
    *Lyle v. Higginbotham.
    February, 1839,
    Richmond.
    (Absent Cabell, J.)
    Attorney and Client — Privileged Communication— Case at Bar. — Case in which, under the particular circumstances, a letter written by a mortgagee to his attorney, informing him that the mortgage debt had been paid, and requesting him to dismiss a suit then pending to foreclose the mortgage, was held to be proper evidence in favour of a subsequent incumbrancer, in a controversy with the executor of the mortgagee, who had revived the proceedings to foreclose; the attorney submitting to produce the letter, if directed by the court to do so.
    Daniel Higginbotham being a creditor of Philip Ryan by three several judgments, obtained in 1809, 1811 and 1812, respectively, brought a suit in Nelson county court in chancery, to have satisfaction of the debts out of a tract of land conveyed by Philip Ryan to his son William, by a deed which the plaintiff alleged to be voluntary, and therefore fraudulent and void as to him. The cause being removed to the superior court of chancery of Lynchburg by appeal, that court, on the 19th of October 1820, made a decree setting aside the conveyance, and directing the marshal to sell the land at public auction, upon such credit as might be agreed to by the parties, and out of the proceeds pay the plaintiff the amount of his judgments, with the costs of his suit in chancery. The marshal accordingly sold the land upon a credit of twelve months, agreed to by the parties ; and at the sale, John Marr became the purchaser, at the price of 665 dollars, for which he executed his bond payable on the 15th of December 1821. The amount due to Higginbotham at the time of the sale was 597 dollars 55 cents; which amount, together with the expenses of *sale, being deducted from the proceeds, there remained a balance of only 33 dollars 77 cents.
    At this stage of the proceedings, James Lyle administrator of James Lyle deceased, who in his lifetime was the surviving partner of the mercantile firm of George Kippen & Company, exhibited his bill in the same superior court of chancery, against Daniel Higginbotham, Philip Ryan and William Ryan, the parties to the former suit, and John Marr the purchaser at the sale made by the marshal; setting forth, that in the year 1798, Philip Ryan, being indebted to George Kippen & Co. in the sum of ¿130. 9. 5. executed a deed of trust to secure the payment thereof, bearing date the 21st of August 1798, which deed was duly recorded, whereby he conveyed the same tract of land which had been sold under the decree of the court for the satisfaction of Higginbotham’s demand. That the debt secured by that deed was still unsatisfied, except the sum of ¿30. paid on the 21st of July 1800. That James Lyle, the testator of the plaintiff, in his lifetime, brought a suit in the county court of Nelson, in the name of George Kip-pen & Co. to subject the land to the payment of the debt due the firm, which suit was yet pending and undetermined. That the land was worth double the price for which it was sold by the marshal. The bill prayed,that the final decree in Higginbotham’s suit be suspended until the plaintiff’s claim under the trust deed should be paid, or provision made for its payment; that Marr the purchaser at the marshal’s sale be restrained from paying over any part of the purchase money to Higginbotham or any other person, except by order of the courtthat the record and proceedings in the suit of George Kippen & Co. against Philip Ryan, to enforce the deed of trust, be removed into this court, in order to a final decision thereof; and general relief.
    The trust deed of the 21st of August 1798 was exhibited with the bill. The record of the suit of George *Kippen & Co. against Philip Ryan was also exhibited. It appeared that the subpoena in the cause was issued in May 1802; after which, the suit was continued at rules until July 1820, when an order of dismission for want of bill was entered in court. In June 1821, this order was set aside by consent of the parties, and the cause reinstated. And these were all the proceedings which had taken place in the suit.
    Philip Ryan answered, admitting that the debt due to George Kippen & Co. and secured by the deed of trust, was still unsatisfied, except about 100 dollars which he had paid.
    Higginbotham, in his answer, disclaimed all knowledge of the debt asserted by the plaintiff; called for proof thereof; and insisted upon the presumption of payment arising from the lapse of time since the deed of trust was executed, upon the laches of Kippen & Co. and upon the dismission of their suit against Ryan, as presenting a bar to the relief now sought by the plaintiff’s bill.
    Marr, in his answer, also relied upon the presumption against the plaintiff’s claim, arising from the lapse of time, and insisted upon his purchase at the marshal’s sale.
    As to William Ryan, the bill was taken pro confesso.
