 4 N. 
Y. Supp. 359; Williams v. Blumen- 
thal, 27 Wash. 24. 67 Pac. 393 ; Bart- 
lett V. Bunn, 10 N. Y. Supp. 210, 31 
N. Y. St. 319; Shove V. Martine, 85 
Minn. 29, 88 N. W. 254, 412. 

In Koeber v. Somers, 108 Wis. 
497, 84 N. W. 991, 52 L. R. A. 512, 
the court saj's : " The transaction 
here between Felker and plaintiff, if 
it took place, would fall obviously 
within all the reasons of the cases 
above quoted to justify inference of 
an implied authority to him to testify 
with reference thereto, and waiver 
of any privilege of secrecy. The at- 
torney's own interests are vitally af- 
fected, for, if he may not prove that 
he had authority to settle the claim 
of plaintiff against the defendant, 
and to receive from the latter money 
in consideration thereof, he is placed 
in an attitude of fraud, and his 
standing and repute in the business 
world must suffer. Again, the ir- 
resistible effect of the granting of 
authority to one's attorney to deal 
with a third person is to authorize 
that attorney to communicate the 
fact, whether he does it by words or 
solely by executing the authority. 
Indeed, he cannot perform the serv- 
ice delegated to him without so 
communicating. The rule, therefore, 
outlined by the above-cited authori- 
ties, that an attorney is not re- 
strained by any duty of confidence 
to his client to withhold the fact that 
he has received from that client au- 
thority as an agent to deal with a 
third person, certainly after the au- 
thority has been acted on, is founded 
upon the soundest reason, and is 



absolutely necessary to prevent the 
privilege of secrecy from being 
made an implement of injustice and 
fraud. The ruling of the court that 
Mr. Felker could not testify as to 
whether authority was given him by 
his client to make the written settle- 
ment which he did make was error." 

93. Bartlett v. Bunn, 10 N. Y. 
Supp. 210, 31 N. Y. St. 319. 

94. Bruce v. Osgood, 113 Ind. 360, 
14 N. E. 563. 

95. Client's Statements in Court. 
Foreman v. Archer (Iowa), 106 N. 
W. 372. 

Agreement Made in Court on be- 
half of client. Kramer v. Kister, 187 
Pa. St. 227, 40 Atl. 1008, 44 L. R. 
A. 432. 

Attorney's knowledge that cause of 
action in a case on trial is the same 
as that in another action in which 
he appeared. Levers v. Van Buskirk, 
4 Pa. St. 309. See Heaton v. Find- 
la}', 12 Pa. St. 304. 

Attorney may testify as to state- 
ments made by client as witness 
upon a former trial of the action in 
which attorney is called. Kling v. 
Tunstall, 124 Ala. 268, 27 So. 420. 
But not if his knowledge of client's 
testimony was first imparted to* him 
by client in the course of profes- 
sional employment. Henry z'. Bud- 
decke, 81 Mo. App. 360. 

Matter Not Private in Its Nature. 
Facts in Knowledge of Adversary. 
Schaaf v. PVies, 77 Mo. App. 346, 
359. In this case counsel for plain- 
tiff called upon defendant's attorney 
to obtain information as to transac- 
tions between plaintiff and defend- 
ant. He was informed that defend- 
ant held certain stock of plaintiff's 
intestate as collateral securit}-, which 

Vol. X 



238 



PRIVILEGED COMMUNICATIONS. 



(a.) Copy of Public Record. — Client's act in giving attorney copy 
of a public record is not confidential.®*' 

(b.) Copies of Deposition. — Copy of client's deposition in attor- 
ney's possession is not privileged.®^ 

(c.) Testimony Taken To Enable Attorney To Advise. — But it has 
been held in England that if the solicitor for trustee in bankruptcy 
causes the examination of a witness to be taken for the purpose of 
enabling such solicitor to advise his client whether or not to bring 
an action concerning a bankrupt's affairs, the transcript of such 
testimony in the solicitor's possession is privileged.®^ 

(d.) Notes of Evidence taken by an attorney or his clerk during the 
trial of an action are not privileged.®® 

(e.) Notes of Proceedings in Chambers. — Nor are an attorney's 
notes or memoranda of matters which take place during proceed- 
ings in chambers.^ 

(f.) Document Identified by Client, But Not Filed. — A privileged doc- 
ument is not deprived of its character by the fact that client for 



defendant would surrender upon 
payment of the note thereby secured. 
Defendant sold the stock at pledgee's 
sale. Plaintiff sued, alleging con- 
spiracy to obtain possession of the 
stock, and praying for damages. 
One issue was : Did plaintiff know, 
prior to pledgee's sale, that the stock 
was pledged as security for a debt 
Upon the trial defendant offered to 
prove by plaintiff's attorney that he 
— plaintiff's attorney — had com- 
municated to his client the knowl- 
edge obtained from defendant's at- 
torney. Question objected to as call- 
ing for disclosure of confidential 
communication. Objection sustained. 
The rule sustaining objection was 
held erroneous, and judgment re- 
versed. The court says : " One of 
the exceptions to the general rule 
which excludes communications be- 
tween attorney and client, is in cases 
whefe the subject-matter of the com- 
munication is not in its nature pri- 
vate. I Greenleaf on Evidence, sec. 
244. This exception is stated by the 
supreme court of Pennsylvania in 
Beeson v. Beeson, 9 Pa. 301, thus : 
' The rule does not extend to the 
protection of matter communicated, 
not in its nature private, or which 
cannot properly be termed the sub- 
ject of a confidential disclosure.' 
Applying the rule we think it rea- 
sonably clear that the communication 
by Krone to Mrs. Schaaf of the facts 

Vol. X 



learned from Arnstein can not be 
regarded as a confidential disclosure. 
It concerned facts which were within 
the knowledge of those who were 
opposed in interest to Mrs. Schaaf, 
and which facts she employed Krone 
to ascertain for her." Schaaf Admr. 
v. Fries, 77 Mo. App. 346. To same 
effect, see Standard Oil Co. v, 
Meyer Bros. Drug Co., 84 Mo. App. 
76, in which it is held that a letter 
from attorney to client stating that 
one of client's debtors was indebted 
to others was not privileged. The 
court said that as to the fact of such 
indebtedness was probably known to 
many persons, a statement of it was 
not in its nature private. 

96. State v. Kidd, 89 Iowa 54, 56 
N. W. 263. 

97. Goldstone v. Williams, Dea- 
con & Co., L. R. Ch. Div. 1899. Vol. 
I, p. 47. 68 L. J. N. S. Ch. Div 24, 
79 L. T. N. S. 373. 

98. Learoyd v. Halifax J. S. Co., 
62 L. J. N. S. Ch. 509, 68 L. T. N. 
S. 158. 

98. Nicholl V. Jones, 2 H. & M. 
(Eng.) 588; Rawstone v. Mayor, etc. 
of Preston, L. R. 30 Ch. Div. 116, 
54 L. J. N. S. Ch. Div. 1102, 52 
L. T. N. S. 922 ; Robson v. Worswick, 
L. R. 38 Ch. Div. 370, 58 L. J. Ch. 
31, 59 L. T. N. S. 399. 

1. Ainsworth v. Wilding, 65 L. 
J. Ch. 432, I Ch. 673, 74 L. T. 193, 
69 Iv. J. N. S. Ch. Div. 695. 



PRIVILEGED CO MM UNICA TIONS. 



239 



whom it was prepared identifies it while on the witness stand, if 
it is not filed in evidence. - 

(2.) Inferred From Circumstances of Making', — (A.) Communication 
Made In Public Place. — The fact that a communication was made 
in a public place is a circumstance to be considered in determining 
its character.^ 

(B.) Attorney Acting For Others Than Claimant That in ar- 
ranging a certain transaction, an attorney acted for persons other 
than the one claiming privilege, and for himself, is a circumstance 
to show that knowledge acquired from claimant was not confi- 
dential.* 

b. Witness in Doubt. — When an attorney called as a witness, is 
in doubt as to whether a certain statement was made by his client 
upon the witness stand, or whether it was made to him as attorney, 
the court should, of its own motion, exclude his testimony.^ 

Duty of Witness. — In such case, witness should submit the mat- 
ter to the court for advice.*^ 

G. Private. — To establish the character of a communication 
as confidential, it must have been made privately.'^ 

a. Communication in Presence of Third Person. — Statements 
between attorney and client in the presence of third persons are not 
privileged as to the third persons, and they may give in evidence 
what they hear.^ 



2. Goldstone v. Williams, Deacon 
& Co., L. R. Ch. Div. 1899, Vol. i. 
p. 47, 68 L. J. N. S. Ch. Div. 24, 
79 L. T. N. S. 373- 

3. Public Place — Street As to 

communications made upon a public 
street, see Sharon v. Sharon, 79 Cal. 
-633, 22 Pac. 26, 131 ; Goltra z: Wol- 
cott. 14 111. 88. 

The fact that a conference be- 
tween attorney and client took place 
in a public building, and in a room 
in which other persons were present, 
will not, alone, cause the court to 
conclude that communication was 
not confidential. Parker v. Carter, 4 
Munf. (Va.) 273, 6 Am. Dec. 513. 
But the fact that conversation be- 
tween attorney and client takes place 
in the presence of other persons, is 
entitled to some weight as showing 
that communications were not con- 
fidential, but is not conclusive. 
Brazier v. Fortune, 10 Ala. 516; 
Doheny v. Lac}', 168 N. Y. 213, af- 
tinning s. c. 59 N. Y. Supp. 724. 

4. Pawson v. Merchants' Bank, 
II Ont. Pr. (Can.) 18. 

5. People v. Atkinson, 40 Cal. 284. 

6. People V. Barker, 56 111. 300. 



See Bank of Columbia v. French's 
Exrx., I Cranch C. C. (U. S.) 221. 

7. Brazier v. Fortune, 10 Ala. 516; 
IMurphy z\ Waterhouse. 113 Cal. 467, 
45 Pac. 866, 54 Am. St. Rep. 365; 
Stone V. Minter, iii Ga. 45, 36 S. 
E. 321, 50 L. R. A. 356; Colt V. 
McConnell, 116 Ind. 249, 19 N. E. 
106; State V. Kidd, 89 Iowa 54, 56 
N. W. 263 ; Denser v. Walkup, 43 
Mo. App. 625; Miller v. Palmer, 25 
Ind. App. 357, 58 N. E. 213, 81 Am. 
St. Rep. 107. 

In jMiller v. Palmer, 25 Ind. App. 
357, 58 N. E. 213, 81 Am. St. Rep. 
107. it was held that an attorney's 
clerk could testify that certain papers 
were, in open court, delivered to his 
employer as attorney for person 
claiming privilege. 

Actually Overheard From re- 
marks made in the opinion in Bacon 
V. Frisbie, 80 N. Y. 394, 36 Am. Rep. 
627, it would seem that the court in- 
clined to hold that one who claims 
a certain statement is not secret, be- 
cause of presence of third persons, 
must show that it was actually over- 
heard. 

8. Third Persons Alabama. 

Vol. X 



240 



PRIVILEGED COMMUNICATIONS. 



b. Statements of Third Person in Presence of Attorney and Client, 
Nor are statements of a third party, nor the cHent's agent, in pres- 
ence of attorney and client, although the third party employs attor- 
ney on behalf of cHent, and pays him for his services.^ 

c. Third Persons Present, Not Privileged. — The authorities are 
conflicting on the question whether or not an attorney may testify 
to communications which take place between himself and client in 
the presence of third persons. It has been held that he may testify.^* 



Cotton V. State, 87 Ala. 75, 6 So. 625. 

Colorado. — Denver Tramway Co. 
V. Owens, 20 Colo. 107, 129, 36 Pac. 
848. 

/Ja/zo. — State v. Perry, 4 Idaho 
224, 38 Pac. 655. 

/oit-a. — State v. Sterrett, 68 Iowa 
76, 25 N. W. 936. 

Massachusetts. — Blount v. Kimp- 
ton, 155 Mass. 378, 29 N. E. 59°, 
31 Am. St. Rep. 554; Day v. Moore, 
13 Gray 522; Hoy v. Morris, 13 
Gray 519, 74 Am. Dec. 650. 

Missouri. — Tyler v. Hall, 106 Mo. 
313, 17 S. W. 319, 27 Am. St. Rep. 
327; Weinstein v. Reicl, 25 Mo. 
App. 41. 

Nebraska. — Basye v. State, 45 
Neb. 261, 283, 63 N. W. 811. 

New York. — Jackson v. French, 3 
Wend, 337, 20 Am. Dec. 699; People 
V. Buchanan, 145 N. Y. i, 26, 39 N. 
E. 846. 

Te.ras. — Walker v. State, 19 Tex. 
Crim. 176. 

In Goddard v. Gardner, 28 Conn. 
172, the court says : " No reason of 
necessity requires that any witness 
(save an interpreter,) should ever be 
present at a consultation between the 
client and his attorney, and if the 
client procures or submits to the 
presence of such a witness, he volun- 
tarily confides his secrets, not to his 
attorney only, but also to the witness, 
in whose custody the law can not 
protect them when the interests of 
justice require that they should be 
disclosed. '2 Stark. Ev., 230. i 
Greenl. Ev. § 239. i Phil. Ev., 162. 
Gainsford v. Grammar, 2 Camp., 9 
Jackson v. French, 3 Wend., 337, 
Hatton V. Robinson, 14 Pick., 416. 

In the case before the court, the 
consultation was held in the presence 
of a witness in no way connected 
with the case or with the parties, 
whose presence was unnecessary, 

Vol. X 



whose services were in no way ap- 
propriated, and who had no interest 
in, or connection with, the profes- 
sional business of the attorney. The 
facts communicated in the consulta- 
tion were voluntarily communicated 
to the witness as well as to the at- 
torney. The rule which enjoins the 
attorney's silence does not extend to- 
such a witness, and the court below 
erred in refusing to hear his testi- 
mony. It is not our duty to promul- 
gate any opinion of the conduct of 
the witness. The moral sense of al- 
most every man will indicate truly 
the line of duty and propriety in such 
a case as this. To such protection as 
that moral sense affords, the party 
must be referred." 

9. Frank v. Morley's Estate, io5 
Mich. 635, 64 N. W. 577- 

10. England. — Griffith v. Davies, 
5 Barn. & Ad. 502, 27 E. C. L. 114; 
Ripon V. Davies, 2 N. & M. 310; 
28 E. C. L. 358; Weeks v. Argent, 16 
M. & W. 817, 16 h. J. 209, II Jur. 

525- 

California. — Gallagher v. William- 
son, 23 Cal. 332, 83 Am. Dec. 114;. 
Ruiz V. Dow, 113 Cal. 490, 45 Pac. 
867; Murphy v. Waterhouse, 113 CaL 
467, 45 Pac. 866, 54 Am. St. Rep. 365. 

Georgia. — Stone v. Minter, iii 
Ga. 45, 36 S. E. 321, 50 E. R. A. 356. 

Illinois. — Andrews v. Scott, 113. 
111. App. 581, 594, affirmed in Scott v. 
Aultman, 211 111. 612, 71 N. E. 11 12. 

Indiana. — Coh v. McConnell, 116 
Ind. 249, 19 N. E. 106. 

lozua. — Wyland v. Griffith, 96 
Iowa 24. 64 N. W. 673. 

Michigan. — House v. House, 61 
Mich. 69, 27 N. W. 858, I Am. St. 
Rep. 570; Cady v. Walker, 62 Mich. 
157, 28 N. W. 805, 4 Am. St. Rep. 834- 

Mississippi. — Perkins Admr. v. 
Guy, 55 Miss. 153, 178, 30 Am. Rep. 
510. 



PRIVILEGED COMMUKICA TIONS. 



241 



(1.) Clerk. — Also that his clerk may testify to conversations be- 
tween his employer, his employer's client, third persons and him- 
self." 

(2.) Client's Agent Present. — But if the third person present sus- 
tains the relation of confidential agent of client, communication in 
his presence is confidential.^^ 

d. Third Persons Present Privileged. — It has also been held that 
communications between attorney and client are confidential not- 
withstanding the presence of third persons, and that the attorney 
may not be compelled to testify .^^ 



Missouri. — Weinstein v. Reid, 25 
Mo. App. 41 ; Denser v. Walkup, 43 
Mo. App. 625 ; Hamil v. England, 50 
Mo. App. 338. 

Nebraska. — Elliott v. Elliott, 92 
N. W. 1006; Adler & Sons Cloth. Co. 
V. Hellman, 55 Neb. 266, 75 N. W. 

877. 

New Jersey. — Carr v. Weld, 19 
N. J. Eq. 319; Roper z-. State, 58 N. 
J. L. 420, 33 Atl. 969. 

New York. — Whiting v. Barney, 
30 N. Y. 330, 86 Am. Dec. 385; 
Britton v. Lorenz, 45 N. Y. 51 ; 
Doheny r. Lacy. 168 N. Y. 213, 224, 
61 N. E. 255, affirming 59 N. Y. Supp. 
724; Brand v. Brand, 39 How. Pr. 
193, 202; Root V. Wright, 21 Hun 
344; Woodruff V. Hurson, 32 Barb. 
557; Hurlburt v. Hurlburt, 2 N. Y. 
Supp. 317; Smith V. Crego, 7 N. Y. 
Supp. 86; In re McCarthy's Will, 8 
N. Y. Supp. 578; Sheldon v. Sheldon, 

11 N. Y. Supp. 477; Greer v. Greer, 

12 N. Y. Supp. 778; Brennan v. Hall, 
14 N. Y. Supp. 864, affirmed 131 N. 
Y. 160. 29 N. E. 1009; Cooperson v. 
Polio, 62 N. Y. Supp. 772; Mertens 
V. Wakefield, 35 Misc. 501, 71 N. Y. 
Supp. 1062; Lecour v. Importers & 
T. Nat. Bk., 61 App. Div. 163. 70 
N. Y. Supp. 419; In re Barnes' Will, 
70 .A.pp. Div. 523, 75 N. Y. Supp. 373 ; 
In re Simons' Estate, 48 Misc. 484, 
96 N. Y. Supp. 1103 ; People v. 
Buchanan, 145 N. Y. i, 39 N. E. 
846 ; Root V. Wright and Greer v. 
Greer, supra, approved in Van Al- 
styne v. Smith, 82 Hun. 382, 31 N. 
Y. Supp. 277, though circumstances 
under which communication there in 
question was made, are not stated. 

North Carolina. — Carey v. Carey, 
108 N. C. 267, 12 S. E. 1038; Hughes 
V. Boone, 102 N. C. 137, 159, 9 S. 
E. 286. 

16 



Pennsylvania. — Hummel v. Kist- 
ner, 182, Pa. St. 216. 37 Atl. 815. 

South Carolina. — Mofifatt v. Har- 
din, 22 S. C. 9. 

In Denser v. Hamilton, 52 Mo. 
App. 394, it was held that memoran- 
dum made by attorney while trans- 
acting business for his client in the 
presence of others was not privileged. 

In State z\ Fitzgerald, 68 Vt. 125, 
34 Atl. 429, it is said that attorney 
ma}' testify as to knowledge of cli- 
ent's condition acquired in presence 
of third person. 

Who are Third Persons In mat- 
ter of Bellis & Milligan, 38 How. 
Pr. (N. Y.) 79, it is said that client's 
wife to whom attorney conveyed 
land which had just been conveyed to 
him by his client to protect the same 
from his creditors was not a third 
person. 

11. Cooperson v. Polio, 62 N. Y. 
Supp. 772. 

12. Bowers v. State, 29 Ohio St. 
S42; Spaulding v. State, 61 Neb. 289, 
85 N. W. 80. 

13. Denver Tramway Co. v. 
Owens. 20 Colo 107, 129, 36 Pac. 
848; Kaut V. Kessler, 114 Pa. St. 
603, 7 Atl. 586; Hartness v. Brown, 
21 Wash. 65s, 59 Pac. 491 ; Gabriel 
V. McMullin, 127 Iowa 426, 103 N. 

w. 355. 

From the ruling in Spaulding v. 
State, 61 Neb. 289, 85 N. W. 80, it 
would seem that an attorney is in- 
competent to testify to communica- 
tions made by client in presence of 
third persons who employ the at- 
torney on behalf of person making 
communication. But in Frank v. 
Morley's Estate. 106 Mich. 635, 64 
N. W. 577, it is held that attorney 
may testify concerning statements 
made in presence of himself and 

Vol. X 



242 



PRIVILEGED COMMUNICATIONS. 



Presence of Third Persons at conference between attorney and cli- 
ent is a circumstance to be considered in determining whether or 
not a certain communication was confidential.^* 

e. Conversation Between Client and Third Person Not Privileged. 
Attorney may give in evidence conversation held in his presence 
by his client and a third person relating to the matter concerning 
which the attorney is acting for his client. ^^ 

f. Coniniiinication From Third Person to Attorney, Not Privi- 
leged. — Statement of Third Person. — Attorney may testify as to 
statement of third person made to him in presence of himself and 
client.^*^ Also as to his own statement made to client's opponent in 
client's presence.^^ Also as to conversations between third parties 
in the presence of himself and client.^^ 

g. Injunction of Secrecy Not Essential. — It is not necessary that 
client enjoin his attorney to keep the communication secret.^^ 

H. Purpose, Advice. — It must appear that the communication 
was made to the attorney for the purpose of obtaining his advice 



client by person wIk) employs him 
for client, and pays his fee. 

In Blount v. Kimpton, 155 Mass. 
378, 29 N. E. 590, 31 Am. St. Rep. 
554, it is held that although com- 
munications between attorney and 
client are made in the presence of 
third persons, they are, neverthe- 
less, as between attorney and client, 
privileged. " They (persons claim- 
ing the privilege) contend that if 
they (communications) are made in 
the presence and hearing of a third 
person, that removes the privileg;;. 
and makes the testimony of the at- 
torney concerning them admissible. 
But as between the client and at- 
torney, they are still confidential, 
though made in the presence or 
hearing of a third party. The only 
effect of that is that they are less 
confidential in fact, and that such 
third party may testify to them. It 
does not qualify the attorney as a 
witness." 

14. Brazier v. Fortune, 10 Ala. 
516; Doheny v. Lacy, 168 N. Y. 
213, 61 N. E. 255, affirming 59 N. Y. 
Supp. 724. 

15. California. — Gallagher v. Wil- 
liamson, 23 Cal. 331, 83 Am. Dec. 
1 14 ; Sharon v. Sharon, 79 Cal. 633, 
678, 22 Pac. 26, 131. 

Georgia. — Stone v. Minter, 1 1 1 
Ga. 45, 36 S. E. 321, 50 L. R. A. 
356. 

Iowa. — Wyland v. Griffith, 96 
Iowa 24, 64 N. W. 673. 

Vol. X 



Minnesota. — Hanson v. Bean, 51 
Minn. 546, 53 N. W. 871, 38 Am. 
St. Rep. 516. 

A'ezi.' York. — Brennan v. Hall, 
131 N. Y. 160, 29 N. E. 1009, af- 
iirmi)ig 14 N. Y. Supp. 864; In re 
McCarthy's Will, 8 N. Y. Supp. 578. 

NortJi Carolina. — Carey v. Carey, 
108 N. C. 267, 12 S. E. 1038. 

S u t h Carolina. — Moffatt v. 
Hardin, 22 S. C. 9, 26. 

16. Frank v. Morley's Estate, 106 
Mich. 635, 64 N. W. 577; Sharon v. 
Sharon, 79 Cal. 633, 678, 22 Pac. 26, 
131. Contra. — Hyde v. M'Cartney, 
2 Molloy (Irish Ch.) 544. 

17. Ripon V. Davies. 2 N. & M. 
310, 28 E. C. L. 358; Hughes i: 
Boone, 102 N. C. 137, 159, 9 S. E. 
286. 

18. Gallagher v. Williamson. 23 
Cal. 331. 83 Am. Dec. 114; Moffatt 
V. Hardin, 22 S. C. 9, 25 ; Hughes 
V. Boone, 102 N. C. 137, 159. 9 
S. E. 286. 

19. Parker v. Carter, 4 Munf. 
(Va.) 27Z. 6 Am. Dec. 513; McLel- 
lan V. Longfellow. 32 Me. 494, 54 
Am. Dec. 599; Wheeler v. Hill. 16 
Me. 329. 

From language used in State v. 
Kidd, 89 Iowa 54, 56 N. W. 263. it 
would seem that the supreme court 
of Iowa were inclined to hold, that 
writing sent by client to attorney is 
not privileged, unless client enjoins 
secrecy. 



PRIVILEGED CO MM UN IC A TIONS. 



243 



as to the rights or obhgations of his chent, or obtaining the rendi- 
tion by him of other professional service. ^"^ 

a. General Conversation Not Privileged. — A mere general con- 
versation between a person and an attorney, when there is nothing 
to show that the latter's advice was sought to determine the conduct 



20. England. — Gardner v. Irvin, 
48 L. J. N. S. Exch. 223, 4 Exch. 
Div. 49, 40 L. T. 35 ; Bx parte Camp- 
bell, 5 Ch. App. 703; s. c. 23 L. T. 
N. S. 289; Cobden v. Kendricks. 4 
T. R. 431; Foakes v. Webb, 54 L. J. 
Ch. 262, 28 Ch. Div. 287, 51 L. T. 
625. 

Colorado. — Machette v. Wanless, 
2 Colo. 169, 179. 

Delazvare. — Johnson v. Farmers' 
Bank, i Harr. 117. 

Illinois. — Granger v. Wanington, 
8 111. 299. 

Indiana. — Borum v. Fonts, 15 
Ind. 50; Lloyd v. Davis, 2 Ind. App 
170. 26 N. E. 232; McDonald v. 
McDonald, 142 Ind. 55, 41 N. E. 
336, 345. 

Massachusetts. — Hatton v. Rob- 
inson, 14 Pick. 416, 25 Am. Dec. 415. 

Michigan. — House v. House, 61 
xMich. 69, 27 N. W. 858. I Am. St. 
Rep. 570; Carty v. Walker. 62 Mich. 
157. 28 N. W. 805, 4 Am. St. Rep. 
834.. 

Minnesota. — Hanson v. Bean, 51 
Minn. 546, 53 N. W. 871, 38 Am. 
St. Rep. 516. 

Missouri. — State v. Hedgepeth, 
125 Mo. 14. 28 S. W. 160; Schaaf v. 
Fries, 77 Mo. App. 346, 359. 

Nebraska. — Brady v. State, 39 
Neb. 529, 58 N. W. 161. 

Nezv York. — Marsh v. Howe, 36 
Barb. 649; Wadd v. Hazleton, 17 N. 
Y. Supp. 410; Morvell z'. Van Buren, 
28 N. Y. Supp. 1035; Phoebus i/. 
Webster. 40 Misc. 528, 82 N. Y. 
Supp. 868. 

Te.vas. — Flack's Admr. v. Neill, 
26 Tex. 273 ; Flenderson v. Terry, 
62 Tex. 281 ; Stallings v. Hullum, 79 
Tex. 421, 15 S. W. 677. 

Vermont. — Earle v. Grout, 46 Vt. 
113. _ 

IVisconsin. — Aultman v. Ritter, 
81 Wis. 395, 51 N. W. 569. 

The communication must have 
been made for the purpose of ob- 
taining the attorney's advice for the 
regulation of his client's conduct. 



Caldwell z'. Davis, 10 Colo. 481, 15 
Pac. 696, 3 Am. St. Rep. 599. 

" But to render a communication a 
privileged one ... it must have 
been made to the attorney by the 
party or client as his legal adviser, 
and for the purpose of obtaining hi."? 
legal advice and opinion relative to 
some legal right or obligation." Al- 
derman v. People, 4 Mich. 414, 69 
Am. Dec. 320. See also Orman v. 
State, 22 Tex. App. 604, 58 Am 
Rep. 662. 

In Laflin v. Herrington, i Black 
(U. S.) 326, it was held that a let- 
ter written by a client to his attor- 
neys complaining of their lack of 
fidelity was not privileged. 

