Majority
p. 265Brandt, ex dem. Van Cortlandt and others, against Klein.
Headnote
Though an at* IjVVanrioVbe compelled to Jj¡. ’0⅛“ ⅛,.®) entrusted *" ⅛ disdoseitsdate ⅛ e° mayS' ⅛ callcd as a ⅛"' existe™'^ ¡“ll sTas^entitle lhe opposite ,⅛,⅛⅛⅞ to prod«£® (jW lhe tice for that jmr-PHSe; l0., ?IVB 0fits contents,An admission recita! of a fj*®*1,0^™® d an action of ejectment, is evidence against all of them, as he could not be called as a witness, and there was a com-mun'd v of interest among them.
THIS was an action of ejectment for land in Hoosick patent, tried at the Rensselaer circuit, in December, 1818.
The plaintiffs lessors having deduced a title to the premises from Jacobus Van Cortlandt, one of the original patentees, in 1688; the defendant’s counsel called on the plaintiffs counsel to produce the will of James Van Cortlandt, one of the anees-tors of the lessors, and through *whom they derived a title, which he refused to do. The defendant’s counsel then handed to him a written notice to produce it. It was objected that the notice was not sufficient, as it was not shown that the will was in Troy, (the place of trial.) The defendant’s counsel then called on the plaintiffs counsel, as a witness, to prove that the will was in his possession and in court; but the plaintiffs counsel refused to answer the question, alleging that his knowledge as to the existence and situation of the will was derived from what had been entrusted to him as counsel for the lessors of the plaintiff in the cause. The judge ruled that the counsel must answer the question, and he there-unoo testified, that the will was in his hands, in court, but refused to produce it. lhe judge then ruled that parol evidence might be given of its contents. To show
p. 266
the contents of the will, the defendant’s counsel offered in evjdence a deed, dated October 1st, 1816, executed by Augustus Van Cortlandt, one of the lessors, as surviving executor ^ames Van Cortlandt, for part of lot No. 43. in Hoosick patent, which had been duly acknowledged and proved, and which contained a recital of the will of James Van Cortlandt, dated the 23d of March, 1781. The plaintiff’s counsel objected to the admission of the deed in evidence ; but the judge overruled the objection, stating that, under the circumstances of the case, the deed and the recitals therein contained ought to go to the jury, as containing the admissions of one of the lessors of the plaintiff, that James Van Cortlandt, under whom he claimed, had made a will, and of the contents of that will, and of an outstanding title in Elizabeth Van Cortlandt, on the day of the demise laid in the plaintiff’s declaration ; and by which the other lessors were bound, unless they proved that the recital or admissions were not true in fact; and the counsel for the plaintiff, not attempting to disprove the truth of the recitals or admissions contained in the deed, the judge directed the plaintiff to be nonsuited.
A motion was made to set aside the nonsuit, and for a new trial.
Mitchell, for the plaintiff.
1. The counsel for the plaintiff #ought not to have been compelled to testify as to the existence or situation of the will of James Van Cortlandt. The privilege of a counsel or attorney of not being examined as to any matters communicated to him while engaged in his professional capacity, is the privilege of the client, not of the counsel or attorney. (.Phillips’s Law of Ev. 103.) The judge, in overruling the objection, relied on the case of Baker v. Arnold. (1 Caines’s Hep. 258.) That case, however, if examined, does not warrant the principle stated in the marginal note to the report, and adopted in the Digest. ( Johns. Dig. 215.) Thompson, J., was decidedly of opinion, that the attorney was not bound to communicate any facts, the knowledge of which he had derived from his client in relation to his business. Livingston, J., thought the judge right in overruling the inquiry made of the attorney, after he had declared that all his knowledge was derived from the confidential communications of his client; and though Radcliff, J., was of a different opinion, yet the other two judges, Kent, J., and Lewis, Ch. J., are wholly silent on this point.
2. The deed containing the recitals which were offered, was not competent evidence of the will. It appeared by the endorsement on it, that it was on record, and that the probate was in New- York, and being recorded before the 1 st of January, 1781, an exemplification of it, by the act concerning wills, (1 N. R. L. 364. sess. 36. ch. 23. s. 21. 2 Rev. Stat. 59. § 20.) was good evidence. (Jackson, ex dem. Golden, v. Walsh,
p. 267
14 Johns. Rep. 407 .) Again ; the existence of the will was not shown ; nor was there any proof of it, nor of any holding under it. The party must first prove the existence of an instrument, before he is allowed to give parol evidence of its contents. Where there • is a subscribing witness to a deed, proof of the confession of the obligor or grantor is not sufficient,, but the subscribing witness must be produced ; and in case he is dead or out of the state, títere must be proof of his handwriting. ( 4 Johns. Rep. 477 . 2 Johns. Rep. 382 . 3 Johns. Cas. 101 .)