    By the evidence in the cause it appeared, that in the year 1770, John Ryan senior, the father of Philip Ryan, being indebted to George Kippen & Co. in the sum of ¿'213. executed a deed of trust upon a tract of land of about 400 acres in Amherst county, to secure the payment of that debt: that John Ryan senior died, leaving John Ryan junior his eldest son and heir at law ; who, in the year 1786, executed- a letter of attorney to William Bibb and George Gillespie, empowering them to sell all the estate which John Ryan senior left in the county of Amherst, and pay his debts : that Bibb being dead, Gillespie the surviving attorney, on the 21st of * August 1798, by deed of bargain and sale of that date, conveyed to Philip Ryan 200 acres, parcel of the same tract which was conveyed by John Ryan senior in 1770 for the security of George Kippen & Co. — and that this 200 acres was the same land which Philip Ryan, by his trust deed of the 21st August 1798, conveyed for the purpose of securing to Kippen & C6. the payment of ^130-. 9. S. which, it seems, was the balance then remaining due of their original demand against John Ryan senior.
    The affidavit of the honourable William H. Cabell was taken and filed in the cause. He stated, that he was employed (being then at the bar) to draw the two deeds of the 21st August 1798. That Gillespie’s conveyance of the land to Philip Ryan was the consideration, and the only consideration, for Philip Ryan’s trust deed in favour of Kippen & Co. it being understood and intended by all the parties that the payment of the debt due to Kippen & Co. should be a discharge of so much of the purchase money which Philip Ryan had contracted to pay. That affiant was afterwards employed by James Ryle senior, a partner of the firm of Kippen & Co. to collect the debt for which Philip Ryan had thus become bound; but that, entertaining strong doubts whether Ryan had derived any title to the land by the conveyance from Gillespie alone, after the death of Bibb, under the power of attorney executed to them both jointly, and, consequently, whether he was liable in equity, for the debt secured by his trust deed, this affiant took no steps to collect the money from him, and even' returned to him an assumpsit of third persons for the sum of ^50. which he had delivered to this affiant, and which, when received, was to have been applied in part discharge of the claim of Kippen ,& Co. — and advised him to bring a friendly suit in chancery, for the purpose of ascertaining whether he had acquired a good title to his land : but this suit was never brought *so far as affiant knew: and thus the matter rested until he left the bar in 1805. Ryan never questioned the justice of the demand against his father’s estate, nor entertained the least doubt of his own obligation, at.law or in equity, to pay the amount secured by his deed of trust, until this affiant communicated the doubt to him. Nor did he ever pretend that he had paid the debt.
    The cause was heard on the 24th day of May 1823 ; when the court, being of opinion that the trust deed of the 21st of August 1798 gave priority to the demand of the plaintiff over that of the defendant Higgin-botham, and that a resale of the land would probably be beneficial to those interested in the proceeds, decreed that the bond of Marr the purchaser at the former sale should be delivered up to him to be cancelled, and that unless the defendants should, within six months, pay the plaintiff £113. 1. 1, with interest from the 21st pf January 1800 till payment, and his costs of suit, the marshal should proceed to sell the land for cash, and out of the proceeds pay to the plaintiff his debt, interest and costs aforesaid; the surplus, if any, after defraying the expenses of sale, to be paid over to the defendant Hig-ginbotham. The marshal was directed to report his proceedings to the court, in order to a final decree.
    He accordingly reported that he had sold the land, on the 10th of January 1824, to Robert Mitchell the highest bidder for the same, at the price of 901 dollars ; of which, after deducting the expenses of sale, there remained the sum of 874 dollars 62j4 cents, to be applied towards the satisfaction of the plaintiff’s demand. This report was confirmed by the court, and the marshal directed to convey the land to the purchaser.
    On the 18th of May 1825, the court, proceeding to make a final disposition of the two causes of Ryle adm’r &c. against Hig-ginbotham and others, and Higgin-botham ^against Ryans, decreed that Philip Ryan, pay to Ryle, the plaintiff in the firstmentioned suit, 45 dollars 72 cents with interest from the 10th of January 1824 till paid (being the balance due after crediting the proceeds of the land) and his costs of suit; and that the decree in the second suit, directing a sale of the land for the sat-isfáction of Higginbotham’s demand, be set aside, and that suit dismissed, there being no longer any necessity for maintaining the same.
