
    
      Branden & Nethers vs. Charles Gowing. B. H. Rice vs. Same. John North vs. Same.
    
    In order to protect a communication on the ground that it was ‘professional, it must appear that the attorney was acting, at the time, in the character of legal adviser.
    A communication, however confidential, to a friend, though that friend he a lawyer, and the general lawyer of the party, touching a matter wherein the relation of attorney and client does not exist, is not privileged.
    New trial, on the ground that the finding of the jury on the different issues upon a suggestion under the insolvent debtor’s Act, was contradictory, refused.
    Where an applicant for the benefit of the insolvent debtor’s Act is charged with having made a fraudulent disposition of his estate, it need not appear that tho disposition was made within three months before his confinement.
    
      Before Whitner, J., at Union, Spring Term, 1854.
    This was an application for the benefit of the insolvent debt- or’s Act. The following are the specifications contained in the suggestion filed by the creditors :
    1st. Because the defendant, Charles Gowing. has fraudulently assigned and conveyed the whole of his personal estate to his son, Rodney Gowing, without good or valid consideration, and with a fraudulent understanding and intention of securing to himself a benefit out of the estate, at the expense, and to the injury of his creditors, by retaining possession of his estate so assigned.
    2nd. Because the debts and judgments preferred by defendant to his son, Rodney Gowing, are fraudulent and false, in fact and in law, and are set up under a corrupt and fraudulent understanding and combination between the father and son, to secure to the father a benefit, and to hinder and defeat the plaintiffs, and others, the creditors of the said defendant, in the collection of their just claims.
    3rd. Because, since the assignment aforesaid, by defendant to his son, the defendant has, by arrangement and sale of his real estate, with J. J. Pratt, one of his preferred creditors, paid off and satisfied the debt so preferred, or nearly the whole of it.
    4th. Because, &c. (This objection was answered, by the Court allowing defendant to amend the schedule.)
    5th. Because the defendant has fraudulently preferred creditors within three months of his arrest, and subsequent thereto, to wit: D. Wallace, W. H. Gist, and others, with the intention of hindering, and defeating these, and other of his creditors, in the collection of their claims.
    6th. Because, since the assignment by defendant to his son, Rodney Gowing, he has remained in possession, and used and enjoyed as his own, the assigned effects, contrary to law, and with the fraudulent intention of hindering and defeating these plaintiffs, and other of his creditors, in the collection of their debts.
    7th. Because a bill for discovery, account, settlement, and injunction, against the defendant, and others, has been filed in the Court of Equity, for Union district, by the plaintiffs, and others, and sustained by that Court, which, having taken cognizance, is the only competent tribunal to hear and determine the matters in controversy between parties.
    8th. Because defendant has fraudulently procured his brother-in-law, Hiram Baker, to assign an old judgment, out of date, for no consideration whatever, to his son, Rodney Gowing, with the intention to hinder and defeat his creditors.
    9th. Because the defendant has expended more than two shillings and six pence, per day, since his arrest.
    10th. Because the defendant, in his assignment to his son, has preferred persons as creditors, to whom he is not justly indebted, to wit: Rodney Gowing, J. J. Pratt, and F. T. Nethers.
    The report of his Honor, the presiding Judge, is as follows:
    “The defendant had applied for the benefit of the insolvent debtor’s Act, and suggestions were filed by these several creditors, by leave of the Court, contesting his right to a discharge. They were tried at the same time, according to an order at a previous Term, made by consent of parties. The several creditors had each obtained judgment against Charles Gowing, in the following order:
    “ 1. North & Rowe (of whom the present actor, North, is survivor) obtained a judgment for $1102, besides interest and costs, signed 24th February, 1829, founded on note under seal, 4th May, 1822, and renewed by sci. fa. 6th November, 1850, on writ of sci. fa. issued 17th February, 1849.
    “2. Rice vs. defendant; two judgments, each signed7th April, 1846 — one on note, 9th January, 1843, for $ 156.10, with interest and costs; the other on note, 4th April, 1844, for $ 175, with interest and costs.
    “ 3d. Branden & Nethers vs. defendant; judgment signed 1st November, 1851, for $175.27, on two notes, 20th February, 1849, and 2nd February, 1851.
    “To shew the general indebtedness of defendant, other judgments, to other creditors, were produced, in favor of J. J. Pratt, Boatwright & Crane, and James S. Brooks, bearer. The defen-ant was arrested 4th February, 1853. A ca. sa. had once issued against him, in the case of Rice, 4th October, 1849, though he was not arrested ; and by deed bearing date same day, 4th October, 1849, and recorded in Clerk’s office, 20th December, 1849, Charles Gowing had made an assignment to his son, Rodney Gowing, (
      
