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trial. The vice in the reception of it was in the nature of it, and

Digitized by


MARCH TERM, 1880. 63]

Bacon v. Frisbie.

not that it was aimed at this or that person as a party to the action
on trial. See Rex v. Withsrs, 2 Camp. 578; Wilson v. Rastall, 4 T.
R. 753, per Bullek, J., 760; Chant v. Browne, 12 Eng. L. &
Eq. 299.

It is said that it was offered against Ratnour alone, and not to
affect Frisbie. It does not appear from the case that it was limited
when called out, or even after during the trial; and it is not easy
to perceive how it could be taken as it was generally without hav-
ing weight in the mind of the jury against each of the defendants,
they being sued as joint actors in a fraud upon the plaintiff.

True, the communications must be to the professional advisor
for his information ; and it may be that if a client chooses to speak
his mind to his counsel, in the presence and hearing of persons
unrelated to him in the matter, that what is said is not privileged.
We have not to decide that at this time. It is claimed here that
what was said by Ratnour to Kennedy was in the presence of othors.
In answer to the preliminary questions put to Kennedy he said
that others were present, and he inferred that one of them could
have heard the communication; but it is not shown that any other
person than Ratnour and Kennedy heard this particular conversa-
tion; nor did the trial court put its ruling upon that ground. The
testimony was admitted, for that Kennedy said that he was not
counsel. We are not able to say that the fact existed that Ratnour
made his statement so that others than Kennedy heard iL

We are therefore of the opinion that the General Term should
have reversed the judgment in tola and ordered a new trial for both

The other exceptions made at the trial and brought before us
by the points of the appellant do not show error.

The judgment of the General Term, so far as it affirms the judg-
ment against the defendant Frisbie, should be reversed, and a new
trial ordered for him as well as the defendant Ratnour.

Judgment accordingly.

All concur.

Note BT THE REPOBTBR. - It has been said that the rule which prohibits an attorney
from disclosing professional communications does not arise from the moral obligation to
preserve a secret confided to him, nor from the peculiar power of the court to regulate
the conduct of attorneys as officers of the court, nor from any general grounds of public
policy forbidding confidential communications to be disclosed. The rule is a mere exten-
■ion of immunity of the party to his substitute, the attorney. Rochester City Bank r,
Suydam^ 5 How'. Pr. 254. The same view was adopted by Sbldkn, J., in Whiting y. Barney^
30N. T. 841, where he said it was "clear that the privilege in question is not founded

Digitized by



Baoon v. Frisbie.

upon any idea of (he noredneai of oonfldentlal communications, whether made to aa
attorney or any other person, nor upon any peculiar policy of the law whldi distingnlibea
the general husinessof an attorney from that of any other dass in the community ; bat It
was the result of that rule of the common law which excused parties from testifjriag in
their own cases, and of the necessity, for the convenience of the public as well as the bene-
fit of suitors, of having the business of the courts conducted by professional men.** This
Tiew howerer was not adopted by the rest of the court.

The privilege extends to any representative of the attorney. In conference or corre-
spondence. Brand v. Brandy 89 How. Pr. 198; Jackson v. French, 8 Wend. 887 ; 20 Am.
Dec. 600. And In accordance with the above rule, a communication made to an attorney's
clerk in regard to a suit which the attorney is prosecuting for such client is privileged in
the same manner as if made to the attorney in person. SihUy v. ITaJle, 18 N. T. 180.

But it was held in Barnea v. Harris, 7 Cush. 574, that the privilege did not extend to a
mere student at law in the attorney's office, not the attorney's clerk, although the client
supposed he was an attorney. Nor does it extend to one not a lawyer, although the party
supposed him to be a lawyer. Sample v. Frosty 10 Iowa, 966.

It has been held that a party who offers himself as a witness on a trial cannot refuse to
answer as to the confidential oonununications made to his counsel. Wobum v. Hcnshaw.
101 Mass. 108 ; s. c, 8 Am. Rep. 888. But this is an extreme case, and seems opposed to
the weight of authority. DtUtenhofer v. Stale, 84 Ohio St. 9^; s. c, 8S Am. Rep. 808; Big^
ler V. Reyher, 48 Ind. 112 ; Barker v. Kuhn, 88 Iowa, 805 ; Hemenway v. Smith, 28 Vt. 701;
Bobn V. Bryson, 91 Ark. 887; State v. White, 10 Kans. 445 ; s. c, 37 Am. Rep. 187, and
note, 142.