3. But if the deed was admissible, it could only prove a title out of Augustus Van Cortlandi, not out of the other lessors. Here were joint and several demises ; and this %ourt, in such case, will allow a recovery on the separate demise of one of the lessors.
Huntington, contra.
Though an attorney cannot be compelled to testify relative to the estate, or affairs of his client, yet he is compellable to answer whether there are any deeds, where they are, to whom they were delivered, when he last saw them, and in whose custody they are, though he is not bound to produce the deeds, or to discover the dates or contents of them. (1 Maddock’s Ch. 174. 1 Haris Ch. i'r. 290.) This is the rule in the court of chancery, and in matters of evidence the rules of the courts of law and of equity are the same. In Baker v. Arnold, it was decided, that an attorney in a suit show the state of the instrument at the his hands. The privilege of the client attorney giving evidence of the date or may be examined to time it was put into extends only to the contents of the deed.
As to the competency of the evidence ; the admissions of a party against his interest are good evidence; and where the suit is against several persons who have a joint interest in the decision, a declaration made fay one of them, as to a material fact within his knowledge, is evidence, not only against him, but against all the other parties who are jointly interested with him in the suit. {Phillips’s Law of Év. 73,74. 11 East, 539.) So, a release by one of two joint, plaintiffs is a bar to the action. ( 13 Johns. Rep. 236 . 14 Johns. Rep. 172 .)
The case of Baker and another v. Arnold (1 Gaines’s Rep. 258.) is not an authority, either way, on the question as to what facts an attorney or counsel may testify, when called on as a witness. The judges appear to have been much divided, and no clear and satisfactory opinion on this point can be collected from the case.
The general rule is, that an attorney is not to be compelled to disclose confidential communications between him and his client, made in the course of his professional business. But as to collateral matters, the knowledge of which the attorney
p. 268
^ias acc|fored by personal observation, and which were not communicated as a secret, or as to *such collateral facts, which may be material lor the other party, and the answer to which does not betray any confidential communication between them, the attorney may be compelled to answer,[1] As where the question is about the razure 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. (Bull. N. P. 284.) In Kingston v. Gale, (Finch's Rep. 259. 8 Viner’s Ab. 548.) where there was a bill for a discovery of a deed and the contents of it, in the custody of the defendant who was attorney, and the defendant demurred to the bill, for that he was an attorney at law, and was intrusted by his client with the deed, the court were of opinion, that there ought to be a discovery whether there was such a deed, where the same then was, to whom delivered, and when the defendant last saw the same, and in whose custody; but that he was not to produce the deed, or discover the date or contents of it. Maddock (1 Madd. Ch. 174.) cites this case as good law. Phillips, in his Treatise on Evidence, (p. 103. to 105.) lays down the rule as stated by Butter. The court would feel very great reluctance to innovate on a rule of evidence founded in so much good sense and propriety, as that which prevents a disclosure by a person standing in the relation of an attorney or counsellor, from disclosing communications confidentially made to him in his professional capacity ; but it does not appear to us, that, to oblige the attorney to answer merely as to the existence of an instrument, or where it is to be found, would infringe that rule. The party himself might, by a bill in chancery for that purpose, be culled on to discover whether he has not in his possession a deed or instrument, which is necessary to the other party in the prosecution or defence of his rights. (1 .Madd.. Ch. 160—174.)
The admissions in the recital contained in the deed of one of the lessors, was evidence in the cause against all of them ; for he could not be called as a witness, and they have a comrrm-nity of interest. (Phillips's Ev. 71, 72, 73. 11 East, *588, 589. Gilb. Ev. 51. 1 Maule & Sel. 249.) The motion for a new trial must be denied.
Motion denied.
(a) (a) Johnson v. Daverne, 19 Johns. Rep. 134 . Jackson, ex dem, Neilson, 18 Johns. Rep. 330 . Wilson v. Troup, 2 Cowen, 195.