      ) The defendant’s property had all been sold by sheriff Johnson, 1st and 2nd October, 1849, sales of personality amounting to $567.12, and his son, Rodney, had bought (all except $95.74) $471.39. The house and lot, tan yard, &c., had been bought by Mr. Pratt, who afterwards sold to Rodney, on time, Gen. Wallace and W. H. Gist being his sureties, with a mortgage of the premises.
    “ There was some contest over the production of deed of assignment, Rodney Gowing having it in possession, and refusing to produce, unless he was sworn as a witness on the part of contestants, which they declined. It was at length produced, its execution proved, and some acknowledgments, also, of defendant, Gowing, “ that it was executed at the Reed field, two miles below town ” — “ that he had been dodging the sheriff, who had a ca. sa., but that he had fixed it between Rodney and himself.” This was on Friday after the Tuesday when his property had been sold, and made to a witness who had carried him provisions in the woods. Again, it was proved that a day or so after sale of defendant’s property, Rodney Gowing was present at a conversation in reference to a ca. sa. being sued out in the Rice case. Soon after, defendant was in the street, and Rodney out to meet him; a brief conversation was had, defendant returned again to his house, and was not again seen, either in the street, or at his house, for two or three days after.
    “A schedule of debts is annexed to the deed of assignment, footing up a sum of $11,000. No one could speak, of those examined, as to its value, with accuracy. Mr. Culp, on the part of plaintiffs, said that sums of considerable amount were on substantial men; some debts on insolvent persons, and for some, there were doubtless discounts. Mr. Skelton, called on the part of defendant, had looked over a schedule of debts, at instance of Rodney Gowing, which schedule he produced in Court, to form an opinion as he had been requested, as to the solvency or insolvency of debtors. He found many on persons wholly insolvent, and had so marked them, though he had examined only five or six pages out of twenty. I declined to charge the jury, as requested, that in this schedule the debts were all good. However used in argument, I did not believe the fact to be so, or that any one of the counsel, on either side, so believed.
    
      “ Much testimony was offered on the subject of Rodney Gow-ing’s pecuniary resources. He had attained the age of 27 years; had been employed, first, as clerk, by Mr. Addocks, and in 1848 and 1849 by General Wallace, in their stores, and for a short time, more recently, in Columbia. He was expert in this business, and gave satisfaction to his employer, (Wallace.) His wages were not proved, and settlements were made with him at the end of each year. At the close of his engagement with General Wallace, he received a small sum of money, and a hundred dollar note on a customer. Once when a Mrs. Cole and a Mr. Churchill were in this country, he got as much as $100. The wages of clerks vary from $200 to $600. As to his habits, those who judged most favorably said he lived on his wages ; others said he lived freely; dressed finely; rode a good horse ; drank wine; smoked cigars; and toward the close of his engagement with General Wallace, drank too freely, and the habit had grown on him. He had no visible property but his horse and clothes, and some of his intimate associates did not believe that he lived within his income.
    