Statements Concerning Payment 

of Attorney's Fee Attorney may 

testify concerning his client's state- 
ments in regard to payment of fee. 
Eekhout V. Cole. 135 N. C. 583. 47 
S. E. 655; Strickland v. Capital Citv 
Mills (S. C), 54 S. E. 220; Smith- 
wick z>. Evans, 24 Ga. 461. But see 
Holden v. State, 44 Tex. Crim. 382, 
71 S. W. 600. 

Compare People v. Pratt, 133 
Mich. 125, 94 N. W. 752, in which 
a ruling apparently contrary to the 
rule stated in the text is made. In 
this case it is said that " The priv- 
ilege is not confined to communica- 
tions made for the purpose of ob- 
taining advice. It extends to ' com- 
munications made to an attorney in 
the course of any professional em- 
ployment, and which may be sup- 
posed to have been drawn out in 
consequence of the relation in which 
the parties stand to each other." " 
Citing Williams v. Fitch, 18 N. Y. 
546. In this case a person under 
subpoena to appear before a grand 
jury applied for advice as to his 
testimony to the judge of the court 
which summoned the grand jury. It 
was held that their communications 
were privileged. See dissenting 
opinion. 

Vol. Z 



244 



PRIVILEGED COMMUNICA TIONS. 



of the person addressing him, and when there was no retainer, is 
not privileged.-^ 

b. Attorney Also Trustee. — If attorney acts both as trustee and 
professional adviser for his client, their conimiunications concern- 
ing the disposition of the trust property, not made for the purpose 
of obtaining advice, are not privileged.-- 

c. Attorney Trustee for Client's Creditors. — If an attorney acts 
as trustee for his client's creditors under a deed of trust executed 
by his client, communications between attorney and client subse- 
quent to the execution of the deed are not privileged.^^ 

d. Attorney Agent for Other Party to Transaction. — If a person 
address a communication to an attorney who is agent for a third 
person with whom the person addressing is transacting business, 
the attorney may testify concerning matters learned through such 
communications, although in conducting negotiations he renders 
services which are usually performed by lawyers.^* 



21. Wadd V. Hazleton, 17 N. Y. 
Supp. 410. 

In Thompson v, Kilborne, 28 Vl. 
750, 67 Am. Dec. 742, the court 
says : " This anomalous relation 
testified to in the deposition, and 
which seems so much to puzzle 
Johnson, and which he so justly 
deprecates, certainly grows out of a 
too common facility upon the part 
of the profession in this state to 
tmdervalue their professional and 
official character as sworn officers 
of the highest judicial tribunal in 
the state. The practice of giving^ 
advice upon legal subjects without 
study and examination, and without 
corresponding pa3^ and a distinct 
retainer, is certainly a vicious one. 
The practice of the profession of 
giving street advice misleads the 
general opinion in regard to the 
value and dependence upon such ad- 
vice. It would no doubt be better 
for the profession and their clients, 
both, if all professional advice in re- 
gard to the prosecution and defense 
of claims were given in writing, as 
it is in many places, and both par- 
ties are thereby put under the 
proper responsibility in regard to it, 
the one to pay for it, and the other 
to make it hold good, or to show at 
least that it was not notoriously 
bad. But at all events, we cannot 
regard a conversation of this loose 
and indefinite character as entitled 
to the protection of professional 
confidence." 

Vol. X 



In In re Monroe, 2 Connolly (N. 
Y.) 395, the court says: "I am not 
at all satisfied that the learned as- 
sistant to the Surrogate, in some of 
his ruling , was free from legal 
error in sustaining the objections 
made on behalf of proponent, who 
was personally present, to the evi- 
dence of the Vv'itness who claimed to 
be his attorney because he had been 
consulted by him on the street and 
at the lunch table about drawing a 
will for decedent. Sidewalk advice 
from attorneys upon legal questions. 
for which no compensation is asked 
or expected, and none given except 
a luncheon, should not be regarded 
as a privileged communication."' 
The report does not state who paid 
for the luncheon. 

Complaints to one attorney of the 
conduct of another with whom wit- 
ness is associated in business are not 
privileged. Boyd v. Daily. 85 App. 
Div. 581, 83 N. Y. Supp. 539. af- 
■firincd without opinion. 176. N. Y. 
613. 68 N. E. 1 1 14. See Rudd v. 
Frank. 17 Ont. (Can.) 758. 

22. Hager v. Shindler, 29 Cal. 
47. 64. 

23. Trustee for Creditors. 
Pritchard f. Foulkes, C. P. Coop. 
14. 47 Eng. Reprint 379. 

24. Turner z'. Turner, 123 Ga. 5. 
50 S. E. 969, 107 Am. St. Rep. 79. 
In this case the court says : " W. J. 
Neel. Esq., was called as a witness 
for the plaintiff and was permitted 
to testify to a conversation between 



PRIVILEGED COMMUNICATIONS. 



245 



e. Friendly Advice as to Conduct, given by attorney, is not priv- 
ileged.^^ 

f. Attorney as Arbitrator. — If attorney acts as arbitrator be- 
tween two persons, their communications to him concerning the mat- 
ter submitted are not privileged.-® 

g. Statements by Witness. — Communications between an attor- 



J. Dallas Turner and his wife in 
reference to the pa3'ment of the 
claim of the plaintiff out of money 
the proceeds of a loan which the 
witness had negotiated for Mrs. 
Turner. He was also permitted to 
testify to other matters in connec- 
tion with the negotiation of this 
loan. This evidence was objected to 
on the ground that the relation of 
attorney and client existed between 
the witness and the defendant, and 
that therefore the witness was not 
competent to testify in reference to 
any matter knowledge of which he 
derived on account of the profes- 
sional relation claimed to exist be- 
tween the parties. It appeared that 
Mr. Neel carried on, in connection 
with the practice of his profession 
as an attorney, the business of a ne- 
gotiator of loans ; that he was au- 
thorized by the company which he 
represented to receive applications 
for loans ; that these applications 
were transmitted to the company, 
and if the security offered was satis- 
factory the loan would be accepted, 
and the money would be sent to Mr. 
Neel, who, after deducting such 
sums as had been agreed upon be- 
tween him and the applicant for ex- 
penses and commissions, would pay 
over the net proceeds to the appli- 
cant. It is clear from the testimony 
that Mr. Neel bore that relation to 
the applicant and the loan company 
which has become so familiar to 
every one in this state. He was the 
agent of the applicant, and not the 
agent of the lender. But he was ex- 
pected by the lender, on the ac- 
ceptance of the application, to see 
that the applicant had an unincum- 
bered title to the property, and if 
there were incumbrances it was his 
duty to see that these incumbrances 
were removed before any portion of 
the money was paid over to the ap- 
plicant. He owed a duty to the ap- 



plicant, as agent, to do every act that 
was legitimate and proper to secure 
the acceptance of the loan. In the 
performance of these duties it would 
become necessary for him to exer- 
cise his knowledge and information 
as an attorney at law, but he was 
really not employed as an attorney, 
but simply as an agent who, on ac- 
count of the fact that he was also 
an attorney, might discharge the 
duty that was owing to the appli- 
cant without calling for the services 
of another person. . . . This was 
the view taken by this court in 
Skellie v. James, 8i Ga. 419, in 
which the testimony of Judge Miller, 
who occupied a relation to the trans- 
action then under investigation sim- 
ilar to that which IMr. Neel occupied 
in the present case, was held to be 
admissible. In Freeman v. Brewster, 
93 Ga. 652-653, where it was held 
that the testimony of an attorney at 
law was not admissible, the case of 
Skellie v. James was distinguished, 
upon the ground that it there ap- 
peared that the knowledge of the 
attorney as to the loan about which 
he w^as introduced as a witness was 
acquired, not as attorney for the 
borrower, but as attorney for the 
lender, who was not a party to the 
case. See also, in this connection, 
Jackson v. Bennett, 98 Ga. 106 (2^ ; 
Stone v. Minter. 11 1 Ga. 45." 

25. If attorney addresses person 
who has committed an assault upon 
his client, and advises him to leave 
town for a short time to avoid ar- 
rest, the conversation between theni 
is not privileged, if it appear that 
the advice was tendered in a 
friendly way, and not as coming 
from a legal adviser. Kitz v. Buck- 
master, 45 App. Div. 283, 61 N. Y. 
Supp. 64. See Rudd v. Frank, 17 
Ont. (Can.) 758. 

26. Cady v. Walker, 62 Mich. 
157, 28 N. W. 805, 4 Am. St. Rep. 
834. 



Vol. X 



246 



PRIVILEGED COMMUNICA TIONS. 



ney and a person who is, or will be, a witness in a case in which the 
attorney is engaged, are not privileged.-' 

h. Statements as to Matters of Fact. — Communications to an 
attorney for the purpose of obtaining information as to matters of 
fact are not privileged.-^ 

i. Opinion on Abstract Question of Lavj. — The rule does not 
apply when a person requests an attorney's opinion upon an abstract 
question of law, it not appearing that the person addressing the 
attorney had done any act in regard to which he required profes- 
sional advice.-^ 

j. Service Not Requiring Legal Skill. — Where the nature of the 
employment is not such as to require legal skill in its exercise, com- 
munications relating to it are not privileged.^" 



27, City of Rockford v. Falver, 
27 111. App. 604; People V. Heart, i 
Cal. App. 166; Lalance & G. Mfg. 
Co. V. Haberman Mfg. Co.. 87 Fed. 
563. But see Curling v. Perring, 2 
Myl. & K. 380. 4 L. J. Ch. (N. S.) 
80, 39 Eng. Reprint 989. See also 
English cases in notes 87-90. ante. 
under III, 10, D, e. 

28. Branwell v. Lucas, 2 Barn. & 
C. 745. 9 E. C. L. 233; Hatton 0. 
Robinson, 14 Pick. (Mass.) 416, 25 
Am. Dec. 415; Higbee v. Dresser, 
103 Mass. 523 ; Appeal of Turner, 
72 Conn. 305. 44 Atl. 310; Home F. 
Ins. Co. V. Berg, 46 Neb. 600, 65 
N. W. 780; Piano Mfg. Co. v. 
Frawley, 68 Wis. 577. 32 N. W. 7^:&. 

Nor is attorney's statement to 
client as to matter of fact. Rose- 
water V. Schwab Cloth. Co., 58 Ark. 
446, 25 S. W. 7^. To same general 
effect, see McDonald v. McDonald. 
142 Ind. 55. 41 N. E. 336, 345- 

29. r^IcMannus v. State, 2 Head 
(Tenn.) 213. 

30, Walker v. Wildman. 6 Madd. 
(Eng.) 47. 56 Eng. Reprint 1007; 
State V. Marshall. 8 Ala. 302; Jack- 
son V. Bennett, 98 Ga. 106, 26 S. E. 
S3 ; In re O'Donohoe, 18 Fed. Cas. 
No. 10,435; -y- c., 2 Hask. 17, 7 Fed. 
Cas. No. 3990. 

Where a person requests an at- 
torney to use his influence with a 
third person — his client — to induce 
such person to pay money to the 
one making the request, their com- 
munications on the subject are not 
privileged. In re Turner's Estate, 
167 Pa. St. 609, 31 Atl. 867. 

The fact that the attorney had 
acted as adviser, in small matters, of 

Vol. X 



the person addressing him, is imma- 
terial, lb. 

Instruction as to Mechanical Act. 
Client's instructions to his attorney 
regarding the performance of a me- 
chanical act are not privileged. 
Higbee v. Dresser, 103 Mass. 523. In 
this case client wrote his attorney 
instructing him to deliver a certain 
note to another attorney. Held, the 
letter was not privileged. See also 
Dixon V. Parmelee , 2 Vt. 185 ; Ault- 
man & Co. v. Ritter, 81 Wis. 395. 
51 N. W. 569, where it was held 
that an attornej' could be compelled 
to testify that he had received from 
his client a check to be used in pay- 
ing fees and charges of a person 
who had conducted a sale under a 
certain chattel mortgage, and that 
he had paid the same. 

Instruction as to Delivery of 

Deed Ruiz v. Dow, 113 Cal. 490, 

45 Pac. 867. 

Message to Another Person — A 
person imprisoned on a criminal 
charge requested an attorney to call 
upon the officer in charge of the 
prosecution and request that pris- 
oner be given a light sentence. 
Held, that such communication was 
not privileged. State v. Hedgepeth. 
125 Mo. 14, 28 S. W. 160. the court 
says : " While it is true, as con- 
tended for by counsel for defend- 
ant, that, if the statements made to 
the witness Furling were made 
while he was acting as his attorney 
in endeavoring to receive a lighter 
sentence by pleading guilty, such ev- 
idence was incompetent, the evi- 
dence shows that he never at any 
time occupied that relation toward 



PRIVILEGED COMMUNICA TIONS. 



247 



(1.) Attorney as Scrivener. — Thus, if an attorney simply acts as 
a scrivener in drawing papers for client, and no statements are 
made which necessitate the giving of professional advice, commu- 
nications between attorney and client in the course of the trans- 
action are not privileged. '^^ 



him. Upon the contrary the witness 
testified that he was never employed 
by defendant, never expected any 
remuneration for what he did. which 
was merely gratuitous, and his 
statement is not contradicted in any 
manner by any other witness. The 
mere fact that he was a practicing 
attorney, and that he complied witli 
the request made of him by defend- 
ant by no means created the rela- 
tion of attorney and client. It re- 
quired no professional skill, and any 
other person of ordinary intelligence 
could have performed the same 
service. No fee was paid nor was 
there any contract either express or 
implied by which one was to be paid. 
' It is said that two things are nec- 
essary to establish the relation be- 
tween attorney and client: First. 
the agreement of the attorney to be 
an attorney for the party; and sec- 
ond, the agreement of the party to 
have the other for an attorney.' 
Weeks on Attorneys at Law. § 185." 
Message — People v. Hess, 8 
App. Div. 143, 40 N. Y. Supp. 486. 
In this case defendant when arrested 
on criminal charge addressed an at- 
torney who had previously acted as 
such for him. The attorney stated 
that he could not and would not 
act as defendant's attorney in the 
criminal case. Afterwards defendant 
sent for the attorney and wished to 
talk with him about the case. The 
attorney repeated that he could not 
act as defendant's counsel. Defend- 
ant stated that there was a matter 
which he did not wish to speak 
about to counsel, but that he wished 
to talk with witness because of con- 
fidence founded upon acquaintance- 
ship. Defendant then requested wit- 
ness to take a message to another 
person who had been arrested upon 
the same charge as defendant. The 
attorney took the message and re- 
ported the reply to defendant. The 
message and the interview between 
defendant and witness when the re- 
ply was reported were claimed to be 



privileged. //<?W, that relation did 
not exist as to the matters in ques- 
tion, and attorney should testify. 

Contents of Notice — Fact of 

Service Attorney's knowledge of 

the contents and of the fact of serv- 
ice of notice prepared and served by 
him for his client, indorsee of a 
draft, requiring another indorsee to 
sue the drawer, is not privileged. 
Collins z'. Johnson, 16 Ga. 458. 

31. England. — Vailiant v. Dodo- 
mede, 2 Alk. 592, 26 Eng. Reprint 

754- 

Colorado. — Caldwell v. Davis, 10 
Colo. 481, 15 Pac. 696, 3 Am. St. 
Rep. 599; Machette v. Wanless, 2 
Colo. 169. 179. 

Dakota. — O'Neill v. Murray, 6 
Dak. 107. 50 N. W. 619. 

Georgia. — Corbett v. Gilbert. 24 
Ga. 454. 

Illinois. — De Wolf v. Strader, 26 
III. 225, 79 Am. Dec. 371 ; Smith v- 
Long, 106 111. 485. 

Indiana. — Borum v. Fonts, 15 
Ind. 50; Hanlon v. Doherty, 109 Ind. 
27, 9 N. E. 782; Thomas v. Griffin, 
I Ind. App. 457, 27 N. E. 754- 

Ka>isas. — Sparks v. Sparks, 51 
Kan. 195, 32 "Pac. 892; Grimshaw v. 
Kent, 67 Kan. 463, 73 Pac. 92. 

Michigan. — Dikeman v. Arnold, 
78 Mich. 455, 44 N. W. 407. 

Minnesota. — Hanson v. Bean, 51 
Minn. 546, 53 N. W. 871. 38 Am. St. 
Rep. 516. 

Montana. — Smith v. Caldwell, 22 
Mont. 331, 56 Pac. 590. 

Pennsylvania. — Appeal of Good- 
win Gas Stove & M. Co., 117 Pa. St. 
514, 12 Atl. 736, 2 Am. St. Rep. 696. 

Texas. — Stallings v. Hullum, 79 
Tex. 421, 15 S. W. 677. 

J'ermont. — Childs v. Merrill, 66 
Vt. 302. 29 Atl. 532. 

" Attorney and Conveyancer. " 
If attorney testify that a certain com- 
munication was made to him " in his 
capacity of attornej% counselor and 
conveyancer," his testimony should 
be excluded. Linthicuni z: Reming- 

Vol. X 



248 



PRIVILEGED COMMUNICATIONS. 



Advice in Connection With Preparation of Papers. — But if the at- 
torney, in connection with the drawing of papers gives advice con- 
cerning the purpose they are designed to accompHsh, or devises or 
suggests the plan which results in their preparation, or renders any 
legal service in regard to the transaction, communications on the 
subject are privileged.^^ 



ton, 5 Cranch C. C. (U. S.) 546. 

Preparation of Will See In re 

Downing's Will, 118 Wis. 581, 95 N. 
W. 876, in which an attorney draw- 
ing a will was held to have acted as 
a scrivener. But in Loder v. Whelp- 
ley, III N. Y. 239, 248, 18 N. E. 874, 
it is held that a communication to 
an attorney in regard to the prepa- 
ration of a will is privileged, al- 
though asking no questions, and 
without advising his client, he does 
nothing more than reduce client's 
directions to writing. 

Conveyancer Not Admitted to 
Practice — Statements made to a 
person who acts as conveyancer and 
general adviser, but who has never 
been admitted to practice, are not 
privileged. Later v. Haywood (Ida- 
ho), 85 Pac. 494. See reference to 
case prior to 1676 in Bulstrod v. 
Letchmere, 2 Freeman Ch. (Eng-) 
6 (case 4.) [1676] (i), 22 Eng. Re- 
print 1019. 

In Randel v. Yates, 48 Miss. 685, 
this language is used : " An attorney 
who is requested to prepare a deed 
or mortgage, no legal advice being 
required, is not privileged, and may 
testify as to what comes to his 
knowledge in connection with such 
transaction. And when the terms of 
a contract have been agreed upon be- 
tween the parties, and an attorney is 
afterwards employed as a scrivener 
merely to reduce the contract to 
writing, and no inquiry is made of 
him as to its legal effect, communica- 
tions made to him, while thus en- 
gaged, will not be regarded as privi- 
leged." 

But in Fox V. Spears (Ark.), 93 S. 
W. 560, it was held that client's state- 
ments to attorney that he had sold 
the land there in controversy, and in- 
structions to draw a deed were privi- 
leged. 

32. Brown v. Butler, 71 Conn. 
576, 42 Atl. 654; Barry v. Coville, 7 

Vol. X 



N. Y. Supp. 36, 25 N. Y. St. 658; 
Gray v. Fox, 43 ]\Io. 570, 97 Am. Dec. 
416; Carter v. West, 93 Ky. 211, 19 
S. W. 592; Watson v. Young, 30 S. 
C. 144, 8 S. E. 706. 

Where the record shows that an 
attornej' who drew a deed for his 
client was selected to devise and con- 
summate a plan by which a man 
could secure to his wife payment, in 
land, of a debt owing to her, and that 
this plan was carried out by the deed, 
so drawn, the attorney is deemed to 
have been emplo\'ed professionally, 
and not as a draughtsman. This 
conclusion is strengthened by the fact 
that, after drawing an executory 
agreement which preceded the deed, 
the attorney brought an action upon 
it in behalf of one of his clients. In 
this case it was held that communi- 
cations between attorney and clients 
were privileged. Blunt v. Strong, 60 
Ala. 572. 

In Parker v. Carter, 4 Munf. 
(Va.) 273, 6 Am. Dec. 513, the 
court says : " He (an attorney of- 
fered as a witness) was applied to by 
Mr. Fauntleroy to draw such a deed 
as would settle the negroes on the 
appellee, Apliia, and exempt them 
from liability to her husband's credi- 
tors. The preparing of such deed 
necessarily required some degree of 
legal knowledge, and it might not be 
that a person wholly unskilled in law 
would be competent to draw it. 
While we say this, it is by no means 
intended to be admitted that where 
an attorney is retained and consulted, 
his right to disclose his client's se- 
crets depends at all upon the diffi- 
culty or clearness of the case sub- 
mitted." 

Attorney as Conveyancer In 

other cases it is held that communi- 
cations to attorney who acts as con- 
vejancer are privileged. Brand v. 
Brand, 39 How. Pr. (N. Y.) 193,263. 

In Todd V. Munson, 53 Conn. 579, 
4 Atl. 99, the court says : " Instruc- 



PRIVILBGBD COMMUNICATIONS. 



249 



(2.) Attorney as Notary. — Statements made, while acknowledging 
an instrument, to a notary public who is also an attorney, but whose 
professional advice is not asked, are not privileged. ^^ 

(A.) That Attorney Acting As Scrivener Or Notary Paid By One 
Party, Immaterial. . — The fact that an attorney who acts as scrivener 
or notary for both parties to a transaction is paid by one of them, 
does not constitute him an attorney for such party in the sense 
that his action can be considered that of a lawyer rather than scriv- 
ener or notary.^* 

(B.) Pretending To Act As Notary, When In Fact Attorney. ■ — But 
if an attorney who is employed to prepare a document acts as an 
attorney, he will not, by claiming that he merely acted as a notary, 
be permitted to disclose matters communicated to him by the person 
for whom he acted.^^ 



lions by a grantor to an attorney 
drawing a deed are not ordinarily 
privileged communications. Hatton 
V. Robinson, 14 Pick. 416; Hebbard 
V. Haughian, 70 N. Y. 54. . . . 
But the difficulty is that the record 
does not show the precise nature of 
the communications from the gran- 
tors which the plaintiff expected to 
prove. It appears that he oft'ered to 
prove by the declaration of one of 
the grantors made at the time the 
deed was executed, ' that the pur- 
pose of the deed was that Mrs. Mun- 
son could hold the property, and, 
subsequent to the death of Mr. and 
Mrs. Todd, sell or divide the prop- 
erty and give half to the plaintiff.' 
Now it may be that that purpose was 
the result of his consultation with 
his attorney — that it was what his at- 
torney advised or directed ; and, on 
the other hand, it may be that the 
declaration, whatever it was, was in- 
tended as an instruction to the at- 
torney to prepare a deed expressing 
therein such a trust as the purpose 
contemplated. This latter supposi- 
tion however seems to be excluded by 
the pleadings ; for it is not alleged 
that the deed was not written ac- 
cording to the instructions ; it is not 
alleged even that the deed is not 
just as the grantors intended it should 
be. We are thrown back then upon 
an express parol trust as the object 
of the proof to be gathered from the 
declarations. As it is possible that 
such a trust can only be shown by 
bringing before the court the private 
conferences between the client and 



his attorney, it is not clear that the 
court erred in excluding the evi- 
dence on that ground." As the court 
held the evidence in question inad- 
missible on another ground, the case 
can hardly be considered as estab- 
lishing the proposition that instruc- 
tions as to preparation of deeds are 
not privileged. It is difficult to see 
how the same court in Brown v. 
Butler, 71 Conn. 576, 42 Atl. 654, 
came to cite Todd v. Munson, as au- 
thority in holding that such instruc- 
tions are privileged. 

33. Notary Public. — Lukin v. 
Halderson, 24 Ind. App. 645. 57 N. 
E. 254; Aultman v. Daggs, 50 Mo- 
App. 280, 298. 

Fact of Acknowledgment — If a 
client acknowledges a deed before 
his attorney, who is also a notary 
public, the fact of acknowledgement 
is not privileged. Mutual L. Ins. Co. 
V. Corey, 7 N. Y. Supp. 939, 27 N. 
Y. St. 608. Upon appeal, the judg- 
ment in this case was reversed upon 
another ground, this subject not be- 
ing discussed. See 135 N. Y. 326. 

34. Payment by One Party, Im- 
material — Lukin V. Halderson, 24 
Ind. App. 645, 57 N. E. 254; Thomas 
V. Griffin, i Ind. App. 457. 27 N. 
E. 754- 

35. Getzlaff v. Seliger. 43 Wis. 
297. This was a case for foreclosure 
of a mortgage executed by man and 
wife. Answer alleged that mortgage 
was procured, as to the wife, by 
duress. It was also contended that 
plaintiff, assignee of the mortgage, 
was not a bona fide purchaser for 

Vol. X 



250 



PRIVILEGED COMMUNICATIONS. 



k. Immediate Advice Not Essential. — It is not essential that 
advice be requested, or be necessary, immediately upon the making 
of the communication. It is sufficient if the matter inquired about 
was imparted to the attorney for the purpose of informing him of 
the facts concerning which his services were required.^*^ 

1. Capacity Inferred From Other Service. — The capacity in 
which an attorney acted may be inferred from acts done by him in 



value. An attorney who had con- 
ducted a prosecution against the hus- 
band, to avoid which the wife ex- 
ecuted the mortgage, and who was 
afterwards emploj-ed by mortgagee to 
draw the assignment in question, and 
who appeared for mortgagors upon 
the trial, was permitted to testify as 
to statements made to him by the 
mortgagee. This ruling was held er- 
roneous. The supreme court says : 
" We reject the testimony of the at- 
torney who conducted the prosecu- 
tion against the husband ; was after- 
wards employed by the mortgagee to 
draw the assignment of the mortgage 
to the respondent ; and finally ap- 
peared for the appellants on the trial 
below. Such shifting of retainer, on 
the same subject matter, is essentially 
suspicious. And when this person 
appeared as a witness for the appel- 
lants to testify to the mortgagee's 
disclosures to him while acting as 
the mortgagee's attorney, the rule of 
law called upon the court below, in 
judicial propriety, peremptorily to 
close his mouth." He was admitted 
to betray professional confidence, 
upon his statement that he was act- 
ing as a notary and not as attorney. 
That is a transparent subterfuge un- 
worthy of consideration. One fitted 
to hold either office should better 
comprehend the difference in the 
duties of a notary public and the 
duties of an attorney at law. No at- 
torney should be tolerated in violat- 
ing the confidence of his client, by 
the pretense that he received it as 
a notary." 

36. Liggett V. Glenn, 51 Fed. 381, 
398. 2 C. C. A. 286, 4 U. S. App. 
438. 

In National Bank of the Republic 
V. Delano. 177 Mass. 362, 58 N. E. 
1079, 83 Am. St. Rep. 281, it was at- 
tempted to be shown that certain 
notes executed by an individual had 
been renewed as obligations of a 



firm of which he was a member. To 
show that another member of the 
firm consented to these renewals, an 
attorney who had been employed to 
conduct insolvenc}' proceedings for 
the firm was asked as to statements 
made to him by such other member 
in the course of preparing the in- 
solvency proceedings. The court 
says : " The insolvency of an ordin- 
ary partnership imports the insolv- 
ency of every partner, and the pro- 
ceedings in insolvency, in such a case 
may involve the marshaling of the 
assets and claims as between the 
creditors of the firm and the individ- 
ual creditors of each partner. Wheth- 
er the notes in dispute were provable 
against the firm, or only against the 
individual estate of George, was a 
matter with which Emmons, in the 
course of his professional duty, was 
likely to have occasion to deal, both 
as counsel for the firm and as 
counsel for Cadmus. He needed to 
be informed about it, and the com- 
munication made by Cadmus was in 
the strict line of the information 
needed. Indeed, it is difficult to see 
how the attorney could have been in 
a situation to do his duty properly 
without some information on this 
point. It i.s a plain case of a com- 
munication from a client to an at- 
torney while .<Juch attorney, and em- 
ploj-ed to continue to act as such 
in a matter running into the future. 
The communication was of a fact 
about which he, as such attorney, and 
in no other capacity, needed informa- 
tion. It was made to him in the 
course of his employment It mat- 
ters not that at that time it was not 
made for the express purpose of tak- 
ing advice. It is enough if it was a 
statement of a fact made in the 
course of the employment, and was 
material thereto, or believed to be 
such, and was made by client to his 
attornev in recognition and because 



Vol. X 



PRIVILEGED CO MM UNICA TIONS. 



