In the case of an indictment for forging a will, an attorney employed by a party to put out money on mortgage, was applied to by the prisoner to procure him money on mortgage, and the prisoner produced a forged will in proof of his title to certain freehold lands, upon the security of which the attorney's other client advanced the money, the mortgage deeds being prepared by the attorney; and the prisoner's counsel objected to the attorney being examined, and cited R. v. Smith, supra; Patteson, J., said he thought that case was not law, and that the attorney might be examined to show what was the *transaction between the parties, and what led to that transac

*157] tion; but said he would reserve the point for the consideration

of the judges, if he should afterwards think it necessary to do so. The attorney was accordingly examined, and produced the will, which the learned judge thought he was bound to do. The prisoner was found guilty, but no sentence was passed, he having pleaded guilty to another indictment charging the transaction as a false pretence. R. v. Avery, 8 C. & P. 596, 34 E. C. L. But in R. v. Tuff, 1 Den. C. C. R. 334, Patteson, J., said, "The observations which I am reported to have made about R. v. Smith, seem too strong. I should have reserved the case of R. v. Avery, had not the prisoner pleaded guilty to another indictment, and so rendered it needless to press that farther." The distinction appears to be that if the information comes to the attorney in the course of his business, but before any relation of attorney and client is constituted, as in R. v. Jones, supra, then the evidence must be given. But if that relation is once constituted, all that passes is privileged, to whatever subject it may

relate.

If from independent evidence it appears that the client made the communication with a criminal design, the attorney would be bound to disclose it. See R. v. Farley, supra, p. 155; R. v. Avery, supra; Annesley v. Lord Anglesea, 17 How. St. Tr. 1229; and see Russell v. Jackson, 9 Hare, 392; see also R. v. Cox & Railton, L. R. W. N., July 5, 1884, p. 160.

When the witness is privileged on the ground of public policy— persons in a judicial capacity. In R. v. Watson, a witness was questioned by the prisoner's counsel, as to his having produced and read a certain writing before the grand jury. On this being objected to, Lord Ellenborough, C. J., said, he had considerable doubts upon the subject: he remembered a case in which a witness was questioned as to what passed before the grand jury, and though it was a matter of considerable importance, he was permitted to answer. The question was not repeated. 32 How. St. Tr. 107. But it has since been held, that a witness for the prosecution in a case of felony, may be asked on cross-examination, whether he had not stated certain facts before the grand jury, and that the witness is bound to answer the question.'

1 See Low's Case, 4 Greenl. 439. A grand juror cannot be admitted to prove that a witness who has been examined swore differently before the grand jury. Imlay r Rogers, 2 Halst. 347. But in action for a malicious prosecution one of the grand jury

R. v. Gibson, Carr. & M. 672, 41 E. C. L. See also R. v. Russell, Carr. & M. 247, 41 E. C. L.

According to an old case, a clerk attending before a grand jury shall not be compelled to reveal what was given in evidence. Trials per Pais, 220; 12 Vin. Ab. 38; Evidence (B. a. 5). Where a bill of indictment was preferred for perjury committed at the quarter sessions, and it was proposed to examine one of the grand jury, who had acted as chairman at such sessions, Patteson, J., said, "This is a new point, but I should advise the grand jury not to examine him. He is the president of a court of record, and it would be dangerous to allow such an examination, as the judges of England might be called upon to state what occurred before them in court.' R. v. Gazard, 8 C. & P. 595, 34 E. C. L. (See as to incompetency, p. 130.)