The privilege does not apply to third persons overhearing communications between
attorney and client. Hoy v. Morris, 18 Oray, 519; Jackson v. French, 8 Wend. 887; Ood-
dard v. Gardner, SB Conn. 172. Nor to the adverse party. Little v. McKeon, 1 Sandf .
607 Nor where both parties are present. Whiting v. Barney, 80 N. T. 800 (so held hf
four Judges against three, and by all the Judges in Brition v. Lorenz, 45 Id. 51). But this
applies only to such conmiunlcations as were made when both parties were actually pres-
ent. Brand v. Brand, 80 How. Pr. 108. Nor does the privilege extend to statem e nts made
by a third person, at the instance of the party, to the attorney. Perkins v. Ouy, 65 Miss. 153.

The relation of attorney and client must exist at the time of testifying. Vohmtaiy dis-
closures made by a former client after the relation has ceased, and not elicited by any
artifice of the attorney, are not privileged, although substantially a reiteration of com-
munications made while the relation existed, and therefore then privileged. Fordan v.
Hess, 18 Johns. 482; MandctUU v. Ouemsey, 38 Barb. 8S5.

The relation must be strictly that of attorney and client. Boehcster CUy Bank v. Suy^
dam, 5 How. Pr. 854. But that relation need extend only to the particular matter; there
need not be a general retainer. Earie v. Grout, 46 Vt. 1 18. Nor payment of fee . Oo« v.
RiQOins, 60 Mo. 885.

The privUege applies only to communications, and not to acts or transactions with third
persons, although the attorney attends professionally. Coveney v. TannakiH, 1 HOI, 88;
HeWKirdv. Hdua/Jian, TON. Y. 54; Randetfv. Fate*, 48 Miss. 686. Nor to letters written
by the attorney in pursuance of the client's instructions. Reg, v. Downer, 48 L. T.
(N. 8.) 445.

The privUege however applies to documents belonging to a client in the lawyer's hands.
It has been held that when a solicitor holds a document for his client, he cannot against
the will of the client be compelled to produce It, even by a person who has an equal intei^
est in it with the client. Newttm v. rhaplin, 10 C. B. 866. If the attorney permits the
papers held for the client to pass out of his hands, they may be put in evldenoe against
the client by the party who hokls them. But an attorney having papers of his client in bis
possession in court, which are required as evidence In the case, is not privileged from pro-
dudng them at least for the purpose of identification. Mitchell v. Sheriff of New Tork^
7 Abb. Pr. 06- This however seems overruled by Britton v. Z«orens, 45 N. Y. 51. The nile
extends to a bill in chancery sworn to but never filed. Bumham v. Roberts^ 70 lU. 10;
Ntiit V. Patten, 47 Oa. 7B.

The privilege does not apply to cases where the attorney learned of the matters not aa
a professional man, but by personal observation, and where they were not communicated

Digitized by


MAECH TERM, 1880. 633

Bacon v. Friable.

M secrets, ^ogh the client may have given the same information. DavlB r, Walen, H.
A W. 611; Crosby T. Berger, 11 Pai. 977; Brundt v. KUin, 17 Johns. 886; ChOUeoihe B. R.
V. Jamuon^ 48 HI. 881.

The privilege does not extend to cases where the advice was given with a view of hrealc-
ingtbelaw, for communications of this class counsel are bound to disclose. Bank v.
Jlersereau, 8 Bart>. Ch. 508; People v. Sheriff, 89 Barb. 628; Oraham v. People^ 63 id. 483.
Communications made to an attorney at law, with a vieW of obtaining his assistance in
the commission of a felony, or other crime mcUum in «e, are not privileged. Bank v.
Menereau, supra; Peirple v. Bki/celj/, 4 Park. Cr. 176. In State v. Mewherier^ 46 Iowa, 8fl,
an attorney on the trial of the defendant for murder testified that the defendant consulted
his Arm in regard to a suit against the deceased, and during the consultation made threats
against the deceased. It appearing that the threats in no manner pertained to the busi-
ness of the consultation, held, that they were not privileged . But the privilege extends to
rommunications made for the purpose of getting aid and advice in perpetrating an act not
malum in se, such as a fraud on creditors. Ban/c v. Mertereau^ mtpra ; OartHde v. Old-
ram, 86 L. J. Ch. 115; CharUonv. Cooml>s, 88 id. 884 ; Maxham v. Place, 46 Vt 4^1.

