NEW LAW REPORTS OF CEYLON.VOLUME XIII.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justioe,and Mr. Justice Middleton.
NARAYANEN v. SMITH et al
IX C., Kandy, 18t880.
Communication made to proctor by client—Fraud—Privilege—EvidenceOrdinance, s. 126.
A proctor is only entitled torefuse the disclosurewithouthis
client's express .consentof anycommunication madeto himin
the course of, and for the purpose of, his employment as suchproctor; he is notprotectedfrom disclosing a communication
made in furtherance ofan illegalpurpose, or* any factshowingthat
fraud has been committed.
HE plaintiff, a kangany, obtained a discharge note from thesecond defendant (Samuel, conductor) by giving him a
cheque for Rs. 754.77 drawn in favour of the first defendant (Smith,superintendent), which was ‘Rs. 400 in excess of what the plaintiffowed the first defendant’s estate. He sued the first defendant forthe refund of the excess sum of Rs. 400.
The first defendant pleaded that the second defendant, whoforwarded him the cheque, claimed the money as belonging to him(second defendant). The first defendant brought the money intoCourt, to abide its decision as to whether it belonged to the plaintiffor .to second defendant.
The second defendant ^intervened and claimed the money as his,alleging that the plaintiff had paid him the Rs.'400, and got backfrom him a promissory note, which the plaintiff had granted to himin acknowledgment of his indebtedness. At the trial the plaintiff
7. N. A 89163 (5/49)
Dec. 9, 1909
( 2 )
Ztec. 9,1909. denied that he ever granted the defendant such a note. The secondNatrayanen defendant called Mr. E. G. Jonklaas, who was at one time plaintiffsv. Smith proctor, as his witness.
The following questions, inter alia, were put to him, and hedeclined to answer them, on the ground that he could not do sowithout disclosing statements made to him by his client, theplaintiff: —
Question 1.—Did the plaintiff ask you to get back from thesecond defendant his promissory note for some Rs. 400 odd ?
Question 2.—Do you remember asking the second defendant toreturn to the plaintiff a promissory note for Rs. 400 odd ?
The learned District Judge ruled that Mr. Jonklaas was not boundto answer the questions. He gave judgment for plaintiff againstthe first defendant, and dismissed the second defendant’s claimwith costs.
The defendants appealed.
Bawa, for the appellants.—The learned District. Judge was wrongin ruling .that Mr. Jonklaas was not bound to answer the questions.See Ameer AH and Woodroffe (Law of Evidence), p. 903, 2nd ed. ;Griffith v. Davies;1 Perry v. Smith.2
Van Lmgenberg, for the respondent.—The authorities do notapply to the present case. In Griffith v. Davies 1 it was anaccident that the solicitor was present when a conversation tookplace between the parties to that case. In the other case theattorney was acting for both parties.
Cur. adv. vult.
December 9, 1909. Middleton J.—
[His Lordship set out the facts, and continued.]
It seems to me that under the circumstances the first defendanthad good reasons for not paying the balance to either one party orthe other, and although perhaps he ought to have adopted theprocedure laid down by the Civil Procedure Code, chapter XLII.,it does not appear to me that his neglect to do so has thereby causedthe plaintiff any further expenditure for litigation than ho wouldhave incurred in contesting his claim with the second defendant inan interpleader action, and in my opinion the first defendant oughtnot to have been condemned to pay the plaintiff’s costs. If, then,the first defendant was not bound to pay the plaintiff this balancesum on demand, it becomes of importance to determine in this action,as it at present stands, to whom the money should be paid, i.e., to theplaintiff or the second defendant. *
1 (1833) 5B dc A 502.
* (1842) 9 Meeson & Welshy 681.
( 3 )
The evidence which would apparently have been decisive of this Dec. 9t 1909question is that of Mr. E. G. Jonklaas, a proctor at one time acting ^m~nw
for the plaintiff, whose evidence the District Judge has upon twoquestions, at pages 16-51, 52, and 23-24, 74r75, ruled inadmissible.
In my opinion under section 126 the ruling of the learned Judgecannot be supported, and it is admit lad by counsel for the respond-ent that he cannot support the Judge’s ruling at pages 23-24 and74-75. The proctor is only entitled to refuse to disclose withouthis client's express consent any communication made to him in thecourse of, and for the purpose of, his employment as such proctor,nor is he protected from disclosing a communication made infurtherance of an illegal purpose, or any fact showing fraud hasbeen committed. It seems to me that if plaintiff told Mr. Jonklaasat one time to ge.t back the note for Bs. 400 from the second defend-ant, and is now found denying on oath that he had ever given thesecond defendant such a note, this is a fact showing fraud on thepart of the plaintiff, his client, which the proctor is bound to disclose.
therefore think the case should go back for the examination ofMr. Jonklass and the recording of his evidence, which should be for-warded to this Court. The order therefore will be that the case beremitted to the District Court for the Judge to record the evidenceof Mr. E. G. Jonklass with reference to the statements made to himby the plaintiff on the subject of the promissory note for Bs. 400,alleged by the second defendant to have been given to him by theplaintiff and subsequently returned to the plaintiff, and also thestatements made by the second defendant to him on the same subject,refused admission by the District Judge. Mr. Jonklass will, ofcourse, be subject to cross-examination by the plaintiff’s advocate,and the Judge will observe the terms of sections 126 of the EvidenceOrdinance.
Hutchinson C.J.—I agree.
Appeal allowed: case remiUed.
NARAYANEN v. SMITH et al