251 



regard to matters connected with the subject of the communication 
in questiori.^'^ 

I. Communication Must Relate to Employment. — It is es- 
sential to the exercise of the privilege, that the communication in 
question relate to the matter concerning which the attorney's serv- 
ices are required.^* 



of the professional relation between 
them. The case is clearly distinguish- 
able from. Hatton v. Robinson, 14 
Pick. 416, and similar cases upon 
which the petitioner relies." 

37. Blunt V. Strong, 60 Ala. 572. 
In this case an attorney who was em- 
ployed to devise and consummate a 
plan by which his client might se- 
cure to his wife payment in land, of 
a debt, prepared an agreement in 
furtherance of the scheme devised. 
Afterwards, the same attorney filed 
a bill, on behalf of the wife, to 
have this executory agreement rati- 
fied. In an action brought by a sub- 
sequent purchaser from the husband 
it was held that the attorney could 
not, against objection by husband and 
wife, testify that a mistake had been 
made in the paper prepared by him. 
The court says that the fact that he, 
as attornej' for the wife, brought suit 
upon the agreement, showed that he 
was more than a mere scrivener; 
that the fact of his having acted in 
his professional capacity was an in- 
ference from his act in bringing suit. 

38. England. — Paddon v. Winch, 
39 L. J. Ch. 627, L. R. 9 Eq. 666, 22 
Iv. T. 403 ; Cobden v. Kendrick, 4 
T. R. 431; Caldbeck v. Boon, 7 Ir. 
Com. Law ^,2. 

California. — Satterlee v. Bliss, 36 
Cal. 489, 509; Carroll v. Sprague, 59 
Cal. 655. 

Iowa. — State v. Mewherter, 46 
Iowa 89; State v. SwafTord, 98 Iowa 
362, 67 N. W. 284. 

Kentucky. — Denunzio's Receiver 
V. Scholtz, 117 Ky. 182, yy S. W. 715. 

Massachusetts. — -Foster v. Hall, 
12 Pick. 89. 22 Am. Dec. 400; Hatton 
t'. Robinson, 14 Pick. 416, 25 Am. 
Dec. 415. 

Montana. — Smith x\ Caldwell, 22 
Mont. 331, 56 Pac. 590. 

Nebraska. — Clay v. Tyson, 19 
Neb. 530, 26 N. W. 240. 

New Hampshire. — Brown v. Pay- 
son, 6 N. H. 443. 



New York. — Woodrufif v. Hurson. 
32 Barb. 557; Wadd v. Hazleton, 17 
N. Y. Supp. 410; Mowell v.. Van 
Buren, 28 N. Y. Supp. 1035 ; Stanfield 
V. Knickerbocker Trust Co., i App. 
Div. 592, 2)7 N. Y. Supp. 600; People 
V. Hess, 8 App. Div. 143, 40 N. Y. 
Supp. 486; Brennan v. Glennon, 44 
App. Div. 107, 60 N. Y. Supp. 643. 

Pennsylvania. — Heister v. Davis, 
3 Yeates 4. 

Texas. — Stal lings v, Hullum. 79 
Tex. 421, 15 S. W. 677. 

Utah. — State v. Snowden, 23 
Utah 318, 65 Pac. 479. 

" But the relation of attorney and 
client must exist as to the subject 
matter of the communication, else 
the communication will not be priv- 
ileged." Aultman v. Daggs, 50 Mo. 
App. 280, 298. 

" The communication must also be 
made for the purpose of obtaining 
professional advice or aid in the mat- 
ter to which the communication re- 
lates." Flack's Admr. v. Neill, 26 
Tex. 273; Earle v. Grout, 46 Vt. 113. 

In Rosewater v. Schwab Cloth. Co., 
58 Ark. 446, 25 S. W. 72,, it was held 
that, on the issue whether or not a 
certain sale of goods was bo)ia tide 
the evidence of an attorney that he 
informed the purchaser, a few da3-s 
before the sale, that he, the attorney, 
held claims against the vendor, was 
not objectionable as a communica- 
tion from attorney to client, although 
the purchaser had sought advice 
from such attornej^ and thereby 
caused him to believe that he con- 
templated purchasing the goods in 
question. 

Attorney Acting in Another Mat- 
ter When attorney is questioned 

as to statements to or by a certain 
person, it is not sufficient to entitle 
such statement to privilege, that wit- 
ness was acting as attorney for such 
person in a matter other than that 
to which the question was directed. 
Marsh v. Howe, 36 Barb. (N. Y.) 649. 

Vol. X 



252 



PRIVILEGED COMMUNICATIONS. 



a. Collateral Matters. — As a consequence of the rule just stated, 
it follows that if in the course of professional consultation, client 
communicates to his attorney matters foreign to the subject of the 
attorney's employment, such matters are not privileged.^'' 



Statements to Attorney for Oppo- 
nent, Also for Person Communicat- 
ing Statements made by a person 

to an attorney are not privileged, if 
made concerning a matter in which 
the attorney is acting for the oppon- 
ent of the person addressing him, al- 
though the attorney may at the same 
time be the attorney for such person 
in another matter. State v. Snowden, 
23 Utah 318, 65 Pac. 479. In this 
case R. was acting as attorney for 
S. who was under prosecution on a, 
criminal proceedingr At the same 
time R. acted as attorney for the 
wife of S. in a divorce suit against 
S. Held, that statements made by S. 
to R. in regard to the divorce suit 
were not privileged. 

Statements as to Future Employ- 
ment — If while an attorney is 
rendering professional service to his 
client, client proposes to attorney to 
accept future employment in regard 
to the matter in which the attorney 
is acting, and the attorney declines 
to do so, statements relating to such 
proposed employment are not privi- 
leged. Theisen v. Dayton, 82 Iowa 
74, 47 N. W. 8gi. 

Hypothetical Case, see note 77, 
under III, 10, A, ante. 

Opinion on Abstract Question of 
Law — The rule of privilege does 
not apply when attorney's opinion is 
asked upon an abstract question of 
law. it not appearing that the person 
addressing him had done any act in 
regard to which he required profes- 
sional advice. McMannus v. State, 
2 Head (Tenn.) 213. 

39. hi re Aspinwall, 7 Ben. 433, 
2 Fed. Cas. No. 591 ; Laflin v. Her- 
rington, i Black (U. S.) 326, 339. 
Matter of Bellis v. Milligan, 38 Hun 
(N. Y.) 79; Johnson v. Daverne, 18 
Johns. (N. Y.) 134, 10 Am. Dec. 198; 
Heister v. Davis, 3 Yeates (Pa.) 4. 

" It is settled that if a client, pend- 
ing the relation, communicates to his 
attorney a fact foreign to the object 
for which the attorney was retained, 
the communication is not to be re- 



garded as confidential. The scope 
of the confidence is as the scope of 
the purpose. Each is considered to ' 
be the exact measure of the other." 
Hager v. Shindler, 29 Cal. 47. 

" All that a client says to his at- 
torney is not to be rejected as priv- 
ileged communication. The privilege 
does not extend to extraneous or im- 
pertinent communications." Snow v. 
Gould, 74 Me. 540, 43 Am. Rep. 604. 

If when attorney is engaged in pre- 
paring articles of incorporation and 
a will for his client, the latter makes 
statements concerning certain person- 
al property not connected with the 
attorney's employment, such state- 
ments are not privileged. Denunzio's 
Receiver v. Scholtz, 117 Ky. 182, yy 
S. W. 715. 

In Caldbeck v. Boon, 7 Ir. C. L. 
32, client, after directing the issu- 
ance of execution against his judg- 
ment debtor, asked his solicitor's 
clerk if a certain person might ac- 
company the arresting bailiff in order 
to point out the debtor. The person 
referred to accompanied the bailiff, 
and pointed out the wrong man, who 
brought action for damages against 
the sheriff. Held, that in such action 
the solicitor's clerk could testify as 
to his client's statements, as they did 
not relate to the subject of profes- 
sional employment. 

In State v. Mewherter, 46 Iowa 88, 
trial court permitted an attorney to 
testify as to threats made by his 
client against another person in the 
course of professional consultation. 
In affirming judgment the supreme 
court says : " But it very clearly ap- 
pears that the threats in no manner 
pertained to the business of pro- 
fessional consultation ; they had noth- 
ing to do with the litigation or con- 
templated litigation about which the 
advice and assistance of the attor- 
neys were solicited. It cannot be 
claimed, even, that the intention ex- 
pressed by the threats was a matter 
submitted to the attorneys profes- 
sionally. Their advice and aid were 



Vol. X 



PRIVILEGED COMMUNICATIONS. 



253 



(1.) Statements as to Fee. — Thus statements as to the attorney's 
fee are not privileged.*" 

(2.) Fee Contract Contained in Statement of Confidential Matter. — But 
if an agreement concerning attorney's fee is stated in a writing 
which contains matter communicated to attorney to enable him to 
perform his duty, the entire writing is privileged.*^ 

Privileged, if Involving Disclosure. — Also, if a statement as to the 
manner of paying fee would involve a disclosure of a matter ma- 
terial to the case upon which the attorney was consulted, such 
statement will be held privileged.'^ 

(3.) Matter Connected With Employment — But it is sufficient if the 
communication relates to a matter so connected with the employ- 
ment as attorney or counsel as to create a presumption that that 
employment was the ground of the address by the client.*^ 



not sought in regard to it. The de- 
fendant's enmity, spirit of revenge, or 
other motive, whatever it may have 
been, which prompted the threats had 
no connection with the matter in- 
volving the rights of defendant sub- 
mitted to the attorneys. Neither the 
threats nor the motives of defendant 
were the subject of professional com- 
munication. They cannot therefore 
be regarded as privileged. I Green- 
leaf's Ev., § 140; Pierson v. Steortz, 
Morris 136; Code, § 3643." 

40. Strickland v. Capital City 
Mills (S. C), 54 S. E. 220; Smith- 
wick V. Evans, 24 Ga. 461 ; Moats v. 
Rymer, 18 W. Va. 642, 41 Am. Rep. 
703. 

41. Liggett V. Glenn, 51 Fed. 
381, 398, 2 C. C. A. 286, 4 U. S. App. 
438. 

42. State v. Dawson, 90 Mo. 149, 
I S. W. 827. See statement in note 
77, under III, 10, A, post. 

To effect that attorney will not be 
compelled to testify to manner of 
payment of fee, when such testi- 
mony would tend to disclose a mat- 
ter material to his client's case, see 
Holden v. State, 44 Tex. Crim. 382, 
71 S. W. 600. In this case defend- 
ant was indicted for theft. Her at- 
torney was required to testify that, 
as a fee, she paid him ten dollars in 
two five dollar bills. The appellate 
court said this testimony was used 
to show that the amount of money 
found in defendant's possession cor- 
responded with the amount stolen, 
that it was testimony of an incul- 
patory character, and should not 
have been admitted. 



43. Myers v. Dorman, 34 Hun 
(N. Y.) lis; Bartlett z". Bunn, 10 
N. Y. Supp. 210, 31 N. Y. St. 319; 
Turquand v. Knight, 2 M. & W, 
(Eng.) 98, 2 Gale 192, 6 L. J. Ex. 4. 

In Bacon v. Frisbie, 80 N. Y. 394, 
36 Am. Rep. 627, it is held that 
statements are privileged although 
made in the form of a hypothetical 
case presented to attorney, if the 
evidence shows that the relation of 
attorney and client had previously 
existed between the parties, and that 
the attorney himself connected the 
supposititious case with the actual 
transaction which afterwards formed 
the basis of the action in which the 
attorney's testimony was offered. The 
court held that the communication 
related to a matter so connected with 
the attorney's employment as to af- 
ford a presumption that the relation 
was client's reason for making his 
statement. 

In Mcintosh v. Moore, 22 Tex. 
Civ. App. 22, 53 S. W. 611, a woman 
had retained an attorney to defend 
certain actions threatened to be 
brought against her by her husband 
to obtain divorce and also to obtain 
cancellation of a deed by which he 
had conveyed certain land to her. 
The husband had also devised to 
her the land covered by the deed. 
In a proceeding to probate the hus- 
band's will this attorney was per- 
mitted to testify as to a conversa- 
tion between himself and client as to 
the effect of the destruction of the 
husband's will. Held, that the tes- 
timony was improperly admitted. 
The court says : " But was the in- 

Vol. X 



254 



PRIVILEGED COMMUNICA TIONS. 



b. Courts Liberal in Applying Rule. — Courts will be liberal in 
applying the rule which excludes collateral matters from privilege, 
and will hold any matter communicated between attorney and client 
to have been communicated in confidence, if the evidence affords 
reasonable ground for believing that it was communicated in reli- 
ance upon the existence of the relation.^^ 

J. Necessity For Communication. — Another essential to claim 
of privilege is, the matter communicated must be necessary or be- 
lieved by client to be necessary to be known by the attorney to en- 
able him to perform his duty.*^ 

8. Matters That Are Not Essential. — A. Agreement of Em- 
pi^OYMENT. — It is not essential to claim of privilege for a given 



quiry of Mrs. Mcintosh and the ad- 
vice of the attorney disconnected 
with and have no bearing on the 
business about which he was em- 
ployed by her? As is seen, he was 
retained to defend suits contem- 
plated by appellant's husband for di- 
vorce and cancellation of a deed 
which conveyed her certain prop- 
erty which was by the will be- 
queathed to her. The final result 
of a suit can not always be fore- 
seen, and it was natural for Mrs. 
Mcintosh to desire to know, in the 
event of a divorce and cancellation 
of her deed by a decree of the court, 
what would be the effect of the de- 
struction of the will. Well might 
she have apprehended, as she says, 
that if the divorce should be 
granted, the deed canceled, and the 
will destroyed, she would get noth- 
ing by her marriage except her hus- 
band's name." Mcintosh v. Moore, 
22 Tex. Civ. App. 22. 

In Brazier v. Fortune, lo Ala. 
516, it is stated that if, in course of 
conversation with his attorney con- 
cerning matters upon which profes- 
sional advice is usually required, 
client makes a remark having some, 
though not necessary connection 
with the subject of consultation, this 
remark is privileged. 

In Lockhard v. Brodie, i Tenn. 
Ch. 384, client had employed an at- 
torney to aid in having property 
sold at a certain decretal sale con- 
veyed to client's wife. It was held 
that communications in regard to 
this sale were privileged, although 
made in the course of a consulta- 
tion regarding an action pending 
against client. The case seems to 

Vol. X 



proceed upon the theory that as the 
result of the action against the hus- 
band might affect the wife's title to 
the land in question, there was a 
connection between the action and 
the employment in regard to the 
decretal sale. 

44. Moore v. Bray, 10 Pa. St. 
519. In this case the court says: 
" It is true, the rule does not em- 
brace the disclosure of collateral 
facts, made during accidental con- 
versations, held irrespective of the 
professional character of the recip- 
ient. But the circle of protection 
is not so narrow as to exclude 
communications a professional per- 
son may deem unimportant to the 
controversy, or the briefest and 
lightest talk the client may choose 
to indulge with his legal adviser, 
provided he regards him as such, 
at the moment. To found a dis- 
tinction on such a ground, would 
be to measure the safety of the con- 
fiding party by the extent of his in- 
telligence and knowledge, and to 
expose to betrayal those very anx- 
ieties which prompt those in diffi- 
culty to seek the ear of him in 
whom they trust, in season and out 
of season. The general rule is, 
that all professional communications 
are sacred. If the particular case 
form an exception, it must be shown 
by him who would withdraw the 
seal of secrecy, and, I think, should 
be clearly shown." See also cases 
cited in next preceding note. To 
same effect, see Cleave v. Jones, 7 
Exch. W. H. & G. (Eng.) 421, 21 
L. J. N. S. Exch. 105. 

45. Gillard v. Bates, 6 M. & W. 
(Eng.) 547, 9 L. J. N. S. Exch. 171, 



PRIVILEGED CO MM UNICA TIONS. 



255 



communication that the person making it and the attorney to whom 
it is made enter into an agreement for the rendition of services, or 
that the attorney be regularly retained, or a fee paid or promised. 
Consequently, the essential conditions being present, a given com- 
munication is privileged, although no agreement be made, nor the 
attorney retained, or fee paid or promised.'*'^ 

2i. Employment Expected by Attorney. — Previous Relation. 
Communication is privileged, although at the time it was made the 
attorney had not been employed, if it appear that he expected to 
be employed if a suit should grow out of the matter referred to, and 
that he was the professional adviser of the person communicating, 
and was usually employed in his cases.*'^ 

b. Former Employment Not Necessary. — It is not necessary 
that the client should have employed the attorney professionally 
in transactions prior to that in question.*^ 



8 D. P. C. 774- See also State v. 
Kidd, 89 Iowa, 54, 56 N. W. 263. 

46. Alabama. — State ex rel. At- 
torney General v. Tally, 102 Ala. 25, 
35, 15 So. 722. 

Georgia. — Riley v. Johnston, 13 
Ga. 260; Young v. State. '65 Ga. 
525; Peek V. Boone, 90 Ga. 767, 17 
S. E. 66. 

Illinois. — Thorp v. Goewev, 85 
111. 611. 

Louisiana. — Bailly v. Robles, 4 
Mart. N. S. 361. 

Maine. — Sargent v. Hampden, 38 
Me. 581; Wade v. Ridley, 87 Me. 
368, 32 Atl. 975. 

Mississippi. — Crisler v. Garland, 
II Smed. & M. 136, 49 Am. Dec. 49; 
Perkins Admr. z: Guy. 55 Miss. 153, 
178, 30 Am. Rep. 510. 

Missouri. — Cross v. Riggins, 50 
Mo. 335. 

Tennessee. — Lockhard i'. Brodie, 
1 Tenn. Ch. 384. 

Wisconsin. — Orton v. McCord, 33 
Wis. 205 ; Bruley v. Garvin, 105 
Wis. 625, 81 N. W. 1038, 48 L. R. A. 
839. 

In West V. Freeman, 69 Mo. App. 
682, it is said that Cross v. Riggins, 
50 Mo. 335, had been overruled by 
State V. Hedgepeth. 125 Mo. 14, 
28 S. W. 160, and an attorney's 
testimony was admitted because it 
appeared that no contract of employ- 
ment was made between him and the 
person consulting him. See dis- 
senting opinion in Hickman v. 
Green, 123 Mo. 165, 22 S. W. 455, 



27 S. W. 440, 29 L. R. A. 39 to same 
effect. As to State v. Hedgepeth. 
125 Mo. 14, 28 S. W. 160, referred 
to in West v. Freeman, as overrul- 
ing Cross v. Riggins, the ruling there 
seems to have proceeded upon the 
theory that the communication there 
involved was not made for the pur- 
pose of enabling the attorney to ren- 
der professional service. See note 
30, under III, 7, H, j, ante. 

47. Riley v. Johnston, 13 Ga. 260. 
In this case the statute relied upon 
as creating privilege provided that 
it should not be lawful for an attor- 
ney to testify for or against his 
client in any case as to any matter 
or thing, the knowledge of which 
he may have acquired from his 
client, or during the existence, and 
by reason of the relationship of 
client and attorney. The court says : 

" Now, although Mr. Stubbs was 
not at the time under a contract 
with Riley, as his attorney in the 
case which subsequently arose be- 
tween Riley and Johnston, yet to all 
intents and purposes contemplated 
by the Act of 1850, the relation of 
client and attorney existed at the 
time when he acquired the knowl- 
edge of the matters about which he 
was called to testify. If so, in the 
case which afterwards occurred, it 
was not competent for him to be 
sworn as a witness as to those mat- 
ters, for or against Riley." 

48. Denver Tramway Co. v. 
Owens, 20 Colo. 107, 128, 36 Pac. 848. 

Vol. X 



256 



PRIVILEGED COMMUNICA TIONS. 



c. Communication in Anticipation of Employment. — Statements 
made by a person to an attorney, in anticipation or expectation of 
employment, are privileged,*^ although the attorney is not afterward 
employed.^*' But in such case it must appear that the person ad- 
dressing the attorney intended to employ ^lim or take his advice 
as attorney.^^ 

d. Contemplated Action Not Brought. — Communication made in 
anticipation or expectation of employment is privileged, although 
the attorney does not bring an action for the purpose of bringing 
which he was consulted. ^- 

e. Employment Refused. — Such communications are privileged, 
although the attorney refuses the employment. ^^ 

Statements After Employment Refused. — Communications to an at- 
torney made after he has refused a tendered employment are not 
privileged.^* 

f. Relation Broken. — Communications are privileged, although 
person making them afterwards employs other counsel to render 



49. Young V. State. 65 Ga. 525; 
Peeke v. Boone, 90 Ga. 767, 17 S. 
E. 66; State ex rel. Atty.-Gen. v. 
Tally, 102 Ala. 25, 15 So. 722; 
Haywood t\ State, 114 Ga. iii, 39 
S. E. 948. 

Even when attorney had formerly 
been employed by adversary, the 
person making the communication 
believing that relation between his 
adversar}' and the attorney no 
longer existed. Nelson v. Becker, 
2,2 Neb. 99. 48 N. W. 962. 

Employment Expected by Attor- 
ney Riley v. Johnston, 13 Ga. 

260. See note 47, ante. 

But simple request to attorney to 
act as such for person addressing 
him is not privileged. Eekhout v. 
Cole, 135 N. C. 583, 47 S. E. 655. 

50. Peek v. Boone, 90 Ga. 767, 17 
S. E. 66; Thorp v. Goewey. 85 111. 
611; Bailly v. Robles, 4 Mart. N. S. 
(La.) 361; Sargent v. Hampden, 38 
Me. 581 ; Cross v. Riggins, 50 Mo. 

335- 

Conversation had with an attor- 
ney with a view to his retainer for 
the person making the communica- 
tion is privileged, although the rela- 
tion of attorney and client does not 
become established between them. 
State ex rel. Atty.-Gen. v: Talh'-, 
102 Ala. 25, IS So. 722. 

51. Sharon v. Sharon, 79 Cal. 
633, 680, 22 Pac. 26, 131. 

52. Desired Action Not Taken. 

Vol. X 



Reed v. Smith, 2 Ind. 160; Denver 
Tramway Co. v. Owens, 20 Colo. 
107, 128. 36 Pac. 848. 

53. Crisler v. Garland, 11 Smed. 
& M. (Miss.) 136, 49 Am. Dec. 59; 
Wade V. Ridley. 87 Me. 368, 32 Atl. 
975 ; Perkins' Admr. v. Guy, 55 Miss. 
153, 178; Strong V. Dodds, 47 Vt. 
348; Cromack v. Heathcote. 2 Brod. 
& B. 4, 6 E. C. L. I. See People v. 
Pratt, 133 Mich. 125, 94 N. W. 752. 
67 L. R. A. 923, where a judge to 
whom a person applied for advice 
stated that he could not give it, and 
then proceeded to hear a statement 
of the matter in question. It was 
held that the judge's testimony was 
improperly admitted. 

54. Farley v. Peebles, 50 Neb. 
723, 70 N. W. 231 ; Avery v. Mattice, 
9 N. Y. Supp. 166; People v. Heart. 
I Cal. App. 166; Theisen v. Dayton 
(Iowa), 47 N. W. 891. 

If at beginning of conference the 
attorney informs the person making 
the communication that he will have 
nothing to do with the matter, and 
no contract is made, or retainer 
paid, the communication is not 
privileged. Ewers v. White's Es- 
tate, 114 Mich. 266, 72 N. W. 184; 
Piano Mfg. Co. v. Frawley, 68 Wis. 
577, 2)^ N. W. 768. See also Haulen- 
beek V. McGibbon, 14 N. Y. Supp. 
393, although the report does not 
show at what point in the transac- 
tion the attorney stated his refusal 
to act for either party. See also 



PRIVILBGBD COMMUNICATIONS. 257 

the desired service,^^ or declines to further counsel with attorney 
after making confidential communications.'^'' 

g. Hostile Employment Accepted. — Communications are priv- 
ileged, although the attorney who was consulted accepts employ- 
ment from the adversary of the person communicating.^^ 

Hostile Employment Already Accepted. — But if attorney states to 
one who has been his client that in a certain matter he has already 
accepted employment from one who afterwards becomes an adver- 
sary of the person offering employment, and such person neverthe- 
less employs the attorney, their communications in regard to the 
matter in which the attorney acted for the adversary are not priv- 
ileged.^* 

h. Attorney's Belief That Employment Was Intended, Not Suf- 
ficient. — It has been held that the fact that attorney thought a cer- 
tain person had made a statement as a preliminary to instructing 
him to render professional service is not sufficient to render such 
statement privileged, when it appears that such person did not give 
any instructions, and there is nothing to show that he ever intended 
to give any, and no professional employment followed from the con- 
versation, and such person afterward employed other counsel to 
represent him in the transaction in question. '^^ 

B. Retainer Non-Essential. — It is not essential that the cli- 
ent pay a retainer. '''* 

C. Fee Non-EssEntial. — It is not essential that client pay, or 
offer to pay a fee for the service proposed or rendered."^ 

Setzar v. Wilson, 4 Ired. L. (26 N. Colorado. — Denver Tramway Co. 

C.) 501, 513. V. Owens, 20 Colo. 107, 128. 36 Pac. 

55. Different Counsel Employed. 848- 

Cross V. Riggins, 50 'Slo. 335. Illinois. — Goltra v. Wolcott, 14 

56. Further Consultation De- ■'^^'v ^f: ^ , ^ . , ^ , 
clined._Jahnke v. State, 68 Neb. ,.0 '^"''- ~ f^ "• ^™ n • ^ 

154, 94 N. W. 158, 104 N. W. 154. ;^°d' nr''' ''■ "■ ^'^^'' ^"^ 

57. Attorney Employed by Ad- Louisiana. -Morris v. Cain's 
versary. — Cross r. Riggins, 50 Mo. E^rs., 39 La. Ann. 712, 726, i So. 
335- 797, 2 So. 418. 

58. Hostile Employment. — Clay Massachnsctfs. — Foster v. Hall, 
V. Tyson, 19 Neb. 530, 26 N. W. 240. 12 Pick. 89, 22 Am. Dec. 400. 

59. Rudd t'. Frank, 17 Ont. Q. B. Michigan. — Mack v. Sharp, 138 
(Can.) 758. Mich. 448, loi N. W. 631. 

60. Kmg V. Barrett, li Ohio St. Missouri. — Cross v. Riggins, 50 
261 ; Gage v. Gage, 13 App. Div. Mo. 335. 

565, 43 N. Y. Supp. 810. See Ewers Montana. — Davis v. IMorgan, 19 

V White's Estate, 114 Mich. 266, 72 Mont. 141, 47 Pac. 793 (see state- 

« .184, as cited in note 56, ante. ment of case in note 37, ante. 

"It is not necessary that any re- Keiv York. — Bacon v. Frisbie. 80 

tamer be paid, promised or charged." N. Y. 394. 36 Am. Rep. 627; March 

Denver Tramway Co. v. Owens, 20 v. Ludlum, 3 Sandf. Ch. 35, 45; 

Colo. 107, 128, 36 Pac. 848. Pfeffer v. Kling. 58 App. Div. 179. 

61. United States. — Alexander v. 68 N. Y. Supp. 641 ; s. c. aiHrmed 
United States, 138 U. S. 353- 171 N. Y. 668, 64 N. E. 1125. 

Arkansas. — Ar\Ar<tvvs' Admx. v. Tennessee. — 'Lockhard v. Brodie, 

Simms' Admr., 33 Ark. 771. i Tenn. Ch. 384. 

17 Vol. X 



258 



PRIVILEGED COMMUNICATIONS. 



D. Re;perEnce; to Litigation Not Essentiai.. — It is not essen- 
tial that the communication be made with reference to pending or 
contemplated litigation, it being sufficient that it be made concern- 
ing any act or transaction which is a proper subject for professional 
advice. ^- 

9. Privilege Not Affected By. — A. Client's Knowledge; op 
Rule of Privilege. — It is immaterial whether or not the client 
making or receiving a confidential communication understood the 
nature or extent of his privilege.*'^ 

B. Spontaneous or Responsive, or whether client's statement 
was made spontaneously, or in response to question by attorney."* 

C. By Client or Attorney, Immaterial. — It is immaterial 
whether the statement in question was made by client or attorney.®^ 

D. Client's Relation to Case Immaterial. — It is immaterial 
whether or not the client is a party to the case in which the attor- 
ney's testimony is offered.®® 



Texas. — Slaven v. Wheeler, 58 
Tex. 23. 

