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presented to the attorney. The client is not
presumed to know what is relevant and what
is not relevant to his case. For this reason
the rule must be applied liberally, that the
attorney may be possessed of every fact nec-
essary to estabhsh his client's claim or pro-
tect his rights and to give him correct legal
advice.'^ Interpreters, law clerks, and the
agents of attorneys come within the rule.
Whatever is used as a means of communica-
tion between the attorney and client is com-
prehended.^ It was formerly held that the
privilege existed only when the communica-
tion was made for the purpose of bringing or
defending an action,^ but courts now apply
the rule, not only when attorneys are em-
ployed in litigation, but also when they
transact business for clients.^

4. Privilege Belongs Only to the Client. —
The secrecy enjoined upon the solicitor or
counsel is the personal privilege of the client
alone ;^ the latter may waive it if he chooses

81 Greenl., § 240; 2 Story Eq., § 952; Cholusondeley
V. Clinton, 19 Ves. 261; Evitt v. Price, 1 Sim. 488;
Peabody v. Norfolk, 98 Mass. 452; Morrison v. Moat, 6
Eng. Law A Eq. 14; Cromack v. Heathcote, 2 Broad. &
Blng.21-9; Granger v. Warrington, 8 Gilm. (III.) 299;
In re Matin, 5 Blatchf. 808; Rhoades v. Selin, 4 Wash.

4 Cleave v. Jones, 8 Eng. Law & Eq. 554.

fi Dubarre V. Llvette, Peake's Cas. 77; Jackson v.
French, 8 Wend. 887; Andrews v. Solomon, 1 Pet. C.
C.356; Perkins V. Hiwkshaw, 2 SUrk, 239; Femoick
V. Heed, 1 Meri?. 114.

e Williams v. Madie, 1 C. & P. 158.

7 Greenough v. Gaskell, 1 My. & K. 102.

SLindsey V. Talbot, Bull (N. P.), 284; Wilson v.
Bastell, 4 T. R. 758.

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No. 25

and call the attorney to testify as to what
passed between them.* While counsel will
not be allowed to testify whether his client is
making the same statement as he made in
consultation with him,'^ yet the client can be
interrogated as to his own statements to the
attorney." Although this was formerly the
law, courts now seem to hold that if the at- i
torney will not be permitted to divulge a
communication, his client cannot be compelled
to state the conversation.^ In Passamore v.
Passamore,^^ the court said : *'It is every day
practice to permit a party to justify his con-
duct by testifying that what he did was by
advice of counsel, and the counsel is allowed
to testify for this purpose, to the advice he
gave. There is a privilege of secrecy as to
what passes between attorney and client, but
it is the privilege of the client and he may
waive it if he chooses." This rules applies
to all communications made after the relation
of attorney and client is established ; a re-
tainer need not be paid to fix this relation ; it
will be sufficient if the attorney has under-
taken the business and the communication
has been made for the purpose of professional

5. Where the Relation does not Exist, — But
this rule does not apply whenever an attorney
performs an act for his client. The purpose
of the rule is to allow full freedom of inter-
course whenever the professional aid of in
attorney is required ; it cannot be invoked to
protect one againt hfs own loquacity and im-
prudence. Besides, an attorney can have
knowledge of many things from his business
relation with clients which cannot be said to
be known in confidence. Courts have there-
fore made many distinctions. A man is not
acting as an attorney when he is consulted
about making a deed ; ^^ communications, ob-
viously, foreign to the subject under consid-
eration are not privileged,^® nor if made to
one erroneously assumed to be an attorney."

9 Passmore v. Passmore's Estate, 16 N. W. Rep. 171;
17 Cent. L. J. 19; Fowler v. Schriber, 38 III. 172;
Benlamin v. Coventry, 19 Wend. 858.

w Rex V. Withers, 2 Camp. 678.

" Greenough v. Gaskell, supra,

M Hemenway v. Smith, 28 Vt. 701; Carnes v. Piatt,
36 N. Y. Sup. Ct. 360; Bigler v. Reglier, 43 Ind. 112;
State V. White, 19 Kas. 445; Phil. Ev., § 833.

J3 /Supra,

^* Sargent v. Hampden, 38 Me. 581.

»« Broad v. Pitt, 3 C. & P. 518.

»« Cobden v. Kendrick, 4 T. R. 431.

" Fountain v. Young, 6 Esp. 118.