    In January 1827, Higginbotham exhibited a bill of review against Ryle administrator &c. Philip Ryan, William Ryan, and John Marr, reciting the proceedings had in the two suits, and alleging that since the determination of those suits, and within a few days past, he had discovered new and important evidence, which he could not by any diligence have discovered sooner, and which he was advised, if known and proved upon the hearing, would have changed entirely the nature of the decrees, and was now sufficient to reverse the same upon a bill of review. He alleged that he had discovered, and he accordingly charged, that the defendant Philip Ryan, the alleged debtor and mortgagor of Ryle’s testator, did, previous to the year 1810, by the hands of a certain H. Rose, fully discharge, pay 'and satisfy the mortgage debt in the proceedings mentioned, and that Ryle’s testator did, by written documents, explicitly acknowledge such payment, and at the same time direct the dismission of a suit previously instituted against the said Ryan to foreclose the said mortgage. That these documents, consisting of letters written and statements furnished by, Ryle’s testator in his lifetime to a certain Thomas S. M’Cleland his counsel, were in the possession of M’Cleland, and complainant hoped to have the benefit of them uponthe hearing, by a subpoena duces tecum directed to M’Cleland, unless they should be voluntarily furnished. The bill further charged, that the decree in favour of Ryle was procured *by fraud and collusion between Ryle, or his agent, and Philip Ryan. Wherefore this complainant prayed that the decrees in the former suits might be reviewed and reversed, and correct decrees entered according' to the right and justice of the case.
    The documents referred to in the bill were produced by M’Cleland in the progress of the cause, under a subpoena diices tecum. They consisted of a letter from James Ryle senior to M’Cleland, of the 28th April 1810, another letter from Ryle to M’Cleland, of the 29th June 1810, and a list of chancery suits brought in Nelson county court by M’Cleland for Ryle (with M’Cleland’s charge in each of them for professional services), which appeared to have been furnished by M’Cleland to Ryle at his request, and after-wards returned with Ryle’s letter of the 29th June. Theletter of the 28th April contained (inter alia) the following passage: “I observe the list of suits under your care ; but what I want most is the situation they now stand in, the ability of the debtors, and the prospect of recovering, and when. To save you trouble, you have a list taken from your letter, with a blank side, that you may, opposite to each, mention the situation and circumstances of each, as far as you can get information; and when you have annexed your notes, you will please return it to me, or send me a copy of it, with your observations.” In the letter of June 29, 1810, the testator said : “Our suits, George Kippen & Co. against Philip Ryan, John Brown, and Henry Tennison, were all ordered to be dismissed three years ago by mr. Ogg. It is strange they should have been continued on the docket. Mr. Ogg declares he positively ordered the dismission of those suits upwards of three years ago. It must have proceeded from neglect of the clerk that they were continued. Pray, my dear sir, see that they are dismissed, for I have for many years been charged by the clerk for continuances.” The list contained an entry in the following *terms : “Pee v. Phil. Ryan, £l. 10. Nelson reference docket for new defts. [Debt paid by H. Rose.]”
    The bill of review was taken for confessed as to the defendants Philip Ryan, William Ryan, and John Marr.
    Ryle answered, that he had carefully examined the books and papers of the firm of George Kippen & Co. and the individual books and papers of his testator James Ryle, and had found no evidence whatever of any payment on account of Philip Ryan’s mortgage debt, except as regarded the sum of 100 dollars, paid to his testator, and credited as before mentioned in this respondent’s bill. He relied upon the affidavit of judge Cabell, and the answer of Philip Ryan ' to the lastmentioned bill, as proving that so late as September 1821, the balance of the debt remained unpaid. He suggested that the letters of his testator, and the admission of payment, either did not relate to a suit for the mortgage debt now in dispute, but to some other suit against Philip Ryan ; or else that the memorandum on the list of suits furnished to respondent’s testator by M’Cleland his counsel, which is now relied upon as evidence of payment, was placed opposite to the name of Philip Ryan by the mistake of J. B. Ogg, who was then the clerk of the testator, and so led the testator himself into the error which appears on the face of his letter of June 29, 1810. The statement in that letter and the list, he urged, must have been understood at the time as not applying to the suit of George Kippen & Co. against Ryan for the mortgage debt, or the error committed in that respect must have been afterwards explained to M’Cleland, otherwise he would not have lent himself to the injustice of prosecuting that suit for the great length of time he was engaged in it before the final decree, was obtained, especially as he had been so regardful of the pretended rights of Ryan and the complainant, as to disregard professional confidence ; “of which” (it was added) “this respondent does not mean to be understood *as complaining, for if it can be shewn that this debt was paid before, this respondent will refund the money he has received, with as much pleasure as the complainant will in that event receive it.” The answer concluded with denying all fraud.
    The letters and list before described were produced by M’Cleland on the 23d of October 1830, in compliance with a subpoena duces tecum executed upon him. He submitted to deliver up the papers, if the court should be of opinion that he ought to do so, upon considering the statement made by him in relation thereto; which was, in substance, as follows—
