Opinion
Spring Sessions, 1872.
ASSUMPSIT for money had and received with the usual pleas. The receipt of the money by the defendant was proved, and Cullen then called Moore who was associated with him as an attorney for the plaintiff in the action, to prove a demand made by him as such upon the defendant for it.
Layton, for the defendant, objected to his competency for that reason.
Cullen, for the plaintiff. Although Mr. Moore was at the time the demand was made, and is still one of the counsel for the plaintiff in the action, he was nevertheless a competent witness to prove all he proposed to prove by him, which was simply a demand made by him as such upon the defendant for the money, and his refusal to pay it. 1 Harr. 117. 1 Cush. 518. 11 Mass. 242. The Court, The fact proposed to be proved by Mr. Moore, does not partake in any degree of the character of a confidential communication between counsel and client which it is the policy of the law to regard as such, and to prevent him from disclosing it. On the contrary, as a communication merely, it was made by him to the other party in the suit. It was, however, rather an act done, or a step taken in the cause by the counsel for the plaintiff, than a communication to any one of any fact, knowledge, or information in relation to it. Besides, it might in practice be attended with some unnecessary inconvenience to hold that an attorney in a cause, is an incompetent witness to prove a demand and refusal merely, whilst there is nothing in the reason of the rule referred to which requires that the seal of secrecy and confidence should be imposed upon it. The objection is, therefore, overruled.