An attorney who witnesses dealings between
his client and a third person may testify as
to all communications made at that time ; ^ so
an attorney may be called to prove a deed to
which he is a witness.^* In regard to a war-
rant of attorney, an attorney was called to
testify to all that passed respecting the exe-
cution of the instrument.^ Counsel is a
competent witness as to an agreement made
with a third person at the request of his
client.^ Statement made to an attorney to
show that the cause in which he is sought to be
retained does not conflict with interests he
represents for another is not privileged.^ If
a man consults an attorney in the presence
of a third person, or talks so loudly he is
overheard, the privilege cannot be claimed to
exclude the attorney in one instance, or the
person overhearing, in the other instance.^
If communications are made to an attorney
in the course of proressional employment by
persons other than his client, or than the lat-
ter' s agents, and although such communica-
tions may be of vast importance to the client,
yet it has been decided that they are not
privileged. The rule only covers communi-
cations made by the client, or whatever agency
he may employ. ^^ Mere statements made in
the presence of the counsel, but not made to
him, are not privileged.^ Attorney who acts
as a mere scrivener in making a deed is not
privileged ; ^ communications made to a stud-
ent, who is not a clerk, either for the purpose
of advice or casually, are not privileged.*^

6. Attorney may be a Witness for some Pur-
poses. — ^An attorney may be a witness as to
the existence of a paper, to allow secondary
evidence as to its contents, but he cannot be
compelled to produce or disclose the same,f
or he may be compelled to testify whether
his client swore to the answer in chancery on
which he is indicted for perjury.® An attor-

18 Coveny v. Tannahill, supra,
w Doe V. Ancjrews, Cowp. 845.
20Robson V. Kemp, 5 Esp. 52.
21 Thayer v. McEwen, 4 Bradw. 418.
23 Beaton v. Findlay, 12 Pa. St. 304.

23 15 Cent. L. J. 260.

24 Randolph v. Quidnek Co., 23 Fed. Rep. 278; 20
Cent. L. J. 896; Crosby v. Berger, 11 Paige, 877.

25 Shaffer v. Mink, 14 N. W. Rep.. 726.

26 Machette v. Wanless, 8 Colo. 169.

27 Barnes v. Harris, 7 Cush. 576; Holman v. Kimball,
2 Vt. 555.

2* Coveny v. Tannahill, 1 Hill (N. Y.), 33; People v.
The Sheriff of New York, 29 Barb. 622.

2» Doe V. Andrews, Cowp. 845; Studley v. Saunders
2 Dowl. & 2 Pyl. 84r.

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Vol. 28



ney may also be obliged to identify bis client's
hand writing.^ An attorney may be com-
pelled to disclose what he did with a certain
deed when he got it, but not its contents. ^^
So also, an attorney's clerk can be questioned
as to whether he received a certain paper
from a client.^ If an attorney sue for his
fee, he may testify as to the nature of the
sevices rendered and the character of the
work performed.^

7. When the Service Rendered by the Attor-
ney is for a Criminal or Fraudulent Purpose.
— A client is permitted to converse with his
counsel in the most free manner, either for
the purpose of defending an action, or com-
mencing a suit, or for the object of ascertain-
ing his rights and liabilities, or to protect
himself against litigation threatened,^ but the
law will not allow a client to avail himself of
the superior legal knowledge of an attorney
in order that he may the more safely evade
the law; to extend the protection so far,
would hold out an inducement to men to be-
come learned in the law that they may go
into partnership with men unscrupulous and
artful, with the assurance that they may cover
up their part in the dishonest transaction by
pleading a privileged relation, as if the license
of an attorney was a commission authorizing
him to assist and advise others to do what he
would not be permitted to do for himself in
his own affairs.^ In Duffin v. Smith,*^ the
defendant called the plaintiff's attorney to
prove the consideration of the bond as usuri-
ous and he was admitted. Lord Eenyon said :
^^Wben anything is communicated to an at-
torney by his client for the purpose of his
defense, he ought not to divulge it. But
where he himself is as it were, a party to the
original transaction, that does not come to
his knowledge in the character of attorney
and he is liable to be examined the same as
any other person." When an attorney ad-
vises and assists a client in the perpetration

soHurd V. Morning, 1 Car. & Payne, 372; Johnson v.
Daverne, 19 Johns. 134.

31 Hington v. Gage, 8 Viner Abr. 548.

3S Eicke v. Nokes, 1 M. & M. 303.

33 17 Cent. L. J. 201; Snow v. Gould, 74 Me. 640.

^ Bank of Utica v. Mersereau, 3 Barb. Ch. 698;
Coveny y. Tannahill, 1 Hill (N. Y.), 33; Follett v.
Jeffreyes, 1 Sim. (N. S.) 3.