      “ Mr. C. H. Hillard was objected to when offered as a wit-tness, as the general lawyer of defendant. The witness, interposing no objection, was permitted to proceed, saying he would disclose nothing received from defendant as his client, in professional confidence. Defendant had brought to him two executions against himself, for renewal — one in favor of Baker, the other in favor of Brooks & Co. He was struck with the length of time these cases had been open, and remarked upon the fact to defendant. Defendant had then spoken to him of the Baker execution, and this may have been confidential, regarding him as a friend; but that no advice was sought, no fee paid, no charge made against him, nor could the witness regard the communication as made in the course of business, by a client to his lawyer. There was no professional relation growing out of the transaction or the disclosure. With the approbation of the Court, but without any order to the witness by way of compulsion, he testified that defendant, Charles Gowing, had told him Baker was his brother-in-law, and lived at the North; that there was nothing due on the execution; that he, Gowing, had once been in a straight, and confessed this judgment to Baker to aid him through, but he had got along without it. The judgment in favor of Baker was confessed and entered 16th October, 1826, and purported to be assigned to Rodney Gowing 22nd June, 1849 ; a consent to renew, signed by Charles Gow-ing 8th September, 1849. The Brooks debt, made the subject of a special ground of appeal, was traced in the following particulars, having commenced in the name of James S. Brooks, bearer, and in the progress of renewals, being entitled James S. Brooks & Co. The note was payable to E. A. Cole, or bearer; a writ in name of James S. Brooks, bearer, vs. Charles Gowing, was issued, with affidavit to hold to bail, stating debt due deponent, (‘ as agent of Cole,’ and these words stricken out,) followed with declaration, judgment, and fi. fa., each by the proper title, and the latter lodged 25th October, 1826 ; second fi. fa. lodged 29th December, 1829. Then there was an execution issued in the name and handwriting of ‘ Thompson, att’y,’ entitled James S. Brooks & Co. vs. Charles Gowing, which I think was not lodged, though of this I am not confident. On this was an assignment, purporting to be made to Rodney Gow-ing, and signed ‘ Roulta M. Cowles, [l. s.] ; James S. Brooks & Co., by Wm. E. Churchill,’ 8th February, 1848 ; consent to renew, signed by Charles Gowing, 20th May, 1848. Neither of the renewals by Dillard were produced to me, though all parties seemed to regard them as present; yet they were not furnished when asked for by me. I did not think the mistake in the renewal fi. fa., as to the title, material to the bona fides of the transaction, and so said to the jury. The mystery was in connection with the assignment, principally. The seventh ground of appeal makes it necessary for me to say that all parties having treated the validity and continued existence of the Brooks’ execution and debt, as an important element, I did suggest that Brooks and Churchill might have furnished more satisfactory information on some of the matters which had been the subject of comment. Instead of assuming to decide as to the weight of evidence, this was fully submitted to the jury, hav. ing taken the precaution to suggest, in behalf of the defendant that the absence of these witnesses from the State, their great distance, and difficulties not susceptible of explanation in this issue, might afford sufficient solution of this apparent omission. These had been the subject of remark by counsel on each side, but this ground complains as though but one side had been presented.
    
      “ The third ground charges an omission, on the Court, óf a peculiar character. I can only say the ground was not taken on the circuit. It did not occur to my own mind, nor do I regard it as tenable, now that it has been suggested by counsel.
    
      “ The fifth and sixth grounds refer to matters about which it is proper to say a word or two. The alleged debt of Rodney Gowing on Charles Gowing, recognized and preferred in the the deed of assignment, was for $870.15. For this, a note had been given, and by way of shewing the consideration of the note, an account stated was also produced, co-existent with the note. Whether this account should go with the note to the jury, led to some contest. I thought, under the circumstances, the account, itself, should be submitted to the jury. A casual remark as to its effect, unaided by other evidence, called forth free comment on the part of defendant’s counsel, as well in the progress of the evidence, as subsequently in the argument. The Court was more than once urged to rule it out, if not deemed of weight; but yielding to counsel the right to withdraw or introduce it, the account was read, and proof subsequently offered in corroboration. The account will be furnished by counsel in the printed brief. Some of the items were established, others were not; and in reference to some of them, everything would depend on the legitimate conclusion from the facts. An inspection of the account will shew a considerable item to be a debt paid John B. Edwards, by Rodney, on account of Charles Gowing. The evidence disclosed the following facts: Edwards had a debt on Charles Gowing, with J. C. Kitchens surety, and obtained a judgment against them, 31st March, 1849, for $298.18, with interest from 2nd April, 1841, and costs $23.62. This is the debt, and interest, and costs, charged in the account, 27th June, 1849. Rodney Gowing gave his note to Edwards, with J. C. Kitchens and Charles Gowing sureties for the debt, at one day, amounting then to $378.22. There was no evidence that the costs had been assumed, or paid. The witness Edwards, stated they were still due. Kitchens had procured Edwards to sue Rodney Gowing on this note, on which judgment had been obtained, and fi. fa. lodged, Sth Oc-tobe, 1852, and this judgment is yet unpaid. General Wallace proved, in reference to one item in the account, that Rodney Go wing had, in 1848, paid, on account of his father, $50, but had no knowledge of any other payment. A note was also produced in Court, of Charles Gowing to Rodney Gowing, bearing date 1st May, 1848. W. L. Palmer proved that he had engaged corn to Rodney Gowing two or three times — had charged it to Rodney in 1848, 1849, and Rodney had paid him. Rodney Gowing lived at his father’s, and kept his horse there, when about Union. In reference to defendant’s indebtedness to his son, I thought the mere existence of an account, furnished very slight evidence of its truth — that if an account stated, had been filed with the deed of assignment, whereby creditors would be there furnished with the items, out of which the debt was alleged to have arisen, the mere fact would, to some extent, have corroborated — that it was often difficult to obtain specific proof of each item of a running account, especially between those having mutual confidence, and therefore, that the account here produced, should be judged of fairly and liberally, from the general character of the transaction, but that fraud vitiated all contracts, and if the proof shewed a fraudulent incorporation of false items and charges, with a view of swelling this demand to be secured by a lien, and intended to cover the property of the father, it would contaminate the debt, and vitiate the transaction.
    
