By the Scotch law such communications are protected. By the New York Civil Code, § 1710, Cl. 3, it is provided that:

"A clergyman, or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character, in the course of discipline, enjoined by the church to which he belongs."

§ 348. As regards an ordinary agent, his communications with his principal must be disclosed. So in the proceedings under the Mandamus in Douglas' case held in the Supreme Court, his agents were compelled to produce their books and show the state of his account, with a view to ascertain whether he had received sums largely in excess of his pay.

§ 349. The communications between a client and his professional adviser, in order to be privileged, must have been made in a professional capacity, or with a view to advice: but it is not necessary that any secret should have been communicated at the time of the advice sought. Secrets which come to the knowledge of the Pleader subsequently, in consequence of his being retained or consulted, equally fall within the rule: nor does the protection terminate with the termination of the particular litigation which has elicited the communication. The seal of the law once set upon a privileged communication rests upon it for ever, unless it be removed by the waiver of the party.

§ 350. There are a few other heads of a similar character to those already given concerning professional confidence, which it may be most convenient to dispose of here.(9)

§ 351. Judges are not compellable to testify as to matters in which they have been judicially engaged.

§ 352. A case of Arbitration is governed by the same policy. Arbitrators cannot be compelled to disclose the grounds of their award, unless under very cogent circumstances, such as an allegation of fraud; and this may be taken as another illustration of the maxim. "Interest reipublicæ ut sit finis litium." On this subject, Taylor, § 682, writes:

66

Judges, arbitrators and counsel may be mentioned as forming a second

(f) In connection with this Taylor, § 660–3 may be advantageously consulted, and see ante § 70-1.

(9) Although the principal topic immediately under consideration is that of Production of Documents, it is convenient to exhaust the subject of privileged communications, when it is once entered upon.

class of persons, who, from motives of public policy, are not compelled 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 the chairman of the Quarter Sessions, as to what a person testified in a trial in that court. The case of arbitrators is governed by the same general policy; and neither the courts of law nor of equity will disturb decisions deliberately made by arbitrators, by requiring them to disclose the grounds of their award, unless under very cogent circumstances, such as upon an allegation of fraud; for Interest reipublicæ ut sit finis litium. If an award be made in favor of a defendant, upon the examination of the parties, or the inspection of their books, which would not have been legal evidence had the cause been tried, the arbitrator, in an action for a malicious arrest, brought by the defendant against the former plaintiff, will not be permitted to depose as to what transpired before him, though, in ordinary cases, where he has proceeded according to strict rules of law, he may, by his own consent, be examined respecting the facts proved, or the matters claimed, at the reference. On the same ground, it has been held that a barrister cannot be forced to prove what was stated by him on a motion before the court; 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."

§ 353. Grand jurors are within the rule. They are sworn " to keep secret their fellows' counsel and their own." See Taylor, § 686.

§ 354. So also are petty jurors. On this point, Taylor, § 687, writes as follows:

"On similar grounds of public policy, and for the protection of parties against fraud, the law excludes the testimony of traverse or petty jurors, when offered to prove mistake or misbehaviour in the jury in regard to the verdict. Thus, where a motion was made to amend the postea by increasing the damages, the Court refused to admit an affidavit sworn by all the jurymen, in which they stated their intention to have been to give the plaintiff such increased sum. So, also, on several occasions, affidavits that verdicts have been decided by lot have been rejected on motions for new trials, whether such affidavits were sworn by individual jurymen, or by strangers,

stating the subsequent admissions of jurors to themselves, or even that a declaration had been made by one juror in the hearing of his fellows in open Court after the verdict had been pronounced. In all cases of this kind, the Court must obtain their knowledge of the misconduct complained of, either from the officer who had charge of the jury, or from some other person who actually witnessed the transaction."

§ 355. Allied to this, is the objection that the communication relates to secrets of State. See ante § 70 note. The various cases falling under this description are thus enumerated by Taylor, § 689.

"On similar grounds, the official transactions between the heads of the departments of Government and their subordinate officers, are, in general, treated as secrets of State. Thus, communications between a colonial governor and his attorney-general, on the condition of the colony or the conduct of its officers; or between such governor and a military officer under his authority; the report of a military commission of inquiry, made to the com mander-in-chief; and the correspondence between an agent of the government and a Secretary of State; or between the Directors of the East India Company and the Board of Control; or between an officer of the Customs and the Board of Commissioners,—are confidential and privileged matters, which the interests of the State will not permit to be revealed. The Preside nt of the United States, and the Governors of the several States, are not bound to produce papers or disclose information communicated to them, where, in their own judgment, the disclosure would on public considerations be inexpedient. And where the law is restrained by public policy from enfor cing the production of papers, the like necessity restrains it from doing what would be the same thing in effect, namely, receiving secondary evidence of their contents. It has, however, been held, that, in an action of trespass brought against the governor of a colony, a military officer under his control might be asked in general terms, whether he did not act by the direction of the defendant, though the written instructions could not be given in evidence. But communications, though made to official persons, are not privileged, where they are not made in the discharge of any public duty; such, for example, as a letter by a private individual to the chief secretary of the postmaster-general, complaining of the conduct of the guard. of the mail towards a passenger."