85 Amesly v. Earl of Anglesea, 17 How. St. Tr. 1229;
Gartside v. Outram, 3 Jur. (N. S.) 89; Story's Eq. PI.
§§ 601, 602; Robinson v. Flight, 8 Jur. 888.

a« Peake's N. P. Cas. 108.

of a fraud, courts incline to hold the attorney
a party to the fraud and that he is not dis-
charging the duty of an attorney in such cases
but is ^^particeps delicto.'' On the other
hand, a client may do what the law allows^
although the act cannot be commended on
strictly moral grounds ; but the law does not
allow conveyances for the purpose of de-
frauding creditors, and communications to an
attorney to obtain advice and directions to
accomplish that end in violation of law, ought
not to be protected. There is no considera-
tion that can justify a communication for that
purpose ; the object is to form a contract
which will circumvent creditors, and defraud
them out of their legal rights ; the contract
is illegal and void' if the. contract is proven ;
the duty asked of the attorney is to shape
matters so the fraud cannot be proven ; can
it be said an attorney is discharging his pro-
fessional duty in contributing to such a result.
Every attempt on the part of courts to pro-
tect communications under such circum-
stances, is a step in faver of enlarging the
opportunities for fraud.^ Justice Bronson,
in Coveny v. Tannahill,^ says: "The
privilege of attorney and client dees not
extend to every fact which the attorney may
learn in the course of his employment. There
is a difference in principle between communi-
cations made by the client and acts done by
him in the presence of the attorney. It may
DC and undoubtedly is sound policy to close
the attorney's mouth in relation to the former,
while in many cases, it would be grossly im-
moral to do so in regard to the latter. It is
the privilege of one who is charged with a
wrong, either public or private, to speak un-
reservedly with his attorney, in preparing for
his defense, but he should not be allowed to
stop the mouth of one who was present when
the wrong was done, upon the allegation he
was retained as counsel to see or aid in the
transaction. Indeed, I think there can be no
such relation as attorney and client, either in
the commission of crime or the doing of a
wrong by force or fraud to an individual.
The privileged relation of attorney and client,
can only exist for lawful and honest pur-
poses." In Bank of Utica v. Mersereau,^

37 See alfio 1 Gilb. Ev. 277; Lord Say and Seal's Case,
10 Mod. 40; Russell v. Jackson, 15 Jur. 1117.

38 Supra.
w Supra.

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No. 25

the court said: "It may not be a very
moral act in a debtor, so to dispose of his
property as that his creditors may be effect-
ually prevented from getting execution, but
such an act, per se, is no fraud, if the dispo-
sition be one whiph the law allows. ' * It is not
accurate to speak of cases of fraud contrived
by attorney and client together as cases of
exception to the rale. They are cases not
coming within the rule itself ; for the rule
does not apply to all that passes between a
client and his attorney, but only as to what
passes between them in professsional confi-
dence, and no court can permit it to be said
that the contrivance of fraud can form part
of the professional occupation of an attorney
or solicitor." The law allows a bona Jide sa,\e
by a grantor to an innocent grantee, although
the purpose of the grantor was to defraud
creditors. The burden is on the complainant
to show that the grantee participated in the
scheme to defraud the grantor's creditors.
Evidence given by the attorney of the grantor
of the guilty intent of the latter will not weigh
against the grantee until a combination to
defraud is first proven and until this is shown,
it will not be evidence on which a convey-
ance can be set aside. But in all cases where
a bona fide consideration is not shown in the
answer to a creditor's bill, there is no objection
to interrogating the attorney as to the char-
acter of the transaction. If these are the
limitations in the application of the rule, I
see little virtue in it ; because in one case,
when the combination is proven, or in the
other, when the answer fails to show a bona
fide consideration, the complainant has estab-
lished his right to have the conveyance set
aside. But the authorities are uniform and
emphatic that if an attorney plans and con-
trives with his client to dipose of the latter' s
property so as to defraud creditors, he be-
comes a principal, a co-conspirator and is
obliged to testify.*® In Lord Say and Seal's
Case,^ a fraudulent date was inserted in a
deed in the presence of the attorney and the
latter was obliged to answer a question di-
rected for the ascertainment of that fact. In

<o Oreenougb v. Gaskell, supra; Lord Say and Seal's
Case, supra; Duffin v. Smith, supra; Hatton v. Rob-
inson, 14 Pick. 410; DeWolf V. Strader, 26111.230; 1
Phillips Ey.8d3; 1 Greenleaf on Ev. § 240 and note 2;
Kussell y. Jackson, 15 Jur. 117; Bank of Utica v. Mer-
sereau, supra; Reynell v. Spyre, 10 Beav. 61.

