As connected with this subject, Mr. Phillipps considers whether a witness may be asked, if he has ever written any letter containing a different statement, without reference to the circumstance whether such a letter is or is not in existence. Mr. Phillipps thinks the question may be asked. Phill. Ev. 932-8, 8th ed.

With regard to the examination of a witness, who, upon cross-examination has been examined touching the declarations formerly made by him, respecting the matters upon which he has given evidence, it cannot be carried further than those declarations so inquired into, and the whole of the conversation which took place cannot be entered into. The rule is thus laid down by Abbott, C. J., in The Queen's case, 2 Br. & Bingh. 298.5 The conversation of a third person with the witness is not in itself evidence in the suit against any party to the suit. It becomes evidence only as it may affect the character and credit of the witness, which may be affected by his antecedent declarations, and by the motive under which he made them; but when once all that had constituted the motive and inducement, and all that may show the meaning of the words and declarations, have been laid before the court, the court becomes possessed of all that can affect the character or credit of the witness, and all beyond this is irrelevant and incompetent."(1)

If that which the witness has stated in answer to the question on his crossexamination, arose out of the inquiries of the person with whom he had the conversation, the witness may be asked in the re-examination, what those inquiries were. He may also be asked what induced him to give to that person the account which he has stated in the cross-examination. 2 Br. & Bingh. 224; Phill. Ev. 940, 8th ed.

Proof of former declarations in support of credit of witness.] Whether it is competent to the party whose witness has been attacked on cross-examination, to give in evidence former declarations of the witness, to the same effect as his testimony for the purpose of corroborating the latter, has been much controverted. (2)

(1) Lamb v. Stewart, 2 Ohio, 230. Stahle v. Spohn, 8 Serg. & Rawle, 317. A witness may object to answer as to what he testified on a former trial. Mitchell v. Hinman, 8 Wend. 667.

(2) That the contradictory statements of a witness cannot be met by proof of others agreeing with his testimony, see Ware v. Ware, 8 Greenl. 82. Jackson v. Etz, 5 Cowen, 314. Munson v. Hastings, 12 Verm. 346. The contrary doctrine is held in Johnson v. Patterson, 2 Hawks, 183. Cook v. Curtiss, 6 Har. & J. 93. Henderson v. Jones, 10 Serg. & Rawle, 322. Coffin v. Anderson, 4 Blackf. 395. A witness whose credit has been impeached by evidence of contradictory statements cannot be sustained by proof of good character. Russell v. Coffin, 8 Pick. 143. Rogers v. Moore, 10 Conn. 13. Contra, Richmond v. Richmond, 10 Yerg. 343.

Proof of declarations made by a witness out of court, in corroboration of testimony given by him on the trial of a cause, is as a general and almost universal rule, inadmissible. It seems, however, that to this rule there are exceptions, and that under special circumstances such proof will be received; as when the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So in contradiction of evidence tending to show that the account of the transaction, given by the witness, is a fabrication of late date, it may be shown that the same account was given by him before its ultimate effect and operation arising from a change of circumstances could have been foreseen. Robb v. Hackley, 23 Wend. 50.

When no design to misrepresent is charged against a witness in consequence of his relation to the party or to the cause, evidence of similar statements made by him on former occasions is not admissible to support the truth of what he may testify. State v. Thomas, 3 Strobhart, 269.

When the credit of a witness has been impeached by proof that in a certain conversation he h Id. vi. 118.

Eng. Com. Law Reps. vi. 121.

In several cases such evidence was admitted upon the examination of the witness in chief. Lutterell v. Reynell, 1 Mod. 282, Sir John Friend's case, 13 How. St. Tr. 32. See also Harrison's case, 12 How. St. Tr. 861. So it is laid down by Gilbert, C. B., that though hearsay be not allowed as direct evidence, yet it may be in corroboration of a witness's testimony, to show that he affirmed the same thing on other occasions, and that he is still consistent with himself; for such [*185] evidence is only in support of *the witness who gives in his testimony upon oath. Gib. Ev. 150, 4th ed. And Hawkins states the rule to be, that what a witness has been heard to say at another time, may be given in evidence in order either to confirm or invalidate the testimony which he gives in court. Hawk. P. C. b. 2, c. 46, s. 48. These writers were followed by Mr. Justice Buller, in his treatise on the law of nisi prius, citing the case of Lutterell v. Reynell, B. N. P. 294; but he seems afterwards to have changed his opinion.

