Brazier v. Fortune , 10 Ala. 516 ( 1846 )

ORMOND, J.

In the case of the State v. Marshall, 8 Ala. 302, we had occasion to consider the law, in respect to privileged communications, by clients to their attorneys, and we then held the test to be, that the communication must be made “professionally.” As it is not every communication made by a client to his attorney which cannot be divulged by the latter as a witness, it necessarily follows, that whether the fact was communicated professionctlly or not, must depend upon the circumstances of the case, considered in connection with the fact disclosed; and accordingly, in the case cited, we held, that the attorney could not be excused from giving testimony of the fact disclosed, the circumstances, and the fact itself affording evidence that it was not communicated professionally to the attorney.

In my opinion, such is the fact in this case. The attorney had been called on by the plaintiff in error, to write an affidavit, to enable him to make a motion requiring Fortune to give security for the costs of several suits, which the latter had instituted in his name, and in the course of the conversation, stated, that he had four or five hundred dollars of Fortune’s money in his lands. It appears to me, that this was a mere casual remark, having no connection with the matter upon which he was consulting the attorney, and whether considered in reference to the matter itself, or the manner in which it was communicated, in the presence and hearing of another person, cannot be considered as having been communicated professionally. I admit that the circumstance, that the' conversation was had in the presence of others, is not conclusive, but it is at least entitled to some weight; as men are not in the habit of consulting with their lawyers, in the presence and hearing of the attorney of their adversary, as was the fact here. But my brothers think that the rule should be liberally expounded, and that it may be fairly considered, that this remark was made in reference to the subject upon which the consultation was had, and with which it has some, if not a necessary connection, and should have been excluded from the jury.

We all agree, that the court erred in deciding that the evidence offered was not admissible, under the plea of set off. A set off is in the .nature of a cross-action, and whenever the party offering the set off, could maintain debt, or indebitatus assumpsit, upon it, against- his adversary, if it existed at the commencement of a suit,' it may be set off. The matter here offered to be set off, was money, which the defendant had been compelled to pay, as costs upon suits which the plaintiff had instituted in his name, without his consent, and it is perfectly clear, he could have maintained assumpsit for the amount so paid, as for money paid, laid out, and expended, for the use of the plaintiff. Such being the case, he had the right to set it off against the plaintiff’s demand.

The defendant’s agency being to place the claim in the hands of an attorney for collection, and having collected the money himself, no demand was necessary previous to a suit against him for the money.

For the errors previously noticed, the judgment must be reversed and the cause remanded.