Gower v. Emery , 18 Me. 79 ( 1841 )

The opinion of the Court was by

Weston C. J.

The privilege of a client, in regard to confidential communications, made by him to his counsel, was fully investigated and discussed, in Foster v. Hall, 12 Pick. 89. It cannot be necessary to go over the same ground. We refer to that case, and the authorities there cited, as presenting a fair and full elucidation of the doctrine. It is there said, that the privilege, although extended to all cases, where the advice of counsel is sought, whether in reference to a suit contemplated or pending, or not, ought to be strictly construed ; as it has a tendency to prevent a full disclosure of the truth.

Thus the attorney is bound to disclose facts, coming to his knowledge in consequence of his employment, not of the nature of confidential communications. As the execution of a deed, especially if he witnessed it, the identity or handwriting of his client; the fact that he made oath to an answer in chancery, and all other facts, not within the range of professional confidence. Doe v. Andrews, Cowper, 846; Hurd v. Moring, 1 Carr, & P. 372. The objection, made by the counsel for the defendant, to the testimony of Mr. Kinsman, we understand to have been overruled by the presiding Judge, so far as to permit him to testify, by whom he was employed.

We cannot regard this as matter of professional confidence, at least unless counsel is apprized, or has reason to believe, that his client desires that this fact should be concealed. No such inference is to be drawn from the testimony of the witness. The defendant, Buxton, made no intimation of a wish not to be known in the business. He solicited no advice, tending to produce such an impression, upon the mind of the witness. When the counsel delivered the writ to the officer, a fact finally brought to his recollection, the officer might well have inquired, as some controversy as to the property was apprehended, by whom he was to consider himself employed. An answer truly made to this inquiry, would be no breach of the privilege of his client. It would disclose his principal to a party having a right to know, in a matter neither communicated as a secret, nor of a character, requiring any reserve on bis part. The fact, that he was employed by Buxton, and was directed by him to follow the orders of Stimgson, might, without any violation of confidence, so far as we can discern, be made known to the officer, and was, in our judgment, testimony legally admissible.

The evidence in the case was of a character, which might satisfy the jury, that Buxton had an interest in the subject matter of the suit, upon which the goods were attached. The jury, having found that interest, and Buxton having ordered the goods to be attached, the plaintiff', in obeying his orders, acted as bis agent. In such case, a promise of indemnity is implied, upon the principles of natural justice. Had the order been to do a known wrong, no such promise would have been implied ; nor would, in such case, an express promise or covenant have been legally binding.

But if an agent, by order of his principal, commits a trespass upon tlie property of another, acting bona fule, without any suspicion of wrong, be has a claim for reimbursement upon his principal, for all the damages he sustains thereby. Story on Agency, <§> 339, and the cases there cited. Goods in the possession of a debtor, are apparently subject to the attachment of his creditor. But if the officer has reason to believe, that any controversy may arise in relation to the title, lie may require, that tiie creditor shall show or point out the goods, and may insist upon an indemnity. Bond v. Ward, 7 Mass. R. 123. And such contracts of indemnity are enforced at law. When implied, from the direction of the creditor, or party in interest, the officer is equally entitled to be reimbursed for any damage he may have sustained.

The defendant, Buxton, has been charged, together with the other defendant, who was the plaintiff of record in the suit, uporl which the goods were attached. It does not appear, that Buxton claimed to be interested, or to have a right to interfere, to the exclusion of the nominal plaintiffs. The implication rather is, that he was interested in connection with them. The other defendant has been defaulted; and we perceive no legal objection to their joint liability. It does not appear to us, that there is any error ki the instructions of the Judge, or in the measure of damages, of which the defendants have a right to complain. And the motion to set aside the verdict, as against the weight of evidence, is overruled.

Judgment on the verdict.