Philipse must have died before witness' recollection. The children of Roger Morris and Mary his wife were all born before the year 1774. Joanna, (afterwards Mrs. Hincks,) was about ten years old in 1774, and went to England about that time for her education, and returned to New York during the revolutionary war.

On cross-examination, Col. Barclay testified that Amherst was eldest son of Roger Morris, and he was a lieutenant in the British navy at the peace of 1783; he has never heard of his being in this country since that period: he is said to have died in the British navy. Henry Gage, the second son, was a child of six or seven years old before the war, and went to England with his father about six months before the British evacuated New York, in 1783: he was then about 13 or 14 years old he is now a post captain in the British navy. Thomas Cowper Hincks was a captain of dragoons when he married Joanna Morris, some time after the peace of 1783.

Neither Roger Morris nor his wife, nor any of the family, have ever been in this country since the peace of 1783.

Joanna Philipse, mother of Mrs. Morris, died some years before the revolutionary war. Joanna Morris was married before the death of her brother Amherst. Plaintiff's counsel then gave in evidence a deed by lease and release, dated 29th June, 1753, to lead the uses of a common recovery, and an exemplified copy of a record of proceedings in the supreme court of the late province of New York, in the year 1753, for a common recovery, in order to dock the entail of the estate devised by the will of Frederick Philipse; also, three deeds of partition, dated 7th Feb. 1754, whereby it appears that the patent had been divided into nine great lots; and that lots No. one, four, and seven were assigned and released to Susannah, the wife of Beverly Robinson; lots No. two, six, and eight, were assigned and released to Philip Philipse; and lots No. three, five, and nine were assigned and

released to Mary Philipse, in fee simple; and a deed of marriage settlement, bearing date the 14th January, 1758, between Mary Philipse of the first part, Roger Morris of the second part, and Joanna Philipse and Beverly Robinson of the third part, which deed contained a recital, stating that a lease for one year had been executed the day before the deed of release now produced, and corresponding therewith; which lease was stated by plaintiff's counsel to be lost, and was not produced.

By the deed of marriage settlement or release so given in evidence, the uses are limited as follows, to wit: "to and for the several uses, intents, and purposes, hereinafter declared, expressed, limited, and appointed, and to and for no other use, intent, or purpose whatsoever, that is to say, to and for the use and behoof of them the said Joanna Philipse and Beverly Robinson and their heirs, until the solemnization of the said intended marriage; and from and immediately after the solemnization of the said intended marriage, then to the use and behoof of the said Mary Philipse and Roger Morris, and the survivor of them, for and during the term of their natural lives, without impeachment of waste; and from and after the determination of that estate, then to the use and behoof of such child or children as shall or may be procreated between them, and to his, her, or their heirs and assigns for ever. But in case the said Roger Morris and Mary Philipse shall have no child or children begotten between them, or that such child or children shall happen to die during the lifetime of the said Roger and Mary, and the said Mary should survive the said Roger without issue, then to the use of her the said Mary Philipse and her heirs and assigns for ever; and in case he said Roger Morris should survive the said Mary Philipse, without any issue by her, or that such issue is then dead, without leaving issue; then after the decease of the said Roger Morris, to the only use and behoof of such person or persons. and in such

manner and form, as she the said Mary Philipse shall at any time during the said intended marriage, devise the same by her last will and testament, which last will and testament for that purpose, it is hereby agreed by all the parties to these presents, that it shall be lawful for her at any time during her said marriage, to make, publish, and declare; the said marriage, or any thing herein contained to the contrary thereof in anywise notwithstanding." Which deed of settlement included the said lots No. 3, 5, and 9; and contained a reservation whereby the said Roger Morris and his intended wife should have a right to sell in fee simple such part or parts of said lands as they should deem proper, not exceed ing three thousand pounds in value.

It was admitted that the contemplated marriage between Roger Morris and Mary Philipse was consummated according to the deed of settle

ment.

Colonel Barclay then testified, that Mrs. Mary Morris, widow of Roger Morris, died at York, in England, about two years ago, aged about ninety-four years.