The first case in which this evidence appears to have been rejected is Parker's case, 3 Dougl. 242, which was a prosecution for perjury, tried before Eyre, B. For the prosecution, the depositions of a deceased person were given in evidence, and upon the cross-examination of one of the prosecutor's witnesses, certain declarations of the deceased person, not on oath, were proved for the purpose of corroborating some facts in the deposition material to the prisoner; Eyre, B., rejected the evidence of those declarations, and the court of King's Bench, on a motion for a new trial, held the rejection proper. Buller, J., said that the evidence was clearly inadmissible, not being upon oath; that it was now settled, that what a witness said, not upon oath, could not be admitted to confirm what he had said upon oath, and that the case of Lutterell v. Reynell, and the passage cited from Hawkins were not now law. Parker's case, 3 Dougl. 244. This case was referred to by Lord Redesdale in the Berkely Peerage case, where his lordship gave his opinion in conformity with that decision. Lord Eldon also expressed his decided opinion that this was the true rule to be observed by the counsel in the cause, but thought that the question might be asked by the house. Phill. Ev. 944, 8th ed.(n). In conformity with these latter decisions, the rule is laid down by Mr. Phillipps, with this exception, that where the counsel on the other side impute a design to misrepresent from some motive of interest or friendship, it may, in order to repel such an imputation, be proper to show that the witness made a similar statement at the time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts. Phill. Ev. 945, 8th ed. So it is said by Sir W. D. Evans, "If a witness speaks to facts negativing the existence of a contract, and insinuations are thrown out that he has a near connexion with the party on whose behalf he appears, that a change of market, or any other alteration of circumstances has excited an inducement to recede from a deliberate engagement, the proof by unsuspicious testimony, that a similar account was given when the contract alleged had every prospect of advantage, removes the imputation resulting from the opposite circumstance, and the testimony is placed upen the same level which it would have had, if the motives for receding from a previous intention never had existed. Upon accusations for rape, where the forbearing to mention the circumstance for a considerable time, is itself a reason for imputing fabrication, unless repelled by other

had made statements inconsistent with the truth of his testimony, he may on his re-examination be asked and may state what that conversation was to which the impeaching witness referred. The State v. Winkley, 14 N. Hamp. 480.

i Eng. Com. Law Reps. xxvi. 95.

considerations, the disclosure made of the fact upon the first proper opportunity after its commission, and the apparent state of mind of the party who has suffered the injury, are always regarded as very material, and the evidence of them is constantly admitted without objection." Notes to Pothier on Oblig. vol. ii. p. 251.(1)

*PRIVILEGED COMMUNICATIONS.

[ *186 ]

General rule

What persons are privileged-professional advisers
Form of oath by witnesses claiming to be privileged
What matters are privileged

Production of deeds, &c.

What matters are not privileged—matters of fact
Attorney party to transaction

What other persons are privileged-grand jurors

Matters before grand jury

Judges and jurors

What other matters are privileged-disclosures by informers, &c.
To whom

General rule.] Although a witness is sworn to speak the truth, the whole truth, and nothing but the truth, yet there are certain matters which he is not only not bound to disclose, but which it is his duty, even under the obligation of an oath, not to disclose. Where a communication takes place between a counsel or an attorney, and his client, or between government and some of its agents, such communication is privileged, on the ground that should it be suffered to be disclosed, the due administration of justice and government could not proceed; such administration requiring the observance of inviolable secrecy. But the rule does not extend beyond the two classes of persons above mentioned, whatever obligation of concealment the party may have incurred. (2)

What persons are privileged-professional advisers.] Except in the case of matters of state, the privilege of not disclosing confidential communications is con

(1) Where a jury are left in a reasonable and real doubt as to the credibility of a witness, they should disregard his testimony, and give such a verdict as they would have done, if he had not been a witness. Miller v. Richardson, 2 Iredell's N. C. Law Rep. 250.