Utah. — State v. Snowden, 23 
Utah 318, 65 Pac. 479. 

Wisconsin. — Brulev v. Garvin, 
105 Wis. 625, 81 N. 'W. 1038, 48 L. 
R. A. 839. 

"The payment of a fee is not the 
test of that relation." Sheehan v. 
Allen. 67 Kan. 712. 74 Pac. 245. See 
also State v. Herbert, 63 Kan. 516, 
66 Pac. 235. 

Also privileged, if. at time of mak- 
ing communication, client believed 
that another person was to pay the 
attorney's fee. Hunter v. Van Bom- 
horst. I Md. 504. 

In De Wolf v. Strader, 26 111. 
225, 79 Am. Dec. 371, the court said, 
in holding that an attorney who 
simply acted as a scrivener could 
be compelled to testify : " There is 
no retainer shown, or offer to retain, 
or fee paid. This, and this only, 
can consummate the relation." 

62. See post, note 68. under III, 
30, J, " Not Limited to Litigation." 

63. McLellan v. Longfellow, 32 
Me. 494, 54 Am. Dec. 599. 

64. Parker v. Carter, 4 Munf. 
(Va.) 273, 6 Am. Dec. 513. 

65. Turton v. Barber, L. R. 17 
Eq. 329, 43 L. J. Ch. 468; Jenkinson 
V. State, 5 Blackf. (Ind.) 465; Big- 
ler V. Reyher, 43 Ind. 112; Dutten- 
hofer V. State, 34 Ohio St. 91, 32 
Am. Rep. 362. 

66. Wilson V. Rastall, 4 Term 
Rep. (Eng.) 754; Chant v. Brown, 

Vol. Z 



7 Hare 79. 68 Eng. Reprint 32; Dut- 
tenhofer v. State, 34 Ohio St. 91, 
2,2 Am. Rep. 362; Bank of Utica v. 
Mersereau, 3 Barb. Ch. (N. Y.) 528, 
49 Am. Dec. 189 ; Hart v. Thompson, 
15 La. O. S. 88. But see Payne v. 
Miller, 103 111. 442. In this case the 
testimony of an attorney was ob- 
jected to. The court says: "As to 
Irwin, he was acting, at the time to 
which his testimony relates, as the 
attorney of Jarvis, who has no per- 
ceivable interest in this litigation or 
the facts testified to by the witness. 
If this were a controversy between 
Jarvis and some one else, growing 
out of what occurred at that time, 
and Jarvis was here objecting to his 
testimony on the ground the facts 
testified to were acquired by him by 
reason of his employment as his at- 
torney, there would be at least some 
apparent reason for the objection. 
But such is not the case. There is 
clearly nothing in the objection." 

Incompetent Against Co-Party. 
Confidential communication cannot 
be given in evidence by attorney for 
one party to an action as against 
one who is a party on the same side 
as his client, although the relation 
of attorney and client never existed 
between the witness and the person 
against whom his testimony is of- 
fered. Bacon v. Frisbie, 80 N. Y. 
394, 36 Am. Rep. 627. 

It is immaterial that client has, at 
the time testimony is offered, parted 
with his interest in the transaction 



PRIVILEGED COMMUNICATIONS. 



259 



Contra. — But the contrary has been held by several courts.®^ 

E. Attorney's Willingness Immaterial. — It is immaterial 
that the attorney is willing to give the privileged matter in ev- 
idence.^^ 

F. Attorney Not Admitted to Practice in Locus Fori. — An 
attorney's knowledge is privileged, although it was communicated 
to him in a country where he was not admitted to practice, and 
privilege was claimed in a court of that country.*^^ 

G. That Client May Be Witness, Immaterial. — The priv- 



involved in the action. Benjamin v. 
Coventry, 19 Wend. (N. Y.) 353. 

67. Contra. — Hamilton v. Neel, 
7 Watts (Pa.) 517. In this case an 
attorney v/as questioned as to con- 
tents of papers of his chent. Ob- 
jection was sustained. In reversing 
judgment the supreme court of 
Pennsylvania says : " This evidence 
seems to have been objected to by 
the counsel for the plaintiff below 
and overruled by the court, because 
all the knowledge possessed by the 
witness of the matter was obtained 
when and by his having been coun- 
sel for Jones. But surely it was an 
entire misapprehension to suppose 
that the rule which prevents counsel 
or attorneys at law from disclosing 
the communications of their clients 
by giving evidence of them as wit- 
nesses was applicable in this in- 
stance. Jones was no party to this 
action, and his rights could not be 
affected, either directly or indirectly, 
in the least by the evidence ; nor yet 
by the result of this action, whatever 
it might or may be. Had Jones's 
situation admitted of his being 
brought to court on trial as a wit- 
ness himself, it cannot be questioned 
but he might have been compelled 
to have produced the paper and to 
have testified to all he knew respect- 
ing it. It is for the protection and 
security of clients that their at- 
torneys at law or counsel are re- 
strained from giving evidence of 
what they have had communicated 
and entrusted to them in that char- 
acter; so that legal advice may be 
had at any time by every man who 
wishes it in regard to his case, 
whether it be bad or good, favorable 
or unfavorable to him, without the 
risk of being rendered liable to loss 
in any way or to punishment by 
means of what he mav have dis- 



closed or entrusted to his counsel. 
But where it is impossible that the 
rights or interests of the client can 
be affected by the witness's giving 
evidence of what came to his 
knowledge by his having been coun- 
sel and acted at the time as attorney 
or counsel at law. the rule has no 
application whatever, because the 
reason of it does not exist." 

It was held in Georgia under 
statute of 1850 that the attorney's 
disqualification extended only to a 
case tending to which his client was 
a party, and in which the attorney 
was engaged. Swift v. Perry, 13 
Ga. 138. 

68. England. — Strode v. Seaton, 
2 Ad. & El. 171, 29 E. C. L. 62. 

United States. — Chirac v. Rein- 
icker, 11 Wheat. 280, 294. 

California. — People v. Atkinson, 
40 Cal. 284. 

Indiana. — Wilson v. Ohio Farm- 
ers' Ins. Co., 164 Ind. 462. 73 N. 
E. 892. 

Louisiana. — Morris v. Cain, Exrs. 
39 La. Ann. 712, 726, i So. 797, 2 
So. 418. 

Massachusetts. — Foster v. Hall, 12 
Pick. 89, 22 Am. Dec. 400. 

New York. — Bacon v. Frisbie, 80 
N. Y. 394, 36 Am. Rep. 627. 

Tennessee. — McMannus v. State, 
2 Head 213. 

Virginia. — Clay v. Williams, 2 
Munf. 105, 5 Am. Dec. 453. 

In Maddox v. Maddox, i Ves. Sr. 
61, 27 Eng. Reprint 893, Lord Hard- 
wicke states that, if an attorney does 
not object to being examined, his dep- 
osition may be read. See editor's 
note to this case, p. 892, Vol. 27, Full 
Eng. Reprint. 

69. Lawrence v. Campbell, 4 
Drew 485, 28 L. J. Ch. 780. 5 Jur. N. 
S. 1071, 62 Eng. Reprint 186. 

VoL X 



260 



PRIVILEGED COMMUNICATIONS. 



ilege exists, although the law permits the client to become a witness 
in his own behalf, or requires him to testify when called as a witness 
by his opponent^" 

H. AIatter Communicated Not Material or Important. 
The privilege is not affected by the fact the matter communicated 
was not material or important to the case in reference to which it 
was stated/^ 

I. Immaterial That Client Guilty of Crime. — If in an ac- 
tion for divorce a public officer intervenes on the ground that a 
party to the action had been guilty of adultery, he cannot ask such 



70. Root V. Wright, 84 N. Y. 72, 
38 Am. Rep. 495; Brand v. Brand, 39 
How. Pr. (N. Y.) 193, 261. 

71. In Moore v. Bray, 10 Pa. St. 
519, the court saN's : "It is true, the 
rule does not embrace the disclosure 
of collateral facts, made during acci- 
dental conversations, held irrespec- 
tive of the professional character of 
the recipient. But the circle of pro- 
tection is not so narrow as to ex- 
clude communications a professional 
person may deem unimportant to the 
controvers}^, or the briefest and 
lightest talk the client may choose to 
indulge with his legal adviser, pro- 
vided he regards him as such, at the 
moment. To found a distinction on 
such a ground, would be to measure 
the safety of the confiding party by 
the extent of his intelligence and 
knowledge, and to expose to betrayal 
those very anxieties which prompt 
those in difficulty to seek the ear of 
him in whom they trust, in season 
and out of season. The general rule 
is, that all professional communica- 
tions are sacred. If the particular 
case form an exception, it must be 
shown by him who would withdraw 
the seal of secrecy, and, I think, 
should be clearly shown." 

In Aiken v. Kilburne, 27 Me. 252, 
the court says : " Exception is taken 
to the exclusion of a part of the 
deposition of John E. Stacy, on the 
ground that the statements made by 
Ball to him, were privileged com- 
munications made by a client to his 
attorney. Mr. Stacy testifies, that 
they were made in a conversation be- 
tween him and Ball respecting a suit, 
in which he had been previously re- 
tained, then pending in Court, in the 
name of Otis against Ball. Some 
portions of that conversation do not 

Vol. X 



appear to have been material, or 
necessary to the defense presented 
in that suit. But whether they must 
be regarded as matters of professional 
confidence, and therefore privileged 
communications, does not depend 
upon their importance or materiality 
in the defense of that suit- If it did, 
the confidence so essential between 
client and attorney, would be greatly 
impaired, if not destroyed. For the 
client cannot be expected to be fully 
informed how far many matters 
communicated may be important or 
material. Nor can he reasonably be 
expected to decide and to be governed 
by such considerations in making his 
disclosures, his object being, to com- 
municate every thing in any way ap- 
pertaining to the transaction, that his 
attorney may be liable to no sur- 
prise. The character in which those 
communications were made and re- 
ceived, and not their relevancy or ma- 
teriality to the defense of that suit, 
must therefore decide, whether they 
should be regarded as privileged or 
not." 

Testimony Prejudicial or Not. 
In Rowland & Co. v. Plummer, 50 
Ala. 182, we find this language : " As 
to the attorney, his privilege is per- 
sonal, and the client may waive it. 
(i Phill. Ev. (Cowen's Ed. 1849) p. 
163; 3 lb. and note pp. 182 et seq). 
It seems, also, that the disclosures 
which are forbidden to be made, are 
such as would be prejudicial to the 
client. He could not complain of 
that which did him no injury." In 
this case suit was brought against J. 
as indorser upon a promissory note. 
J's answer showed that he had 
transferred the note to his wife in 
payment of borrowed money. J's at- 
torney was offered as a witness to 



PRIVILEGED COMMUNICATIONS. 



261 



party whether or not he had made a confession to such officer, 
who had formerly acted as his attorneyJ^ 

J. Attorney Officer of Municipal Corporation. — It is also 
immaterial that an attorney interrogated is also an officer of the 
municipal corporation concerning whose communication he is in- 
terrogated.'^^ 

K. Object of Testimony. — That attorney's testimony is sought 
for the purpose of contradicting his client, who has testified, does 
not alter the rule.'^* 

Or to Lay Foundation for Opinion as to Sanity. — Nor is an attor- 
ney's testimony rendered admissible as against client's objection by 
the fact that his testimony is sought for the purpose of laying 
foundation for an opinion that his client was of unsound mind.'' 

10. What Matters Privileged. — The privilege extends to all mat- 
ters confidentially communicated between attorney and client, for 
purposes and under circumstances already stated in this article.^^ 



prove the circumstances under which 
the note was assigned. His testi- 
mony was objected to as calling for 
a privileged communication. Objec- 
tion was overruled. In holding this 
ruling correct, the supreme court 
uses the language above quoted. 
Similar view indicated in Copeland 
V. Watts, I Stark. (Eng.) 95, 2 E. 
C. L. 311. 

In Clay v. Tyson, 19 Neb. 530. 26 
N. W. 240, it was held not to con- 
stitute reversible error to admit in 
evidence a letter in which client 
stated to his attorney that he denies 
the existence of a certain claim, and 
stated that he had made certain 
agreements. The court says that, if 
there was error in admitting the let- 
ter, it was clearly without prejudice. 

72. Branford v. Branford, 40 L. 
T. N. S. 659, (Eng.), 48 L. J., P. 40, 
4 P. D. 72, 40 L- T. 659. 

73. Mayor of Salford v. Lever, 
62 L. T. N. S. (Eng.) 434. See note 
10, under III, 15, B. b, (3.) (H.) 
(d.), post, for distinction between this 
case and Mavor Swansea v. Quick, 
L. R. 5 C. P. '106, 49 L. J. N. S. C. L. 
157, 41 L. T. N. S. 758. 

74. Attorney's Testimony Not 
Competent to Impeach Client. 
Supplee V. Hall, 75 Conn. 17, 52 Atl. 
407, 96 Am. St. Rep. 188. 

75. Not Competent as Foundation 
for Opinion. _ Sheehan v. Allen, 67 
Kan. 712, 74 Pac. 245. 

76. England. — Kelway v. Kel- 
way, Cary 89, 21 Eng. Reprint 47; 



Kennedy v. Lyell, 23 Ch. D. 387, 48 
L. T. N. S. 455, affirmed 9 App. 
Cas. 81. 

United States. — Liggett v. Glenn, 
51 Fed. 381, 2 C. C. A. 286, 4 U. S. 
App. 438; Chirac v. Reinicker, 11 
Wheat. 280, 294; In re Aspinwall, 7 
Ben. 433, 2 Fed. Cas. No. 591. 

California. — Gallagher v. Wil- 
liamson, 22, Cal. 331, 83 Am. Dec. 
114; Landsberger v. Gorham, 5 Cal. 
450; People V. Atkinson, 40 Cal. 
284; Sharon v. Sharon, 79 Cal. 633, 
22 Pac. 26, 131 ; Verdelli v. Grays 
Harbor C. Co., 115 Cal. 517, 47 Pac. 
364; Murphy v. Waterhouse, 113 
Cal. 467, 45 Pac. 866, 54 Am. St. 
Rep. 365. 

Colorado. — Denver Tramway Co. 
V- Owens, 20 Colo. 107, 36 Pac. 848. 

Connecticut. — Goddard v. Gard- 
ner, 28 Conn. 172. 

Georgia. — Freeman v. Brewster, 
93 Ga. 648, 21 S. E. 165; Philman v. 
Marshall, 103 Ga. 82, 29 S. E. 598; 
Neal V. Patten. 47 Ga. y2>\ Lewis v. 
State, 91 Ga. 168, 16 S. E. 986 ; Dover 
V. Harrell, 58 Ga. 572; Southern R. 
Co. V. White, 108 Ga. 201, 33 S. E. 
952; O'Brien v. Spalding, 102 Ga. 
490, 31 S. E. 100, 66 Am. St. Rep. 202. 

Illinois. — Dietrich v. Mitchell, 43 
111. 40. 92 Am. Dec. 99; Hollenback 
V. Todd, 119 111. 543, 8 N. E. 829. 

Indiana. — Maas v. Block, 7 Ind. 
202; Borum v- Fonts, 15 Ind. 50; Mc- 
Donald V. McDonald, 142 Ind. 55, 41 
N. E. 336, 345- 

Iowa. — State v. Kidd, 89 Iowa 

Vol. X 



262 



PRIVILEGED COMMUNICATIONS. 



A. Means of Acquiring, Immaterial. — An attorney's knowl- 



54, 56 N. W. 263; Winters v. Win- 
ters, 102 Iowa 53, 71 N. W. 184, 63 
Am. St. Rep. 428. 

Kansas. — Sheehan v. Allen, 67 
Kan. 712, 74 Pac. 245; Tays v. Carr, 
37 Kan. 141, 14 Pac. 456; State v. 
White, 19 Kan. 445, 27 Am. Rep. 137. 

Kentucky Carter v. West, 93 

Ky. 211, 19 S. W. 592. 

Louisiana. — Shanghnessy v. Fogg, 
15 La. Ann. 330. 

Maine. — INIcLellan v. Longfellow, 
32 Me. 494, 54 Am. Dec. 599; Snow 
V. Gould, 74 Me. 540, 43 Am. Rep. 604. 

Mar3'land. — Chase's Case, I Bland 
206, 17 Am. Dec. 277. 

Massachusetts. — Foster v. Hall, 
12 Pick. 89, 22 Am. Dec. 400; Hat- 
ton V. Robinson, 14 Pick. 416. 25 Am. 
Dec. 415; Doherty v. O'Callaghan, 
157 Mass. 90, 31 N. E. 726. 34 Am. 
St. Rep. 258, 17 L. R. A. 188. 

Michigan:^— hovimer v. Lorimer, 
124 Mich. 631, 83 N. W. 609.- 

M i n n e s t a. — Struckmeyer v. 
Lamb, 75 Minn. 366, 77 N. W. 987- 

Mississippi. — Crisler v. Garland, 
II Smed. & M. 136, 49 Am. Dec. 49. 

Missouri. — Henry v. Buddecke, 81 
Mo. App. 360. 

Montana — Smith v. Caldwell, 22 
Mont. 331. 56 Pac. 590. 

Nebraska. — Basye v. State, 45 
Neb. 261, 63 N. W. 811. 

Nevada. — Mitchell z: Bromberger, 
2 Nev. 345, 90 Am. Dec. 550. 

New Hampshire. — Sleeper v. Ab- 
bott, 60 N. H. 162; Brown v. Pay- 
son, 6 N. H. 443. 

New Jersey. — Matthews v. Hoag- 
land, 48 N. J. Eq. 455, 464, 21 Atl. 

^°54. 

New York. — Coveney v. Tanna- 
hill, I Hill 33, 37 Am.. Dec. 287; 
Crosby v. Berger. 11 Paige 377, 42 
Am. Dec. 117; Jackson v. Burtis, 14 
Johns. 391 ; McPherson v. Rathbone, 
7 Wend. 216; Bacon v. Frisbie, 80 
N. Y. 394, 36 Am. Rep. 627; Wil- 
liams V. Fitch, 18 N. Y. 546; Bank 
of Utica V. Mersereau, 3 Barb. Ch. 
528, 49 Am. Dec. 189; Jackson v. 
French, 3 Wend. 337, 20 Am. Dec. 699. 

North Carolina — Hughes v. 
Boone, 102 N. C. I37, 9 S. E. 286; 
Michael v. Foil, 100 N. C. 178, 6 S. 
E. 264, 6 Am. St. Rep. 577- 

Vol. X 



Ohio. — Benedict i'. State, 44 Ohio 
St. 679, II N. E. 125. 

Pennsylvania. — Beltzhoover v. 

Blackstock, 3 Watts 20, 27 Am- 
Dec. 330. 

South Dakota. — Austin Tomlin- 
son V. Webster Mfg. Co. v. Heiser, 
6 S. D. 429, 437. 61 N. W. 445. 

Tennessee- — McMannus v. State, 
2 Head 213. 

Texas. — Hernandez v. State, 18 
Tex. App. 134, 152. 

Utah. — State v. Snowden, 23 
Utah 318, 65 Pac. 479. 

Virginia. — Parker v. Carter, 4 
Munf. 273. 6 Am. Dec. 513. 

Washington. — Hartness v. Brown, 
21 Wash. 655, 59 Pac. 491. 

West Virginia. — State v. Douglas, 
20 W. Va. 770, 780. 

Wisconsin. — Selden v. State, 74 
Wis. 271, 12 N. W. 218. 17 Am. St. 
Rep. 144; Dudley v. Beck, 3 Wis. 
274, 284; Koeber v. Somers, 108 Wis. 
497, 84 N. W. 991, 52 L. R. A. 512; 
McMaster v. Scriven, 85 Wis. 162, 55 
N. W. 149. 39 Am. St. Rep. 828; 
Herman v. Schlesinger, 114 Wis. 382, 
90 N. W. 460, 91 Am. St. Rep. 922. 
See also cases under " General Rule," 
N, 2, HI, I, ante, and " Papers," III, 
10, E. post. 

" This protection extends to every 
communication which the client 
makes to his legal adviser, for the 
purpose of professional advice or 
aid, upon the subject of his rights 
and liabilities." Bobo v. Bryson, 21 
Ark. 387, 76 Am. Dec. 406. See also 
People V. Barker, 56 111. 300 and Big- 
ler V. Reyher, 43 Ind. 112. 

" The relation itself is of a confi- 
dential character, and every fact de- 
rived through the medium of it, 
seems to partake of its nature." 
Crawford v. McKissack, i Port. 
(Ala.) 433. 

In Wetherbee v. Ezekiel, 25 Vt- 
47, it was held that an attorney could 
not testify as to whether or not two 
certain actions against his client were 
commenced for the same cause of ac- 
tion. The court says : " In this case, 
the very point of consultation might 
have been, and probably was, whether 
the first suit would abate the sec- 
ond." 



PRIVILEGED COMMUNICATIONS. 



263 



edge acquired from his client in course of professional employment, 
is privileged, irrespective of method of acquisition, whether by oral 
or written communication, or by observation."^ 

B. Client's State^meinTS oi*' Fact. — Attorney cannot give in 
evidence any knowledge acquired through statements of his client, 



77. England. — Nias v. Northern 
& E. R. Co., 3 Myl. & Cr. 355, 40 Eng. 
Reprint 963 ; Robson v. Kemp, 5 
Esp. 52, 4 Esp. 235. 

United States. — Liggett v. Glenn, 
51 Fed. 381, 396, 2 C. C. A. 286, 4 
U. S. App. 438. 

Georgia. — Freeman v. Brewster, 
93 Ga. 648. 21 S. E. 165 ; Philman t'. 
Marshall, 103 Ga. 82, 29 S. E. 598. 

Illinois. — Dietrich v. Mitchell, 43 
111. 40, 92 Am. Dec. 99. 

New York. — McClure v. Good- 
enough, 12 N. Y. Supp. 459. 

Nezv Jersey. — Matthews v. Hoag- 
land, 48 N. J. Eq. 455, 464, 21 Atl 
1054- 

Texas. — Mcintosh v. Moore, 22 
Tex. Civ. App. 22, 53 S. W. 611. 

" One sense is privileged as well as 
another. He cannot be said to be 
privileged as to what he hears, but 
not as to what he sees, where the 
knowledge acquired as to both has 
been from his situation as an attor- 
ney." Language of Lord Ellenbor- 
ough quoted in Dietrich v. Mitchell, 
43 111. 40. In this case defendant 
was sued as guarantor on a note. 
Defendant denied the execution of 
the guaranty, and called an atiorney 
as a witness to show that he, the 
attorney, had at one time brought a 
suit on the note, and that when it 
was in his possession the note bore 
defendant's endorsement, but no 
words of guaranty. The supreme 
court held that this testimony should 
not have been admitted ; that the 
attorney's knowledge was priv- 
ileged. The court quotes the lan- 
guage of Lord Ellenborough given 
above, and adds : " The weight of 
authority is against the admissibility 
of the evidence, and this rule is 
founded in the sounder sense. If 
the knowledge comes to the attorney 
through his professional relation to 
his client, we cannot perceive that 
it is important whether in the 
language of Lord Ellenborough, it is 
by what he sees or what he hears." 

" The particular form of the com- 



munication is unimportant." Gray 
V. Fox. 43 Mo. 570, 97 Am. Dec. 
416. See also Brown v. Payson, 6 
N. H. 443. 

It is immaterial whether the com- 
munication be made orally or in 
writing. Coveney v. Tannahill, i 
Hill (N. Y.) 33, 37 Am. Dec. 287; 
Kennedy v. Lyell, 23 Ch. D. 387, 48 
L. T. 455, aMrmed 9 App. Cas. 81. 

" I do not find the rule restricted 
to such matters as may have been 
communicated in special confidence. 
The relation itself is of a confidential 
character, and every fact derived 
through the medium of it, seems to 
partake of its nature." Crawford v, 
McKissick, i Port. (Ala.) 433. The 
exact meaning of the expression 
"special confidence" cannot be gath- 
ered from the report. 

In Causey v. Wiley, 27 Ga. 444, it 
was held that an attorney could not 
testify as to the contents of certain 
interrogatories addressed to his client, 
although they were read in open 
court, he having stated that he had 
acquired his knowledge during, and, 
as he believed, in consequence of, 
the relation of attorney and client, 
and that, but for the existence of 
that relation he would not have lis- 
tened to the interrogatories when 
read, or would not have read them 
out of court. 

Hypothetical Case. — A communi- 
cation is privileged, although stated 
to attorney in the form of a hypo- 
thetical case, especially if the evi- 
dence shows that the attorney had 
acted as such for person making 
communication, and connected the 
hypothetical case with an actual 
transaction within his knowledge, 
and which was the basis of an action 
subsequently instituted. Bacon v. 
Frisbie, 80 N. Y. 394, 36 Am. Rep. 
627. 

Kind of Money Paid to Attorney. 
In State v. Dawson, 90 Mo. 149, i 
S. W. 827, defendant was charged 
with stealing one hundred and 

Vol. X 



264 



PRIVILEGED COMMUNICATIONS. 



made privately, in confidence, and for the purpose of enabling the 
attorney to render professional service.'^* 

C. Instructions. — Neither client nor attorney can be corn- 



sixty dollars of current silver coin 
of the United States." The trial 
court permitted defendant's attorney 
to testify that defendant had paid 
him "forty-five dollars in silver, and 
five dollars in gold." Held, that the 
transaction was a privileged com- 
munication, and the admission of the 
attorney's testimony constituted 
error. The court uses this language : 
" The reason of the rule protects a 
client from a disclosure-by his at- 
torney, not only of v^'hat he has com- 
municated to his attorney orally or 
in writing, but of any information 
derived by the attorney from being 
employed as such, any information 
which he has derived fiom his client, 
■whether by words, signs or acts; 
and to restrict the privilege to oral 
or written communication,s would 
make the rule infinitely narrower 
than the reason upon which it is 
based." For similar case and ruling, 
see Holden v. State, 44 Tex. Crim. 
382. 71 S. W. 600. 

In Hernandez v. State, 18 Tex. 
App. 134, the statute under consider- 
ation provided that "an attorney at 
law shall not disclose a communica- 
tion made to him by his client dur- 
ing the existence of that relationship, 
nor disclose any other fact which 
came to the knowledge of such at- 
torney by reason of such relation- 
ship." Code Crim. Proc. art. 733. 
After quoting common law author- 
ities on the subject the court says: 
" Our statute, we think, states the 
rule more clearly and more compre- 
hensively than any of the authorities 
to which we have referred. It ex- 
tends the privilege to any fact which 
^ame to the knozvledge of the attor- 
ney by reason of such relationship. 
There is no qualification except that 
it must be a fact which he learned 
by reason of his relationship as an 
attorney to the business to which 
such fact has reference. It is not 
required that information of such 
fact shall come from the client. It 
matters not from what source it has 
been obtained; if it was obtained be- 
cause of the relationship of attor- 

Vol. X 



ney in and about that particular busi- 
ness, it is privileged. Now, apply 
this rule to the testimony of Ander- 
son. He was the attorney of Louis 
Hernandez in the theft case. As 
such attorney he was approached by 
the defendant, and in the capacity of 
such attorney the defendant made to 
him, and he received, certain 
statements having reference to the 
Louis Hernandez case. All that 
transpired between Anderson and the 
defendant had reference to said case, 
and all the information obtained by 
said Anderson from the defendant 
was obtained by reason of his rela- 
tionship as an attorney in that case." 

As to statements made by inter- 
preter in translating communications 
between attorney and client, see 
Maas V. Block, 7 Ind. 202. 

78. Client's Statements — At- 
torney for bankrupt cannot testify 
concerning information received 
from his client as to client's affairs. 
In re Aspinwall, 7 Ben. 433, 2 Fed. 
Cas. No. 591. 