§ 356. Letters addressed to Government officially are not producible without the consent of Government. See Hayes v. Graham, East's notes of cases, case 74 decided 29th Jan. 1818,() and this objec

(h) Sir Hyde East's notes of cases, and also Sir Erskine Perry's are collected in the 2nd Vol. of Morley's Digest. Sir E. Perry has also published his Notes in a separate form.

tion may be taken on behalf of Government by a Collector. See C. O. S. A. 17th June 1824.

§ 357. The neglect of a witness to produce a document will not be sufficient ground for admitting secondary evidence of its contents; but where a document has been transferred to the adverse party with the fraudulent intention of preventing its production, secondary evidence of its contents is admissible. If this rule were otherwise, a party might in many cases be able to deprive his adversary of important evidence by collusion with his adversary's witnesses; on the other hand too, if the secondary evidence were admissible merely on the ground that a document was not forthcoming, no fraud being shown, it might lead to very inconvenient latitude in the reception of inferior evidence; as when a party prevented his own witness from producing a document; and therefore, on the score of general convenience, the law determines that as the least of two evils, the party requiring the evidence, shall under such circumstance lose the benefit of it, rather than open the door to the chance of fraud.

§ 358. Notice or Summons to produce a document must be given a reasonable time before the trial. The Court will decide what is a reasonable time, which will vary with the particular circumstances of each case; according to the distance at which the witness resides, the necessity for search, and the like.

§ 359. The Notice or Summons should specify the document required with as much particularity as lies in the party's power.

CHAPTER XXII.

III. PROTECTION OF WITNESSES, &c.

§ 360. It may be shortly stated that witnesses are protected from ti arrest eundo, morando, et redeundo," i. e. on their way to the Court, at Court, and on their way back, Taylor, § 936, may be usefully consulted here.

"In order to encourage witnesses to come forward voluntarily, they, as well as parties, barristers, attorneys, and, in short, all persons who have that relation to a suit which calls for their attendance, are protected from arrest,

(i) See the case of in R. v. Douglas, 3. Q. B. R. 837, where the arguments are worth perusal. That was a case of arrest after leaving Court.

PROTECTION OF WITNESSES.

161 while going to the place of trial, while attending there for the purpose of the cause, and while returning home; eundo, morando, et redeundo. The service of a subpoena or other process is not necessary in order to afford the witness this protection, provided he has consented to come without such service and actually does attend in good faith; and, therefore, the privilege extends to a witness coming from abroad without a subpoena. In determining what constitutes a reasonable time for going, staying, and returning, the Courts are disposed to be liberal; and provided it substantially appears that there has been no improper loitering or deviation from the way, they will not strictly enquire whether the witness or other privileged party, went as quickly as possible and by the nearest route. Thus the rule of protection has been held to apply, where a witness, two hours after he had left the court, was arrested about a mile off in the direct road to his house; where a defendant, who had attended his cause in the morning, went to a tavern near the court in the afternoon, to dine with his attorney and witnesses; where a party had been staying for some days at a coffee-house near the court, waiting for the trial of his cause, which was a remnant, but was not in the list of causes for the day on which the arrest happened; where a party attending an arbitration was arrested during an adjournment of the reference from one period to another of the same day; where a witness, in a cause tried on Friday afternoon, was arrested in the assize town on Saturday evening, as she was entering a stage coach which was to convey her home; where a plaintiff, on leaving court, called at his office for refreshment, and then on his way home went to his tailor's, in whose shop he was arrested; and even where a witness from abroad, on finding that the trial was postponed till the next sittings, determined to wait till it came on, and was arrested on the eighth day after his arrival."

§ 361. An amusing instance occurred in the Supreme Court during the first Sessions of the year 1852.

Gholam Moortooza Khan had been indicted and found guilty of concealing a watch at the time of his passing through the Insolvent Court. He was brought up to receive sentence. He had at that moment many writs out against him; now the law gives protection to a witness compelled to give evidence, not to a prisoner called up to receive sentence. When Gholam Moortooza Khan had paid the fine to which he was sentenced, and had left the Court, he was arrested at the suit of one of his creditors, but he seems to have been well advised; for he instantly produced a summons from the Small Cause Court to attend there as a witness: and as he was then on his way there, he was protected, eundo-and also while there, morando-and on his

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