§ 935. The legal adviser, too, is bound to furnish any informa- § 856 tion in his power which may lead to the discovery of his client's address, especially if that client be a ward in Chancery, who is attempting to conceal his residence from the court. So, also, he may be called to identify his client as the person who has put in any pleading, or sworn any affidavit, because these acts, so far from being secrets, are in their very nature matters of publicity. From one case it would even seem that a solicitor might be compelled to divulge the character in which his client employed him, as, for instance, whether as executor, or trustee, or on his own private account; but, in America, it has been held, that counsel could not state whether they were employed to conduct an ejectment for their client, as landlord of the premises. A solicitor, who has prepared a will at the instance of a party benefited by it, is not privileged to withhold from the Probate Division of the High Court any facts, which are connected with contemporaneous business transacted between the testator and himself on account of his client the legatee, when his opinion of the testator's capacity to make a will is in any degree founded on such facts." § 936. Moreover, the privilege does not attach to unnecessary § communications made by a client to his legal adviser; and therefore a prosecutor's solicitor has been allowed to state that, pending the proceedings on the indictment, his client had observed to him that he would give a large sum to have the prisoner hanged; and, in an action brought by a solicitor for his bill, where the question 474, S. C.; Bevan v. Waters, M. & M. 235, per Best, C. J.; Eicke v. Nokes, id. 303; Roupell v. Haws, 3 Fost. & Fin. 797, per Channell, B. 1 Ramsbotham v. Senior, 8 Law Rep., Eq. 575, per Malins, V.-C.; Burton v. Ld. Darnley, id. 576, n.; Ex parte Campbell, 5 Law Rep., Ch. Ap. 703. But see Heath v. Crealock, 15 Law Rep., Eq. 257, per Bacon, V.-C. 2 B. N. P. 284, b.; Studdy v. Sanders, 2 D. & R. 347; Doe v. Andrews, 2 Cowp. 846, per Ld. Mansfield; cited by Ld. Brougham in 1 Myl. & K. 108, overruling R. v. Watkinson, 2 Str. 1122. 3 Beckwith v. Benner, 6 C. & P. 681, per Gurney, B. 4 Chirac v. Reinicker, 11 Wheat. 280, 295. 5 Jones v. Goodrich, 5 Moo. P. C. R. 16, 25. 6 Annesley v. Ld. Anglesea, 11 How. St. Tr. 1223-1244; Cobden . Kendrick, 4 T. R. 431, cited ante, § 931. was whether he had been employed by the defendant or by a third party, a statement made by the plaintiff to his solicitor, on introducing such third party to him, was held to be excluded from the rule of privilege.1 So, if a solicitor attests an instrument which his client executes, he may be compelled to prove the execution; for by becoming a subscribing witness he makes himself a public man, and pledges himself to give evidence on the subject, whether he be called by the party to whom the deed is executed, or by any other person who claims an interest in the property.2 § 937. But where the assignees of a bankrupt, in an action of $858 assumpsit brought by them, endeavoured to establish that the bankrupt had made a fraudulent conveyance to his son, and, in order to prove this transaction, called the bankrupt's solicitor, Lord Ellenborough held that, though, as attesting witness to the deed, he was bound to disclose what took place at the time of its execution, he was privileged from stating what occurred during its concoction and preparation, and could not be asked whether it had not been subsequently destroyed, if the only knowledge he had, as to its concoction, preparation or destruction, was acquired from his confidential situation as solicitor.3 So, a legal adviser cannot, as it would seem, disclose in what condition an instrument was when it was intrusted to him by his then were stamped, or indorsed, or had an erasure upon it; and in an action of trover for a lease, brought by the assignees of a bankrupt, where the question was whether the lease had been deposited client, as whether or not it 1 Gillard v. Bates, 6 M. & W. 547; 8 Dowl. 774, S. C. See, also, Caldbeck v. Boon, I. R. 7 C. L. 32. 2 Doe v. Andrews, 2 Cowp. 845; Robson v. Kemp, 5 Esp. 53; 4 id. 235 ; Sandford v. Remington, 2 Ves. 189. 3 Robson v. Kemp, 5 Esp. 52. 4 Wheatley v. Williams, 1 M. & W. 533. In B. N. P. 284 a, it is stated, that, "if the question were about a rasure in a deed or will, the attorney might be examined to the question, whether he had ever seen it in any other plight;" but, in Wheatley v. Williams, Ld. Abinger observed, that this passage "must apply to a case where the attorney has his knowledge independently of any communication from the client; it cannot mean that where the attorney, coming to the client for a confidential purpose, obtains some other collateral information which he would not otherwise have possessed, he can be compelled to disclose it." p. 541. See, also, Brown v. Payson, 6 New Hamps. 