« 10 Mod. 40.

Hatton V. Robinson,^ an attorney was re-
quested by a debtor to draw up a mortgage
deed of his personal property and the debtor
disclosed his purpose in making such a con-
veyance but the attorney's opinion was not
asked whether on the statement of facts made
to him by the debtor the conveyance would
be legal. His communication to the attorney
as to the object in making the conveyance
was admitted in evidence. In Garteside v.
Outram,^^ Lord Hatherly said: * 'There is no
confidence as to the disclosure of iniquity.
You cannot make me the confidant of a crime
or & fraud and be entitled to close up my lips
upon any secret which you have the audacity
to disclose to me relating to any fraudulent
intention on your part; such a confidence
cannot exist." The principle of law, there-
fore, is well settled ; but recourse to this ex-
ception for the purpose of proving fraud is
not clear from diflliculties. In Higbee v.
Dresser,** the court held: *'A mere sugges-
tion of fraud will not furnish sufficient
grounds for setting aside so well known and
salutary a rule as that which protects com-
munications made between attorney and
client. * * * If the evidence disclosed
anything having the tendency to show that
the witness was acting for himself as a party
to the transaction, or that he was consulted
in aid of any dishonest purpose, the matter
would have raised a more serious question."
''It seems that the legal adviser cannot be
asked whether the conference between him
and his client was for a lawful or unlawful
purpose, though if from independent evi-
dence, it should appear that the communica-
tion was made by the client for a criminal
purpose, as for instance if the attorney was
asked as to the most skillful mode of effecting
a fraud, or committing any other indictable
offense, it is submitted that on the broad
principles of penal justice, the attorney would
be bound to disclose such guilty project.
Nay, it may reasonably be doubted whether
the existence of an illegal purpose will not
also prevent the privilege from attaching, for
it is as little the duty of a solicitor to advise
his client how to evade the law, as it is to
contrive a positive fraud. "*^

Nathan C. Miller.

** Supra,

« 26 L. J. Ch. 118.

^ 108 Mass. 528.

tf Phillips on Ev. § 833 and citations.

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Vol. 28.




Supreme Court of Nebraska, May 2, 1889,

1. A chattel mortgage upon growing grain is not
xjonstructlve notice to third parties of a mortgage on
the same grain thereafter lawfully placed in crib or
bin, and a dealer in grain who, in good faith, in open
market, purchases such grain from the mortgagor,
and receives it at his warehouse, will take it free from
the lien of the mortgage.

2. The mortgagor of chattels, until foreclosure, pos-
sesses a beneficial interest in the property mortgaged,
and will convey a good title by a sale of such property
to one who purchases In the open market in good
faith, and w^ithout notice actual or constructive of the

Maxwell, J., delivered the opinion of the court :
This is an action by the ]>laintiff against the de-
lendants to recover for certain growing corn,
mortgaged by one Ashton to him, and a portion
of .which was gathered and sold to the defend-
ants. On the trial the plaintiff recovered for the
amount due Ashton upon the corn so sold. The
plaintiff contends that he is entitled to recover for
all the corn sold by Aston to the defendants, al-
though they had already paid Ashton therefor.
The facts are substantially as follows : One Ash-
ton gave two chattel mortgages to the plaintiff in
error to secure payment of three of his promissory
notes, — one in the sum of ^61 .30, another in the
«um of $225.00, and a third in the sum of $44.50,—
which chattel mortgages covered the crop of corn
which was growing upon the lands owned by the
plaintiff, viz. : the W. i of section 30, township
11, range 5, in Lancaster county. These chattel
mortgages were duly filed for record in the office
of the county clerk on the 3d day of July, 1885,
and the 7th day of September, 18S5, respectively.
During the months of November and December,
in the year 1885, the said Ashton gathered and
sold, without the knowledge or consent of Mr.
Gillian, a portion of the matured crop of this corn
to the defendants, Kendall & Smith, who pur-
•chased the same in open market at their elevator
in Malcolm, through their agent, John Carpenter.
Kendall & Smith are grain buyers at Malcolm,
and it was admitted at the trial that they had no
knowledge of Mr. Gillian's lien upon the corn so
purchased by them, except 8u*h constructive
notice as the filing of the chattel mortgage gave
them. The plaintiff introduced the notes in ques-
tion, and the chattel mortgages securing the same,
with proof that they were duly filed, and also tes-
timony tending to show that the defendants had
purchased from Ashton about 985 bushels of corn,
and that such corn was worth, in the market at
Malcolm, at the time stated, from 19 to 21 cents
per bushel. There is no testimony tending to
fihow the entire quantity of corn produced by
Ashton on the land of the plaintiff in section 30,
nor what portion of the crop, if any, Ashton was