When the witness is privileged on the ground of public policy— disclosures by informers, etc. Another class of privileged communications are those disclosures which are made by informers, or persons employed for the purpose, to the government, the magistracy, or the police, with the object of detecting and punishing offenders. The *general rule on this subject is thus laid down by Eyre, C. J.: "It is perfectly right that all opportunities should be given to [*158 discuss the truth of the evidence given against a prisoner; but there is a rule, which has universally obtained, on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed; if it can be made to appear that it is necessary to the investigation of the truth of the case, that the name of the person should be disclosed, I should be very unwilling to stop it; but it does not appear to me, that it is within the ordinary course to do it, or that there is any necessity for it in the present case." R. v. Hardy, 24 How. St. Tr. 808. It is not of course every communication made by an informer, to any person to whom he thinks fit to make it, that is privileged from being inquired into, but those only which are made to persons standing in a certain situation, and for the purposes of legal investigation or state inquiry. Communications made to government respecting treasonable matters are privileged, and a communication to a member of government is to be considered as a communication to government itself; and that person cannot be asked whether he has conveyed the information to government. R. v. Watson, 2 Stark. N. P. C. 136, 3 E. C. L. So a person employed by an officer of the executive government, to collect information at a meeting supposed to be held for treasonable purposes, was not allowed to disclose the name of his employer, or the nature of the connection between them. R. v. Hardy, 24 How. St. Tr. 753; R. v. Watson, Gurney's Rep. 159; 32 How. St. Tr. 100.

The protection extends to all communications made to officers of who returned the bill ignoramus, is a competent witness to prove who the prosecutor was. Huidekoper v. Cotton, 3 W. 56. The attorney for the Commonwealth cannot be called upon to testify to what passes in the grand jury room. Commonwealth v. Tilden, 2 Stark. Ev. new ed. 232, n. 1; McLetton v. Richardson, 13 Me. 82. S.

justice, or to persons who form links in the chain by which the information is conveyed to officers of justice. A witness who had given information, admitted on a trial for high treason that he had communicated what he knew to a friend, who had advised him to make a disclosure to another person. He was asked whether that friend was a magistrate, and on his answering in the negative, he was asked who was the friend? It was objected, that the person by whose advice the information was given to one standing in the situation of a magistrate, was in fact the informer, and that his name could not be disclosed. The judges differed. Eyre, C. J., Hotham, B., and Grose, J., thought the question objectionable; Macdonald, C. B., and Buller, J., were of the opinion it should be admitted. Eyre, C. J., said, "Those questions which tend to the discovery of the channels by which the disclosures were made to the officers of justice, are not permitted to be asked. Such matters cannot be disclosed, upon the general principle of the convenience of public justice. It is no more competent to ask who the person was who advised the witness to make a disclosure, than it is to ask to whom he made the disclosure in consequence of that advice; or than it is to ask any other question respecting the channel of information, or what was done under it.' Hotham, B., said, that the disclosure was made under a persuasion, that through the friend it would be conveyed to a magistrate, and that there was no distinction between a disclosure to the magistrate himself, and to a friend to communicate it to him. Macdonald, C. B., said, that if he were satisfied that the friend was a link in the chain of communication, he should agree that the rule applied, but that not being connected either with the magistracy or the executive government, the case did not appear to him to fall within the rule; *and the opinion of Buller, J., was founded on the same reason. *159] R. v. Hardy, 24 How. St. Tr. 811. The above cases were cited and considered in the Attorney-General v. Briant, 15 M. & W. 169, where the court decided, that upon the trial of an information for a breach of the revenue laws, a witness for the crown cannot be asked in crossexamination, "Did you give the information?" But on an indictment for administering poison with intent to murder, the police having, in consequence of certain information, found a bottle containing the poison, a policeman declined to state from whom he had received that information; but Cockburn, C. J., ordered him to answer the question put to him, which in the particular instance was material. R. v. Richardson, 3 F. & F. 693.

1 The officer who apprehended the prisoner is not bound to disclose the name of the person from whom he received the information which led to the prisoner's apprehension. United States v. Moses, 4 Wash. C. C. 126. But a police officer will be compelled to answer at the instance of the Commonwealth. Mina's Case, Pamph., p. 9. In the trial of an indictment for larceny, a witness from whom the property is charged to have been stolen, is not bound to disclose the names of persons in his employment, who gave the information which induced him to take measures for the detection of the person indicted. State v. Saper, 16 Me. 293. The Secretary of State is not bound to disclose any official confidential communications. But the fact whether a commission has been in his office or not, he is bound to disclose. Marbury v. Madison, 1 Cr. 142. See 1 Burr's Trial, 180; Gray v. Pentland, 2 S. & R. 23. S.

