Stuyvesant v. Peckham

Headnote

an^ c¡^ent projes„ sional confidence. Evidence. Witness.

Where a solicitor, who had been employed to foreclose a mortgage, was asked, as a witness before an examiner, whether he had received any instructions from the complainants, his clients, as to the sale thereunder and the amount to be bid ? and he demurred to the question as involving a breach of professional confidence : Held to be within the rule and that he was not bound to answer.

Mr. Cornelius Bogert, as solicitor, had been employed to foreclose a mortgage. He was examined as a witness before one of the examiners; and this question, among others, was put to him : “ Did you, previous to the said thirtieth day of July, one thousand eight hundred and thirty-nine, receive any written instructions in relation to the said sale and the amount to be bid by you thereat from the said complainant 1” The opposing counsel objected to the question ; and the examiner would not allow it to be put. The court was moved ; and the vice-chancellor directed that the examiner should put the question and take down the answer, unless the witness or the defendants, in the name and behalf of the witness, should demur ; and in case the said witness should demur thereto or the same should be demurred to in the name of the witness, then the examiner was directed to suspend the examination until the decision of the court.

The question was accordingly afterwards put; and the witness, Mr. Bogert, demurred—saying : “ I demur to the question, considering it a professional secret, confided to me by my clients; and I decline answering the question on that ground.”

Motion now made to compel the witness to answer the question.