    In 1810t M'Cleland received the two letters and the list of cases aforesaid, from James Ryle senior, for whom he was at that time counsel; and in compliance with the instructions of Ryle in his letter of the 29th of June, he did, as he verily believes, direct the clerk to dismiss the suits therein ordered to be dismissed. The suit against Ryan, however, was not dismissed; probably (as the clerk had informed him) because, being on the chancery reference docket, it could not be dismissed without an order of the court. The letters and statement of the cases, being supposed by M’Cleland to be of no further use, were thrown by him into an old trunk. Ryle died in 1811 ; and from that time until 1821, there was no agent of the firm of George Kippen & Co. so far as M’Cleland knew. During this period, the letters and statement aforesaid passed entirely out of his recollection. In 1821, a certain Tarlton Saunders, as the agent of Ryle’s administrator, employed M’Cleland to prosecute the claim of George Kippen & Co. against Phillip Ryan, upon his mortgage ; and M’Cleland, having entirely forgotten the contents of the letters and list, did, as counsel for Ryle’s administrator, institute the suit against Higgin-botham, Ryan and others, and obtain the decree under which the mortgaged land was sold in satisfaction of that claim. Shortly after that sale, Saunders *requested M’Cleland to make out a statement of his account against the elder Ryle for professional services ; to which he consented, though he regarded that account as long before settled and closed. In preparing this statement, he had occasion to refer to the contents of the old trunk ; and among other old papers, he there discovered, much to his surprise, the two letters and the list of cases before mentioned. He took the earliest opportunity of shewing: these papers to Saunders, and requested him to examine into the matter, and to do justice to Ryan, if it should be found that he had been injured by the decree and sale. About a year afterwards, M’Cleland and Saunders met at the house of A. Austin, whom they had chosen to settle the account of professional services, about which they had disagreed ; and there M’Cle-land again exhibited these papers to Saunders, and assured him, that if he or Lyle should not, within a reasonable time thereafter, explain the matter and rectify any mistake that had taken place in the proceedings against Ryan, he would advise Ryan of the existence and contents of the papers in question, and leave him to avail himself thereof in such manner as he might choose : to which Saunders made no reply. The letters, being vouchers for M’Cleland, were used as such at the settlement, and their contents might thus have become knojvn to the persons present, and communicated by some one of them to Higginbotham or his counsel. No such communication was made by M’Cle-land himself, or with his knowledge or consent ; though some time afterwards, on being asked by the counsel for Higgin-botham whether he had not such letters in his possession, he acknowledged that he had, and at the request of the said counsel, permitted him to take copies of them.
    The chancellor expressing the opinion that the conduct of M’Cleland, as shewn by his statement, vyas entirely free from objection, and that the letters might properly *be filed in the suit, they were filed accordingly. “And thereupon” (the record proceeds) “ the said M’Cleland in open court made oath to his said statement; and he and the counsel of the plaintiff agreed that the said letters, as well as the statement by the said M’Cleland, might be made use of upon the trial of this cause, in like mariner as the deposition of the said M’Cleland with the letters annexed might be, if duly taken under a commission for that purpose.”
    Lyle on the next day (October 24, 1830) objected to the admission of M’Cleland’s statement as evidence, upon the ground that if the matter thereof could properly be evidence at all,' the testimony of M’Cleland should have been regularly taken in the usual mode, upon notice to the adverse party; whereas here the examination was in open court, and without notice.
    The cause was finally heard on the 1st of November 1830 ; when the chancellor, declaring that upon every principle of the court he must take M’Cleland’s statement, and the letters therein referred to, so far as they might apply in favour of the plaintiff, as evidence, — decreed that Lyle, out of his testator’s estate, if so much thereof he had, but if not, then out of his own estate, should pay to Higginbotham the whole amount of his judgments against Ryan, with his costs both in that court and in the county court of Nelson ; and should pay into one of the banks at Lynchburg, subject to the future order of the court in the cause, whatever balance might remain of the amount he had received from the proceeds of the mortgaged land, including interest thereon from the 14th day of May 1824, when those proceeds were paid to him.
    From this decree Lyle appealed to this court.
    Johnson, for the appellant.
    Stanard, for the appellee.
    