ceeding of any foreign or colonial court, or any affidavit, pleading, or other legal document, filed or deposited in any such court, the *authenticated copy to be admissible in evidence must purport either to be sealed with the seal of the foreign or colonial court [*165 to which the original document belongs; or in the event of such court having no seal, to be signed by the judge; or if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in writing on the said copy, that the court whereof he is a judge has no seal; but if any of the aforesaid authenticated copies shall purport to be sealed or signed, as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement."

By s. 8, "Certificates of the qualification of an apothecary, under the common seal, shall be received in evidence without any proof of the said seal, or of the authenticity of the said certificate, and shall be deemed sufficient proof of qualification."

By ss. 9, 10, & 11, provision is made for the admission of documents in force in Ireland, in England or Wales, and vice versa; and for documents in force in England, Wales, or Ireland, in the colonies.

And after reciting that it is expedient, as far as possible, to reduce the expense attending upon the proof of criminal proceedings, it is enacted :

By s. 13, "That whenever, in any proceedings whatever, it may be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof, but it shall be sufficient that it be certified, or purport to be certified, under the hand of the clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof."

By s. 14, "Whenever any book or other document is of such public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof, or extract therefrom, shall be admissible in evidence in any court of justice or before any person, now or hereafter, having by law, or by consent of parties, authority to hear, receive, and examine evidence; provided it be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted, and which officer is hereby required to furnish such certified copy or extract to any person apply

interest of a suitor in a court of justice; and the question then arises, how is this to be determined? It is manifest it must be determined either by the presiding judge, or by the responsible servant of the crown in whose custody the paper is. The judge would be unable to determine it without ascertaining what the document was, and why the publication would be injurious to the public service an inquiry which cannot take place in private, and which taking place in public may do all the mischief which it is proposed to guard against. It appears to us, therefore, that the question, whether the production of the document would be injurious to the public service, must be determined, not by the judge, but by the head of the department having the custody of the paper; and if he is in attendance and states that, in his opinion, the production of the document would be injurious to the public service, we think the judge ought not to compel the production of it. . . . . If, indeed, the head of the department does not attend personally, to say that the production will be injurious, but sends the document to be produced or not, as the judge may think proper, or, as was the case in Dickson v. Lord Wilton, where a subordinate was sent with the document, with instructions to object and nothing more, the case may be different."

Where, for revenue or other purposes, an oath of office has been taken not to divulge matters which have come to the knowledge of a party in his official capacity, he will not be allowed, where the interests of justice are concerned, to withhold his testimony. Thus, where the clerk to the commissioners of the property tax being called to produce the books containing the appointment of a party as collector, objected on the ground that he had been sworn not to disclose anything he should learn in his capacity of clerk, Lord Ellenborough clearly thought that the oath contained an implied exception of the evidence to be given in a court of justice, in obedience to a writ of subpoena. He added, that the witness must produce the books, and answer all questions respecting the collection of the tax, as if no such oath had been administered to him. Lee, q. t. v. Birrell, 3 Camp.

337.

Objection to answer-how taken. The mode of taking the objection depends on the person to whom the privilege belongs. If the objection be on the ground that the answer would expose the witness to penal consequences, then it belongs to the witness himself, and to him only, who may insist on or abandon it, as he thinks fit. Thomas v. Newton, M. & M. 48 (n.); R. v. Adey, 1 Moo. & R. 94; in both of which cases Lord Tenterden said that counsel ought not to be allowed to argue the question in favor of the witness. And it seems still more improper for counsel interested in excluding the evidence to suggest the objection to the witness. Frequently, indeed, the court, especially with an ignorant witness, will explain to him his position and the protection to which he is entitled, and the practice has been approved of. It has, indeed, sometimes been asserted that a question

1 White v. State, 52 Miss. 216; State v. Wentworth, 65 Me. 234.