(2) Mills v. Griswold, 1 Root, 383. Id. 486. Holmes v. Comegys, 1 Dallas, 439. Corp v. Robinson, 2 Wash. C. C. Rep. 388. Hoffman et al v. Smith, 1 Caines, 157. Calkins v. Lee, 2 Root, 363. Sherman v. Sherman, 1 Id. 486. Caveney v. Tannahill, 1 Hill, 33. 2 Stark. Ev. New Ed. 229, n. 1.

To exclude the testimony of an attorney, it is not necessary that there should be a su't pending. Beltzhoover v. Blackstock, 3 Watts, 20. It is sufficient if the witness were consulted professionally and acted or advised as counsel. Ibid. Foster v. Hall, 12 Pick. 89. Johnson v. Bank, 1 Harrington, 117. Rogers et al v. Daw, Wright, 136.

To exclude the communications of client to counsel from being given in evidence, it is not necessary that they should have been given under any injunction of secrecy. Wheeler v. Hill, 16 Maine, 329.

fined to counsel, solicitors, attorneys, and their agents and clerks. Wilson v. Rastall, 4 T. R. 758, 759; Duchess of Kingston's case, 11 St. Tr. 243, fo. ed., 20 How. St. Tr. 575. Other professional persons, whether physicians, surgeons, or clergymen, have no such privilege. Ibid. Thus, where the prisoner, being a Roman Catholic, made a confession before a Protestant clergyman, of the crime for which he was indicted, that confession was permitted to be given in evidence at the trial, and he was convicted and executed. Sparke's case, cited Peake, N. P. C. 78. Upon this case being cited, Lord Kenyon observed, that he should [*187] have paused before he *admitted the evidence; but there appears to be no ground for this doubt. In Gilham's case, Ry. & M. C. C. R. 198, it was admitted by the counsel for the prisoner that a clergyman is bound to disclose what has been revealed to him as matter of religious confession; and the prisoner in that case was convicted and executed.(1)

A person who acts as an interpreter between a client and his attorney will not be permitted to divulge what passed; for what passed through the medium of an interpreter is equally in confidence as if said directly to the attorney; but it is otherwise with regard to conversation between the interpreter and the client in the absence of the attorney. Du Barré v. Livette, Peake, N. P. C. 77, 4 T. R. 756. 20 How. St. Tr. 575(n.) So the agent of the attorney stands in the same situation as the attorney himself. Parkins v. Hawkshaw, 2 Stark, N. P. 239.* So a clerk to the attorney. Taylor v. Forster, 2 C. & P. 195. R. v. Inhabitants of Upper Boddington, 8 D. & R. 732. So a barrister's clerk. Foote v. Hayne, . Ry. & Moo. 165.4(2)

The privilege is that of the client, and not of the attorney, and the courts will prevent the latter, although willing, from making the disclosure. Bull. N. P. 284. Wilson v. Rastall, 4 Tr. 759. See the arguments in Annesley's case, 17 How. St. Tr. 1224, 1225. But if the attorney of one of the parties is called by his client and examined as to a matter of confidential communication, he may be cross-examined as to that matter, though not as to others. Vaillant v. Dodemead,

2 Atk. 524.

The rule applies not only to the professional advisers of the parties in the case, but also to the professional advisers of strangers to the inquiry. Thus an attorney is not at liberty to disclose what is communicated to him confidentially by his client, although the latter be not in any shape before the court. Wither's case, 2 Campb. 578.

