Riggs v. Denniston. The third count was similar, but charged the libel as in jurious only to him as a counsellor. The plea to the first count stated, by way of justification: 1. That, on the fourth day of August, 1800, Nathaniel G. Ingraham employed the plaintiff, as counsel, in a case brought against him by Seixas and Abrahams, and paid *him 50 dollars. That Ingraham then inform. [*200] ed him, as a secret communicated to counsel, that he had concealed himself to avoid being arrested in that cause, and had, for that purpose, left the city; which secret the plaintiff did afterwards divulge to W. W. Woolsey, and afterwards on the 30th December, 1800, at an inquest holden before the district judge, to inquire whether Ingraham had become a bankrupt, the plaintiff came and offered himself as a witness against Ingraham, in order to divulge the said secret. 2. That the plaintiff, before the publication, &c. did wrongfully and unlawfully use his power, as commissioner; for that he, as commissioner, did, for one hour, examine a certain Napthali Judah, in the absence of the other commissioners, (the said Napthali being then a bankrupt,) and did require answers to questions put to him, without giving the said Napthali a reasonable time to make correct answers, and did cause such examination to be reduced to writing, and compel the said Napthali to sign the same, with the intent that such examination should be used by the commissioners, in deciding whether the said Napthali was entitled to the benefit of the act, &c. 3. That the plaintiff, before the publication, &c. did without assigning any reason, refuse, as commissioner, &c. to certify in the case of the said Napthali, and in the case of John Blagge, who had before been under examination as a bankrupt, and who are entitled to their certificates. 4. That the plaintiff, before the publication, &c. did, as commissioner, &c. examine the said John Blagge, then before him as a bankrupt, and also the said Napthali and the said N. G. Ingrahamı, also bankrupts, touching the loss and profit on transactions many years before the bankrupt law Riggs v. Denniston. was in force, and because they could not tell, &c. the plaintiff, as a commissioner, under such pretences, did de[*201] prive them of the benefit of the act. Therefore, *the defendent published the words in the first count, as he lawfully might. There were pleas of justification to the like effect, to the second and third counts in the declaration; except, that the matter of justification in the second plea was, in conformity to the second count, confined to the plaintiff's conduct as commissioner, and in the third plea, to his conduct as counsellor. The fourth plea was to the whole declaration, and to the effect "that at the time of printing and publishing the words, the same were true; wherefore, the defendant printed and published them as he lawfully might," &c. There was a special demurrer to the first plea, because: 1. It did not deny any of the libellous matters set forth in the first count, nor set forth any legal justification or excuse, for a great part of the libellous words. 2. That the first count sets forth the meaning of the words by innuendoes, and the plea admits, not only the publishing the words, but the innuendoes, and does not allege any fact tending to justify them in the sense they are stated to have been published. It neither expressly admits, nor traverses and denies the innuendoes. 3. That the pretended justification does not meet and justify the allegations in the bill, neither as to the direct charges, nor as to the meaning, &c. 4. That the plea alleges the plaintiff did certain acts as commissioner, in the absence of the other commissioners; but does not describe who those absent commissioners were. 5. That the plea alleges a certain examination was intended to be used on the inquiry, whether, &c. which allegation is impertinent and senseless. There were also special demurrers, to the like effect, to the second and third pleas. The special demurrer to the fourth plea stated, that the Riggs v. Denniston. plea did not set forth one fact to show the truth of the libel, nor any matter of fact on which an issue could be taken, and was too general and uncertain. *Hopkins, in support of the demurrer. Riker, contra. [*202] KENT, J. delivered the opinion of the court. There can be no doubt but that the charges contained in the declaration are libellous, and actionable. They were published of the plaintiff, in relation to his profession and office, and tended to injure and disgrace him. They charged him with a want of fidelity in his profession, and with partial and oppressive conduct, as a commissioner. They were printed, and, consequently, had a wider circulation and more permanent existence. The only question, therefore, that can arise upon the record, is, whether the pleas contain matter which amount in law to a justification of the libel. One charge in the libel is, that the plaintiff had voluntarily offered to divulge the secrets intrusted to him by his client, contrary to his duty as a counsellor. The first plea (to which I now confine myself) states, by way of justification of this charge, that the plaintiff being employed by Nathaniel G. Ingraham in a certain cause, was informed by him, as a secret, that he (Ingraham) had concealed himself and left the city, to avoid being arrested in that cause; and that the plaintiff