Beverly Robinson, being again called, testified that Colonel Roger Morris died in England before the death of his son Amherst, which he thinks was about the year 1796 or 1797. Henry Livingston was then called by plaintiff's counsel to produce his map, and to prove the location of the premises. Whereupon the defendant's counsel admitted, that defendant, James Carver, is, and at the commencement of this suit was, in possession of a farm in lot No. five, in that patent, being the premises in question. The cause was then rested on the part of the plain: ff.

The attorney general then opened the defence, and read the act of attainder, passed 22d day of October, 1779, wherein Beverly Robinson and Susannah his wife, Roger Morris and Mary his wife, were attainted, and convicted of adhering to the enemies of this state; and all their estates, real and personal, were declared to be

forfeited to the peopic of this state, and were directed to e sold, &c.

It was admitted that Roger Morris and Mary his wife, and Beverly Robinson, named in the act of attainder, were the same persons named in the settlement deed.

Beverly Robinson, called by defendant's counsel, testified that his grandfather, Beverly Robinson, died about the year 1795.

Daniel Cole, called by plaintiff, testified that he is 79 years old, he was born on Morris's long lot, No. 5, in what is now called Kent, and has lived there ever since. His father lived there before him, and was a tenant of Roger Morris. The tenants on that lot held under Roger Morris before the war. Timothy Carver was father of defendant James Carver, and lived on the farm now in possession of defendant, before the war. Timothy Carver purchased it of one Cheeseman, who had it of one Serrin. Timothy Carver lived there till about three years ago, when he died, and his son, James Carver, succeeded him in the possession. The witness was asked by plaintiff's counsel whether the persons, living on said lot No. five, since the revolutionary war, claimed to hold under the commissioners of forfeitures and the attainder? To which the defendant's counsel objected. Judge Betts said, that it being set up that the tenants held under the marriage settlement, it was competent to show by the testimony of the witness, that the possession was in conformity with that instrument. It was a question of fact, and not of law. Judge Thompson remarked, that in the inquiry in relation to the commissioner of forfeitures, the witness would confine himself to what he knew in relation to the particular farm in question. Going on to inquire as to how the farm of the witness was purchased and held, seemed to be stepping over the limitation. Oakley remarked, that in offering testimony as to the manner of holding the property, it was necessary to enter into the examination of other farms. The court might overrule it. Judge Thompson remark

ed, they did overrule it. Emmet said it was to them an essential inquiry; but as the court had overruled it, they should take exceptions to the decision.

The witness testified hat his father, while living on that lot, said he held under Roger Morris, and paid rent to him before the act of attainder.

Witness and his brother also occupied parts of that lot (No. 5,) and they both paid rent to Roger Morris before the war. Roger Morris had a house at the red mills, on that lot, where he used to come and stay to receive his rents, before the war. There were then a great number of tenants on that lot, holding under Roger Morris.

Plaintiff's counsel, then gave notice to the counsel for defendant to produce a deed from the commissioners of forfeitures to Timothy Carver, for the farm now in question, which call was not complied with.

Plaintiff's counsel then called on Henry B. Cowles, one of defendant's counsel, as a witness, to prove the deed in court, to which the defendant's counsel objected, on the ground. that if Mr. Cowles was in possession of the deed, it had been delivered to him in confidence, by his client.

Mr. Oakley said, that he should call upon Mr. Cowles to be sworn, in order to testify as to the deed in question.

Mr. Van Buren questioned the right of the gentleman to claim. It was, to say the least of it, an uncourteous practice, and one, which seemed to him, to involve the necessity of demanding of counsel the betrayal of the trust reposed in them by their clients. Judge Thompson said, that he knew there had been a case decided in the supreme court, which established, that the production of the papers, or the testimony of counsel, might be demanded. But he was opposed to the principle. He disli ed this fishing method of getting out, by the oath of the counsel, the fact of a paper being in court, in order that it might lead to some other testimony.

Mr. Oakley observed, that a case had been decided in the supreme

court of this state, of the same import, and a counsel was examined as to where a document was.

Mr. Webster said, he considered a document placed in the hands of counsel, in the light of any other communication made by a client to his counsel, which ought to be, and was, considered perfectly confidential.