In order that the communications shall be privileged it is not necessary that they be
made in a suit pending, or even in contemplation of one. If made for the purpose of
obtaining the attorney's professional advice or skill they are privileged, and he has no
right to disclose them without the consent of his client. Crosby v. Cntgihy, 2 Ch. Sent. 15.
" The foundation of this rule,'' nays Lord Chancellor Brougham, " is not on account of any
particular importance which the law attributes to the business of legal professors, or
any particular disposition to aiford them protection. But It is out of regard to the inter-
ests of Justice which cannot be upholden, and to the administration of Justice which can-
not go on, without the aid of men skilled in Jurisprudence, in the practice of the courts and
in those matters." Lbarncd, P. J., in Bacon v. Frisbie, 15 Hnn, 28, says : *'The object of
the rule is evidently to enable persons toobtain legal advice on a free and full statement
of facts, without the risk that the state me nt will be made evidence against them. And to
effect that object it Is necessary that every statement should be privileged which is made
to an attorney or counselor for the purpose on the part of the client of getting advice as to
the law on the facts stated. The motive of the party who makes the statement and the
character of the party who hears it make it privileged." The contrary doctrine was asserted
by Sbldkn, J., in a learned and elaborate opinion in Whiting v. Barney, 80 N. Y. 880, but
none of the other Judges concurred, and the case was decided on another ground. And in
BriUon v. Lorenz, 45 id. 57, Orovbb, J., said: ** The rule deducible from the authorities is,
that all coDcmiunications made by a client to his counsel, for the purpose of professional
advice or assistance, are privileged, whether such advice relates to a suit pending, one
contemplated, or to any other matter proper for such advice or aid.** And this was con*
cnrred in by all the Judges. To the same effect, Afinet v. Morgan, L. R., 8 Ch. 561.

The attorney may disclose the communications when he has an interest in the matter,
or the disclosure is necessary to protect his own personal rights. Boehetter City Bank ▼.
Suydam, 5 How. Pr. 854. And he must dlsclos^ them, where he is not only attorney but
party, as when summoned as a garnishee, he is asked if he has not received money fkx>m
his client to pay certain debts. Jeanes v. Fridenberg, 8 Penn. L. J. R. 190.

The general rule in relation to the client's testifying to confidential communications is,
that whatever the lawyer is precluded from testifying to the client is protected from dis*
ckMing. Bementoay v. SmUh, 88 Vt. 701; Ckime9 t. Piatt, 86 N. T. 860; 16 Abb. Pr. (N S.|
887 ; Biifier v. B*yyher, 43 Ind. 118.

Vol. XXXVI— 88

Digitized by



TouDg V. Young.

Young v. Young.


Cfift — delvotry — truit.

The intestate placed bonds in two envelopes, indorsing and signing a mema>
randum tbat tliej belonged to bis sons W. and J., in specified proportions,
on bis deatb, but tbat tbe interest was owned and reserved bj bim during
bis life. He sbowed tbe indorsed packages to tbeir wives, stating tliat be
believed be bad made a valid disposition of tbe bonds. He tben put and
kept tbem in a safe in tbe bouse of bis son W., wbere be bimself lived, and
in wbicb safe W. also kept some papers, but of wbicb safe tbe intestate
bad practical control, and tbej were found tbere on bis death. He cut olf
and used the coupons during bis life-time, and once gave a bond from one
of the packages to a third person. He spoke of tbem as tbe bonds of the
sons. The son J . had no access to the safe, and neither son exercised anj
control over the bonds as against the father. Held, neither a gift nor a
declaration of a trust.*

CLAIM on an administrator's accounting, to the ownership of
bonds. The bonds on the death of the intestate were found
in two envelopes, with indorsed memoranda signed by him, dated
March 14 and March 14, 1874, each describing the bonds inclosed
by numbers, and stating that certain of them belonged to William
H. Young, and the others to John N. Young. "But the inst. to
become due thereon is owned and reserved by me for so long as I
shall live, at my death they belong absolutely and entirely to them
and their heirs." The opinion states other facts.

Hezekiah WatkmSy for appellants.

Homer A, Nelson^ for respondent.

Rapallo, J. The intention of Joseph Young, deceased, to give
the bonds in controversy on this appeal to his son William H.
Young, reserving to himself only the interest during his life-time,
was so clearly manifested that we have examined the case with a
strong disposition to effectuate that intention and sustain the gift
if possible.