      
      He had formerly been counsel for James Lyle senior, the testator of the appellant, and was after-wards examined as a witness in the controversy.
    
    
      
      See monographic note onl“Attorney and Client” appended to Johnson v. Gibbons, 27 Gratt. 632.
    
   *PARKÉ)R, J.

I am of opinion that the chancellor ought not to have decreed that the appellant should refund the sum of money received by him under the decree of May 1823, without further enquiry as to the payment of the debt from Ryan to George Kippen and Co. by directing an issue, or otherwise.

There are several circumstances in the case, even independent of the admissions of Ryan, which render it highly probable that the debt might not have been paid. If it was doubtful how far his answer was evidence against the appellee (who, in his bill of review, charges collusion and calls upon him to answer) he might, upon the trial of an issue, be examined as a witness ; and on the same trial the books and papers of the firm of George Kippen & Co. might be produced, if required by the appellee, and would no doubt afford persuasive evidence the oneway or the other.

The letters referred to in the bill seem to me not to be sufficiently authenticated, for I regard M’Cleland’s statement as no part of the case, and do not think that the answer of Lyle can be fairly considered as an admission of their genuineness. I am moreover doubtful how far, if genuine, they ought to be received in evidence. The disclosure of these letters by the attorney seems to me to have been without the consent of the client, and to some extent, at least, they were matters of professional confidence. Parker v. Carter, 4 Munf. 273. If the order to dismiss a suit is not to be so regarded, the statement to an attorney that the debt has been paid is as much under the seal of professional confidence as any other communication. Nor does it appear that it was ever divulged before, unless we receive M’Cleland’s statement of what took place between Saunders and himself concerning the settlement before an arbitrator ; and I think it clear that his evidence, taken at the bar of the court, without notice, and at large upon the hearing, ought not to have been *received. 2 Mad. Ch. Pract. 435, 6; Graves v. Budgel, 1 Atk. 444.

But it is said, on the authority of the case of Fenwick v. Reade, 1 Meriv. 114, that an attorney submitting to produce title deeds in' his possession, which, if admitted by the principal to be in his custody, he would be compelled to produce, may, as standing in the situation of the principal, be also compelled to do so. This may be admitted, and is perhaps consistent with the cases of Wright v. Mayer, 6 Ves. 280, and Stratford v. Hagan, 2 Ball & Beatt. 164. But there appears to me to be a striking difference between the production of such deeds, and the communication of any fact disclosed in professional confidence. The client himself could not be compelled to discover such corn-munications, for if he could, the reason of the rule which is meant to allow unrestrained intercourse between client and attorney, would be violated, and its object frustrated.

