Morton v. Morris

5 Ky. Op. 127, 1872 Ky. LEXIS 235

• Court: Court of Appeals of Kentucky
• Decided: January 18, 1872
• Status: Published

Opinion

Opinion by

Judge Peters:

This suit was brought by appellee against appellant to recover $440. A sum which appellee alleges he had previously loaned appellant.

On the trial A. S. Berry was offered as a witness by the plaintiff below, who proved that within five years the defendant (below) came to him and said he wished him to fix up the title to some land in Indiana, as he wanted it to- pay the plaintiff some money he 'had advanced to him to start him in the saloon business, that he was indebted to plaintiff for money advanced to him, $300, $400 or $500, he did not remember which sum certainly, but 'believed, he said, about $400, and he would pay him in land. He also stated he acted as attorney for Morton and expected to charge him.

Appellant -then moved the court to exclude the evidence of Berry from the jury, which motion the court overruled. And the correctness of that ruling of the court is called in question by this appeal.

Hawkins & Boden, for appellant. J. R. Hallam, for appellee.

And it is insisted by appellant that the witness should not have been permitted to prove the communications made to him by appellant, because they were the confidential communications to his attorney by appellant, which are privileged communications.

The rule of law is recognized that a counsel, solicitor or attorney will not be permitted to divulge any matter which has been communicated to him in professional confidence. This, as is said by S'tarke 2, Vol. 395, is the privilege of the client, and is founded on the policy of the law, which will not permit a person to betray a secret which the law has intrusted to him.

But in determining the question, it is necessary to ascertain what is the legal meaning of secret or confidential communications between attorney and client.

They are defined by Chancellor Kent to be instructions given for conducting a cause, and not for any extraneous or impertinent communications. In this case appellant had no- cause in court, nor had the facts proved any pertinency to the business which Berry as attorney was engaged to transact for appellant. The business of the attorney was to fix up the title to some lands in Indiana, and the statement that he wished the land to secure the debt to appellee had no particular relation to the business to be transacted and constituted no part of the instructions necessary to the performance of the professional duty in which Berry was engaged. In the language of Lord Kenyon, it was a mere gratis dictum which Berry was under no obligation to keep secret in his character of attorney.

The ruling in this case accords with the opinion of Chancellor Kent in Riggs v. Denniston, 3 John; cases 198.

Perceiving no error prejudicial to appellant the judgment must be affirmed.