♦ See (Jtnrish, ▼. Neto Bed/ord Inat. for Havinos (1^8 Mass. 159), 35 Am. Rep. 365.

Digitized by


APRIL TERM, 1880. 635

YouDg V. Young.

The transaction is sought to be sustained in two aspects. First
us an actual executed gift; and secondly, as a declaration of trust.
These positions are antagonistic to each other, for if a trust was
created, the possession of the bonds and the legal title thereto
remained in the trustee. In that case there was no delivery to the
donee, and consequently no valid executed gift, while if there was
a valid gift, the possession and legal title must have been trans*
f erred to the donee, and no trust was created. As each of these
theories thus necessarily excludes the other, they must be separately

To establish a valid gift a delivery of the subject of the gift to
the donee or to some person for him, so as to divest the possession
and title of the donor, must be shown, and the first question which
arises under the peculiar circumstances of this case is whether it is
practicable to make a valid giit in prcesenii oi an instrument secur-
ing the payment of money, reserving to the donor the accruing
interest, and if so by what means this can bo done. The purpose of
such a gift may undoubtedly be accomplished by a proper transfer
to a trustee, and perhaps by a written transfer delivered to the
donee, but the question now is, can it be done in the form of a gift
without any written transfer delivered to the donee, and without
creating any trust I can conceive of but one way in which this is
possible, and that is by an absolute delivery of the security which is
the subject of the gift to the donee, vesting the entire legal title and
possession in him on his undertaking to account to the donor for tbo
interest which ho may collect thereon. But if the donor retains the
instrument under his own control, though ho do so merely for the
purpose of collecting the interest, there is an absence of the complete
delivery which is absolutely essential to the validity of a gift. A
gift cannot be made by creating a joint possession of donor and
donee, even though the intention be that each shall have an interest
in the chattel, especially where, as in this case, the line of division
between these interests is not ascertainable. The reservation of
the interest on the bonds to the donor was for an uncertain period,
that is during his life-time, and until his death it was impossible
to determine the precise proportion of the money secured by the
bonds, to which the donee was entitled.

If therefore the donor retained the custody of the bonds for the
purpose of collecting the accruing interest, or even if they were
placed in the joint custody or possession of himself and the donee,

Digitized by


63fi NEW YORK,

Young ▼. Toang.

there was no sufficient delivery to constitate a gift. Bnt if an ab-
solute delivery of the bonds to the donee, with intent to pass the
title, was made out, the donor reserving only the right to look to
the donee for the interest, the transaction may be sustained as an
executed gift Doty v. Wilhoriy 47 N. Y. 680.

This brings us to an examination of the evidence. The written
memoranda attached by the donor to the envelopes containing the
bonds evinced his intention to make a present gift to the respond-
ent of an interest in the bonds, and shows that the disposition was
not intended to be of a testamentary character. He declares that
the bonds are owned by William IE. Young, but the interest to be-
come due on the same is owned and reserved by the donor for so
long as he shall live, and that at his death the bonds are owned by
the donee '^absolutely and entirely" in one case, and ^^ wholly and
entirely" in the other. There are some verbal differences in the
two memoranda, but the purport of both is the same. They both
express in the same words that the interest to become due on the
bonds is " owned and reserved " by the donor for so long as he shall
live, and that the bonds are not to belong '* wholly ** or "abso-
lutely " to the donees till after his death.

The exhibition of these memoranda to the wife of the donee, and
the declarations of the donor, show that what he had thus done was
in pursuance of a settled purpose and that he believed that he had
made a valid disposition of the bonds according to the memoranda,
but they do not satisfy the requirement of an actual delivery.

The evidence touching the point of delivery is, that the decased,
for several years before his.death, resided at the house of his son
William 11. Young, where there was a safe which had formerly be-
longed to the deceased, but which he is said to have presented to
his grandson James C. Young, a son of William H., reserving to
himself the right to use the safe, and in fact using it as a place of
deposit for his valuable papers. That William H. Young also kept
papers in the same safe, but rarely went to it himself, the deceased
being in the habit of depositing therein for him such things as he
desired, and removing them for him at his request.