      “ In reference to the ninth ground of appeal, there was a good deal of evidence on the subject of the general appearances about the house of Charles Gowing, his business and conduct, and the general management of the shop and tan yard. Much of it was vague and indefinite, few specific facts being elicited that could be transferred to paper.
    “ The defendant, Charles Gowing, had been in the business of conducting a tan yard and shops, either of harness making, or some other employment in leather, in the town of Union, for many years. He contihued at the old stand ; lived in the same house he had done for-years; had the appearance of carrying on the same business; no change was seen about family affairs; an equal air of comfort, and his daughters were at school, and instructed in music, &c., before the sale of his property, and the assignment to his son, as since. Whilst, on the other hand, it was in proof Rodney Gowing had carried on business in his own name; had formed a co-partnership with one whose name was Rodgers; and that a notice had appeared in the Unionville Journal, on some occasion, that Charles Gowing was the agent of R. Gowing. It was also in proof that Rodney Gowing claimed proceeds of sale of personalty, in virtue of the Baker execution, and perhaps others.
    “These facts were submitted to the jury, without any conclusion of my own, or any attempt on my part to deduce a legal conclusion from such as had been made to appear. Some general principles were laid down, and which I need not repeat in this brief, because they would be controverted by no one, as to badges of fraud, where sales were made and possession retained; transfer of property to one creditor in preference to others, the debtor securing a secret benefit thereby; contrivances to hinder just creditors, &c. No othercompetent mode suggested itself to my mind; for without a special verdict, finding the facts, the legal conclusion could not be drawn. To have assumed certain facts, and thereupon have instructed the jury, would have been endless, and lead to no satisfactory result. The jury were told that these sales being public, and by the sheriff, should go far, if not conclusively, to shield the defendant from imputation of fraud, from the possession that followed ; but if the sales were the result of contrivance between the son and the father, under pretensive process, the son to procure the proceeds, and the father still to enjoy the property, then the continued possession was a badge of fraud. The peculiar terms of this ninth ground has seemed to require this full explanation. I have no idea the defendant suffered from any expression of mine, in reference to this branch of the case.
    “The verdict was for the plaintiffs, in the suggestion, on the first, second and sixth specifications.”
    The defendant appealed, and now moved this Court for his discharge, and for a new trial, on the grounds:
    1. Because C. H. Dillard, the attorney for the defendant, was not a competent witness for the plaintiffs, and the more especially so as he had declared in the hearing of the Court, that the communications of the defendant were confidential, as they in fact were, as the circumstances of the case clearly showed ; still the Court ruled that he was a competent witness.
    2. Because it was confidently affirmed by the plaintiffs, that the assignment and schedule of the defendant was good for over $>11,000, which was also admitted by the defendant; and still his Honor, in his charge to the jury, went on to say to the jury, that he did not believe they were worth $>11,000, in which it is submitted that his Honor erred to the prejudice of the defendant.
    3. Because his Honor should have instructed the jury, that if they found that the schedule and assignment were worth over $2,500, the amount of the debt for which he had been arrested, then they should find for the defendant. This his Honor omitted to do, which, it is submitted, was an error of omission.
    4. Because his Honor, in his charge to the jury, said, “ there was something mysterious about the Brooks execution, and its assignment to Rodney Gowing,” when, in fact, as the defendant’s counsel respectfully submit, there was no mystery touching the same, that could legally affect the defendant in these cases; but still, this part of his Honor’s charge was well calculated to, and no doubt did, mislead the jury in their finding, though these matters legally had nothing to do with the issues now before the Court.
    5. Because his Honor, in his charge to the jury, said, “ If a schedule of the debts paid by Rodney Gowing for Charles Gow-ing had been filed with the note for $870.15, then it might have been entitled to some weight; but as that had not been done, it could not weigh a feather.” In this, it is submitted, there was error.
    6. Because his Honor charged the jury, that if they should find that only some $500 or $600 of the $870.15 note had been paid in fact by Rodney Gowing, for the defendant, C. Gowing and the remainder falsely inserted, then the whole was null and void — in which, it is submitted, there was error.
    7. Because his Honor charged the jury, that “ it was an important element in this case, for the defendant to have proved by Brooks and Chfirchhill the validity of the Brooks execution, and the assignment of the same by thembut the defendant contends that these facts were well and legally proved.
    8. Because the findings of the jury, on the issues submitted to them are contradictory, the one tending to, and indeed and in law, defeating the legal effect of the others, in this, that they find for the plaintiffs on the first, second and sixth grounds of the suggestions, and for the defendants on all the other seven grounds contained in the plaintiffs’ suggestions.
    9. Because, under the circumstances of the case, the defendant remaining in possession of the property that had been sold as his, was wholly immaterial, and so his Honor should have instructed the jury; but still his Honor told the jury that was strong evidence of fraud, when he should have told them, that notwithstanding such retention of possession, still the defendant was entitled to his discharge.
    10. Because there was no proof whatever that the defendant had, within three months before his arrest, or at any time since, paid or assigned his estate, or any part thereof, to one creditor in preference to another, or fraudulently sold, conveyed or assigned his estate, to defraud his creditors; and therefore the defendant was entitled to his discharge. His Honor so charged the jury, still they found against the defendant, without any regard to time, as all the facts had occurred or transpired three years and four months previous to his arrest, on the 4th February, 1853.
    11. Because the verdicts are contrary to law and evidence, and the most important part of his Honor’s charge, and should be set aside, and a new trial granted.
    
