CONFESSIONS1 AND AVOIDANCE, pleadings. Pleas in confession2 and avoidance are those which admit the averments in the plaintiff Is declaration to be true, and allege3 new facts which obviate4 and repel5 their legal effects.
2. These pleas are to be considered, first, with respect to their division. Of pleas in confession and avoidance, some are distinguished6 (in reference to their subjectmatter) as pleas in justification7 or excuse, others as pleas in discharge. Com. Dig. Pleader, 3 M 12. The pleas of the former class, show some justification or excuse of the matter charged in the declaration; of the latter, some discharge or release of that matter. The effect of the former, therefore, is to show that the plaintiff never had any right of action, because the act charged was lawful8; the effect of the latter, to show that though he had once a right of action, it is discharged or released by some matter subsequent. Of those in justification or excuse, the plea of son assault demesne9 is an example; of those in discharge, a release. This division applies to pleas only; for replications and other subsequent pleadings in confession and avoidance, are not subject to such Classification;
3. Secondly10, they are to be considered in respect to their form. As to their form, the reader is referred to Stephens on Pleading, 72, 79, where forms are given. In common with all pleadings whatever, which do not tender issue, they always conclude with a verification and prayer of judgment11.
4. Thirdly, with respect to the quality of these pleadings, it is a rule that every pleading by way of confession and avoidance must give color. (q. v.) And see, generally, 1 Chit. Pl. 599; 2 Chit. Pl, 644; Co. Litt. 282, b; Arch. Civ. Pl. 215; Dane's Ab. Index, ii. t.; 3 Bouv. Inst. n. 2921, 293 1.
CONFESSOR, evid. A priest of some Christian12 sect13, who receives an account of the sins of his people, and undertakes to give them absolution of their sins.
2. The general rule on the subject of giving evidence of confidential14 communications is, that the privilege is confined to counsel, solicitors15, and attorneys, and the interpreter between the counsel and the client. Vide Confidential Communications. Contrary to this general rule, it has been decided17 in New York, that a priest of the Roman Catholic denomination18 could not be compelled to divulge19 secrets which he had received in auricular confession. 2 City Hall Rec. 80, n.; Joy on Conf. 4, p. 49. See Bouv. Inst. n. 3174 and note.
CONFIDENTIAL COMMUNICATIONS, evidence. Whatever is communicated professedly by a client to his counsel, solicitor16, or attorney, is considered as a confidential communication.
2. This the latter is not permitted to divulge, for this is the privilege of the client and not of the attorney.
3. The. rule is, in general, strictly20 confined to counsel, solicitors or attorneys, except, indeed, the case of an interpreter between the counsel and client, when the privilege rests upon the same grounds of necessity. 3 Wend. R. 339. In New York, contrary to this general rule, tinder the statute21 of that state, it has been decided that information disclosed to a physician while attending upon the defendant22 in his professional character, which information was necessary to enable the witness to prescribe for his patient, was a confidential communication which the witness need not have testified. about; and in a case where such evidence had been received by the master, it was rejected. 4 Paige, R. 460.
4. As to the matter communicated, it extends to all cases where the party applies for professional assistance. 6 Mad. R. 47; 14 Pick., R. 416. But the privilege does not extend to extraneous23 or impertinent communications; 3 John. Cas. 198; nor to information imparted to a counsellor in the character of a friend, and not as counsel. 1 Caines' R. 157.
5. The cases in which communications to counsel have been holden not to be privileged may be classed under the following heads: 1. When the communication was made before the attorney was employed as such; 1 Vent24. 197; 2 Atk. 524; 2. after the attorney's employment has ceased 4 T. R. 431; 3. when the attorney was consulted because he was an attorney, yet he refused to act as such, and was therefore only applied25 to as a friend; 4 T. R. 753; 4. where a fact merely took place in the presence of the attorney, Cowp. 846; 2 Ves. 189; 2 Curt26. Eccl. R. 866; but see Str. 1122; 5. when the matter communicated was not in its nature private, and could in no sense be termed the subject of a confidential communication; 7 East,, R. 357; 2 B. & B. 176; 3 John' Cas. 198; 6. when the things disclosed had no reference to professional employment, though disclosed while the relation of attorney and client subsisted27; Peake's R. 77; 7. when the attorney made himself a subscribing28 witness; 10 Mod. 40 2 Curt. Eccl. R. 866; 3 Burr. 1687
8. when he was directed to plead the facts to wbich he is called to testify. 7 N. S. 179. See a well written article! on this subject in the American Jurist, vol. xvii. p. 304. Vide, generally, Stark29. Ev. h. t.; 1 Greenl. Ev. 236-247; 1 Peters' R. 356; 1 Root, 383; Whart. Dig. 275; Caryls' R. 88, 126, 143; Toth. R. 177; Peake's Cas. 77 2 Stark. Cas. 274; 4 Wash. C. C. R. 718; 11 Wheat. 280; 3 Yeates, R. 4; 4 Munf. R. 273 1 Porter, R. 433; Wright, R. 136; 13 John. R. 492. As to a confession made to a catholic priest, see 2 N. Y. City Hall Rec. 77. Vide 2 Ch. Pr. 18-21; Confessor.
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