Possession of Property — Attor- 
ney cannot be compelled to state 
who was in possession of, managed 
and received the rents and profits 
of a certain hereditament, when it 
appears that all his information on 
the subject was obtained through 
professional communications from 
his client. Parry v. Watkins, 9 L. J. 
O. S. Ch. (Eng.) 63. 

Statements While Executing Doo- 
ument — Attorney cannot give in 
evidence statements made by his 
client at the time of executing assign- 
ments of contracts. Hollenbeck v. 
Todd, 119 111. 543, 8 N. E. 829; or 
language which attorney understands 
to be an instruction to take no fur- 
ther action in a certain matter. Clark 
V. Richards, 3 E. D. Smith (N. 
Y.) 89. 

Client's Statements as to His Own 

Conduct Attorney for person 

charged with murder cannot show 
statements of his client as to place 
where client had hidden a pistol 
claimed to have been used by him in 



PRIVILEGED COMMUNICATIONS. 



265 



pelled to testify as to the matter of instructions given by the former 
to the latter concerning professional- employment/'' 

Instructions Showing' Nature of Title. — While attorney may be 
■questioned as to fact of employment, he may not be questioned as 
to authority, if his answer would involve a disclosure of the nature 
of title claimed by his client to land in question.^'* 

D. Letters. — Letters exchanged between attorney and client 
relating to the subject of the latter's professional employment are 
privileged.^^ 



committing the murder in question. 
State V. Douglass, 20 W. Va. 770, 
783. Nor can he state where, from 
directions of his cHent, he found the 
pistol. lb. 

Pleading Not Read to Client. 
Attorney cannot be interrogated con- 
cerning information obtained for the 
purpose of preparing a pleading 
which was not read over to client, 
or sworn to by him. Armstrong v. 
People, 70 N. Y. 38, 48. 

Upon a second trial of a person 
charged with a crime, his attorney 
cannot give in evidence statements 
which at the time of the former 
trial, his client said he wished to make 
to the jury; nor can he testify as to 
his advice to his client as to the 
propriety of making such statements. 
Lewis V. State, 91 Ga. 168, 16 S. E. 
986. The statute under which this 
testimony was excluded forbade an 
attorney to testify as to any knowl- 
edge acquired from his client, and 
had been construed to provide that 
•client could not waive the privilege. 
See O'Brien v. Spalding, 102 Ga. 
490, 31 S. E. 100, 66 Am. St. Rep. 
202. 

79. Client's Instructions Attor- 
ney cannot show instructions from 
client to bid at sale in pursuance of 
foreclosure proceedings conducted 
bv the attorney. Stuyvesant v. 
Peckham, 3 Edw. Ch. (N. Y.) 579. 
Or at sale conducted by assignee 
in bankruptcy. Ex parte Assignee, 
27 L. T. N. S. 460. Or as to in- 
structions to prepare claim in certain 
bankruptcy proceedings. Lockwood 
V. House, 17 Jones «& S. (N. Y.) 500. 
Or instructions as to attorney's con- 
duct of an action. Smith v. Brad- 
hurst, 41 N. Y. Supp. 1002. Or in- 
structions concerning preparation of 
<ieed. Fox v. Spears (Ark.) 93 S. 
W. 560; Linthicum v. Remington, 5 



Cranch C. C. (U. S.) 546; Manser 
V. Dix, I Kay & J. 451, 24 L. J. N. 
S. Eq. (Eng.) 497, i Jur. (N. S.) 
466, 3 Eq. R. 650, 69 Eng. Reprint 
536, Sandforth v. Remington, 2 Ves. 
Jr. 189; 30 Eng. Reprint 587. But in 
Sommer v. Oppenheim, 19 Misc. 605, 
44 N. Y. Supp. 396, it is held that 
instructions to attorney as to draw- 
ing of deed are not privileged. 

Client cannot be asked whether he 
had communicated certain facts and 
given certain instructions to his at- 
torney. Birmingham R. & El. Co. 
V. Wildman, 119 Ala. 547, 24 So. 548; 
Ft. Worth & D. C. R. Co. v. Lock, 
30 Tex. Civ. App. 426, 70 S. W. 456. 

Cause of Accident Conversa- 
tion between attorney and client as 
to cause of accident to the former, 
and retainer for damage suit, are 
privileged, Ney v. City of Troy, 3 
N. Y. Supp. 679. 

80. Chirac v. Reinicker, 11 
Wheat. (U. S.) 280, 294. This was 
an action of trespass for mesne 
profits. Attorney was asked : " Were 
you retained, at any time, as attorney 
or counsellor, to conduct the eject- 
ment suit above mentioned, on the 
part of the defendant, for the bene- 
fit of the said George Reinicker, as 
landlord of those premises ? " Held, 
that the question was improper, as 
involving a disclosure of the extent 
or grounds of client's title. To same 
general effect, see Birmingham R. 
& El. Co. V. Wildman, 119 Ala. 547. 

81. England. — Greenough v. Gas- 
kell, I Myl. & K. 98, 39 Eng. Reprint 
618; Hughes V. Biddulph, 4 Russ. 
190, 38 Eng. Reprint 777 ; Vent v. 
Pacey, 4 Russ. 193, 38 Eng. Reprint 
778; Greenlaw v. King, i Beav. 137; 
J. c. 8 L. J. N. S. Eq. 92, 46 Eng. Re- 
print 891 ; Garland v. Scott, 3 Sim. 396, 
57 Eng. Reprint 1046; Reid v. Lang- 
lois, I MacN. & G. 627, 638, 41 Eng. 

Vol. X 



266 



PRIVILEGED COMMUNICATIONS. 



a. Not All Letters. — Letters are not privileged unless oral com- 
munications on the same subject would be so. Consequently, let- 
ters are not privileged, if relating to the subject of the attorney's 
compensation f- or if written for the purpose of conferring author- 
ity upon the attorney.^^ 

b. Letters, Client to Agent. — Letters written by client to his 
agent to be transmitted or shown to counsel are privileged.^* 

c. Agent to Client. — Also letters written by agent to client after 



Reprint 1408; Goodall v. Little, I 
Sim. N. S. 155, 20 L. J. Ch. 132, 61 
Eng. Reprint 60; Macfarlane v. Rolt, 
L. R. 14 Eq. 580, 41 L. J. Ch. 649, 
27 L. T. N. S. 305; Hamilton v. 
Nott, L. R. 16 Eq. 112; 42 L. J. 
Ch. 512; Storey v. Lord George 
Lennox, i Keen 341, 48 Eng. Re- 
print 338; Hohnes v. Baddeley, i 
Phil. 476, 14 L. J. Ch. 113, reversing 
s. c. 6 Beav. 521, 41 Eng. Reprint 
713; Parsons v. Robertson, 2 Keen 
605, 48 Eng. Reprint 761 ; Hughes 
V. Garnons, 6 Beav. 352, 49 Eng. 
Reprint 862 ; Bullock v. Corry, 47 
L. J. Q. B. 352, 3 Q. B. Div. 356, 
38 L. T. N. S. 102; Minet v. Mor- 
gan, L. R. 8 Ch. App. Cas. 361, 42 
L. J. Ch. 627, 28 L. T. N. S. 573; 
Mornington v. Mornington, 2 Johns. 
& H. 697. 70 Eng. Reprint 1239; 
Catt V. Tourle, 23 L. T. N. S. 
485; Boyd V. Petrie, 20 L. T. N. 
S. 934; Mostyn v. West Mostyn C. 
& L Co., 34 L. T. N. S. 531 ; Ains- 
worth V. Wilding, 65 L. J. Ch. N. 
S. 432 [1896] I Ch. 673, 74 L. T. 
193; Bacon v. Bacon, 34 L. T. N. 
S. 349; Willson V. Leonard, 7 L. 
J. N. S. Ch. 242;MacCorquodale v. 
Bell, 45 L. J. C. P. 329, I C. P. 

D. 471, 35 L. T. N. S. 261; County 
Council of Kerry v. Liverpool S. 
Assn., Ir. Rep. (1905) Vol. 2, p. 38. 

Canada. — Hoffman v. Crerar, 17 
Ont. Pr. 404. 

Georgia. — Five Assn. of Philadel- 
phia V. Fleming, 78 Ga. 733, 3 S. 

E. 420. 

Massachusetts. — Rooney v. Mary- 
land Casualty Co., 184 Mass. 26, 67 
N. E. 882. 

New York. — Wilson v. Troup, 7 
Johns. Ch. 25, 39; In re Whitlock, 3 
N. Y. Supp. 855, reversing s. c. 2 
N. Y. Supp. 683 ; Downey v. Ovi^en, 
98 App. Div. 411, 90 N. Y. Supp. 
280. 

Vol. X 



In Brigham v. McDowell, 19 Neb. 
407, 27 N. W. 384, the court says : 
" Where an attorney is employed to 
prosecute an action to foreclose a 
mortgage, and before the final fore- 
closure is consummated, and dur- 
ing the litigation, the plaintiff denies 
the authority of his attorney to 
prosecute a collateral action which, 
if prosecuted, would work an estop- 
pel on plaintiff ; and where in a 
subsequent action in which the ques- 
tion of the authority of the attorney 
to act becomes important, for the 
purpose of determining the rights of 
parties affected by the first decree, 
it is not a violation of the law of 
privileged communications to allow 
the attorney to testify as to his 
employment, and as to the instruc- 
tions given him by his client, or as 
to his approval of the course pur- 
sued by the attorney. Especially is 
this the case where the relation of 
attorney and client has ceased and 
the authority of the attorney is 
called in question by the client, and 
in a case where equities of third 
parties are to be settled without 
detriment to the rights of the client." 

82. Letter from client to attorney 
offering certain stock as fee is not 
privileged. Curry v. Charles War- 
ner Co., 2 Marv. (Del.) 98, 42 Atl. 

425- 

83. Benton v. Benton, 106 La. 
Ann. 99, 30 So. 137. Compare Tays 
V. Carr, 2)7 Kan. 141, 14 Pac. 456. 

So as to letter requesting attorney 
to irepresent writer. Eickman v. 
Troll, 29 Minn. 124, 12 N. W. 347- 

84. Reid v. Langlois, i Mac. & 
G. 627, 41 Eng. Reprint 1408; Glyn 
V. Caulfield, 3 Macn. & G. 463, 474, 42 
Eng. Reprint 339; Hooper v. Gumm, 
6 L. T. N. S. 891, 2 Johns. & H. 602^ 
70 Eng. Reprint 1199. 



PRIVILBGBD COMMUNICATIONS. 



267 



receipt of advice of counsel, the letters containing reference to 
counsel's opinion. ^^ 

d. Letters Betiveen Attorneys. — Letters between attorneys who 
represent the same client, and concerning his business, are priv- 
ileged.^**' 

e. Letters, Attorney to Third Person. — It has been held that 
letters written by a solicitor to a third person, relating to his cli- 
ent's business, in anticipation of litigation, instructing such person 
to procure evidence, or written for the purpose of obtaining evi- 
dence, are privileged.^' Also letters from attorney to witness,^* 
and from witness to attorney,^^ although attorney had made no 
request for witness' statement and no effort to obtain it.^^ 

f. Anonymous Letter Concerning Testimony. — An anonymous 
letter to an attorney concerning testimony in a pending action of 
his client's is privileged.^^ 

g. Letters Betiveen Client and Non-Professional Agent in an- 
ticipation of litigation and with a view to the prosecution or defense 
of a claim in dispute are privileged. ''- 

h. Letters Between Parties to Action to he Shozvn to Attorney. 
It. has been held that letters written by party to an action to a co- 



85. Boughton v. Citizens' Ins. Co., 
II Ont. Pr. (Can.) no. 

86. Hughes v. Biddulph. 4 Russ. 
190, 38 Eng. Reprint 777; Goodall v. 
Little. I Sim. N. S. 155, 20 L. J. Ch. 
132, 61 Eng. Reprint 60; United 
States V. Six Lots of Ground, i 
Woods C C. (U. S.) 234; Jones v. 
Nantahala M. & T. Co., 137 N. C. 
237, 49 S. E. 94- 

Attorney and Clerk So as to 

letters between attorney and his clerk 
relating to client's affairs. Mostyn v. 
West M. C. & L Co., 34 L. T. N. S. 
(Eng.) 531. 

87. Steele v. Stewart, 13 Sim. 
533. 60 Eng. Reprint 207; Greenough 
V. Gaskell, i Myl. & K. 98, 39 Eng. 
Reprint 618; Simpson v- Brown, 33 
Beav. 482, 55 Eng. Reprint 455 ; La- 
fone V. Falkland Islands Co., 4 Kay 
&J. (Eng.) 34,27 L. J. Ch. 25. 

But such letters are not privileged 
unless it appear that they were writ- 
ten with reference to the dispute in- 
volved in the action in which they 
are offered. Original Hartlepool Co. 
V. Moon, 30 L. T. N. S. (Eng.) 585; 
affirming s. c. 30 L. T. N. S. 193; 
MacCorquodale v. Bell, 45 L. J. C. 
P. 329, I C. P. D. 471, 35 Iv. T. N. 
S. 261. 



In Wheeler v. Le Marchant, 50 L. 
J. Ch. 793,. 17 Ch. D. 675, 44 L. T. 
N. S. 632, it is held that documents 
communicated to solicitor by sur- 
veyor employed by him upon client's 
business are not privileged. 

88. Curling v. Per ring, 2 Myl. & 
K. 380, 4 L. J. Ch. (N. S.) 80, 39 
Eng. Reprint 989. is cited to this ef- 
fect in Betts z>. Mengies, 26 L. J- N. 
S. Eq. 528. 

89. Young V. Holloway. 56 L. J. 
N. S. Prob. 81, 57 L. T. N. S. 515, 
12 P. D. 167. 

90. Young V. Holloway, 56 L. J. 
N. S. Prob. 81, 57 L. T. N. S. 515, 
12 P. D. 167. 

91. Young V. Holloway, 56 L. J. 
N. S. Prob. 81, 57 L. T. N. S. 515, 
12 P. D. 167. 

92. Client to Agent Ross v. 

Gibbs, L. R. 8 Eq. 522. 39 L. J. Ch. 
61 ; MacFarlane v. Rolt, 14 L. R. Eq. 
580, 27 L. T. N. S. 305, 41 L. J. Ch. 
649. See post "Communications 
Between Principal and Agent in 
View of Litigation." 

Opinion of Non-Professional 
Agent is not privileged. Bustros v. 
White, 45 L. J. Q. B. 642, I Q. B. 
D. 423, reversing s. c. 34 L. T. N. 
S. 835. 

Vol. X 



268 



PRIVILEGED COMMUNICATIONS. 



party to be communicated to their common attorney are privileged.®' 

Contra. — Also that they are not.®* 

Party Also Lawyer. — Where a party to an action, who is a soli- 
citor, acts as agent for the solicitor of record, communications be- 
tween him and a co-party are privileged.®^ 

E. Papers delivered by client to attorney, or by attorney to client 
in the course of performance of professional duty by attorney are 
privileged.®^ 

a. Account Book sent by client to attorney, to be used in prepar- 



es. Parties — Jenkyns v. Bush- 
by, 35 L. J. Ch. 820, L. R. 2 Eg. 
547, 15 L. T. 310. But to entitle 
such letters to privilege it must ap- 
pear that they were intended to be 
communicated to counsel- Betts v. 
Menzies, 26 L. J. Ch. 528, 3 Jur. N. 
S. 885. 

94. Contra. — Goodall v. Little, i 
Sim. N. S. (Eng.) 155, 20 L. J. 
Ch. 132. 

95. Party, Also Lawyer Ham- 
ilton V. Nott, 42 L. J. Ch. 512, L. R. 
16 Eq. (Eng.) 112. 

96. Engla)id. — Greenlaw v- King, 
I Beav. 137, L. R. 7 Q- B. 769, 8 L. 
J. Ch. N. S. 92, 48 Eng. Reprint 891 ; 
Pearse v. Pearse, i De G. & Sim. 12, 
16 L. J. Ch. 153, 63 Eng. Reprint 950; 
Nias V. N. & E. R. Co., 3 Myl. & Cr. 
355, 40 Eng. Reprint 963 ; s. c. 2 Keen 
76, affirmed 2 Keen 312, 48 Eng. Re- 
print 557, 649 ; Greenough v. Gaskell, 
I Myl. & K. 98, 39 Eng. Reprint 619; 
Hughes V. Biddulph, 4 Russ. 190, 38 
Eng. Reprint 777; Bolton v. Corpora- 
tion of Liverpool, i Myl. & K. 88, 39 
Eng. Reprint 615, affirming s. c. 3 
Sim. 467, 57 Eng. Reprint 1073; Vo- 
lant V. Soyer, 13 Com. Bench 231 ; 
Bulstrod V. Letchmere, (1676) 2 
Free. Ch. 5, 22 Eng. Reprint 1019; 
Flight V. Robinson, 8 Beav. 22, 50, 13 
L. J. Ch. 425, 8 Jur. 888, 50 Eng. Re- 
print 9; Woods V. Woods, 4 Hare 
83, 67 Eng. Reprint 570; Bluck v- 
Galsworthy, 2 Giff. 453, 3 L. T. 399, 
7 Jur. N. S. 91, 66 Eng. Reprint 189; 
Parsons v. Robertson, 2 Keen 605, 48 
Eng. Reprint 761 ; Richards v. Jack- 
son, 18 Ves. Jr. 472, 34 Eng. Reprint 
396; Jenkyns v. Bushby, 35 L. J. Ch. 
820, L. R. 2 Eq. 547, IS L. T. N. S. 
310; Mayor of Bristol v. Cox. L- R. 
26 Ch. Div. 678, so L. T. N. S. 719; 
Manser v. Dix, i Kay & J. 451, 69 
Eng. Reprint 536, 24 L. J. N. S. Eq. 

Vol. X 



497; Goldstone v. Williams, Deacon 
& Co., L. R. Ch. Div. 1899, Vol. I, p. 
47, 68 L. J. N. S. Ch. Div. 24, 79 L. 
T. N. S. 372,; Turton v. Barber, 
L. R. 17 Eq. 329; Preston v. 
Carr, i Younge & J. 175; Willson v. 
Leonard, 7 L. J. Ch. 242; Wynne v. 
Humberston, 27 Beav. 421, 54 Eng. 
Reprint i6s; Bolton v. Corporation 
of Liverpool, i Myl. & K. 88, 39 Eng. 
Reprint 615; Cleave v. Jones, 7 Exch. 
(Wels. H. & G.) 421 ; s. c. 21 L. J. N. 
S. Exch. 105, 8 E. L. & Eq. S54; Rex 
V. Inhabitants of N. B., 8 Dowl. & 
Ryl. 726; Holmes v. Baddeley, I 
Phil. 476, 14 L. J. Ch. 113, 41 Eng. 
Reprint 713 ; Bate v. Kinsey, i C. M. 
& R. 38, 4 Tyr. 662, 3 L. J. Ex. 304; 
Rex V. Dixon, 3 Burr. 1687; Newton 
V. Chaplin, 10 Com. Bench 356, 19 
L. J., C. P. 374, 14 Jur. 1 121; Blen- 
kinsopp V. Blenkinsopp, 10 Beav. 277, 

50 Eng. Reprint 589; Brown v. Oak- 
shott, 12 Beav. 252, so Eng. Reprint 
1058; Laing V. Barclay, 3 Stark. 38; 
Marston v. Downes, 6 Car. & P. 381 ; 
Mills V. Oddy, 6 Car. & P. 728; Reg. 
V. Hawkins, 2 Car. & K. 823. 

Canada. — Lynch v. O'Hara, 6 U. 
C. C. P. 2S9. 

United States. — Liggett v. Glenn, 

51 Fed. 381, 2 C. C. A. 286, 4 U. S. 
App. 438. 

Connecticut. — Lynde v. Judd, 3 
Day 499; Supplee v. Hall, 75 Conn. 
17, 52 Atl. 407, 96 Am. St. Rep. 188. 

Georgia. — Dover v. Harrell, 58 
Ga. 572; Philman v. Marshall, 103 
Ga. 82, 29 S. E. 598; Southern R. Co. 
V. White, 108 Ga. 201, 22 S. E. 952; 
Freeman v. Brewster, 93 Ga. 648, 21 
S. E. 165. 

Iowa. — State v. Kidd. 89 Iowa 
54, S6 N. W. 263. 

Louisiana. — State v. Hazleton, 15 
La. Ann. 72. 



PRIVILEGED COMMUNICATIONS. 



269 



ing a case is privileged.^^ So as to account prepared by attorney, 
to be used by client in litigation."^ 

b. Abstract of Client's Deeds is privileged."'' 

c. Notes of Testimony. — Trial of Cause. — Notes of testimony 
taken upon trial of client's action are not privileged.^ 

Private Examination. — But notes taken by attorney for trustee 
in bankruptcy at private examination conducted for the purpose 
of enabling the attorney to advise his client are privileged.- So as 
to copies of testimony taken by assignee under trust deed for ben- 
efit of creditors for the purpose of obtaining evidence to be submit- 
ted to counsel for advice as to institution of action.^ 

d. Papers Delivered by Third Person. — Not Agent of Client. 
Paper delivered to attorney by a third person, not client's agent, 
is not privileged, although it relate to client's business.* 

e. Delivered by Client and Others. — When an attorney has in 
his possession papers relating to his client's business, some of which 
were delivered by third persons, and some by client, the court will 
hold some to be privileged and others non-privileged, according to 
the fact of delivery.^ 



Massachusetts. — Anonymous, 8 
Mass. 370. 

Missouri. — Ingerham v. Weather- 
man, 79 Mo. App. 480. 

New Hampshire. — Brown v. Pay- 
son, 6 N. H. 443. 

New Jersey. — Matthews v. Hoag- 
land, 48 N. J. Eq. 455, 21 Atl. 1054. 

New York. — Coveney v. Tanna- 
hill, I Hill 33, 37 Am. Dec. 287; 
Crosby v. Berger, 11 Paige 377, 42 
Am. Dec. 117; Jackson v. Burtis, 14 
Johns. 391; Mallory v. Benjamin, 9 
How. Pr. 419, 423; Wakeman v. 
Bailey, 3 Barb. Ch. 482, 487; Jackson 
V. Denison, 4 Wend. 559; McPher- 
son V. Rathbone, 7 Wend. 316. 

Vermont. — Durkee v. Leland, 4 
Vt. 612; Hick's Estate v. Blanchard, 
60 Vt. 673, IS Atl. 401 ; Arbuckle v. 
Templeton, 65 Vt. 205, 25 Atl. 1095; 
State V. Squires, i Tyler 147. 

The case of Selden v. State, 74 
Wis. 271, 42 N. W. 218, 17 Am. St. 
Rep. 144, is interesting, as involving 
a double privilege, the papers there 
in question being privileged as com- 
munications from client to attorney, 
and from wife to husband. See 
statement under H, 8, A, b, (i.) 
note 88 "Husband and Wife," ante. 

97. Cleave v. Jones, 7 Exch. (W. 
H. & G.) 421, 8 E. L. & Eq. 554, 21 
L. J. N. S. Exch. 105. 

98. Goldstone v. Williams, Dea- 



con & Co., L. R. Ch. Div. 24, 1899, 
Vol. I, p. 47, 68 L. J. N. S. Ch. Div. 
24. 79, L. T. N. S. 373- 

99. Rex V. Inhabitants of N. B., 
8 Dowl. & Ryl. 726, 16 E. C. L. 348. 

1. Nicholl V. Jones, 2 H. & M. 
(Eng.) 588; 5 N. R. 361; Rawstone 
V. Mayor of Preston, 52 L. T. N. S. 

922, L. R. 30 Ch. Div. 116, 54 L. J. 
N. S. Ch. Div. 1 102; Nordon v. De- 
fries, 8 Q. B. D. 508, 51 L. J. Q. B. 
415, expresses the contrary view, but 
is disapproved in Robson v. Wors- 
wick, 59 L. T. N. S. 399, 58 L. J. 
Ch. 31, 38 Ch. D. 370. 

2. Learoyd v. Halifax J. S. B. 
Co., 62 J. J. Ch. 509, 68 L. T. 158. 

3. Fenton v. Queen's Ferrv W. R. 
Co., 38 L. J. N. S. Ch. 263. 

In Gandee v. Stansfeld, 28 L. J. 
N. S. Ch. 436, 5 Jur. N. S. 778, it 
was held on appeal, reversing an or- 
der of the Master of the Rolls, that 
copies of such depositions ought not 
to be produced until hearing of the 
cause. 

4. Delivered by Third Person. 
Wheeler v. LeMarchant, 17 Ch. Div. 
675; Davis V. New York. O. & W. 
R. Co., 70 Minn. 37, 72 N. W. 823; 
Pulford's Appeal, 48 Conn. 247. 

5. Delivered by Client and Others. 
Davis V. New York. O. & W. R. Co., 
70 Minn. 2>7, 7^ N. W. 823. 

Vol. X 



270 



PRIVILEGED COMMUNICATIONS. 



f. Miist Relate to Employment. — To be privileged, papers de- 
livered to attorney must relate to the subject of his employment,* 
and supposed by client to be necessary to enable the attorney to 
perform his dutyJ 

g. Good Faith. — They must be delivered in good faith, and to 
enable attorney to render the required service.^ 

h. Attorney Not Compellable to Produce Papers. — An attorney 
cannot be compelled to produce his client's papers in evidence, un- 
less his client himself could be compelled to do so.^ 



6. Must Relate to Employment. 

Mitchell's Case. 12 Abb. Pr. (N. Y.) 
249, 264. See Reg. v. Hayward, 2 
Car. & K. (Eng.) 234. 

Attorney Ignorant of Nature of 
Papers delivered to him by client 
cannot say they were delivered in 
professional confidence. Mitchell's 
Case, 12 Abb. Pr. 249, 264. 

7. Necessary. _ State v. Kidd, 89 
Iowa 54. 56 N. W. 263. If unneces- 
sary matter is communicated to at- 
torney under the bona tide belief 
that it is necessary, it is privileged. 
Cleave v. Jones, 7 Exch. (W. H. & 
G.,) 421, 8 Eng. L. & Eq. 554, 21 L. J. 
N. S. Exch. 105. 

8. Allen v. Hartford L. Ins. Co., 
72 Conn. 693, 45 Atl. 955; Reg. v. 
Hayward, 2 Car. & K. (Eng.) 234; 
Travis v. January, 3 Rob. (La.) 227; 
In re Whitlock, 2 N. Y. Supp. 683. 

Paper Delivered to Deprive Ad- 
versary. _ In Trustees of Chester 
Church V. Blount, 70 Ga. 779, it was 
held that an attorney could be com- 
pelled to answer as to his possession 
of a deed which had been given to 
him by his client, not for the pur- 
pose of preparing a defense, but for 
the purpose of depriving his adver- 
sary of a piece of evidence belong- 
ing to it, and that the attorney could 
be compelled to produce the docu- 
ment in evidence. 

As to duty of attorney in regard 
to producing papers, and as to at- 
tempted evasion of this duty, see re- 
marks of court in People ex rel. Mit- 
chell V. Sheriff, 7 Abb. Pr. (N. Y.) 
96. In this case an attorney was ad- 
judged guilty of contempt of court, 
for declining to obey court's instruc- 
tions to identify papers, and giving 
papers to client with instructions to 
take them out of court. 

Vol. X 



In Reg. z\ Hayward, 2 Car. & K. 
(Eng.) 234, defendant was indicted 
for forgery of a will. It appeared 
that defendant, having possessed him- 
self of certain deeds from the home 
of deceased, placed the forged will 
among them, and sent them to his 
attorney for the ostensible reason of 
asking his advice upon the deeds, but, 
in reality, that the attorney might 
find the will among the deeds and 
act upon it, which the attorney did. 
Held, that the will should be read in 
evidence. But it has been held that 
it is sufficient, if client believes that 
writing delivered to attorney was 
necessary. Cleave v. Jones, 7 Exch. 
(Welsh. H. & G.) 421; s. c. 8 E. L. 
& Eq. 455, 21 L. J. N. S. Exch. 105. 