to deliver to the plaintiff for rent. For aught that
appears, the amount of corn still remaining on
the farm is sufiScient to satisfy the mortgages in
question. The court instructed the jury as fol-
lows: '* A party taking a chattel mortgage upon
growing corn, in order to preserve his Hen as
against innocent purchasers, is bound to see that
when the corn is gathered such notice is given to
the public of his lien by keeping the same separ-
ate and unmixed with other corn as will prevent
innocent parties from purchasing such corn ; and
in this case, if the jury believe from the evidence
that the plaintiff, after the execution of the mort-
gages offered in evidence by him, did nothing
more than to file his mortgages in the oflace of the
county clerk, and allowed the corn to become
mixed with other corn, and if the jury further
believe from the evidence that the defendants,
without actual notice of the existence of these
mortgages, purchased the corn, or some portion
of it, at their elevator in the town of Malcolm, in
open market, then the plaintiff cannot recover,
and your verdict will be for the defendant." To
this instruction the plaintiff excepted, and now
assigns the same for error. At law a chattel
mortgage passes the legal title in the property
mortgaged to the mortgagee, although the mort-
gagor retains an interest in the property, and
may redeem the same at any time before a sale
under a foreclosure of the mortgage. In other
words, a chattel mortgage is a security in which
the legal title to the property mortgaged passes
to the mortgagee, but in which the mortgagor
retains a beneficial interest. Necessarily, addi-
tional labor must be expended on a growing crop
to harvest and care for the same. If the mort-
gagee intrusts this labor to the mortgagor, he to
that extent, makes him his employee. If the
entire property in the grain had passed to the
mortgagee on the execution of the mortgage,
then it would be the business of the mortgagee to
gather and care for the crop, and if he failed to
do so, it would go to waste. Where, therefore,
the mortgagor remains in possession, and is per-
mitted to gather the crop, it will be presumed
that it was with the consent of the mortgagee.
Now, suppose that the security is considerably
more than sufficient to pay the debt secured, and
is the principal means possessed by the mortgagor
for paying ordinary debts, and the means, also, of
feeding his stock, and that such mortgagor is
feeding his stock from such grain, and selling
portions of the same to meet his necessary ex-
penses, and these facts are known to the mort-
gagee, or he has knowledge of facts sufficient to
put him upon inquiry, he certainly cannot follow
the grain, and compel tne party who has pur-
chased and paid for the same in open market to
again pay him for said grain ; nor could he claim
a lien upon the stock for the grain used to feed it.
If the mortgagor was a farmer, and the grain
mortgaged included all that he possessed, and it
was the intention of the parties that he should
continue in the use of the grain for feed or other

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No. 25

necessary purposes about the farm as before the
executioQ of the mortgage, it would not be a
breach of the condition to carry out such intention,
and the consent of the mortgagee may be im-
plied; and so, that the security shall remain
sufficient, the mortgagee would have no cause of
complaint. A mortgage of sjowing crops does
not necessarily imply a mortgage of the same
grain gathered and placed in a granary oi crib, at
least so far as constructive notice, to be derived
from the fiiinc: of a mortgage, is concerned. The
lien as between the parties continues, no doubt,
but our statutes do not favor secret liens, and this
court has so declared in a number of cases. Ed-
minster v. Higgins, 6 Neb. 265; Rhea v. Reynolds,
12 Neb. 133, 10 N. W. Rep. 549. A mortgage,
therefore, of growing g^ain is not notice of a
mortgage on grain in a crib or bin, where it has
been lawfully placed there by the mortgagee, or
by the mortgagor with his consent. If wrongfully
or unlawfully removed, the rule would probably
be different. At common law, the purchaser of
goods in market overt, if he acted in good faith,
ordinarily was protected. 2 Bl. Comm. 449, says :
*^But property may also, in some cases, be trans-
ferred by sale, though the vendor hath none at
all in the goods ; for it is expedient that the
buyer, by taking proper precautions, may at all
events be secure of his purchase; otherwise all
commerce between man and man must soon be at
an end. And therefore the general rule of the
law is that all sales and contracts of anything
vendible, in affairs or markets overt (that is,
open) shall not only be good between the parties,
but also be binding on all those that have any
right or property therein ; and for this purpose,
the Mirror informs us, were tolls established in
markets, viz., to testify the making of contracts;

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 145 of 151)