But a person, though by profession an attorney, if not employed in the particular business which is the subject of inquiry, is not precluded from giving evidence, though he may have been consulted confidentially. Thus, where a prisoner in custody for felony, who was not even allowed to see his wife, wrote to a friend, "to ask Mr. G., or some other solicitor, whether the punishment was the same, whether the names forged were those of real or fictitious persons;" Park, J., held that this was not a privileged communication, Mr. G. not being the prisoner's attorney. Brewer's case, 6 C. &. P. 363 ;* and see 4 T. R. 753, 5 C. & P. 436. So where

(1) A confession made to a Roman Catholic priest is not evidence. Smith's case, 1 Rogers' Rec. 77. Contra by Gibson, C. J., Simon's Ex. v. Gratz, 2 Penna. Rep. 417. But confessions to a Protestant divine are not privileged. Smith's case, supra. Commonwealth v. Drake, 15 Mass. 161. See Phillips's case, Sampson's Roman Catholic Question in American Pamphlet. (2) Jackson v. French, 2 Wend. 337; but not a student in his office. Andrews et al. v. Solomon et al. Peters's C. C. Rep. 356.

a Eng. Com. Law Reps. iii. 332.
• Id. xxv. 438.

b Id. xii. 85.

• Id. xvi. 350. Id. xxiv. 399.

d Id. xi. 466.

a person not being an attorney is consulted by another, under a false impression that he is such, will not be privileged from disclosing what passes. Fountain v. Young, 6 Esp. 113.

So an attorney is not privileged from disclosing matters communicated to him. before his retainer, or after it has ceased, for then he stands clearly in the same situation as any other person.(3) Bull. N. P. 284. Where an attorney was employed to put in suit a note, and after the suit was settled the client told him that he knew it was a lottery transaction, the attorney, in an action to recover the money, was allowed to give evidence of this conversation. The court said that the purpose in view (in employing the attorney) had been already obtained, and what was said by the client was in exultation to his attorney, on having before deceived him, as well as his adversary. Cobden v. Kenrick, 4 T. R. 431. "This communication," observes *Lord Brougham, in commenting on the case, [188] "was not made professionally, but by way of idle and useless conversation; had the matter been confided with a view to some future proceedings, or, without any regard to a suit, had it been communicated for a purpose of business, it would certainly have been protected." Greenough v. Gaskell, 1 Mylne & K. 109.

Form of oath by witnesses claiming to be privileged.] In general a witness who is privileged from disclosing facts which have come to him in his professional capacity, is sworn in the usual manner to speak the truth, the whole truth, and nothing but the truth. But where a person who had been counsel for one of the parties, declined to take the usual oath, the court permitted him to take an oath to declare such things as he knew before he was counsel, or as had come to his knowledge since, by any other person; and the particulars to which he was to be sworn were specially stated. Spark v. Sir H. Middleton, 1 Keb. 505; 12 Vin. Ab. 38. It has been observed that a precaution like this seems to arise out of an excessive tenderness of conscience; for that the general obligation of an oath, to declare the whole truth, must, with reference to the subject-matter and occasion of the oath, be necessarily understood to mean the truth so far as it ought legally to be made known. (1) 2 Stark. Ev. 232, citing Paley's Moral Philosophy.

What matters are privileged.] Although some doubt has been entertained as to the extent to which matters communicated to a barrister, or an attorney in his professional character are privileged, where they do not relate to a suit or controversy either pending or contemplated, and although the rule was attempted to be restricted by Lord Tenterden, to the latter cases only; see Clark v. Clark, 1 Moody & Rob. 4; Williams v. Mundie, Ry. & Moo. 34; yet it seems to be at length settled, that all such communications are privileged, whether made with reference to a pending or contemplated suit or not. See all the cases commented upon by the L. C. in Greenough v. Gaskell, 1 Myl. & K. 100. See also Walker v. Wildman, 6 Madd. 47; Mynn v. Joliffe, 1 Moo. & Ry. 326; Moore v. Tyrrell, 4 B. & Ad. 870.h

With regard to the nature of the communications touching the matters which are privileged, the following description of them by Mr. Alison, in his Practice of the Criminal Law of Scotland, p. 469, appears to be comprehensive and correct,

(3) So if after the relation has ceased, the client voluntarily repeats to him what had been before communicated in his professional character. Jordon v. Hess, 13 Johns. 492. (1) A witness competent in chief must be sworn generally. Jackson v. Parkhurst, 4 Wend.

369.