9. England. — Flight v. Robinson, 
8 Beav. 22, 13 L. J. Ch. 425, 50 Eng. 
Reprint 9; Wright v. Mayer, 6 Ves. 
Jr. 280, Marston v. Downes, 6 Car. 
& P. 381 ; Volant v. Soyer, 13 Com. 
Bench 231. 

Irish. — Stratford v. Hogan, 2 Ball 
& B. Ir. Eq. 164. 

United States. — Liggett v. Glenn, 
51 Fed. 381, 396, 2 C. C. A. 286, 4 
U. S. App. 438. 

Minnesota. — Stokoe v. St. Paul, 
M. & M. R. Co., 40 Minn. 545, 42 
N. W. 482; Davis v. New York, O. 
& W. R. Co., 70 Minn. 37. 72 N. 
W. 823. 

Neiv York. — Wakeman v. Bailey, 
3 Barb. Ch. 482; Mallory c>. Benja- 
min, 9 How. Pr. 419; IMcPherson v. 
Rathbone, 7 Wend. 217; Jackson v. 
Denison, 4 Wend. 558; Jackson v. 
Burtis, 14 Johns. 391. 

In State v. Squires, i Tyler 147, it 
is held that an attorney cannot, upon 
a rule to show cause, be compelled 
to deliver to a grand jury certain- 
papers of his client, the court hold- 
ing that the client himself could not 



PRIVILEGED COMMUNICATIONS. 



271 



Required to be TTsed for Public Prosecution. — Such production can- 
not be compelled, although paper is required to be used as founda- 
tion for a public prosecution/** or for other public purpose." 

i. When Attorney Must Produce Papers. — Under certain cir- 
cumstances attorney can be compelled to produce his client's papers 
in evidence. 

(1.) Must Produce if Client Compellable. — If the paper is one which 
the client himself could be compelled to produce in evidence, the 
attorney must produce it.^^ 



be compelled to do so. To same gen- 
eral effect, see Reg. v. Hawkins, 2 
Carr & P. (Eng.) 392. 

Attempt to Lay Foundation by 

Client When a witness is asked 

as to the contents of a letter written 
by him to his attorney, for the pur- 
pose of laying a foundation for the 
introduction of the letter, objection 
to the question should be sustained. 
Southern R. Co. v. White, 108 Ga. 
201, 33 S. E. 952. 

Pleading Not Filed — Attorney 
cannot be compelled to produce draft 
of a bill in equity prepared for his 
client, but not filed. Feaver v. Wil- 
liams, 13 Iv. T. N. S. 270. 

10. Coveney v. Tannahill, i Hill 
33. 37 Am. Dec. 287, 299. 

11. State V. Squires, i Tyler 
(Vt.) 147. 

12. Must Produce, if Client Com- 
pellable — Swall V. Marwood, 9 
Barn. & C. (Eng.) 288; Fen wick v. 
Reed, i Meriv. 114, 123, 35 Eng. Re- 
print 618; In re Cameron C. & C. R. 
Co., 25 Beav. i, 53 Eng. Reprint 535; 
Hope V. Liddell, 7 De G. & M. & G. 
331, 3 Eq. R. 790, 24 L. J. Ch. 691, 
44 Eng. Reprint 129; Bursill i'. Tan- 
ner, L. R. 16 Q. B. Div. i; Fur- 
long V. Howard, 2 Schoales & L. 
(Irish Eq.) 115; Lessee of Rhoades 
v. Selin, 4 Wash. C. C. 7i5- 

" If this were not so, all that a party 
would have to do to evade the pro- 
duction of papers, w'ould be to put 
them into the custody of his at- 
torney." Mitchell's Case, 12 Abb. 
Pr. (N. Y.) 482. 

In Andrews v. Ohio & M. R. Co., 
14 Ind. 169, it was held that when an 
attorney admits that he has in his 
possession papers belonging to his 
client, he can be compelled to pro- 
duce them in evidence, or testify as 



to their contents. The court says: 
" Notice was given during the trial 
to said attorney to produce the re- 
ceipts which he refused to do; and 
objected to testifying as to the con- 
tents, on the ground that any and all 
information he had in relation there- 
to, was derived from the receipts 
placed in his hands as attorney in the 
case. 

"The circumstances connected with 
the paj'ments, were proper evidence 
to go to the jur}^ upon the question 
of the application, or intention to ap- 
ply, the money so paid. 

"The amount of the installments 
called for, and the amount paid, were 
proper items of evidence to go to 
the jury upon that question. 

"The notice to the attorney was 
sufficient, he having stated that he had 
the receipts then in his possession. 
As to whether he could be compelled 
to testify as to the contents, we are 
of opinion that he could. The party 
himself might have been compelled, 
under the statute, to produce the re- 
ceipts on the trial. He could not 
defeat the production of that evi- 
dence by passing it into the hands of 
his attorney'. He could still have 
been compelled to produce it. The 
attorney stood in no more secure po- 
sition." 

Mitchell's Case, 12 Abb. Pr. (N. 
Y.) 249. 262, is disapproved in Hoyt 
V. Jackson, 3 Dem. (N. Y.) 388, 
where the opinion of the court seems 
to be that privilege applies to docu- 
ments in hands of attornei", although 
client could be compelled to pro- 
duce them. But Mitchell's case is 
approved and followed in In re 
Wliitlock, 2 N. Y. Supp. 683. 

In Harrisburg Car Mfg. Co. z: 
Sloan, 120 Ind. 156, 21 N. E. 1088, it 
is said that an attorney who has 

Vol. X 



272 



PRIVILEGED COMMUNICATIONS. 



(2.) Papers Non-Privileged if Accessible to Public. — Papers deliv- 
ered to attorney are not privileged, if knowledge of their existence 
or contents is accessible to others, or to the public, and client or 
attorney may be compelled to produce them, or give their contents 
in evidence.^^ But it has been held that if a collection of copies of 
unprivileged documents made by attorney for client would tend 
to disclose the attorney's view of the client's case, all such docu- 
ments will be held privileged." 

(3.) Attorney's Duty to Make Public. — Papers which, in the dis- 
charge of his duty to his client, the attorney must necessarily make 
public are not privileged,^^ nor papers the contents of which an- 
other person would be entitled to know, as a letter conferring au- 
thority to do a certain act.^^ 

(4.) Papers to be Sent to Third Person, — Nor does privilege extend 
to papers which client and attorney prepared to be sent to a third 
person, and which are sent to such third person. ^^ 

(5.) Forged Papers. — It has been held in England that attorney- 
must produce in evidence forged papers delivered to him by his 
client ; but in each case the evidence seems to have been held ad- 
missible on the ground that it did not appear that the relation of 
attorney and client existed between witness and person deliver- 
ing the papers in question.^^ 

(6.) Papers of Adversary. — Attorney may be compelled to produce 
papers of client's adversary which have come into his possession, or 



possession of a letter written to de- 
fendant by plaintiff may be com- 
pelled to produce it. It does not ap- 
pear from the report that the at- 
torney acted for either party. As to 
procedure to enforce production of 
documents by bill of discovery, see 
English cases cited in this note, and 
Wakeman v. Bailey, 3 Barb. Ch. (N. 
Y.) 482. 

13. Accessible to Public — Alden 
V. Goddard, 72, Me. 345; Wright v. 
Vernon, 22 L. J. Ch. (Eng.) 447; 
.y. c. I Drew 344; Tyas v. Brown, 42 
L. T. N. S. (Eng.) SOI. 

Copies of Public Record — In 
State V. Kidd, 89 Iowa 54, it was 
held that a copy of a public record 
delivered by client to attorney is not 
privileged. 

In People v. Petersen, 60 App. 
Div. 118, 69 N. Y. Supp. 941, at- 
torney was held compellable to pro- 
duce original summons and com- 
plaint in action instituted for his cli- 
ent. 

Contents of Public Record. — At- 
torney must testify as to identity of 

Vol. X 



public record in his possession,, 
though obtained in discharging his 
professional duty. Warner Elev, 
Mfg. Co. V. Houston (Tex. Civ. 
App.), 28 S. W. 405- 

14. Lyell V. Kennedy, 51 L. J. Ch. 
937, 27 Ch. Div. I, 50 L. T. 730. 

15. Caldwell v. Meltveldt, 93 
Iowa 730, 61 N. W. 1090. In this 
case it was held that delivery of 
promissory note to attorney was not 
privileged, as his duty demanded that 
he send and cause it to be presented 
for collection. 

16. Letter Conferring Authority. 
Bay Admr. v. Trusdell, 92 Mo. 
App. 2,77- 

17. Edison Elec. L. L. Co. v. 
United States Elec. L. Co., 44 Fed. 
294. In this case it is held that let- 
ters prepared by attorney and client 
to be filed in the United States Patent 
Office are not privileged. 

18. Reg. V. Avery, 8 Car. & P. 
(Eng.) 596; Reg. V. Farley, 2 Car. 
& K. (Eng.) 313. See Reg. v. Tyh- 
rey. 3 Cox C. C. 160, 18 L. J. N. S. 
Mag. Cas. 36. 



PRIVILEGED COMMUNICATIONS. 



273 



disclose what he has done with them, or point out where they may 
be found.^'^ 

(7.) Must Produce to Partner. — In an action by representative of 
deceased attorney to obtain accounting of affairs of partnership 
formerly existing between him and another attorney, defendant may 
be compelled to produce papers relating to the affairs of clients of 
the partnership.-** 

(8.) Must Produce for Identification. — Attorney may be compelled 
to produce his client's paper for purpose of identifying same.-^ 

j. Contents of Papers Privileged. — Attorney will not be com- 
pelled to testify concerning the contents of his client's papers.^^ 



19. Attorney may testify concern- 
ing condition or contents of papers 
offered in evidence by client's adver- 
sary. Brown v. Foster, i Hurlst. & 
N. (Eng.) 736. 

Letters sent by third person to 
client, and by him delivered to at- 
torney are not privileged, and the 
attorney may be required to produce 
them in evidence. In re Whitlock, 
2 N. Y. Supp. 683, reversed, 3 N. Y. 
Supp. 855. In the reversing opinion 
the supreme court held that the spe- 
cial term erred in ordering attorney 
called as witness to produce letters 
from client to witness, and held as 
to letters from third persons to client, 
that the order was erroneous be- 
cause the letters were not material. 
The court intimates that if such let- 
ters were material, their production 
would be enforced. 

In Travis z'. January, 3 Rob. (La.) 
227, the court says : " But where an 
attorney is in possession of title pa- 
pers and documents belonging to his 
client's adversary, or, is called on, 
after having had such papers and 
documents in his possession, to dis- 
close what he has done with them, or 
to point out where they can be 
found, we think the rule does not 
apply; and that the attorney may be 
as properly called on to produce the 
papers and documents necessary to 
establish the rights of the adverse 
party, if they be in his possession, or 
interrogated as to the facts which 
may lead to a discovery of the place 
where thej' can be procured, as his 
client himself could be under our 
laws. Code of Pract. arts. 140. 473. 
In this case, it is clear that the doc- 
ument sought to be produced did 
not belong to the plaintiff; that the 

18 



plaintiff, or his counsel, have no 
right to keep it in their possession; 
and that, as a muniment of the de- 
fendant's title, keeping it from the 
rightful owner, contrary to his con- 
sent, would amount to a gross fraud 
upon him. In vain would be con- 
tended that the paper in question 
was secretly and confidentially 
placed in the possession of the coun- 
sel by their client; for, if such a 
proposition were to be for a mo- 
ment adhered to, it would often be 
used as a shield under which par- 
ties litigant would be enabled to 
commit the grossest and most fla- 
grant frauds to the prejudice of 
their adversaries. We must say that 
a proposition so unreasonable in it- 
self, and so contrary to law. cannot 
in any manner be countenanced by 
us, as its absurdity is fully demon- 
strated by the injurious effect its 
consequences would have on the 
legal rights of those who are com- 
pelled to seek justice at our hands. 
Comstock et al. z: Paie and Smith, 
18 La. 479." 

20. Attorney Must Produce to 
Partner — Brown v. Perkins, 2 
Hare 540. 8 Jur. 186, 67 Eng. Re- 
print 223. See ante. III, 5, "To 
Whom Privilege Belongs." 

21. Phelps V. Prew, 3 El. & Bl. 
(Eng.) 430, 23 L. J. Q. B. 140, 2 
C. L. R. 1422, 18 Jur. 249. 

22. £ » g / a n (/. — M a r s t o n v. 
Downes, 6 Car. & P. 381 ; Davies v. 
Waters, 9 Mees. & W. 607. 

Canada. — Lynch v. O'Hara. 6 U. 
C. C. P. 259, 265. 

Minnesota. — Stokoe v. St. Paul. 
U. & M. R. Co.. 40 Minn. 545, 42 
N. W. 482. 

Vol. X 



274 



PRIVILEGED COMMUNICATIONS. 



Must Name Trustee Appointed by Deed. — But it has been held in 
England that an attorney can be compelled to state the names of 
trustees appointed by a certain deed, as, by so doing, he does not 
state a material part of the deed.^^ 

k. Client Not Compellable to Produce. — (1.) Papers Delivered Be- 
tween Himself and Attorney Nor can client be compelled to pro- 
duce papers delivered to him by his legal adviser in the course 
of professional employment, or papers prepared by himself and 
submitted to his attornev.'^"' 



New Hampshire. — Brown v. Pay- 
son, 6 N. H. 443- 

Nezv York. — Jackson z'. Denison, 
4 Wend. 558; Covenej' v. Tannahill. 
I Hill 2>3, 37 Am. Dec. 287; Kellogg, 
z: Kellogg, 6 Barb. 116. 131; Wake- 
man V. Bailey, 3 Barb. Ch. 482. 

Vermont. — Arbuckle v. Temple- 
ton.' 65 Vt. 205, 25 Atl. 1095. 

Answers to Interrogatories pre- 
pared by adversary, it being claimed 
that such answers were sent by client 
to attorney-, but it not appearing that 
they were filed. Rooney z'. Maryland 
Casualty Co., 184 Mass. 26, 67 N. E. 
882, where it also appears to be held 
that the fact of deliver}- of such an- 
swers was privileged. 

Books of Client An attorney 

cannot testify to knowledge gained 
from an examination of his client's 
account books. Ingerham z'. Weath- 
erman, 79 ]\Io. App. 480. If client 
intrust account book to solicitor to 
be by him used in preparing a case 
to be submitted to counsel, solicitor 
cannot, in an action brought by him 
against client to recover money lent 
by him to client, introduce this book 
to show an entry taking plaintiff's 
case out of the statute of limitations. 
Cleave v. Jones, Exrx., 7 Exch. 
(Welsh. H. & G.) 421, 8 E. L. & 
Eq. 554. 21 L. J. N. S. C. L. 105. 
Or to matters discovered in exam- 
ining a title for his client. Char- 
man V. Tatum, 54 App. Div. 61, 66 
N. Y. Supp. 275. 

Papers — Nor to knowledge ob- 
tained from an inspection of docu- 
ments submitted to him by client in 
course of professional employment. 
IMatthews v. Hoagland, 48 N. J. Eq. 

455- 464- 

Abstract of Client's Deeds pre- 
pared by solicitors clerk under in- 



structions from his employer is priv- 
ileged. King V. Inhabitants of U. B., 
8 Dowl. & Ryl. (Eng.) 726. 

Pleading Not Filed — An attor- 
ney cannot be compelled to testify 
to contents of answer sworn to by 
his client and left with the attorney 
to be filed or not as the attorney 
should deem best, but which was not 
filed. Neal v. Patten, 47 Ga. 73; 
Burnham z: Roberts, 70 111. 19. 

Papers on Motion Nor can at- 
torney who has been employed to 
make a motion for a new trial testify 
to contents of papers left with him 
by client to be used in presenting 
motion, and which had been lost, ir- 
respective of the question whether or 
not he had participated in the trial. 
Philman v. Marshall, 103 Ga. 82. 29 
S. E. 598. 

Insurance Policy — Nor can at- 
torney employed to collect an insur- 
ance policy be required to testify as 
to the terms of the policy, the iden- 
tity of the beneficiarj^ or payment of 
proceeds to client. Freeman v. 
Brewster, 93 Ga. 648. 21 S. E. 165. 

23. Bursill v. Tanner, 55 L. J. Q. 
B. 53. 16 Q. B. Div. I. But see 
Lynch z'. O'Hara, 6 U. C. C. P. 259, 
where testimony as to parties to the 
deeds and the contents of them was 
held properly excluded. 

24. In Glegg v Legh, 4 Madd. 
193. 56 Eng. Reprint 678. it is said 
that a person " is not protected from 
answering as to his own admissions 
of facts, although they were con- 
tained in a case stated by him for the 
opinion of counsel." 

In Preston z\ Carr. i Younge & 
J. (Eng.) 175, it was held that client 
could be compelled to produce case 
submitted to counsel. 

Advertisement prepared by client 



Vol. X 



PRIVILEGED COMMUNICATIONS. 



275 



(2.) Papers to be Submitted to Attorney. — Client cannot be com- 
pelled to produce documents containing evidence and statements 



and submitted to solicitor for advice 
as to whether or not it contained li- 
belous matter, is privileged. Low- 
den V. Blakey, 58 L. J. Q. B. 617, 23 
Q. B. Div. 2,2,2, 61 L. T. N. S. 251. 

Instructions to attorney as to 
draft of deed are privileged. Manser 
V. Dix, 24 L. J. Ch. N. S. (Eng.) 
497, I Kay & J. 451, I Jur. N. S. 
466. 3 Eq. R. 650. 

Written Evidence, or Copies. 
Copies of foreign patents procured 
by solicitor for client, to be used in 
litigation are privileged, and client 
cannot be compelled to produce them. 
Guelph C. Co. V. Whitehead. 9 Ont. 
Pr. (Can.) 509. 

Reports of Agents prepared for 
purpose of submission to counsel for 
use in pending or contemplated liti- 
gation are privileged. MacDonald v. 
Norwich Union F. Ins. Co., 10 Ont. 
Pr. (Can.) 501. So as to report of 
physician as to condition of person 
injured by railway train, procured 
by solicitor to be used as evidence in 
damage suit by injured person 
against railway company. Pacey v. 
Metropolitan Tramways Co., 46 L. 
J. N. S. Exch. & C. P. 698. 

Pleading prepared by attorney, but 
not filed. Belsham v. Harrison, 15 
1. J. N. S. C. (Eng.) 438. 

Opinion of Attorney Client 

cannot be compelled to produce his 
attorney's opinion upon facts sub- 
mitted to him. Woods v. Woods, 4 
Hare 83, 67 Eng. Reprint 570; Bluck 
V. Galsworthy, 2 Gif. 453, 66 Eng. 
Reprint 189; Parsons z.\ Robertson, 
2 Keen 605, 48 Eng. Reprint 761 ; 
Richards v. Jackson, 18 Ves. Jr. 472, 
34 Eng. Reprint 396; Jenkins v. 
Bushby, L. R. 2 Eq. 547. 35 L. J. 
Ch. 400. 14 L. T. N. S. 431 ; Willson 
V. Leonard, 7 L. J. Ch. 242. 

Notes and Opinion Upon Instruc- 
tions Submitted Mostyn v. W. M. 

C. & L Co., 34 L. T. N. S. (Eng.) 
531. 

Opinion in letter Between Agents 
of Client. — Letters between two 
agents of client containing opinion 



of client's attorney are privileged. 
Merchants' Bank v. Moffatt, 6 Ont. 
Pr. (Can.) 348. 

In Mayor of Bristol v. Cox, L. R. 
26 Ch. Div. 678, so L. T. N. S. 719, 
it is held that the fact that a party 
to an action by a city is a rate- 
payer, and as such, contributes to the 
salary of the city solicitor does not 
entitle him to production of an 
opinion given by such solicitor to the 
city. 

Document Executed by Attorney 
to Client. — Genet v. Ketchum, 62 
N. Y. 626. In this case attorney 
executed a bond of indemnity to his 
client. Its production was demanded 
but was not allowed. In holding 
this ruling correct the court of ap- 
peals says : " If tlie bond simply in- 
demnified said defendant against an 
adverse result of the litigation, it 
was immaterial and irrelevant. If 
there were contained therein state- 
ments and recitals of fact, which if 
made by Ketchum would have been 
available to plaintiff, then they were 
communications between client and 
counsel, and privileged." 

Draft of Deed prepared by coun- 
sel with his marginal notes and opin- 
ion. Manser v. Dix, 24 L. J. Ch. 
497, I Kay & J. 451, 3 Eq. R. 650, 
69 Eng. Reprint 536. 

Account prepared by attorney to 
be used in litigation. Goldstone v. 
Williams Deacon & Co.. L. R. Ch. 
Div. 1899, Vol. I, p. 47, 68 L. J. N. 
S. Ch. Div. 24, 79 L. T. N. S. 373- 

Cost Bill delivered to client by 
attorney. Turton v. Roberts, L. R. 
17 Eq. 329. 

Attorney's Books. — Client can- 
not be compelled to produce his at- 
torney's books of account or letter 
books. Flight V. Robinson, 8 Beav. 
22, 50, 13 L. J. Ch. 425, 8 Jur. 888, 
50 Eng. Reprint 9. 

Case Submitted to Attorney — Cli- 
ent cannot be required to produce 
case submitted by him to his attor- 
ney. Wynne v. Humberston, 27 
Beav. 421. 54 Eng. Reprint 165; 
Holmes v. Baddeley. i Phil. 476, 6 

Vol. X 



276 



PRIVILEGED COMMUNICATIONS. 



of facts which were prepared for the purpose of being submitted to 
his attorney, although they had not, at time production was de- 
manded, been so submitted.^^ 

(A.) Privileged In Subsequent Action. — Such documents are priv- 
ileged in a subsequent action, although the action in which they 
were intended to be used was never brought, and the parties in the 
subsequent action are not the same as in that contemplated.'® 

(B.) That Documents Not Submitted, Immaterial. — The privilege 
is not affected by the fact that such documents were not actually 
submitted to the attorney.^^ 

(C.) That Document Identified By Client In Another Case, Imma- 
terial. — The privilege when claimed in a certain case is not affected 
by the fact that client, when a witness in a previous case, identified 
the document claimed to be privileged, but such document was not 
filed in evidence.-^ 

(3.) Documents Lent by Attorney for Person Having Common Interest 
With Client — If attorneys send case and opinion of counsel to at- 
torneys of another person whose interests are, as against a third 
person, almost identical with the interests of the client of the first 



Beav. 521, 14 L. J. Ch. 113, 9 Jur. 
289, 41 Eng. Reprint 713; Combe v. 
Corporation of London, i Young & 

C. (Eng.) 631, 650, 15 L. J. Ch. 80, 
10 Jur. 57, 62 Eng. Reprint 1048; 
Nias V. Northern & E. R. Co., 3 
Myl. Cr. 355. 40 Eng. Reprint 963; 
s. c. 2 Keen 76, 48 Eng. Reprint 557, 
affirmed 2 Keen 312, 48 Eng. Reprint 
649; Storey v. Lennox, i Keen 341, 
48 Eng. Reprint 338; Bolton v. Cor- 
poration of Liverpool, i Myl. & K. 
88, 99, 39 Eng. Reprint 614, affirming 
s. c. 3 Sim. 467, 57 Eng. Reprint 
1073 ; Pearse v. Pearse, i De G. & 
Sm. 12, 63 Eng. Reprint 950; Beadon 
V. King, 17 Sim. 34. 60 Eng. Reprint 
1039- 

25. England. — Friend v. L. C. & 

D. R. Co., 46 L. J. Ex. 696, 2 Exch. 
Div. 437, 36 L. T. 729 ; Pacey v. Lon- 
don Tramways Co., L. R., 2 Exch. 
Div. 440; Collins z\ London Gen. 
Om. Co., 68 L. T. 831, 63 L. J. N. S. 
Q. B. 428; Wright V. Vernon, i 
Drew, 344; .y. c. 22 L. J. Ch. N. S. 
447; The Theodor Korner, 47 L. J. 
P. 85. 38 L. T. 818. 

Pennsylvania. — Davenport Co. v. 
Pennsylvania R. Co., 166 Pa. St. 480. 

In Southwark & V. W. Co. v. 
Quick, L. R. 3 Q. B. Div. 315. 47 
L. J. Q. B. 258, 38 L. T. N. S. 28, 
the court says : " I can see no dis- 

Vol. X 



tinction between information ob- 
tained upon the suggestion of a so- 
licitor, with the view of its being 
submitted to him for the purpose of 
his advising upon it, and that pro- 
cured spontaneously by the client for 
the same purpose. Again, I see no 
distinction between the information 
so voluntarily procured for that pur- 
pose and actually submitted to the 
solicitor, and that so procured but 
not yet submitted to him. If the 
court or the judge at chambers is 
satisfied that it was bona fide pro- 
cured for the purpose, it appears to 
me that it ought to be privileged." 

It is sufficient if such paper was 
prepared in anticipation of litigation, 
although none be pending at the time 
of preparation. Collins z'. London 
Gen. Om. Co., 63 L. J. N. S. Q. B. 
428. 68 L. T. 831. 

26. Pearce v. Foster, L. R. iS Q- 
B Div. 114; s. c. 52 L. T. N. S. 886. 
To same efifect, see Canadian P. R. 
Co. V. Conmee, 11 Ont. Pr. (Can.) 
297, also Goldstone v. Williams, 
Deacon & Co., L. R. Ch. Div. 1899, 
Vol. I, p. 47. 68 L. J. N. S. Ch. Div. 
24, 79 L. T. N. S. 373- 

27. Southwark & V. W. Co. v. 
Quick. L. R. 3 Q. B. Div. 315. 47 L. 
J. Q. B. 258, afHrming s. c. 38 L. T. 
N. S. 28. 

28. Goldstone v. Williams, Dea- 



PRIVILEGED COMMUNICATIONS. 



277 



attorneys, such documents are privileged against such third person.-* 
(4.) Essential to Claim of Privilege for Documents Intended to be Tlsed 

as Evidence It has been held in England that client cannot claim 

privilege for documents in possession of his attorney to be used as 
evidence, unless it appear that they came into existence for the pur- 
poses of the action in which they are proposed to be used.^° 

1. Attorney's Possession of Papers No Excuse for Non-Produc- 
tion by Client. — When client is compellable to produce a certain 
document in evidence, the fact that he has delivered it to his at- 
torney does not justify his refusal to comply with a subpoena duces 
tecum requiring its production. ^^ 

m. Attorney's Lien No Excuse for Client or Attorney. — The 
fact that attorney has a lien upon a document, production of which 
is demanded, does not justify refusal of production by client,^^ or 
by attorney.^^ 

n. Paper Not Under Client's Control. — Client cannot be com- 
pelled to produce documents which are in possession of his at- 
torney but not under client's control.^* 



con & Co.. L. R. Ch. Div. 1899, Vol. 
I, p. 47, 79 L. T. N. S. m, 68 L. J. 
N. S. Ch. Div. 24. 

29. Enthoven v. Cobb, 2 De G. M. 
& G. (Eng.) 632. 

30. Chadwick v. Bowman. L. R. 
16 p. B. Div. 561, 54 L. T. N. S. 16. 
This case was an action for price of 
goods. Defendant had written to 
third persons and received answers, 
and it appeared that it depended upon 
the terms of these letters and answers 
whether defendant had authorized his 
correspondents to order the goods in 
question. Defendant's soHcitor ob- 
tained copies of these letters. Held, 
that plaintiff was entitled to produc- 
tion of such copies. The court says, 
per Denman, J. : "I am of opinion 
that this order was rightly made. 
The originals of these documents 
would have been admissible in evi- 
dence against the defendant, and it 
seems to me that there is nothing in 
the circumstances under which the 
copies came into existence to render 
them privileged against inspection." 

Per Mathew, J. " I am of the 
same opinion. I think tTiat danger 
would follow if the privilege against 
inspection were made to cover such 
a case as this. It does not appear to 
me that these documents really came 
into existence for the purposes of the 
action within the true meaning of the 
rule upon which the defendant's 
counsel relied." 



31. Edison EI. L. Co. v. United 
States El. L. Co., ^ Fed. 294. See 
quotation in note under note ZZ^ post. 

32. Rodick v. Gandel. ic Beav. 
270, 50 Eng. Reprint 586. In this 
case the court says that if attorney 
claim a lien on client's papers, client 
is not thereby justified in refusing 
to produce them, as the court will 
give him an opportunity to take pro- 
ceedings against the attorney to 
compel their production. 