      Herndon, for appellant.
    
      Gadberry, contra.
    
      
      (a.) This assignment recited the indebtedness of Charles Gowing (1) To Rodney Sowing, assignee of a judgment of J. S. Brooks & Co., in the sum of $397.05, besides interest; (2) To Rodney Gowing in the sum of $870.16i, by single bill; (3) To John J. Pratt in the sum of $2000, or thereabouts, by judgments; and (4) To 1?. T. Nethers and R. H. Rice “ in sums not now exactly recollected ” The trusts were (lj to pay R. Gow-ing the amount of the single bill; (2) to pay Pratt the amount of his judgments; (3) to pay the “ other above named creditors, in equal proportions” ; and (4) to pay over any overplus to the creditors of Charles Gowing, m equal proportions. The assignment embraced “allmy choses in action, including judgments, bonds, single bills, notes and accounts.”
    
   The opinion of the Court was delivered by

Whitner, J.

The first ground of appeal refers to C. H. Dillard, a witness introduced on the part of plaintiffs, and notwithstanding the terms, the objection must be considered as to the particular evidence he was called to disclose. The general rule is one universally conceded, and should be held of sacred inviolability. The attorney or the Judge who would disregard the professional confidence reposed by a client, would become the subject of just reprehension. It is a protection to the client, ' and although he may waive his privilege, the profession cannot well be too cautious in guarding it. The report of the case fully discloses the precise circumstances under which the evidence was offered, as well as the evidence itself. I need not descant upon the rule or its exceptions. The admissibility of the evidence depends on a question which underlies the rule, whether in fact the rule be applicable to the case made. Did the relation exist of client and attorney with reference to the matter in hand 1 The witness was the general lawyer of the defendant, and'the remark made, as testified, from its nature-may well justify the inference that it was confidential. But by any test to which the inquiry may be subjected, how can the conclusion be reached that the attorney was engaged in his professional capacity in the service of the party interposing the objection ?— that the relation so existed as to authorize the privilege 1 The witness did not so regard it. The presiding Judge could not know by intuition that the fact was so. That one is regarded as the general lawyer of another, does not hence close his mouth as a witness. Certain executions against the defendant had been assigned to the son, and they were handed by the defendant to the attorney for renewal. He sought no counsel. He asked no question. He promised no fee. He demanded no service for himself professionally, and no advice was given him to regulate his future action. In all this, was he any thing but the mere hand in passing the papers 1 — the agent of the son, a plaintiff in execution ?