afterwards divulged this secret to W. W. Woolsey, and, again, at an inquest held before the district judge, offered himself as witness against his client, in order to divulge that secret. The fact of his having divulged this secret to Woolsey, I consider as irrelative and impertinent. The libel charges the plaintiff with a breach of trust and duty as counsel, in that he voluntarily offered himself as an evidence to divulge the secret. The disclosure to Woolsey was no answer whatever to the libel, nor does that disclosure appear to have been intended, nor could it in judgment of law, have operated to the injury or prejudice of his client. The nature of the privilege of a counsellor *is, that [*203] he shall not disclose his client's secrets in any ac Riggs v. Denniston. tion. The law has an eye to the disclosure only as a witness, (a) and the libel pointed only to such disclosure. I therefore lay the fact of that part of the disclosrure out of view. The other fact, that the plaintiff at the inquest, offered himself as a witness, in order to divulge the secret is objected to, as insufficiently alleged, because it is not averred that (a) A counsel, attorney, or solicitor, shall not be required nor permitted to divulge any matter communicated to him in professional confidence, and this privilege is not that of the attorney, &c., but of the client. (Rhoades v. Selin, 4 Wash. C. C. 718. Heister v. Davis, 3 Yates, 4. Yordan v. Hess, 13 Johns. 492. Chirac v. Reinicker, 11 Wheat. 280. Parker v. Carter, 4 Munf. 273. Rogers v. Dare, Wright, 136. Crawford v. M'Kissack, 1 Por ter, 433.) This privilege is not confined to facts disclosed in relation to suits actually pending, but extends to all cases in which a counsel or attorney is applied to in the line of his profession, whether such facts were communicated with an injunction of secresy, or for the purpose of asking advice, or other wise. (Parker v. Carter, 5 Munf. 273.) In New Hampshire, the privilege of clients to have their communications to counsel kept secret, extends, not only to communications made to professional men, but to those made to any other person employed to manage a cause as counsel. (Bean v. Quimby, 5 N. Hamp 94. But see Parker v. Carter, 4 Munf. 273. See Grah. Prac. 3rd ed. vol. 1, p. 212.) See a full consideration of this question and numerous authori ties in Messrs. Cow. & Hills' notes, p. 277, 278, 281, 282, 283; 2 Stark. Ev. ed. 1842, p. 319, et seq.; 1 Greenl. Ev. ed. 1842, p. 272, et seq. and note. "This protection," said Lord Ch. Brougham, " is not qualified by any refer ence to proceedings pending, or in contemplation. If, touching matters that come within the ordinary scope of professional employment, they receive a communication in their professional capacity, either from a client, or on his account and for his benefit, in the transaction of his business, or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers, in any court of law or equity, either as party or as witness. The foundation of this rule," he adds, "is not on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those mat. ters affecting rights and obligations, which form the subject of all judicial proceedings." (Greenough v. Gaskell, 1 Mylne and Keen, 102, 103, per Lord Brougham, Ch.) Riggs v. Denniston. he voluntarily offered himself, and whether voluntary or not, was traversable. A voluntary offer is here to be understood, and the meaning of the allegation is certain to a common intent, which is well enough in a plea. The plaintiff might have traversed the fact; and the defendant would have been bound, on the trial, to have shown the offer to have been voluntary, for that is the gist of this part of the libel, and the intendment of the plea. This allegation in the plea can have on other reasonable intendment. It is the language of the libel itself, which is admitted to mean a voluntary offer, and, according to the just observation of Lord Ch. J. De Grey, (Cowp. 687,) a man cannot defame in one sǝnse, and defend himself in another. But the fact which the plaintiff offered to divulge, does not amount to a justification of the libel. What the law understands by secrets between the attorney and his client, are communications made, as instructions, for conducting the cause, and not any extraneous or impertinent communications; (4 Term Rep. 432,) and it does not appear that the fact in question had any pertinency to the merits of the cause in which the plaintiff was employed. Whether Ingraham had or had not concealed himself to avoid the process, could not be any matter of instruction in the defence. It had no relation to it, and was, as Lord Kenyon observes, (4 Term Rep. 432,) a mere gratis dictum, which the plaintiff was under no obligation to keep secret, in his character as counsel. At any rate, it was incumbent on the defendant to have *stated, that the fact communicated had [*204] connection with the instructions for a defence, and so have given the plaintiff an opportunity to traverse that allegation. The plea, therefore, as far as it justifies the libel upon the plaintiff as a counsellor, is bad. Another part of the libel charges the plaintiff with having wilfully and knowingly perverted the law, while acting as commissioner of bankrupts, for illegal and oppressive purposes. The facts stated in the plea, by way of justification. of these charges, are, that the plaintiff, as commissioner, sep |