The upper part of this safe was divided into pigeon-holes, where
the deceased usually kept his papers and was in the habit, up to
the time of the transaction now in question, of keeping the bonds
in controversy. The lower part of the safe was divided into larger

Digitized by


APRIL TERM, 1880. 637

Toang ▼. TouDg.

open compartments, ono of which had been appropriated as the re-
ceptacle of the papers of William H. Young.

After affixing to the two envelopes in which the bonds were con-
tained the memoranda showing the dispositions in favor of his
sons William H. Young and John N. Young, and after exhibiting
these memoranda to the respective wives of the donees, the deceased
replaced the two packages of bonds in this safe, and after his death
they were found, not in the pigeon-hole where they had formerly
been kept, but in the compartment where William H. Young's
papers were kept After the memoranda had been made, the
bonds were generally kept in that compartment, but the deceased
had been seen by William H. to put them in the pigeon-holes, and
take them out with the indorsements on.

On tlio ncc.iiion of exhibiting the packages of bonds and the in-
dorsements to Mrs. William H. Young, the deceased asked her to
take them in her hands and see what he had written on them. But
this was not intended as a delivery to her, for she asked him whether
he wanted her to take them and put them up and he said no.
After having thus exhibited them ho took them back and placed
them in the safe. The memoranda were made on the 14th of March,
1874. The testator died November 12, 1875. In the meantime
installments of interests on the bonds became due. .The deceased
cut off the coupons, and on some occasions William H. Young
assisted him in so doing, but William H. testified that he never as-
serted any ownership over the bonds as against his father. And the
testimony shows that they wore at all times under the control of
the deceased, although William H. Young and his son James C.
Young also had access to the safe. Those three however were the
only persons having access to the safe and it does not appear that
John N. Young, the other donee named in the memoranda, ever had
any control over the bonds or access thereto. It was also shown
that after the alleged gift, when solicited for a loan, the deceased
said that he supposed he might with the boys' consent take some
of their bonds. Also that he called the attention of his grandson
James G. Young to the memoranda and said, ^^you see what I have
done with them." That he declared to a witness, Benjamin Grant
that what he had left, he had given to William and Newton. That
in September, 1875, he took from one of the enyelopes a bond of
$1,000, being one of those stated in the memorandum indorsed to
belong to John N. Young, and gave it to a third party, but it also

Digitized by



Toong V. Toang.

appeared that he had before makiDg the memorandam presented
John N. Young with •1,000.

This is the substance of all the testimony by which a delivery to
the donee is sought to be established. It shows that the deceased
at no time parted with the possession or control of the bonds, but
merely confirms the intention expressed in the memoranda. The
change of the position of the bonds in the safe where they were kept
from the pigeon-hole to the compartment, might have been signifi-
cant had William H. been the ouly donee, and had the intended
gift been unaccompanied by any reservation. But under the exist-
ing circumstances it cannot be construed into a delivery of the bonds*
In the first place, part of the bonds were stated in the memoranda
to be given to William H. and part to John N. Young. The inten-
tion of the donor toward each of his sons was the same. Yet no
attempt appears to have been made to effect any sort of delivery to
John N. Moreover, the form of the intended gift shows that no
immediate delivery could have been contemplated by the deceased.
The memorandum on each envelope says that the interests to be-
come due on the bonds is " owned and reserved " by the donor.
This interest, up to the dates of the maturity of the bonds re-
spectively, was represented by coupons attached to the bonds. It
clearly could not have been intended to deliver them, for so many
of them as might become due during the life of the donor were re-
served from the gift, as the interest was expressly declared to be
"owned" by the donor, and not parted with. The possession of
these coupons was necessary to enable him to collect the interest,
and he availed himself of it for that purpose from time to time.
No intention was manifested to deliver up these vouchers, and look
to the donees for the interest. No division of the coupons could
be made, for the period of the donor's life was uncertain ; and
further, if all the coupons were retained by the donor, they might
not represent the entire interest reserved by him. The bonds
matured in 1887 and 1888, and some were redeemable earlier ;
and if he had lived until the maturity of the bonds, or until the
United States bonds were called in by the government, as they
were liable to be, the donees would not then have been enti-
tled to the possession of the bonds or their proceeds. The reserva-
tion accompanying the gift would entitle the donor to possession of
the fund. The intention of the donor, as deducible from the
memoranda and the evidence, was, not to part with his title to the

Digitized by


APRIL TERM, 1880. 539

Young V. Yoang.

accraing interest, but to keep the bonds and collect the interest for

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 71 of 123)