When the act or declarations of a party are offered against him, and he claims exemption from the general rule, it can be no hard measure to require that he shall bring himself within the exception. If by any legitimate inference it could be seen from the fact disclosed, that such was the understanding authorized and warranted; that here was a transaction between a lawyer and client, the protection would be readily afforded. Such, however, is not the conclusion attained by this Court. For the purpose of submitting a further view, it may be added, that in no way possible could such inference arise, unless perhaps upon the assumption, that the service demanded and rendered was at the instance and for the benefit of the defendant^ because of his fraudulent purpose to set up the Baker execution; for otherwise the professional act to be performed was at least one of pure indifference to him.

The party claiming this protection repudiates such a view. Such a shield would be more disastrous than the dagger itself. The conclusion also could only be arrived at by the Court, from the character of the fact disclosed. This fact the party still denies, and the jury has not found it against him; and hence a portion of the Court regard the evidence without consequence in the issues found against him. 1 Green, on Ev. § 239, well states the rule, that “in regard to the persons to whom the communications must have been made in order to be thus protected, they must have been made to the counsel, attorney, or solicitor acting for the time being in the character of legal adviser.”

A communication however confidential to a friend, though that friend be a lawyer, and the general lawyer of the party, touching a matter wherein the relation of attorney and client does not exist, cannot be regarded as falling within the privilege.

The eighth ground maintains that the finding of the jury on the issues submitted to them, are contradictory, the one tending to, and indeed, in law, defeating the legal effect of the others, &c.

The jury returned a verdict for plaintiffs on the first, second and sixth specifications in the suggestion, and assuming for the purpose of this ground, that on all other specifications, their finding was equivalent to a verdict thereupon for the defendant, this Court has not perceived inconsistency or contradiction.

In the argument the tenth specification has been especially arrayed against those found for the plaintiffs, and yet there is a striking difference.

Passing by the distinctions in the other particulars, the grouping of different creditors by name against some of whom at least there was not the slightest imputation in the evidence, might well have justified the jury, and quite sufficiently vindicate their verdict in this particular. It would be tedious and fruitless to pursue the inquiry suggested by this ground. No prominence has been given in the argument to the other specifications, and a comparison by a careful reading alone renders manifest that the objection is not well founded.

The tenth ground urges that a just construction of the statute (A. A. 1788, sec. 7) operates as a bar to the fraud here found, more than three months having elapsed between its commission and the arrest. The Act enumerates the delinquencies which will prevent the debtor from its benefits — if he shall have within three months before his or her confinement, or at any time since paid or assigned his estate or any part thereof to one creditor in preference to another, or fraudulently sold, conveyed or assigned his estate to defraud his creditors.” The question presented by this ground has been fully considered in Gray vs. Schroeder, 2 Strob. 126, as it had been in a previous case of Sherman and Debruhl vs. Barrett. The obvious distinction between the undue preference and a fraudulent disposition of property contemplated by the Act, as well from its terms as the reason on which it is founded, the limitation of time applying only to the former branch, is so fully pointed out and distinctly ruled, that further comment cannot be necessary.

The remaining grounds of appeal, though pressed with remarkable zeal, in the judgment of this Court are quite sufficiently noticed in the report of the presiding Judge. The character of the charge, and the consequences of the verdict to this unfortunate defendant, entitled him to a very patient hearing and dispassionate review of all the facts. This has been accorded. An intelligent jury has pronounced against him. The occasion does not require a re-statement, or comment by way of vindication. The facts are fully enumerated in the brief, and they justify amply the verdict rendered.

The motion of the defendant for a new trial is refused.

O’Neall, Wardlaw, Withers and Munro, JJ., concurred.

Glover, J., absent at the argument.

Motion dismissed.  