443. with the defendant by the bankrupt before or after the bankruptcy, a solicitor, who, after the act of bankruptcy, had been applied to by the bankrupt to procure a loan, was not permitted to state whether his client had, on that occasion, brought to him the lease, for the purpose of raising money upon it.1 § 938.2 Judges, arbitrators, and counsel form a third class of $559 persons, who, from motives of public policy, are perhaps not compellable to testify as to certain matters, in which they have been judicially or professionally engaged; though, like ordinary persons, they may be called upon to speak to any foreign and collateral matters, which happened in their presence, while the trial was pending, or after it was ended. In regard to judges of courts of record, it is considered dangerous, or at least highly inconvenient, to compel them to state what occurred before them in court; and on this ground the grand jury have been advised not to examine a chairman of quarter sessions, as to what a person testified in a trial in his court. The case of arbitrators is governed by the same general policy; and the courts will not disturb the deliberate decision of an arbitrator, by requiring him to disclose the grounds of his award, unless under very cogent circumstances, such as upon an allegation of fraud; for Interest reipublicæ ut sit finis litium. Of course, a judge or an arbitrator may, by his own consent, be examined respecting the facts proved, or the matters claimed, at the trial or the reference;6 and an arbitrator may be asked questions for the purpose of showing that he has exceeded his powers, as, for instance, by awarding compensation for injuries not included in the matters submitted to him. With 1 Turquand e. Knight, 2 M. & W. 98. 2 Gr. Ev. § 249, in part. 3 R. v. E. of Thanet, 27 How. St. Tr. 845-848; Ponsford v. Swaine, 1 Johns. & Hem. 433. 4 R. v. Gazard, 8 C. & P. 595, per Patteson, J. 5 Johnson v. Durant, 4 C. & P. 327; 2 B. & Ad. 925, S. C.; Ellis v. Saltau, 4 C. & P. 327, n. a. ; Ponsford v. Swaine, 1 Johns. & Hem. 433; Story, Eq. Pl. §§ 599, 824, 825, n.; 2 Story, Eq. Jur. §§ 1457, 1498; Anon., 3 Atk. 644. 6 Martin v. Thornton, 4 Esp. 181, per Ld. Alvanley. 7 D. of Buccleuch v. Met. Board of Works, 5 Law Rep., H. L. 418; 41 L. J., respect to barristers, it has been held that they cannot be forced to prove what was stated by them on a motion before the court;1 and the like privilege has been strenuously claimed, though not expressly recognised, where a counsel was called upon as a witness to disclose a confidential negotiation, into which, on behalf of his client, he had entered with a third party, though the client himself waived all objection to the course of examination proposed.2 § 939.3 A fourth class of cases, in which evidence is excluded § 860 from motives of public policy, comprises secrets of State, or matters, the disclosure of which would be prejudicial to the public interest. These matters are such as concern the administration, either of penal justice, or of government; but the principle of public safety is in both cases the same, and the rule of exclusion is applied no further than the attainment of that object requires. Thus, in Crown prosecutions, and in Exchequer informations for frauds committed against the revenue laws, witnesses for the Crown will not, on cross-examination, be permitted to disclose either the names of their employers, or the nature of the connexion between them, or the names of the persons from whom they received information, or the names of those to whom they gave information, whether such last-mentioned persons were magistrates, or actually concerned in the executive administration, or were only the channel through which the 'communication was made to Government. Neither can the witness be asked whether he himself was the informer.5 "It is perfectly right," said Lord Chief Justice Eyre, in Hardy's case," "that all opportunities should be afforded to discuss the truth of the evidence given against a prisoner; but there is a rule, which has universally 4 Ex. 137, per Dom. Proc., S. C.; 5 Law Rep., Ex. 221, per Ex. Ch. ; 39 L. J., 1 Curry v. Walter, 1 Esp. 456, per Eyre, C. J. 2 Baillie's case, 21 How. St. Tr. 358-361. 3 Gr. Ev. § 250, in great part. 4 R. v. Watson, 32 How. St. Tr. 100-103; 2 Stark. R. 135, S. C.; R. v. Hardy, 24 How. St. Tr. 753, 808-820; 1 Ph. Ev. 178-180. Att.-Gen. v. Briant, 15 M. & W. 169. 624 How. St. Tr. 808. obtained, on account of its importance to the public for the detection of crimes, that those persons, who are the channel by means of which the detection is made, should not be unnecessarily disclosed." § 940. The protection afforded by this rule will be equally § sel upheld, though the witness, in his examination in chief, has admitted that suggestions have been made to him on the part of the Government; and the doctrine has been even carried so far, that, where a witness, believing the views of certain parties to be dangerous to the State, had consulted a private friend as to what steps he should pursue, and the friend advised him to communicate the information to Government, a majority of the learned judges held that the name of his friend could not be disclosed.* They were also, in the same case, unanimously of opinion, that all questions tending to the discovery of the channels by which the information was given to the officers of justice, were, upon the general principle of public convenience, to be suppressed; that all persons in that situation were protected from the discovery; and that, if an objection were raised to the question, it was no more competent for the defendant to ask who had advised the witness to give information, than to ask to whom he had given it in consequence of that advice, or to put any other question respecting the channel of communication. The witness, however, may still be asked, though little practical advantage can be gained by putting such a question,-whether the person to whom the information was communicated was a magistrate or not. 5 § 941. It may well be doubted whether this rule of protection § 862 extends to ordinary prosecutions; and even when it applies,—as 1 R. v. O'Connell, Arm. & T. 178, 179. See, also, pp. 233, 240, of the same report, where the general doctrine was recognised and acted upon. R. v. Hardy, 24 How. St. Tr. 808-820, Eyre, C. J., Hotham, B., & Grose, J., pro: Macdonald, C. B., & Buller, J., con. 3 Gr. Ev. § 250, in part. 4 24 How. St. Tr. 816, per Eyre, C. J. • Id. 808. Richard Att.-Gen. v. Briant, 15 M. & W. 181, per Pollock, C. B.; R. v. son, 3 Fost. & Fin. 693, per Cockburn, C. J. |