I therefore think that this decree ought to be reversed, and the case sent back with directions to order an issue to be tried before a jury, to ascertain the fact of the payment of the debt by Ryan, in the trial of which issue the circumstance that the suit was directed to be dismissed may, if not admitted, be proved; leaving to the judge the questions which may arise on the admissibility of other testimony.

TUCKER, P.

The first and most important question in this case is whether the letters from Lyle to M’Cleland are evidence in the cause. The first objection to them is based upon the rule that an attorney at law will not be permitted to violate professional confidence. But several things must concur to bring a case within the rule. The matter must have been one of professional confidence : it must have been at the time a secret, for if known to all the world there is no reason for ^'farther concealment: the disclosure must be in invitum, as it respects the client: and lastly, if it might be forced from the client by the rules of the court, pari ratione it may be drawn from the attorney. In this case, every one of these ingredients is wanting. First, the direction by letter to dismiss the suit was not a matter of professional confidence, though it might have been made so, if, before compliance, it had been countermanded. For an order to dismiss a suit requires an act to be done which in itself implies, and in its execution operates, a disclosure of the order itself, since the attorney could not properly dismiss without authority. It was not, then, a tn atter of professional confidence. Secondly, if it had been, it had long before been divulged at the settlement between M’Cleland and Saunders before an arbitrator. Thirdly, it is not in invitum ; for the defendant, in his answer, expressly disavows any complaint of disregard of professional confidence. “For,” says he, “ if it can be shewn that this debt was paid before, this respondent will refund the money he has received, with as much pleasure &c. ” The obvious meaning of which is, that he will feel pleasure in repaying what justice demands, if it can be shewn he had improperly received it, even though the fact should be ascertained by a breach of professional confidence. Lastly, if the plaintiff would have had a right to demand the production of these letters had they been in the possession of the defendant, (about which there can be no reasonable doubt) it would seem perfectly clear that the attorney might with propriety produce them, and indeed be compelled to do so. The case of Wright v. Mayer, before lord Eldon in 1801, 6 Ves. 282, seems indeed to hold a different doctrine. But the case is unsatisfactorily reported ; and in 1816, in the case of Fenwick v. Reade, 1 Merivale 114, the same able judge decided, that an attorney submitting to produce title deeds of his client in his possession *as the court should direct, might be called upon to produce them, if the principal could himself have been called upon to do so. This seems to me good sense and sound reason. I am therefore of opinion, that in reading these letters, there is no violation of that professional confidence which it was the object of the rule to respect and maintain.

Another objection has been made at the bar, to the sufficiency of the proof that these letters were written by Lyle. If M’Cleland’s affidavit be read, there can be no doubt of it. It is objected to, however, for want of notice &c. and this objection may be sound, unless we take it that the defendant (not the plaintiff, as the record has it, which would be wholly unmeaning) had agreed to read it as if regularly taken. This I doubt whether we can do, however strongly we may suspect that there is a mistake in the record. But M’Cleland’s testimony seems to me unnecessary, as the defendant does not contest or call for proof of the letters, but endeavours to explain away the supposed mistake in them. In this state of the case I shall take them as proved, and the rather, as, in case of their rejection, the cause would necessarily go back for further proof.

Taking the letters as evidence, the result must be the affirmance of the decree. The presumption of payment from length of time is complete, and is sustained by plenary proof. The commencement of a suit to foreclose, the failure for nearly 20 years to file a bill, the order to dismiss the suit, the memorandum of the debt having been paid by H. Rose, leave the court no alternative but to presume the payment. The answer of Ryan, being no evidence between the contending incumbrancers, cannot affect this conclusion. And the testimony of judge Cabell, so far from shewing that the debt was due, furnishes perhaps a clue to the order of dismission. Strongly impressed with the injustice of the demand against Philip Ryan, who had never got a *good title for the land, he may have communicated his views to Lyle, who may have acquiesced in them, and sought and obtained payment in some way from the heir of the original debtor. So it is, we have Lyle’s statement nearly thirty years ago, that the debt was paid; and it is now too late to ascertain the mode and circumstances of the payment. The decree must be affirmed.

BROOKE, X, concurred ; and further held, that the statement of M’Cleland was competent evidence.

Decree affirmed.  