Lord Say and Seal's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | High Court |
English Reports Citation: 88 E.R. 617
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER
case 31. lord say and seal's case. An attorney who is employed in suffering a common recovery is not privileged from giving evidence of the day on which the deeds were executed. [/pan a trial afc Bar in the Court of King's Bench, in au ejectment brought by the heirs at law againat the Lord Say and Seal, who claimed as heir in tail; The single question was, whether or no a common recovery that was suffered in order to dock the intail, waa good or not? The objection to the recovery was, that there was no tenant to the prcecipe. To prove the recovery good, a deed bearing date the twenty-third of October 1701, directing the usea of the recovery, and the fine, viz. the chirograph of the fine, and common recovery, were produced. The counsel for the Lord Say and Seal desired to call one Knight, an attorney at law, to prove, that though [41] the deed was dated the twenty-third of October, it was not executed until five months after, viz. in March. N.B. The attorney was the person intrusted in suffering the common recovery. The counsel for the heirs at law opposed the swearing the attorney, because as an attorney has a privilege not to be examined as to the secrets of his client's cause, so the attorney's privilege was likewise the client's privilege; for the client intrusts an attorney with the secrets of his cause, upon confidence not only that he will not, but also that though he would yet he should not, be admitted by the law to betray his client; and for this Holbecfie's case was relied upon. Besides, it was said that his evidence would tend to accuse himself either of ignorance, negligence, or something worse; and in Moore's Reports, antedating deeds is felony. The Court were of opinion, that Holbeche's case was good law; and that an attorney's priyilege was the privilege of his client; and that an attorney, though he would yet should not be allowed to discover the secrets of his client (b). But notwithstanding this, they thought Knight's evidence was to be received; for that a thing of such a nature at the time of executing a deed could not be called the secret of his client, that it was a thing he might come to the knowledge of without his client's acquainting him, and was of that nature, that an attorney concerned, or anybody else, might inform the Court of (c). Knight being called in, swore, that it being feared the common recovery would be good for nothing, because it was doubted whether there was a good tenant to the prcecipe, at the time of the common recovery suffered, it was agreed upon as the best expedient, that there should be a fine as of Sancti Michaelis levied to make a tenant to the prcecipe, which was five months before the [42] fine was actually levied; and that there should be a deed, which should declare the uses of the fine and recovery, and recite the fine to be of Saneti Michaelis; and that the deed waa executed when the fine was taken, viz. in March. The chirograph of the fine was then produced, according to which the fine was levied as of Michaelmas term; and if so, without controversy there was a tenant to the prcecipe...
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Greenough v Gaskell
...A B was his solicitor, it was held he might be examined, but .svn/.v, had the disclosure been after his retainer. Lord flai/'x caac, (10 Mod., 40), was that of an attorney employed in levying a fine, and called to prove that the deed to lead the uses was not [108] executed till five months ......