33. Hope V. Liddell, 20 Beav. 438, 
52 Eng. Reprint 672; s. c. 7 De G. 
M. & G. 331, 44 Eng. Reprint 129; 
In re Cameron's C. & R. Co., 25 
Beav. I, S3 Eng. Reprint 535 ; Fur- 
long V. Howard, 2 Sch. & L. (Irish 
Ch.) IIS. 

In M'Cann v. Beere, i Hogan 
(Irish) 129, it was moved that a 
party and his solicitor be required 
to bring into court certain deeds. 
The Master of the Rolls said : " I 
will give you an order on the de- 
fendant, and if the deeds are in the 
hands of his solicitor, it is the same 
as if they were in his own possession, 
and he will be bound to produce 
them; but I will not make any order 
on the solicitor, who may have a 
lien on them as against his client." 

34. Palmer v. Wright, 10 Beav. 
234, so Eng. Reprint S72. In this 
case an executor of whom produc- 
tion of documents was demanded, 
stated that his solicitors had in their 

Vol. X 



278 



PRIVILEGED COMMUNICATIONS. 



o. Custody of Paper Lost. — It has been held that privilege at- 
taches to papers only while they remain in the hands of attorney 
or client.^^ But the contrary has been held.^" 

p. What Facts Concerning Papers May Be Testified to by At- 
torney. — An attorney may give in evidence his knowledge of cer- 
tain facts concerning his client's documents ; thus he may be com- 
pelled to testify that a certain instrument was executed,"^ or as to 
the existence of a certain document,^^ but not if all his knowledge 
on the subject was acquired through confidential communications 
of client.^" He may testify to the fact that a certain document is 
in his possession,^" how it came into his possession,'*^ whether or 
not a certain deed was antedated*- or was delivered at the time 
attorney subscribed it as witness,*^ delivery of deed,** purpose of 
delivery,*^ location of a document at a certain time,*® that he wrote 
a certain document, which his client signed,*^ contents of notice 
prepared by him to be served by client upon third person,*® what 
disposition he made of client's notes, checks or evidences of indebt- 



possession certain documents re- 
lating to his testator's estate, but 
that such documents were not under 
his control. Held, that he could not 
be compelled to produce them. 

35. Written statement prepared 
by person accused of crime which he 
intended to give to his counsel, but 
which was taken from his possession 
after arrest, is not a privileged com- 
munication. Renfro v. State. 42 
Tex. Crim. 393, 56 S. W. 1013, i 
Whart on Ev. 586. 

36. Liggett V. Glenn, 51 Fed. 381, 
396, 2 C. C. A. 286, 4 U. S. App. 438. 

37. Foster v. Hall. 12 Pick. 
(Mass.) 89, 22 Am. Dec. 400; Gower 
V. Emery, 18 Me. 79; Patten v. 
Moor, 29 N. H. 163; Harkless v. 
Smith, 115 Ga. 350, 41 S. E. 634; 
Vaillant v. Dodemead, 2 Atk. 524, 26 
Eng. Reprint 715; Sandford v. Rem- 
ington, 2 Ves. Jr. i8g, 30 Eng. Re- 
print 587. 

38. Coveney v. Tannahill, i Hill 
2>i^ 2)7 Am. Dec. 287 ; Kington v. 
Gale, Finch (Eng.) 259. Brandt v. 
Klein, 17 Johns. (N. Y.) 335. 

39. Murray v. Dowling, i Cranch 
C. C. (U. S.) 151. 

40. Coveney v. Tannahill. i Hill 
(N. Y.) 33, 37 Am. Dec. 287; Stokoe 
V St. Paul M. & M. R. Co., 40 Minn. 
545, 42 N. W 482; Wakeman v. 
Bailey, 3 Barb. Ch. (N. Y.) 482, 
487; Zabel V. Schroeder, 35 Tex. 

Vol. X 



308; Lessee of Rhoades v. Selin, 4 
Wash. C. C. (U. S.) 715; Dwyer v. 
Collins, 7 Exch. Wels. H. & G. 
(Eng.) 639; Coates v. Birch, 2 Ad. 
& El. (Eng.) 252, I G. & D. 647, 2 
Q. B. 252, II L. J. Q. B. I, 5 J"r. 
540; Bevan v. Waters, i Moody & 
M. (Eng.) 235, 3 Car. & P. 520; 
Brandt v. Klein, 17 Johns. (N. Y.) 
335. 

41. Allen v. Root, 39 Tex. 589. 

42. Bank of Utica v. Mersereau,. 
3 Barb. Ch. (N. Y.) 528, 49 Am. 
Dec. 189 ; Rundle v. Foster. 3 Tenn. 
Ch. 658. 

43. Bank of Utica v. Mesereau, 
3 Barb. Ch. (N. Y.) 528, 49 Am. 
Dec. 189. 

44. Rosseau v. Bleau, 131 N. Y. 
177, 30 N. E. 52, 27 Am. St. Rep. 
578; Ruiz V. Dow. 113 Cal. 490, 45 
Pac. 867. 

45. Rosseau v. Bleau, 131 N. Y. 
177, 30 N. E. 52, 27 Am. St. Rep. 
578. 

46. Jackson v. M'Vey, 18 Johns. 
(N. Y.) 330; Ex parte Gfeller, 178 
Mo. 248, 77 S. W. 552; Banner v. 
Jackson, i De G. & S. 472, 63 Eng. 
Reprint 1154; Kington v. Gale, 
Finch (Eng.) 359. 

47. Chapman v. Peebles, 84 Ala. 
283, 4 So. 273 ; In re Aspinwall, 7 
Ben. 433, 2 Fed. Cas. No. 591. 

48. Collins V. Johnson, 16 Ga. 
458. 



PRIVILEGED CO MM UNICA TIONS. 



279 



edness,*^ when he last saw a certain document^" and in whose cus- 
tody,^^ who owned a certain note sold by him,^- whether or not he 
had ever seen a certain paper,-"^" or to whom,'"'* on what occasion^'''^ 
and for what purpose^*^ he parted with certain papers of his client's ; 
also that a certain paper was received by him from his client,^'^ 
whether or not he was present when a certain paper was signed,^^ 
when, where and in whose presence a certain paper was signed. ^^ 
q. Condition or Appearance of Papers. — As to whether or not 
attorney's knowledge of the condition or appearance of his client's 
papers is privileged, the authorities are conflicting."" 

r. Admissibility of Paper Not Dependent Upon Manner of Pos- 
session. — The admissibility of a paper containing communications 
between client and attorney is not dependent upon the manner in 
which possession thereof was obtained by the attorney, but upon 
the inherent character of the communication itself."^ 

s. Consequence of Refusal to Produce. — If attorney, after no- 
tice to produce and demand, refuses to produce a paper of his 
client's, the opposite side may make secondary proof of its con- 
tents.*^- 

F. Reasons for Attorney's Conduct. — An attornev cannot be 



49. State e.v ret v. Gleason. ig 
Or. 159, 23 Pac. 817. 

50. Kington v. Gale, Finch 
(Eng.) 259. 

51. Kington v. Gale, Finch 
(Eng.) 259. 

52. De Witt v. Perkins, 22 Wis. 
473- 

53. In re Aspinwall, 7 Ben. 433, 
2 Fed. Cas. No. 591 ; O'Gorman z'. 
M'Namara, Hayes Exch. (Irish) 174. 

54. Banner z'. Jackson, i De G. 
& S. 472, 63 Eng. Reprint 1154; 
Kington z'. Gale, Finch (Eng.) 259. 

55. Banner z'. Jackson, i De G. 
& S. 472, 63 Eng. Reprint 1 154. 

56. Banner v. Jackson, i De G. 
& S. 472, 63 Eng. Reprint 11 54. 

57. Ericke v. Nokes, i Moody & 
M. (Eng.) 303. 

58. Coveney v. Tannahill, i Hill 
(N. Y.) 3:^. 37 Am. Dec. 287. 

59. Coveney v. Tannahill, i Hill 
(N. Y. ) 33, 37 Am. Dec. 287. 

60. Knowledge Privileged. 
Gray v. Fox, 43 Mo. 570, 97 Am. 
Dec. 416; Dietrich v. Mitchell, 43 111. 
40, 92 Am. Dec. 99; Brown v. Pay- 
son, 6 N. H. 443; Arbuckle v. Tem- 
pleton. 65 Vt. 205, 25 Atl. 1095. 

Attorney cannot testify whether or 
not a note was stamped when shown 
to him by his client. Wheatley r. 
Williams, i Mees. & W. (Eng.) 533; 



or as to whether or not when he 
first saw a certain account of client's, 
an acknowledgement of settlement 
was indorsed upon it. Coveney v. 
Tannahill, i Hill (N. Y.) 33, 37 Am. 
Dec. 287. 

Indorsement on Note Attorney 

cannot be compelled to testify as to 
indorsements upon notes concerning 
which he advised his client. 
Dietrich v. Mitchell, 43 111. 40, 92 
Am. Dec. 99 ; Arbuckle z'. Temple- 
ton, 65 Vt. 205, 25 Atl. 1095. 

Knowledge Non - Privileged. 
Stoney v. xM'Neil, Harp L. (S. C.) 
557, 18 Am. Dec. 660; Bank of Utica 
z'. Mersereau, 3 Barb. Ch. (N. Y.) 
528, 49 Am. Dec. 189; Brandt v. 
Klein, 17 Johns. (N. Y.) 335. 

Indorsement on Deed An at- 
torney may be compelled to show 
his client's deed to permit inspection 
of an endorsement thereon for pur- 
pose of identification. Phelps v. 
Prew. 3 El. & Bl. (Eng.) 430, 2 C. L. 
R. 1422, 23 h. J. Q. B. 140. 

61. Liggett v. Glenn, 51 Fed. 381, 
396, 2 C. C. A. 286, 4 U. S. App. 438. 

62. Stokoe V. St. Paul M. & M. 
R. Co., 40 Minn. 545, 42 N. W. 482; 
Marston v. Downes, 6 Car. & P. 
(Eng.) 381, 3 L. J. K. B. 158, 4 N. 
& M. 861. 

Vol. X 



280 



PRIVILEGED COMMUNICATIONS. 



compelled to state his reasons for managing a case in a certain 
way, or his reasons for not taking certain proceedings,*'^ or client's 
reason for a certain act.^* 

G. Attorney's Inferences. — Client is not bound to disclose his 
attorney's statements as to inferences he has drawn from facts as- 
certained in collecting evidence.*'^ 

H. Client's Belief. — Nor his own belief concerning matters 
stated to him by his attorney.*'** 

I. Privilege Extends to Third Persons, to Whom Attorney 
Referred. — Privilege extends to information obtained from third 
persons to whom attorney is referred by client for information con- 
cerning client's affairs.*'' 

J. Not Limited to Litigation. — As all matters confidentially 
communicated between attorney and client are privileged, it fol- 
lows that the privilege is not limited to statements of client, or 
advice or statements of attorney, made or given with reference to 
pending or expected litigation, but extends to all communications 
made in the course of seeking or rendering services as attorney.^* 



63. Austin T. & W. Mfg. Co. v. 
Heiser, 6 S. D. 429, 437, 61 N. W. 
445. But see Sloan v. Pelzer, 54 S. 
C. 314. 32 S. E. 431- 

64. Client's Reason Sandford 

V. Remington, 2 Ves. Jr. 189, 30 
Eng. Reprint 587. 

65. Attorney's Inferences. 
Kennedy v. Lyell, L. R. 22, Ch. Div. 
387, 408 (aifinned, see 9 App. Cas. 
81, so L. T. N. S. 277). In this case 
the court said : " Having regard to 
the way in which the solicitor was 
employed on behalf of his client for 
the purpose of protecting his inter- 
ests and obtaining evidence for his 
defense, I am of opinion that the 
client is not bound to disclose any in- 
formation given him by his solicitor 
as to the inferences drawn by him, 
or as to the effect on his mind of 
what he has seen or heard, any 
more than he would be bound to 
produce as a whole the confidential 
reports made to him, whether in 
writing or verbally, by his solicitor, 
as to the result of the inquiries 
which the solicitor has made." 

66. Kennedy v. Lyell. L. R. 23 
Ch. Div. 387; s. c. aifinned 9 App. 
Cas. 81, 50 L. T. N. S. 277. 

67. In re Aspinwall, 7 Ben. 433, 2 
Fed. Cas. No. 591. 

68. England. — Minet v. Morgan, 
L. R. 8 Ch. 361, 42 L. J. N. S. Ch. 
627, 28 L. T. N. S. 573; Herring v. 

VoL X 



Clobery, i Phil. 91, 41 Eng. Re- 
print 565 ; Lowden v. Blakey, L. 
R. 22, Q. B. D. 2,2,2, 58 L. J. Q. B. 
617, 61 L. T. N. S. 251 ; Greenough 
V. Gaskell, i Myl. & K. 98, 39 Eng. 
Reprint 618; Cromack v. Heathcoate, 
2 Brod. & B. 4. 6 E. C. L. i ; Law- 
rence V. Campbell, 4 Drew. 485, 28 
L. J. N. S. Ch. 780, 5 Jur. N. S. 1071, 
62 Eng. Reprint 186; Lord Walsing- 
ham V. Goodricke, 3 Hare 122, 67 
Eng. Reprint 322; Manser v. Dix, 
24 L. J. N. S. Ch. 497, I Kay & J. 
451. I Jur. (N. S.) 466, 3 Eq. 650, 
69 Eng. Reprint 536; Boyd v. Petrie, 
20 L. T. N. S. 934; Eadie v. Addi- 
son, 52 L. J. N. S. Ch. 80, 47 L. T. 
N. S. 543; Mostyn v. West M. C. & 
L Co., 34 L. T. N. S. 531 ; Carpmael 
V. Powis, 9 Beav. 16, 50 Eng. R. 248; 
I Phil 687. 41 Eng. R. 794; affirmed 
15 L. J. N. S. Ch. 275; O'Shea v. 
Wood, 60 L. J. P. 83, 65 L. T. N. S. 
30; Reece v. Trye, 9 Beav. 316, 50 
Eng. Reprint 365; Penruddock v. 
Hammond, 11 Beav. 59, 50 Eng. Re- 
print 739; Calley v. Richards. 19 
Beav. 401, 52 Eng. Reprint 406; Jones 
V. Pugh, I Phil. 96, 12 bim. 470, n 
L. J. Ch. 323, 41 Eng. Reprint 567; 
Walker v. Wildman, 6 Madd. 47, 56 
Eng. Reprint 1007 ; Wilson v. N. & B. 
R.. L. R. 14 Eq. 477. 27 L. T. N. S. 
507; Turton v. Barber. L- R. 17 Eq. 
329, 43 L. J. Ch. 468. Contra. — 
Flight V. Robinson, 8 Beav. 22, 36, 



PRIVILEGED COMMUNICATIONS. 



281 



13 L. J. Ch. 42s, 8 Jur. 888, 50 Eng. 
Reprint 9; Wadsworth v. Hamshaw, 
2 Brod. & B. 2, 6 E. C. L. 2; Broad 
V. Pitt, 3 Car. & P. 518, 14 E. C. 
L. 4^3- 

Irish. — Rex v. Haydn, 2 Fox & 
S. (K. B.) 379. 

Canada. — Hamelyn Z'. White, 6 
Ont. Pr. 143, where the court de- 
clines to follow McDonald v. Put- 
nam, II Grant's Ch. Rep. 258. which 
announced the contrary doctrine, and 
follows Minet v. Morgan, L. R. 8 
Ch. 361, 42 L. J. Ch. 627, 28 L. T. 
N. S._ 573. 

United States. — Alexander v. 
United States, 138 U. S. 353. 

Alabama. — Crawford v. McKis- 
sack, I Port. 433 ; State v. Marshall, 
8 Ala. 302; Parish v. Gates, 29 
Ala. 254. 

Arkansas. — Bobo v. Bryson, 21 
Ark. 387, 76 Am. Dec. 406; Andrews 
Admx. V. Simms, 2,2> Ark. 771. 

Connecticut. — Brown v. Butler, yi 
Conn. 576, 42 Atl. 654. 

Illinois. — People v. Barker, 56 
111. 300. 

Indiana. — Borum v. Fonts, 15 
Ind. 50; Bowers' Admr. v. Briggs, 
20 Ind. 139 ; Bigler v. Reyher, 43 Ind. 
112; Oliver v. Pate, 43 Ind. 132. 

Kentucky. — Carter v. West, 93 
Ky. 211, 19 S. W. 592. 

Massachusetts. — Hatton v. Rob- 
inson, 14 Pick. 416, 25 Am. Dec. 415. 

Mississippi. — Crisler v. Garland, 
II Smed. & M. 136, 49 Am. Dec. 49; 
Jones V. State, 66 Miss. 380, 6 So. 
231, 14 Am. St. Rep. 570. 

Montana. — Davis v. Morgan, 19 
Mont. 141, 47 Pac. 793. 

Nebraska. — Brady v. State, 39 
Neb. 529, 58 N. W. 161. 

Nevada. — Gruber v. Baker, 20 
Nev. 453. 462. 2Z Pac. 858, 9 L. R. 
A. 302. 

Nczv Hampshire. — Chamberlain v. 
Davis, 33 N. H. 121, 131. 

Nezv York. — Bacon v. Frisbie, 80 
N. Y. 394, 36 Am. Rep. 627; Brit- 
ton V. Lorenz, 45 N. Y. 51 ; Carnes v. 
Piatt, 15 Abb. Pr. N. S. Z2,7; Gra- 
ham V. People, 62, Barb. 468, 483; 
Clark V. Richards, 3 E. D. Smith 89 ; 
Carnes v. Piatt, 15 Abb. Pr. N. S. 
337 ; Bartlett v. Bunn, 10 N. Y. Supp. 
210. 31 N. Y. St. 319; Gage v. Gage, 
13 App. Div. 565, 43 N. Y. Supp. 



810; Kaufman v. Rosenshine, 97 App. 
Div. 514, 90 N. Y. Supp. 205; Bank 
of Utica V. Mersereau, 3 Barb. Ch. 
528, 49 Am. Dec. 189; Pearsall v. 
Elmer, 5 Redf. 181; Kitz v. Buck- 
master, 45 App. Div. 283, 61 N. Y. 
Supp. 64. 

Contra, in New York Whiting 

V. Barney, 30 N. Y. 330, 86 Am. Dec. 
385 ; Rochester City Bank v. Suy- 
dam, 5 How. Pr. 254; Peck v. Wil- 
liams, 13 Abb. Pr. 68; Matter of 
Bellis & Milligan, 38 How. Pr. 79; 
McTavish v. Denning, Anthon 113; 
March v. Ludlum, 3 Sandf. Ch. 35, 49, 
recognizes the principle as applying 
" where there is a dispute, though no 
litigation actual or contemplated," 
but does not define the extent of 
the privilege. 

Pennsylvania. — Beltzhoover v. 

Blackstock, 3 Watts 20, 27 Am. Dec. 
330; Moore v. Bray, 10 Pa. St. 519. 

Tennessee. — McMannus v. State, 
2 Head 213 ; Lockhard v. Brodie, i 
Tenn. Ch. 384. 

Texas. — Slaven v. Wheeler, 58 
Tex. 23. 

Vermont. — Durkee v. Leland, 4 
Vt. 612. Compare Dixon z: Parme- 
lee, 2 Vt. 185. 

IVisconsiti. — Dudley z'. Beck, 3 
Wis. 274, 284. 

In Parker v. Carter, 4 Munf. (Va.) 
273, 6 Am. Dec. 513, F. had con- 
veyed certain property to his daugh- 
ter, free from the control of her hus- 
band or his creditors. The deed of 
conveyance was sought to be set 
aside by husband's creditors on the 
ground that the property conveyed 
had at the time of marriage been 
given to him by parol gift. The dep- 
osition of the attorney who drew the 
deed was taken. It was held that 
his testimony as to statements made 
to him when deed was drawn was 
not admissible. The court uses this 
language : " This court understands 
it to be the settled law, that counsel 
and attorneys ought not to be per- 
mitted to give evidence of facts im- 
parted to them by their clients, when 
acting in their professional charac- 
ter ; that they are considered as iden- 
tified with their' clients, and of ne- 
cessity intrusted with their secrets, 
which, therefore, without a danger- 
ous breach of confidence, cannot be 
revealed ; that this obligation of se- 

Vol. X 



282 



PRIVILEGED COMMUNICATIONS. 



crecy continues always, and is the 
privilege of the client, and not of the 
attorney. The court is also of opin- 
ion that this restriction is not con- 
fined to facts disclosed in relation to 
suits actually depending at the time, 
but extends to all cases in which a 
client applies, as aforesaid, to his 
counsel or attorney for aid in the 
hire of his profession. If the prin- 
ciple was confined to causes actually 
depending at the time, there would 
be no safety for a person consulting 
counsel as to the expediency of 
bringing suit or of compromising one 
which is contemplated to be brought 
against him. When such suit should 
be afterwards instituted, all his dis- 
closures previously made. . with a 
view to obtain counsel and avoid liti- 
gation, would be given in evidence 
against him. The same necessity ex- 
ists in both cases ; and there is in 
principle no difference between them." 

In Root V. Wright, 84 N. Y. 72, 
38 Am. Rep. 495. three persons, hav- 
ing made a verbal agreement, em- 
ployed an attorney to reduce it to 
writing. By advice of the attorney 
the agreement was changed. In an 
action between a third person and 
one of the parties to the agreement 
the attorney was permitted to tes- 
tify as to a conversation between 
himself and the parties to the agree- 
ment at the time it was drawn. 
Held, that the admission of this 
testimony was erroneous. The court 
says : " The rule that an attorney 
cannot disclose communications 
made to him by his clients, is not, 
as now understood, confined to 
communications made in contempla- 
tion of, or in the progress of an 
action or judicial proceeding, but ex- 
tends to communications in refer- 
ence to all matters which are the 
proper subjects of professional em- 
ployment." Citing Williams v. Fitch, 
18 N. Y. 546; Yates v. Olmsted, 56 
N. Y. 632. 

In Johnson v. Sullivan, 23 Mo. 
474, the court says : " Now from a 
careful examination of numerous 
authorities — decisions of the English 
and American Courts — we think the 
conclusion may be fairly drawn, that 
there is no necessity 'that any judi- 
cial proceedings should have been 
commenced or contemplated. It is 

Vol. X 



enough if the matter in hand, like- 
every other human transaction, may,^ 
by possibility, become the subject 
of judicial inquiry. Greenl. Ev. sec. 
240.' " 

In Foster v. Hall, 12 Pick. 
(Mass.) 89, 22 Am. Dec. 400, Shaw. 
C. J., uses this language : " The 
rule is not strictly confined to com- 
munications made for the purpose 
of enabling an attorney to conduct 
a cause in court, but does extend 
so as to include communications 
made by one to his legal adviser, 
whilst engaged and employed in that 
character, and when the obj,ect is 
to get his legal advice and opinion 
as to legal rights and obligations, 
although the purpose be to correct 
a defect of title by obtaining a re- 
lease, to avoid litigation by compro- 
mise ; to ascertain what acts are nec- 
essary to constitute a legal compli- 
ance with an obligation, and thus 
avoid a forfeiture or claim for dam- 
ages, or for other legal and proper 
purposes not connected with a suit 
in court." See also McLellan v. 
Longfellow, 32 Me. 494, 54 Am. Dec. 

599- 

Attorney Applying for Pension. 

Comnumications to an attorney by 
person for whom he is applying for 
a pension are privileged. Mutual 
L. Ins. Co. V. Selby, 72 Fed. 980. 
19 C. C. A. 331. 

Development of Rule The Eng- 
lish cases noted above as stating the 
rule to be contrary to that stated in 
the text are not cited to show an ex- 
isting conflict of authority upon this 
subject, but to illustrate the history 
of this principle. Early English 
cases limited the application of the 
rule to communications made with 
reference to litigation. A masterly 
exposition of the development of the 
rule on this subject in England will 
be found in 4 Wigmore on Evi- 
dence, sees 2294, 2295. In the case 
of Minet v. Morgan, above referred 
to Lord Chancellor Selborne re- 
views the English cases on this sub- 
ject, and concludes that privilege ex- 
tends to all cases in which a person 
seeks professional advice from a 
lawyer. The leading American case 
which collates and reviews English 
authorities on this subject is Foster 
V. Hall. 12 Pick. (Mass.) 89, 22 



PRIVILEGED CO MM UNICA TIONS. 



283. 



Am. Dec. 400, decided prior to 
Minet v. Morgan, in which the same 
conchision is reached. The first 
EngUsh cases Hmited the privilege 
to communications made in regard 
to, and after the commencement of 
the action in which they were of- 
ered to be proven. The rule was 
later extended to include communi- 
cations relating to and made in an- 
ticipation of the action in which 
they were offered. Again, the priv- 
ilege was so extended that commun- 
ications were held privileged, if re- 
lating to litigation, not only in the 
action concerning which they were 
made, but in any subsequent litiga- 
tion between the same parties and 
respecting the same subject-matter. 
Holmes v. Baddeley, i Phil. 476, 14 
L. J. Ch. 113, 9 Jur. 289. reversing 
6 Beav. 521, 41 Eng. Reprint 713. 
Further extensions applied the rule 
to communications which " related 
to a cause existing at the time of 
the communication, or then about 
to be commenced." (Williams z: 
Mudie, I Car. & P. 158. Ry. & M. 
34). It was later held that the priv- 
ilege applied to communications 
made in contemplation of a suit, or 
made after dispute, though not di- 
rectly with a view to litigation. In 
Cromack v. Heathcote, 2 Brod. & 
B. 4, 6 E. C. L. I, it was held that 
communications to an attorney in re- 
gard to the preparation of a deed 
were privileged, the judges stating 
that the rule was not limited to liti- 
gated matters. The rule in chanc- 
ery, applied in ruling upon applica- 
tions for discovery of documents, 
tmderwent a similar development. 
Minet v. Morgan has settled all 
doubt as to the extent of this rule, 
and is referred to in later English 
cases as finally settling the law on 
this subject. 

In Clagett v. Phillips. 2 Younge 
& C. 82, 7 Jur. 31, 63 Eng. Reprint 
36, it is said that communications 
are privileged if they relate to and 
were made in the course of the dis- 
pute which is the subject of the suit. 

In England it is held that com- 
munications between attorney and 
client relating to litigation are priv- 
ileged, not only in the case concern- 
ing which they were made, but in 
any subsequent litigation between 



the same parties respecting the same 
subject-matter. Thompson v. Falk, 
I Drew 21, 61 Eng. Reprint 359. 

In Bluck V. Galsworthy, 2 Giff. 
453, 3 L- T. 399, 66 Eng. Reprint 189, 
it is held that confidential statements 
made by a client to his legal adviser 
before the institution of any suit 
are not privileged, but that advice 
given in writing to client upon such 
statement is a document the produc- 
tion of which will not be compelled. 
To same general effect, see Beadon 
v. King, 17 Sim. 34, 13 Jur. 550, 
60 Eng. Reprint 1039. 

In Bolton v. Corporation of Liv- 
erpool, 3 Sim. 467, I L. J. Ch. (N. 
S.) 166; i' My. & K. 88, 57 Eng. 
Reprint 1073, the court holds that 
party to an action is entitled to an 
mspection of cases submitted by his 
opponent to counsel for opinion, but 
which were not prepared with refer- 
ence to the action in which discovery 
is sought. This case was appealed 
to the Lord Chancellor, and judg- 
ment affirmed, but this question not 
discussed. See .y. c. i Myl. & K. 88, 
39 Eng. Reprint 614. Similar opin- 
ion indicated in Beadon v. King. 17 
Sini. 34, 3 Jur. 550, 60 Eng. Re- 
print 1039. 