Judge Betts said, that the court would certainly protect counsel from being forced to disclose communications made to them by their clients; but a paper was not considered in the light of a communication.

Mr. Oakley cited 17 Johnson, 1825. pp. 335-6, a case in which a notice was first given, to state whether a will was in court. They refused to give the information. They were then called on as witnesses, and the court susstained the call. It was there laid down, that the court could compel an attorney to go on, and state whether a paper called for, was in existence, and in whose possession.

Mr. Van Buren said, that no rule could be more pernicious, or more calculated to destroy the confidence of the client in his counsel. It would in fact render it necessary for the former to secrete his papers from the latter, lest they should be forcibly exposed, to his prejudice.

Judge Betts remarked, that he was of opinion, that this court was bound to obey the rule of evidence, established, in the case just cited by the supreme court of this state.

Mr. Emmet said, that the counsel were permitted to practise here by the will of the supreme court, and their privileges were defined by, and dependent upon, that court.

Judge Thompson observed, that it was not the privilege of counsel that was likely alone to be injured; that of the client was also most seriously af fected. It was necessary for a client to communicate to his counsel all the facts calculated to conduce to his interest; but this was surely a most baneful rule, and likely to interfere with the free intercourse between counsel and client. If this question

had now come before him, (Judge T.,) for the first time, he should have no hesitation in deciding against the admission because, if it were permitted to fish out from counsel, information that could not otherwise be obtained; and to force them to divulge all the communications made to them by their clients, it might extend so far, that information having been obtained, as to where a document was, it might be demanded by a writ of ducis tecum. He was very much averse to deciding against what had become a a practice in the courts of this state. But he did not think this court bound to abide by any rule of evidence which was not founded in principle.

Mr. Platt said, that they had a right to obtain from counsel any information obtained by them, otherwise than confidentially, from their cli

ents.

The attorney general cited a passage in Starkie on evidence, relating to the privileges of counsel.

Mr. Van Buren also read some authorities, to show, that the circuit court was not bound to adhere to the decisions of the supreme court of this state; should those decisions appear to be against the principles of law. The court was authorized to go on and settle the principle, and he hoped they would do so.

Mr. Webster cited authority to the same general effect.

Judge Betts then declared the decision of the court. If the question which had now been agitated, were open for discussion, the court should certainly decide against it. But they considered, from the decision that had already been made, that a rule of evidence, as well as of practice, had been established, which they did not see fit to alter. Nor was it clear, that, had the clients brought a suit under an act of congress, they would not have been subjected to a similar rule. The court therefore decided that the question might be asked.

Defendant's counsel excepted to this opinion.

G

Mr. Cowles was then sworn, and examined.

Had acted in capacity of counsel in this case; all the papers had been handed to him as counsel in defence. Asked whether he knows that the lease of the commissioners of forfeitures, to Timothy Carver, is in court, he desired to be indulged in asking a question of his associate counsel.

Judge Thompson observed, that there was no objection in this particular case, to his doing so ; but it was a bad precedent to establish; as justice and truth might be obstructed by the continual application of witnesses to their counsel, for instruction as to the answers to be made to questions put to them. It might be productive of irregularity in practice, and that was the only objection he had to granting the request.

Mr. Oakley observed, that, as a matter of indulgence, the counsel for the plaintiffs had no objection to granting the request of the gentleman, and the court acquiesced in their views.

After consulting with counsel, Mr. Cowles being questioned whether the lease before mentioned was in court in his possession, or that of his associate counsel, asked, whether the court decided that he should answer.

Judge Betts said, he never knew it practised to ask more than as to whether he, the witness, had the paper.

Mr. Cowles then answered, that he had then in court, and in his possession, an instrument purporting to be a deed from John Hathorn and Samuel Dodge, as commissioners of forfeitures, to Timothy Carver, but upon consultation, with his associate counsel, he refused to produce the deed.

Henry Livingston again called by plaintiff, testified that the acting commissioners of forfeitures, were John Hathorn, Samuel Dodge, and Daniel Graham, Esquires, and that they are all dead.

Barnabas Carver, (called by the plaintiff,) testified, that he is 62 years