Coon v. Swan , 30 Vt. 6 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

The defendants in this case held the policy of insurance in trust for the intestate, and as collateral security for the payment of the note. The money when paid on the policy, in equity and good conscience, belonged to the estate of the intestate ; and from the case made in the bill of exceptions, the defendants can have no legal or equitable right to retain any portion of the money paid them by the insurance company, to pay the usurious interest included in the note. The money was a fund raised at the expense of the intestate, and placed in the hands of the defendants for a special purpose, and that purpose having been accomplished so far as the defendants had a legal right to have it accomplished, they can not retain the surplus for tlie sake of paying the usury reserved in the note. There was no consideration to give a right to retain any money to pay the usury reserved in it. See 7 Cushing 6. It may be that the insurance company could not have been compelled to pay on the policy a sum beyond the defendants’ real debt and interest against the intestate; yet be that as it may, they having paid it under a claim of right, the payment would be regarded as voluntary, and the surplus could not he recovered hack, and of course the defendants could not interpose an objection to the plaintiff’s recovery upon any such ground.

To create a right of privilege it is not enough that the person called as a witness should have been an attorney. The relation of attorney and client must have existed (or there must have been at least good reason to suppose it existed), and the communications must have been of a confidential and •professional character, to bring them within the reason of the rule which should exclude ¿hem upon grounds of public policy. t^The counsel or attorney should be acting for the time being in the character of legal adviser, or at least the party should have good reason to suppose he was so ^acting, j The witness in this case says that he dícTTibt acFíñ~his consultation with the party as an attorney, but simply as a neighbor, and that he neither charged or expected any compensation, and there is nothing in the case to show that the party understood it in any other light at the time. We think, then, Mr. Adams was properly admitted as a witness.

The judgment of the county court is affirmed.