Distinction Between Protection 
Afforded to Clients and Solicitors. 
In MacDonald v. Putnam. 11 Grant 
Ch. Rep. (U. C.) 258, the court 
makes a distinction between client 
and attorney as to ante litem com- 
munications, holding that an attor- 
ney cannot be compelled to dis- 
close such communications, but that 
his client can be so compelled. The 
court reviews English decisions on 
the subject, and decides that client 
can be compelled to produce in evi- 
dence correspondence had with his 
attorneys in regard to matters which 
were not the subject of pending or 
contemplated litigation. McDonald 
z'. Putnam disapproved. See Hame- 
lyn V. Whyte, 6 Unt. Pr. (Can.) 143. 
See case of Radcliffe v. Fursman, 2 
Brown P. C. (Eng.) 514, commented 
upon and explained in Pearse v. 
Pearse, i De G. & S. 12, 16 L. J. 
Ch. 153, II Jur. 52, 63 Eng. Reprint 
950, and in Minet v. Morgan, L. R. 
8 Ch. 361. Further as to distinction 
between protection afforded to client 
and that afforded to attorney, see 

Vol. X 



284 



PRIVILEGED COMMUNICATIONS. 



K. Part Privileged, All Privileged. — If an attorney is ques" 
tioned in regard to a conversation part of which is admitted to have 
been confidential, but part of which is claimed to have been non- 
confidential, the entire conversation should be excluded.^^ 

11. What Matters Not Privileged. — Privilege does not extend 
to all facts connected with professional employment, nor to all 
knowledge obtained by attorney from his client, or in regard to his 
affairs, in rendering legal services. 

A. Existence of Relation Non-Privileged. — The fact that 



Greenlaw v. King, i Beav. 137, 8 
L. J. Ch. N. S. 92, 48 Eng. Reprint 
891. 

United States. — In a few cases 
in the United States it has been 
held that only such communications 
as were made in regard to litiga- 
tion are privileged. 

New York — From language used 
in opinion in McTavish v. Denning, 
Anthon 113, it would seem that the 
court was inclined to limit the rule 
to communications made concerning 
litigation. The court says : " He 
(attorney) is exempted from dis- 
closing any confidential communica- 
tions made to him as counsel in any 
cause then actually commenced or 
expected to be commenced." 

In Whiting v. Barney, 30 N. Y. 
330, 86 Am. Dec. 385, it is held 
that privilege extends to such com- 
munications only as relate to an ac- 
tion or other judicial proceeding 
pending or in contemplation. The 
court in this case states that the 
foundation of the rule of privilege 
was the principle that no man could 
be a witness against himself; that 
in early days suitors conducted their 
own cases ; that the increasing vol- 
ume and importance of litigation 
rendered the employment of at- 
torneys necessary, but that people 
hesitated to employ them, as their 
communications could be compelled 
to be disclosed, and parties, there- 
fore, compelled to testify against 
themselves, and that to encourage 
the employment of attorneys, the 
rule as to privileged communications 
was adopted. 

After a review of English cases 
on the subject the court concludes 
that " the protection should only be 
held to extend to such communica- 



tions as have relation to some suit 
or other judicial proceeding either 
existing or contemplated." 

In Rochester City Bank v. Suy- 
dam, 5 How. Pr. (N. Y.) 254, the 
supreme court of New York applies 
the same reasoning as that applied 
in Whiting v. Barney, and reaches 
the same conclusion as to the law. 

In Peck V. Williams. 13 Abb. Pr. 
(N. Y.) 68, it was held that docu- 
ments in the hands of an attorney 
are not privileged unless a contro- 
versy was, at least, expected to arise 
out of the transaction in connection 
with which they were delivered. See 
also Matter of Bellis & iVIilligan, 38 
How. Pr. (N. Y.) 79, in which 
Whiting V. Barney is cited in sup- 
port of the proposition that, to be 
privileged, communications must be 
limited to litigation pending or con- 
templated. Whiting V. Barney is 
criticized in Brand v. Brand, 39 
How. Pr. (N. Y.) 193, and in Gra- 
ham V. People, 63 Barb. (N. Y.) 
468, 483, and later decisions by the 
court of appeals have refused to 
follow it on this question. 

From language used in the opin- 
ion in Dixon v. Parmelee, 2 Vt. 185, 
it would seem that the supreme 
court of Vermont inclined to limit 
the rule to cases of pending or con- 
templated litigation. But the testi- 
mony there in question was admis- 
sible on another ground. See note 
42, ante. 

In Durkee v. Leland. 4 Vt. 612, 
the supreme court of Vermont rec- 
ognizes the rule as stated in the text. 

69. Maas r. Bloch. 7 Ind. 202; 
Churton z\ Frewen, 2 Drew & S. 
390, 62 Eng. Reprint 669. See opin- 
ion in Lodge z: Pritchard, 4 De G. 
& S. 587, 64 Eng. Reprint 969- 



Vol. X 



PRIVILEGED CO MM UNICA TIOKS. 



285 



the relation of attorney and client exists between certain persons is 
not privileged.'" 

Time of Retainer Privileged. — It has been held that an attorney 
cannot be questioned concerning the time when he was retained.'^ 

B. By Whom Attorney Employed. — Attorney may be re- 
quired to state by whom he was employed."- But not if his answer 
would involve a disclosure of the nature of the transaction in which 
he was engaged for his client.'^ 

C. Fact That Communication Was Made. — Client can be 
compelled to testify that he made communications to his attorney.^* 

D. Time of Making Communication. — Client may be com- 
pelled to state at what time he made a communication, the making 
of which he had testified to." 

E. Whether Certain Subject Discussed. — It has been held 
that an attorney will not be required to state whether or not he dis- 
cussed with his client the question whether or not the execution of 
a certain deed prepared by attorney for client imposed personal li- 
ability upon the latter.''^ 

F. Ordinary Observation. — Knowledge of his client's affairs 



70. Existence of Relation Not 
Privileged. _ Mobile & :\I. R. Co. v. 
Yeates, 67 Ala. 164; Harriman v. 
Jones, 58 N. H. 328; Brown v. Pay- 
son, 6 N. H. 443 ; Beckwith v. Ben- 
ner, 6 Car. & P. (Eng.) 681; For- 
shaw V. Lewis, 10 Exch. Hurlst. & 
G. (Eng.) 712; Ex parte The As- 
signee, 27 L. T. N. S. (Eng.) 460. 
See remarks of Justice Story in 
Chirac v. Reinicker, 11 Wheat. (U. 
S.) 280. 294. 

Fact of Employment White v. 

State, 86 Ala. 69, 5 So. 674; Hamp- 
ton V. Boylan, 46 Hun (N. Y.) 151; 
Beeson v. Beeson, 9 Pa. St. 279 ; 
In re Seip's Estate, 163 Pa. St. 423, 
432, 30 Atl. 226, 43 Am. St. Rep. 803 ; 
Eickman v. Troll, 29 Minn. 124, 12 
N. W. 347. 

Through . whose agency, in what 
manner, and at what time employed. 
Shanghnessy v. Fogg, 15 La. Ann. 
330. 

71. Foote V. Hayne, i Car. & P. 
545, II E. C. L. 466. See remarks 
of Parke, B. on this subiect in For- 
shaw V. Lewis, 10 Exch. (Hurlst. & 
G.) 712. 

72. United States. — VmitA States 
V. Lee, 107 Fed. 702. 

Alabama. — Moh\\& & M. R. Co. 
V. Yeates, 67 Ala. 164. 

California. — Satterlee v. Bliss, 36 
Cal. 489. 



Connecticut. — Appeal of Turner, 
72 Conn. 305, 318, 44 Atl. 310. 

Iowa. — Wyland v. Griffith, 96 
Iowa 24, 64 N. W. 673. 

Louisiana. — Shanghnessy v. Fogg, 
15 La. Ann. 330. 

New Hampshire. — Brown v. Pay- 
son, 6 N. H. 443 ; Harriman v. 
Jones, 58 N. H. 328. 

Pennsylvania. — In re Seip's Es- 
tate, 163" Pa. St. 423, 30 Atl. 226, 43 
Am. St. Rep. 803. 

Washington. — Stanley v. Stanley, 
27 Wash. 570, 68 Pac. 187. 

Contra. — Jones v. Pugh, i Phil. 
96, 41 Eng. Reprint 567, 12 Sim. 
470, 59 Eng. Reprint 1 213; Levy v. 
Pope, Moody & M. 410, 22 E. C. L. 

343- 

73. In re Shawmut Min. Co. 94 
App. Div. 156, 87 N. Y. Supp. 1059. 

74. Herman v. Schlesinger, 114 
W^is. 382, 90 N. W. 460, 91 Am. 
St. Rep. 922. In this case it is 
held that client may be conipelled 
to state whether or not his attorneys 
interrogated him as to certain mat- 
ters, and their questions and his 
answers were reduced to writing. 

75. Tibbet v. Sue, 125 Cal. 544- 
58 Pac. 160. 

76. Rogers v. Lyon, 64 Barb. (N. 
Y.) 373. In this case the issue was: 
Did a certain deed impose a personal 
liability upon grantors— defendants? 

Vol. X 



286 



PRIVILEGED COMMUNICATIONS. 



not confidentially communicated to an attorney is not privileged, 
although acquired during the existence of their relationship. Con- 
sequently, knowledge of client's affairs which attorney acquired 
by exercise of ordinary observation is not privileged.'^'' Nor is 



Defendants claimed that the clause 
creating personal liability was in- 
serted in the deed without their 
knowledge. Defendants' attorney was 
called as a witness by plain- 
tiff and asked, "Was the ques- 
tion up, then, as to whether these 
parties would be personally liable on 
that deed?" Also, "Was the deed 
read over to them?" Questions ob- 
jected to as calling for privileged 
communications. Objections over- 
ruled. On appeal the action of the 
court in overruling objections was 
held to constitute error. Compare 
In re Aspinwall, 7 Ben. 433, 2 Fed. 
Cas. No. 591, where it is held that 
attorney may be required to state 
whether or not client's indebtedness 
to a certain person was mentioned 
by client during consultation in re- 
gard to client's bankruptcy; also 
whether subject of client's inability 
to meet his obligations was dis- 
cussed. 

77. England. — Eicke v. Nokes, i 
M. & M. 303, 22 E. C. L. 314; 
Studdy V. Sanders, 2 Dowl. & Ryl. 
347, 16 E. L. L. 93- 

Irish. — O'Gorman v. M'Namara, 
Hayes Rep. 174. 

Alabama. — Johnson v. Cunning- 
ham. I Ala. 249. 

California. — Gallagher v. William- 
son, 23 Cal. 331, 83 Am. Dec. 114. 

Colorado. — Cole v. Cheovenda, 4 
Colo. 17. 

///;■» oJ.y. — Funk v. Mohr, 185 111. 
395. 57 N. E. 2. 

Louisiana. — Reynolds v. Rowley, 
3 Rob. 201, 38 Am. Dec. 233. 

Maryland. — Fulton v.' Mac- 
Cracken, 18 Md. 528, 81 Am. Dec. 
620. 

Massachusetts. — Foster v. Hall, 
12 Pick. 89, 22 Am. Dec. 400; Hat- 
ton V. Robinson, 14 Pick, 416, 25 
Am. Dec. 415. 

Nezu York. — Baker v. Arnold, i 
Caines 258; Jackson v. M'Vey. 18 
Johns. 330; Coveney v. Tannahill, i 
Hill 33, 37 Am. Dec. 287; Crosby v. 
Berger, 11 Paige 377, 42 Am. 
Dec. 117. 

Vol. X 



Ohio. — Rogers v. Dare, Wright 
136. 

Tennessee. — Lang v. Ingalls Zinc 
Co. (Tenn. Ch. App.) 49 S. W. 288. 

Texas. — Rahm v. State, 30 Tex. 
App. 310, 17 S. W. 416, 28 Am. St. 
Rep. 911. 

Vermont. — State v. Fitzgerald. 68 
Vt. 125, 34 Atl. 429. 

Condition or Appearance of Docu- 
ment " As when the question is 

about the erasure in a deed or will, 
the attorney may be asked whether 
he had ever seen such deed or will 
in other plight, for that is a fact 
in his own knowledge, though he is 
not to discover any confessions made 
by his client on such head." Brandt 
V. Klein, 17 Johns. (N. Y.) 335. In 
this case an attorney was called as 
a witness to show that a certain will 
was in his possession and in court, 
but refused to answer, on the ground 
that his knowledge as to the exis- 
tence and situation of the will was 
derived from what had been en- 
trusted to him by his client. The 
trial court held that the attorney 
must answer the question. On ap- 
peal this ruling was held correct. 
Thus, an attorney may testify to the 
physical condition or appearance of 
a document at a given time, although 
the document may have been pre- 
pared by him for a client, or de- 
livered to him by a client. Stoney v. 
McNeil, Harp. L. (S. C.) 557, 18 
Am. Dec. 666. Or as to whether or 
not there had been an endorsement 
or memorandum on the back of a 
certain deed. Crawford v. McKis- 
sack, I Port. (Ala.) 433. 

Mental Condition Attorney 

may testify concerning client's mental 
condition at a certain time. Wicks 
V. Dean, 103 Ky. 69, 44 S. W. 397; 
Daniel v. Daniel 39 Pa. St. 191, 210; 
although his observation was made 
while receiving client's instructions 
as to the performance of professional 
service. Wicks v. Dean. 103 Ky. 6q, 
44 S. W. 397- 

" If a lawyer learns from profes- 



PRIVILEGED COMMUNICATIONS. 287 

Tcnowledge acquired from the mere fact of his having been brought 
to a certain place by the circumstance of being attorney for a 
certain person, but which knowledge might have been obtained by 
any person there present.^^ 

G. Facts Non-Confidential. — Nor his knowledge of ordinary 
facts, to the comprehension of professional learning and skill were 
not necessary, and which he could have acquired without the op- 
portunities afforded by the relation. 

Facts Not Confidential in Nature are not privileged."'^ 

a. Name of Client. — Thus, attorney may be required to give 
the name of his client, and state whether a certain name indicates 
a real or fictitious person.^*' 

b. Identity. — He may also testify as to identity of client, and 
fact that a certain name designated his client.^^ But he cannot be 
examined in regard to communications with client in order to show 
identity.^- 

c. Residence. — He may also be required to state his client's 
residence.*' 

(1.) When Knowledge of Residence Privileged, but not if his client's 
address has been communicated as a matter of professional confi- 
dence, and client and attorney are not engaged in the commission 
of an illegal act.®'* 

(2.) Purpose of Inquiring as to Residence, nor if information is 
sought for the purpose of serving client with process in criminal 
proceeding ;^^ or for the purpose of serving him with subpoena 
duces tecuni.^^ 

sional visits that he has a fool for a & E. 43i ". Home Fire Ins. Co. of 
client, whether he acquires the knowl- Omaha v. Berg, 46 Neb. 600; 
edge by the want of intelligent an- Schaaf v. Fries, 77 Mo. App. 346. 
swers. or by suidy of phrenological 80. United States v. Lee, 107 Fed. 
developments, the fact is competent 702 ; Brown v. Payson, 6 N. H. 443 ; 
evidence in a proper case, and no Martin v. Anderson, 21 Ga. 301 ; 
rule of law forbids the lawyef from Ex parte Gfeller, 178 Mo. 248, 77 S. 
delivering it." Daniel v. Daniel, 39 W. 552; Parkhurst v. Lowten, 2 
Pa. St. 191. Swanst. (Eng.) 194, 36 Eng. Re- 
Appearance of Client. — Daniel r. print 589; Bursill v. Tanner, 16 Q. 
Daniel, 39 Pa. St. 191. B. Div. i. 

Handwriting. — An attorney is a 81, Com. v. Bacon, 135 Mass. 

competent witness to prove his client's S21 ; Studdy v. Sanders. 2 Dowl. & 

handwriting, although his knowledge Rvl. 347. 16 E. C. L. 93- 

was acquired while acting as at- 82. Parkins v. Hawkshaw, 2 

torney. Johnson v. Daverne, 19 Stark. 239, 3 E. C. L. 333- 

Johns. (N. Y.) 134, 10 Am. Dec. 198. 83. Ex parte Campbell, 5 Ch. App. 

Entry in Client's Book Attor- 703, 23 L. T. N. S. 289; Cox v. Boc- 

ney may testify whether or not a kett, 18 C. B. (N. S.) 239. 34 L. J. 

certain entry was shown by his N. S. C. P. 125, 11 L. T. 629; Alden 

client's books at a stated time. v. Goddard, 73 Me. 345. 

Brown v. Foster, i Hurlst. & N. 84. In re Arnott, 60 L. T. N. S. 

(Eng.) 736, 26 L. J. N. S. C. L. 249. (Eng.) 109. 

78. Greenough v. Gaskell, I ]\Ivl. 85. Harris v. Holler, 7 D. & L. 
& K. 98, 39 Eng. Reprint 618. 319. 19 L. J. N. S. Q. B. 62. 

79. Cobden v. Kendrick. 4 Durnf. " 86. Heath v. Crealock. L. R. 15 

Vol. X 



288 



PRIVILEGED CO MM UNICA TIONS. 



d. Handwriting. — He may also be required to give testimony to- 
prove his client's handwriting.^^ 

e. Location and Character of Estate, or show the character and 
location of the estate of a deceased client.^^ 

H. Sources Othep Than Client. — Nor does the privilege 
extend to knowledge derived from sources other than client, al- 
though acquired while the attorney is engaged in the conduct of 
his client's business.^® 



Eq. 257, 42 L. J. N. S. Ch. 455, 28 
L. T. loi. 

87. Gower v. Emery, 18 Me. 79; 
Johnson v. Daverne, 19 Johns. (N. 
Y.) 134, 10 Am. Dec. 198; HoUhau- 
sen V. Pondir, 23 Jones & S. (N. 
Y.) 73; Thomson v. Perkins, 39 App. 
Div. 656, 57 N. Y. Supp. 810; Oliver 
V. Cameron, Mc Arthur & M. (D. C.) 
237; Hurd V. Moring, i Car. & P. 
372, II E. C. L. 425; Bawles v. 
Stewart, i Sch. & L. (Irish) 209,226. 

88. King V. Ashley, 96 App. Div. 
143, 89 N. Y. Supp. 482, aMnncd 179 
N. Y. 281, 72 N. E. 106. Ex parte 
Gfeller, 178 Mo. 248, 269. 

89. England. — Brown v. Foster, 

1 Hurlst. & N. 736, 26 L. J. N. S. C. 
L. 249; Bulstrod V. Letchmere, 
(1676) 2 Free. Ch. 5 (case 4), 22 
Eng. Reprint 1019; Ford v. Tennant, 
32 Beav. 162, 32 L. J. N. S. Ch. 465, 
7 L. T. 733. 9 Jur. (N. S.) 292, 55 
Eng. Reprint 63; Marsh v. Keith, i 
Drew. & S. 342, 30 L. J. Ch. 127, 3 
L. T. 498. 62 Eng. Reprint 410; 
Spenceley v. Schulenburgh, 7 East 
357; Dwyer v. Collins, 7 Exch. 
(Wels. H. & G.) 639; Desborough v. 
Rawlins, 3 Myl. & C. 515. 40 Eng. 
Reprint 1025; Sawyer v. Birchmore, 
3 Myl. & K. 572, 4 L. J. Ch. (N. S.) 
249, 40 Eng. Reprint 218. 

United States. — Lessee of Rhoades 
v. Selin, 4 Wash. C. C. 715; -^'^ re 
O'Donohoe, 18 Fed. Cas. No. io,43S, 

2 Hask. 17, 7 Fed. Cas. No. 3.990; 
Randolph v. Quidnick Co., 23 Fed. 
278; General Elec. Co. v. Jonathan 
Clark & Sons Co., 108 Fed. 170. 

Alabama. — Kling v. Tunstall, 124 
Ala. 268, 27 So. 420. 

California. — Gallagher v. William- 
son. 23 Cal. 331, 83 Am. Dec. 114; 
Hunter v. Watson, 12 Cal. 363, 73 
Am. Dec. 543 ; Sharon v. Sharon, 79 
Cal. 633, 678, 22 Pac. 26, 131. 

Vol. X 



Georgia. — Skellie v. James. 81 Ga. 
419, 8 S. E. 607. 

///f»o/.y. — ChiUicothe F. R. & B. 
Co. V. Jameson. 48 111. 281. 

Minnesota. — Davis v. New York. 
O. & W. R. Co., 70 Minn. 37^ 72 N. 
W. 823. 

AVw Hampshire. — Patten v. 
Moor, 29 N. H. 163. 

New York. — Bogert v. Bogert. 2 
Edw. Ch. 399. 

Pennsylvania. — Barnes v. M'Clin- 
ton, 3 Pen. & W. 67, 23 Am. Dec. 62. 

South Carolina. — Stoney v. Mc- 
Neil, Harp. L. 557, 18 Am. Dec. 666. 

Attorney may produce in evidence 
abstract of deeds, it appearing that 
the abstract was delivered to him by 
attorney for person with whom his 
client had a business transaction. 
Doe d. Earl of Egremont v. Lang- 
don, 12 Ad. & El. N. S. 711, 64 E. C. 
L. 710. 

King V. Ashley, 96 App. Div. 143, 
89 N. Y. Supp. 482, s. c. affirmed 179 
N. Y. 281, 72 N. E. 106. In this, 
case it was held that an attorney 
could be compelled to state the char- 
acter and location of the estate of 
a deceased client, it appearing that 
his information was obtained by his 
own investigations, and not through 
communications from client. 

Act of Official — Attorney may 
show official action of court clerk in 
regard to paper placed in his hands 
by attorney in the course of an ac- 
tion. Swaim V. Humphreys, 42 111. 
App. 370. 

" The privilege only extends to in- 
formation derived from his client, as. 
such, either by oral communications, 
or from books or papers shown to 
him by his client, or placed in his 
hands in his character of attorney 
or counsel. Information derived 
from other persons or other sources, 
although such information is derived 



PRIVILEGED COMMUNICA TIONS. 



289 



Own Knowledge. — An attorney may testify to facts concerning 
his client which he knows of his own knowledge.'-'" 

Notice Served by Third Person. — Attorney may prove the contents 
of a written notice served on him by third person, although re- 
lating to client's business."^ 

Letter From Third Person. — He may also be compelled to produce 
letter written to him by third person.^- 

Communications With Client's Adversary. — He may also prove com- 
munications between himself and client's adversary in the action.-'^ 

Other Party to Transaction, or between himself and person with 
w'hom he transacts business for his client.'** 



or obtained while acting as attorney 
or counsel, is not privileged. The ob- 
ject of the rule, protecting privi- 
leged communications from being dis- 
closed by the attorney or counsel, 
is to secure to parties who have con- 
fided the facts of their cases to their 
professional advisers, as such, the 
benefit of secrecy in relation to such 
communications, so that the client 
may disclose the whole of his case 
to his professional adviser, without 
any danger that the facts thus com- 
municated to his attorney or counsel 
will be used in evidence against him, 
without his own consent. But the 
principle of the rule does not apply 
to the discovery of facts within the 
knowledge of the attorney or coun- 
sel, which were not communicated 
or confided to him by his client, al- 
though he became acquainted with 
such facts while engaged in his pro- 
fessional duty as the attorney or 
counsel of his client." Crosby v. 
Berger, ii Paige (N. Y.) 377, 42 Am. 
Dec. 117, a-fHrming s. c. 4 Edw. Ch. 

254- 

Name of Person Delivering Paper. 

An attorney may testify as to name 
of person from whom a document 
was received, although the document 
be used in conduct of a case con- 
ducted by attorney, it not appearing 
that it was received from the client 
or his agent. Reynolds v. Rowley, 3 
Rob. (La.) 201. 38 Am. Dec. 233. 

Whence Papers Obtained — In 
Reynolds v. Rowley, 3 Rob. (La.) 
201, 38 Am. Dec. 233, plaintiff's at- 
torney was asked where he had ob- 
tained certain vouchers which had 
been given him. and which were used 
in support of plaintiff's case. He de- 
clined to answer, on the ground that 



19 



he knew nothing but what had been 
communicated to him in professional 
confidence. The court sustained 
him. Defendant excepted. It was 
shown that the attorney did not re- 
ceive the papers from plaintiff, nor 
from one of plaintiff's agents, and 
it did not appear that he had re- 
ceived them from another agent. 
Held, that as the papers had not 
been received from client or his 
agent the name of the person de- 
livering them could not be a pro- 
fessional secret. 

90. Attorney's Own Knowledge. 
Hebbard v. Haughian, 70 X. Y. 54, 
62, cited and followed in Brennan v. 
Hall, 59 Hun. 583, 14 N. Y. Supp. 
864; Gage V. Gage. 13 App. Div. 
565, 43 N. Y. Supp. 810; Heister v. 
Davis. 3 Yeates (Pa.) 4. 

91. Barnes v. M'Clinton, 3 Pen. & 
W. (Pa.) 67, 23 Am. Dec. 62. 

92. Sawyer v. Birchmore. 3 Mvl. 
& K. 572, 4 L. J. Ch. (N. S.) 249, 40 
Eng. Reprint 218; Ford v. Tennant, 
32 Beav. 162, 55 Eng. Reprint 63. 32 
L. J. N. S. Ch. 465. 7 L. T. N. S. 733. 

93. Hill V. EllioU, 5 Car. & P. 
436. 24 E. C. L. 399- 

94. England. — M a r s t o n v. 
Downes, 6 Car. & P. 381, 25 E. C. 
L. 448. 

United States. — Randolph v. 
Quidnick Co., 23 Fed. 278; Brown 
V. Grove, 80 Fed. 564, 25 C. C. A. 
644. 

Dclazvare. — Jolls z\ Keegan, 4 
Pen. 21, 55 Atl. 340. 

Missouri. — Gerhardt v. Tucker, 
187 AIo. 46. 85 S. W. 552. 

Nezv York. — Woodruff v. Hur- 
son, 32 Barb. 557. 563; In re Mellen. 
63 Hun 632, 18 N. Y. Supp. 515. 

Tennessee. — Henry v. Nubert 

Vol. X 



290 



PRIVILEGED COMMUNICATIONS. 



Attorney for Such Person. — Or between himself and the attorney 
for such person. '-^^ 

Information From Other Sources and Client. — The mere fact that 
cHent has made a confidential communication to his solicitor does 
not protect the latter from disclosing the matter communicated, 
if he had acquired the same knowledge before or after such con- 
fidential communication from other sources. The fact that the 
attorney had made confidential communications to him does not 
merge the other sources of information.-'" 

Knowledge Acquired by Ordinary Observation and From Privileged 
Source. — It has been held that if discover}' is sought of matters of 
fact patent to the senses, it must be made, although the disclosure 
involved the disclosing of confidential communications.^^ 

" Matter of Fact " and Privileged Communication. — As to difference 
between calling upon a person to answer as to matters of fact and 
being called to answer as to matters of confidential communica- 
tions, see cases cited in note.^® 

I. Acts of Attorney or Client. — Privilege does not extend to 
acts done by client or attorney.^^ 



(Tenn. Ch. App.), 35 S. W. 444; 
Cunimings v. Irvin (Tenn. Ch. 
App.), 59 S. W. 153- 

Virginia. — Hall v. Rixey, 84 Va. 
790. 6 S. E. 215. 

Wisconsin. — Herman v. 'Schles- 
inger, 114 Wis. 382, 90 N. W. 460, 
91 Am. St. Rep. 922. 

95. Ford V. Tennant, 32 Beav. 
162, 32 L. J. N. S. Ch. 465, 7 L. 
T. 733, 9 Jur. (N. S.) 292, 55 Eng. 
Reprint 63, 32 L. J. N. S. Ch. 465, 
7 L. T. N. S. 733; Schaaf v. Fries, 
77 Mo. App. 346, 359. 

96. Lewis V. Pennington, 29 L. 
J. N. S. Ch. 670, 6 Jur. (N. S.) 478. 

97. Canadian Pac. R. Co. z: Con- 
mee, 11 Ont. Pr. (Can.) 297. The 
privilege claimed in this case related 
to reports of agents to principal 
made for purpose of litigation. The 
court cites cases involving privi- 
lege of communication between at- 
torney and client. The court says : 
" What is sought is information as 
to the matters of fact patent to the 
senses on which the company seek 
to recover the moneys paid by them. 
This may involve the disclosing of 
matters of fact derived from priv- 
ileged communications, but it is no 
breach of the rule which protects 
documents so privil