Page:Federal Reporter, 1st Series, Volume 9.djvu/288

 BBOWN V. THE JEFFERSON CODNTY NAT. BANK. 273 �secured s ach preference, was acquired by McCartin & Williams after the suits by the bank were brought. �It is contended for the bank that to give a decree against it in this case requires a violation of the salutary and well-settled principle that communications made to an attorney in the course of any per- sonal employment relating to the subject thereof, and which may be Bupposed to be drawn out in consequence of the relation in which the party making the communications and the attorney stand to each other, are under the seal of confidence, and entitled to protection as privileged communications, Williams v. Fitch, 18 N. Y. 547, 551; Bacon v. Frisbie, 80 N. Y, 394, 399. The argument is that McCar- tin & Williams were not at liberty to disclose to the bank what they leamed from H. V. Cadwell, under their employment by the Oadwells after the suits were brought, and that, therefore, the bank is not chargeable with notice of what McCartin & Williams so leamed. But the principle which protects such communications from disclosure only applies to giving them in evidence without the assent of the per- son making them. With such assent they may be given in evidence, as well against such person as against a third party. Here, there is no attempt to give in evidence by either McCartin or Williams, as a witness, any communications made to them by H. V. Cadwell. H.V. Cadwell himself bas given all the evidence that has been given in regard to any communications by him to McCartin & Williams. �Eeally, there is no question involved as to any confidential commu- nications by H. V. Caldwell to McCartin & Williams as attorneys for the debtors. The case is one where the attorneys for the creditor, after their employment by the creditor and the bringing of the suits, bound by their obligations to the creditor to secure his money for him by all proper means, entered into the service of the debtors, and by concert with them, and with their full knowledge, caused them to so act, and so acted themselves, in view of information obtained from and on behalf of the cieditor from the debtor, who knew that the information was being given and received for the benefit of the cred- itor, as that the priority in time of the judgments to the bankruptcy proceedings, which was the vital point, was secured. The creditor cannot enjoy the benefit of the priority without taking it cum onere, accompanied by responsibility for the knowledge which the attorneys acquired in its service, and which enabled the attorneys to so guide the conduct of the debtors and of themselves as to secure priority. �On the record and by stipulation the defendant appears to have v.9,no.5— 18 ��� �